CHACHA WAMBURA MACHOMBA

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: WAMBALI J.A.. MAIGE, J.A. And RUMANYIKA, J.A/) CRIMINAL APPEAL NO. 108 OF 2021 CHACHA WAMBURA MACHOMBA........................................I st APPELLANT BA5HIRU GARVAZI KIIZA.................................................. 2 nd APPELLANT JOSEPH IKWABE MW ITA....................................................3rd APPELLANT WANKURU NYAMHANGA .................................................... 4th APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Gaieba. 3 } dated the 15th day of January, 2021 in Criminal Appeal No. 130 of 2020 JUDGMENT OF THE COURT 2nd & 5th December, 2024 MAIGE, J.A.: The appellants were convicted by the District Court of Serengeti (the District Court) of three counts namely, unlawful entry to the National Park contrary to section 21 (1) (a) and (2) and section 29 (1) of the National Park Act, Cap. 289 (the NPA); unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the NPA; and unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation A c t , 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 Crime Control Act, Cap. 200 (the EOCCA). They were sentenced to one year for each of the first two counts and 20 years for the third count. Their appeal to the High Court proved futile, hence this appeal. Each of them have filed a memorandum of appeal consisting of three grounds which appear to be identical. In view of the nature of the decision we are going to deliver, we find irrelevant to mention the said grounds. At the hearing, the appellants appeared in person without representation. They had nothing to submit aside from each of them adopting his memorandum of appeal and urging us to allow the appeal. On the other hand, the respondent Republic enjoyed the services of Ms. Janeth Kisibo and Mr. Charles Kagirwa, both learned Senior State Attorneys. Mr. Kagirwa addressed us on the merit or otherwise of the appeal. Before we determine the appeal, a brief factual narration underpinning the background of the case may be pertinent. On 24th April, 2019, Gabriel Florence Wakolela (PW1) and Godino Ndegize (PW2), while on the patrol within the Serengeti National Park, saw the appellants in the bush. They were in possession of two fore limbs and head fresh meat of hartebeest, one panga, one knife and four animal trapping wires. The appellants were arrested and produced to the police where the trophies were valued by Wilbrod Vicent (PW3) as per exhibit PE3 and an inventory form in respect thereof was prepared by F. 3785 D/Proches (PW4). On the next day, the appellant together with the exhibits were taken to the District Court where a disposal order was issued on the basis of which the trophies were destroyed. During trial, the inventory was produced and admitted into evidence in lieu of trophies and it was marked exhibit PE4. Subsequently, the appellants were charged, convicted and sentenced as aforestated. It has to be noted that, the third count is an economic offence in terms of the EOCCA. In law, a subordinate court can only have jurisdiction to try it if two conditions are cumulatively met. One, if the Director of Public Prosecutions (the DPP), or any State Attorney duly authorized by him, issues a certificate conferring jurisdiction to the respective court in terms of section 12 (3) of the EOCCA. Two, if a consent is issued either by the DPP himself in terms of section 26 (1) of the EOCCA or an authorized officer in terms of section 26 (2) and subject to the requirements therein. As the charge in this case combined economic and non-economic offences, a document purporting to be a certificate conferring jurisdiction in terms of section 12 (4) and a consent in terms of section 26 (2) were issued. None of them, however, cited the relevant incriminating provisions of law, namely, section 86(1) and (2) (c) (iii) of the WCA. In view of the foregoing, therefore, it did not come as a surprise to us when Mr. Charles Kagirwa, intimated to us, right from the outset that, the respondent was supporting the appeal on the main ground that the trial court acted without jurisdiction as both the consent and certificate conferring jurisdiction were incomplete for omission to cite the relevant provisions for which the appellants were charged. It was submitted that, since the two documents were the basis of the trial's court jurisdiction, the fatal defects in the said documents rendered the whole trial to be without jurisdiction and therefore, a nullity. We were, therefore, urged to, in pursuit of section 4(2) of the Appellate Jurisdiction Act (the AJA), nullify the proceedings of the two courts below, quash convictions and set aside the sentences. His submission was not unsubstantiated. It was well founded on among authorities, the case of Peter Kongoli Maliwa and 4 Others v. R (Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14 June 2023, TANZLII]. As to what should be the way forward, Mr. Kagirwa submitted that, it is in the interest of justice to set the appellant free rather than directing for retrial. He gave three reasons to justify his proposition. First, the inventory form, the only document which would be received in lieu of the trophies, cannot in law be relied upon as the appellants were not present in the proceedings leading to their disposal. As such, he submitted, the prosecution procured the disposal order which is incorporated in the inventory form without the appellants being afforded a right to comments. To that effect, the counsel cited the case of Buluka Leken Ole Ndidai & Another v. R (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024; TANZLII). Second, the first offence, namely, entry in the National Park without a permit is an offence which, according to him, does not exist having been out of existence as a result of the amendment brought by Act No. 11 of 2003. Three, while presence in the National Park is an essential element of both the offences, the available evidence does not speak of the coordinates of the scene of the crime. Without that, he submitted, it is highly unlikely for the offences to be proved, assuming that an order for retrial is granted. When invited to submit in rejoinder, the appellants and each of them, had nothing to remark other than fully supporting what the learned State Attorney submitted and praying for their release from prison. Having duly considered the submissions by the learned State Attorney in line with the record, we are in agreement with him that, the certificate conferring jurisdiction and the DPP consent in whose basis the trial court traced its jurisdiction, were incomplete in as much as none of them cited the provisions of law the appellants were charged with, namely section 86 (1) and (2) (c) (iii) of the WCA. In effect, therefore, the respective documents incomplete as they are, were incapable of conferring jurisdiction to the trial court something which rendered the whole trial without jurisdiction, and therefore, a nullity. See for instance, Dilipkumar Maganbai Patel v. R (Criminal Appeal No. 270 of 2019) [2022] 7ZCA 477 (25 July 2022; TANZLII), Peter Kongori Maliwa and Others v. R (supra) and Chacha Chiwa Marungu v. R (Criminal Appeal No. 364 of 2020) [2023] TZCA 17311 (5 June 2023; TANZLII). Consequently, pursuant to the powers under section 4(2) of the A], we nullify the proceedings of the District Court, quash the conviction and set aside the sentence thereof. We further nullify the proceedings of the High Court and quash the judgment thereof. Since the inventory which would be admitted in lieu of the trophies is legally unreliable as correctly argued for the respondent Republic and in so far as the prosecution evidence is absolutely silent on the coordinates of the scene of the crime, remittance of the matter to the trial court for retrial will not be appropriate. We have also considered that the first count is not in the current enactment. In the final result, we order that the appellants be forthwith released from the prison unless therein held for other lawful reasons. DATED at MUSOMA this 4th day of December, 2024. F. L. K. WAM BALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 5th day of December 2024 in the presence of both four Appellants who appeared in person and Ms. Mwajabu Tengeneza learned Principal State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL