CASTOL 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM DC CRIMINAL APPEAL NO. 4147 OF 2024 (Economic Case No. 5 of 2021 in the District Court of Ilala at Kinyerezi) CASTRO CLEMENT MWANAUTA .............................................. APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT JUDGMENT Date of Last Order: 21.10.2024 Date of Judgment: 25.11.2024 NGUNYALE, J. ne appellant CASTRO CLEMENT MWANAUTA and other two people who are not subject to this appeal were charged with the offence of Unlawful Possession of Government Trophy Contrary to Section 86 (1) (2) (b) and 3 (a) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule and Section 57 (1) of the Economic and Organized Crime Control Act Cap 200 R. E 2019 (EOCA). It was alleged that the appellant and other three people on the M 5th day of November 2021 at Kifuru Kinyereze area within Ilala District and Dar es Salaam Region were found in unlawful possession of three pieces of elephant teeth valued at US 69,030,000/= the property of the United Republic of Tanzania without a permit from the Director of Wildlife. Upon a plea of not guilty, the appellant and his fellows were tried, at the conclusion of the trial the appellant was convicted accordingly and sentenced to serve twenty years imprisonment whilst the other two people were acquitted. The appellant was not amused with the conviction and sentence imposed; he therefore preferred the present appeal whereby in his first petition of appeal he raised seven grounds of appeal but for the reasons which will be apparent later I will not reproduce those grounds of appeal. Later before hearing, the appellant filed additional grounds of appeal in his document dated 30th may 2024 that one, the trial court had no jurisdiction to hear and decide the matter two, the trial court erred in law and fact by convicting the appellant illegally basing on the provision of law which he was not charged with three, the trial court erred in law and fact by sentencing the appellant basing on the conviction which was procured illegally four, that the trial court erred in law and fact by =M imposing the burden of proof to the appellant on the ownership of the trophy on the balance of probabilities five, the trial court erred in law and fact by not considering the defence case. Other were; six, the trial court erred in law and fact by initially accept the prosecution case and later shifted the burden to the appellant to cast doubt on it seven, the trial court erred in law and fact by convicting the appellant basing on the seizure certificate and exhibits which were procured illegally eight, that the trial court erred in law and fact by basing on the doctrine of recent possession to convict the appellant nine, the trial court erred in law and fact by convicting the appellant while the chain of custody was broken. Tbe hearing of the appeal attracted the form of written submission as suggested by the parties and blessed by the court. I appreciate for the timely compliance to the scheduling orders of filing their respective submissions, their efforts are highly commendable. I will determine the grounds of appeal in seriatim as submitted by the parties guided by law and court practice. Ure appellant concentrated with the additional grounds and abandoned the previous grounds of appeal. In support on the first ground of appeal in the additional grounds of appeal the appellant reminded the court that the offence he was charged with was an economic offence in which the prosecution side 3 purported to have brought the so called consent of the Regional Prosecution Officer under Section 26 (2) of the Economic and Organised Crimes Control Act Cap 200 R. E 2019 read together with Paragraph 3 (4) and 6 of Part III of the Schedule to the GN No. 496 of The Economic Offences (Specification of offences for consent) Notice, 2021. Basing on that consent and the certificate conferring jurisdiction the prosecution purported having allowed the prosecution of the appellant and other two who are not subject to this appeal. Those documents (consent and certificate) were not endorsed in the proceedings of the trial court for them to form part of the court record. For them to form part of the cord record they were to be endorsed in the proceedings of the trial court. The omission to endorse them renders the whole proceedings in Economic Case No. 5 of 2021 a nullity for want of jurisdiction referring to a number of cases including the case of Salum s/o Andrew Kamande versus Republic, Criminal Appeal No. 513 of 2020 (unreported). In respect of the ground of appeal about jurisdiction the respondent through the National Prosecution Services submitted that they support conviction and sentence imposed by the trial court. It was the submission of the respondent attorney that the appellant avers that the trial court had no jurisdiction due to the fact that the consent and certificate conferring jurisdiction had not been endorsed in the court proceedings of the trial court for them to form part of the court records. Ure appellant argues further that given consent and certificate conferring jurisdiction were not