20190729 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA 1 i I (MWANZA DISTRICT REGISTRY) ~ .: . '.'i::• ~ i \1 .:. > I \ AT MWANZA , I . CRIMINAL APPEAL Nb. 294 OF 2018: I (Appeal from the Judgment of the District Court of Bunda at Bunda (Rugemalila, RM) Dated 3rd of January, 2017 in Criminal Cdse No. 62 of 2016 I I CHILU s/o MPIGACHENGA@ KULWA' ..................... ~. 1sr APPELLANT • . . : . i I GURULI s/o NDUMELA @MAN EN GO ., ..................... ~No APPELLANT VERSUS I, I I : THE REPUBLIC ................................................. RESPONDENT I i JUDGMENT OF THE COURT 15.05.2019 & 29.07.2019 M.K. ISMAIL, J I The Appellants herein were joinily and severally convicted, by I : I ! the District Court of Bunda at Bunqa, of three cq>unts, allegedly i '1 . . committed on .5th August 2016 at Mbalageti river, within Serengeti ! National Park in Bunda District, Mara Region. The cdunts with which I I they were charged and convicted qf are: Unlawful'. entering in the I : National Park, contr.ary to section 21 :c1) and (2) anci section 29 (1) of the National Parks Act; Cap. 282 R!E. 2002; unlawf~I possession of . I -~ 1 .. ,, weapon in the National Park, contrary to section 24 (1) (b) and (2) f'--' ~. of the National Parks Act, Cap. 282 R.E. 2002; an<tJ unlawful I possession of government trophy, controry to section ·s6 (1) (2) (c) ' ' (ii) of the Wildlife Conservation Act, No'. 5 of 2009, redd together with paragraph 14 (d) of the 1st Schedule to and sec,tions 57 (1) and 60 (2) of the Economic and Organized Crime G::ontrol Act, I Cap. 200. The trial court convicted the Appellants of all :counts and were sentenced to payment of fine of TZS. 150,000/= pr a jail term ' ' of six months; payment of fine of TZS. 20,000/= or a jail term of ten I I I months; and a 20-year prison term in respect of the 1,st , 2nd and 3rd counts, respectively. Dissatisfied with both the conviction and senteince, the duo ' has appealed to this Court and the joint Petition of Appeal ' ' contains five grounds of appeal which are reproduc~d as follows: ' I 1. That, the learned trial magistrate erred in iaw and facts when he admit (sic) he cooked evidenc~ of PW3 also exhibit P2 who was not tendered by an expert from the ' government chemist it is impossible to identify the dried 2 I I meat of animal by using co,lour only it needs further expertise. See the case of Salu7 Haluna v. Re) ( 1968) HCD No. 37. I 2. That, the trial magistrate erreb in law and facts found I conviction and sentence agaidst the appellants by relying on shack (sic) and falsified evidence abduced by ; : prosecution side PW1, Pw2; and PW3 which was I I, uncorroborated in addition to1·:that these wi nesses were the same people from the sam ; office and working hence I their evidence needs more corrbboration. I I 3. That, the concert (sic) fronjl the Directo[ of Public Prosecution (sic) was not prpved whatso,ver by the prosecution side (The Econorpic and Organized Crime I Control Act, Cap. 200 R.E. 2002. I 4. That, the triC/1 magistrate erred bn point of law and fact by believing and relying on evidence produced by prosecution witnesses and ignored complete!/ by our soles diffences (sic) presented in cour:t anyhow (sic). i 5. That in view of the above grouryds of appeal it/ is clear that I the trial magistrate erred in law lbnd fact, he failed properly 3 I . I • examine (sic} consider and eradiate the evidence on record and reached on (sic} wrong decision. I ' Brief facts of the matters from which this appeol emanated I are that on 5th August, 2016, the appellants were apprehended at I I Mbalageti area, within Serengeti National Park. They: were found with four trapping wires and two knives, all of which were believed ' I to be weapons which were intended to be used for; hunting and I I I killing, wounding or trapping wild animals. They were also allegedly found in possession of forty dried pieces and :four tails of I I wildebeest, all valued at TZS. 5,460,000/=; ten dried pi'eces ·of zebra I I which were equated to one zebra valued at TZS. 2,250,000/=. These I I government trophies were all valued at TZS. 7,~80,000/=. The I I appellants were alleged