MT 100847 Cpl Hassan Yusuph Abdulla vs The Judge Advocate General Court Martial Appeal 23815 of 2024 2025 TZHC 517 25 February 2025

THE UNITED REPUBLIC OF TANZANIA IN THE COURT-MARTIAL APPEAL COURT AT DAR ES SALAAM CORAM: B.K. PHILLIP, J., A.A. MBAGWA, J., AND O. BWEGOGE, J. COURT-MARTIAL APPEAL NO. 23815 OF 2024 MT 100847 CPL HASSAN YUSUF ABDULLA ......................... …..APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL ....................................... ….RESPONDENT JUDGMENT Date last order: 7-10-2024 Date of Judgment: 25-2-2025 B.K. PHILLIP, J The Appellant herein was arraigned before the General Court Martial (“GCM”) on a charge of possession of offensive weapons or materials contrary to section 8 of the National Security Act, 1970, and Section C.65 of the Code of Service Discipline (“CSD”), First Schedule to the National Defence Act, [Cap.192 R.E.2002]. The case was heard on merits and in the end, the Appellant was convicted, and sentenced to two years imprisonment. 1 Aggrieved by the Judgment of the General Court-Martial, the Appellant lodged this appeal on the grounds reproduced verbatim hereunder; (i) That the trial GCM erred in law by conducting trial, finding guilty and convicting the Appellant for the offence of ‘possession of offensive weapons or materials’, contrary to Section 8 (1) of the National Security Act, 1970, while it had no jurisdiction to try the Appellant. (ii) That the trial GCM erred in law and facts, by finding the Appellant guilty, convicting and sentencing him to two years custodial sentence for the offence that he was not charged with. (iii) That, the trial GCM erred in law in not finding that the charge (GCM Exhibit “E") against the Appellant was fatally and incurably defective in that the Appellant was charged, prosecuted, found guilty, convicted and sentenced to two years imprisonment under wrong provisions of law and wrong statute/law in relation to the offence alleged to have been committed by him. 2 (iv) That the Judge Advocate erred in law and facts, by failure to direct the trial GCM Members that the particulars of offence in GCM Exhibit “E" did not support the Statement of offence, hence, fatally and incurably defective. (v) That the Judge Advocate erred in law and facts, by failure to direct the trial GCM Members that in order for the Appellant to be found guilty of an offence of ‘possession of offensive weapons or materials’, under Section 8 (1) of the National Security Act, 1970, Act, [CAP. 47 R.E. 2002], the prosecution must lead evidence on what threat to national security and interests of the United Republic has been caused by the Appellant’s act that constitute the offence charged. (vi) That the Judge Advocate erred in law and facts, by directing the president of trial GCM to admit Exhibit “PE-09” without satisfying himself with the issue of chain of custody of the same from prosecution evidence, hence causing miscarriage of justice to the Appellant. 3 (vii) That the trial GCM erred in law and facts, by failure to find that the evidence adduced by prosecution against the Appellant did not prove the offence of ‘possession of offensive weapons or materials', inked in GCM Exhibit "E" to required standard of proof in criminal cases. (viii) That the trial GCM grossly erred in law for failure to give reasons for its finding of guilty for the offence of ‘possession of offensive weapons or materials’, under Section 8 (1) of the National Security Act, 1970, the act which caused miscarriage of justice to the Appellant. At the hearing of this appeal, Retired Lt Col Godwill Fredrick Benda, learned advocate represented the appellant, whereas Major Calist Salvatory represented the respondent. The appeal was disposed of by way of written submissions. Before embarking on the analysis of the arguments raised by the parties for and against the appeal, we think it is important to give a background to this appeal albeit briefly. The appellant was a soldier, employed by the Tanzania Defence Force. 