ramadhani mussa hamis ukwaju vs republic 2017 tzhcced 8 17 may 2017

IN THE HIGH COURT OF TANZANIA

THE CORRUPTION AND ECONOMIC CRIMES DIVISION

AT DAR ES SALAAM REGISTRY MISC. ECONOMIC CAUSE NO. 11 OF 2017 [Originating from Economic crime case No. 13 of 2017 Resident Magistrate’s Court of Dar es Salaam at Kisutu] RAMADHANI MUSSA HAMIS @ UK W AJU............. APPLICANT

VERSUS THE REPUBLIC............................................ RESPONDENT Date of Last Order: -4/5/2017 Date of Ruling: - 17/5/2017

RULING F.N. MATOGOLO, J. This is an application, filed by the applicant one Ramadhan Mussa Hamis @ Ukwaju. He is applying for bail pending trial in Economic Crime Case no. 13 of 2017. The application is by chamber summons made under Section 29 (4) (d) and Section 36 (1) of the Economic and Organized Crimes Control Act, Cap 200 R.E. 2002; here in after referred to as the Act. The same was prepared by Victory Attorney & Consultants and Law Guards Advocates and is supported by an affidavit of Mr Jebra Kambole who has represented the applicant in this application. Page 1 of 18 After the respondent was served with the Chamber Summons, he filed counter affidavit deponed by Mr Paul Thomas Kadushi State Attorney. However the respondent also presented a certificate filed by the Director of Public Prosecutions (DPP) which was made under Section 36 (2) of the Act, to the effect that the applicant should not be granted bail on the ground that if he will be granted bail, the safely and interests of the Republic will be prejudiced. The applicant is represented by Mr Jebra Kambole Advocate being assisted by Mr Benedict Ishebakaki Advocate. On the other hand M/S Elizabeth Mkunde State Attorney appeared for the respondent /Republic. The back ground of this matter is that the applicant along with one Sultan Hassan Ibrahim, were charged before the Court of Resident Magistrate of Dar es Salaam

Region at Kisutu with three counts Conspiracy to commit an offence c/s 193 of the East African Community Customs Management Act, 2004 as the first count; importing concealed goods c/s 202 (b) of the East African Community Customs Management Act as second count and occasioning loss to a Specified Authority Contrary to paragraph of the first schedule to, and Sections 52 (1) and 60 (1) of the Economic and Organized Crime Control Act. Page 2 of 18 He now prays to this court so that he can be released on bail pending trial. On the date the application was set for mention that is on 04/5/2017 the applicant’s Advocate Mr Jebra Kambole raised a concern on the certificate by the DPP. He said the certificate purported to be filed by the DPP tends to deny bail to the applicant. But he said he believe that does not make the offence applicant is facing unbailable. He said the offence is bailable one. That the certificate filed by the DPP is not properly filed because, first it does not show the person who received the certificate in the registry of this court. It does not even show the signature of the person who received the certificate. This therefore made the certificate improperly before this court. It is the submission of the learned advocate that there is no proper fixation of the said certificate. Secondly the certificate in question lacks the seal of the DPP, it contains only the

signature. That they believe the seal is the one which show the office of the DPP and the court takes judicial notice if there is the seal of the DPP. Mr. Jebra Kambole said due to those reasons they believe the certificate is not properly before this court. Page 3 of 18 He further submitted that the certificate in questing was filed with malice, as they believe that the counter- affidavit is evidence under oath and once properly filed, there is already evidence tendered in court. In the counter- affidavit, they contended that the offence is bailable but in the certificate they have filed, they ends that the applicant is not entitled to bail. If they had ition to deny bail to the applicant they would have filed it ther with the counter-affidavit. Mr Kambole submitted further the certificate has been filed to this court so as to rectify the ct of the counter-affidavit. He said the verification clause of the iter-affidavit reads as follows:- “I Paul Thomas Kadashi hereby verify that all that I have stated in paragraph 1, 2 and 7 here in above is true to the best o f my own know ledge and I have stated in paragraph 3, 4, 5 and 6 and 5 and paragraphs 7 and 8 o f the counter-affidavit is according to the information I obtained fro m the court proceedings and police case file relating to Econom ic crime case No. 53 o f 2016 before Resident Magistrate Court o f Dar es Salaam Region at

