THE prosecution yesterday asked the Court of Appeal to nullify the decision by the High Court, which ruled in favour of former Tanzania Revenue Authority (TRA) Commissioner General Harry Kitilya and two others in the 12bn/- money laundering case.
The decision sought to be challenged was
issued by High Court Judge Moses Mzuna on May 6, this year, dismissing
the prosecution’s first appeal against the ruling of the Kisutu Resident
Magistrate’s Court in Dar es Salaam, which removed the money laundering
count against the accused persons.
The prosecution led by the Director of
Public Prosecutions (DPP), Biswalo Mganga and his assistant, Oswald
Tibabyekomya, told Justices Salum Massati, Kipenka Mussa and Augustine
Mwarija that the High Court judge erred in law in holding that the order
striking out the count was an interlocutory order.
They submitted that the High Court judge
erred in law in holding that the republic had the right to amend, alter
or substitute the charge, but did not explore those remedies before
resorting to the appeal and that the room was still open for the
prosecution to seek other remedies.
Assisted by Principal State Attorney
Timony Vitalis and Senior State Attorneys Awamu Mbangwa and Shadrack
Kimaro, Tibabyekomya expounded the grounds of appeal, submitting that
what was contained in the count was an offence, which is complete and
was an independent charge in itself.
He told the court that the act of
deleting the count completely removed the offence as contained to the
charge sheet and put to the rest of the matter in the trial, hence, such
decision had final effect and brought to the end as far as the offence
of money laundering was concerned.
“The decision by the lower court of
striking out the count has final effect and disposed of the rights of
the prosecution. So the holding by the High Court judge that such
decision was interlocutory was wrong because the prosecution has no
right thereafter to charge the respondents on the count,” he argued.
Trial attorneys further told the court
that the holding by the High Court judge that the prosecution had other
remedies to rectify the matter was wrong because he did not take into
consideration the decision of the lower court on the matter, as the
trial magistrate closed all doors for prosecution of doing anything.
The trial magistrate is in record
ruling, “from the definition of trial, it is crystal clear that at this
stage where the investigation of this case is said to be not complete,
this court may not have powers to order amendment, substitution or
alteration of the charge which it has found to be defective…”
Trial magistrate went on, “So an order
for amendment, substitution or alteration of charge can only be made by
the court at such a time when evidence has been given to the court and
not before.”
Tibabyekomya argued that the decision to
find that the prosecution had other options wads made while the order
by the lower court was still intact. Therefore, he said, the decision of
the High Court to such effect could not be implemented and the lower
court was functus officio (adjudicate again).
In response to the submissions by the
prosecution, advocates Majura Magafu, Dr Ringo Tenga, Alex Mgongolwa and
Godwin Nyaisa, asked the justices of the appeals court to dismiss the
appeal in question in its entirety as grounds raised lacked merits and
were misconceived
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