4 Before the General Court-Martial, it was alleged that the appellant was found in possession of nine (9) rounds of ammunition, type 7.62 x 39 in his bag at Dar es Salaam Port, unlawfully. In proving its case, the respondent paraded five (5) witnesses namely, MT 95337 Cpl Daniela Werege, WP 12312PC Litutifa Mohamed Masoud (PW2), Civ Samwel Chikira Samson (PW3) P.13027 Capt Adam Fredrick Mwiza ( PW4) and E.7483 D/SGT Pasua Khamis Rashid ( PW5). In addition, nine (9) rounds of ammunition were admitted as exhibits for the respondent’scase. Back to this appeal, Mr. Benda abandoned the 4th and 7th grounds of appeal. Submitting for the 1st ground of appeal, Mr. Benda argued that the General Courts-Martial had no jurisdiction to entertain the case against the appellant for lack of written consent or certification from the Director of Public Prosecutions (“DPP”) that the appellant should be tried before the GCM as required under section 16 of the National Security Act,1970. He contended that, the proceedings before the GCM were vitiated for lack of the DPP’s written consent. To cement his arguments, he cited the case of Desai Vs. Warsama (1967) EA 351. 5 Other cases cited by Mr. Benda with a similar legal position to the case cited herein above are; Fanuel Mantiri Ng’unda Vs. Herman Mantiri Ng’andu & 2 Others [1995] TLR 155 and Peter Msimbe & Another Vs. Republic, Criminal Appeal No. 168 of 2020, (unreported), in which the court held as follows; ‘....the consent and certificate of DPP confers jurisdiction upon the court to economic cases...'. Moreover, Mr. Benda insisted that jurisdiction is a creature of statute and any proceedings conducted without jurisdiction are null and void. He beseeched this court to nullify the GCM proceedings and allow the appeal. In response to the 1st ground of appeal, Major Calist conceded that no DPP consent or certification was sought and obtained to prosecute the appellant before the GCM. He was in one with Mr. Benda that under section 16 of the National Security Act, 1970 the DPP’s written consent is mandatory for a case under the National Security Act,1970 to be prosecuted before the GCM. Like the appellant’s counsel, Major Calist implored this court to nullify the proceedings conducted before the GCM and order a trial de novo of the case. To cement his arguments, he cited the cases of Shaibu Hussein @ Twalibu Mambosafi Vs Republic, Criminal Appeal No.56 of 2022 and 6 Silvanus Maneno Mkasanga @ Kelvin and another Vs Republic, Criminal Appeal No. 347 of 2023 (Both unreported) In rejoinder, Mr. Benda reiterated his submission in chief and refuted the Major Calist’s prayer for order for trial de novo of the case. He was of the view that trial de novo cannot be ordered in thecircumstances where the prosecution can use the same to rectify the faults/shortfalls noted during the hearing of the case. To cement his arguments, he cited the case of Fatehali Manji Vs. Republic (1966) EA 343, and Christian Minde Vs Tanesco, Civil Appeal No. 228 of 2019 (unreported). He was emphatic that in this appeal if an order for trial de novo is granted, it shall be used by the prosecution to rectify their faults by seeking written consent from the DPP’s office to prosecute the case against the appellant before the GCM, drafting proper charges under proper provisions of the laws, prepare a proper certificate of custody in respect of the exhibits (9 rounds of ammunition) and make other necessary corrections of the prosecution evidence at the detriment of the appellant. He thus implored this court not to order trial de novo of the case. The parties submitted at length for and against the appeal on the grounds reproduced above. However, for the reasons that shall be apparent shortly, 7 we shall only deal with the 1st ground of appeal. Having analyzed the submissions made by Major Calist and Advocate Benda, we noted that the following are not disputed: One, under section 16 of the National Security Act, 1970, it is a mandatory requirement that written consent from the DPP should be sought and obtained before any offence under the National Security Act, 1970 is tried. Two, in this case, no DPP’s consent was sought and obtained before the Appellant was arraigned at the GCM. Three, the GCM’s proceedings are null and void for lack of the DPP’s written consent/certificate for the case to be tried before GCM. For the sake of clarity, we reproduce the provisions of Section 16 of the National Security Act; “Section 16; Where any person is brought before a court on a charge under this Act no further proceedings in respect thereof shall be taken against him without the consent in writing of the Director of Public Prosecutions save such as may be necessary by remand to secure due appearance of the person charged” (Emphasis added) As explicitly provided in section 16 of the National Security Act, 1970 the DPP’s consent is mandatory for the court to have jurisdiction to try a charge 8 under the National Security Act,1970. Indeed, as conceded by Major Calist, upon perusing the GCM’s records, we noted that there was no written consent from the DPP, therefore the GCM had no jurisdiction to entertain the case. It is worth noting that before commencing a hearing of any matter the court is duty-bound to ascertain whether or not it has jurisdiction. This is because lack of jurisdiction is fatal. In the case of Fanuel Mantiri Ng’unda (supra),the court has this to say on issues involving the court’s jurisdiction “...the question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature .In our considered view the question of jurisdiction is so fundamental that the court must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. This should be done from the pleadings. The reason for this is that it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. (Emphasis is added) Additionally, it is the position of the law that the lack of the DPP’s consent renders the court’s proceedings a nullity. There are a plethora of authorities to that effect. For instance, in the case of Adam Selemani Njalamoto Vs Republic, Criminal Appeal No.196 of 2016, (unreported), the Court of Appeal held as follows; 9 “ It goes without saying that, the trial against the appellant was conducted without jurisdiction. The absence of consent of DPP is a legal predicament apparent in the charge sheet and in the trial in general. The charge sheet and the trial proceedings were illegal and a nullity since in terms of the provisions of sections 57 and 60 of the Economic and Organized Crimes Control Act (Cap 200, R.E. 2002) (the Act) which deals with economic offences require the consent of the Director of Public Prosecutions to prosecute them……In view of this legal position, the appellant was prosecuted without consent and a certificate of transfer issued by the Director of Public Prosecutions, in the result , we are of the view that the proceedings, conviction and sentences in the trial court and the first appellant court were illegal and nullity.” (Emphasis is added Since there was no written consent from the DPP authorizing the GCM to try the case against the Appellant, it is the finding of this Court that the GCM had no jurisdiction to entertain the case. As such, the proceedings before the GCM and the resultant judgment are null and void. We therefore nullify the proceedings and set aside the judgment and sentence imposed by the trial GCM. Having made the above findings, the next issue for consideration is the consequences thereof. Major Calist prayed for an order for retrial, whereas Mr. Benda implored this court to refuse to grant Major Calist’s prayer. Upon nullification of the proceedings and judgment of a lower court, this Court can either order a retrial of the case or set the Appellant free. There are no hard 10 and fast rules in reaching either of the options stated herein above but rather what is important is the interest of justice according to the circumstances of each particular case. In the case of Christian Minde (supra) cited by Mr. Benda in his submissions, the Court of Appeal held as follows; “ In the Director of Public Prosecutions Vs Wambura Mahega @ Kisiroti, Criminal Appeal No.282 of 2017 ( unreported) although a criminal matter, after a thorough discussion of what was decided in Fatehali Manji Vs Republic , E.A. 341, we observed that in making a decision whether to order re-trial or not , the overriding factor to consider is what do interests of justice dictate in the circumstances at hand” ( emphasis added) We have considered the arguments Mr. Benda raised against the order of a retrial and noted that his proposition requires the analysis of the evidence adduced. However, we cannot entertain it at this stage since the proceedings of the GCM have been nullified. We are of the settled opinion that under the circumstances of this case which involves an offence under the National Security Act interests of justice dictate that this case should be tried de novo and we hereby order that the case shall be tried de novo expediently. Since the first grounds of appeal are based on pure point of law and are sufficient to dispose of the appeal, we see no compelling reasons to deal with the remaining grounds of appeal. 11 In the upshot, the appeal is allowed to the extent indicated. The appellant should be set free pending his retrial. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam this 25th day of February 2025 B.K.PHILLIP JUDGE A. MBAGWA JUDGE O. F. BWEGOGE JUDGE 12