RIZIKI NYANDWIKE2

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA CRIMINAL APPEAL NO. 10326 OF 2024 CASE REFERENCE NO. 202404182000010326 (Originating from Economic Case No. 21 of 2021 in the District court of Mbarali at Rujewa) between RIZIKI S/O NYADWIKE……………………………………..…………. APPELLANT VS REPUBLIC…………………………………………………….……….. RESPONDENT JUDGMENT 11th & 18th November 2024 NONGWA, J. Before the district court of Mbarali at Rujewa in Economic Case No. 21 of 2021, the appellant had been charged with two counts of Unlawful possession of government trophy c/s 86(1)(2)(c)(iii) of the Wildlife Conservation Act No. 5 of 2009, read together with paragraph 14 of the First schedule and section 57(i) and 60(2) of the Economic and Organized Crime Control Act, Cap 200. It is alleged that on 6th October 2021, park rangers of Mpanga Kipengele through the information they had, went to the house of the appellant for search and found there in guinea fowl meat, head and two tails of genet. Upon arrest he was interrogated by police and admitted to 1 have committed the crime and charged accordingly. He was convicted on plea of guilty and sentence to twenty (20) years term of imprisonment. Being aggrieved, he has preferred this appeal basing on the following summarized grounds; One, the trial court erred in law and in facts to convict the Appellant as he was tortured by the Game Park Rangers so his confession was due to the torture inflicted by the Game Park Rangers. Second, the trial court erred in law and in fact to convict the appellant in absence of any evidence showing that search was conducted as require by the law. Third, the trial court erred in law and in facts to convict the appellant while there was evidence that those Government trophies belong to appellants’ customer. Four, the trial court erred in law and in facts to convict the appellant relying on the weakness of the appellant to challenge the Prosecution side and five, that the case was not proved beyond reasonable doubt. When the matter came up for hearing, Mr. Lordguard Eliaman learned state attorney represented the respondent while the appellant appeared in person. The appellant had nothing to submit than praying to adopt his grounds of appeal. He prayed for the appeal to be allowed and be set free. 2 Supporting the appeal, Mr. Lordguard SA submitted the records show that the appellant pleaded guilty to economic offence, of which there was to be consent and certificate for the court to conduct those proceedings but records are silent. Referring page 11 of the proceedings, Mr. Lordgard contented that consent was received but is not shown if certificate conferring jurisdiction was ever received which is contrary to section 12(3) of the EOCCA Cap 200, as such the matter was heard by the court without having requisite jurisdiction. The counsel also submitted on the facts that were read to the accused person not matching with the offence as no physical exhibit or inventory (if at all there was any trophy disposed of) that was tendered in court as to exhibit the alleged trophies found in possession of the appellant. Mr. Lordgard also found that the certificate of seizure and cautioned statement were not read out in court to see if the accused was admitting to the contents of the exhibits too. He referred this court to the decision in Maria Emirio Ngoda vs Republic, Criminal Appeal No. 37116 of 2023 [2024] TZHC 258 (16 February 2024; TanzLII) where the court faced similar situation and the inventory was not properly filed but in our case there is none. I have impassively considered the grounds of appeal by the appellant and submission in support of appeal by the state attorney for the 3 Respondent. The appellants’ conviction is based on his own plea of guilty, generally, in terms of section 360 (1) of the Criminal Procedure Act, Cap. 20 except for the sentence, no appeal lies against a conviction grounded on a plea of guilty. However, under certain circumstances an appeal lies against conviction on the accused's own plea of guilty. This was the position stated in the case of Laurence Mpinga vs Republic [1983] T.LR 166 where the High Court among other things, held: "An accused person who has been convicted by any court of an offence "on his own plea of guilty" may appeal against the conviction to a higher court on any of the following grounds: 1. that, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty; 2. that he pleaded guilty as a result of mistake or misapprehension; 3. that the charge laid at his door disclosed no offence known to law; and 4. that upon the admitted facts he could not in law have been convicted of the offence charged.’ As pointed out by Mr. Lordgard that in the case at hand the certificate of seizure and cautioned statement were not read out in court to see if the accused was admitting to the contents of the exhibits too. Thus, even the plea of guilty was imperfect as the exhibits were not read out to the appellant upon being admitted and no inventory or physical exhibit that was tendered 4 to form part of the facts read to the appellant hence the plea itself was equivocal because the charges and the facts read to the appellant were at variance. The whole of the prosecution evidence is doubtful because no trophy was tendered in evidence showing that the appellant was found with the said trophy and if was destroyed then the inventory ought to be in place. In the case of Hussein Rashid Jumanne vs Republic, Criminal Appeal No.55 of 2020 [2023] TZCA 17641 (22 September 2023; TanzLII) the Court refereed Adan Vs Republic (1973) 1 EA 445 which emphasized the manner in which pleas of guilty should be recorded and seven steps to be followed in stated chronological order. One; when a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. Two; the magistrate should then explain to the accused all the ingredients of the offence charged. Three; if the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. Four; the magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the 5 facts. Five; if the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. Six; if the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence and Seven; the statement of facts and the accused's reply must, of course, be recorded. The said steps must be cumulatively complied with in order to secure a plea which is perfect, complete and unambiguous. In the appeal at hand, I agree with the state attorney stand that since the certificate of seizure and cautioned statement of the