THE Director of Public Prosecutions (DPP) has decided to appeal against the refusal by a Dar es Salaam court to admit as evidence a crucial document in 1bn/- economic trial, involving Standard Gauge Railway (SGR) Line implementation project estimated at 15tri/-.
In a notice of intention to appeal filed at the Kisutu Resident Magistrates’ Court on Friday, the DPP indicated that the prosecution would appeal to the High Court to challenge Principal Resident Magistrate Thomas Simba’s ruling delivered on March 25, 2020.
“Take notice that the Director of Public Prosecutions, being dissatisfied with the ruling delivered on March 25, 2020, where the court rejected admission of a prosecution exhibit, do hereby intend to appeal to the High Court against the ruling,” reads part of the notice.
The document sought to be tendered is a Public Procurement Regulatory Authority (PPRA) Investigation Report on review of the project bidding process under which the prosecution has sought to tender in evidence to support the trial of three accused persons.
In the impugned decision, the magistrate ruled in favour of the trio, Reli Assets Holding Company (Rahco) former Director General Benhadard Tito, ex- Rahco Company Secretary Emanuel Massawe and businessman Kanji Mwinyijuma, saying such documents was inadmissible.
The magistrate gave such a decision after going through competing submissions presented by the prosecution, led by officer with the Prevention and Combating of Corruption Bureau (PCCB) Magela Ndimbo and defence counsel Peter Kibatala and Jeremia Ntobesya.
He pointed out that a prosecution witness, Dr Laurence Shirima, who is PPRA Chief Executive Officer, had told the court before producing the intended exhibit that the document was received by his office and later stamped, thus, he could have easily identified it through seals.
According to him, having closely scrutinised the document the magistrate found that the seals alleged to have been stamped on the document were unreadable and that it was uncertain where they came from.
“The document is supposed to be sealed on every page, but even when it was sealed, the seal is unreadable. The witness said he identified the document because of the seal, but it is unreadable.
It is unknown where this document comes from. The court refuses to accept this exhibit,” he ruled. Following such a ruling, the magistrate adjourned the trial to April 1, 2020 for hearing. In the trial, the accused are alleged to have committed the offences between 2014 and 2015.
The accused are charged with conspiracy, abuse of position and occasioning over 1bn/- loss in transactions relating to railway upgrade.
They allegedly conspired to commit the offences contrary to the Prevention and Combating of Corruption Act between September 1, 2004 and September 30, 2015.
It is alleged that on February 27, 2015, at Rahco offices in Ilala District, while discharging his duties, being the managing director of the company, Tito intentionally abused his position by procuring Rothschild (South Africa) Proprietary Limited.
According to the prosecution, such a company was procured as a transaction adviser for the project to upgrade the central corridor rail line in Tanzania by a single source method without the approval of Rahco Tender Board, an act which violated the Procurement Act.
Between March 12 and May 20, 2015, at Rahco offices, Tito and Massawe allegedly abused their positions by signing a letter for appointing the South African company and failure to submit a consultancy services contract between the company and Rahco to the Attorney General for vetting.
The two accused between May 20 and June 20, 2015, at Rahco offices, allegedly abused their positions by signing the consultancy agreement and failure to submit copies to the Attorney General, Controller and Auditor General, Internal Auditor General and Tanzania Revenue Authority.
Between March 1 and September 30, 2015, at Rahco offices, by their wilful acts, all the three accused procured consultancy services from Rothschild (South Africa) Proprietary Limited, which was not rendered, thereby causing loss of $527,540, which was paid as advance.
Tito was charged with an additional count of abuse of his position that on August 18, 2015, allegedly awarded China Railway Construction Corporation construction work of 2km of SGR line at Soga worth $2,312,229.39 without approval of Rahco Tender Board.