Category: Justice

{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.

{Former official with Exim Bank, Neema Kinabo (30), has been sentenced to pay 130m/- or go to jail for five years for laundering money amounting to 125,885 US dollars deposited with the bank for various tourist services for tour operators in Arusha.}

This follows the decision by Resident Magistrate-in- Charge at the District Court of Arusha, Desdery Kamugisha to convict the ex-Operation Manager with the bank’s Arusha Branch, on her own plea of guilt to the count charged contrary to section 3 (k), 12 (a) and 13 (a) of Money Laundering Act.

Neema, who was facing the charge alongside 14 others who denied involvement when they were brought before the court yesterday, failed to pay the fine and the magistrate ordered him to go to jail to serve the custodian sentence.

The prosecution led by State Attorneys Paul Kadushi and Felix Kwetukia, told the court that on diverse dates between June 1 and December 1, 2012, Neema engaged directly in transactions amounting to 125,855 US dollars.

According to the prosecution, the bank official allegedly authorised withdrawal of the amount from a bank account maintained by one Tumaini Raphael Mwandigo, while she knew the said amount was proceeds of a predicate offence of theft.

The prosecution told the court further that the said amount of money was deposited to the bank by various tour operators as payments for several tourist services offered by Ngorongoro Conservation Area Authority (NCAA).

It was further alleged that the said amount of money forms part of 521,165 US dollars, which was intended to be deposited into a bank account but was diverted into various individual USD bank accounts by the ex-Exim bank staff.

State Attorney Kadushi further disclosed that on diverse dates, the third accused person, being Operations Manager of the bank’s Arusha Branch, while knowing that the money in question was proceeds of a predicate offence of theft, authorised the withdrawal of the money.

The case for the remaining accused persons was adjourned to May 26 and 27 for hearing. They are facing a total counts of 319 relating to conspiracy to commit an offence, money laundering and stealing by servant.

The accused persons are charged with alternative counts of fraudulent accounting by clerk. Other accused persons are Bimal Gondalia, Lilian Mgeye, Livingstone Julius, Joyce Kimaro, Daudi Nhosha, Doroth Chijana, Evance Kashebo, Moses Aloyce, Tuntufye Aggrey, Josephat Neki, Genes Masawe, Christopher Lyimo, Gervas Lubuva and Deusdeith Chacha.

{Parties to the 500m/- criminal trial of former Moshi Rural Member of Parliament Thomas Ngawaiya have resolved to settle the matter out of court.}

This was revealed yesterday at the Kisutu Resident Magistrate’s Court in Dar es Salaam when the case came for mention. Advocate Thomas Milinga, for Ngawaiya, told Principal Resident Magistrate Respicious Mwijage that they were negotiating with the prosecution with a view of settling the matter out of court “We pray for adjournment of the case, your honour, to enable us conclude the negotiations,” the defence counsel asked.

The prosecution, led by State Attorney Grace Komba, raised no objection. The magistrate, for that matter, gave the parties a month within which to conclude the negotiations in question and ordered them to report back to the court on June 16. In the case, Ngawaiya, currently a businessman is charged of engaging an unregistered firm to undertake construction works into a hotel building valued at 500m/-.

The ex-MP under Tanzania Labour Party ticket, who later defected to the ruling Chama Cha Mapinduzi, is alleged to have committed the offence contrary to the Contractors Registration Act.

It is alleged that Ngawaiya committed the offence on March 24, last year, at Plot Number 32 along Dosi and Wazani Street at Magomeni Mapipa in Kinondoni District in Dar es Salaam. He allegedly engaged unregistered persons to undertake the construction works at the hotel valued at 500m/-.

{The Court of Appeal has reduced to 15 years jail term the death sentence imposed on a Dar es Salaam resident, Samwel Henry Juma, for killing his lover, Elizabeth Martin. Justices Edward Rutakangwa, Bernard Luanda and Batuel Mmilla reached into such decision after allowing the appeal.}

Juma, the appellant, had lodged against the judgment of the High Court dated May 25, 2011. They reduced such capital punishment into lesser custodian sentence after convicting the appellant with manslaughter for killing his ‘baby’ without intention.

The justices noted in his defence that the appellant had not denied to have caused the death of the deceased, but it was accidental. Evidence showed that the appellant had pushed the deceased, who fell on a sharp tree stump.

They, therefore, quashed the conviction of murder and the sentence of death by hanging and convicted the appellant with the offence of manslaughter.

“Taking into account the period he has been in prison, we sentence him to 15 years imprisonment from the date of delivery of this judgment,” the justices declared in their judgment. Facts of the case show that the appellant and the deceased stayed together for two years as lovers before the latter met her death. Prior to their staying together, the deceased was employed somewhere to take care of a ‘shamba’.

In order to carry out her duties effectively, the deceased was staying in a small house within the said ‘shamba’. It was in that house where the deceased invited the appellant to stay with her.

However, their relationship was not good, as the two used to quarrel and sometimes fought. At one occasion the appellant assaulted the deceased whereby the incident was reported to the police.

The appellant was arrested, charged in court of law, convicted and sentenced to pay a fine of 20,000/- or go to jail for a year in default of paying the fine. The appellant failed to pay the fine and was jailed.

Though it was the deceased who put the appellant behind bars, just for the love of the appellant, she paid the fine after the appellant had spent two weeks in prison and returned to live with the deceased.

However, a day before the deceased met her death, which is on November 22, 2008; the two were at loggerheads again. The deceased could not stomach anymore, she called the village elders with a view to parting company. The elders blessed her request and the two parted company.