19890531 TZHC Dar es Salaam

, ,. .. . -{~ '-:-- ... ("'"'.'°"it, ,,- .• < ,·,If UhlGlNhL JU1dSi,ICTlON (0ar es Sala~m hetistry) . ~CLNukIC h~~11Ch~l0N N0. 4 UF 'l'H.t:i 1:1..r:.PUi:.ILIC versus ; ' L Ni.L'.,.b.c,l'-J bhll.JI 1,Hhli:1.JI 2. ,,z, rn kD.u1,LL1-,H • i-.: U L I I"1 G ~IGi-.~0, J. Nazeem baid hhrued anu hziz HLd~llnh were c..-rrested at the D~r·es Sal~p Intern&tional hirport on 19th hc..-rch, 1989. Three days later thr~e countc chc..-rLi~t them with LeinL in·unl~wful possession of Vc..-rious foreicn,eurr· ; ; r~~ Lola ~n~ supphire were preferred again6t them. Nazeem is described in the chc::.rt,e sheet .:.;.s & Lellc.nese <'..nQ we hc-ve been informed in this cov·_ th~,t he is & Lusinessman. hziz is a vilot 2nd a Tanzc..-niQ? natiunal. The_ subject-mattE!l'.1'5 of the chc..-r1::,es whose vclue is in the ret:;ion ,, "'. bhs. 50,000,00q/= were seiz~tl by the'arrestinL officer and ere apparent still in the custouy of the kevu0lic. iach of the accused h.__,s tilb.de an apvlici...t ion to this court for &cln· · to bail penci.int_::; tr:i.al 1 under section 29 (4) of the Economic and Ori;ci.ni:. Crime Control uct, 1964. The ~epublic has op~osed the application and. had one L~uric::.n Tibgsaoa, Senior hssistc..-nt Commission of Police hurrj~: ,swear an ·affid&vit iri thc::..t con. ection. The ap~earances ~re hr. ~1-h&~mry, leanned advoc&te, for Nazeem; Nr. Isrn"'il, lec:.rned ndvocnte, for 1-,ziz;

c.nd hr. !:iene;uji, learned sta+" httorney, for the riepuLlic. Uv~r the ye~rs the principles on which the court will order· the rele~se df &n ~ccused person on L&il h~ve formed the subject of sev~ra: decisions in this country. In the lc..-st-analysis the test which the• ~ shuulu ap~ly in the exercis~ of its discretion is wh~ther there is a r. ; risk t_hcct l,a.il muy Lie aLusecl. to the h~-rm of the putlic. Understuna~Lly, there a.re two main consider~tions which the cour; should t~ke into account in ap}lyint th&t test. The first considernt' is the prob~Lility or otherwise of the accused a~~e~rinL t~ stund t~j• hDC the most im~ortent inGredients for the tuiu~nce of the court int; reGard incluQe the n&tu~e of the c:.ccusi:,(tion - whether it is sruve or triflint.,; the severity of the punishment the accue.ed is likely to ea::_~,,_ in the ev""nt of conviction; the chc,rl,.Cter of the accused; and the tin,: trial is likely to l~st. The second consideration is the likelihood·-· accused interf'erinL with the investi[.:;&tions, which is often c.. diffic1) matt0r to anticipute. - 2 - · It w~s hr. SenBtiJi's contention· th~t this court has no jurisdiction to entertain theLe apr,licc:.tions in view of th0 fc:.ct th&.t the vulue of the su1js::ct-mattt:rs of the che.r1:;es is ir1 excess of Shs. 10,000,000/:::. His authority is section 35(4) of the Lconomic and Org~niB@4 Crime Control

