Jdg Criminal Appeal Ally 2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 32232 OF 2024 (Arising from Economic Case No. 3 of 2023 District Court of Babati at Babati) ALLY ABDILAH………………………..………....... APPELLANT VERSUS THE REPUBLIC …………………………………….…………………RESPONDENT JUDGMENT 3rd March & 8th April, 2025 Kahyoza, J. Ally Abdallah (the appellant) was charged with the offence of unlawful possession of government trophy, to wit, meat of buffalo, convicted and sentenced to 20 years’ imprisonment. He appealed complaining among other things that, the DPP’s consent was defective. A brief background is that the appellant was on 2. February, 2023 found in unlawful possession of government trophy, to wit 27.30 Kg of fresh meat of buffalo equivalent to one killed buffalo valued at USD 1900 which was equivalent to Tzs. 4,446,000.00. He was charged with the offence of unlawful possession of government trophy c/s 86(1) and (2) (c ) (iii) of the Wildlife Conservation Act, [Cap. 283 R.E. 2022] ( the WCA) read together 1 with paragraph 14 of the First Schedule to and section 57(1) of the Economic and Organized Crimes Control Act, [Cap. 200 R.E. 2022]. After trial, the appellant was convicted and sentenced to 20 years imprisonment. The appellant raised seven grounds of appeal, which I will not reproduce them or consider them as the first ground of appeal is sufficient to dispose the appeal. Was the DPP’s consent defective? As brief pointed above the appellant complained that the DPP’s consent was defective. He contended that the Reginal State Attorney in charge who issued the consent had no mandate to do so but the DPP. Ms. Rhoida, the learned state attorney who appeared for Republic supported the appellant’s complaint that the consent was the DPP’s consent was defective. She submitted that the trial court tried the appellant without jurisdiction as there was no valid consent. She avowed that an officer subordinate to the DPP issued a consent under section 26(1) of the Economic Organized and Crime Control Act, [Cap. 200 R.E. 2022] (the EOCCA). The law provides that the officer subordinate to the DPP may issue consent under section 26(2) of the EOCCA and not under section 26(1) of the EOCCA. She 2 contended that consent issued by the officer subordinate to the DPP under section 26(1) of the EOCCA was defective. The defective consent could not give the district court jurisdiction to try an economic offence, she submitted. To support her contention, she cited the decision of the Court of Appeal in Benard Masalu Ngalula v. R. (Cr. Appeal 374/2022) [2024] TZCA 1206, where it was held that an officer subordinate to the DPP has no mandate to sign consent under section 26(1) of the EOCCA. It held further that if the officer subordinate to the DPP issues a consent under wrong section, proceedings are vitiated; the conviction and sentence rendered a nullity. As a way forward, she prayed the court to nullify the proceedings, set aside the conviction and sentence, and to order a re-trial. Indisputably, the trial court’s record portrays that the Regional Prosecutions Officer, who is an officer subordinate to the DPP, issued a certificate of consent under section 26 (1) of the EOCCA. It is now settled that, it is the DPP who has mandate to issue consent to prosecute an economic offence under section 26 (1) of the EOCCA and that the officer subordinate to the DPP may only issue a valid consent to prosecute an economic offence under section 26 (2) of EOCCA. Section 26 of EOCCA provides that- 3 “26.-(1) Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions. The Court of Appeal of Tanzania in Sandu John v. the D.P.P. Criminal Appeal No. 237/2019, Neutral citation [2023] TZCA 17719, Bernad Masalu Ngarurula v. R. (supra), Emmanuel Chacha Kenyaba & 3 others, Criminal Appeal No. 368 of 2020 [2023] TZCA 17823, and Ghati Mwikwabe @ Sasi V. R, (Criminal Appeal No. 305 of 2020) [2023] TZCA 17814, Tanzilii, a few to mention, held that an officer subordinate to the DPP ought to issue a consent under subsection (2) of the section 26 of EOCCA and that the powers of the DPP under subsection (1) of section 26 are not delegable. 