Kisutu and Prisons Officer incharge o f D ar es Salaam respectively which I verily believe to be true”. Page 4 of 18 He argued that the case which the applicant is facing at Kisutu RMS’ Court is Economic crime case No. 13/2017. But the information that the State Attorney has verified are obtained from Economic Mic Crime Case No. 53 of 2016 this makes the whole counter-affidavit defective. Instead of dealing with defective counter-affidavit, they decided to file a certificate. That is why they have said the certificate was filed with malice to cure the defective counter-affidavit. Again he argued, the Certificate was filed in a usual way that the safety and interests of the Republic will be prejudiced without stating how, when and where the safety and interest of the Republic will be prejudiced. He said the vehicles which are involved in this case they are under the custody of the respondent who can deal with them in whatever way even if the applicant will be granted bail, he cannot go back and take them or sell them. He said they believe that bail is the constitutional right of the applicant and this court still can grant bail to the applicant. Mr Benedict Ishebakaki advocate took over from where Mr Kambole ended and submitted making reference to the decision of this court in the case of Jeremiah Mtobesya V. The A.G., Miscellaneous civil cause No. 29 of 2015. He said this

decision declared S. 148 (4) of the Criminal Procedure Act Cap. 20 R.E 2002 (CPA) unconstitutional for infringing Article 13 (6) (a) of the United Republic of Tanzania (URT) of 1977 as amended. He said they Page 5 of 18 believe, the applicant has the right to defend himself in relation to the certificate filed by the DPP. That in the above cited case Justice Ruhangisa at page 10 while quoting the decision in Daudi Pete case has this to say:- . the accused has the right to question the certificate file d in court’. Mr Ishebakaki submitted that the applicant should be given right to be heard on the presumption raised by the DPP that he is going to prejudice the safety and interests of the Republic that the applicant has the right to know how the rights and safety of the Republic will be affected. The learned advocate submitted that this court in Mtobesya case challenged S. 148 (4) CPA which is in pari materia to S. 36 (2) of the Act, this court has to take the same spirit as the High Court to grant bail to the applicant because although it is the provision which was rendered invalid but generally the normal practice of the DPP to issue certificates of denying bail. He said in Mtobesya case the court expressed its feeling on the danger for the DPP who is also a party to the case can have a unilateral decision in a case for reasons only known to him. Mr. Ishebakaki referred the

court to Article 107 A (1) of the URT Constitution which give the judiciary a final decision making. Furthermore sub-Article 2 paragraph (e) requires the court to dispense justice without being tied up with Page 6 of 18 legal technicalities. So he prayed this court should not be tied up with the provision of Section 36 (2) of the Act and prayed that this court disregard the said certificate because it is defective. Alternatively he prayed to this court to invoke its inherent powers under Article 107 and grant bail to the applicant. Elizabeth Mkunde, learned State Attorney replied to the learned advocates submission generally. She said the certificate in question was filed under S. 36(2) of the Act. The learned advocates for the applicant have challenged it on a number of reasons including that it bares no signature of the one who received it and the date it was received. The learned State Attorney submitted that the certificate was properly prepared and filed in court that is why it was stamped to show that it was received. The other argument she pointed out is that the certificate lack official seal. On that she responded that if you look at the copy filed in court, original copy it is in crested paper with the seal of the DPP. That S. 36 (3) of the Act clearly says once the certificate is fixed in court shall take effect from that date. The certificate in question was

