ajali ahmad kisangi kisiki cha mipango vs republic 2008 tzhc 288 18 july 2008

IN T H E MICH C O U R T OF T A N Z A N I A AT .V1TWARA C R I M I N A L AP PEA L NO 33/2006 ( O r i g i n a l ( ' r i m i n a ! ( 'as e No. H 7/ 20 05 o f (he D i s t r i c t ( 'oi/rt o f l . i m / i A t I,i nch He f o r e ; I. A r u f a n i E S O KM) A.IALI AHMAD KISANCI aO K I S 1 K 1 CIIA YIPINCO..........APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT 15/7/2008 & 18/7/2008 Uweycmamu J., Judgment i■ : Pour people were arraigned and charged in L in d i D istrict Court (D C ) C’r. Case 87/2005 o f u n la w fu l possession o fg o v c rn m e n t trophy e/'s (j !{ I ) and (2) o f the W ild life Conservation A ct 12/1974 read together w ith section 56( 1) and 59 (2) and paragraph 16 (d) o f the lico n o m ic and Organized C rim e C on trol A c t, 13/1984 (Section 57( I )., 60(2) and Para. 14(d) C A P 200 R.E. 2002) (hereinafter, the A ct). The appellant Ajuli Ahmad Kisungi W Kisiki cha Mpiii<>o was the 2IKi accused at trial. The 4lh accused was acquitted w hile the Pl, 2ntl and 3ul were convicted and sentenced (o U) y r s im prisonm ent. Prior to that, the 1M and 3,d accused had jum ped bai! so they were sentenced in absentia. A jali Ahmad Kisan^i was dissatislled hence this appeal. The evidence at trial was brief: P W 1 a policeman testified to have received a re jjo rt that there were some local doctors at K itandi village m the home o f the 4jlh;accused cla im in g to have powers to ‘ remove w itc h c ra ft1. 1le w en t to the alleged h o m e together with another policeman PW . They recovered from a bag they found therein a kp h y ih o n skin a n d lio n teeth ’-the alleged gover nm en t trophy admitted in evidence as Pros. Exh. 1. They arrested the landlord (4th accused) and the 1st to 3Kl accused and had them charged with the described offence. In his m e m o r a n d u m o f appeal adopted at the hearing, the appellant faults the DC decision on grou nds that; there was no ev idence to prove that the bag P 1 containing the alleged 'g ove rn m ent t r o p h y 1 belonged to him because there were other people in the room including the other 3 accused at trial, where PI was recovered; that no neutral person testified to have witnessed the search leading to recovery o f P I , while the incident occurred in a village with its leadership and other people. Mr. M k u d e state attorney for the respondent co nce des the appeal. Declining to support conviction, he submits that there was no evidence that the bag in which the g o v e r n m e n t trophy was found belonged to the accused/appellant - that there were four other people in the house in the governm ent trophy were recovered and that the arrest and search did not involve any inde pe nd en t person despite the fact that the offence allegedly occurred in the village with a lot o f other people. May be o f more importance, M r M k u d e submits that the trial was a nullity for reason that the c o u rt la ck e d ju r is d ic t i o n in view o f the clear provisions o f section 26 (2) oi the Act. I have checked the trial court record and verified that indeed, the >nai proceeded in the subordinate court without the Director o f Public Pro se cu tion s’ consent as mandated under section 26 (2) o f the A ct which for ease o f reference provides that: ”26 (1) Subject to the provisions o f this section, no trial in respect o f an economic offence may be com m enced under this act save with consent o f the Director o f Public prosecutions” L a c k o f the D P P ’s consent is fatal and as held by the T C A in Paulo Mathco vi R, (1995) T L R 144, the same fate would befall a trial where the consent is obtained later -after com m e n c e m e n t o f trial. In this case, not only was there no D P P ’s consent but also missing was the certificate o f transfer under S. 12 (3) (5) o f the Act conferring jurisdiction to the subordinate court to try an e c o n o m ic offence, otherwise triable by the high court under that law. In short, the DC had no jurisdiction to try the case. The two mishaps clearly ren d ered the wh ole proceedings in the trial court c o m m e n c in g with trial to s entence a nullity, which I must as a c ons equence q u as h and set aside as I hereby do. Ordinarily I should order a retrial but I will not do that because; having g one through the prosecution evidence on record, I accept the submission by both parties that there was no sufficient eviden ce to prove that the appellant was the possessor or o w n e r o f the recovere d contraband- a recovery m a d e in a room which on the evidence, belo n g ed to a practitioner o f ‘local m e d i c i n e ’. There was no evidence to disprove the a p p ell an t’s detense that he was a patient who had been in the prem is es h i m s e l f seeking treatment. T h e se doubts are more confounded consid erin g the nature o f the recovered (trophy, described in the charge particulars as “one t e e t h o f lio n valued at shs. 1000/= and one python skin valued at Shs. 5000/=. ” A retrial wo uld under the circumstances serve no useful purpose. Before concluding, I find m y s e l f inclined to co m m e n t that even i f the case had been properly prosecuted and the conviction sound, this court would have been duty bo und to examine the appropriateness o f the sentence o f 10 years, in view o f the circumstances o f the case and value o f the alleged ‘gov er nmen t t r o p h y ’. In view o f my decision above however, I will end by ordering immediate release o f the appellant unless he is otherwise held for a different lawful cause. It is so ordered. R.M. Rwcvemamu Judge 18/ 7/2008