to possess no permit. Aft~r their arrest, they were ultimately arraigned in court on three cqunts: Unlawful ' entry into the national park; being in possession of weapons inside I the park area; and being in an unlawful possession ~f government I trophy. After the conclusion of the proceedings, :the appellants were found guilty, convicted and condemned to payment of fine I I or serve jail terms in respect of the first two counts, vyhile in the third I count they were sentenced to serve a jail term for 20 years. The 4 r I I I I I 1: , I ) ' I I I 11 I I I I appellants are aggrieved by the cqnviction, ard sentence I, ' I I: I imposed on them, hence this appeal. r 1 , 1 II,i I I I : I • The appellants advocated for themselves at the/ hearing of II, , I the appeal, while the respondent was ~epresented: b~ Ms. Gisela I, : I I ' I Alex, learned State Attorney. At the/I commence~'ent of the I ' I I hearing, the Court extended an offer fbr the appel'la~ts to submit i I I ' I I after the respondent, noting that the /i appellants ,arEp laypersons ;, I I f I I who did not enjoy legal representation./This proposql '-ias acceded I I , I to by the parties. ' II I I I Ms. Alex began by supporting th,e conviction qnd sentence I, I I passed by the trial court in respect }1 all the th,;e~ counts with I I I which the appellants were charged. In! respect of the first ground of 1 / I I appeal, the respondent's counsel was/,of the view thtjt evidence of PW3, a game officer was authentic, Lthout an) tdbrication and 1 ' I I ! I 1ot require an II; that tendering of exhibit Pl, the dri$d meat, did I, I I l I I expert, adding that such expertise w0uld be requireid at the stage I I I of evaluation and certification of the value of! tKe trophy. She I, I I I I I contended that this ground was bas~less. / ( ' I I I 1' I 1' r i I r I 5 I I I I I r ~ \., I i I I , II I I /1 I I • With regards to the second ground,/ Ms. Alex saw ~o sense in ! I I I 0- the contention because PW 1 and PW2 iwere game officers I who i I I were involved in arresting the appellants {and that they yvere taken I, , I to PW3, a valuer, who works in a differeht institution :in /Bunda. She ,1 I / ,'' I I contended that these two institutions had distinct functibns. I I 1 1 / I 1 I ! I, r I Submitting on the third ground, tije learned counsel I was of 1' · I! I I I, ; I the firm view that consent of the Direptor of Public Prosecutions 1 1' I I 1 was filed in court. She conceded, how1ever, that t~e !aid consent I I ,1 I was issued under section 12 (3) of the Economic 'an/d Organized I, , I , I Crime Control Act, Cap. 200 R.E. 200~, instead of sFction 12 (4) I I I which caters for economic and non-Jconomic offe~ces as is the /, , I I ; case with respect to the appellants' crarges. She soi~ tha,t this was / I I I I an omission. I , 1 I I I , I I I I ' I On ground four of the appeal, Ms. Alex coQterded that the I , I I I I trial magistrate considered the defedce case, as, e~hibited by the I : I I, I I judgment, at pages 4, 5, and 6. Sh~ argued th9t ~ihe trial court's I, I ' I I conclusion was that the defence eviic:lence was yve ak and she felt 1 , I I that this conclusion was justified. She 1urged the do~rt to dismiss this , 1 , I I I I ground as well. i : I ,1 r I I I I I I 6 /, , / , I ---- 1 I I I I I I I I I I I I I ' I I I I I I I I With respect to the fifth ground, the r~spondent' s cdunsel was C- - i of the view that evidence of both parties/was considere~ and the I I I 1 trial court was convinced that offences w/ith which the ~ppellants . I were charged were proved. He added t)hat, the fact tijat exhibits I I tendered in court were recovered from tre appellants ias enough I to prove that the appellants committed ~he offences. II I I I I I I Winding up her submission, Ms. AIE}x pointed out 1\rregularities I I ' I which marred the trial proceedings, keiy among ther1 being that I I exhibit P3, Certificate of identification iand valuation/ of trophies, I. I was issued by a Game Officer, contra/ry to section 1 4 (3) of the I ~ I I I Wildlife Conservation Act. This render~d exhibit P3 jrregular. She I I submitted further that the DPP's dertificate whidh