Richard Bundala case

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 23480 OF 2024 (Originating from Economic Crime Case No. 1 of 2023 at Maswa District Court) RICHARD BUNDALA NCHEMBA..................................APPELLANT VERSUS THE REPUBLIC………………………..…………..……...…RESPONDENT JUDGMENT 3rd & 13th September 2024. MASSAM, J:. The appellant herein above was charged before the District Court of Maswa at Maswa with two counts of Embezzlement and Misappropriation c/s 28(2) of the Prevention and Combating of corruption Act Cap 329 R.E 2019 which read together with paragraph 21 of the 1st Schedule to and Sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act Cap 200 R.E 2019 and Stealing by Agent c/s 265 and 273 (b) of the Penal Code Cap 16 R.E 2022. The particulars of the offences were as such that, on 15th day of September, 2021 Maswa District in Simiyu, being secretary of Kidema 1 Agricultural Marketing Cooperative Society Limited, dishonesty did converts for his own use of Tshs. 1,228,000/= which was entrusted to him for payment of Simiyu Cooperative Union (SIMCU 2018) cotton levy the property of Kidema AMCOS. Also for the second count that on 15th day of September, 2021 within Maswa District in Simiyu Region being secretary of Kidema Agricultural Marketing Cooperative Society Limited did steal sum of Tshs. 1,228,000/= which was entrusted to him for payment of Simiyu cooperative Union ) SIMCU 2018) cotton levy instead he used it for his own benefit. At the trial, the prosecution managed to prove both offences against the accused person, and subsequently, was convicted and sentenced to serve 15 years imprisonment for the 1st offence, and for the second offence, to serve 6 years imprisonment. Aggrieved herein, appellant rightly lodged this appeal in this court with 6 (six) grounds, as follows, First, That the learned trial Senior Resident Magistrate erred in law and facts to find for the republic and convicted the appellant whereas the prosecution case was not established to the required standard. Second the trial Magistrate erred in law and facts after having admitted some of the documentary exhibits in evidence failed to read loud their contents in court prejudicing the appellant for fair trial. Third, that the 2 trial Magistrate was erred in law and fact to entertain prosecution evidence and found conviction against the appellant whereas in fact the whole evidence had dispelled the appellants mens rea for the offences he is arraigned for. Fourth that the caution statement by the appellant to PCCB exhibit P16 was taken in contravention of the law. Firth that the evidence of the appellant was not properly taken and being a lay person the trial magistrate dictating justice did not guide the appellant and give him opportunity (time) to get in court the feared witness and documents in his possession in which Birchard company was paid the money in question. Sixth the sentence the trial Magistrate made the appellant to suffer is excessive. During the hearing of this appeal, appellant was represented by Mr. Masige learned advocate while the respondent was represented by Mr. Goodluck Saguya, learned State Attorney. Before the parties starting to submit this court invited them to address the court whether the consent before this court was properly. In submitting concerning the raised issue Mr Masige advocate for appellant submitted that the trial court had no jurisdiction to entertain this case as the consent brought was not properly filed as it was signed by RPO 3 by using provision of the law which gives powers to the DPP to issue the same. He added that the DPP power on it is not delegated. He cemented his submission with the case of Peter Kongoli Maliwa and 4 Others Criminal Appeal No 253 of 2020 CAT Musoma whereby the court held that when the consent was signed by improper person the said consent will be improperly filed to the court and it is fatal and not curable. Also the said consent was not properly admitted to the court as requirement of the law as it was held in the case Hashim Nassoro @ Almas vs DPP Criminal Appeal No. 312 of 2019 CAT Sumbawanga which found out that the consent and certificate was not formerly admitted and the court held that failure of it the trial court had no jurisdiction and any decision given on it become nullity. Again, in the case of Fanuel Mantil Ngunda vs Herman Mantil Ngunda and 2 others 1995 TLR No 155, in this case was insisted that the issue of jurisdiction that it goes to the root of the case. Mr. Masige argued that when the court assumed the jurisdiction which does not have the proceedings and the judgment become nullity. So, in this case because the trial court had no jurisdiction the conviction and sentence given become nullity. So, he prayed to this court to left appellant free and not to order re trial. 4 Replying to the appellant ground of appeal the respondent’s counsel stated that, it is true that the nature of this case was supposed to be heard by the High Court Division of Economic and Corruption but the law allows with consent of DPP in Section 26(1) and Section 26(2) for other state attorney to sign the said consent in order the same to be heard by the lower court. He added that in this case the consent was issued by the RPO but using the section which give power to DPP and not him, but in his view he found that even RPO is authorized officer to issue consent and certificate so he pray this court see there was nothing significance in citation of subsection 1 instead of 2 and RPO cannot be bound with technicalities so it is curable. Mr Saguya supported his submission with the case of Nassib Abubakar Mwaziega @ Ras vs Republic Criminal Appeal No. 146/2021 court of appeal Mbeya which held that ‘’when it happened that there was a slip of the pen the same cannot became fatal’’. Also, he added by starting that the issue of endorsement of consent is not fatal as no law directs the same is a matter of practice and the said issue if the legislature finds it to be important could explain clear on it. Mr. Masige in his rejoinder stated that by the act of RPO to issue consent by using wrong provision of law is not slip of the pen as prosecution 5 side require high displine and integrity in performing their duties considering the nature of the cases and punishment in case of the any conviction. In the issue that there is no law directs that the consent to be endorsed he stated that not all laws are codified some of them comes from different decision by the superior court. He prayed to this court to finds out that the issued consent was not properly issued and the mentioned case by the counsel for the respondent was distinguishable with the facts of this case and the said irregularities are fatal and not curable. Lastly, he said that this case was entertained by the court which has no jurisdiction as the RPO was supposed to issue the said consent with the provision of law which gave him powers but he did otherwise. Having gone through the submissions