19930204 TZHC Arusha

• v IN T~lE HIG=r C01JRT OF Tli.IBA1'1TA AT ARUSHA. MISC. CRL'-HYJAL A:iPLICATION NO. 4/1993 C/F CRfrIINAL APPEAL NO. 11 OF 1993 (Fror.1 the decision of the District Court of Arusha at Arusha in Ee. Crine Cas~ No. 21/1989) HANS U. LUETTI C]J •• o o .l o .o o o .. o Q ~ o o o o o o o • o o o o • o • o o • o o o o ::- o • o o.• APP LI C.A.NT

VERSUS THE REI)UJ3LI c . 0 0 • 0 o ••• 0 o o =, o O o o C ~ • o o O • 0 0 0 o o O • o • 0 0 0 o o o o o o •• ~s~:.:io£JDD}JT R U L I N Gg This is an 2 _l.)lication for bail pending the determin.::dion of an . appeal, which ·the .'.lf)licont has filed to -f..his court challonGin:3 the decision of the trial subordinate court at Arusha. The apJlication has been filed by one :.J~\rJS UIBICH LEUTTICII, a Gerrilan national, who was charged before tho court of the Resiient Magistrate at Arusha with two _counts unjer the :E:xchange Control Statute, Cap. 2;4 of the Laws. The said counts were-set out in the charge sheet as follows: 1st count: State;:;ent of o f f e ~ Failure to coll.::-c·t cirtain: debts c/s 24(1) and paragI'.aph 1(1) .of Part II of the 5t~1 Schedule of the Exphange· Control Ordinance, Cap.· 294! ' Particulars of offenceg . ~ ------ Hans Ulrich Leuttich ·:Jetween the first day of Janm1ry, 1930 and the 24th Septcu')e,i:' , 9 1984 while at Arusha Region as the i.liana:3"ing Director of Tanz6,nite Wildlife Tours Linitec.1, a subsidiary Conpany of Zapa~·c::. !Iolclin6 s Lir.1i ted ( Group of Co,:1panies) , po::.:-s;nally failed to coll~bt U,S $110,214.61 which was equivalent to T. Shs. 1,808,732/= fror.i ABC Munich 9 a German Tours Operatorsp in West Gernan'y.• 2nd Count g • • • • • • • /2 ( ••• 2 • •• Failure to collect certain debts 9 c/s 24(1) and parat;raph 1(1) of Part

11 of tho !ifth Schedule of the Exchange Control Ordinance Cap. 294 as read together with section 56(1) and paragraph l{a) of t:10 First Schedule of the Econoi:1ic and Organized Crine Coffcrol Act No. 13 of 1984. Particulars of offenceg Hans Ulrich Leutticb between 24th July, 1985-and 16th .Fe!)l"llary 9 1987 while at Arusha RG 0 ion as the l"Janagi_ng Director of Tanzanite 1:!ildlife Tours Linit'ed, a Stlbsidiary coLij)al'l.y of Zapata Holdings Linited (Group of ConpaniGs), personally failed to collect US$ 163,049.55 which was equival0nt to T. Shs. 3 9 751 9 515.10 from .A:BC Munich, a Germany Tour Operators, in ~"fest Geruan¥. The applicant/accused was convicted of the said counts an~7-. was sentenced to two years ir::.prisonnont on 1st -count and to 10 years _ir.1priso1111ent on 2nd count~ The sentences. were 1>rdered_to run concurrently. He was further orJ.ered to pay the anount of the outstanding debt L,. e2.ch count, which c_a.Be te: a total ru~1ount of US $ 273,264.16 or the equivalent of the present rate with ;interest fron 1981 to th::, date of the final i payuent. The order J~rected that the properties of a conpmiy named Big Gar.ie Saf2ris h::i.1J8d in Arusha be irJDediately attached in satisfaction of the outstantlin15 ~7-.ebt in question. However, the order c7-.id not sta.te to whor,1 this outsto..ndin[; · a::-1ourit should be paid, thnt is 9 whether the sai:1e be

