CRIMINAL APPEAL NO 533 OF 2022 ALLY HASHIM ATHUMAN VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAMi LEVIRA. J.A.. ISSA. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 533 OF 2022 ALLY HASHIM @ ATHUMAN...........................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Corruption and Economic Crimes Division) at Dar es Salaam) (Banzi, 3.^ dated the 11th day of November, 2022 in Economic Case No. 23 of 2021 JUDGMENT OF THE COURT 7th & 13th June, 2024 ISSA, J.A.: The appellant, Ally Hashim @Athuman was tried at the High Court (Corruption and Economic Crimes) Division at Dar esSalaam with the offence of trafficking in narcotic drugs contrary to section 15(l)(a) of the Drugs Control and Enforcement Act, Cap. 95 R.E. 2019 (the Drugs Act), read together with paragraph 23 of the First Schedule to, and section 57 (1) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019 (the EOCCA). After a ful! trial the appellant was convicted and sentenced to serve 20 years' imprisonment. The appellant's arraignment before the trial court was a result of an accusation that, on 20th March, 2020 at Mailimoja area within Kibaha District in Coast Region, the appellant was found trafficking 82.16 kilograms of narcotic drugs scientifically known as Cannabis Sativa and commonly known as marijiuna or "bang?. The appellant was carrying the said narcotic drugs in a motor vehicle with registration number T688 make Toyota Carina. The appellant pleaded not guilty to the charge. The prosecution fielded eleven witnesses to prove the charge, and after a full trial he was convicted as charged and sentenced as stated earlier. For a reason that will become apparent shortly, we find unnecessary to explore the factual settings giving rise to the appellant's conviction and sentence. Aggrieved by the conviction and sentence, the appellant lodged a memorandum of appeal containing seven grounds of appeal which again for apparent reasons will not be reproduced. When the appeal was called on for hearing, the appellant, with the leave of the Court, filed additional ground of appeal and written submissions to support his appeal. The ground of appeal goes thus: " The tria l Court had no jurisdiction to hear and decide the casd'. The appellant appeared in person and fended for himself. The respondent Republic was represented by Mr. Grey Uhagile, learned Senior State Attorney. Upon inquiry, the appellant opted for the Republic to submit first and he will later respond. Mr. Uhagile taking the floor submitted that, the Republic was supporting the appeal on the additional ground raised by the appellant that, the trial court had no jurisdiction to hear and determine the case. Mr. Uhagile, in his submission pinpointed two irregularities found on the consent of the Director of Public Prosecutions (DPP) to commence the trial under the EOCCA. Firstly, he submitted that, the consent of DPP can be issued by DPP under section 26(1) of the EOCCA and this power cannot be delegated. He added that section 26(2) of the EOCCA, on the other hand, vests similar power to other State Attorneys to issue the consent. In the instant case, the consent which is found on page 4 of the record of appeal has been issued under section 26(1) by Regional Prosecution Officer who had no power to issue the consent under that provision. Therefore, the consent issued was invalid. He buttressed his argument by citing the decision of the Court in Chacha Chiwa Marangu v. The Republic, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5 June 2023, TANZLII). Secondly, he submitted that the said consent failed to mention the provision of law which was contravened. He cited the case of Chacha Chiwa (supra) where the Court stated that, failure to mention a provision in which accused was charged is fatal. Based on these procedural irregularities, Mr. Uhagile urged the Court to allow the appeal and to follow the normal trend of ordering a re-trial as the evidence adduced by the prosecutions during the trial was sufficient to sustain conviction. The appellant, in his reply, welcomed the position taken by the Republic, but he implored the Court not to order a re-trial as the prosecution will get an opportunity of correcting the errors. Unfortunately, he did not specify the said errors in the prosecution case. In view of the above submissions, the issues we have to decide are whether the trial court acted without jurisdiction in entertaining the case before it and what the remedy is. On the issue of jurisdiction, we feel we should first state the law. The appellant was charged with the offence of trafficking in narcotic drugs which is an economic offence according to paragraph 23 of the First Schedule to, and section 57 (1) of the EOCCA. The jurisdiction of the court to try economic offences has been conferred on the Corruption and Economic Crimes Division of the High Court under section 3(3) of the EOCCA. The law also states that, for a trial to commence there must