20071227 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ~(CORAM: LUBUVA, J.A., RUTAKANGWA., J.A., AND KIMARO, J.A.) CRIMINAL APPEAL NO. 250 OF 2006 1. SILVESTER HILLU DAWI } . 2. STEPHEN LEONS MWAMBENE .............................APPELLANTS VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS ......... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Mtwara) (Shangali J.) dated 21 st day of August, 2006 in Criminal Appeal No. 58 of 2006 / JUDGEMENT OF THE COURT 27TH Nov. 2007 & RUTAKANGWA, J.A.: The two appellants are among eleven (11) people facing six (6) counts in Economic Crimes Case No. 8 of 2004 in the District Court of Mtwara at Mtwara. Two of the counts involve offences of Theft c/ss 258 and 268 of the Penal Code and Leading Organized Crime c/ss 4 (1) (a) of the First Schedule to and 59 of the Economic and Organized Crime Control Act, Cap 200 R.E 2002. In the theft charge, 1 ( the accused persons are being arraigned for stealing about Tshs 460,000,000/=. The case is still pending in the trial District Court. The appellants were formally arraigned on 6th August, 2004. Their applications for bail were rejected on the basis of s. 29 ( 4) (a) and (d) of the Economic and Organized Crime Control Act. After the State Attorney Incharge, Mtwara Zone had consented to the prosecution of the appellants and their colleagues in the trial District Court, they were eventually granted bail on 18th May 2005. The accused persons were each required to deposit in court 50% of the money allegedly stolen by them. 1 At the preliminary hearing stage the prosecution indicated that ' it intended to call over forty witnesses. The actual trial started on 6th March, 2006 before Kalli, Resident Magistrate. After 6 prosecution witnesses had testified, on 30th May 2006, Mr. Nyange learned advocate for the appellants, who are the 1st and 2nd accused persons in the case pending in the trial District Court, made an application to the learned trial Resident Magistrate. He applied to have the conditions of bail granted to them on 18th May, 2005 varied in their favour. He pleaded change in circumstances 2 'i which gave the trial District Court powers to vary the bail conditions. The change in circumstances, he argued, were brought about by the evidence of PWS A.S.P Juma Saidi Ally (PWS) whoi according to Mr. Nyange, had testified to the effect that: ''Nobody will appear before the court and narrate the (sic) accused could: have conspired with other accused to commit the offence." Mr. Nyange further impressed upon the trial Court that ''no witness alleged that the two appellants participated in sharing the proceeds of the crime'~ It was his submission to the trial District Court that those were the facts which would not change. He accordingly urged the trial District Court to use '1/ts discretion to i reduce the conditions of bail or otherwise apply s. 148(5) (e) of the CPA by depositing only a title deed'~ The application was resisted by the prosecution through Mr. Hyera learned State Attorney. He informed the learned trial Resident Magistrate that the prosecution had yet to call about 41 witnesses. He argued that it was too premature to conclude that the evidence of 3 PW5 alone had changed the circumstances in the case. He reiterated that the offence itself was bailable only if the accused fulfilled the conditions provided u/s 148 (5) (e) of the Criminal Prosecution Act, No. 9/85, henceforth the C.P.A. After considering the submissions from both sides the learned trial Resident Magistrate ruled in favour of the defence. He said:- ''! agree with (sic) Nyange advocate that the ' f st 1 and 2'1d accused probably could have been guilty of the circumstances (sic) from their position as Manager and Accountant · Since the Court has discretion to change the conditions according to the circumstances or the trend of the case. It is wise to change. I revise the condition of bail, in respect of the two accused for reaching justice and the two accused are granted bail in the sum of Tsh 10,000, 000/=each with two sureties each not deposited in cash. .... " The prosecution was aggrieved. It appealed to the High Court. The prosecution's appeal in the High Court was pegged on section 148(5) (e) of the C. P.A. and sections 36 (4) (e) and 5(a) of the Economic and Organized Crime Control Act. , These provisions 4 . require an accused person to deposit in court half of the amount of money stolen or the value of the property involved' in the charge. It was strongly contended by Mr. Hyera that· in varying the bail conditions of the two accused persons, the trial Resident Magistrate violated the mandatory provisions of the law by taking into account extraneous considerations. He cited these considerations to be the observations by the trial Resident Magistrate to the effect that the appellants herein ''probably could have been guilty of the circumstances" by virtue of their position~ as Manager and accountant respectively. In resisting the appeal in the High Court Mr. Nyange, relied on the case of Hamisi Masisi and 6 others V R. [1985] TLR 29, by asserting that the trial District Court had powers to