ROWLAND SALIEC KOMBE 0001 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 35235 OF 2024 (Originating from Economic Crime Case No. 30467 of 2024 in the Resident Magistrate Courts' of Dar es Salaam at Kisutu) ROWLAND SALIEC KOMBE @ MMARI ................................ THE APPLICANT VERSUS REPUBLIC ................................................................... THE RESPONDENT RULING Date of Last Order: 16.01.2025 Date of Ruling: 23.01.2025 NGUNYALE, J. With respect to the Chamber Application broached herein, the applicant has moved this court under Section 372 (1) of the Criminal Procedure Act Cap 20 R.E 2022 (hereinafter the CPA) seeking for the following orders; 1. Ttle court be pleased to call for and examine the records of Criminal Case No. 5466 of 2024 which is pending in the District Court of Kinondoni at Kinondoni for the purpose of satisfying itself as to the correctness, legality, propriety of any finding or order recorded or passed and regularity of the said proceedings. 2. Any Other order (s) as the court will deem fit, just and equitable to grant. ne application is supported by the affidavit sworn by Mustafa Mhina Mustafa for the applicant and resisted by the counter affidavit which was duly sworn and filed by Tumaini Mafuru from the National Prosecution Services. Further, the applicant was represented by Peter Michael Madereka learned Counsel from Stalwart Law Chamber whilst the respondent was ably represented by Tumaini Mafuru learned State Attorney from National Prosecution Services. TIle deponent in the applicant’s affidavit deponed that the applicant has been charged in Economic Crime Case No. 30467 of 2024 before the Resident Magistrates’ Court of Dar es Salaam at Kisutu with the offence of Stealing and unlawful dealing with mining business which are not economic offences. Further averment was to the effect that, no any order has been published in the gazette to warrant mounting of investigation in respect of the said matter which is pending before the trial court against the applicant. are respondent through the counter affidavit sworn by Tumaini Maingu Mafuru resisted the application on the ground that it is unfounded. Hearing of the application attracted oral submission; Mr. Madereka got the ball rolling by stating that the High Court has jurisdiction to revise the proceedings of the trial court. He cited the case of Peter Michael Madereka versus Republic, Criminal Appeal No. 263 of 2022 where it was held that the High Court has power to revise the proceedings of the subordinate court thus the application for revision is properly before the court. In his further submission he asserted that the applicant with other two people are facing offences purported to be economic offences. According to him it is the elementary position of law that the charge sheet is the foundation of any criminal case. He placed reliance in the decision of Sultan Omari Kipenzi & 6 Others vs The Republic, Criminal Appeal No. 154 of 2017 High Court of Tanzania at Dar es Salaam. He maintained that the proceedings of the trial court against the applicant are illegal and irregular because there is misjoinder of counts. He pointed out that, stealing is not one of the economic crimes listed in Section 57 (1) Economic and Organized Crimes Control Act Cap 200 R.E 2019 (hereinafter the EOCCA) which reads together with the First Schedule to the Act, thus, it was wrong to charge the applicant in the economic crime case. According to him, such error renders the charge to be a nullity. He referred this court to the case of Asifiwe Ekson Mbughi and Another verus Republic, Criminal Appeal No. 150 of 2022 where such kind of a mistake was prohibited. To support his proposition, he cited the decision of Kingolo Limbu @ Tina Kube Lyongo @ Zumbi versus the Republic, Criminal Appeal No. zk15 of 2017 where the Court said that, in a circumstance where the charge sheet involves both economic and non-economic offences, the DPP or any State Attorney acting under him may make changes according to Section 12 (4) of EOCCA. Before the trial court the applicant was charged without compliance to Section 12(4) of EOCCA, the omission which is fatal and cannot be rectified by Section 388 of the CPA. lbe court should find the charge sheet to be defective. He also submitted that the prosecution side contravened Section 21(1) of the EOCCA as investigation is still pending; it is a legal requirement that the investigation of an economic offence to be published in the Government Gazette through a Government Notice. He added that, there is no GN relevant to this case, hence, the on-going investigation did not comply to the letters of the law. He concluded his submission by inviting the court to nullify the charge and set the applicant free. In reply Mr. Mafuru for the respondent started by declaring his stance that the application has no merit at all thus ;y opposed the same through a counter affidavit. He averred that, going by the record, they