19890331 TZCA Dar es Salaam3

IN THE COURT OF. APPSAL 9F. 'r~NZANIA. AT OAR ES.SALAAM (COMM: MAJ(~l~J~A•·g KISANGA, J.A. l And OMAR1 J 0 A•·) ~/~RIMINAL APP~AL NO. 130 OF 198.8 / .. --- . ·~/- OW.RI MOHAMED Sij0SHI. • • • . • • • ~ • APPELLANT · versus ·THE REPUBLIC. . .. ... ... • RESPONDENT (Appeal from the conviction of.the High CoUrt of Tanzania at SOngea) · (Rubama, J. )'_ dated the 6th day of July, 1988 in. JUDGEMENT OF THE COURT . KISANGA, J.A.: The appellant was charged under the Economic and Organized Crime c~ntr<>l Act with being in unlawfuJ:-··,p«fssession •f Government . .. . ~~-111,es..--He was tried ,and--c:.on"".,'-ct-ed by the Economic Crimes Court and was sentenced to 15 years• imprisonment.- ~ is .nQw ... Ii appeallrig • Representing him in this appeal, Mr. Mnzava Of the TaMania (~gal Corporation had filed a total, of six grO\lnds 5f appeal the first of which alleged lack of jurisdiction by the trial ·cqurt. · . - '·· l . Upon his ap~licat1on we all•wed him to argue that ground .on~y·f•r a .start as it was quite apparent that shOuld .,. succeed on t¼lat · -ground then tha argument• on the rema1nin9 grounds relating t) the mer1 te of ,h~ app•O WD~ld 1,- ~f 1,0 N,,111 ,i1ut v•1u11 • . Heivi.119 h1Atd •ra~1111•1tU MM alUll~H if&UUlflf i,~• fill bhttl ~A•l11,lft4 wll d•cidtd. not to hear arouments On the rest ot·the grounds. . . . . ' __,. The charge brought against the appe~lant reads ~s-follews~- 11STATEMENT OF ·OFF£NCE BEING IN UNLAWFUL pOssE·ssION OF GOVERNMENT TROPHIES, Contrary to· Paragraph:··16 (b) · ef the 1st Schedule of . the E<ionoin.1.c and Organized '. ... .,. •.••••• /2.•: ' . ;:r.•-· -\.;.~,. . ; - 2 - .. ; ,. ·PARTICULARS OF _OFFENCE OMARI M0HAM£D SHOSHI on ·or ,,;sbout the ,28th day of April, ~86 at Lup_api'la Vlli.agtt within Songea D1st:rict in Ruvuhia Region was found in unlawf.ul pos-.session -~f 202· elephant· tusks. weighing 858 kgs. and valued at ;5hs.606,600/= withou~ respective J.1.c.ence of per.mi t (-sl-e• .>~1 Mr. Mnzava submitted in effect tha~ being in uniawful pessessi~n tj"f Government trophy is not made an economic •ffence under paragraph· 16 (b) of the first schedule to the Economic and Organized Crime Control Act, hereinafter to be referred to simply as the Act. In ~- this connection the learned coUnsel referred to· the recent decision of this Court in th~ case of D.P.P. v. Bernard Nla~ Crim •. Appeal No.· 32 of 1987 (Unrepo.rted) in which it wa_s held that unlawful po~session of_ Government trophy per•• 11 not an ecenomic ~fence tdable unde, t.h• Aa1:, Wh• r11u11r111 tu~- t.ha~ YittW ~!:'Ill li-Q out t1.1Ur tn thl c1110utm1 tttld Wll 1-11,a.d ntlt t•hj.,it,ail t.h1tttt1 h10~•· As shown above· the charge against the appellant, bo~_~n the statement.of ~ffence and in the particulars, merely;alle~es .... . unlawful _possession of Government trophies. 1 For the re~sons set out in Njavike's case such averment does not brlng the appellant . with~n the ambit of paragraph 16(b) of the First. Schedule to the . --Act. - 'Xh-at--pa-ragraph pre$.~lbes· . unlawful dealing- 1n-'trophies:-•r / Government tropntes as an @.Conomic offence triable . ~. by the &cOnomic Crimes Court. _Merely being in unlawful possessioh ef trophies ~r Government trophies is not one- such offence. F•r, it is pcssible • to ~ in unlawful possession withoUt necessarily·~ngagin\;)·in unlawful dealing wit~in the meaning of the Act. , Mr~ Boas, the learned St~te Attorney appearing for the respondent Republic, submitted that the issue in Njavike•s case·· was d.1.tferent from the tuul!I 1n 'the ru."11111nt a1111, WiU.h l:'Hfttct, wo oanl'!ot aor••h In b!:!~h ~111111 ;111 IPIIUNII~ WO tlhl0'~11t Wit:,\ 1utr11v bdng !11 t.tnlllwi~tl pou11dOt1 af aowu,u111nt: t.1."0phies, and the issue raised was whether that was an,economic offence triable by the Economic Crimes Court.. ., • - . ......... • ~ .t·,T",.:-·;, .... ,~·,..t.,. ~-..- • ....h-"""-s.. '\'. \ I 3 - In another breath the learned counsel appeared to concede that being in unlawful possession of Government trophies per se w-,as not an economic offence but contended that the Economic Crimes Court: enjoY•t:1 the unHmitt111t ,:11~1m~,n~l .tt.o·l11c14'1Unn Pl iii• Hi~ Coui-t 4h whic,h a1ui1 H cu,uhi llfjtjllt.'l.,.