by the parties, the center issue for determination is whether the trial court was properly vested with jurisdiction to try these offences. To start with, it is clear from the provisions of Section 3(3) of the EOCCA, that, all economic offences are to be tried within the jurisdiction of the Corruption and Economic Crimes Division of the High Court. However, under the provision of section 12(3) of the same Act, the same powers have 6 been vested to the subordinate Court upon being given consent by DPP or any state attorney dully authorised by him. The provision of Section 12(3) supra provides that, “The Director of Public Prosecution or any state Attorney dully authorised by him may in each case in which he deems it necessary or appropriate in the public interest by certificate under his hand order that any case involving an offence triable by the court under this Act be tried by such Court subordinate to the high court as he may specify in the certificate” Again, it is a matter of law that, before the subordinate court try such offences, it has to be availed with DPP consent under the provision of section 26(1) of the EOCCA, which states that, “subject to the provision of this section, no trial in respect of the economic offence may be commenced under this Act save with the consent of the Director of public Prosecution” Back to our case, and as per the court records and submission from both parties there is no doubt that the consent was issued by Regional Prosecution Officer/Attorney (RPO) instead of DPP under the provision of 7 Section 26(1) of EOCCA, where by in that section, it is only DPP who had been vested with powers to use such provision of law and it is not delegable, surprisingly, the one who signed the said consent was a Regional Prosecution Attorney in Charge one Shaban Mwigole whose powers are enshrined under Section 26 (2) of the Act. Therefore, the consent submitted before the trial Court to try these offences was null ab initio and thus the trial court lacked perquisite jurisdiction to try the matter. The above position was insisted by the Court of Appeal in numerous cases including the case of Peter Kongori Maliwa Vs. Republic, in Criminal Appeal No. 253 of 2020, at page No. 9 the Court of Appeal citing in approval with the case of Dilipkumar Maganbai Patel v. Republic, Criminal Appeal No. 270 of 2019 (unreported) where it was held inter alia that; “We have no doubt that in view of our deliberation above the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) of the EOCCA but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to 8 section 86(1), (2) (ii) and (3) of the WCA which was clearly cited in the charge sheet. The certificate and consent were therefore incurably defective and the trial magistrate could not cure the anomaly in judgment as suggested by the learned State Attorney for the respondent. The defects rendered the consent of the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason, we are constrained to find that the trial and proceedings before the Resident Magistrate Court of Dar es Salaam at Kisutu in Economic Case No. 58 of 2016 and the High Court in Criminal Appeal No. 146 of 2018 were nothing but a nullity" Guided by the case law above, this court is agreed with the submission from Mr. Masige that failure of prosecution side to cite the proper provisions of the law in the consent vitiates the trial proceedings and renders the whole proceedings and judgement of the trial court a nullity and consequently, the whole proceedings has to be nullified and be found that the trial court entertained the case which had no jurisdiction with it. 9 On the way forward, the learned State Attorney prayed to the court to see there was nothing significance in citation of subsection 1 instead of subsection 2 as the issuer was authorized officer and in that sense he cannot be bound with technicalities and the said anomaly is curable by GN No. 284/2014. He added that what happen was a slip of the pen and he cemented his submission with the case of Nassib Abubakar Mwaziega @ Ras vs Republic Criminal Appeal No 146/2021 Court of Appeal. Also he insisted that the issue of failure of endorsement of the consent and certificate was not fatal as there was no law directs the same but it is the matter of practice only. Lastly, he stated that because there was enough evidence to convict the appellant, he prayed to this court to find this appeal with no merit and anomaly which raised by the court and appellant to be found without merit, and the decision of the District Court to remain undisturbed. Coming to the submission from the appellant which said that the said error was not slip of the pen as the prosecution is required to perform their duties in high quality of discipline and integrity regarding the nature of the case and its punishment in case of the conviction. This court is in support of the submission from appellant that the intention of legislature of making 10 laws for it to be followed and the law is very clear in Section 26 (1) of EOCCA has it gave DPP powers to issue consent and certificate to lower courts to entertain the case of this nature and subsection 2 for other State Attorneys the same powers, and as we all knows in this provision of the law the powers of DPP is not delegable. So the issue of slip of the pen which raised by the counsel for respondent this court is not agree with it and it found it to be afterthought. Again the issue of indorsement of the consent and certificate this court has is view that there was no law directs the same than the matter of practice but there are some decisions from the court appeal which already discussed about it and held the failure on it is fatal and is not curable. See the case of Aloyce Joseph vs Republic (Criminal Appeal 35 of 2020) [2022] TZCA 771 (5 December 2022) Tanzlii Also, this court found out that respondent is supporting that the consent was not properly issued and was not endorsed as he agrees that the issuer was authorized officer but he issued it with wrong provision and again he said that their evidence brought was enough to convict the appellant this court thought that respondent could pray the order for re trial but he did not but rather he pray for dismissal of this appeal, as we know this court 11 could not order what was not prayed. According to that this court is joining hand with the submission from the appellant that the trial court entertained this case without a proper consent and certificate, as the same was issued by proper officer but with wrong provision of the law. In light of all that have been submitted by the appellant counsel and for the purpose of serving the best interests of justice for the appellant. This court is therefore allowing the appeal, quash the convictions of the appellant, and set aside the sentences. The appellant shall be freed immediately, unless he is otherwise lawfully held. It so ordered DATED at SHINYANGA this 13th day of September, 2024 R.B. Massam JUDGE 12 13