hct. With respect, ~r. ~entuji is legally in error. As observed by M~. Ismail, Mr. Senguji al-'~e&red to have overlooked the provision of Section 12 of hCt ~o~ 12/87. He also does not up~ear to be aware that in a recent c~se in which the subject-matter W&s of the v~stly larGe v~lue of shs. 1,274,000tOOO/= bail wus Granted. That wcs the ca~e of R v. Mohamed buleman hli ~lfan 2 Ubh. HiGh Court ~conomic hpplic~tion No.3/b9, Court of ~pi-,(:;'ul Crirnin&l .i.ppeul No. 54/89, to which counsel for the ap~lic~nts have made reference~ The ~ravamun of Laurian Tibus~nb's uffiduvit lies in paracrnph~ 1, 2 and 5, and it is the alleGutions thut Nazeem's n~tionality is that he h&s. been usin1:; those passpo:v:ts . . un~nown, th~t he is a hola0r of severdl passports"-to travel in and out of Tanz~nia on previous Dccasions, and th&t he could use them to abscond. In his reply Mr. Bl-hanmry h~s tuken stronG exception to those nlletations, br-ndinL them us b&ld and f~lse. Counsel h~s pointed out th~t a person enterinc Tanzania is served with an Immigr&tion form in which he is obliged to fill such particuluis as his passport number and nationality. He has submitted th&t such st:rious 2.llegations should hc:.ve been bucked up by Immitration document~ry mi.-.terials. No doubt, I should h,we att1:...ched consio.er.afile weit,ht to Laurian 'l'ibase.na's depositions if sup1;ortive m. .,teric.ls hL;d

be,,n tentiered, &nd I do not see how their. pro- duction woulu h&ve preju~iced the case. In th~ absence of such materials I cm disposed to accept the view t:xpress,d by Mr. ~1-M~amry that Laurinn fibasana's contention is &t bt:st or worst mere specul&tion. ivir • .Sentuji's oth0r point wt-.s th . . . t the inv0stigc.tions a_re yet to be com~leted and th~t there is a possibility th~t the apJlicdnts have ac~uired other usst:ts in Tanz~ni~ L,,na th~t the ~epublic upprehends th&t the assets n1c.y bt: disposed of if the ap}Jlicants ure releu.sE:d on bail. '..!.'he two counsel for the ap1,,lici.-.nts wondered wh.:::.t further investigr.,tion is there to carry out in the li 0 ht of the ulleGations in the charce sheet und the fact that the subject-m"'tters i;...re now lyinc with the 1-<epublico I share th~t perplexity and I finu it ri;...ther difficult to understand the point of the submission thc;t the c1pr,licants could dispose of their 2.ssets if rele~sed on bail~ - 3 - Upon the whole I think that this is a case where the appenrnnce of the applic&nts.at their trial c~n be adequately secure4 by the imposition of appropriate coriditions OL the b~ils. Bail is thus granted to the applicants in the following terms: The applic~nt Nazeem: (i) To des posit Shs o .10·\0oo.;000/= each· or Bankers' Cheque in Court; (ii) To produce two sureties who should each execute a bond of shso

8,000,000/=; Cti-i) £ach of the two sureties s1.ould own immov""ble property with . ,,-.i a separate value of at least bhs. 5,000,000/= i~-~e determined by the by the Government· Valuer\ and, ea·ch surety to surr~nder to the Court his title tleed; (iv) The applicant to report to the Officer-in-cblirge, Central. Police Ste.. t ion three times a week i.e. on Mond&y, \rJednesda;y: ,. and Saturday, before noon; (v) The applicant's passport is to remain with thi police durin1s the pendency of the ca_se; and ' (vi) Th~ applicants is pestricted to remain within the City of ~ares Sala~m durint the pen~ency of the case. The applicant Aziz: (i) To execute n bor;.cl of 0 hs. 5,000,000/=; (ii) T~ prqduce two two sureties who should each execute a bond of Shs. 5,000,000/=; (ii) ~ach of the two sureties should own im~ov&ble property with a separ_.J.te value of at least Shs. · 3,000, 000/= to be determined by the Government valuer, and each ~u~ety to surrender to the court his title deed; (iv) The applicant to report to the Officer-in-charge, Central Police Stt.:.tion twice a we k i.e. on 'l'uesday and Friday, before noon; (N) The applicant is to·suriender his passport and othtr tr~vel doiuments to the police; ( v) 'l'he appliclint' s movements· during the pendency of the case are to be restricted to the City cf ~ar ei Salaam. blilJ. LJ. ~.... f.i~PlGhNU . jijDGl!: •••• 0 /4. - 4 - 0 31/5/1989 I ~r. ~l-Maamry for the Fir•t hpplicant Mr. Ismail for the becond hpplic&nt Mr. Senguji for the ~epublic. Sgd. L. P. Mapigano JU.uG.8 .. th~t this is the certifi~d true copy of the ·•·! . '·