Sefu Abdallah Chombo @ Baba Fatina & Others (Criminal Appeal No. 628 of 2022) [2024] TZCA 811 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA f CORAM: MWARIJA, 3.A.. KEREFU. 3.A., And MAKUNGU. 3.A.^ CRIMINAL APPEAL NO. 628 OF 2022 SEFU ABDALLAH CHOMBO @ BABA FATINA ....................... Is * APPELLANT ABDALLAH MBWANA CHOMBO .... .. ........... . ...... ..... . ........ 2N DAPPELLANT MOHAMED SADIKI KAMALA . ............. ........... . ............ . .... 3 rd APPELLANT ATHUMANI ABDALLAH CHOMBO . ........ .............................. 4 th APPELLANT OMARI HUSSEIN MBONANI . .............. . ................. ....... . 5™ APPELLANT RASHID BILAHI ALLY @ LIPULULU . .................. . ............ . 6 th APPELLANT VERSUS THE REPUBLIC .......... . ..... . ............. . ................ . RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Corruption and Economic Crimes Division at Songea) (Mlvambina, 3.) dated the 16thday of December, 2022 in Economic Case No. 04 of 2022 JUDGMENT OF THE COURT 19th & 22nd August, 2024 KEREFU. 3.A.: The appellants, Sefu Abdailah Chombo @ Baba Fatina, Abdallah Mbwana Chombo, Mohamed Sadiki Kamala, Athumani Abdallah Chombo, Omari Hussein Mbonani @ Msauzi and Rashid Bilahi Ally @ Lipululu (the first to sixth appellants respectively) were jointly and together charged in the High Court of Tanzania, Corruption and Economic Crimes Division, at

Songea, with two counts for the offence of conspiracy to commit terrorist acts and participating in terrorist meetings contrary to sections 4 (1), (2) (b) (iii), 5 (a) and 27 (c) of the Prevention of Terrorism Act, No. 21 of 2002 (the Act) read together with Paragraph 24 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 (the EOCCA) respectively. On the first count, it was alleged that, on diverse dates between 1s t January, 2014 and 13th July, 2020 at various places within Tunduru District in Ruvuma Region and other places within the United Republic of Tanzania, the appellants, jointly and together with other persons who were not brought before the court, conspired to cq mmit a terrorist act, to wit, overthrowing the Government of the United Republic of Tanzania and establish an Islamic State through the use of force and violence, which can reasonably be regarded as having been intended for the purpose of seriously destabilizing the fundamental, political, economic and social structures of the United Republic of Tanzania. On the second count, which was in the alternative, it was alleged that, on diverse dates between 1s t January, 2013 and 13th July, 2020 at Lukumbule Village within Tunduru District in Ruvuma Region, the appellants participated in a meeting knowingly that the said meeting

concerned with an act of terrorism, to wit; planning to overthrow the Government of the United Republic of Tanzania and establish an Islamic State through the use of force and violence, which can reasonably be regarded as having been intended for the purpose of seriously destabilizing the fundamental, political, economic and social structures of the United Republic of Tanzania. The appellants denied the charge laid against them and therefore, the case had to proceed to a full trial. To establish its case, the prosecution called a total of four witnesses and tendered five documentary exhibits. On the other side, the appellants relied on their own evidence in defence as they did not summon any witness. The brief facts of the case and sequence of events leading to the arraignment and conviction of the appellants, as obtained from the record of appeal indicates that, in March, 2020, P (PW), a police officer who was assigned to detect and collect confidential information on various crimes including trans boundary offences was working with the Prevention of Terrorists Authority in Tanzania. In line with his duties, he received information concerning terrorists' acts including, murdering of innocent citizens, burglary of houses and confiscation of properties at Southern Region of Mtwara, Lindi and Ruvuma. It was PW's testimony that they

deployed a combat at Lukumule Village and Mangaka Nanyumbu District at the Mtambaswala border to Mozambique, Tandahimba District together with Newala and Masasi District. PW went on to state that, during the said exercise, they received further information that there were some people who were planning to overthrow the Government of the Unted Republic of Tanzania and establish an Islamic State through a Jihad war. That, some of the said people have moved to Mozambique to be trained and equipped with the necessary techniques of accomplishing their mission as in Mozambique there was a group which was doing the same acts of invading army bases, taking weapons, brutally killing various citizens, confiscate their properties and chase them from their villages, PW stated further that, the said group targeted police officers and citizen who were not ready to cooperate with them. PW testified further that, on 12th July 2020, he received information that some people worshiping at the Mosque of Ansar Sunnah famous known as Masjid Al-Malid at Lukumbule Village in Tunduru District were involved in terrorist acts. That, the said people have conspired to collect youth, motivate them to have strong Islamic faith, hate the Government of the United Republic of Tanzania which they claimed to be of Kafiri and

