ECONOMIC APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA ECONOMIC APPEAL NO. 28 OF 2023 (C/fin the Resident Magistrate Court o fArusha, Economic Case No. 73/2020) ATHUMANI S/O IDD FWAJA @ ETASO........................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT JUDGMENT 23rd May; 11 July 2024 D. D. NDUMBARO. J. The appellant Athuman Iddi Fwaja is standing charged with the offence of unlawful possession and unlawful dealing of a Government Trophy contrary to sections 86 (1), (2) (b) and sections 80(1) and 84(1) of the Wildlife Conservation Act No. 5 of 2009 respectively read together with paragraph 14 of the first schedule to section 57(1) and 60(2) of Economic and Organized Crime Control Act Cap 200 RE 2002 as amended by Section 16(a) and 13(b) of Written Laws (Miscellaneous Amendments) Act No.3 of 2016 and convicted to 20 years imprisonment. The fact of the case states, on the 21st day of July 2017 at Endamararieki village within Karatu District Arusha Region, the appellant was found with unlawful possession of 11 elephants' task which is equivalent to six killed elephants valued at United States Dollars 90,000 equivalent to TZS 201,894,300 property of Government of United Republic of Tanzania contrary to law. Dissatisfied with the Judgment and conviction of the trial court, appealed before this Court against conviction and sentence by lodging a petition of appeal with 7 grounds; - 1. The trial magistrate erred in law and fact for holding that the prosecution proves his case beyond a reasonable doubt; 2. The trial Resident Magistrate Court erred in law and fact believing the entire evidence which was adduced by the prosecution that the accused person was arrested by 11 elephant tasks; 3. The trial magistrate erred in law and fact for holding that prosecution witnesses are credible and reliable; 4. The trial magistrate erred in law and fact for holding that evidence of PW4 is very firm and directly linked the accused with the offence at hand; 2 5. The trial magistrate erred in law and fact by holding that the chain of custody of 11 Tasks was established by the prosecution witness was right without presenting the handing over certificate. 6. The trial magistrate erred in law and fact for not considering the defence and evidence which was adduced by the appellant herein. 7. The trial magistrate erred in law and fact for holding the case without considering the mitigating factor which was raised by the appellant herein which is very sick. The appellant sought to move the court to allow his appeal, set aside conviction and sentence and set the appellant at liberty. Parties chose to dispose of the matter by way of written submission. The appellants enjoyed the service of Advocate Venerand Joseph and respondent Republic represented by Godfrey C. Nugu State Attorney. The appellant consolidated the 1st and 4th grounds and argued them together. The appellant argued that the offence was not proved beyond doubt based on the evidence adduced during the trial of the case. Contended that a number of issues were not proved on the required standard, starting with jurisdiction. 3 Argued, section 12(3) of Economic and Organized Crime Control Act Cap 200 RE 2002 vested jurisdiction to DPP or authorized State Attorney to institute economic offences, and section 26(1) of the Act, restricts any economic offence to proceed without the consent of DPP. Argued further, however, in this case, trial commenced without the said consent. Referred to page 6 of trial court proceedings that, the trial commenced on 03/11/2020; the Preliminary hearing was on 20/04/2021, and on 04/05/2024 the defendants raised preliminary objection and it was determined by way of written submission whereby it was overruled on 27/09/2021. On 26/10/2021 hearing of the witness began with evidence of PW1, whereby he tendered exhibit PF 16 which contain exhibit PI (11 elephant Tasks), exhibit P2 four sulphate bags and P3 weighing scale all exhibits were admitted, as it is seen on pages 26-32 of trial court proceedings. On 9/11/2022 the state attorney raised an issue that, the court lacked jurisdiction, that there was no consent and certificate conferring jurisdiction from DPP, and prayed to file consent form. The said consent was filed and received by the court on 23/11/2022. The appellant faulted that, no nullification of previous proceedings was made to that effect, the charge was read over and plea was made, and the matter was fixed for hearing on 24/11/2024 and the ruling of the case to answer was delivered on 07/12/2022. Argued further that admission of exhibits PI, P2 and P3 were tendered and admitted without jurisdiction. There was no certificate for the consent of DPP, this made the trial and the whole proceedings nullity. In support of the argument cited