conferred I / jurisdiction on the District Court cit~d a non-existent provision I I i I (paragraph 4 ( d) of the 1st Schedule to the Ectonomic and I I. 1 I Organized Crime Control Act) which /was repealed land replaced I I by paragraph 4 in Act No. 3/201 t I I This happe~ed while the I I charges were laid at the appellants'i door on 05.08.12016, meaning I I that even the charge itself was defedtive. i I I i I I I I I I I I I 7 I / I I II ' I. J L ,- ~ \ . . . . - - - - : I I I I I I ., The counsel prayed that the matter should be tried de novo - and the Court should invoke powers under section 388 of the Criminal Procedure Act to order re-trial. In their submissions, the appellants were strongly 6pposed to prayer for remittance of the matter for retrial, cont~nding that justice will not prevail. They urged the Court to let the matter be disposed of at this stage without resorting to a re-trial. i I will begin to dispose of the appeal by first evaluating ground three of the appeal in which the appellants are con,+ending that ' DPP's consent was not issued consistent with the law. The respondent contends that the same was filed, though it carries an error on account of the fact that it was issued und~r a provision which is improper. Review of the trial court's record ~onfirms what the counsel for the respondent submitted. The said, consent was issued and filed in Court on 9th August, 2016, along with a certificate which conferred jurisdiction on the District Court of B\Jnda District at Bunda. While the question about its issuance is settled, what remains to be answered is whether such con$ent and the .certificate that 8 j purportedly conferred jurisdiction on t~e trial court :'to try an • r·· '-J economic case, were properly issued. The:respondent's qrgument is ' I that the said consent was issued under. section 12 (3): instead of I section 12 (4) Economic and Organizeq Crime Control Act. With ' respect, this an erroneous contention. What is issued un<Jer section , I 12 (3) is the certificate to confer jurisdiction and not consent. The ' I I latter has been issued under section 26) (1) of the Economic and i ' Organized Crime Control Act, whic~ imposes a ,: mandatory ' ' ' ' requirement that every trial in respect' of an econor;nic offence ' should only be tried upon the consent of the OPP. This provision was I conformed to. Where the problem li'es is with respect to the I I I provisions under which the certificate, conferring jurisdiction has been issued. It has been issued under section 12 (3)..i-w~ich provides as follows: I "The Director of Public Prosecutions or any State ;AttorneyI ' duly authorized by him, may, in each case in which he 1 ,, deems it necessary or appropriate! in the public interest, by certificate under his hand, order that any case involving an ' I offence triable by the Court under this Act be tried by a I I court of a resident magistrate." 9 Review of the charge sheet clearly shows that the :appellants • ' were charged with assorted counts, some under the Economic and Organized Crimes Control Act (EOCA), while others fell under the Wildlife Conservation Act. Yet, the certificate was issued under I section 12 (3) which is exclusively for offences under EOCA, while sub-section 4 thereof is for offences falling under EOCA and other ' laws. In such circumstances, the certificate ought to: have been issued under section 12 (3) and (4) of EOCA. The offence of being in possession of government trophy falls under section 86 (1) (2) (c) (ii) of the Wildlife Conservation Act and section 57 and item 14 of EOCA (as amended by section 16 of the Written Laws (Miscellaneous Amendments) Act, 2016). It is a legitimate observation by the respondent's counsel that citation of section 12 (3) in exclusion of sub-section 4 in the certificate ignored the fact that there was a mixture of offences which would be well addressed by hc:iving sub-secti<;:m 4 as one of the enabling provisions. The enormity of this irregularity has been a subj~ct of judicial pronouncements in a multitude of the court decisions, all of which 10 I were unanimous that the consequence is dire. In Rhob1 Marwa (~ . Mgare & 2 Others v. Republic, Criminal Appeal No. 192 of 2005 (Unreported), the Court of Appeal held: "It follows that in the absence of the DPP's consent: and certificate of transfer of the economic offence to be: tried by Tarime District Court, in terms of sedtion 12 (3) and 26 ( 1) of the Act, the subordinate Court haq:J no jurisdiction ,'to try the case. The trial was thus a nullity and the ensuing conviction and sentences are nothing but nullities. Even the proceedings before the High Court on first appeal Y(ere a nullity." Emphasis to this position was laid in David Walter Msumba & Mussa Mohamed Said v. Republic, Criminal Appeal No. 324 of 2015) in which the Court of Appeal had this to say: "Given the circumstances, we are inclined tq agree with counsel that the trial courti had no jurisdiction to combine economic and non-economic offences in '. ,' view of the requirements of ss. 12 (3), 12 (4) and.26 ( 1) of the Economic and Organized Crimes Control .Act. The trial was therefore a nullity. We are therefore cqmpelled to invokes. 4 (2) of the Appellate Jurisdiction Act [Cap 141 R.E. 2002]. We hereby quash the proceedings and judgments of both trial and the High Court and set aside the sentences imposed on the appellants." 11 I take inspiration of the wisdom in the just cited decisfons and hold that since these proceedings took this irregular path, they also 1 suffer from a similar predicament. The counsel for the respondent has raised anotheri pertinent anomaly which is of no mean significance. It is a common feature in all of the documents that found the proceedings Qgainst the appellants, including the charge sheet. The concern is that paragraph 14 ( d) to the 1st Schedule to EOCA has been cited as one of the provisions that found the offence under the third count. This was done in utter disregard of the fact that Section 16 of the amendment Act, amended the 1st Sc:hedule to the EOCA by deleting paragraph 14 (d) and substituting it with paragraph 14. She submitted that these changes became operationpl on 7th July, 2016. Referring to the charge sheet, the learned coµnsel ' ' argued that the offences with which the appellants were charged were allegedly committed on 5th August, 2.016. This shows_: that charges against the appellants were preferred under a provision of the law which was no longer in existence. 12 ! I I' I ! I i I couldn't be more pleased with the counsel's honfsty and { I candidness in exposing flaws which were committed by the i I prosecution during the trial proceedings.; The charge sf eet and documents which accompanied it exposed the prosecJtion' s soft l i underbelly, when a provision which has si~ce been consigned into oblivion was resurrected ' and used as thjI basis for the jppellants' I , I arraignment in court. This was an irJegularity of ~umongous proportion, and one which violates the ~lovisions of secfion 135 (a) (ii) of the Criminal Procedure Act, Cap. ~O, R.E. 2002, p~rt of which I I states as follows: 1 / , I 1 " ... if the offence charged is one o'reated by enadtment, ' I shall contain a reference to the settion of the endctment f I creating the offence" /I / , I Our jurisprudence is quite unanimCDus that the co~sequence of f I these wanton violations is to render thr charge defeftive and that a conviction based on a defective d::harge amounts to an unfair I i I I trial. In Mnazi Philimon v Republic, ctriminal Appea!I No. 401 /2015 I I I I (unreported} (October 2017), the Oourt of Appedl (Mziray, J.A.) held as follows: I i 13 /; I , I ! - "It is now beyond controversy that one of the principles of a fair trial in our system of criminal justice is that an accused person must know the nature of the case facing him, and this can only be achieved if the charge discloses the essential elements of the offence, and for that reason, it has been sounded that no charge should be put to an accused unless the court is satisfied that it discloses an offence known to law. A clear charge drawn in terms of s. 135 of the .CPA, would give an accused an opportunity to fully appreciate the nature of the allegations against him so as to have a proper opportunity to present his or