~.UV MIii •~iiwU,uib tllt· ~hu 111tig•d offence even though it bee non-economic offence. In support of that view he referred us to sections 3(2) and 59(1) ~f the Act. We have looked at those provisions but we could find nothing in them to support coUnsel's views. The Econamic Crimes Court is different-from the High Court. For instance., its constitution is different from that af the Hi~h Court and the methOd and C ·procf!dure of arriving at its decision are also different. Upon lOOking through the provisions of the Act we have net been able to find a provision or provisions which vest the Economic Crimes Court with,unlimited criminal juris~iction as contended by counsel. The power of the Economic Crimes Court j t to try Offences is conferred by sectic:n 56 (1) of the Act which ·, ,1 t' provides that:- ;. "56-(1) With effect from the 25th day of September, 1984, the offences pre-scribed in the First Scha~ulo to thl ■ Act ahnil be known a, ~~0Nijm1p otfijM«ijM ""~ tr&"~lb ~¥ hh• Caqr~ ~•ll •r,i:sorrl"hO• wJ HI bl111 J.1t.li\l . dNIII tJt thh Aot:. II that power extP.nds only to the econOmic offP.nces as ~rescribP.d in the First Schedule to the Act. Our·unwavering understanding of paragraph 16 (h) of the First Schedule under which the appellant was charged is that under that provision the offence of being in unlawful possession of Government ·trophy ·p~se is not made an economic offence triable ·by the, Economic Crimes Court. We think that a charge properly brought under this sub-paragraph should allegP. dealing in trophies or Government trophies, or use language which clearly amounts to that. Tlrat was not done in the instant case. We may add, for the sake of completeness, that on perusing the Act we have not been able to find any prbvision which !!lakes unlawful p6,ssessio'n of Government t'rophies an economic offence. It therefore follows that that Offence was not -trhbl!! by the Economic Crimes Court under the provt.1i_on• of the ~ct, • - 4 There was yet another limb to Mr. Mnzava' s submission. He contended that the Economic Crimes C~rt had no jurisdiction in the matte.r_beca~the DirP.ctor ~--Pttblic Prosecuti9ns had not gi.ven his ca~sent to prosecute the appellant in terms of section 26. (1) of the Act. That sec.tion reads:- "26- (1) Subject to ttie provisions of this sectio1', no trial in respect Of an econOmic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." Mr. Boaz did·not advance any serious argument t~ counter that submission. If we understood him correctly he took the view that once .the· Director of Public Prosecutions or his representative app"art!!d, then th~t was suf.l!~ct•nt t.o e1nn,i~Huh ao10111n~ h•at1u1t thll Act did fll')t Nt 1 "t1tU11, 111· •pnnil'y 1H1y ltil:~llllllU r.111~m wll,~h 11ht consent should t•ke. Altornativoly he submitted that the provisions l,_ Of section 26 (1) set out above are not mandatory; they are Only persuasive. We could find no merit in bou~ arguments. We understand section 26(1) of the Act to mean that the Direct6r of Public Pros~cuti~ns · has the discretion to decide whether or not to prosecute a person for an economic offence but that once he has decided to prosecute for soeh cf fence, then he must...gfve. consent. Such conserit··cannot be given merely by implication as suggested by co4..nsel. It must be express and it must f·arm part of the record. To the submission that the Act does not prescribe any particular fonn which the consent shOuld take, we can only say that the Legislature did not find it necessary to prescribe such f~rm. It. would seem that the real i~tention of the Legislature was that the Director ~f Public Prosecutions should give his consent. The question as to what fonn the consent shOuld take ia a1mply one of implem~ntat1on to he dll'tArmin111d by thn l111111ertint1tOl,1 11t thti HtW, 111 th111 •li•••n~.- If any 0Qn1.,.nt l'lt\ t·r11Jt1I d by ~IHI IJ:l1~rrnlt c at l~q!JU~ ll!·U•M<'llt.l.rtn1 t:o 1 prosecute the appollant in the present case, ther~fore, the Economic Crimes Court had nc jurisdiction to try the appellant for an economic offP.nce under the Act. On either limb of Mr. Mnzava's submission we find that the Economic Crimes Court wrongly assumed jurisdiction in the matter when_ i_!: had .nQne... It lacked jurl-sdi-cti.on either because-the affence charged was not an economic offence triable by the Court under the Act or because there was no consent by the Director of . ,. ',., •. /5 . • . ... 15 Public Prosecutions.rt• prosecute the· appellant under the Act. The purported trial c-f the appellant was, tl)eref•re, a nullity and it ·/. is accordingly set aside. ·considering th~t the appellant had been sentenced to 15 .years' imprisonment, and that to-date he has served only a small portion theree; __[!._.~. frOm. 6. 7 .88 todate), we think that it will serve the Ands of justice .. to •·•rder a re-trial in the matter. Accordingly it is·· •rdered that the appellant be charged afres'1,.,-t'Or rthe, correct. effence in the,--cerrect coui:-t. ~.,-· ~-~· f· ,.~ . ~ !: ,. . ,_,, / 1 DATED at DAR ,ES, SALAAM this 31st day,ef March, 1989. I .'. I • ,. '. \·.'•. I . f\'! i -. ! , J J:l •, I L. M. MAKAME .<'·>:' •.• R. H; KISANGA JUSTICE OF A ~ A. M.A. OMAR JUSTICE OF APPEAL a true copy Of the original. ( J. H. MSCFFE) SENIOR REPUTY REGIST!Xta• -I '.