4 I am of the firm view that, since the Regional Prosecutions Officer issued the consent under the incorrect enabling provisions of the law, the consent is invalid. Consequently, the trial court proceeded to try the appellant without a valid consent. The trial of an economic offence without consent from the Director of Public Prosecutions (DPP) or an officer subordinate to the DPP, is a nullity. I indubitably conclude that, the trial in the present case was, without a doubt, a nullity. I quash the proceedings and set aside the conviction and sentence. Should this Court order a retrial? Having nullified and quashed the proceedings and set aside the conviction and sentence, the next question is what the way is forward. The Respondent’s State Attorney prayed this court to order the appellant to be tried. It is settled that a retrial may be ordered when the original trial is nullified on account of illegality, only when there is enough evidence. A re- trial will not be ordered when to do so will give the prosecution a chance to fill the gaps in its evidence. The defunct Court of Appeal of East Africa held in Fatehali Manji v. R, [1966] EA 343 that- “In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set 5 aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person”. I had time to go through the proceedings to consider whether there was sufficient evidence to order a retrial. The prosecution alleged that the appellant was found in possession fresh meat of buffalo. I examined the evidence to begin with to find out whether the trophy was properly identified. The prosecution witness was identified and valued the trophy was Christopher Peter Laizer (PwIV), the wildlife officer, who deposed that he went to police he identified the trophy as meat of buffalo. The evidence of identification left much to be desired. According to the record, the witness identified the meat as buffalo meat because the hooves bigger than those of cattle. He added that its head had thick black skin and its horn left curved. I was not satisfied that the witness properly identified and distinguished the buffalo meat from other meats. It is settled that a witness identify the trophy 6 ought to give clear identification characteristics based on his experience and knowledge or scientific characteristics of that trophy. I also examined the record to find out if the exhibit was tendered and disposed properly so that if I order the appellant to be retried, the record will be tendered to support the contention that he was found in possession of the trophy. It is on record that after F. 2449 Sgt. James (Pw1) prayed to tender foreleg and head meat suspected to be meat of buffalo, the court admitted and marked them as Exh. PE.3 without asking the appellant to comment. I wish to reproduce the proceedings as follows- “PW1: Yes, [this] was it is a sulphate bag with fore leg and head of meats suspected to be buffalo meat, since the fore leg and head are in sulphate bags all labeled BAB/IR/456/2023 as you see your honour. I to know the fore leg and heads of suspected to be [one] of buffalo and be party of this case evidence. Court: The foreleg and heads of suspected meat to be meant of buffalo are collectively admitted and marked as exhibit PE.3.” . It is obvious that the trial court did not properly admit the exhibit. As if that was not bad enough, the prosecution prayed to dispose the trophy under section 353(2) of the Criminal Procedure Act, [Cap. 20 R.E. 2022] and 7 the trial court granted the prayer without giving the appellant opportunity to comment. The appellant was not involved in the process of admitting and disposing the trophy. He was denied a fair trial, thus, such proceedings would not be referred to as evidence that the appellant was found in possession of the trophy which was disposed by the court order. It should not escape any one’s mind that disposal of the trophy was required to be ordered in accordance with section 101 of the WLA. Since the exhibit was not properly tendered and disposed to order a trial will be for torturing the appellant as the prosecution will have no exhibit or record to prove that the appellant was found with trophy. Not only that but also to order a retrial will give the prosecution an opportunity to fill the gaps in its evidence of identifying the trophy. In the end, I quash the proceedings, set aside the conviction and sentence and refrain from ordering a fresh trial. Consequently, I order the appellant’s immediate release from prison unless held there for other lawful cause. I order accordingly. Dated at Babati, this 8th day of April, 2025. 8 J. R. Kahyoza Judge Court: Judgment delivered in the virtual presence of the appellant and Mr. Bizimana SA for the respondent. Mr. Shedrack (RMA) present. John R. Kahyoza Judge 8.04.2025 9