Director of Public Prosecutions vs Fadhili Athumani Juma & Others (Criminal Appeal No. 226 of 2020) [2020] TZCA 316 (18 June 2020)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: MUGASHA. JA.. NDIKA. 3.A.. And LEVIRA. J.A.^ CRIMINAL APPEAL NO. 226 OF 2020 .RESPONDENTS DIRECTOR OF PUBLIC PROSECUTIONS., VERSUS

1. FADHILI ATHUMANI JUMA
2. CHACHA WILLIAM MASESE
3. CHOJI BATISTA MTANDI
4. SAMO ALLY ISACK
5. MWINYI RAMADHANI MAGWIRA
6. IDDRISSAH TUNGUHOLE
7. MASTER OMARY
8. ISMAIL AMBINDWILE
9. FRANCIS PETER NGOZINGOZI
10. JOSEPH WILSON BULINDA
11. BARAKA PHAUSTINE KAUMA — ^ (Appeal from the decision of the High Court of Tanzania at Dodoma) (Masaju, J,.) dated the 3rd day of April, 2020 in Misc. Criminal Application No. 4 of 2020 .APPELLANT RULING OF THE COURT 17th & 18th June, 2020 MUGASHA, J.A.: In the Resident Magistrate's Court of Dodoma Region, the respondents were charged with various offences laid under the Economic and Organised Crimes Control Act [CAP 200 RE.2002], i

(the EOCC Act) the National Security Act [CAP 47 RE.2002] and the East African Community Vehicle Load Control Act, Act No.l of 2016. As it can be gleaned from the charge sheet, the respondents are alleged to have committed the said offences in various places along Kasumulu-Mbeya-Makambako-Iringa-Dodoma Highway. Since the alleged damage caused was valued at TZS. 14,000,000,000, the respondents herein could not be admitted to bail before the Resident Magistrate's Court and as such, except for the 7th respondent, the rest under certificate of urgency lodged a joint application for bail before the High Court vide Misc. Criminal Application No. 4 of 2020. Having heard the submissions of the parties and thereafter inquiring from the respondents on the respective places of arrest, the learned High Court Judge relied on provisions of section 29 (1) of the EOCC Act and concluded as follows: "...the Resident Magistrate's Court of Dodoma Region in which the Applicants have been indicted, lacks local jurisdiction to deal with the applicants (Respondents herein) according to law save for the 4h and 5th applicants whose arrests were made

within Dodoma City. It follows therefore that this Court as well lacks power to hear and grant this bail application save for the 4h and 5th applicants because other Applicants' arrests were not made within the local jurisdiction of the Court namely, Dodoma Registry, of the High Court of the United Republic of Tanzania though the offence is bailable under sections 29 (4) (d) and 36 (1) of the Economic and Organised Crimes Control Act, [CAP 200]. For that reason, the Court hereby refrains from considering submissions made by the parties hereto." In that regard, in order to cure what he considered to be an illegality, the learned High Court Judge having invoked revisional powers under section 372 of the Criminal Procedure Act, [CAP 20 RE.2002], nullified and quashed the proceedings and orders made by the Resident Magistrate's Court with the following order: "The respondent Republic shall consider section 29 (1) of the Economic and Organised Crimes Control Act, [CAP 200], and deal with the applicants accordingly in respect of their prosecutions, if any in the 3

District Courts or Resident Magistrates' Courts within whose local limits the Applicants' arrests were made as soon as practicable." The learned High Court Judge then proceeded to strike out the application for bail and the Economic Case before the subordinate court which was pending for committal. Unamused with the decision, the Director of Public Prosecutions (the DPP) has lodged an appeal before the Court. However, for reasons to be apparent in due course, we shall not reproduce the grounds of appeal. At the hearing vide a virtual link to Isanga Central Prison where the respondents are remanded, the DPP had the services of Mr. Tumaini Kweka, learned Principal State Attorney, Ms. Lina Magoma, learned Senior State Attorney and Mr. Harry Mbogoro, learned State Attorney. The respondents were represented by Mr. Deus Nyabiri, learned counsel.

In view of what transpired before the High Court, we invited parties to address us on the propriety or otherwise of the Ruling of the learned High Court Judge. Mr. Kweka submitted that, following the inquiry from the respondents as to where they were arrested, the appellant herein was not given opportunity to make a response. He added that, subsequently, the assertions by the respondents formed the basis of the Ruling in which apart from the learned High Court Judge concluding that he lacked jurisdiction, went ahead to strike out the bail application and the pending Economic Case before the subordinate court. He argued this to be a condemnation of the appellant without a hearing which is a violation of a fundamental right and urged the Court to nullify the Ruling of the High Court and direct that the appellant be heard on the matter. On the other hand, after a brief dialogue with the Court, Mr. Nyabiri conceded to the submission put forth by Mr. Kweka and urged the Court to invoke revisional powers under section 4 (2) of the Appellate Jurisdiction Act [ CAP 141 RE.2002] (the AJA) to nullify the Ruling of the High Court and order the determination of the bail application. 5

Having considered the submissions of the parties, before determining the propriety or otherwise of the Ruling of the High Court we have deemed it crucial to revisit what transpired before the High Court. After the learned High Court Judge heard the submissions of the parties for and against the application for bail, at page 53 to 58 the following ensued: " COURT The Applicants' the whereabouts of weighbridges they have been operating and the places where they were arrested, is inquired by the Court. The Applicants hereby replies thus: - Mr. Fadhili Athuman Juma (1s t Applicant): My Lord, I am a weighbridge Operator at Makambako. I was arrested at Makambako, within Njombe District, Njombe Region on the 1st day of November, 2019. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020

