CHACHA MNANGA JDGMNT

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI, J.A.. MAIGE, J.A. And RUMANYIKA. 3 J U CRIMINAL APPEAL NO. 107 OF 2021 CHACHA MNANGA CHACHA...................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba, 3) Dated the 15th day of January, 2021 in Criminal Appeal No. 110 of 2020 JUDGMENT OF THE COURT 29th November & 11th December, 2024 WAMBALI, 3.A.: Chacha Mnanga Chacha, the appellant, was charged and prosecuted at the District Court of Serengeti at Mugumu with three counts. The first count involved unlawful entry into the National Park contrary to sections 21(1) (a) and 29 (1) of the National Parks Act, Cap 282 (the NPA). It was alleged in respect of the first count that, on 5th November, 2018, the appellant entered into Mto Mara area which is within Serengeti National Park in Serengeti District in Mara Region without the permission of the Director. The second count concerned unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the NPA. The particulars revealed that on the same date and place, the appellant was found in possession of weapons, namely, one knife and one spear without permit and that he failed to satisfy the authorized officer that the said weapons were intended to be used for the purpose other than hunting, killing, wounding or capturing wild animals. The third count was in respect of allegation of unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, Cap 283 (the WCA) read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 200 (the EOCCA). It was alleged that on the same date and place, the appellant was found in unlawful possession of Government Trophy, that is, two fresh hind limbs of Zebra worth USD 1200 which was equivalent to TZS. 2,640,000,00; the property of the United Republic of Tanzania. It is noteworthy that the trial court recorded that the appellant pleaded not guilty in respect of all counts. At the trial, the prosecution supported its case by summoning four witnesses; namely, Ezekiel Kulwa Petro (PW1), Rugatili Gambachara (PW2), Wilbroad Vincent (PW3) and G. 4209 D/C Stephen (PW4) together with a Certificate of Seizure (exhibit PI), one knife and one spear (exhibit P2), Trophy Valuation Certificate (exhibit P3) and Inventory Form (exhibit P4). The substance of the prosecution evidence was that, on 5th November, 2018, the appellant entered the Serengeti National Park without a permit and that he was found in possession of the alleged unlawful weapons and the Government trophy contrary to the requirement of the law. The appellant denied the allegations and contended that, on the material date, he was arrested by Park Rangers at Mara River in connection of grazing cattle in the national park, while he had no idea of the owner as he had only gone to that area for a wedding ceremony after he was invited by Juma Mwita. Nonetheless, at the climax of the trial, the District Court of Serengeti found the appellant guilty, convicted and sentenced him to serve sixth months, one year and twenty years imprisonment in respect of the first, second and third counts, respectively to run concurrently. The appellant unsuccessfully appealed to the High Court in Criminal Appeal No. 110 of 2020. Its decision is the subject of the instant appeal. The memorandum of appeal comprises three grounds of appeal. However, for the reasons to be apparent shortly, we do not deem it appropriate to reproduce the respective grounds. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic was duly represented by Ms. Janeth Kisibo and Mr. Charles Kagirwa, learned Senior State Attorneys. At the outset, Mr. Kagirwa readily supported the appeal on a point of law concerning the jurisdiction of the trial court, which was not part of the appellant's complaint in the grounds of appeal. He submitted that, it is apparent in the record of appeal that the Senior State Attorney In charge of Mara Region issued consent to prosecute the appellant and a certificate conferring jurisdiction to the District Court of Serengeti to try economic and non-economic offences in terms of sections 26 (2) and 12 (4) of the EOCCA, respectively. However, he submitted that, the respective consent and certificate are defective for omitting to cite the provisions of section 86 (1) (2) (c) (iii) of the WCA which relates to the third count of unlawful possession of the Government trophy. In this regard, relying on the decision of the Court in James Siluli @ Mwita v. The Republic (Criminal Appeal No. 24 of 2021) [2024] TZCA 1006 (29 October 2024, TANZLII), the learned Senior State Attorney submitted that, the defect in the consent and certificate of transfer issued by the Senior State Attorney In charge rendered the proceedings of the trial court a nullity as it had no jurisdiction to try the case against the appellant. He emphasized that the nullity applied as well to the proceedings of the first appellate court whose decision is the subject of this appeal. In the circumstances, Mr. Kagirwa prayed that, in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), the respective proceedings of both courts below be nullified, convictions quashed and sentences imposed on the appellant be set aside. On the other hand, Mr. Kagirwa submitted that if the order for nullifying the proceedings of the two courts below is granted, the apparent option would have been for the Court to order a retrial. However, he stated that, in the circumstances of the case at hand, a retrial will not be in the interest of justice as miscarriage of justice will be