Criminal Appeal 5 of 2023 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 05 OF 2023 (Originated from KataviResident Magistrate Court in Economic Case No. 4 of2022) MASHAKA s/o MAVUNJE @MPAMBA ..................................... APPELLANT VERSUS THE REPUBLIC ...................... .............. ........................................... RESPONDENT JUDGMENT 2&h February, 2024 &April, 2024 MRISHA, J. In the Resident Magistrate Courts of Katavi, the above named appellant was arraigned before that trial court with five counts. The first count was unlawful possession of Government trophies contrary to section 86(1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009 (the WCA) read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act (Cap 200 R.E. 2019) henceforth the EOCCA. i The allegations leveled against him in relation to that count were that the appellant and Sebastian Kipawa ©Kazyemu, who is not part to this appeal, were on the 13tfl day of April, 2022 at Kashoka area in Katavi National Park within IM panda District in Katavi Region, found in possession of two Elephant tusks and 97 Kgs of elephant meat valued at Fifteen Thousand Dollars (USD 15,0.00) which is equivalent to Tshs Thirty Five: Million One Hundred Sixty Thousand shillings only (Tshs 35,160,000/-) the property of the Government of United Republic of Tanzania without a permit from the Director of Wildlife. In the second count, the appellant and his fellow were charged with the offence of leading organized crime contrary to paragraph 4(l)(a) of the First Schedule to, and section 57(1) and 60(2) of the EOCCA. It was the prosecution Republic allegations that the appellant and his fellow or; diverse dates between 1st day of April, 2022 and 13m day of April, 2022 at unknown place within Mpanda District in Katavi Region intentionally organized a criminal racket to kill the elephant valued at Fifteen Thousand Dollars (USD 15,000) which is equivalent to Tshs Thirty Five Million One Hundred Sixty Thousand only (Tshs. 35,160,000). 2 In the third count, the appellant was charged with the offence of unlawful hunting of an animal contrary to section 47(a)(iii)(a) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Scheduled to, and section 57(1) and 60(2) of the EOCCA. It is alleged by the prosecution Republic in respect of that count that on diverse dates between 1st day of April, 2022 and 13th day of April, 2022 at Katisunga area in Katavi National Park within Mpanda District in Katavi Region, the appellant killed one elephant valued Fifteen Thousand Dollars (USD 15,000) which is equivalent to Tshs Thirty Five Million only (Tshs 35,160,000). In the fourth and fifth counts, the appellant was charged with the offence of unlawful possession of firearm contrary to section 20(l)(b) of Firearms and Ammunition Control Act No. 2 of 2015 read together with paragraph 31 of the First Schedule to, and section 57(1) and 60(2) of the EOCCA. To that count, it was alleged by the prosecution Republic that on 13th day of April 2022 at Kashoka area in Katavi National Park within Mpanda District in Katavi Region, the appellant and his fellow accused person found in possession of one muzzle loading gun (gobole) without authorization. 3 And on the sixth count in which the appellant was charged with the offence of unlawful possession of explosives contrary to section 3(1), (2) and 20(l.)(a) of the Explosive Act, (Cap 45 R.E. 2002), it was alleged that the appellant and his fellow on IT01 day of April, 2022 at Kashoka area in Katavi National Park within Mpanda District in Katavi Region were found in possession of explosives without licence. When the charge sheet was read over and explained to them in a language they clearly understood, the appellant pleaded not guilty to all the above counts. His denial constrained the prosecution Republic to parade a total of five witnesses namely, Baltazar Migodelo (PW1), Nyarobi Kaniki (PW2), Grace Sweetbert Kazinja (PW3), H 790 DC Kalabwe (PW4) and G.8156 CPL Masuka (PW5) and tendered exhibits in order to discharge their legal duty of proving the offence against the appellant who upon being found with a prima facie case, fended for himself, as DW1. After a full trial, the appellant was: found guilty, convicted and sentenced to serve a term of twenty (20) years in prison in respect of all counts and the trial court ordered the imposed sentences to run concurrent. The appellant was dissatisfied with both convictions and sentences and therefore, decided to prefer the present appeal before this court which is predicted into three (3) grounds of appeal. 