amos mahiti machota vs republic 2023 tzca 17811 9 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KWARIKO. J.A.. GALEBA. J.A. And KIHWELO. J.A/) CRIMINAL APPEAL NO. 301 OF 2020 AMOS MAHITI MACHOTA ..................................................... APPELLANT VERSUS THE REPUBLIC................................................................RESPONDENT (Appeal from the Judgment of the Court of Resident Magistrate of Musoma at Musoma) fMushi, SRM- Ext. Jur.^ dated the 18th day of June, 2020 in Extended Jurisdiction Criminal Appeal No. 97 of 2019 JUDGMENT OF THE COURT 30thOctober, & 9th November, 2023 KWARIKO, J.A.: The appellant, Amos Mahiti Machota together with one Mivecha Mahiti Machota (the second accused) who is not a party to this appeal, were initially arraigned before the District Court of Serengeti at Mugumu (the trial court) charged with two counts as follows; one unlawful entry into the game reserve contrary to section 15 (1) and (2) of the Wildlife Conservation Act No. 5 of 2009 ( the WCA) and; two; unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (ii) of the WCA, as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 read together with paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act [CAP 200 R.E. 2002] (the EOCCA), as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. The two denied the charge. However, before the case was scheduled for hearing, the charge against the second accused was withdrawn in terms of section 91 of the Criminal Procedure Act [CAP 20 R.E. 2022], and he was accordingly discharged, following which, the appellant was fully tried. At the end, he was convicted and sentenced to pay a fine of TZS. 100,000.00 or imprisonment of one year for the first count and a fine of TZS. 2,550,600.00 or imprisonment of ten years for the second count. The terms of imprisonment were ordered to run concurrently. Aggrieved by that decision, the appellant appealed to the High Court of Tanzania at Musoma. However, by an order dated 2nd December, 2019 and in terms of section 45 (2) of the Magistrates'Courts Act [CAP 11 R.E. 2019], that appeal was transferred to the Court of Resident Magistrate of Musoma at Musoma (the first appellate court), to be heard and determined by R. S. Mushi, Senior Resident Magistrate with Extended Jurisdiction. The appeal was entirely dismissed for lack of merits. Undaunted, the appellant is before this court on a second appeal. In his memorandum of appeal, the appellant has raised five grounds which for reasons to follow shortly, we find no pressing need to reproduce them herein. We wish, at this point, to revisit the background of the case which led to the appellant's conviction. Kulwa Richard Maganga (PW1) and Chamba Masumbuko @ Mussa (PW3) were game scouts who were stationed at Ikorongo/Grumet Game Reserve. On 31st August, 2018 at 06:00 hours in the company of their colleagues, they were on routine patrol at Romoti River area within the said game reserve. Whilst there, they found human footprints and when they made a follow up, they found two people in possession of one carcass of an Impala. These were the appellant herein and the second accused. Upon inquiry, the two said that they had no lawful permit to enter into the game reserve or possess Government trophies. They were formally arrested and a certificate of seizure was prepared and signed by the suspects and the arresting officers. The suspects were taken to Mugumu Police Station where they were booked and later charged before the trial court as shown earlier. Meanwhile, Wilbroad Vicent (PW2), a wildlife warden identified the Government trophy as a carcass of an Impala valued at USD 390 which was at the time equivalent to TZS. 850,200.00. During trial, a certificate of seizure, a trophy valuation certificate and an inventory for the said trophy were admitted as exhibits PEI, PE2 and PE3, respectively. In his defence, the appellant denied the charge. He explained that on the material date, he was together with the second accused cutting trees at their farm in Robanda Village when game scouts from Ikorongo Game Reserve appeared and arrested them and were sent to police station. He denied to have ever signed the said certificate of seizure. However, at the end of the trial, the appellant was convicted and sentenced as shown above. Before us, when the appeal was called on for hearing, the appellant appeared in person, unrepresented, while the respondent Republic had the services of Mr. Abel Mwandalama, learned Principal State Attorney who was assisted by Ms. Monica Hokororo, learned Senior State Attorney and Ms. Janeth Kisibo, learned State Attorney. On taking the stage to argue his appeal, the appellant only adopted the grounds of appeal and preferred for the respondent's counsel to begin their address, reserving his right to rejoin, should the need to do so arise. Mr. Mwandalama who argued the appeal on behalf of the respondent, intimated to the Court that they were supporting the appeal albeit on a ground different from the appellant's grounds of appeal. He submitted that, since the District Court of Serengeti is not vested with jurisdiction to try offences of economic nature, the Director of Public Prosecution (the DPP) ought to have issued a consent to try the accused and a certificate transferring the matter to that court for the said purpose. However, the learned counsel contended that, the State Attorney In charge of Musoma issued the consent under section 26 (1) of the EOCCA which empowers only the DPP personally to do so. He also argued that the said consent as well as the certificate of transfer of the case to the trial court, issued under section 12 (4) of the EOCCA did not mention the provisions of law creating the said economic offences. He thus contended that since the consent and certificate were issued contrary to the law, the District Court of Serengeti was not vested with requisite jurisdiction