MUSA SUFIAN

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 13742 OF 2024 (Arising from Economic Case No. 01 of2023 in the District Court of Chemba) MUSA SUFIAN................................................................. APPELLANT VERSUS REPUBLIC....................................................................... RESPONDENT JUDGMENT 11th July & 9hAugust, 2024 MUSOKWA, J. The appellant herein was arraigned before the District Court of Chemba (trial court), charged with two counts. This 1st count was unlawful possession of firearm; contrary to sections 20 (1) and (2) of the Firearms and Ammunition Control Act, 2015 (the Firearms Act) read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 R.E 2022 (EOCCA). The 2nd count was unlawful possession of ammunition, contrary to section 21(a), (b) of the Firearms Act, read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA. i The appellant, upon full trial being conducted, was convicted of the aforementioned offences and was sentenced to 20 years imprisonment. Aggrieved by the decision of the trial court, the appellant lodged the instant appeal containing four grounds of appeal. The appellant prayed this court to allow the appeal, quash the conviction, and set aside the sentence of the trial court. At the hearing of this appeal, the appellant appeared in person without legal representation, whereas Mr. Sadiki Abdulkheri, learned state attorney appeared for the respondent. The appellant waived h:s right to begin and prayed for the respondent to submit first. The court granted the prayer thereof. Mr. Sadik objecting the appeal, submitted that the prosecution at the trial, paraded witnesses whose testimonies proved the offences against the appellant beyond reasonable doubt. Thus, the conviction and corresponding sentence that was issued thereto was proper in law. Responding to the first ground of appeal which challenged the conviction and alleged that the sentence was excessive and contrary to the law; the learned state attorney submitted that, the sentence issued against the appellant was in 2 accordance with the law. Mr. Sadik referred to section 60 (2) of the EOCCA, stating that the section provides for the sentences for a person convicted of corruption or economic offences; that such person shall be liable to imprisonment for a term of not less than 20 years. The 2nd and 3rd grounds of appeal were addressed by Mr. Sadik collectively. These grounds allege that the prosecution failed to prove the case beyond reasonable doubt. Further, that there were inconsistencies in the evidence adduced by the prosecution. In addressing these grounds, the learned state attorney submitted tnat the prosecution sufficiently proved the said offences. Mr. Sadik asserted that in proving the offences, the prosecution was required to establish possession of the firearm and ammunition by the appellant. The prosecution further had to establish that the said possession was unlawful, in that, it was not licensed. The testimony of PW1, the arresting officer, was referred to in this regard. This witness testified that upon receiving information from an informant that the suspect is in unlawful possession of a firearm, the witness and his team paid a visit to the scene of the crime. This is reflected at pages 21 to 22 of the typed trial court proceedings. The witness stated that upon arrival at the appellant's home, they called the neighbors and informed them that they wish to conduct a 3 search therein. Thereafter, they reiterated this information to the appellant in the presence of his wife prior to the search exercise. As such, the appellant agreed with a condition that he should search the arresting officers first. Thereafter, the team began the search whereby they found a firearm known as "gobolb' and 13 bullets in a bag. The firearm had one bullet which was ready for use; the team fired the said bullet for security purposes. PW1 further testified that during the initial interrogation which was conducted at the appellant's home, the appellant admitted to be in unlawful possession of the firearm, as he had no permit. Exhibit Pl, as the certificate of seizure was signed by the appellant, the arresting officer and the neighbors and was tendered during the trial. PW1 stated that the appellant did not object to the admission of the said exhibit, as indicated at page 23 of the typed trial proceedings. Submitting further in rebuttal, the learned state attorney averred that, the cautioned statement was recorded at the police station by PW2, namely DC Ruke, whereby the appellant for the second time, admitted on the commission of the offence. The cautioned statement was tendered in court, as recorded at page 25 to 26 of the typed proceedings. The same was admitted as exhibit P2 without any objection from the appellant. In emphasis, the respondent's counsel restated that the evidence adduced during the trial proved the offences against the 4 appellant in accordance with the required legal standard applicable in criminal cases. Thus, according to the respondent, these grounds which are premised on the inconsistencies of the testimonies of the witnesses, are unfounded. The 4th ground of appeal provides that the trial court issued judgment against the appellant based on a defective charge. In rebuttal, the learned state attorney submitted that the charge contained all necessary elements of the charged offences, including citing the respective laws which create the indicated offences. The respondent therefore prayed that the appeal be dismissed and the decision of the trial court be upheld. In rejoining, the appellant being a lay person, had nothing substantial to submit. The appellant simply prayed to adopt his grounds of appeal and that the court should consider the said grounds in his favour in the course of determination of the appeal. Upon close scrutiny of the records before this court, and having heard the submissions by the parties herein; the issue to be determined in this appeal is whether or not the prosecution proved the charges against the appellant beyond reasonable doubt. 