4 However, on account of reasons to be put apparent in due course, I will not reproduce the said grounds of appeal. At the hearing of the instant appeal, the appellant appeared: in person, unrepresented whereas the respondent Republic had the legal sendee of Ms. God liver Shio, learned State Attorney. The appellant began by adopting his grounds of appeal as stipulated in his petition of appeal in order to form part of his submission in chief. He further prayed to this court to consider those ground of appeal, allow his appeal and set him free. Responding to the appeal, Ms. Godliver Shio supported the appeal not on the grounds of appeal raised by the appellant, but on another. She argued, for instance, that section 3 of the EOCCA which confers the High Court with original jurisdiction to hear and determine cases involving economic offences, declare that the DPP or State Attorney in charge under section 26(1) of EOCCA may transfer the case by issuing the certificate and consent to the subordinate court to hear and determine economic cases. She further argued that although the consent and certificate of the DPP confer jurisdiction to the Court of Resident Magistrate of Katavi at Mpanda was issued and admitted in court, as it is shown at page 3 of the typed trial court 5 proceedings, those documents lack the charging section; thus, it was her argument that the certificate and consent are defective which makes the proceedings of the trial court to be a nullity. To support her proposition, she referred the case of Hashim Nassoro @ Almas v DPP, Criminal Appeal No. 312 of 2019 (unreported). In winding up, Ms. Godliver Shio argued that the appellant was charged with six counts, some are economic offence and non-economic offence, and on every count the offence was mentioned in the charge sheet, but the charging section was not inserted in the consent and certificate conferring jurisdiction. It was her submission that consent and certificate filed on the trial court are defective; thus, the trial court lacked jurisdiction to hear and determine the matter. Hence, the trial proceedings became nullity. On the way forward, the learned State Attorney implored this court to order retrial because according to her, the prosecution evidence is a watertight and it will not give chances for the prosecution to fill the gap. On his side, the appellant being a lay person; had nothing to add in terms of rejoinder. Having heard the submissions of both sides and the case referred therein, I subscribe to the submission of the learned State Attorney for the respondent 6 Republic that since there was a lack of a charging section in the certificate and consent of State Attorney in charge for Katavi, the trial court was not properly conferred with jurisdiction to conduct the trial against the appellant which procedural irregularity made the whole proceedings of the said subordinate court to be a nullity. The root of her argument is that the trial was nullity on account of the defectiveness of the certificate and consent, thus the trial court was not vested with requisite jurisdiction to hear and determine the appellant's case. It is settled law in our jurisdiction that any decision reached by any court of law without jurisdiction is a nullity. In this regard, the Court of Appeal in the case of Fanuei Mantiri Ng'unda v Hrman Mantiri Ng'unda & 2 Others [1995] T.LR. 155 the Court held that: "Zfre question ofjurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature... The question ofjurisdiction is so fundamental that courts must as a matter of practice on the face of it be aware of it" The court of law cannot have power to inquire into and determine any matter brought before it unless it has been conferred with jurisdiction to do so by 7 statute or other means such as charter or commission under which is constituted, and may be extended or restricted by similar means; See Balthazry Kinasha v Paula Bernad Nindi, Misc. Land Appeal No. 69 of 2Q20 (unreported). At this juncture, I find it opportune to reproduce the relevant two legal documents which are the subject of my discussion in order to show where the alleged irregularity is. Starting with the charge sheet particularly on the first count and sixth count, it can be reflected as follows:- "IN THE COURT OF RESIDENT MAGISTRAL TE OF FA TA VI ATMPANDA ECONOMIC CASE NO, 4 OF2022 REPUBLIC VERSUS 1. MASHAKA S/O MAVUNJE @MPAMBA 2. SEBASTIANIS/OKIPAWA @KANZYEMU 1st COUNT UNLA WFUL POSSESSION OF GOVERNMENT TROPHIES: 8 Contrary to section 8.6(1) and (2)(b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2019] AND 6th COUNT UNLA WFUL POSSESSION OF EXPLOSIVE: Contrary to section 3(1 )(2) and 20(1 )(a) of the Explosive Act [Cap 45R.E. 2002]..." Coming to the consent, the same reads as follows: - 'CONSENT OF THE REGIONAL PROSECUTION OFFICER. I, ABEL M SANGA, Regional Prosecutions Officer of Katavi Region, DO HEREBY in terms of section 26 (2) of the Economic and Organized Crimes Control Act [Cap 200 R.E. 2019] read together with part III OF THE schedule to Government Notice No. 496H of 2021 CONSENT to the Prosecution of mSHAKA S/O MAVUNJE @MPAMBA AND SEBASTIAN! S/O KIPAWA @KANZYEMU for contravening paragraphs 4(1)(a), 14 and 31 of the- Firsts Schedule to, and section 57(1) and 60(2) of the Economic and Organized 9 Crime Control Act, [CAP. 200 R.E 2019, the particulars of which are set in the charge sheet Dated at MPANDA this 22nd day of April 2022 Sgd Abe! M. Sanga REGIONAL PROSECUTION OFFICER" [Emphasis supplied] Again, the certificate which was tabled before the trial court was drafted in the following way: - "CERTIFICA TE CONFERING JURISDICTION TO SUBORDINA TE COURT TO TRY AN ECONOMIC CRIME CASE I, ABEL M SANGA, Regional Prosecution Officer of Katavi. Region, in terms of section 12(4) of the Economic and Organized Crimes Control Act [CAP 200 R.E. 2019] read together with part III of the schedule to Government Notice No. 496H of 2021 do hereby ORDER that MASHAKA S/O MA VUNJE @MPAMBA and SEBASTIANI S/O ICIPA WA @KANZYEMU who are charged for having contravening paragraph 4(l)(a), 14 and 31 of the First Schedule to, and sections 57(1) and 60(2) of the io Economic and Organized Crime Control Act, [CAP. 200 R.E 2019], S£ TRIED by this COURT OF RESIDENT MAGISTR-A TE OF KA TA VI, Dated at MPANDA this 2Kd day of April, 2022. Sgd Abel M. Sanga REGIONAL PROSECUTION OFFICER"[Emphasis supplied] In the present case, the appellant was charged with the offence of unlawful possession of government trophies to contrary to section 86{1.)(2) of WCA read together with paragraph 14 of the First Schedule to the said Act, and section 57(1) and 60(2) of the: EOCCA, whereas the charging section 86(1) and (2.)(c)(iii) of the WCA which is clearly shown in the charge sheet containing economic offences the appellant charged with, was not indicated in the certificate which conferred jurisdiction to the trial court. Nor was it inserted in the consent. In the circumstances, it is my finding that the appellant was charged with an offence, tried and convicted by the subordinate court without it being fully clothed with jurisdiction to try the appellant with the offence charged. ii There are numerous decisions of the Court of Appeal on the same aspect where the Court of Appeal nullified the proceedings of the trial court where the certificate and consent are found to be defective; See the cases of Mhole Saguda Nyamangu v Republic, Criminal Appeal No. 334 of 2016; MauK Ismail Ndombe v Republic (supra), Adam Seleman Njalamoto v Republic, Criminal Appeal No. 196 of 2016 and Manganzo ZelamosiU @Nyanzomola v Republic, Criminal Appeal No. 233 of 2016. In the latter case, the Court of Appeal stated, inter alia : "Without the requisite consent and certificate of the learned DPP, the entire proceedings of the trial court were a nullity; just as. were the proceedings of the High Court which then had no legs to stand on" In the present appeal, it is my settled view that since the certificate and consent issued by State Attorney in charge do not have an insertion of the charging section 86(1) and (2)(c)(iii) of the WCA which is clearly shown in the charge sheet containing economic offence the appellant charged with, it is my settled view that the said certificate and consent issued are incurably defective and for that reason, I am persuaded to find that the trial court proceedings were a nullity. Consequently, I quash the conviction entered by the trial court and set aside the sentence passed thereto. 12 I equally agree with the submission of the learned state Attorney that due to the circumstances of the case at hand and the above shown procedural irregularity, the remedy thereto is to order retrial of the appellant's case before another Magistrate with competent jurisdiction, as I hereby do. I further order that should the case end with a conviction, then in the course of assessing and imposing sentence, the assigned trial magistrate should consider the period which the appellant has spent in prison custody. Meanwhile, the appellant should remain in custody to wait for the reopening of the trial subject to the above directions. It is accordingly so ordered. JUDGE 09.04.2024 DATED at SUMBAWANGA this 09th day of April, 2024. JUDGE 09.04.2024 13