a case of Leonard Zebius @ Buzazi and Thomas Nikalaus @ Shaban Vs Republic consolidated criminal appeal No. 26 and 27 of 2021 HC Sumbawanga. The court nullified the conviction and sentence for lack of jurisdiction. The appellant raised the issue that, the case was transferred from honourable Mwambunga to the honourable Mhenga magistrate without giving reasons contrary to section 214(1) of Criminal Procedure Act Cap 20 RE 2022. The case of Mwantui Omary @ Kisofia and 5 others Vs R consolidated criminal appeal No. 149,150,151, 152 and 153 HC Dodoma that, failure to state reasons for transfer of a case from one judge to another is fatal. On the 5th ground, the appellant argued no receipt was issued to justify the seizure of exhibits PI, P2, and P3 contrary to section 38 of Criminal Procedure Act Cap 20 re 2022, the argument was supported with the case of Omary Am ir @ Mkongwa Vs R Criminal Appeal No. 66 of 2022 H.C Arusha. Further, the appellant faulted that, the evidence of PW4 testifying for independence witness (PW2) contradict, faulted that, no handling over certificate was issued before the court, this is contrary to section 38(3) of Criminal Procedure Act Cap 20 RE 2022. The certificate shows proof of ownership of the 11 elephant tasks belonging to the accused, was issued in his absence, no proof as to ownership. In support of the argument cited the case of Seleman Abdaliah and others Vs R Criminal Appeal No. 354 of 2008. That receipt is to prove that the property seized comes from none but the accused. Argued the chain of custody is shaken in the absence of handling over a certificate. Further the chain of custody was not intact, and there was no chronological documentation of the exhibit. He faulted that, the trial magistrate did not consider the evidence of the accused that, he was arrested at Kondoa on 20 /07/2017 and brought to Babati police station on 21/07/2024, he was badly beaten and forced to sign some papers. Further, he was not accorded with the provision of section 231 of Criminal Procedure Code Cap 20 RE 2022 the right to defend himself on oath or the right to call witnesses which renders the trial nullity. In support of the argument cited a case of Maduhu Sayi Vs R Criminal Appeal No. 360 of 2017 CAT Shinyanga. Faulted further that, the appellant was not asked whether to defend himself with an oath or call a witness. On the seventh ground the appellant argued the trial magistrate did not consider the accused mitigation that is sick, and reduced the sentence, in support of the argument cited a case of Joseph S/O Komanya Vs R Criminal Appeal No. 56 of 2021 HC Mwanza. Further argued, the magistrate did not waive the period from arrest to the judgment contrary to section 172(2) of Criminal Procedure Code Cap 20 RE 2022, in support of the argument cited a case of Lengume Lenemas Lelei Vs R Criminal Appeal No. 420 of 2020 CAT Arusha. That at the time of sentencing trial court shall have to consider the period in which the appellant remained in custody. In reply, the respondent argued that the prosecution proved his case to the required standard and firmly supported the conviction and sentence of the trial court. In 1st to 4th grounds, on the issue of jurisdiction argued the respondent herein requested admission of consent and certificate referring jurisdiction on 23/11/2024, from that time onwards the court was vested with jurisdiction, and it is not mandatory to quash previous proceedings, it is their views that the proceedings were nullified automatically when the respondent raised the issue of jurisdiction and corrected the error and presentencing consent and certificate conferring jurisdiction to the court. On the issue that the case was transferred from Mahumbunga Magistrate to H.G Mhenga without giving reasons thereof, it is an oversight, the reasons for transfer were stated on page 14 of trial court proceedings, despite the fact the provision of section 214 of the Criminal Procedure Act does not lay down the requirement for giving reasons in case of transfer of case to another magistrate is made. Argued, that the same is curable under section 388. On the issue that failure to issue a receipt after seizure of exhibit as per section 38(3) of Criminal Procedure Act Cap 20 RE 2022, argued it is not fatal, supporting his argument by the case of Nyerere Nyague Vs R Criminal Appeal No.67 of 2010 and Gitabeka Giyaya Vs R Criminal Appeal No. 44 of 2020. The respondent strongly disputed the issue of the credibility of independent witness PW2, arguing that credibility can be tested by considering the testimonies of another witness, and the evidence of an independent witness can be impeached if contradicts with other witnesses. In support of his argument cited the case of Goodluck Kyando Vs Republic 2006 TLR 363 