CRIMINAL APPEAL NO 502 OF 2020 CHACHA KISABO WANKYO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LILA. J.A.. KENTE. J.A.. And MGONYA. J.A.1 CRIMINAL APPEAL NO. 502 OF 2020 CHACHA KISABO W ANKYO.......................................................... APPELLANT VERSUS THE REPUBLIC........... ............................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma (Galeba, j .l dated the 25th day of September, 2020 in Criminal Appeal No. 89 of 2020 JUDGMENT OF THE COURT 05th & 26th July, 2024 KENTE. JA: This appeal turns mainly, though not solely, upon a pragmatic question of jurisdiction thus: did the District Court of Serengeti have jurisdiction to entertain this particular case in which the appellant was charged with, among other offences, unlawful possession of Government Trophies which is a scheduled economic offence ordinarily triable by the Corruption and Economic Crimes Division of the High Court? The appellant, Chacha Kisabo Wankyo was charged in the Serengeti District Court (the trial Court) in three counts namely, unlawful entry into the National Park, unlawful possession of weapons in the National Park and unlawful possession of Government Trophies. Whereas the charges in the first count accused the appellant with infraction of sections 21 (1) (a) and (2) as well as 29 (1) both of the National Parks Act, Chapter 282 of the Revised Laws (the NPA), in the second count, the appellant was accused with violating the provisions of section 24 (1) (b) and (2) of the same Act. As to the third count, the charge, was predicated under section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act (the WCA) read together with paragraph 14 of the first Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organised Crimes Control Act, Chapter 200 of the Revised Laws, (the EOCCA). The particulars in support of count one alleged that, on the 5th day of February 2019 at "Korongo la Machochwe" area within the Serengeti National Park in Serengeti District, Mara Region, the appellant entered into the said National Park without a valid permission from the Director of Wildlife. As regards the second count, the particulars alleged that, at the same time and place, the appellant was found in possession of one machete without a permit and that, on being questioned, he failed to give satisfactory explanation to the authorized officer that the said machete was not intended to be used for the purposes of either hunting, killing, wounding or capturing wild animals. 2 The particulars in support of the third count alleged that, at the same time and place, the appellant was found in unlawful possession of two pieces of dried zebra meat valued at USD 650 which, at the then exchange rate, was equivalent to TZS 1,430,000.00, the property of the government of Tanzania. Despite unequivocal denial of the charges, the trial court convicted the appellant of the charged offences and subsequently sentenced him to one year imprisonment for each of the first and second counts and twenty years' imprisonment in respect of the third count. The sentences were ordered to be served concurrently. Dissatisfied with the decision of the trial court, the appellant vainly appealed to the High Court of Tanzania (sitting at Musoma) which, after hearing the parties, went on dismissing the entire appeal for what was said to be, the lack of merit. The evidence against the appellant was mainly from two Park Rangers namely, Deogratious Richard (PW1) and Clement Kigaila (PW2) who were the arresting officers. The two witnesses told the trial court that on 5th February, 2018 at about 5.30 p.m, in the course of their routine patrol in the Serengeti National Park, they came across and arrested the appellant who was then in possession of a machete and two pieces of dried zebra meat. PW1 and PW2 said that, they interrogated the appellant who told them, he had no permit to enter into the National Park, nor to possess weapons therein or possess zebra meat. According to PW1 and PW2, after seizing the above - mentioned items from the appellant, they later on filled a certificate of seizure (Exhibit PEI) and thereafter whisked the appellant to Mugumu Police Station where he was booked for the earlier mentioned offences. Another prosecution witness was Wilbrod Vicent (PW3) a Park Warden who told the trial court that, on 8th February, 2019 at about 10.00 am, he was summoned by Detective Corporal James (PW4) to Mugumu Police Station where he was shown and asked to identify two pieces of dried meat, which he identified as zebra meat and valued at TZS 1,430,000.00. Thereafter, he filled a Trophy Valuation Certificate which the trial court admitted in evidence as exhibit PE3. In his defence, the appellant denied to have been arrested within the Serengeti National Park. He told the trial court that, on the material day, the Park Rangers went to his home and, in an assertion which was wildly off-base, they asked him why he had entered into the National Park the allegations which he denied saying that, he had just gone to collect his cattle which were grazing down the verge of the National Park which incidentally borders his village. The appellant went on telling the trial court that, despite the above explanation, the Park Rangers took him to Kenyangaga Camp and later on to Mugumu Police Station where the present charges were prepared against him. He challenged PW1 and PW2 for allegedly giving evidence which was at variance with regard to the actual time of his arrest. As stated earlier, the trial court convicted the appellant in all three counts and consequently sentenced him to the earlier mentioned custodial sentences which were ordered to run concurrently. Aggrieved by the decision of the trial court, the appellant appealed to the High Court complaining inter alia that, he was wrongly tried and convicted in a matter over which the trial court had no jurisdiction and that, generally, the case against him was not proved to the required standard to warrant a conviction. In a judgment delivered on 25th September, 2020 the first appellate court was satisfied