train them with Jihad techniques to overthrow it. Upon receipt of the said information, they went to Lukumbule Village to arrest the said people but some of them fled to Mozambique where they joined a terrorist group known as Ahai Sunna wa Aljarmaah or Alshabaab of Mozambique, In his testimony, P3 (PW3) supported the narration by PW, and added that, in June, 2020 they went to Lukumbule Village for investigation of the said matter. Subsequently, on 13th July, 2020 they managed to arrest the appellants and brought them to Tunduru Town Police Station, where they arrived at 08:00 hours. While there, they received further information that there were some other suspects at the same Village of Lukumbule who were also involved with the terrorist acts. So, they left Tunduru Town at 12:00 hours and went back, together with the appellants, to Lukumbule Village to arrest the other remaining suspects, but without success. Thus, later, at 11:30 hours they were ordered to go back and took the appellants to Mtwara where they arrived on 14th Juiy, 2020 at 07:00 hours. P6 (PW6) testified that, on the same date he was assigned to record the cautioned statement of the first appellant (exhibit P5) whereas the cautioned statements of the second, third and fifth appellants were recorded by PW and admitted in evidence as exhibits PI, P2 and P3. Then,

the fourth appellant was interrogated by P i (PWl) who recorded his cautioned statement. The said statement was admitted in evidence as exhibit P4. In their testimonies, PW, PWl and PW6 testified that, during the said interviews, the first, second, third, fourth and fifth appellants admitted to have committed the offence together with the sixth appellant with other people who were not arrested. It is noteworthy that, during the trial, all cautioned statements were admitted in evidence after trial within trial following the objections raised by the defence counsel. In their respective defence, apart from admitting that they were all residents of Lukumbule Village and they knew each other, the appellants denied to have committed the offence. Specifically, the first appellant, who testified as DW1 contended that there was no mosque at Lukumbule Village which was used to train and or convince, motivate and mobilizing the youth for terrorist acts. He however admitted that he was worshiping at the Masjid Al-Malid but denied to have been involved in any physical exercises at that mosque and or travelled to Mozambique for the Jihad war. He stated that, he was arrested by police officers on 13th July, 2020 at night hours while sleeping in his house and taken to the Field Force Unit Police Station at Lukumbule Village then, later was taken to Mangaka and Masasi Central Police Stations. Thereafter, in the following day, together

with other appellants, they were taken to Mtwa.ra Central Police Station where they were inspected and interrogated. He also added that the sixth appellant is his village mate and the fourth appellant is his sibling. On his part, apart from admitting that he used to worship together with the third, fifth and sixth appellants at the same Mosque of Masjid Al- Malid, the second appellant (DW2), denied to have been doing any physical exercises at that mosque and or travelled to Mozambique for the Jihad war. He also stated that he lost memory and does not remember any event which happened on 13thJuly 2020. In their testimonies, the third, fourth and fifth appellants, who testified as DW3, DW4 and DW5 supported the evidence of DW1 on how they were arrested. However, they disowned their cautioned statements (exhibits P2, P4 and P3 respectively) alleging that they were forced to sign the same at the police. The sixth appellant, who testified as DW6, stated that he was arrested on 31s t July, 2020 at night at Lukumbule Village and taken to the Min-police post without being informed his offence. On 1s t August, 2020, he was brought to Tunduru Central Police Station where he stayed untill 12th August, 2020, again, without being told his offence. He stated that,

apart from being asked his name, he never recorded any statement at the police and that, he did not know the other appellants prior to the incident. After a full trial, the appellants were found guilty and convicted of the charges in the first count together with the second count, which was in the alternative. They were thus sentenced to serve imprisonment term of twenty (20) years in respect of the first count and thirty (30) years imprisonment for the second count. The said sentences were to run concurrently. Dissatisfied, the appellants have knocked the doors of this Court protesting their innocence. In their joint memorandum of appeal lodged on 30th June, 2023 they raised nine (9) grounds of appeal. In addition, on 16th August, 2024, the sixth appellant lodged a supplementary memorandum of appeal comprised of two (2) grounds and later, oh 19th August, 2024, the appellants, jointly lodged supplementary memorandum of appeal comprised of three (3) grounds making a total of fourteen (14) grounds of appeal, However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal, the appellants were represented by Messrs. Kitara M. Mugwe, Eliseus Ndunguru (the Junior), Edson Mbogoro,

Hillary John Ndumbaro, Frank G. Kapinga and Dickson Pius Ndunguru (the Senior), all learned counsel respectively. Upon taking the floor, Mr. Mbogoro, the lead counsel, prayed to abandon the second, third, fourth, fifth, sixth, seventh, eighth and nineth grounds of appeal in the substantive memorandum of appeal. He then, intimated that, they would argue only the following remaining grounds:

1. That, the learned trial Judge erred in law and facts to try and convict the appellants contrary to the requirement o f the law;
2. That, the learned trial Judge erred in law and facts by failure to evaluate the evidence adduced before him and thus arrived at erroneous decision that the cautioned statements were taken within time;
3. That, the learned trial Judge erred in law and facts to convict the sixth appellant based on the evidence o f co-accused which was uncorroborated; and
4. That, the learned trial Judge erred in law and facts by convicting the appellants while the prosecution case against the appellants was not pro ved beyond reasonable doubt. On the adversary side, the respondent Republic was represented by Mr. Fa raja Nchimbi, learned Principal State Attorney assisted by Ms. Sabrina Joshi, Mr. Ofmedy Mussa Mtenga and Mr. Salimu H. Msemo, all learned Principal State Attorneys and Mr. Valence Mayenga, Ms. Faraja

George, Ms. Clara Charwe and Mr. Ignas Mwinuka, aN learned Senior State Attorneys. At the outset, Mr. Nchimbi declared the respondent's stance of opposing the appeal and intimated that, they would argue the grounds of appeal in the manner proposed above. We appreciate that all learned counsel for the parties have clearly elaborated, at length all grounds of appeal in their submissions. However, for the purposes of our determination, we will mainly consider the submissions made in respect of the first ground specifically on the validity of the consent issued by the DPP to prosecute the appellants. Submitting in support of that issue, Mr. Ndunguru (the Junior) argued that the trial court did not have the requisite jurisdiction to hear and determine the appellants' case because the purported consent of the DPP to prosecute the appellant dated 7th June, 2022 was not formally endorsed by the trial court and indicated anywhere in the trial court's proceedings. He clarified that, initially when he was availed with the record of appeal, he scanned it to ascertain if the said document was issued by the DPP and found that the same was not reflected in the trial court's proceedings and was not part of the record of the appeal, That, he made efforts to peruse the original file of the case and still, the said document

was not there. He contended further that, later, few days, before the hearing of the appeal, he was informed that the said document is available in the court's file. Having scanned it, he noted that it was only stamped but not duly endorsed to prove that it was formerly received by the trial court. It was his argument that, in the circumstances, it is not clear on how the said document found its way in the court's file. Underlining the importance of endorsement of the DPP's consent, Mr. Ndunguru referred us to sections 34 (2) of the Act and section 26 (1) of the EOCCA and insisted that the said consent was supposed to be endorsed by the trial court during; the trial and not otherwise. To support his stance, he referred us to our previous decision in the case of Hashim Nassoro @ Almas v. The Director of Public Prosecutions, Criminal Appeal No. 312 of 2019 [2023] TZCA 17716 and argued that, since the DPP's consent conferring jurisdiction on the trial court to entertain the case was not duty endorsed by the trial court and not part of the trial court's proceedings, the said omission is fatal and had rendered the entire proceedings a nullity. On that basis, Mr. Ndunguru urged us to nullify the entire trial court's proceedings, quash the conviction and set aside the sentences meted out against the appellants and set them at liberty.

In response to that issue, although, FIs. Joshi readily conceded that the said document is not reflected in the trial court's proceedings, she argued that the same was formally filed, received and endorsed by the trial court in terms of section 34 (2) of the Act read together with section 26 (1) of the EOCCA. According to her, there was no distinction between stamping and endorsing a document. That, since the said document was stamped, it is clear that it was endorsed. As such, the learned Principal State Attorney submitted that the case of Hashim Nassoro @ Almas (supra), is distinguishable, That, the facts in that case are not relevant to the current appeal because, in that case the trial originated from the Resident Magistrate which is not the case in the current appeal. She insisted that the procedure of filling the DPP consent in the District and Resident Magistrate's Courts is different from the High Court. To support her proposition, she referred us to the case of Nassib Abubakar Mwazyega @ RAS v Republic, Criminal Appeal No. 146 of 2021 [2024] TZCA 576 and beseeched us to be guided by the said decision. In a brief rejoinder, Mr. Ndunguru challenged the argument made by his learned friend. He argued that stamping a document is different from endorsing it. He thus emphasized that, since the DPP's consent conferring jurisdiction on the trial court to entertain the case was not endorsed by the