received in court on 02/5/2017 thus it took effect from that date as the court stamp shows. With regard to the argument that the DPP should give reasons, the learned State Attorney submitted Page 7 of 18 that there is no law which requires the DPP to give reason for filing the certificate in court. On the argument that it should have been stated in the count- affidavit that the DPP intended to file certificate, the learned State Attorney despite her observation that the offence facing the applicant is bailable but she contended that the DPP is empowered to issue certificate denying bail to the accused where the safety and interests of the Republic are likely to be prejudiced. This can be done as the court of Appeal held in the case of DPP Vs. Li Ling Ling Criminal Appeal No. 508/2015 while the court was discussing the validity of the certificate, It quoted the decision in the, case of DPP Vs Ally Nuru Dirie & Another (1988) TLR 252 in which the condition for validly of the DPP Certificate were laid. These are: 1. That the DPP must certify in writing.

2. The certificate must be to the effect that the safety and interests of the Republic may be prejudiced by granting bail, 3. The certificate must relate to a criminal case either pending trial or pending appeal. Elizabeth Mkude submitted that the certificate which was seen fixed in court has met these condition and is valid. She said the opinion given by the learned advocates that the counter-affidavit is defective and the certificate was filed to cure it is not correct as the Page 8 of 18 effect of the certificate of the DPP when filed in court is to prevent the court to continue hearing the application on merit. The learned State Attorney did not discuss on the defectiveness or not of the counter-affidavit as it goes to the substance of the application as currently the discussion is on the validity of the certificate. The error in the counter-affidavit is pointed out by the learned advocates has nothing to do with the certificate. The defect of the counter-affidavit if any will be discussed during the hearing of the application itself. On the argument that the certificate does not disclose the reasons why DPP filed the certificate the learned State Attorney submitted that this court on several occasions has decided that, as the law stands under S. 36 (2) the only reason which the DPP is required to disclose is that the safety and interests of the Republic will be prejudiced.

The learned State Attorney referred this Court to its decision in Joshua Victor Mnonjela & Another V.R. Miscellaneous Economic Case No. 3/2017 in which it was held there is no provision of the law that gives powers to the DPP to issue Certificate objecting bail to the accused requiring him also to give reasons for so objecting. M /s Elizabeth Mkunde learned State Attorney therefore submitted that the DPP is not required to give reason while filing certificate. On the argument relating to the decision of this court in Mtobesya case, that S. 148 (4) CPA which is in Pari materia to S. Page 9 of 18 36 (2) of the Act was regarded unconstitutional then S. 36 (2) is also unconstitutional, she said these are two different provisions of the laws. S. 148 (4) is governed by the CPA. Despite the fact that it was declared unconstitutional has no effect to S. 36 (2) of the Act With regard to the argument that the decision of this court In Mtobesya case the right of the applicant to be heard is infringed. The learned State Attorney submitted that the powers of the DPP under Section 36 (2) is valid, constitutional and that the learned advocate argument on the unconstitutionality of the section ought not to be heard by this court because as the law requires, any complaint relating to unconstitutionality of the law are supposed to be lodged in the constitutional court. This court at the moment

is not sitting as a constitutional court, it cannot consider the constitutionality of the provision of the law as it was discussed in Miscellaneous Criminal Application No. 123/2015 Manase Julius Philemon V.R. In which it was held that the argument that the DPP Certificate was not filed in good faith and that it was filed without consideration of the URT constitution. The court considered the same and came to the finding that that submission cannot salvage the application because if they have any reality the right cause to take is to initiate action against the DPP under the relevant provision of the law and not to disregard the certificate. Page 10 of 18 The learned State Attorney concluded by saying the DPP Certificate is valid and has the effect of tying the court’s hand to grant bail and prayed for the application not to be granted. In rejoinder Mr Kambole insisted that the certificate when filed must be properly filed, the court officer who received it must sign and his official position be made clear. The fixed court stamp does not indicate who stamped and signed it. With regards to the DPP Seal, he said although the State Attorney stated that the copy filed in court has the crested seal even the copy supplied to them must be stamped with an official seal. With regards to the defective counter-affidavit, the learned State Attorney is of the view that discussing it, the