occasioned on the part of the appellant. In support of his stance, he submitted that in view of the factual setting of the material facts on the record, if a retrial is ordered, the prosecution will not be able to secure convictions against the appellant. In his submission, firstly, considering the current setting of the provisions of section 21 (1) (a) of the NPA after the amendment brought in by the Written Laws (Miscellaneous Amendments) Act, 2003 (Act No. 11 of 2003), under which the first count was preferred, no offence is created, rather a penalty. More importantly, he submitted, the second count will not be easily proved as it entirely depends on the legality of the first count and that, there is no sufficient evidence to prove that the appellant was arrested within the boundaries of Serengeti National Park as alleged in the charge. To support his contention, he relied on the decision of the Court in Silasila Chacha and Two Others v. The Republic (Criminal Appeal Nos. 44, 45 & 46 of 2021) [2024] TZCA 1027 (4 November 2024, TANZLII). Secondly, he submitted that, the offence of unlawful possession of Government trophy under the third count will not be proved by the prosecution because the disposal order was issued contrary to the requirement of the law. He explained that there is no indication as per the Inventory Form (exhibit P4) that the appellant appeared and participated when the Resident Magistrate at the District Court of Serengeti issued the order for the destruction of the said trophy. Besides, he added, though PW4 testified that he was accompanied by the appellant when the order was issued, exhibit P4 indicates that the person who appeared before the Resident Magistrate is Raphael Henry, a Park Ranger and not Pw4, a police officer. In the result, Mr. Kagirwa implored the Court to nullify the proceedings of both courts below, quash convictions and set aside the sentences, in terms of section 4 (2) of the AJA, and order the immediate release of the appellant from prison custody. The appellant supported the submissions by the learned Senior State Attorney, and urged the Court to set him free. We entertain no doubt that the omission by the Senior State Attorney In charge of Mara Region to indicate in the consent and certificate conferring jurisdiction on the District Court of Serengeti the relevant provisions under which the appellant was tried in respect of the third count, was contrary to the requirement of the law and rendered the proceedings of the trial court a nullity. The defect also affected the proceedings of the High Court on appeal as it emanated from nullity proceedings of the trial court. We therefore agree with the learned Senior State Attorney that the respective proceedings deserve nullification as both the trial and first appellate court had no jurisdiction to preside over the case and an appeal respectively. In Dilipkumar Maganbai Patel v. The Republic (Criminal Appeal No. 270 of 2019) [2022] TZCA 477 (25 July 2022, TANZLII), we stated thus: 'We have no doubt that in view o f our deliberation above, the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12 (3) and 26 (1) o f the EOCCA ... The consent and certificate did not refer to section 86 (1), (2) (ii) and (3) o f the WCA which was clearly cited in the charge sheet The consent and certificate were therefore incurably defective ... The defect rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason, we are constrained to find that the trial and proceedings before the Resident Magistrate Court o f Dar es Salaam at Kisutu in Economic Case No. 58 o f 2016 and the High Court in Criminal Appeal No. 146 o f 2018 were nothing but a nullity". In the case at hand, we hold a similar stance that, though the consent and certificate were issued by the Senior State Attorney In charge of Mara Region under section 26 (2) and 12 (4) of the EOCCA respectively, the omission to cite section 86 (1) and (2) (c) (iii) of the WCA under which the third count was predicated, rendered the respective documents invalid. On the other hand, we entirely agree that, in the circumstances of this case, retrial will not be in the interest of justice. This is due to the fact that, the order for disposal of the seized trophy as per the Inventory Form (exhibit P4) was issued in violation of the law as correctly submitted by Mr. Kagirwa because of the failure to involve the appellant (see Mohamed Juma Mpakama v. The Republic [2019] T.L.R. 514; (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019, TANZLII). Moreover, it is apparent that the first count was preferred under the provisions which do not establish an offence, but a penalty in view of the amendment by Act No. 11 of 2003. Besides, the materials on the record have not established that the appellant was found within the boundaries of Serengeti National Park as alleged in the second count. For this stance, see Dogo Marwa @ Sigana v. The 9 Republic (Criminal Appeal No. 512 of 2019 [2021] TZCA 593 (21 October 2021, TANZLII), among several decisions of the Court. In the event, we invoke the provisions of section 4 (2) of the AJA to nullify the proceedings of both the trial and first appellate courts, quash the convictions and set aside the sentences imposed on the appellant. Ultimately, we order that the appellant be released from custody, unless he is held for other lawful cause. DATED at MUSOMA this 10thday of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of appellant in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL