AMOS MOSHI RULING 22

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL No. 202408132000022861 (Originating from Economic Case No. 02/2023 from Bariadi District Court) AMOS MOSHI@LUGAILA………..…………..................APPELLANT VERSUS THE REPUBLIC....................................................RESPONDENT RULING 30TH SEPTEMBER2024 F.H. MAHIMBALI, J The appellant herein was arraigned before the trial Court for the offence of UNLAWFULL POSSESSION OF GOVERNMENT TROPHY; Contrary to section 86(1) & (2) (b ) OF THE WILD CONSERVATION ACT CAP 282 R:E 2022 read together with paragraph 14 of the first schedule to , and Sections 57 (1) and 60 (2) of the Economic and Organise Crimes Control Act. 1 It was alleged that the appellant on 20th January, 2023 at Nyamikoma village within Bariadi District in Simiyu region was found in possession of Government trophy to wit; two fresh hindlegs of Zebra and one fresh side ribs of Zebra all equivalent to one Zebra unlawfully killed valued at USD 1200 equivalent to Tshs 2,802,000/=, the property of Tanzania Government. The trial Court after a thorough scanning of evidence on merit, reached its verdict that the appellant was guilty with the offence hence convicted him and sentenced to suffer 20 years imprisonment. Dissatisfied with the conviction and sentence, has approached this Court guarded by three grounds of appeal which all falls under the question of evidence; that the prosecution case was not proved to the required standard and thus the sentenced entered was too excessive. When this appeal came for hearing the appellant appeared in person while unrepresented and Ms. Caroline Mushi learned State Attorney appeared on behalf of the respondent/republic. Before the matters takes the floor, this Court identified legal issue on procedural irregularity as to whether the trial Court on its proceedings dated 29th February 2024 and its subsequent proceedings 2 dated 14th March 2024, it appears the appellant (then accused person was absent - jumped bail) and the prosecution prayed for the issuance of arrest warrant against the appellant and also issuance of summons to show cause against the sureties on the execution of the bond, nevertheless, it appears no order by the trial magistrate on that. Astonishingly the matter proceeded in his absence without a respective accompanying order, thus was it legally proper? Parties were invited to address the court thereto. Ms Mushi on this submitted that upon thorough digest to the lower court's proceedings, as per page 10 of the typed proceedings dated 29th Feb, 2024, the appellant was recorded absent. The Prosecutor had then prayed for the issuance of arrest warrant and summons to show cause against the accused and his sureties respectively. Unfortunately, this prayer was not granted by the court on the issuance of the arrest warrant and summons to show cause. A further astonishing is the post proceedings dated 14th March 2024 in which when the case was scheduled for hearing, the appellant was recorded absent yet the hearing of the case proceeded in his absence until judgment thereof. Ms. Mushi referred section 226 of the CPA which regulates/dictates what to be done where the accused jumps bail. Thus, the trial magistrate 3 ought to have strictly complied with the trial as per law and not on her own assumption. Thus, she conceded that the trial court erred in law. It vitiates all the proceedings thereof. In the circumstances, Mushi prayed for, the matter be reheard from the proceedings of PW3 to the end. On the side of the appellant, he prayed for his grounds of appeal be adopted by the court to form part of his submission and that his appeal be allowed. Having heard the parties to the legal issue raised by the Court and upon scrutiny on the trial Court proceedings, I must state from the climax that the trial court grossly mistakenly to proceed with the matter experte without invoking in the proceedings an order for experte proceedings. The records provides that on 29th February 2024 and its subsequent proceedings dated 14th March 2024, it appears the appellant (then accused person was absent - jumped bail) and the prosecution prayed for the issuance of arrest warrant against the appellant and also issuance of summons to show cause against the sureties on the execution of the bond, nevertheless, there appears to be no order by the trial magistrate on that. Astonishingly the matter proceeded in his absence without a respective accompanying order contrary to the requirement of the law. 4 Now, what is the way forward? in the cases of Adam Angelius Mpondi vs Republic, Criminal Appeal No. 180 of 2018, Loning’o Sangau vs. Republic, Criminal Appeal No.396 of 2013, faced similar situation like this, the court vitiated the proceedings of the trial Court which was conducted on his/her absence, of which I subscribe thereto as per this procedural irregularity pointed out and dully argued, the appeal is allowed by quashing all the proceedings dated from 14th March 2024, judgment and sentence thereof. Instead, I order retrial of the matter prior to the proceedings dated 14th March 2024 expeditiously It so ordered. Right to further appeal is explained. DATED at SHINYANGA this 30th day of September, 2024. F.H. MAHIMBALI JUDGE 5