review bail conditions at any stage of the proceedings ''depending on the conditions'~ From this premise he argued that after PWS had testified there were changed circumstances which justified the variation of the bail conditions in favour of the appellants. Furthermore, Mr. Nyange submitted that the law required an accused person to deposit 50% of the money or the value of the property 5 involved in the case. Since there were eleven (11raccused persons in all, this requirement of the law would be fulfilled if this amount I were to be shared equally among them instead of ordering I each one of them to deposit 50% of the said Tshs.460,000,000/=, he maintained . He called this the principle of sharing. ' . In a well considered judgment, the learned first appellate judge found the D.P.P's appeal to have merit. She allowed it. In allowing the appeal, the learned judge held unequivocally that the subordinate courts ''have powers to vary or cancel the bail conditions where there are sufficient reasons" as stated in the case of Hamisi Masisi and 6 others (supra) and the D.P.P. V. ALLY NUR-DIRIB AND ANOTHER [1988] TLR 252. She, however, went on to hold that the I trial Resident Magistrate violated the mandatory provisions of the law ' in varying the bail conditions of the appellants in this particular case. I She was of the firm decision that since the amount involved in the case is Tshs 460 million " each accused person including the respondents are required to pay cash deposit equivalent to half the value of the property and the rest to be secured by execution of a 6 bond as required by the law'~ She dismissed the notion of sharing as ''foreign to our criminal procedure'~ The learned judge further held that the learned trial Resident Magistrate erred in law when she employed extraneous circumstances in varying the bail conditions. In her view, sufficient reasons justifying the subordinate courts to vary bail conditions ''are not supposed to be based on the weight of the recorded prosecution or defence evidence but on the possibility and availability of the accused to attend court while on bail'~ Having so held and observed, the learned judge quashed and set aside the order of the trial District Court granting bail to the appellants herein on. ''revised conditions'~ The appellants were aggrieved and hence this appeal. Again through, Mr. Nyange the appellants are before this Court · with three grounds of appeal. These are as follows:.- 1. The learned judge of the High Court erred in holding that where the law regarding bail is specific and mandato(½ the court will have no discretion to revisit bail conditions. • I 7 • -j 2. The learned judge of the High Court erred in I holding that the trial magistrate in. ,:elying on partly recorded evidence employed extraneous considerations to relax bail conditions. 3. The learned High Court judge erred in, holding that the principle of sharing is forelgn and cannot be invoked by any Court. I I I I Addressing us in support of these grounds of appeal Mr. I I Nyange was all out in support o~ the trial Distric~ Court in granting th the appellants and their co- accused bail on 18 May, 2005 in accordance with the mandatory requirements of S. 148(5) (e) of the C.P.A. and /or S. 36 (4) (e) of the Economic and Organized Crime Control Act. The trial District Court was correct because it predicated its decision on the bare allegations contained in the charge sheet, he maintained. However, after recor,ding the evidence of PW5, the trial District Court was appraised of the truth, he argu~d. On the basis of this truth, he pressed, the trial Court was entitled to revisit the earlier I bail order and vary the conditions imposed therein.as the evidence of PW5 took the two appellants out of the ambit 0f the above cited stringent provisions of the law. He accordingly faulted the learned I 8 i i I " judge in holding that a court has no power to re-visit bail conditions where there are changed circumstances favorab'le to an accused person so long as the law is couched in mandatory terms. Mr. . I Nyange insisted that one can resort to the same subordinate Court under its inherent jurisdiction and s. 150 of the C.P.A. Pressing this argument further, Mr. Nyange adamantly argued that courts should not just sit back and condone injustice. Courts have a duty to apply the law without occasioning· injustice, he said. If in applying the law it is detected that injustice will be occasioned then they have to ignore that law or have it an.nulled, he concluded. On the second ground of appeal Mr. Nyange simply observed that the trial District Court committed no wrong in looking at the evidence for the purpose of determining whether or not there were changed circumstances justifying variation of the bail conditions under s. 150 of the C.P.A. To him this was not an extraneous consideration. Submitting in support of the third ground of appeal, Mr. Nyange invited us to hold that although the law is couched in singular terms, that is by using the words ''any person'; it does not expressly prohibit 9 application of the principle of sharing. It was his view that this was the opportune moment to introduce this concept into our jurisprudence. The respondent Republic in the appeal was represented by Mr. Boniface, learned Principal State Attorney. With his characteristic forthrightness he resisted the first and second grounds of appeal but conceded to the third ground. Beginning with the third ground, Mr. Boniface submitted that the requirements of section 148, (5) (e) of the C.P.A and 5. 