PAULO MATHEO v REPUBLIC 1995 TLR 144 (CA)

PAULO MATHEO v REPUBLIC 1995 TLR 144 (CA)

Court Court of Appeal - Dodoma

Judge Kisanga AG, Ramadhani CJ and Mfalila JJA

Criminal Appeal No 59 of 1994 B

May 8 1995

(From the decision of the High Court of Tanzania at Dodoma, Maina, J) C

Flynote

Criminal Practice and Procedure - Economic and Organized Crime Control Act 1984

- Requirement for the Director of Public Prosecution's consent to prosecute - Consent

given after trial had commenced - Whether consent as required by the law - Section

26(1) of the Economic and Organized Crime Control Act 1984. D

-Headnote

The trial of the appellant started as an ordinary trial but upon reaching half-way the

character of the offences changed to economic crimes. In compliance with s 26(1) of

the Economic and Organized Crime Control Act 1984, the DPP gave his E consent to

prosecute, the trial continued and the appellant was convicted. The first appellate

court validated the proceedings of the trial court. The appellant further appealed to

the Court of Appeal.

Held:

F (i) The consent of the DPP must be given before any trial involving an

economic offence can commence; the DPP cannot consent retrospectively;

(ii) In this case the consent of the DPP was not given in accordance with

the law.

Case Infomation

Order accordingly G

No case referred to.

[zJDz]Judgment

Mfalila JA delivered the following considered judgment of the court: H

The appellant Paulo Matheo was the first accused at the trial in the District Court at

Dodoma where with six other persons he was charged with two counts involving

robbery and unlawful possession of a firearm. Five accused were acquitted in both

counts, the appellant and the fourth accused were also acquitted on the first count but

were convicted on the second count i.e. unlawful posses- I

1995 TLR p145

MFALILA JA

sion of a firearm, and were sentenced to fifteen years imprisonment. On appeal to A

the High Court at Dodoma, the appeal of the fourth accused was allowed and he was

set free, the present appellant's appeal was only partially successful in that the

sentence was reduced to seven years imprisonment, his conviction was confirmed.

This is his further appeal. B

However in view of what transpired at the trial, it is not necessary for us to go into

the merits of the case. The trial in this case started as an ordinary trial in March 1990,

but mid-way through the trial in October 1991 after nine prosecution witnesses had

given evidence, the character of the offences was changed to economic crimes and the

Director of Public Prosecutions filed both the transfer of C the offences and his

consent as required by s 26(1) of the Economic and Organised Crime Control Act,

1984. However both the consent and the transfer which are in the record of trial

appear to refer to a different case involving different accused persons although the

offence is the same. This means that the trial of the D appellant and his colleagues in

the District Court started without the consent of the Director of Public Prosecutions

in clear violation of s 26(1) which provides as follows:

'26 (1) Subject to the provisions of this section, no trial in respect of an

economic offence may E be commenced under this Act save with the consent of the

Director of Public Prosecutions.'

So that even if the consent filed in record was in respect of this case, it would still F

be invalid because such consent must be given before any trial involving an economic

offence can commence. The trial cannot start and obtain the consent posthumously as

it were, in other words the Director of Public Prosecutions cannot consent

retrospectively. In the circumstances the learned judge on first appeal was wrong to

validate the proceedings in the trial court in the following words: G

'The required consent by the Director of Public Prosecutions was given as

required by law and the transfer of the offence which is an economic offence was also

made.' H

However as indicated there was no consent relevant to this case given in accordance

with the law.

Accordingly we declare the entire proceedings in the trial court null and void and

quash them.

The fate of the appellant in these circumstances has exercised our I

1995 TLR p146

MFALILA JA

A minds. He was sentenced to seven years imprisonment which with remission for

good conduct amounts to a substantive term of four years and some eight months. He

has been in custody since May 1989 this makes it five years to-date. It was in these

circumstances that we did not feel inclined to order a retrial of the appellant. But

taking into account the nature of the offence involved, we decided to B leave the

fate of the appellant into the hands of the Director of Public Prosecutions who will

decide whether to mount a fresh prosecution against the appellant in accordance with

the law. In the meantime, we order the immediate release of the appellant from

prison unless he is lawfully held in connection with some other matter. C

1995 TLR p146

E