;;iaid to tho Republic which_ is the conplainant in this co.se~ or to Tai-izani te Wildlife Tours Lir.:iited. It is t~1is whole decision of the trial subordinate court that the applicant/accused is challenging before this court by way of appeal vide crininal appeal No. 11/1993 which is still pending before this court. This applicaticm. bas been filed under the enablin 6 section 368(1) of the Cri1:1inal ProceJ.ure Act No. 9/1985. · The application is supported by an affidavit deposed. to by Nr. Ngalo one of the·two learned counsel who represented the applicant/accused in this application. The other advocate ,Tllo also represented the applicnnt/accusec1 jointly with Mr. Nc;alo is'1i:r. Hahatane. It is ••••• "/3 " 3 It is Hr. Mahatane ii1. fact who also represented the ap:,_Jlicant/a.ccused at the trial in the subordinate court. Mr. Lundup learned S·!;ate Attorneyp who also featured at the trial and conducted the prosecution therein, also appeared for the Republic .,in this application. I must hasten to state that this application was hotly constested, and for that reason the same has been exhaustively argued by cotmsel for both parties. I to.lee the opporhmi ty to thank counsel for the parties for their invaluable assistence they have rendered to this court through their able submissions. Indeed, the suhuissions that have. been made by the cou:;_1sel for the. parties in this case

are q_uite exhaustive, but the same did not go beyond what is contained in the record of the trial court. For t:12.t reason, without necessarily going over tl10se extensive subrnissi,ons·, I will only, for purposes of this.application, discuss and consider juGt the salient points which h4ve been brought out from those submissionss and which points inevi tatly fall .for consideration and determinatmn by t~1is court when it sits to hGar and decide the applicants pending appeal. I Before proceecling with my discussion leading to the doteriina tion .1 • t . for • . t . of this application, I must remind r'.iyself of the ~.onlll. ions · gran, +AG an application of this nature as are contained in section 368(1} ·c.P.A. 85 9 under which ti1i3 application has been filed. There is only one condition under the said section which will entitle a court to c;rant bail to an accused person or a convict pcmding the c1:t\.1ri!;irn~tiuh of his appeal. That condition is that 9 there 1:iust be reasonable c2use to be recorded by the cou:d in writing to justify the granting of s1-.1.cb bail. My immediate task in this application is therefore to see fron the evidence and the sub,dssions made by counsel for the part:L0s 1 whether reasonable cause exists in this case to entitle this court to 0 rant this application. I will now go over the salient legal points in this cas0, .. wh.:i,•h stand out clearly

lilrn iJromontories in the vast sea of eviclenco in this case. I will •••••••• /4 • • • Cl 0 4 I will of necessity have rocourse to th2 sections of the laws cited in the chc::rge 9 which t:10 proseoution allege to create the o.ff onces in the , I two counts in this case. In fact the two counts in the c}1cr0 e are like iwin counts, with the only difference that the first coun·t is an ordinary offence under the Bxolmnge Control Statute, and punishable therGunder with an ordinary 1,"ii..minluont, while the socond count is 8Jl ordinary- cum-extraordinary ofl"once, that is, economic offence 9 punisho.,ble with an extraordinary pu.Ylishuont unrl.er the Economic and Organized Crine Control Act No. 13/19134, The first salic ;t legal point that stands out cleo.rly o.n::l which 0 shall hEl.ve to be d&t2ruined by this court on appeal is th2.t of interpretation of section 24 of t11e Exhange Control Ordinance, Cap. 294 9 tu,der which the two counts in ttis case were preferred. The learrn:,d co·L,nsel for I. the applicant stroDgly subr:ii tted that that section does not crente any offence punishatle 1-1.nc1er paragraph 1(1) of Part II of the 5th Schedule to Cap. 294, All thst that soction does 9 is merely to define or describe the person who is covered under that section, and. the circ1..un,s-t:::nces which give rise to 'the prohibition set out thc~rein. In the ·sane soctio:ri. the

legislature, i~1 its wisdo1;1, prescribed under subsection 2 the steps or mGasure to be t::✓L:m, wh,Jre the prohibit.ion in question hc,s b.2en contravened. e,ith(~r 1Jy dQlay (s. 24(1) (a) or by cessati9n (s. 24,1) (b) • .... . . . -.·.1 . The learned counsd :for the cp)licant strongly argued that the punishment provided under parc(,;rnph 1(1) of Part II of the 5th Schedule to Cap. 294, is not raeant for defaulters who are described in section 24 Cap. 294, otherwise t/10 provision under subsection 2 of section 24 would be rendered ri1eaningless. It will, I believe 9 be of advo.nt2,ge t,) set out in full the whoLi provisions of section 24 Cap. 294. 11 24(1) Except with t~:..; pernission of the Treasury 9 no ~Jorson :cosiJ.ent in the· Territory \Tt10 has a right ( wheth,.:,r pres.:mt or future O.iJ.d whether vested or contingcmt) to receive any specifi2d currency, or to _rdceive from a person outsic1e thu Scheduled territories a payment in East African • sh.i.,J.lings, shall do 9 or refrain from doing, any act wi t~1 i:nccmt to sGcure or shall do 2.ny act w~1ich involvcs 9 is in association with o:;_• is preparatory to any transaction socuringg (a) tho, t •..... /5 • .,. ,. •... -· ... 5 • •• ,/,,..J I (a) that the receipt by him of the whole or part of thot ctrrrency or, as the-case may be 9 of th2t_paynent in East African shillines? is delayed; or (b) that the currency or

