By FAUSTINE KAPAMA-Judiciary
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, Panterine
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 improper.
“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). We
find the appeal devoid of merit and accordingly, we dismiss it,” they ruled.
The justices also looked 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 Economic
and Organized Crime Control Act (EOCCA) is twenty years.
Under such circumstances,
the justices invoked their powers under section 4 (2) of the Appellate
Jurisdiction Act to quash such 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.
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 court and
the High Court did not analyze and evaluate the evidence of the prosecution and
that of defence before arriving at their conclusions.
The justices noted in
their judgment delivered recently 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 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 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 analyzed and evaluated the
evidence for both prosecution and defence and finally came to the conclusions
that the prosecution proved its case to the hilt.
They noted 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 were precluded from questioning their
admissibility at appeal stage.
“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.
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.
The accused persons
purported to show that Carlcare International Co. Limited has applied for
Electronic Fiscal Device (EFD) machine at Compulynx (Tanzania) Limited, while
it was untrue.
It was alleged that on
the same day and place in the city, knowingly and fraudulently, the same
accused persons uttered the Form to Compulynx Company, purportedly showing
Carlcare International has applied for the EFD machines, while it was false.
The court was told that
on the same day and by false pretences, the same accused persons obtained the
EFD machines from TRA by false pretending that the machine was to be used by
Carlcare International Company.
Between October 29, 2014
and March 30m 2016 in the city, being officers involved in management of
affairs of companies of Tifo Global Mart (Tanzania) Company Limited and Lotai
Steel (T) Limited, with intent to defraud, Assey and Wei used the EFD machined
to evade Value Added Tax of 1,776,693,465/-.
It was alleged that
within the same period in Dar es Salaam, by their willful acts, all accused
persons caused the TRA to suffer a pecuniary loss of the said amount by
registering the said EFD machine and thereafter used the same to issue fake
receipts in respect of sales made by TIFO and LOTAI companies.
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