be a consent from the DPP under section 26(1) of the EOCCA or a consent of officer subordinate to DPP under section 26(2) of the EOCCA. Section 26 provides: "26 (1) Subject to the provisions o f this section, no tria l in respect o f an econom ic offence m ay be commenced under this A ct save with the consent o f the D irector o f Public Prosecutions. (2) The D irector o f Public Prosecutions sh aii establish and m aintain a system whereby the process o f seeking and obtaining o f his consent fo r prosecutions o f which sh all require the consent o f the D irector o f Public Prosecutions in person and those pow er o f consenting to the prosecution o f which m ay be exercised by such officer or officers subordinate to him as he m ay specify acting in accordance with his generai or specific instructions. (3) N/A" In the case at hand, the consent was issued under section 26(1) of the EOCCA by the Regional Prosecution Officer instead of the DPP. This was a serious irregularity and was an epicentre of the appeal before the Court. We have said time and again that the power under section 26(1) of the EOCCA is vested in the DPP himself and is not delegable. (See- Peter Kongori Maliwa and 4 Others v. The Republic Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14th June 2023, TANZLII) and Amiri Ally Shaban and Another v. The Republic, Criminal Appeal No. 155B of 2023 [2024] TZCA 35 (14th February 2024, TANZLII). We are of the view therefore that, the trial was conducted without the requisite jurisdiction as the consent was invalid. Further, the consent of the Regional Prosecution Officer conferring jurisdiction on the trial court suffers another anomaly. It did not cite the provision of law creating the offence of trafficking in narcotic drugs, namely: section 15(l)(a) of the Drugs Act. We join hands with the learned Senior State Attorney that, the legal consequence of the omission is to vitiate the trial proceedings as the trial court acted without jurisdiction. (See - Rhobi Marwa Mgare and 2 Others v. The Republic, Criminal Appeal No. 192 of 2005 (unreported), Chacha Chiwa Marungu v. The Republic (supra), and Dilipkumar Maganbai Patel v. The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25th July 2022, TANZLII). In the latter case the Court stated: "The consent and certificate conferring jurisdiction on the tria i court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) o f the EOCCA but referred to the provisions which the appeiiant was not charged with... The certificate and consent were therefore incurabiy defective and the tria i m agistrate could not cure the anom aiy in judgm ent as suggested by the learned State Attorney fo r the respondent The defects rendered the consent o f the DPP and the certificate transferring the econom ic offence to be tried by the tria l court in valid ." We, therefore, agree with the learned Senior State Attorney that, the consent of the DPP conferring jurisdiction to the trial court was invalid and hence the proceedings were a nullity. Consequently, we nullify the proceedings of the trial court, quash the conviction and set aside the sentence thereof. The burning question left to be answered is: what should be the way forward. The learned Senior State Attorney has urged us to order a re-trial as the prosecution had adduced sufficient evidence to sustain the conviction. The appellant, on the other hand, implored us not to order a re-trial, but he failed to expound the reasons to persuade us not to order a re-trial. The law is settled regarding when the Court should order a re-trial. In Fatehali Manji v. The Republic [1966] E.A. 343 the erstwhile East African Court of Appeal stated: In generaI a re tria l w ill be ordered only when the original tria l was ille g a l or defective; it w ill not be ordered when the conviction is set aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to f ill up gaps in its evidence a t the first trial; even where a conviction is vitiated by a m istake o f the tria l court fo r which the prosecution is to blam ef it does not necessarily follow that a re tria l should be ordered; each case m ust depend on its own facts and circum stances and an order fo r a 8 re tria l should only be made where the interests o fju stice require i t " In the light of the foregoing discussion and the fact that, the appeal was allowed for the reason that the consent conferring jurisdiction was defective, the proper course is to order for a re-trial which will serve the best interests of justice. Therefore, in the final result, we order a re-trial before the court with competent jurisdiction. DATED at DAR ES SALAAM this 12th day of June, 2024. M. C. LEVIRA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in the presence of the appellant in person via video facility from Ukonga Prison, and Ms. Laura Kimario, learned State Attorney from Kibaha NPS Office, for the Respondent/Republic is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 9