Mr. Chacha William Masesa (2n d Applicant): My Lord, I am a weighbridge operator at Wembe Iringa within Iringa District I was arrested on 3Cfh day of October, 2019 at Iringa Municipality. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Choji Batista Mtandi (3 T d Applicant): My Lord, I am a weighbridge operator at Wembe weighbridge I was arrested on the 31/10/2019 at Wembe Weighbridge, Iringa District. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Samo Ally Isack (4hApplicant):

My Lord, I am a Driver based here at Dodoma. I was arrested here at Dodoma on the 31/10/2020 Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Mwinyi Ramadhani Magwira (the 5t hApplicant): I am a Driver based in Dar es Salaam. I was arrested on the 31/10/2020 here at Dodoma City. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Iddrissah Tunguhole (&h Applicant): My Lord, I am the in-charge of Uyole Weighbridge, within Mbeya urban District. I was arrested on the 1/11/2019 at Uyoie weighbridge. Sgd. GEORGE M. MASAJU

JUDGE 27/3/2020 Mr. Master Omary (the 7thApplicant): My Lord, I am a motor vehicle mechanic based at Uyole Mbeya, within Mbeya Urban District I was arrested at Uyole on the 5/11/2019. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Ismail Ambindwile (the 8t h Applicant): My Lord, I am a weighbridge operator at Uyoie Weighbridge. I was arrested on the 5/11/2019 within Mbeya Municipality. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Francis Peter Ngozingozi (the 9t h Applicant): 9

My Lord, I am a shift in-charge, Makambako Weighbridge, within Njombe District. I was arrested on the 6/11/2019 at Makambako Township. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Joseph Wilson Bulinda (the l(fh Applicant); My Lord, I am a cashier at Uyole weighbride Mbeya Municipality. I was arrested on the 5/11/2019 there within Mbeya Municipality. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 Mr. Baraka Phaustine Karuma (the 11t h Applicant): My Lord, I am an Accounts Assistant at Makambako Weighbridge, Njombe District. I was arrested at Makambako weighbridge on the £h day of November, 2020. 10

Sgd. GEORGE M. MASAJU JUDGE 27/3/2020 COURTS ORDERS

1. The Ruling shall be delivered on the 8th day of April, 20202.
2. The parties shall not default appearance in Court. Sgd. GEORGE M. MASAJU JUDGE 27/3/2020." That apart, while the learned High Court Judge did not invite the Republic to make any responses on the assertions made by the respondents pursuant to the Court's inquiry, however, at page 66 of the record he made a finding to the effect that: "This information by the Applicants on where their arrests were made was not controverted by the Respondent Republic." ii

This is not supported by the record and it is glaring that, the learned High Court Judge acted solely on the assertions made by the respondents to strike out the application for bail and the pending Economic case on ground that, both the High Court and the subordinate court lacked requisite jurisdiction on the matter. Besides, he ordered the appellant herein to arraign the respondents in the respective District / Resident Magistrate's courts. This was an infraction which violated the rule of natural justice requiring the court to adjudicate over a matter by according the parties full hearing before deciding a dispute. See: n a t i o n a l h o u s in g CORPORATION vs. TANZANIA SHOES AND OTHERS (1995) TLR 251; and ABBAS SHERALLY & ANOTHER vs. ABDUL S. H. M. FAZALBOY, Civil Application No. 33 of 2002 (unreported) where the Court said: "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasised by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of naturaljustice." 12

Furthermore, a violation of the right to be heard is not only a breach of natural justice but also an abrogation of the constitutional guarantee of the basic right to be heard as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. See - MBEYA RUKWA AUTO PARTS AND TRANSPORT LIMITED VS. JESTINA GEORGE MWAKYOMA, Civil Appeal No. 45 of 2000 (Unreported) where, the Court having considered the English case of r id g e vs BALDWIN [1964] AC 40 it observed that: " 7/7 this country, naturaljustice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the attributes of equality before the law, and declares in part: Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kunachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikiiizwa kwa ukamiiifu..." 13

[See also se lco m g a m in g lim it e d v s g a m in g MANAGEMENT (T) AND GAMING BOARD OF TANZANIA [2006] T.L.R 2000 and m ire a r t a n is m a il a n d a n o t h e r v s s o f i a n ja t i, Civil Appeal No 75 of 2008 (unreported).] In view of the settled law on the right to be heard, we are satisfied that, the appellant was denied the right to be heard and this occasioned a failure of justice on the part of the appellant which as earlier stated was in violation of the fundamental right that a person shall not be condemned without being heard. Before concluding we wish to remark that, since the holding charge sheet does not indicate the places of arrest of the respondents, determining a jurisdictional issue on account of asserted places of arrest was indeed uncalled for, considering that the offences are alleged to have been committed along the Kasumulu-Mbeya-Makambako-Iringa-Dodoma Highway. In the result, we have no option but to declare the Ruling of the High Court a nullity. We invoke the powers vested in us under section 4 (2) of the AJA, and hereby quash the Ruling of the High Court and the proceedings which followed the submission of the appellant's counsel and subsequent orders. We direct, the 14

application for bail be placed before the same learned High Court Judge for determination of the bail application as soon as it is practicable. DATED at DODOMA this 18th day of June, 2020. S. E. A. MUGASHA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL The Judgment delivered on 18th day of June, 2020 in the presence of Mr. Tumaini Kweka, learned Principal State Attorney, Mr. Pius Hilla, learned Senior State Attorney for the appellant / Republic and Ms. Nyanjiga Nyabukika, learned advocate for the Respondents, is hereby certified as a true copy of the original. 15