appellant not being read out after admission are subject to be expunged from records and for the government trophy to be government trophy, there has to be a valuer or expert report showing that what the appellant was found with is really government trophy. As earlier stated, this was not the case in the present matter and the plea of the appellant as earlier stated was equivocal because the exhibits tendered were not read out to the appellant as such the appellants plea was not clear as to what exactly was admitting and even the alleged trophies were not tendered as exhibit be it physical or an inventory (if at all the said trophies were destructed). From what transpired at the trial court with all 6 the procedural gaps and improper admission of the exhibits, the imperfect plea of guilty, it was unsafe to rely on them to convict the appellant. Another issue is on jurisdiction of the court, Mr. Lordguard SA pointed out that records were silent as to certificate conferring jurisdiction to try the matter by the subordinate court. Going through the records it is clearly shown that consent was received but is not shown if certificate conferring jurisdiction was ever received which is contrary to section 12(3) of the EOCCA Cap 200, as such the matter was heard by the court without having requisite jurisdiction. I wish to emphasize that jurisdiction of the court is crucial for it to try a case. In the case of CRDB Bank PLC vs Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637 (22 September 2023, TANZLII), it was held that: ‘It is worth noting that, the question of jurisdiction is crucial and must be determined by the court/tribunal at the earliest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings. Generally, a court is barred to entertain a matter in which it has no jurisdiction.’ In the present appeal it is undeniable truth that the appellant was facing the offence of unlawful possession of government trophy c/s 7 86(1)(2)(c)(iii) of the Wildlife Conservation Act no. 5 of 2009, read together with paragraph 14 of the First schedule and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200. All economic offence per section 3(3) of the EOCCA its trial is within the exclusive jurisdiction of the High Court. Nevertheless, there is an exception to that statutory prescription that a certificate issued by the DPP or any State Attorney authorized by him, may confer jurisdiction on a subordinate court to try an economic offence case. Such a certificate may be issued pursuant to section 12(3) of the EOCCA where an accused person is charged with a pure economic offence as it happened here. Section 12(3) of EOCCA which reads; ‘The Director of Public Prosecution or any State Attorney duly authorized by him may, in each case in which he deems it necessary or appropriate in the public interest by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such subordinate to the High Court as he may specify in the certificate.’ The two documents are in the court file but record is silence how the certificate got its way therein. There is only statement from the state attorney who prosecuted the case of the existence of the consent to try the accused but no statement as to certificate conferring jurisdiction to the district court. 8 Akin scenario was discussed in recent case of Samwel Slaa @ Sarea & Another vs Republic, Criminal Appeal No. 153 of 2021 [2024] TZCA 32 (13 February 2024; TanzLII) the court stated; ‘It is not disputed that though the record of appeal contains copies of the certificate and consent issued by the State Attorney In charge of Arusha Zone on 13th October, 2015, there is no indication that they were duly filed and endorsed by the trial court on any respective date before the trial commenced. The record of appeal leaves no doubt that the appellants were arraigned before the trial court on the same date indicated in the certificate and consent, that is, 13th October, 2015 on which the charge was read over and they pleaded not guilty. However, on that date and the dates which followed until the completion of the trial, there is no indication in the record of appeal that the said documents were the subject of consideration by the trial court before it assumed jurisdiction to try the appellants. Besides, there is no recorded statement from the State Attorney who prosecuted the case notifying the trial court of the existence of those documents.’ In absence of proceedings which presents what was taking place in the court room making indication that it was introduced in record by the state attorney, mere indorsement that it has been admitted saves no purpose and it will be an assumption to gauge that it was filed, received and 9 indorsed without record narrating those events. That is to say certificate conferring jurisdiction to the subordinate court were not filed. It is the position of this Court and that has been well settled in our jurisprudence that, if an accused person is arraigned before a subordinate court and there is there is no certificate to confer jurisdiction on that subordinate court, such a subordinate court lacks jurisdiction to try the economic offence case and the entire proceedings becomes a nullity. See the case of Aloyce Joseph vs Republic, Criminal Appeal No. 35 of 2020 [2022] TZCA 771 (05 December 2022, TanzLII) and Salum Andrew Kamande (supra). The same befalls the present case, the district court of Mbarali had no jurisdiction to try the appellant on economic offence of unlawful possession of government trophies without there being certificate conferring jurisdiction dully issued by a State Attorney in charge of Mbeya Region contrary to the requirement of sections 12 (3) of the EOCCA to try the offence which is the domain of the high court. I therefore, agree with Mr. Lordgard Eliaman state attorney that the trial court proceedings were rendered a nullity. Moreover, as per the rule laid in the case of Fatehali Manji vs The Republic [1966]1 10 EA 343. I find retrial will not serve the interest of justice as the prosecution will go and fill the gaps. With all these shortfalls, I allow the appeal, quash the conviction and set aside the sentence imposed by the trial court together with all subsequent orders. I hereby order immediate released of the appellant from prison forthwith unless he is lawfully held. V.M. NONGWA JUDGE 18/11/2024 Dated and Delivered at Mbeya this 18th November, 2024 in presence of Lordgard Eliaman SA for the Respondent and the Appellant in person. V.M. NONGWA JUDGE 11