Lengawo Moisari Kitesho @ Lekeni & Others vs Republic (Criminal Appeal No. 377 of 2022) [2024] TZCA 1177 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARI3A. J.A., LEVIRA, J.A. And MASOUD, 3 -A .^ j CRIMINAL APPEAL NO. 377 AND 352 OF 2022 LENGAWO MOISARI KITESHO @ LEKENI .......................... 1 st APPELLANT NAMAYAN MELUBO MOISARI @ NICODEM @ ROSIE KUU ...2 nd APPELLANT ABRAHAM HAIYO SIRIA............. . .................................... 3R 0 APPELLANT VERSUS THE REPUBLIC ..... . ............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) fLuvanda. 3.) Dated the 14th day of July, 2022 in Economic Case No. 15 of 2020 RULING OF THE COURT 26th November & 3rd December, 2024 MASOUD. J.A.: Ahead of the scheduled hearing of the appeal before us, which was lodged by Lengawo Moisari Kitesho @ Lekeni, Namayan Melubo Moisari @ Nicodem @ Rosie Kuu and Abraham Haiyo Siria (the appellants herein) against the respondent Republic, an issue on the legal effect of failure to admit and/or endorse the consent to prosecute the appellants arose. The issue relates to one of the supplementary grounds that was

raised by the appellants to the effect that the trial court erred in law by hearing the Economic Case No. 15 of 2020 without having jurisdiction. The substance of the ground had it that the High Court, Corruption and Economic Division, at Arusha (the trial court) had no jurisdiction to hear and determine the case as there was no consent to prosecute the appellants which was duly admitted and endorsed on the record of the trial court, and for that matter, the trial court's proceedings were a nullity. The appellants were represented by Mr. Sheck Mfinanga, Mr. Fridoline Bwemelo and Mr. Zuberi Ngowa learned advocates, while the respondent Republic was represented by Ms. Eliainenyi Njiro, Ms. Rose Sulle, and Ms. Neema Mbwana, all learned Senior State Attorneys. Addressing us on the issue, the learned Counsel for both sides were at one that, the ground of appeal referred above raises a matter of significant importance on the legal effect of failure to admit and/or endorse the consent to prosecute the appellants for economic offences they had, allegedly, committed. They were also at one that based on the record of appeal before us, it was apparent that the consent to

prosecute the appellants was neither admitted nor was it endorsed by the trial court before the trial of the appellants ensued. They were, however, of different views as to the consequences of such omission supporting their rival positions with conflicting decisions of this Court on the matter. On one hand, Mr. Bwemelo relied on the case of Mahada Kipara @ Kaemereri @ Charles v. Republic (Criminal Appeal No. 564 of 2021) [2024] TZCA 963 (3 October 2024) to support his view that the failure to formerly admit and/ or endorse the consent so as to form part of the proceedings meant that the appellants were tried without consent of their prosecution which also meant that the trial court lacked jurisdiction. On the other hand, Ms. Sulle relied on our recent decision in Shamim Omari Mwasha and Another v. Republic (Consolidated Criminal Appeals No. 173 and 182 of 2021) [2024] TZCA 1105 (14 November 2024) which conflicts with our position in Mahada Kipara (supra) to support her view that the matter at stake in the instant appeal has already been resolved and the conflicting position in the previous decisions of the Court to the effect that the omission is a fatal irregularity is no longer a good law.

Upon being probed by us on whether Shamim Omari Mwasha (supra) has had an effect of overruling the previous decisions of this Court in Mahada Kipara (supra), and others that all subscribe to the position on the matter at stake which Mr. Bwemelo is in support of, the learned counsel for both sides were quick to admit that the said decision did not indeed overrule the previous decisions and did not therefore resolve the apparent conflict reflected in those decisions. When probed further by us on the course to be taken by the Court if it is satisfied that there are, apparently, conflicting decisions on the matter which is a subject of the appeal before us, the counsel were at one that the Court should, in the circumstances, consider referring the matter to the full bench of the Court for it to be resolved. And further that, pending the decision by the full bench, the instant appeal be stayed. We have, painstakingly, gone through the decisions of this Court relating to the matter at stake, including those which were not referred to us by the counsel for both sides. They include the cases of Hsu Chin Tai & Another v. Republic (Criminal Appeal No. 250 of 2012) [2014] TZCA 2151 (28 March 2014) and Nassib Abubakar Mwazyega @ Ras v. Republic (Criminal Appeal No. 146 of 2021) [2024] TZCA 576 (18