36(4) (e) of the Economic and Organized Crime Control Act, are mandatory. They must be followed to the letter, he insisted. All the same, relying on section 8 (c) of the Interpretation of Laws Act. Cap 1 R.E 2002, the words "person charged" in both sections may be singular or plural depending on the circumstances of each case. From this premise he submitted that where more than one ·person is charged then half the amount to be deposited must be shared between or among the accused persons. He accordingly endorsed the principle of sharing as advocated by Mr. Nyange. 10 Urging for the dismissal of first and second grounds of appeal, he submitted that the evidence in the District Court does not support Mr. Nyange's contention. To him, PWS did not testify to the effect that no other witness would testify that the appellants never participated in the conspiracy or that they never shared in the proceeds of the crime. Furthermore, he argued that the appellants stand charged with an economic offence involvi'ng theft of over Tshs 460,000,000/=. The charge still remains the same. Using the words of this Court in the case of D.P.P V. ALLY o:IRIE (supra), he asserted that this is a static circumstance. Therefore, it was wrong for the trial District Court to vary the bail conditions. He went on to submit that under the C.P.A., the subordinate courts have no power to vary bail conditions once bail is granted. Mr .. Nyange conceded to this fact in his short rejoinder. Mr. Boniface categorically stated that the courts cannot go out of their way and disregard the law for the purpose of advancing the law as urged by Mr. Nyange. On s.150 of the CPA Mr. Boniface argued, and quite rightly in our settled view, that this section does not empower subordinate courts· to vary bail conditions in favour of accused persons. It only 11 empowers the courts either to cancel bail already granted or to I increase the amount of money stipulated in t~e bail bond, on the application of the prosecutor where there are subsequent changes of circumstances. 1 I In disposing of this appeal we shall first deal with the third ground of appeal. In this regard the issue for consideration is I whether the principle of sharing is recognized under the law of this country. As conceded by Mr. Boniface, if section 148 (5) (e) of the i C.P.A. and section 36 (4) (e) of the Economic and Organized Crime Control Act read together with section 8( c) of G:ap 1 are given a purposive interpretation, it becomes evident that the principle of sharing is recognized by our laws. Section 8 of Cap 1 reads as follows:- ''8 In any written law- 1 (a) Words importing the masculine f]ender include the feminine; I (b) Words importing the feminine ·gender include the masculine; . I (c) Words in the singular number /nclude the plural and words in the plural 1 number include the singular. " 12 It goes without saying, therefore, that the words ''any person" or "that person" or "the person" appearing in the sections under scrutiny should be taken also to mean ''persons'; "those persons" and / or "the persons'~ Therefore section 148 (5) (e) of the CP.A, shall be accordingly construed to read that a court shall not admit persons jointly charged to bail if the offence with which those persons are charged involves actual money or property whose value exceeds ten million shillings unless those persons jointly deposit cash or other property equivalent to half the amount or value of the actual . ' money or property involved. On this legal point we are with respect in agreement with both Mr. Nyange and Mr. Boniface in their contention that the learned first appellate judge erred in holding that the principle of sharing is foreign in the laws of this country. We may as well observe in passing that these are the sort of situations wherein the courts are permitted to employ ingenuity to enhance the quality of our criminal justice. Coming to the first ground of appeal we are satisfied that it is utterly wanting in merit. However, in so asserting we should not be 13 .' taken to uphold the learned first appellate judge on her holding that subordinate courts have powers to vary bail conditions in favour of an accused person for any cause. They might have had such powers under S. 127 of the old Criminal Procedure Code (C.P.C.) referred to in Hamisi Masisi's case (supra). Under the C.P.A. such powers are reserved to the High Court only•., This is evident from the provisions '° '--- of S.149 of the C.P.A. which reads as follows:- "Where in connection with any criminal proceedings a subordinate court has power to admit any person to bail, but either refuses to do so/ or does so or offers to do so on terms unacceptable to him/ the High Court may admit