court means going to the merits of the application itself but Mr Kambole said counter-affidavit is a pleading filed in court, the court can look it without going to the merits of the case. He said the learned State Attorney had mentioned the three conditions to be made in order the certificate to be valid, but there are other conditions which are not necessary to be mentioned including names of the parties and the name, signature and official capacity of the officer who received the certificate. Mr Jebra Kambole tried to distinguish the two cases cited by the State Attorney Joshua Victor Mnonjela case and Li Ling ling case because he said they were not about the objection they have Page 11 of 18 raised. And in Li Ling Ling case the certificate was filed together with the counter-affidavit. On his part Mr Ishebakaki advocate rejoined in respect of S. 148 (4) CPA in line with the decision in Mtobesya case: He said their argument is not that S. 36 (2) of the Act is unconstitutional simply because it is in pari materia to S. 148 (4) CPA declared unconstitutional, but their argument is that the practice by the DPP to file certificates denying bail to the accused is unconstitutional. That their prayer is not for this court to declare S. 36 (2) unconstitutional, but they are praying for purposive interpretation of the law. The learned advocate also raised the issue of estoppel

against the State Attorney basing on Li Ling Ling case that during the hearing of that case the State Attorney argument was that as S. 148 (4) is in pari materia to Section, 36 (4) of the Act and that perhaps the Parliament did forget to insert also S. 36 (2). I will start with objection in respect of defective-counter affidavit. The argument raised by the objector is that the verification clause of the counter-affidavit is defective which means that it cannot be acted upon and thus their application stands un opposed. I think this point has no any legal force. The matter under consideration is how the certificate was filed by the DPP. This certificate is a stand alone document filed in court. It does not Page 12 of 18 depend on any other document or instrument for it to be valid. Any defect in the pleadings filed in respect of the application has nothing to do with the certificate. The argument is hinged on the scenario that as the respondent filed a defective counter-affidavit, then the certificate, which was filed later was aimed to rectify the defect in the counter-affidavit. I don’t see strength in this allegations because, if the respondent discovered that the counter- affidavit they had filed is defective, they could simply seek the leave of this court to make amendments. It was not necessarily for them to file the certificate just for the purpose of rectifying defect in

the counter-affidavit. However as I have pointed out above, the certificate filed by the DPP is a stand alone document which is filed without depending on any other document which is earlier filed, and can be filed at any time. I am not aware of any provision of the law directing when the certificate should be filed. It is filed when the circumstance so requires. So it can be filed along with any other pleading but it can be filed at a later stage. I do not see the basis of the argument that simply because the counter-affidavit is said to be defective, then because of that the DPP maliciously decided to file the certificate for the purpose of curing the defect. These are mere assumptions which in fact are not justifiable. A certificate is filed for the purpose, that purpose cannot be to cure the defective counter-affidavit and this cannot be so as in no way certificate can rectify a defective document. The same can be rectified by other means such as amendments. Page 13 of 18 Whether the certificate was filed to rectify the said defective counter- affidavit these are allegations which the applicants advocates are bound to prove. But I view this argument to have no merit, and cannot be entertained. With regard to the argument that the certificate in question was not properly filed for lacking signature of court official and the date it was received in court, but the certificate