July 2024) which were heavily relied on in support of the position we took in Shamim Omari Mwasha (supra), on one hand, and the cases of Sefu Abdallah Chombo @ Baba Fatina & Others v. Republic (Criminal Appeal No. 628 of 2022) [2024] TZCA 811 (22 August 2024), and Said Adam Hija v. Republic (Criminal Appeal No. 132 of 2023) [2024] TZCA 761 (19 August 2024) relied on in Sefu Abdallah Chombo @ Baba Fitina and Others (supra), on the other. In Sefu Abdallah Chombo @ Baba Fatina & Others (supra), this Court, as was in Shamim Omari Mwasha (supra), considered the validity of consent issued by the DPP to prosecute the appellants. In the end however, the Court, among other things, held that: "It is dear. ... that no prosecution o f a person charged with an offence related to terrorism and or o f economic nature shaii commence unless there is a consent o f the DPP issued before the commencement o f the trial to prosecute such person. It follows therefore that, if an accused person is charged with any o f the said offences before the High Court and when there is no consent by the DPP to prosecute such a person, the said court would lack jurisdiction to try such

offences and the entire proceedings and the judgment thereof would be rendered a nullity." The Court, in that case, went further to hold that: '7/7 the instant appeal, our scrutiny o f the said consent, although it is indicated that it was issued by the DPP on 7th June, 2022, the record does not bear out that it was received by the trial court because, apart from being stamped, it was not duly endorsed by any court officer to acknowledge and or signify its receipt. Apart from that, the record is also silent as it does not show if the prosecuting Attorney requested to present it in court during the trial. As such, we agree with the submission made by Mr. Ndunguru that, it is not dear on how the said document found its way in the triai court's file....Likewise, in the instant appeal, since the consent o f the DPP was not duly endorsed to prove that it was presented and formally received by the trial court to form part o f the record, we agree with Mr. Ndunguru that the trial court proceeded with the trial o f the appellants contrary to the requirement o f the law and without having the requisite jurisdiction. 6

Such omission had rendered the entire proceedings a nuiiity/' In support of its above findings in Sefu Abdallah Chombo @ Baba Fatina & Others (supra), the Court relied on a number of its earlier decisions in addition to Said Adam Hija (supra). They included Mohamed Mshamu Likulo v. Republic (Criminal Appeal No. 259 of 2022) [2024] TZCA 377 (20 May 2024); Hashim Nassoro @ Almas v. Director of Public Prosecutions (Criminal Appeal No. 312 of 2019) [2023] TZCA 17716 (4 October 2023); John Julius Martin and Another v. Republic (Criminal Appeal No. 42 of 2020) [2022] TZCA 789 (08 December 2022); Maulid Ismail Ndonde v. Republic (Criminal Appeal No. 319 of 2019) [2021] TZCA 538 (29 September 2021) and; Emmanuel Mark Nyambo v. Republic (Criminal Appeal No. 559 of 2021) [2024] TZCA 602 (19 July 2024). In all these cases, the Court nullified the proceedings of the trial court for failure to endorse the consent and/or on account of the same not being reflected in the trial court's proceedings.

However, in the case of Shamim Omari Mwasha (supra), the Court was of the position that: "It is also profound to note that, giving or withholding a consent to prosecute an economic casef is exclusively within the domain and mandate o f the DPP, and the purpose o f the consent is for the DPP to signify his desire and intention to the trial court that he is ready to prove the charge against a suspect. That intention or the substance o f the DPP's consent, which we can also call the spirit o f the consent, cannot be enhanced or be diminished by its endorsement or non-endorsement by any other person or official other than the DPP The consent o f the DPP is the document o f the DPP.,,.Besides, unlike a charge sheet or an information or documentary evidence which are matters o f substantive justice in a case, the need to give consent to the prosecution o f a criminal matter is a matter o f procedure/administrative as it is only required to trigger the hearing o f an economic case, see the Court's decision in Nassib Abubakar Mwazyega @ Ras v. Republic, Criminal Appeal No. 146 o f 2021 [2024] TZCA 8