pay111;mt ceases, in whole or in p.::1.rt, to be receivable by hi.L1g· Provided t'.12.t ,1othing in this subsection- (i) shall un1ess .the Treasury otherwise directs 9 ir:1pose on nDy person any oblig:1tion, in ral2tion to any debt arising in the carryj_21.g on of any trade or busj_nbss 9 to procure the payi:lent thereof at c,-,,:ry earlier time than .:i,.s custoiD.ary in the course of that trade or business; or (ii) shall, unless the Treasury otherwise directs, prohibit any transfer to a person resident in the Territory and not elsewhere of any right to receive c.my specified currency or pa.yr;ient in East _\frican shillings. (2) Where a person hc1s contravened the provisions of subsection (1) of this section in relation to any specified currency or 1xi.y1,1ent in East African Shillin:;s, the Treasury nay give to hin or to a-'.1.y other person who appears to the Treasury to be in a position to give effect thereto (being a person in or resident in the Territory) such directions as appear to the Treasury to be expedient for the purpose of obtaining or expediting the roceipt of the currency or payment in quostion, and, without prejudice to the c:;enorality of the preceding provisions of this subsection, may direct th::d; there shall be assigned to the Treasury or to such person as may be specified. in the directions .the right to receive t~1e currency or payment or enforce any

security for the receipt thereof. 11 Indeed, the 2.1.1ove quoted section provides in its subsetion 2 a corrective measure wl:ere a person violates the prohibitions in that section, which are ·Lie subject of the charge in this c.'J.se. It is then a pertinent question for one to ask wlwther it is p2rrnissible and lawful for the pros8cution, and for th2 court at that 9 to prosecute.rind punish with imprisonment~ a defaulter of the prohibitions conto,inod in section 24 cap. 294, in re::liance on the provisions of par3,3ro,ph 1(1) of part II of tl1e 5t~1 Schedule to Cap. 294, instead of to,king action as provided under subsection 2 of section 24 Cap. 294?. This ••• •.• ./6 ~ • .I ••• 6 This question whici1 is very crucial was not res~lved by the trial court. Mr. Lundu 9 lo2,rn-2d State Attorney, readily conceded t~'lat section 24 Cap. 294 is Bordy a prohibitory sectio!l\ it does not l)y itsolf create 11 on offence. IIowever 9 ):'. Lundu urged th2t the sc1id section creates an offence when it i3 re~d together with para 1(1) of Part II of the 5th Schedule to Ca~). 294, So 9 the whole scenario on this point rqverts us back to the acade,Jic albeit legal arena of interpretation of statutes. Mr. Ngalo subE1itted tlnt, it is legally incorrect to pernit section 24 Cap. 294 to be rec::.d together with para 1(1) of Part II of Cap. 294 as to do so gives rise to an ambiguity. Re urged th21t

Cap. 294 u~1ich is a penal statute, hc.1.s ;:;ot to be strictly interpreted, and any an1)igui ty in that law has to be accorded to the benefit of the accused~ the applicant in this matter. Mr. Ma.hatane 2nd Mr. Nga.lo also pointed out to this court errors of law, which are p::'.tent on tho record and which Mr. Lundu, learned State Attorney, does not o1Jject~ _. The first error is that the Prosecution did not indicate in tho charge sheet 9 which specific arm or petr::tfSraph of section 24(1) the ap 1:;licant/accused transe-ressed. Mr. H0 c1lo and Mr. Mahatnne urged th:t the said section l;as paragraphs (q.) 2J1d (b) 9 ec1ch of which defines a definite and distinct mischief or prohibition. Pa:tagra)h (a) r3l2.t0s to delay_, while paragraph (b) relates to Hr. 1J3alo and Hr. T/Jahatane submitted that t!1e omiss:i.on by the P1;osecution to mc:.ke th0 soid specification renders the c:harge defective and incurrable as it e1~1bo..rrassed the app1licant. Mr~ Ngalo ancl flr. Mahatane also argued that the charge uses the term ~ e d 9 whereas th2,t . tern is not used in section 24 ca:).