noted contradictions about the case number and the court where the matter was filed. He qualified that, in the chamber summons, he referred the case as Criminal Case No. 4566 of 2025 pending at Kinondoni District Court but in the certificate of urgency they said that the application originates from Criminal Case No. 30467 of 2024 which is pending before the Resident Magistrates’ Court of Dar es Salaam at Kisutu, so, they ought to attach the charge sheet to avoid this problem. He prayed the court to reject the application based on those contradictions. Alternatively, he argued that the applicant is also facing the economic offence of money laundering which the applicant’s Counsel did not bother to mention it. To ponder further, he submitted that the Economic Crime Case No. 30467 of 2024 is still pending before the trial court because investigation is incomplete and the law allows cases of this nature to be filed in court pending investigation as per Section 131(1) (4) of the CPA. He contended that the applicant’s Counsel has mis interpreted the law as Section 12(4) of EOCCA which was referred by him is relevant when the investigation is complete and the DPP or his subordinate has issued a certificate conferring jurisdiction thereof as the 5 W\il"\i\NNNNN\ ' present case is still under investigation and the trial court is for committal proceedings only therefore there is nothing wrong at this stage. He stated that his friend also referred to Section 57(1) of the EOCCA whereas the offence which the applicant is facing is of economic status especially the 4th count of money laundering. He resisted that the applicant’s Counsel referring to Section 21(1) of EOCCA alleging that the said investigation ought to have been published in the Government Gazette is misplaced. He clarified that the GN mentioned the officers responsible with investigation and not the investigation itself. He prayed the court to dismiss the application because it is incompetent and out of context as the case is still under way, after the investigation the DPP or his officials will accordingly issue consent and certificate to that effect. In rejoinder Mr. Madereka reiterated his earlier stance and insisted that the affidavit mentions a proper case number therefore the discrepancy about case number is not fatal. He said that they have no problem with presence of the offence of money laundering but their problem is presence of the offence of stealing in the economic crime case. Ibis court is called upon to determine the following issues one, whether it was lawful for the applicant to be charged with economic and non- economic offence in the same charge sheet and two whether the investigation process ought to be published in the government gazette. After hearing the rival submission from the parties, my starting point is on the mandate of the High Court to conduct revision against the proceedings of the trial court as submitted by the applicant’s Counsel. The court in this matter was moved by Section 372 (1) of the CPA. Tbe provision provides; 'The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. " Having in mind the above provision, and on account of the case of Peter Michael Madereka (supra) which was cited by the applicant Counsel, I am in support of the correct position of the law that this court has revision jurisdiction against the proceedings of the trial court. Tberefore, the application is properly before the court for it to examine the proceedings of the trial court in order to satisfy itself as to its propriety. Tbe respondent in his submission said that the applicant wrongly moved the court by citing wrongly the original case number in the Application. ,M He was not certain about the case number and the court. He prayed the court to reject the application based on such reason. His stance was resisted by the applicant’s Counsel who stated that the discrepancy about the case number is not fatal because the affidavit contains a correct case number (Economic Crime Case No. 30467 of 2024). 1 am inclined to agree with the applicant’s Counsel that the mistake was not fatal because the affidavit which is good evidence in support of the application bears the correct case number and the respondent attorney submitted that they are aware that the applicant is facing Economic Crime Case No. 30467 of 2024 before the Resident Magistrates’ Court of Dar es Salaam at Kisutu. I now proceed to determine the first issue; whether it was lawful for the applicant to be charged with economic and non-economic offence in the same charge sheet. It is fairly admitted that charge sheet is the foundation of any criminal offence as correctly submitted by the applicant Counsel and it was not denied by the respondent attorney as to that. TIle applicant and 2 others were charged before the trial court with offences in four counts. In the first count they were charged with the offence of Leading Organize crime Contrary to Paragraph 4(1) (a) of the First Schedule to and Section 57(1) and 60(2) both of the EOCCA, the second count they were charged with the offence of Stealing Contrary to Section 258 and 265 of the Penal Code Cap 16 R.E 2022. Ure third count which was alternative to the 2-d count they were charged with the offence of unlawful dealing with Mining Business Contrary to Section 18(1) and 4 (a) of the Mining Act Cap 123 R.E 2019 read together with Paragraph 27 of the EOCCA and in the last count they were charged with the offence of Money Laundering Contrary to Section 12(1) (d) and 13 (1) (a) of the Anti-Money Laundering Act Cap 423 R.E 2022 read together with Paragraph 22 of the First Schedule to, and Section 57(1) and 60(2) both of the EOCCA. According to the charge sheet, the offences occurred on 7th and 9th August, 2024. Essentially, the discussion in this case is about economic and non- economic offences being charged together. Generally, it is legally acceptable for more than one offence to be included in a single charge sheet subject to legal conditions. Ibis is provided for under Section 133(1) of the CPA and Section 31(3) of EOCCA. The applicant’s Counsel submitted that it was wrong for the applicant to be arraigned in the charge sheet with a mixture of economic and non- economic offences. But the respondent attorney had a different take ,M from his colleague. He said that the law allows cases of this nature to be filed in court pending investigation vide Section131 (1) (4) of the CPA. I think the position suggested by the respondent’s Counsel seems to be the correct position of the law as it will be demonstrated shortly. Pursuant to Section 131(1) and (4) of the EOCCA entails that; (1) Every information shall contain such particulars as are necessary to give reasonable information as to the nature of the offence including a statement of the law and the section, or other division of it, under which the accused person is charged. (2) (3) (4) The following persons may be joined in one information and may be tried together, namely- (a) Persons accused of the same offence committed in the course of the same transaction; (b) Persons accused of aiding or of an attempt to commit the offence charged; (c) Persons of different offences committed in the course of the same transaction . In the light of the above provision of the law, I am of the view that persons charged with the offences which occurred in the course of the same transaction may be charged together regardless of being economic offences or non-economic offences subject to conditions stipulated by the law. Ttle relevant conditions related to economic offences and non- economic offences are considered after completion of investigation and the accused persons are either committed to the High Court for trial or the case is transferred to the subordinate court for trial. The applicant’s Counsel stated that the DPP or the officer acting under him ought to comply with Section 12(4) of EOCCA to allow the mixture of the offences to be tried together the idea which was opposed by the respondent attorney. I am at one with the position put forth by Mr. Mafuru that, Section 12(4) of EOCCA referred by the applicant is relevant when the investigation is complete and the DPP or his subordinate issues a certificate conferring jurisdiction and not at the preliminary stages before investigation. In this preliminary stage pending investigation the subordinate court had no jurisdiction to determine the fate of the applicant. Principally, drafting of the charge sheet is governed by section 132 to 135 of the CPA. Tbe charge sheet under scrutiny was accordingly drafted whereby there is no provision which bar such mixture of offences. Ttre EOCCA did not come with the new form of charge sheet drafting but it added some criteria for it to be competent for trial especially where there is a mixture of economic and non-economic offences. One of the crucial criteria is what has been stated in Section 12(4) of EOCCA. The mixture of the economic and non-economic offences at initial stage before trial has no legal effect but for the trial to be competent the procedures relevant to legalize such mixture of offences is obligatory. TIle proceedings before the trial court were propriety because the law allows offences charged under similar transaction to be charged together but upon completion of investigation the issue of jurisdiction between the economic offences and non-economic offences is determined. In terms of Section 3(1) of the EOCCA the jurisdiction to determine the economic offences is vested to the High Court upon obtaining consent of the DPP as required under Section 26(1) of the EOCCA. nIe subordinate courts are also vested with mandate to try economic offences subject to obtaining consent of the DPP as per the dictates of Section 26(2) of the EOCCA. Ure law requires the DPP to issue certificate of transfer of the case which specify that the economic offence triable by the High Court to be tried by the respective subordinate