576 (18 July 2024, TANZLII). We wish to observe that...unless and until a procedural infraction leads to a failure o fjustice, the omission cannot render any courtproceedings invalid." In that case therefore, having heavily relied on its previous decisions in Hsu Chin Tai & Another (supra) and Nassib Abubakar Mwazyega @ Ras v. Republic (supra) and endeavoured to distinguish the cases of Mohamed Mshamu Likulo (supra), Aloyce Joseph v. Republic (Criminal Appeal No. 35 of 2020) [2022] TZCA 771 (5 December 2022), Maulid Ismail Ndonde (supra) and Salumu s/o Andrew Kamande v. Republic (Criminal Appeal No. 513 of 2020) [2023] TZCA 133 (22 March 2023), this Court in conclusion held that the omission to endorse a consent document does not diminish the substance of the consent to prosecute a suspect. It is evident that, in respect of the matter at stake in the instant appeal, our position in Sefu Abdallah Chombo @ Baba Fatina & Others (supra) which was rendered on 22n d August 2024 sharply conflicts with the position we held in Shamim Omari Mwasha (supra) which we handed down on 14th November, 2024. In relation to the

matter at stake therefore, the two cases are a representative of the apparent conflicting decisions of this Court on the matter of the legal effect of failure to admit and/or endorse consent to prosecute. We are, in line with the foregoing, satisfied in the end that all such decisions fortify that the Court is in this appeal confronted by its own decisions which apparently conflict with each other on the matter of the legal effect attaching to the failure to present, admit and/or endorse the consent to prosecute a suspect. Given the thrust of the conflicting decisions of this Court, we are not in doubt that the conflict involves also the certificate issued in accordance with the law to confer jurisdiction to subordinate courts. We have considered the course suggested by the learned counsel for both sides in resolving the apparent conflict on the matter at stake. We did so in the light of the provisions of Rule 4A of the Court of Appeal Rules of 2009 as amended (the Rules) regarding constitution of a full bench of the Court to resolve conflicting decisions which reads thus: R, 4A 1 Where the Chief Justice is o f the opinion that there are grounds for the Court to consider its conflicting decisions, departing from its 10

previous decisions, or that an appeal or application before the Court be heard and determined by a full bench o f the Court, he may constitute a full bench o f the Court o f not less than five justices for the purpose o f considering whether to depart from the previous decision or resolving the conflicting decisions o f the Court or otherwise, or determining an appeal or application, as the case may be/' We also took into account what we held in our previous decisions on the procedure of referring a matter to the full bench of the Court. See for instance, Freeman Aikael Mbowe and the Hon. Attorney General v. Alex O. Lema, Civil Appeal No. 84 of 2001 (unreported); Abualy Alibhai Aziz v. Bhatia Brothers Limited [2000] T.L.R. 288; Ophir Tanzania (Block 1) Limited v. Commissioner General Tanzania Revenue Authority (Civil Appeal No. 58 of 2020) [2021] TZCA 350 (6 August 2021); Mussa Hamis Mkanga and Others v. Godbless Jonathan Lema, Civil Application No. 21 of 2013 (unreported) and; Mussa Arbogast Mutalemwa v. Republic, i i

Criminal Application No. 5 of 1996 (unreported). In the latter case, this Court categorically stated that: "In the event a conflict does exist between the decisions....such conflict will be resolved by constituting a full bench to consider the matter, in an appeal coming before it and involving the issue at hand, and to decide which o f the two views is right As there is no appeal before the Court now, there is no basis for deciding which o f the two views is right" In our case therefore, the appeal before us involves a matter that is a subject of conflicting decisions of the Court as afore shown affecting prosecution, hearing and determination of economic offences in one way or the other. We are, in that respect, of the considered view that there are, in the circumstances, grounds for the full bench of the Court to be constituted to consider and resolve the conflicting decisions of the Court on the matter. Accordingly, we propose a full bench of the Court be convened in terms of the provisions of Rule 4A of the Rules to consider the conflicting decisions on the matter and resolve the conflict or otherwise in accordance with the law. 12

In the event, the appeal stands adjourned to a date to be set by the Registrar and the matter be forwarded to the Hon. Chief Justice for necessary action. DATED at ARUSHA this 2n d day of December, 2024. The Ruling delivered this 3r d day of December, 2024 in the presence of Mr. Fridolin Bwemelo, Mr. Zuberi Ngawa learned counsel for the Appellants, and Ms. Eliainenyi Njiro, Ms. Rose Sulle both learned Senior State Attorneys and Ms. Witness Mhosole, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the oriainal. A. G. MWARIJA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL