Duo’s bid to oppose 7-year sentence hits snag

THE Court of Appeal has dismissed the appeal lodged by Chinese Gu Kai and local Entrepreneur Jovina James, opposing seven year-jail-term and payment of over 1.7bn/– compensation to the government for causing loss to the Tanzania Revenue Authority (TRA).

Justices Rehema Mkuye, Pentarine Kente and Paul Kihwelo, added more salt on the wound of the duo, the appellants, after substituting to 20 years imprisonment the seven-year jail term imposed on them by the trial court and confirmed by the High Court after observing that such punishment was illegal.

“Be that as it may be, we are, on the strength of the evidence on record, satisfied that the case for the prosecution was proved beyond reasonable doubt (against the appellants),” they ruled.

The justices added: “In similar vein, we have found that save for the sentence as indicated above, no justification for interfering with the concurrent finding by the two courts below. We find the appeal devoid of merit and accordingly, we dismiss it.”

During hearing of the appeal, the appellants had complained, among others, that the trial court lacked jurisdiction to entertain the criminal trial and that the trial and the High Court did not analyse and evaluate the evidence of the prosecution and that of the defence before arriving at their conclusions.

The justices noted that the certificate issued by the Director of Public Prosecutions (DPP) conferring jurisdiction to the subordinate court wrongly cited both section 12 (3) and (4) of the Economic and Organised Crime Control Act (EOCCA), instead of merely citing section 12 (4).

“However, as rightly argued by the Senior State Attorney this anomaly is not fatal as it did not occasion any injustice on the part of the appellants. We entirely agree with her argument that, since section 12 (4) of the EOCCA was properly cited, the citation of subsection (3) is inconsequential,” they said.

It was their view that the situation would have been different if the certificate was cited section 12 (3) of the EOCCA omitting section 12 (4) of the EOCCA in which case the trial court would have lacked jurisdiction to entertain the case before it.

On the issue of the evidence tendered, the justices said that their examination of record of proceedings bear out that, the two courts below analysed and evaluated the evidence of both the prosecution and the defence and finally came to the conclusions that the prosecution proved its case to the hilt.

They noted in their judgment delivered in Dar es Salaam recently that in their respective defences at the trial the appellants stated that they never gave a cautioned statement and extra-judicial statement, respectively.

But, the justices said, such statements were produced and admitted in evidence without objection by the defence, thus, the appellants are precluded from questioning their admissibility at the appeal stage. They pointed out that it is the duty of the prosecution to prove the case beyond reasonable doubt.

“In the case under our consideration there was ample evidence from the prosecution witnesses that the appellants registered the EFD machine which was utilized in a manner not consistent with the TRA authorization and thereby occasioning loss to it, to the tune of the amount stated above,” they said.

Before penning down, the justices deliberated on the validity of the sentence imposed on the appellants, ruling that the trial court wrongly imposed the sentence of seven (7) years for the offence of occasioning loss to a specified authority.

They thought the trial court wrongly resorted to the milder sentence of seven years while the minimum sentence for that count under the provision of section 60 (2) of the EOCCA is twenty years.  The justices invoked their powers under section 4 (2) of the Appellate Jurisdiction Act to quash the sentence.

“We substitute in lieu therefore, a sentence of twenty years imprisonment. For avoidance of doubt, this sentence will run concurrently with the previously meted sentences in other counts and the order in relation to payment of 1,776,693,465/- remains as it is,” they declared.

It was alleged by the prosecution that in 2014 in the City of Dar es Salaam, all accused persons conspired to commit an offence. The court heard that on October 21, 2014 at Ilala District, with intent to defraud, Jovina and Gu Kai made a false document, which is Customer Information Form.