tofilo ibrahim kalolo vs republic 2024 tzhc 488 17 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) ATSUMBAWANGA CRIMINAL APPEAL NO. 82 OF 2023 (Originates from the District Court of Tanganyika in Economic Case No. 2/2022) TOFILO S/O IBRAHIM KALOLO ............. .Sh,......APPELLANT VERSUS THE REPUBLIC ..................... .............. ^.^E.^ltlESPONDENT JUDGMENT -S : MWENEMPAZI, J, The appellant was charged in the trial court with the offence of Unlawful Possession of Government Trophy Contrary to Section 86(1) (2) (c) (iii) of the Wildlife Conservation Act, [Cap 283 R.E 2022] read together with paragraph!! of the First Schedule to, and Section 57(1) and 60(2) of the Economic and 'Organized Crime Control Act, [Cap 200 R.E 2022]. It was alleged by the prosecution that the appellant (accused in the trial court) on the 1* day of November, 2022 at Nkungwi Village within Tanganyika District in Katavi Region, was found in possession of 1 Buffalo skin valued at Tshs. i 4,429,584/=.) only, the property of the United Republic of Tanzania without permit from the Director of Wildlife. The trial court convicted the appellant and sentenced him to serve twenty (20) years imprisonment. The appellant is aggrieved and filed a petition of appeal raising four grounds of appeal. Among which is that the trial court a convicted and sentenced the appellant withoutl^i|gjequi^e jurisdiction contrary to the Economic and Organized Crimes Cdhtrol At the hearing, the appellant prayed thatthecoprtconsiders the grounds in the petition of appeal andjallow the appeal and set him free. The learned state attorney, Ms. Godliver Shiyo, State Attorney who appeared for the respondent submitted that the respondent is supporting the appeal on the eF"' "F- 'FA-. basis of ground T of the appeal; SA ■■ ■ - ’"'■F Section 3 of Economic and Organized Crime Control Act, [Cap 200 R.E 2019] empowers the High Court of Tanzania to hear and determine Economic Crime cases. But also the Director of Public Prosecution has been empowered to confer jurisdiction to the lower courts to hear and determine economic cases. That is provided by section 12 of the Economic and Organized Crime Control Act, [Cap 200 R.E 2019]. Whereby the Director of 2 Public Prosecution may transfer and confer jurisdiction to the Resident and District Court under section 12(3) of [Cap 200 R.E 2019]. This is when the offence is purely economic in case there is a case then the certificate may be conferred under section 12(4) of the Economic and Organized Crime Control Act, [Cap 200 R.E 2019]. % That was explained in the case of Elias Samwgl^sTheRgPP^riminal Appeal No. 389 of 2019, CAT (Sumbawanga) at pa^e^T^fiis case the appellant was charged with the offence , 0^ Unlawful Possession of '"T. '"X Government Trophy in the District Court of Tanganyika. That is purely W- -“W -w economic case. -T In the certificate; conferring jurisdiction which was issued by the Regional Prosecution office -Kilimanjaro, the certificate was issued Under Section ? 41 fr* -12 4,;'£?'■: -i ■. '* i' 'T - A4 j 1 v 12(4)4jf Economic and Organized Crimes Control Act instead of Section 12(3) of Economic and Organized Crimes Control Act. The errors committed by the trial court ousted the jurisdiction of the trial court. That vitiated the proceedings on the trial court and rendered it null and void as explained in cited case of Elias Simwela vrs The DPP, (Supra) at page 10. 3 The counsel for the respondent prayed that the appeal be allowed. He however prayed for an order for retrial as there is enough evidence to convict the appellant. I have read the record of the trial court. The appellant was charged in the District Court of Tanganyika at Tanganyika with the offence of Unlawful 'WK Possession of Government Trophy Contrary to Section 86(1 V(2^cYliiTof the Wildlife Conservation Act, Cap 283 RE 2022 read togetheriWith|paragraph 14 of the First Schedule to and Section 57(lTand60(2)df the Economic and 'ft.. ka " Organized Crime Control Act, [Cap 200 RE 2022]. This is purely economic If case. w > The record alsojshows that the certificate conferring jurisdiction to the subordinate court to try an economic crime case was issued by Regional Prosecution Officer of Katavi Region in terms of Section 12(4) of Economic ft; ftfe. f - and Organized Crimes Control Act, Cap 200 RE 2022 read together with f’ft Government Notice No. 496 of 2021. It has been submitted by the counsel for the respondent that the certificate was issued under the wrong provision of law hence rendering it defective. The overall result is to oust jurisdiction to the trial court. She cited the case 4 of Elias Simwaka vrs. The Director of Public Prosecution Criminal Appeal No. 389 of 2019, Court of Appeal of Tanzania sitting atSumbawanga. At page 9 of the judgment, it was held "...In terms of section 3(1) and (3)(a) and (b) of the Economic and Organized Crimes ContrdlEAct, the jurisdiction to hear and determine economic offenqes is^ vested in the corruption and Economic Crimes-Division cjf ’Wfe W. the High Court. Ho^veidEfie^pbdve^ cited general 'Ek- . ‘ EiX es. m. statutory provision is not without exception’as, by way of a certificate issued under section l2(3) of the Economic a 'd'E ‘ex. ;V -:& ’-S. i-^Aj and Organized.Crimes Control Act, where the accused Asg, Ea. 'W, d"' "SO P'K> person is exdusively charged with an economic offence or Ed y offence as in this case or under section 12(4) of the same '1;X Act if the accused is charged with a combination of economic and non - economic offences, the Director of Public Prosecution or any state attorney duly authorized by him, may direct that any case Involving an offence triable by the Corruption and Economic Crime Division of the High Court, be tried by a subordinate court" 5 It is clear that since the certificate conferring jurisdiction was issued under section 12(4) of the Economic and Organized Crime Control Act, [Cap 200 R.E 2022] the same is defective, and it has no effect to confer jurisdiction to the subordinate court. In the same above cited judgment it was also held at page 10 that: - "If an accused person is arraigned befgrdta .subordinate^ court and there is no consent totryhim and^there-is no . Vr.- ■< certificate to conferjurisdictionon^-tha^subordinate court lacks jurisdiction toj try the economic offbrice case and thaf otherwise, the entire proceedings becomes a nullity" Under the circumstances5 of this case, the trial court had no or lacked jurisdiction and thus proceedings were rendered a nullity. n-'- The counsel prayed as a. way forward to the case, an order for retrial be issued because there is enough evidence to prove the offence. I have read the evidence available, there seems to be a problem on how the search was conducted. The appellant was not at the hut he was normally taking shelter. He was called from the farm and taken to the hut by those who arrested him, where he was shown an alleged buffalo skin. He denied to know it. 6 Then arrested up to the police station where the certificate of seizure was prepared and signed. In my opinion Section 38 (3) of the Criminal Procedure Act, Cap 20 RE 2022 was not complied with. Refer there is doubt and that may later be corrected to secure conviction. Under the circumstances, I allow the appeal, judgment of the trial court is quashed and sentence set aside, and in the interest of justice, I refrain to order for retrial. Instead, I order immediate release of the appellant unless x. .4.. v.T-‘ f he is held for another lawful cause. . Dated and signed at Sumbawanga this 17th day of February, 2024. % T. M. MWENEMPAZI ■ W*. "JUDGE Judgment delivered this 17th February, 2024 in Judge's chamber in the presence of the appellant and Mr. Jackson Komba, State Attorney and Ms. Godliver Shiyo, State Attorney for the Respondent. T. M. MWENEMPAZI JUDGE 17/02/2024