trial court and not part of the trial court's proceedings, the trial was illegally conducted. Having considered the rival arguments by the learned counsel for the parties in the light of the record of appeal, we find that the main issue for our determination is whether there was a valid consent of the DPP to prosecute the appellants. Our starting point is the charge which was preferred against the appellants. There is no dispute that before the trial court the appellants were jointly and together charged with two counts for the offence of conspiracy to commit terrorist acts and participating in terrorist meetings contrary to sections 4 (1), (2) (b) (iii), 5 (a) and 27 (c) of the Act read together with Paragraph 24 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA respectively. Pursuant to section 34 (2) of the Act, an offence of this nature must be prosecuted upon issuance of the DPP's consent. For the sake of clarity, section 34 (2) provides that: "No prosecution for an offence under this Act shall be instituted except by or with the consent o f the Director o f Public Prosecutions." Furthermore, section 26 (1) of the EOCCA provides that:

"Subject to the provisions o f this section, no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions." It is clear from the wording of the above provisions that, no prosecution of a person charged with an offence related to terrorism and or of economic nature shall commence unless there is a consent of the DPP issued before the commencement of the trial to prosecute such person. It follows therefore that, if an accused person is charged with any of 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. This Court, has had occasions, previously, to deliberate on such anomalies and held that, a mere presence of the consent of the DPP in the court's file without endorsement or acknowledgment of its receipt cannot legally confer jurisdiction on the trial court, See for instance, the cases of Mohamed Mshamu Likulo v. Republic, Criminal Appeal No. 259 of 2022 [2024] TZCA 377, Hashim Nassoro @ Almas (supra), John Julius Martin and Another v. Republic, Criminal Appeal No. 42 of 2020 [2022] TZCA 789, Maulid Ismail Ndonde v. Republic, Criminal Appeal no. 319 of 2019 [2021] TZCA 538, Emmanuel Mark Nyambo v. Republic, 14

Criminal Appeal No. 559 of 2021 [2024] TZCA 602 and Said Adam Hija v. Republic, Criminal Appeal No. 132 of 2023 [2024] TZCA 761. In all these cases the Court nullified 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. In the instant appeal, our scrutiny of 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 clear on how the said document found its way in the trial court's file. We are mindful of the fact that, in her submission, Ms. Joshi argued that stamping a document amount to endorsement. With profound respect, we are unable to agree with her on that aspect. It is common ground that a document can be stamped by any person at any time and such an act does not signifying an endorsement. For an endorsement of a document to be complete, it has to be signed by an officer authorised to

receive such a document and not otherwise. In the case of Emmanuel Mark Nyambo (supra), having perused the record of the trial court and found that the consent of the DPP was not duly endorsed, the Court stated that: "...Our perusal o f the court records has run into a wall as there is no evidence that the consent was duly endorsed and/or admitted. In consequence, we hold that the consent to prosecute the appellant for the offence charged in the instant case, has no legal force." Likewise, in the instant appeal, since the consent of the DPP was not duly endorsed to prove that it was presented and formally received by the trial court to form part of the record, we agree with Mr. Ndunguru that the trial court proceeded with the trial of the appellants contrary to the requirement of the law and without having the requisite jurisdiction. Such omission had rendered the entire proceedings a nullity. As such we find the first ground of appeal to have merit. Consequently, we hereby nullify the entire trial court's proceedings, quash the judgment and set aside the sentences imposed against the appellants. 16

The subsequent question which crops from the foregoing position is on what should be the way forward. Ordinarily, where the proceedings of the trial court have been nullified on appeal, the common practice and procedure is to order a retrial. Nonetheless, there are some factors which have to be considered before a retrial order is made. The guidance, which in our view did sum up the criteria for ordering a retrial or not, was given in the case of Fatehali Manji v. Republic, [1966] EA 343 when the Court stated that: "...In general a retrial will be ordered only when the original trial was illegal Or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fit! up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person." [Emphasis added]. 17

Being guided by the above authority and taking into account the nature of the offence with which the appellants were charged with, we find it appropriate, for the interest of justice to order a retrial. In the circumstances, we order that, the record be remitted to the trial court for the case to be heard afresh from the stage where the first trial commenced. Meanwhile, the appellants shall remain in custody. We equally order for the said retrial to be expedited. DATED at SONGEA this 22n d day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 22n d day of August, 2024 connected via video facility in the presence of the appellants in person from Songea Remand Prison and Mr. Elipidi Eugeni Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. ][ p E. G. MRANGl . ' V * • * ' I * * a _______________________ _________ _ _ __ _ ^ 7 ’S &} SENIOR DEPUTY REGISTRAR COURT OF APPEAL