that, the evidence led by the prosecution witnesses had proved the case against the appellant beyond reasonable doubt. In particular, the learned Judge of the first appellant court found that the appellant was arrested within the boundaries of Serengeti National Park at a place called "Korongo la Machochwe" and that, he was found in possession of one machete for which he failed to give explanation that it was not intended to be used in unlawful hunting or wounding wild animals. With regard to the third count, the learned Judge examined the evidence of PW1 and PW2 and found it credible. He therefore, disbelieved the appellant's story and went on dismissing the appeal in its entirety. Before us, the appellant raised four grounds of appeal but we must state that, as earlier indicated in this judgment, the central question in this case and indeed in this appeal, turns on the third ground of appeal which challenges the trial court and by extension, the first appellate court for wrong assumption of jurisdiction over economic offences in view of the apparent procedural defects in the consent and certificate issued by the Senior State Attorney Incharge for Mara Region pursuant to sections 26 (2) and 12 (4) respectively of the EOCCA. At the hearing of the appeal, the appellant who was unrepresented had little to say. He simply denied to have been arrested within the National Park saying that, he was grazing cattle along the blurred boundary of the National Park and his village. He also denied in strong terms to have been found in possession of dried zebra meat. Submitting in reply, Mr. Isihaka Ibrahim Mohamed learned State Attorney who appeared along with Mr. Tawabu Yahaya Issa also a learned State Attorney representing the respondent/Republic, supported the appeal on two grounds. The first ground is with regard to the procedural 6 defects in the consent and certificate issued by the Senior State Attorney for Mara Region conferring jurisdiction to the trial court to try an economic offence. Elaborating, Mr. Isihaka submitted that, both the consent and certificate which appear respectively at pages 7 and 8 of the record of appeal, did not make reference to the provisions of section 86 (1) and (2) (b) of the Wildlife No. 5 of 2009 read together with paragraph 14 of the first schedule and section 57 (1) and 60 (2) of the EOCCA which create the economic offence of unlawful possession of Government Trophies of which the appellant was convicted in the third count. According to Mr. Isihaka, as the matters stood, the trial court wrongly assumed jurisdiction over an economic offence which, in view of the above-mentioned procedural defects, the trial court did not have. In the circumstances, the learned State Attorney implored us to allow the appeal for want of jurisdiction, nullify the proceedings in the trial and the first appellate court and finally quash the appellant's conviction and set aside the custodial sentence meted out on him. With regard to the first count which charged the appellant with the "offence" of unlawful entry into the National Park, Mr. Isihaka submitted correctly so in our view that, section 21 (1) (a) and (2) of the NPA under which the appellant was charged and subsequently convicted, did not create the offence of unlawful entering into a National Park. According to Mr. Isihaka, given the current state of the law, the appellant ought not to have been charged and convicted in the first count. As for the charges in the second count in which the appellant is said to have been found in the National Park while unlawfully possessing a machete, Mr. Isihaka submitted very briefly that, the charge was not proved to the required standard. The learned State Attorney elaborated that, there was no evidence sufficiently showing that the place called "Korongo la Machochwe" where the appellant was supposedly arrested is within the prescribed boundaries of the Serengeti National Park. He drew our attention to our earlier decisions in which we have held, on several occasions that, the offence of being found in unlawful possession of weapons in the National Park cannot be proved in a casual and half­ hearted way and that, it must be proved beyond reasonable doubt that the accused person was arrested within the statutory boundaries of the given National Park. (See Dogo Marwa @ Sigana and Another v. Republic, Criminal Appeal No. 512 of 2019). As we did in the above cited case, we start from the premise that, in any judicial proceeding jurisdiction is a threshold as it touches the courts' competence to seize the matter presented before them. In the context of Tanzania and obviously many other Common law jurisdictions, courts cannot try a case if they do not have the requisite jurisdiction to do so. Considering the brief but well versed submissions made by Mr. Isihaka, we understood his argument to be that, since the offence of unlawful possession of Government trophies contrary to section 86 (1) and (2) of the WCA is a scheduled economic offence and therefore ordinarily triable by the Corruption and Economic Crimes Division of the High Court, where in the appropriate circumstances and in exercise of the powers conferred to him by the law, the Director of Public Prosecutions (the DPP) or any other State Attorney duly authorized by him, decides to confer jurisdiction to a subordinate court over economic offences as it happened in this case, such offences must be specified in the certificate conferring jurisdiction and the consent. By this submission, we take it that Mr. Isihaka had in mind the settled position of the law in a plethora of our decisions that, the economic offence of unlawful possession of Government Trophies contrary to section 86 (1) and (2) © (iii) of the WCA read together with paragraph 14 to, and sections 57 (1) and 60 (2) of the EOCCA, must be specifically cited in the certificate conferring jurisdiction to the subordinate court and the consent authorising the prosecution of the accused person. (See the cases of Chacha Chiwa Marungu v. Republic, Criminal Appeal No 364 of 2020 and Peter Kongote