him or direct his admission to bail or✓ where he has been admitted to bail, may vary any conditions on which he was so admitted or reduce the amount in which he or any surety is bound to discharge any of the sureties. " The powers of subordinate courts to vary bail conditions are strictly .spelt out in s. 150 and this is only on applications by police .officers or public .prosecutors and not the accused persons. It is 14 worthwhile noting here also that the repealed C:P.S did not have any I provision similar to sections 149 and 150 of the C.P.A. So, under the I current law any accused person granted bail by a subordinate court I ' on terms unacceptable to him may have them varied by the High Court only. I Of course the main point of contention in the first ground of appeal is that the learned judge on first ap~ea, erred in law in holding that in view of the clear and mandatory provisions of S. 148(5) (e) of the C.P.A. and S. 36(4) (e) of the Economic and I I Organized Crime Control Act, the trial District court had no discretion I to re-visit the bail conditions. After dispassionately reading these provisions of the law and considering the submissions of both counsel I on the issue our short but firm answer to this complaint is that the , I learned judge was perfectly correct. The law· on the issue is i unambiguous and specific. It might appear harsh and perhaps unjust, as Mr. Nyange vehemently argued. But we cannot disregard it as gallantly argued by him. This, then leads us to articles 107 A and 107 B of the Constitution of the United Republic of Tanzania, 1977. 15 I Article 107 B provides as follows:- 1 I "Katika kutekeleza mamlaka ya utoaji haki, i Mahakama zote zitakuwa ·huriJ I na zitalazimika kuzingatia tu masharti ya Katiba nayale ya sheria za nchi'~ This can be rendered into English as follows:- 11/n discharging their function of administering Justice, all courts shall be independent and shall be bound to follow the Constitution and the laws of the land only'~. [Emphasis is ours]. The mandate given to the courts to administer justice in the country by the Constitution is very clear. We cannot not circumvent the Constitution. The judiciary, as provided under article 107 A (1) of the Constitution is the only organ of the state having the final say in the ' administration of justice in the country. But it does not have unbridled powers. The courts must operate within the parameters of the Constitution. The Constitution in articles 107A and 107 B enjoins us to administer justice in accordance with the law of the 16 land being guided by the five principles enunciated in article 107 A (2). So the invitation by Mr. Nyange to disregard the clear provisions Ji)f' of the law for sake of breaking new ground is not only OR invitation to anarchy but an invitation to violate the Constitution. We are not prepared to do that. We are not saying so for the first time here. This Court in the case of HADIJA MASUDI as LEGAL REPRESENTATIVE OF THE tATE HALIMA MASUDI VS RASHIDI MAKUNDI, Civil Appeal NO. 26 OF 1992 (unreported) sai~ inter alia, and we quote:- "We have found it necessary to give a chronological background to this· case since the outcome of the appeal is to say the least, a starting demonstration of the truth that this court like all courts can do justice only in accordance with the law of the land, and not otherwise" [Emphasis is ours]. We take it as settled law that if the language of a statute is clear, it must be enforced at all times to the letter. We cannot ignore it for the sake of venturing into the realms of idealism or <D breaking new grounds of law. If we attempt to do so we shall not 17 Ji • ,§ • 1 • • only lose the confidence of the society which we are supposed to serve but also our legitimacy. Yes, in appropriate cases, but within the confines of the law, we shall not be afraid of breaking new grounds in order to improve the quality of the justice we deliver. We . are afraid to say that this is not one of those cases. , Accordingly, we are respectfully in agreement with the learned first appellate judge's holding that the learned trial Resident Magistrate violated the mandatory provisions of t_he law when she varied the bail conditions and granted the appellants bail bond of Tshs 10,000,000/= each with two sureties each. The learned judge rightly quashed that order and we uphold her. In view of our holding in the first ground of appeal the second ground of appeal, ought not to detain us. There is no gainsaying that even if it were to be taken that the trial District Court had powers to vary the bail conditions, in this particular case it based its decision on extraneous considerations. So long as the appellants were still facing the same charges, the mandatory provisions of the law had to be given their full effect no matter wha~ PWS had said in his evidence. This ground of appeal is also dismissed. 18 For the foregoing reasons, we uphold the final decision of the High Court and dismiss this appeal. DATED at DAR ES SALAAM this day of December, 2007. D.Z.LUBUVA JUSTICE OF APPEAL • I E. M. K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL . ' 19