under consideration was stamped with the seal of this court showing that it was received on 2nd May 2017. The same was prepared by the DPP Biswalo Eutropius Kachele Mganga and dated at Dar es Salaam this 28th day of April, 2017. The same certify that Ramadhan Mussa Hamis @ Ukwaju who is an accused in Economic Crimes Case No. 13 of 2017 at Kisutu Resident Magistrate should not be granted bail. Mr Kambole argued that as the certificate is a pleading the same should conform to other requirements relating to pleadings. Perhaps we need to define what pleading is. Block’s law Dictionary, 8th Edition, define pleading to mean “a form a l document in which a party to a legal proceeding (especially civil suit) sets fo rth or respond to allegations, claims, denials, or defenses . ” Oxford Dictionary of law 8th Edition define pleading to mean Page 14 of 18 “claim form defence or any other document used in civil proceedings” With such definitions, I hesitate to agree with Mr Kambole that the certificate filed by the DPP under S. 36 (2) is also a pleading. Pleadings as defined above are allegation which the other party is entitled to respond to such as affidavit and counter-affidavit. But the certificate filed by the DPP the other party need not to respond to by filing a counter document. I view the certificate filed by the DPP to be proper in format, the same is valid in terms of the

test given in the case of DPP Vs. Ally Nur Dirie & Another, (supra) The only question is whether the certificate is not proper for lacking seal of the DPP this argument is of no substance. It was properly submitted by the learned State Attorney that the original copy is a crested paper with the seal of the DPP, it need no any other seal to be stamped on it. Now going to the effect of the certificate itself, there is the argument by the advocates for the applicants that the certificate which is filed under S. 36 (2) of the Economic and Organized Crimes Control Act is of no effect after the decision of Jeremiah Mtobesya case in which S. 148 (4) of the CPA was declared unconstitutional. And that the applicant has a right to defend himself. And that as section 36 (2) of the Act is in pari materia to S. Page 15 of 18 148 (4) CPA which was declared unconstitutional, he said the same also cannot be left to stand. I am aware of the decision of this court which sitted as a constitutional Court under Section 8 of The Basic Rights and Duties Enforcement Act, Cap. 3 R.E.

2002. This decision was given on 22 / 12/2015. In that decision this court discussed on S. 148 (4) CPA only and did not discuss about S. 36 (2) of ECOCCA Cap 200 R.E.

2002. The decision in that case is in respect of S. 148 (4) only and not S. 36 (2). The court while declaring S. 148 (4) CPA unconstitutional were aware of the presence of S. 36 (2) of the Act, the same was not touched. Although we may argue that by analogy and purposive interpretation of statutes especially those couched in similar terms, then S. 36 (2) was rendered ineffectual. I do not subscribe to that position, first the decision in Mtobesya case dealt with a provision in another statute. But there are other similar provisions in other statutes such as S. 19 of the National Security Act Cap. 47 R.E 2002 the same has similar meaning. Provided that those provisions were not so declared as unconstitutional this court cannot disregard them, after all this court cannot declare them as unconstitutional. On top of that there is a decision of the Court of Appeal in the case of DPP Vs. Li Ling Ling (supra) which dealt specifically with section 36 (2) which is now under consideration, the court clearly held that provided the certificate filed by the DPP is valid, once it is filed in court the court cannot grant bail. This decision was given after the decision in Mtobesya case and is Page 16 of 18 binding upon this court. That is the position of the law at the moment. This court cannot decided otherwise. It follows therefore that as there is a certificate filed by the DPP which is

valid this court therefore cannot go further to hear and determine the application for bail. The same is dismissed on Date : 17/05/2017 Coram: Hon. F.N. Matogolo, J. For Applicant: Jebra Kambole & Benedict Ishebakaki Advocates Applicant: Present Respondent: Batilda Mushi - SA B/C Mr N.C. Malela M/S Batilda Mushi - SA: My Lord I appear for the Republic Jebra Kambole Advocate: My Lord I appear for the applicant being assisted by Benedict Ishebakaki Advocate. M/S Batilda Mushi - SA: My Lord the matter is for ruling we are ready. Page 17 of 18 Court: Ruling delivered today the 17th day of May, 2017 in the presence of the applicant and in the presence of Mr. Kambole & Mr. Ishebakaki Advocates and in the presence of Miss Batilda Mushi S/A. Page 18 of 18