to try the case. The learned Principal State Attorney argued further that, the omission vitiated the proceedings before the trial court and those of the first appellate court. He urged us to invoke the Court's revisional powers under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019] (the A3A) to nullify those proceedings, quash the conviction and set aside the sentence imposed upon the appellant. To fortify his contention, Mr. 5 i Mwandalama cited the decision of the Court in the case of Peter Kongori Maliwa & Four Others v. Republic, Criminal Appeal No. 253 of 2020 (unreported). As for the way forward, Mr. Mwandalama submitted that, under normal course of events, he would have prayed for a retrial of the appellant. He however hastened to say that the prayer of a retrial would not be in the interest of justice since there are shortcomings in the prosecution case, such that if a retrial is ordered it will only facilitate the prosecution to fill in the gaps. He mentioned the following shortcomings: one, exhibits PEI and PE2 were tendered in evidence by the prosecutor instead of the witnesses. Two, the appellant was not involved in the disposal of the alleged Government trophy mentioned in the Inventory Form, exhibit PE3; and three, the appellant has already served a substantial part of about four years out of ten years term of imprisonment imposed on him. He therefore urged us to order immediate release of the appellant from custody. For his part, the appellant, being a lay person did not have much to contribute in relation to the legal issues raised by the respondent's counsel. He only implored the Court to order his release from prison. We have considered the submissions by Mr. Mwantiaiama and gone through the consent which was presented before the trial court. It is clear that the consent was issued by the State Attorney In charge under section 26 (1) of the EOCCA while he was not the DPP. For ease of reference, this provision is reproduced hereunder: ”26. -(1) Subject to the provisions o f this section no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions. (2) The Director o f Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining o f his consent for prosecutions may be expedited and mayf for thatpurpose, by notice published in the Gazette, specify economic offences the prosecutions o f which shallrequire the consent o f the Director ofPublic Prosecutions in person and those the power o f consenting to the prosecution of which maybe exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions." 7 i It is noteworthy that, at the time when the alleged offences were committed, the DPP had powers to issue consent in respect of offences specified under Part 1 of the Schedule to the Economic Offences (Specification of Offences Exercising Consent) Notice, 2014, G.N No. 284 of 2014. However, section 26 (2) of the EOCCA (cited above), also empowers the DPP by notice published in the Gazette to establish a system whereby issuing of consent for prosecution of specified economic offences may be done by such officer or officers subordinate to him. Therefore, when the State Attorney In charge issued the consent under section 26 (1) of the EOCCA, he usurped the powers vested upon the DPP. It follows that, since the State Attorney In charge issued the consent contrary to the law, the trial court lacked jurisdiction to try the appellant. When faced with a similar scenario in the case of Peter Kongori Maliwa & Four Others (supra), the Court stated thus: "In this case, consent was issued by the State Attorney In charge instead o f the DPP,: That was a serious irreguiarity as the power to issue consent under section 26 (1) o f the EOCCA is not delegable. It is absolutely vested in the DPP himseff As such the consent under discussion having been issued by a person without mandate 8 was incapable o f authorizing the trial court to try the economic offences." See also; Chacha Chiwa Marungu v. Republic, Criminal Appeal No. 364 of 2020 and Sandu John v. The Director of Public Prosecutions, Criminal Appeal No. 237 of 2019 (both unreported). Since we have found out that the consent was issued by a wrong person hence rendering it invalid, we find no need to determine the shortcomings of its contents as urged by the learned Principal State Attorney. From what we have shown above, we join hands with Mr. Mwandalama that the consent was invalid which vitiated the proceedings of the trial court and the first appellate court. We thus invoke our revisional powers under section 4 (2) of the ADA and accordingly nullify the proceedings of the trial court, quash the conviction and set aside the sentence. Similarly, we nullify the proceedings of the first appellate court as they originated from the invalid proceedings of the trial court. As for the way forward, we are in all fours with Mr. Mwandalama that in the normal course of events, we would have ordered a retrial of the appellant. However, as correctly argued by the learned Principal State Attorney, since the prosecution evidence is wanting, it will not be in the interest of justice to order a retrial. We agree with Mr. Mwandalama that since exhibits PEI and PE2 were erroneously tendered by the prosecutor instead of the witnesses and the non-involvement of the appellant at the time of disposal of the trophy allegedly found in his possession, was against the law; to order a retrial will enable the prosecution to fill in the gaps thus occasioning a miscarriage of justice on the appellant. In the result, we order the immediate release of the appellant from custody unless his continued incarceration is related to other lawful cause. DATED at MUSOMA this 8th day of November, 2023. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL Judgment delivered this 9th day of November, 2023 in the presence of the Appellant in person and Mr. Tawabu Yahya Issa, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.