294. This means the applicn.nt/accused was charged with so1.1e other offence the cor1rrnission or'· 01;1ission of which is not covered under section 24 cap. Hr. Lundu, loc.rned State Attorney,.strontslY contended that these errors are nonetheless curable under section )388 of the Crii:linal Procedure Act, 85 •. Mr. L-w.1du •••••• /7 • ••• • •• " &. Lundu uay be right or wrong 9 depending on wh8.t the court uill rule on appeal which st:lc;e is yet t.o come. &. Ngalo and I'lr. Mahatane also ar€:,1Ued that the applicant/accused has not been proved beyond reason::,ble doubt that he falls under any of the type or categories of p2rsons - who are defined and described botl1 u;.1.der section r 24 cap. 294 and in paragraph 3(;L)(2) of Part II of the 5th Schedule to Capl 294. Mr. Ngalo o.nc7. I"ir. Mah:1tnne contended th2,t the applico.nt was not an e1;iployee of Tanzanite Wildlife Tours (TWT·: LTD). Applicant.was neither a manciger nor a 1'hno.gin0 director with TWT. Mr. Ngalo 2.nd Hr. Tfb.hatane referred this court to Exhibits n.3 and D.? on this point. They also.cited reBU-la.tion 68 Tn.ble ;;A II and section 120 of the Companies Ordinance, Cap. 21.2 in substonce -t.~1::;t there was no docur.ientary evidence to p::_'oVG that the applicant hdd been ap1Jointed to any one of those positions in Tl· !T company. 1 It is only one A.1<1.X. D1 souza (PW.1) who alleged so in hie, evL\.ence at

the 11 trial. The positions or titles referred to Clre cre.cited'by statute; they cannot just be inpliGd o r . ~ ~ by the•wish of the C112irman of TWT Conpany, thc1.t, is PW. Ill 1 applicant 1 s counsel ar,;,u,":'d. Then Mr. Ngn,lo c1i1d Mr. Mahatane submitted that the exact auount of money owed by AJ3C conpany to TWT is not known and proved. This is so·because PW.l admitted in his 0vidence thc..t he had, at least ;:i.t one occasion, instructed anc1 authorised ABt coL1pany .to pay 30 1 000/= DM to his sister-in- ·1aw in London. Th0rc were other items which PW.l admitted to have.received fror;i ABC on beh 0,lf of 'l1WT in paynent of debts thot were oljtst-1J1ding against ABC. :8ven 2w.9 so adnitted. Mr. lifgalo 3.ml Il'.":r.-. Mahatane also subrni tted. that the applicant was disr:1issed fro11 a.ny cngagew.ent with TWT. This was in 1987 b,~fore these charges were filed in court against the applicant in 1989,. I:Ix. Ngalo asked and wondGrec7. why only the applicant and not n,ny other p:Jrson in TWT, in particul:1r PW.l, wt.ts charged with these offences. Hr. Ngalo subL1itted thn,t what the Republic did to the accused in this cc..se is I prejudicial, it 2.r.:101-mts to a misco.rriage of justice thereby rendered tho proceedings i1;1proper c111d unfair 9 hence null and void. 'l"\1is point was not advert eel to ;Jy the tri.:11 court, but the sarile · is quite crucial on appeal. With

'" •••• / 0 ••• 8 • •• • t With reg2.rd. to the averr.ient in Mr. Lundu coun;.±er affi-:~:::ivi t that the applicant/q,ccused is a person.of dangerous conduct in that ho was wielding his first towards PW.l when he was testifying at the trial, cincl. that the applicant/accused tried to open his brief case immediately after he was • I sentenced, Mr. N~o..lo countered that- the allegation o.bout wiving a fia:tr· in court by the applicant/accused cannot be raisecl before this court; the same ought to he:ve been retised before the trial court which was OIJpowerad to take the a;_:;propriate action on the applicant/accused. I qilite agree with :Mr. Ngalo on that subnission. As to applicc.nt I s act of opening his brief case in co1.1.rt as soon as he was sentenced~ tho.,t act cannot be interpreted as a wron:; o..ct 1 or that the accused intencl.od to barn anyone by nerely opening his brief case. Afterall, Mr. Ngalo o.rgued, there were several polipenen whc surrounded the applicant/accused c.t that material tir.1e so that any suspicion that the applicant had intcmcl.ed to do harn to anybody right in the co1.1rt room is unrrn:1son2ble and ili-conceived and, above all, quite malicious. The foregoin::; salient points or issues which I have sin~:;led out and discussed a.bove, ;-111cl upon most of which the lectrned trin,l Resident Magistrate r;ierely Glossed over nnd neyer resolved, are