endorsed cannot be said to be formally received unless they have been endorsed in the court proceedings. According to the respondents that was a misconception and they submitted that the trial court had jurisdiction to entertain the matter since the court proceedings reveal that the accused persons were asked to plea at a time when both consent and certificate conferring jurisdiction were presented and filed before the trial court by the prosecution. The same cane clearly be noted at page 24 of the court proceedings. Tbe fact that both consent and certificate conferring jurisdiction were not endorsed in the court proceedings does not hinder the trial court’s jurisdiction to entertain the matter since it is simply sufficient for them to be filed in court. He referred the court to the case of Hsu Chin Tai & Another versus Republic, Criminal Appeal No. 250 of 2021 and Nasibu Abubakar @ Ras vs Republic, Criminal Appeal No. 146 of 2024 Court of Appeal Case where it was held that mere production of the documents is sufficient to confer jurisdiction, endorsement is not a condition provided by law In Nasibu Bakaris’ case at page 23 while referring the case of Hsu Chin Tai’s case the court held "... cases that require consent of the DPP, what matters is that such consent must be available before the commencement of the trial, and the DPP is considered to have fulfilled his obligation the moment he avails it. If no objection is raised at trial, the accused is taken to have missed the bus" It was further submitted by the respondent attorney that in the case of Nasibu Abubakar @ Ras versus Republic (supra), the Court of Appeal was of the view that there is no codified procedure for submission of the DPP’s consent and certificate in court, but rather the requirement is simply a matter of practice and not law. That being the case, they were of the considered opinion that not endorsing the consent and certificate conferring jurisdiction is not fatal and therefore they prayed the court to dismiss the first ground of appeal for lack of merit. In answering this ground of appeal my starting point in the position of the parties about the endorsement of the consent and certificate conferring jurisdiction to the trial court. From the submission of the parties there is no dispute that the two important documents were not endorsed or reflected in the proceedings of the trial court thought they were presented or filed by the respondent. The only contentious issue is whether failure to endorse those documents means that the trial court had no jurisdiction to try the appellant and his fellows who are not subject to this appeal. Before I go further I will revert to the proceedings of the trial court to see what transpired on the date when those documents were alleged to have been filed by the respondent: "Date: 09/01/2023 Coram: Hon. G. Nkwera – SRM PP: Agatha – SA Accused: 1-3 All present CC: Butahe SA: The case is for mention we pray to file consent to try this case together with the certificate to try this case which confers jurisdiction to this court to try this case. We pray to continue with PH. Court: Charge is reminded to the accused person in the language they understood and they are asked to plea thereto; - lst accused plea: not true Td accused plea: not true Jd accused plea: not true COURT: - plea of not guilty is entered in respect to the (sic) all accused person . Syd. G. Nkwera Senior Resident Magistrate 09/01/2024" The above extract from the proceedings speak loudly that the prayer of the State Attorney to file consent and certificate conferring jurisdiction were not endorsed in the court records instead the trial Magistrate proceeded to take plea of the accused persons assuming that he has jurisdiction without responding or acknowledging the prayer. I therefore, subscribed to the consensus position of the parties that the trial court did not endorse the two documents to be reflected as part of the court proceedings. I revert to the issue whether in that circumstance the court had been clothed with jurisdiction or not. On the essence of jurisdiction, I am in agreement with the appellant who relied to the case of Fanuel martiri Mgunda versus Herman Mantiri Mgunda and 20 Others Civil Appeal No. 8 of 1998 (unreported) that: "The question of jurisdiction is paramount in any court proceedings it is so fundamental that in any trial even if is not raised by the parties at initial stages, it can be raised and entertained at any stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it." It is obvious that matters pertaining to jurisdiction of the court can be raised at any stage as accurately stated by the appellant. This is a trite law which has been stated in a number of cases as noted above. The other relevant case is the case of Sospeter Kahindi versus Mbeshi Mshini, Civil Appeal No. 56 of 2017. ;M It is not in dispute that the offence which the appellant was charge with is among the offences which required the consent and certificate conferring jurisdiction to the subordinate court as required by the law Section 26 (2) of the EOCA for the reason that originally that offence is