Maliwa v. Republic, Criminal Appeal No. 253 of 2020). Faced with an identical situation in the case of Dilipkumar Maganbai Patel v. Republic, Criminal Appeal No. 270 of 2019 (unreported) to which we were ably referred by Mr. Isihaka, we held that: .the consent and certificate conferring jurisdiction on the tria i court were defective, though they were made under the appropriate provision; sections 12 (3) and 26 (1) o f the EOCCA but referred to the provisions which the appeiiant was not charged with. The consent and certificate did not refer to section 86 (1), (2) (ii) and (3) o f the WCA which was cieariy cited in the charge sheet The certificate and consent were therefore incurably defective .... The defects rendered the consent o f the DPP and the certificate transferring the econom ic offence to be tried by the tria i court invalid. For that reason, we are constrained to fin d that the tria l and proceedings before the Resident M agistrates' Court o f D ar es Salaam a t Kisutu in Econom ic Case No. 58 o f 2016 and the High Court in Crim inal Appeal No. 146 o f 2018 were nothing but a n u llity ." The reasons for which the Court in the above-mentioned case held that the consent of the DPP and the certificate conferring jurisdiction to 10 the subordinate court to try an economic offence were invalid and that the subsequent trial and proceedings before the said court were a nullity, were the same as the reasons obtaining in the present case. Speaking in the same breath, and as such, we are mindful that, indistinguishable cases must be treated in the same way, we stand by our earlier decisions and accordingly hold that, on account of the same flaws, the proceedings before the trial and the first appellate court were null and void. We thus allow the appeal upon the third ground and proceed to quash the appellant's conviction and set aside the sentence meted out on him, Regarding the way forward, Mr. Isihaka submitted that, once the trial of the appellant is nullified, the prosecution case collapses as there is no evidence that proves to the required standard that the appellant was found within the statutory boundaries of the Serengeti National Park and that he was found in unlawful possession of the alleged Government Trophies. Turning to the first count in which the contention is that the appellant had unlawfully entered into the Serengeti National Park, if we may recapitulate, the learned State Attorney submitted correctly so that, as it stands, section 21 (1) (a) and (2) of the NPA under which the appellant was charged and convicted, does not create the offence of unlawful entry into the National Park. The learned State Attorney, ii therefore submitted that, with regard to the first count, the appellant was convicted of a completely non-existent offence. Indeed the position is quite clear to us. That is to say, following the amendment brought about by Act, No. 11 of 2003 which deleted the actus reus (illegal entry or illegal remaining in a National Park), the physical act or conduct of going into the National Park or remaining in the National Park is no longer part of section 21 of the NPA as it stands now. (see Dogo Marwa @ Sigana and Another (supra). It should be very elementary to observe here that, in line with the doctrine of criminal law that "no crime without law" (nul/um crim en sine lege ) and in terms of Article 13 (6) (c) of the Constitution of the United Republic of Tanzania of 1977, it is settled law that, no person shall be punished for any act which, at the time of its commission was not an offence under the law. We have mulled over the learned State Attorney's submissions on whether or not we should make an order for retrial. We note that, with respect to the first and second counts, the appellant has already served the sentence imposed on him and further spent four years in jail which is far beyond the one year imprisonment sentence imposed on him in respect of each of the two counts. This fact, taken together with the well elaborated shortcomings in the prosecution evidence, renders an order for retrial rather tasteless and superflous. But above all, what is important 12 is the guidance given by the erstwhile Eastern African Court of Appeal in the celebrated case of Fatehali Manji v. Republic (1966) 1 EA 343 that, when considering whether or not to order a retrial, an appellate court must always remember that: "... in genera/ a re tria l w ill be ordered only when the original tria l was ille g a l or defective; it w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to f ill up gaps in its evidence a t the first tria l; even where a conviction is vitiated by a m istake o f the tria l court fo r which the prosecution is not to blam e, it does not necessarily follow that a tria l should be ordered; each case m ust depend on its particular facts and circum stances and an order fo r re tria l should only be made where the interests o fjustice require it and should not be ordered where it is lik e ly to cause an injustice to the accused person." The upshot of this is that, in the circumstances of the instant case, even if there were no procedural irregularities in the certificate and the consent issued by the Senior State Attorney Incharge for Mara Region, there was no sufficient evidence to support a conviction against the appellant. Put in other words, an order for retrial will not be made where 13 the prosecution did not prove beyond reasonable doubt that the appellant committed the offences of which he was convicted. In the ultimate event, the appeal is allowed. The conviction and sentence which are not supported by the Republic are respectively quashed and set aside. The appellant should be immediately released from custody if he is not otherwise lawfully detained. DATED at DAR ES SALAAM this 25th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 26th day of July, 2024 in the presence of the Appellant in person unrepresented and Mr. Tawabu Yahya Issa, learned Senior State Attorney for the Respondent/Republic via video conference is hereby certified as a true copy of the original.