5 To begin with, I will consider the 1st and 4th grounds of appeal jointly. While the appellant alleges that the charge was defective, the respondent submitted that the charge was proper. The appellant further challenges the sentence issued against him, for reason that it was contrary to the law. On his part, the respondent asserts that the said sentence was in accordance with the prevailing law. Regarding the elements of the charge and principles of fair trial in the criminal justice system, the case of Mussa Mwaikunda vs. R [2006] TLR. 387, held as follows: - is now beyond controversy that, one of the principles of fair trial in our system of criminal justice is that an accused person must know the nature of the case facing him, and this can only be achieved if a charge discloses the essential elements of an offence!'. [Emphasis added] For the purpose of transparency, the contents of the charge relating to the instant appeal is reproduced herein below: - "CHARGE 1. Statement of the Offence Unlawful possession of firearm: Contrary to section 20 (1) and (2) of the Firearms and Ammunition Control Act, 2015 read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap. 200 R.E 2022]. 6 Particulars of the Offence Musa Sufian Mohamed on 24h December,2022 at Pangarua area, within the District of Chernba in Dodoma Region was found in possession of firearm to wit, one (1) locally made gun commonly known as Gobore. 2. Statement of the Offence Unlawful possession of ammunition: Contrary to section 21(a), (b) of the Firearms and Ammunition Control Act, 2015, read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap. 200 R.E 2022]. Particulars of the Offence Musa Sufian Mohamed on 24th December,2022 at Pangarua area, within the District of Chernba in Dodoma Region was found in possession of 13 locally made bullets". Looking at the contents of the charge quoted above and being guided by the case of Mussa Mwaikunda (supra), I am of the view that the charge was proper in law. The same was sufficient to enable the appellant to know the nature of the charges against him. That said, the allegation that the charge was defective is unfounded. Thus, this ground of appeal fails for lack of merit. Going further, I will address the issue on whether or not the sentence passed against the appellant was legal. The provision of section 20 (1) and (2) of 7 the Firearms Act create the offence of unlawful possession of firearms and the corresponding sentence thereof. The section provides as follows: - "S. 20 (1) A person should not possess any firearm or firearm part unless he: a) Holds a dealers', manufacturer or a gunsmith's licence or an import, export, on transit or transporters' permit issued under this Act. or b) Is authorised to do so under other written law. (2) A person who contravenes this section commits an offence and is liable upon conviction, to imprisonment for a term of five years." [Emphasis added] Further, it is evident that under paragraph 31 of the first schedule; and sections 57 (1) and 60 (2) of the EOCCA as amended by sections 13 (b) and 16 (a) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016; the offence created under section 20 (1) and (2) of the Firearms Act is deemed as an economic offence. For clarity, paragraph 31 of the first schedule of the EOCCA provides that: - "A person commits an offence under this paragraph who commits an offence under section 20, 21 or 45 of the Firearm and Ammunitions Control Act". In the instant case, the appellant was convicted under section 20 of the Firearms Act, thus subjected to paragraph 31 of the first schedule to the EOCCA. Proceeding to the punishment of the offences, section 60 (2) of the 8 EOCCA as amended by sections 13 (b) and 16 (a) of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016 provides as follows: - "60 (2) notwithstanding the provision of a different penalty under any other law and subject to subsection 7, a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measures provided for under this Act. Provided that, where the law imposes penal measures greater than those provided by this Act, the court shall impose such sentence." [Emphasis added] In deliberating this provision, the Court of Appeal of Tanzania (CAT) through the recent case of the Director of Public Prosecution vs. Papaa s/o Olesikaladai @ Lendemu and Another, Criminal Appeal No. 48 of 2020, held as follows: - "The construction of the above subsection poses no difficulty. First and foremost, it disapplies the imposition of any penalty prescribed under any other law for any corruption or economic offence. Secondly, it prescribes the minimum penalty of twenty years imprisonment and the maximum imprisonment of thirty years or both such imprisonment and any other penal measure under the EOCCA for any person convicted of a corruption or economic offence. In determining the tariff of punishment to be imposed within the allowable range of punishment, the court must consider the factors enumerated by subsection 9 (7) of section 60. Thirdly, the proviso to the above subsection allows the imposition of a punishment provided under any other law only if such penal measure is greater than what is provided under the EOCCA ", [Emphasis added] Accordingly, the imprisonment of five year provided under section 20 (2) of the Firearms Act cannot be invoked for the reason aforementioned. As to the 2nd and 3rd grounds of appeal, it was the submission of the learned state attorney that the prosecution sufficiently proved the charged offences beyond reasonable doubt. In the first count, the prosecution was supposed to prove beyond any reasonable doubt that the appellant was found with unlawful possession of a firearm and ammunition; of which he had no permit from the responsible authority. The evidence on record, specifically the testimonies of PW1, PW2, and PW3, provide proof that the appellant was found in unlawful possession of a firearm known as '^c>dore"and further found in possession of 13 bullets. Further, the cautioned statement was tendered in court and admitted as exhibit "P2". The appellant had no objection to the admission of the said exhibit. In the said cautioned statement, the appellant confessed to have committed the charged offences. Based on the above analysis, I am satisfied that the case was proven io to the standard required by the law. In the premises, this appeal is devoid of merits and the same is dismissed in its entirety. Order accordingly. Right of appeal is explained. DATED at DODODMA this 9th day of August, 2024. I.D. MUSOKWA JUDGE Judgment delivered in the presence of the appellant and in the presence of Ms. Margareth Tiegray, learned state attorney for the respondent. I.D. MUSOKWA JUDGE 11