The Court of Appeal has dismissed the appeal lodged by tycoon Jayantkumar Chandubhai Patel and others, seeking to challenge criminal proceedings against the “sharks of corruption”, involving theft of 9.7bn/- from External Payments Arrears (EPA) account at the Bank of Tanzania.
Following the court’s decision by Patel, alias Jeetu Patel, and his colleagues, Devendra K. Vinobhai Patel, Amit Nandy and Ketan Chohan Pad will have no other option other than going back to the Kisutu Resident Magistrate’s Court in Dar es Salaam to face the criminal charges they had previously tried to avoid.
A five-member panel of the Court of Appeal, comprising Justices January Msoffe, Steven Bwana, Bernard Luanda, Salum Massati and William Mandia, ruled against the four appellants after observing that the appeal they had lodged lacked merits.
In the appeal, the appellants had opposed the judgment of the High Court to dismiss the constitutional petition they filed with a view of discontinuing the criminal proceedings following remarks by the executive chairman of the IPP Group, Mr Reginald Mengi, describing them as “mafisadi papa’ (corruption sharks).
They had contended that the move by Mr Mengi to describe them as kingpins of corruption, statements that were published in newspapers and aired by television and radio stations, infringed the constitutional presumption of innocence as enshrined in the Constitution of the United Republic of Tanzania.
In the judgment, the justices pointed out that (there were two separate regimes governing the matter, which are civil and criminal before the High Court and Kisutu Resident Magistrate’s Court, respectively and each has separate procedure of conducting its business to its logical conclusion.
They noted further that the appellants were trying to apply civil platform to nullify the criminal proceedings in the name of enforcing basic rights. “But the appellants did not attempt to say under what provisions of the law they were taking such action”, the ruling stated.
The justices questioned whether the course taken to enforce the appellants’ rights was proper, assuming such basic rights were infringed or whether the application to nullify the criminal proceedings by the way of a civil action was sanctioned by the law.
In their submissions, the appellants, through senior advocates Mabere Nyaucho Marando, Richard Rweyongeza, Mpaya Kamara, Joseph Thadayo and Martin Matunda had relied under Section 4 of the Basic Rights and Duties Enforcement Act to support their position.
“We have shown that civil and criminal cases are two separate and distinct matters altogether. Each has its own procedure and generally even the burden of proof is quite different.
As such, it was not proper to seek redress in the High Court through such a novel method,” the justices said. They said, therefore, that the action taken by the appellants was not sanctioned by section 4 of the Act, as it was not lawfully available.
It reads: “If any person alleges that any of the provisions of section 12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available apply to the High Court for redress.”
The justices concluded, “The petition before the High Court was, therefore, misconceived. The same was properly dismissed. That said; the appeal is devoid of merits. The same is dismissed with costs to the respondents.”
Respondents in the matter were Attorney-General (AG) and the Director of Public Prosecutions (DPP), who were represented by Principal State Attorneys Edwin Kakolaki and Kasole Sarakikya, while Counsel Michael Ngalo had appeared for Dr Mengi.
The hearing of the cases against the appellants were suspended in 2009 following a request from defence lawyers to halt the trial, pending the outcome of the petition under which Patel and his co-accused persons sought to have the charges against them in the lower court dropped for mistrial.
They have claimed to have been unjustly ‘condemned’ by the IPP Group boss and decided to resort to redress from the highest Court in the land under Articles 13(14), (5) and (6)(b) and (d) of the 1977 Constitution of the United Republic of Tanzania, as amended from time to time.
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