and Mathias Bundaia Vs R Criminal Appeal No. 62 of 2004. On the 5th ground, the chain of custody was not intact because the handling of over certificate was not presented before the court. Faulted that evidence of PW4 shows chronological documentation of exhibit PI, 11 elephant tasks, in support of the argument cited in the case of Paulo Maduka Vs Republic Criminal Appeal No. 110 of 2007 that chain of custody is proved by chronological documentation or paper trail from when the exhibit is seized to when it is tendered before the court. The Court of Appeal recently relaxed the principle that, what is needed now is an oral account with a credible witness. Argued, the evidence of PW2, PW3 and PW4 is considered to be credible save for very minor contradiction as stipulated by the trial court on page 12 of its judgment. Argued further that, the claim that the chain of custody was not intact should be disregarded. On the 6th ground argued, the appellant's defence was considered, referring to pages 6 and 7 of the judgment, whereby the trial magistrate summarized the evidence. The issue that the appellant was not asked whether to defend himself with an oath or call a witness is a misconception, the appellant was accorded such right on pages 77 and 78 of court-typed proceedings as per section 231 of Criminal Procedure Act Cap 20 RE 2022. On 7th ground argued, it was not necessary for the trial magistrate to consider mitigation that the applicant was sick, however we agree on the issue that the trial magistrate ought to consider the time spent by appellant in the custody as supported in the case of Lengume Lenemas Lelei Vs R Criminal Appeal No. 420 of 2020 CAT Arusha that, the time spent in custody ought to have been deducted by trial magistrate when sentencing appellant. In rejoinder, retaliated his submission in chief and further argued that section 57(1) Economic and Organized Crime Control Act Cap 200 RE 2002 lacked jurisdiction to hear the case was not adhered to, therefore 10 rendering the procedure null and void. The trial magistrate was replaced without the reasons therefore violating the principle of due process and fairness. Section 38 (2) of Criminal Procedure Act Cap 20 RE 2022 was not adhered to. The receipt was not issued after the seizure of the exhibit, therefore, the integrity and reliability of the chain of custody is shaken and pray the appeal is allowed, the court quashes conviction and sets aside the sentence. Considering the submission of both parties the applicant raised the issue of jurisdiction, as practice demands whenever a party raises a matter of jurisdiction, the court proceeds with the determination of the objection first as in the case of Fanuei Mantiri Ng'unda Vs Herman Mantiri Ng'unda & 20 Others, (CAT) Civil Appeal No. 8 of 1995 (unreported) had this to say " The question o f jurisdiction for any court is basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature ... The question o f jurisdiction is so fundamental that courts must as a matter o f practice on the face o f it be certain and assured o f their jurisdictional position at the commencement o f the trial. ...It is risky and unsafe for the court to proceed with the trial o f a case on the assumption that the court has jurisdiction to adjudicate upon the case." As I hereunder find it safe to determine the jurisdiction issue before all, considering the submission by parties on the first point raised by the appellant that the case was not proved beyond a reasonable doubt because the trial court has no jurisdiction to entertain this matter. Going through trial court proceedings on pages 1-32 shows trial commenced on 03/11/2020; whereby on 20/04/2021 Preliminary hearing commenced, on 04/05/2021 preliminary objection was raised and it was determined by way of written submission and it was ruled out on 27/09/2021. On 26/10/2022 hearing began with evidence of PW1 and PW2, whereby PW1 tendered exhibit PF 16 as exhibit PI (11 elephant Tasks), exhibit P2 four sulphate bags and P3 weighing scale all exhibits were admitted, as it is clearly seen on pages 26-32 of trial court proceedings. On 9/11/2022 the State Attorney raised an issue that, the court lacked jurisdiction, that, there was no consent certificate from DPP, and prayed to 12 file the consent certificate. The said consent was filed and received by the court on 23/11/2022 after the closure of evidence of PW1 and PW2 who were independent witnesses. The trial court commenced without consent and certificate from the Director of Public Prosecutions conferring jurisdiction, and there after accused was sentenced to 20 years imprisonment. Section 26(1) of Economic and Organized Crime Control Act Cap 200 RE 2002 requires that every economic offence under the Act has to be preceded by the consent of the DPP as: - 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. The DPP is mandated to delegate his powers to his subordinates in terms of subsections 2 and 3 of section 26 of the said Act. The sections requires the consent of the DPP must be given before the commencement of a trial, the position is supported in the case PAULO Matheo Vs Republic 1995 T.L.R 144. The matter determined without jurisdiction is nullity, the position is supported by the case of Israel Misezero @ 13 Minani Vs Republic, Criminal Appeal No. 117 of 2006; Madeni Nindwa Vs Republic, Criminal Appeal No. 350 of 2016; Desai Vs Warsama 1967 E.A 351, and Mhole Saguda Nyamagu Vs Republic, Criminal Appeal No. 337 of 2016 unreported where the economic case was tried by the subordinate court without the consent of the DPP and the certificate conferring jurisdiction to that court. In the last cited case of Desai Vs Warsama, the Court held that:- "From the foregoing brief discussion we are satisfied that in the absence o f the D.P.P's consent given under section 26 (1) o f the Act and the requisite certificates under subsections (3) and (4) o f section 12 o f the Act, the trial District Court had no jurisdiction to hear and determine charges against the appellant, as it did. We further firmly hold that the purported trial o f the appellant was a nullity. In a similar vein; the proceedings and judgment made by the High Court dated 8/06/2016 based on null proceedings o f the trial court were also a nullity." Thus, in this appeal the Resident Court of Arusha proceeded with the hearing of the case without the DPP's consent and certificate conferring the jurisdiction, therefore Criminal Case No. 73 of 2020 is considered to be nullity. This makes a judgement in a trial court from proceedings which were a nullity is also a nullity. I therefore quash and set aside the conviction and the sentence. Before I proceed, as to whether to order retrial as per practice. However, I have to warn myself doing so if the rest of the ground has merit. On the issue that case was transferred to a different magistrate, contrary to section 214(1). I found this ground to have no merit. Referring to page 14 of the trial court proceedings shows it was assigned to the Mhenga Magistrate, with stated reasons as per section 214. On the issue that no receipt on the seized exhibit was issued contrary to section 38(2), going through trial court proceedings, it is clear that no receipt was issued, further the said seizure certificate was not tendered before the court. The requirement of receipt is mandatory to verify ownership of the seized exhibit, the position is supported by the case of Andrea Augustino and others Vs Republic No. 365/2018, which held that;- 15 'The whole purpose o f issuing receipt to the seized items and obtaining the signature o f the witnesses is to make sure that the property seized came from no place other than the one shown therein. I f the procedure is observed or followed, the complaints normally expressed by suspects that the evidence arising from such search is fabricated will to a great extent be minimized" The appellant drew the attention of the court in section 38 (2) of CPA Cap 20 which provides " Where anything is seized in pursuance o f the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing, being the signature o f the owner or occupier o f the premises or his near relative or other person for the time being in possession or control o f the premises, and the signature o f witnesses to the search, if any " This is to say, the requirement of issuing a receipt is necessary to prove ownership of seized documents or exhibits and to get rid of claims that the evidence from the search is fabricated. However, on pages 14 and 15 of trial court proceedings, it is clear that neither receipt was issued to the appellant nor seizure certificate and handling certificate was tendered before the court, this is to say the ownership of the exhibit was not proved. I therefore found this ground to have merit. On the issue of the trial magistrate's failure to consider time spent in custody the respondent admitted that the time was supposed to be deducted. Therefore, this ground also has merit. Considering that the issue raised by the appellant that the trial court tried the matter without consent and certificate conferring jurisdiction and considering there is merit in other grounds appeal, I find that this appeal has merit I, therefore, quash the sentence and conviction of the District Court of Arumeru Arusha imposed against the appellant. For lack of jurisdiction and order appellant be released in custody unless lawfully ordered otherwise It is ordered accordingly. The right to appeal is explained 17 DATED at ARUSHA this 11 day of July 2024 D. D. NDUMBARO JUDGE 11/07/2024 18