quite crucial to the just decision of this cn.se. The sa:o.e issues or points will be hmi11-,:iered at the, pending applicant I s a:;;rµeaL Those issues cannot be decided or determined in this application. Nor is it feasible at present to foresee what this court on appeal will decide about those issues. The applic6.nt's appeal is a first appeal, in which the first appellnte court has a siuilar duty ·like the trial cou:::::t of reassessing and reevaluo.ting the evic'.e1~ce on record in relation to tho law applicable to those issues. There is the evidence of PW .1 upon which -cb8 trial court he:wily based its decison. One may, however, wish to c.sk on appeal whether PW .1 was not an &0000:plioe .,or a.t least a parson with an interest of his own to serve in the mr-.tter, _ thereby requirin 0 corroboration to his t:vidence! The foregoing points in sum, in my view, 1:1clce up to a reason:~ble cause envisaged ,J..'1.Jer section 368 of the C.P.A., 85 to entitle this •ourt to grant bail to the ap:'.)lico.nt pending the deterr,unci,tion of his a~peal. This • ••••••• /9 ( • ,. v· • . ·..- ••• • •• ',-t l This finding of r;iine subsumes r.iy rul:Lnc which I had rese:rved 0;1 the arguments which Mr. Lundu had n:.:ide to the effect that the a.j_),)licant's criminal appeal l~o. 11/19939 which is pending before this court, is legally incomvetent as the same has been inpropGrly file~ to this

court. It is LiY considered view, and I find, that Mr., Lundu I s arc,"lmcnt on that point and in that directionp is premature as this court is not coDpctent at present to entertain and. cl.ecii1.e the validity or otherwise of the Sc'..id pending appeal. Lastly, therG ,·r::w. the prayer in this application for ::i. temporary stay order. After he~ring learned counsel for the applic~nts I 11ade an ordiar staying the execution of the order of attachment th2.t wns :oade by the trial court aGc..:Lnst the properties of a liraited liability conpany styled as Big Gaue Sa.faris,_which was not a party to this case. The stay order which I r.1ade vas tenporary pending the hearing and dotcm~imtion of the ap~licant's apJeal to this court. On the foregoing deliberations I_ grant applicant I s a:r.?lication as prayed. I order t}x1.t the ap;_Jlicant be released on co.sh lx:2.il worth 3 million Tanzanian shillin,.:,8 'to be deposited with the court. Also tlJ.e D.JJj_)li cant should secure two suJ~uties who are Tanzania citizens resi:~e:nt in Arush,a town with land..:,d 1,ro:pcrty in Arushn. town who should sign n. bond. ea.ch worth 10 million r118.~1.za11ian ~billings. '.fuc sureties and tbair landed properties should be scrutinized ·and approved by the .J)istr:i.ct fo.?gistrar before sis>nines t:1eir surety bonds. The accused/applicant should also, surrender his passport or any other travel

documents to the police at Arusha. The a:;,.i)lic.:mt/accused sl1ould inform and report botll to the court and to th-:? police station at Arusha whenever he wishes to trc-nrcl outside the circur:1ference of Arusha and,ICilimanjaro regions. It is o:-c::l.ered accordingly. Application granted as prayed together with the bail co:1cli tions as set out above. '/ t~ ~ M.D. li!C;J'.ALLA, JUDGE. 4/2/1993 I \ ' \ ••• 10 • •• I 4.2.1993 Coram~ M.D. Nchallap J. For Ap})licnnt/Accusedg M/s Ngc:.lo and l'fu:thatane, Advocates. For Republic/Respon:1ent g Mr. Mwaimu State Attorney. ·' ·- Mr. Kigingi~ C.C. Courti Ruling delivered in open court at Arusha in the presence of the parties, this the 4th day of February, 1993. wd~ B.igµ:t of n.ppeal explainad. H~D. NC1:f:tr1JLA 9 JUDGE. 4.2.1993 (M.D. NC:IALLA), JUIJG)1. 4/2/1993. Cora.mg S.J. Lawena Ag. DR. Court: The matter cor:ies for approval of sureties: 1. IVir. Musli11 i'J.ohc.;-,1edtahi Re1:1tula a businessman of Arusha owner of passport No. A 0017089 approved surety for the accused.

2. Mrs. Faye Cecelia, Sims a business woman of Arushn. Holi:.:e:r: ·of passport Noo A 0051013 (identified to the court by Hr. l\;alo Advocate) approved surety for the accused. (.S.J. LAWENA), AG. DBTHICT m--;GI,3TRJ\Rp 4/2/1993. MDN/JJM