CRIMINAL APPEAL NO 532 OF 2022 MUSSA JUMA BAKARI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA, 3.A.. ISSA. J.A, And ISMAIL. l.AA CRIMINAL APPEAL NO. 532 OF 2022 MUSSA JUMA BAKARI...................... ......................................APPELLANT VERSUS THE REPUBLIC........................ ........................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam) (Luvanda, J.) dated the 26th day of October, 2022 in Economic Case No. 19 of 2021 JUDGMENT OF THE COURT 5th & 13thJune, 2024 LEVIRA. J.A.: The appellant, Mussa Juma Bakari was arraigned before the High Courts of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam (the trial Court) for trafficking in narcotic drugs contrary to section 15 (1) (a) of the Drugs Control and Enforcement Act No. 5 of 2015 (the DCEA), read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap 200 R.E 2019 (the EOCCA). Upon a full trial, he was convicted and sentenced to twenty (20) years imprisonment. Aggrieved by that decision, the appellant has preferred the present appeal with eleven (11) grounds in the memorandum of appeal filed on 8th June, 2023 and four (4) grounds in the supplementary memorandum of appeal of 27th June, 2023. The information filed in the trial court contains the particulars of offence to the effect that: on 13th December, 2018 at Kiromo Magengeni area along Bagamoyo - Dar es Salaam Road within Bagamoyo District in Pwani Region, the appellant trafficked narcotic drugs namely Catha Edulis commonly known as 'Mirungi' weighing 109.17 kilograms. He denied the charge; hence, full trial. We do not intend to narrate neither the factual background of this matter nor appellant's grounds of appeal due to reasons to come into light shortly. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas, the respondent Republic had the services of Ms. Fidesta Uisso, learned State Attorney. Before commencement of the hearing could take place in earnest, Ms. Uisso raised a pertinent issue regarding validity of the consent of the Director of Public Prosecutions (the DPP) issued under section 26 (1) of the EOCCA. According to her, having perused the record of appeal, she discovered that the consent of the DPP found on page 4 of the record of appeal is fatally defective for non-citation of section 15 (1) (a) of the DCEA under which the appellant was charged. She argued that, the omission is fatal because in terms of section 26 (1) of the EOCCA, no trial in respect of an economic offence may be commenced without the consent of the DPP. In support of her argument, she cited the case of 2 Dilipkumar Magambai Patel v. Republic, Criminal Appeal No. 270 of 2019 [2022] T7CA 477 (25 July 2022; TanzLII) which had a similar circumstance to the present case. The Court held in the above case that, the trial of the appellant was a nullity for failure to include in the DPP's consent the provision of the law contravened by the accused person (the appellant, therein). She urged us to make a similar finding in the present appeal, nullify the proceedings of the trial court, quash conviction and set aside the appellant's sentence. However, she urged us to order a retrial because, she said, there is sufficient evidence on the record to ground the appellant's conviction. She fortified her argument by referring to the decision of the Court in The Director of Public Prosecutions v. Semeni Gwema Mswima, Criminal Appeal No. 601 of 2022 [2024] T7CA 29 (13 February 2024; TanzLII). On his part, the appellant being a layman, had nothing to reply. We have thoroughly perused the record of appeal and considered the submission by Ms. Uisso. The issue calling for our determination is whether the DPP consented to the prosecution of the appellant in this case. The answer to this issue is not farfetched. Section 26 (1) of the EOCCA under which the DPP's consent was issued provides as follows: 3 "Subject to the provisions of this section, no triai in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." [Emphasis added]. The above provision is very clear that consent of the DPP is required before the commencement of trial of an accused person who is charged with an economic offence. The appellant herein was charged with an economic offence of trafficking in narcotic drugs contrary to section 15 (1) (a) of the DCEA, as indicated above. This provision provides for the offence which was allegedly committed by the appellant and the sentence thereof. Therefore, issuance of a valid consent is a condition precedent before any trial of such nature as stated earlier. For the consent of the DPP to be valid, it has to contain among others, a proper citation of the contravened provision as it appears in the charge sheet or information. The logic behind is simple, normally, an accused person is charged of and prosecuted for contravening a specific law. Equally, the DPP's consent is issued to a specific court for prosecution of a specific accused person who contravened a specific provision of law. Therefore, it cannot be general and or issued randomly. In order to appreciate what is in the purported consent issued by the DPP, we find it apposite to reproduce it hereunder: "CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS I, SYLVESTER ANTONY MWAITALU, Director of Public Prosecutions, in terms of section 26 (1) of the Economic and Organized Crimes Control Act, [Cap. 200 R. E. 2002], DO HEREBY CONSENT to the prosecutions of MUSSA JUMA BAKARI who is charged for contravening the provisions of Paragraph 23 of the First Schedule to, and sections 57 and 60 (2) of the Economic Organized Crime Control Act, [Cap 200 R. E. 2019], the particulars of which are stated in the charge sheet. Signed at Dodoma this 4th day of June, 2021 Sylvester Anthony Mwakitaiu DIRECTOR OF PUBLIC PROSECUTIONS" As it can be observed from the above reproduced consent, section 15 (1) (a) of the DCEA was not mentioned. Therefore, we agree with the learned State Attorney that, since the consent issued by the DPP authorizing commencement of the appellant's trial did not contain the specific provision of the law under which he was charged, the omission invalidated the said consent. As a result, it is as good as there was no consent before commencement of the appellant's trial and the trial court was not properly moved to exercise its jurisdiction to try the appellant. That being the case, the whole proceedings of the trial court, conviction and sentence were nothing but a nullity. In the circumstances, we are unable to determine the grounds of appeal as the issue raised by the learned State Attorney has, finally, disposed of the appeal. 5 Consequently, in exercise of our revisional powers in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we allow the appeal, nullify the trial court's proceedings, quash conviction and set aside the appellant's sentence. Having considered circumstances of this case, we think, it is a fit case for a retrial. Accordingly, we order a retrial of the appellant before a competent court upon receipt of a valid consent from the DPP. In the meantime, the appellant shall remain in custody pending retrial. DATED at DAR ES SALAAM this 13th day of June, 2024. M. C. LEVIRA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in the presence of the Appellant in person and Mr. Laura Kimario, learned Senior State Attorney for the Respondent/Republic, both being connected via video conference; is hereby certified as a true copy of