triable by the High Court, Corruption and Economic Crimes Division. The proceedings which I quoted above are very clear that one, the consent and certificate which confer jurisdiction were not endorsed by the trial Magistrate thought they were kept in the court file two, the trial court did not acknowledge in its proceedings the prayer of the State Attorney filing consent and certificate conferring jurisdiction instead he proceedings to take plea by mere assumption that he has jurisdiction without reflection in the proceedings. The appellant remained with a stance that in such a circumstance the trial court had no jurisdiction to try his case. Tbe respondent submitted that the omission was not fatal because the documents were there and the court proceeded to take plea from the date when the documents were presented. Ure case of Nasibu Abubakar @ Ras (supra) which was cited by the respondent stand for the position that there is no codified procedure for submission of the consent and certificate in court hence endorsement and/or filing thereof remained as a matter of practice without any legal effect. From that position the respondent cemented that the court had jurisdiction because the documents were filed in court. However, the jurisprudence is developing, the Court of Appeal sitting at Arusha in the recent case of Emmanuesl Mark Nyambo versus Republic, Criminal Appeal No. 559 of 2021 departed from the earlier position stating that lack of such endorsement is fatal. In the present case the documents were neither endorsed nor acknowledged the act which under the recent position is fatal. ne court in Emmanuel Mark (supra) observed in part: - "The above finding can dispose of this appeal, but we are minded to also address the second defect in the said consent, in that there is no evidence that it was properly admitted or endorsed by the trial court. The Court has had occasion previously to deliberate on such anomalies and held that, the mere presence of such documents (such as the consent to prosecute or certificate conferring jurisdiction on a subordinate court to try an offence) in the court file without endorsement or acknowledgment of their receipt by the trial magistrate cannot legally confer jurisdiction on the subordinate courtt/ It is a settled law that where there is any conflicting decision, the recent position of the law prevails. In the present case the position in the recent case of Emmanuel Mark (supra) which was decided subsequently to the decision relied by the respondent prevails. It is trite law that when the court is faced with decisions of its own, the practice is to follow the most recent one. The Court of Appeal when faced a situation of conflicting decision of its own opted to follow the most recent decision. In the case of Geita Gold Mining Ltd versus Jumanne Mtafuni (Civil Appeal No. 30 of 2019) the Court of Appeal reiterated its earlier position in the case of Arcopar (O. M) S. A versus Harbert Marwa and Family & 3 Others, Civil Application No. 94 of 2013 where the Court held that: "... where the court is faced with conflicting decision of its own, the better practice is to follow the more recent of its conflicting decisions unless it can be shown that it should not be followed for any of the reasons discussed above" In the presence scenario the case of Nasib Abbakar relied by the respondent was decided on 18th July, 2024 whilst the case of Emmanuel Mark (supra) was decided on 19th July, 2024. Admittedly, the most recent decision is that of Emmanuel Mark (supra). In the determination of this case, I will rely to the recent position that consent and certificate conferring jurisdiction was a mandatory procedure which was to be acknowledge and endorsed by the trial court. Tbe court was not supposed to assume that it has jurisdiction and proceed to take plea in the case without acknowledging the prayer of the State Attorney on 9th January 2023 and endorse accordingly to the documents. Consequently, the trial court lacked jurisdiction to try the appellant and his fellows who are not subject to this appeal. It follows therefore that, because the trial court acted without consent and certificate which conferred jurisdiction the proceedings and resultant orders were a nullity. I thus invoke revisional jurisdiction to quash the proceedings from 09th January, 2023 and conviction met by the trial court, also set aside sentence. Since the ground of jurisdiction disposes of the appeal, it is apparent that the remaining grounds of appeal are of no meaning. After having quashed the entire proceedings of the trial court from 09th January, 2023 and the resultant orders being set aside, the proper remedy is to order for retrial subject to compliance to the law. At the meantime when the appellant will be waiting for retrial he will remain in custody subject to the directives of the trial court. Order accordingly. Dated at Dar es Salaam this 25th day of Novembel', 2024. §hnyale JUDGE 12 Judgement delivered this 25th day of November, 2024 in presence of the appellant in person and the respondent represented by Clement Kato State Attorney. D. P. Ngunyale JUDGE 13