court subject to Section 12(3) of the EOCCA. In the circumstance where the charge involves a mixture of economic and non-economic offences which are to be tried together there is a need for the DPP or the State Attorney authorized by him to comply with Section 12(4) of the EOCCA. Mr. Madereka submitted that the applicant „M was charged in such a mixture of offences without compliance to the said provision. It is my considered view that Mr. Madereka acted prematurely because Section 12(4) of the EOCCA is relevant upon completion of investigation, the case under scrutiny (Economic Case No. 30467 of 2024) its investigation is incomplete. TIle said Section 12(4) gives the following direction : ''The Director of Public Prosecution or any State Attorney duly authorized by him/may, in each case in which he deems it necessary or appropriate in the public interest; by a certificate under his hand order that any case instituted or to be institute before a court subordinate to the High Court and which involves a non-economic offence or both an economic offence and a non-economic offence/be instituted in the Court" are case against the applicant has not reached a stage whereby the DPP or his authorized officer is required to comply with Section 12(4) of the EOCCA. As such, the act of the applicant to start challenging the competence of the charge sheet while investigation is still pending is a premature move which is not helpful. As correctly submitted by the applicant’s Counsel, it is true that noncompliance to the very provision is fatal, renders the whole proceedings a nullity. In the case of Mohamed Ramadhani Mazola & Another versus The Republic, (Criminal Appeal No. 181 of 2019) [2021] TZCA 3542 (19 November, 2021) TanzLII the Court observed that: "It has been held by the Court in a number of its decisions that, where a charge involves economic and non-economic offences, a certificate transferring the case for hearing by subordinate court has to be made under s. 12(4) of the EOCCA... The effect of a failure by the DPP to issue a certificate authorizing a trial by a subordinate court, of a combination of economic and non-economic offences has been held to render the trial a nullity." Tberefore, the applicant’s Counsel acted prematurely to challenge the applicability of Section 12(4) of EOCCA, so, the application is bound to fail. The second issue was about whether the investigation process ought to be in the government gazette. Mr. Maderekas’ argument was founded on Section 21(1) of EOCCA alleging that the investigation was to be published in the Government Gazette the idea which was vehemently opposed by the respondent. I will start resolving this issue by reading between lines the provision of Section 21(1) of EOCCA which connotes that: - "The investigation of all economic offences reported to the police shall be conducted by police officers, with the assistance of such public officials or category of public officials as may be designated by the Director of Public Prosecutions after consultation with the Director of Criminal Investigation and by order published in the Gazette. " Ttle broad interpretation of the above provision is to the effect that, nvestigation of serious economic ol )y means, besides the police officers may involve the assistance of other public officials depending on the nature of the kind of expert needed as designated by the DPP in consultation with the DCI. Tbe provision covers those other public officials. Tbat those other public officials , involved in the investigation process shall be involved upon issuing an order published in the Gazette. Tbe argument of the applicant’s Counsel that the investigation is not published in the Gazette is misconceived as rightly submitted by the respondent’s Counsel. Tbe GN does not mean that the investigation must be published in the Gazette. ne correct position is as accurately submitted by the respondent’s attorney is that, the public officers involved in the investigation process must be engaged through an order published in the Gazette. ne issue of Government Notice as raised by the applicant’s Counsel has been raised either inapt or prematurely. The same may be applicable during trial in a circumstance where the prosecution side brings a witness alleging to be a public officer and participated in the investigation process without compliance to Section 21 (1) of EOCCA. All said and done, the applicant’s Counsel acted prematurely to challenge the applicability of Section 12(4) and 21(1) of EOCCA in the proceedings before the trial court where even plea was yet to be taken. As a result, the application suffers a disease of incompetence, proceedings before the trial court are. intact and legally correct. are application is hereby struck out. Dated at Dar es Salaam this 23'd day of January, 2025. ;OR JUDGE em 23rd day of January, 2025 in presence of the applicant represented by Peter Michael Madereka and Mwanaisha Mdeme learned Counsels. ouRf nyale JUDGE 16