her own case." The foregoing finding echoed the reasoning 1n Oswald Mangula v. Republic, Criminal Appeal No. 153 of 1994 (unreported) wherein the Court of Appeal held: "We wish to remind the magistracy that it is a salutary rule that no charge should be put to on accused before the magistrate is satisfied, inter alia, that it discloses an offence known to law. It is intolerable that a person should be subjected to rigours of a trial based on a charge which in law is no charge. It shall always be remembered that the provisions of section 129 of the CPA 1985, are mandatory. The charge laid to the appellant's door having disclosed no offence known to law, all proceedings conducted in the District Court on the basis thereof were a nullity since you cannot get something on nothing;" 14 I I I I I I ' II ;, I I This position in the Mangula case was fprtified ' in Abd~llah . I Ally I I , I v. Republic, Criminal Appeal No. 253 of 2013i(unreported). T,he Court i, I I I I I I I : I of Appeal had the following view: I, I I I I. I I. I I, I ,l " Being found guilty on a defective'.' charge, ba~eq on I ' I wrong and/or non-existent provisions qt the law, it icarnot I I I be said that the· appellant was fairly tried in th~ c 1burts J: 1 I I below. In view of the foregoing short/coming, it is ievtdent ' !I ;' I that the appellant did not receive a tfair trial in cou1. The wrong and/or non-citation of the ap~ropriate provisi~ns of I ; I the Penal Code under which the charge I was preferre . I d, left 1 l , I the appellant unaware that she was fbcing a serious qharge of rape." / , I I I ' I See also Nazareno Kihaga v. Reputjlic, Criminal: A~peal No. 12 f I , II 1 / I' . I of 2012 (unreported); and Charles Mlande v. Repuqlic, Criminal I : I I. I Appeal No. 270 of 2013 (unreptjrted). The i ~ost definite I. ,' II i I I consequence was set in Sadath Said @ Manzi v. Republic, Criminal I I 1,' 1 I I, . I Appeal No. 157 of 2016 (unreported). It/was I held: I I i i I I " ... the appellant was not fairly tried on acqou ht of an 1 i' I I incurably defective charge sheet.II, We are thus,' constrained I I I I I to invoke our revisional powersi'I under the prdvisions I of I. I I section 4 (2) of the Appellate Juefisdiction Act.: In I/the result, [, I Ii , I we nullify the proceedings of the two courts belbw, quash I ' 1 I and set aside, respectively, the donviction 11 enferJd I and the I, I I sentence meted out against the bppellant."1 i I, I 15 I, I ', I I, I iI i I I: I ' ;~ h l I l I i'I I I I ; I ' In view of the foregoing, I find grourid three of the appeal l , f- _ meritorious and I allow it. I I The other area of concession related to the irregularity in the ' evaluation of the government trophy alleg~dly recovered from the I . appellants. The counsel for the responoent has, quite rightly, submitted that the officer who carried o~t the evaluation is PW3. ' I ' I ' This officer tendered, in testimony, the c~rtificate of identification I I and valuation of government trophies. While I testifying, this . witness did not state his designation, apart from explaining his duties. In I ' ' exhibit P3, the witness identified himself as Game Officer: From what ' ' the respondent has stated and facts as I/they appear iri. the record ' I of the trial court, the question that follows is whether the certificate I ' I of identification and valuat'ion of tropnies tendered in court and 1 I ' admitted as exhibit P3 met the legal requirements of a valid I ' ' ' certificate. The respondent's counsel holds the view certification I I I and evaluation of the trophy did not conform to .the law. It is ' noteworthy that certification and evall!Jation of trophies is governed ' ' I by the law and the relevant statute: is Wildlife Conservation Act, Cap. 283 R.E. 2002. This legislation pre~cribes, under section 114 (3), I I j ' 16 ' I I I 11 officers who are competent to certify and e~aluate the trophy. For ease of reference the said provision provides as follows: 11 /n proceedings for an offence unqer this section~ a rl : certificate signed by the Director or wildlife officers o( the rank of wildlife officer, shall be admissible in evidence bnd ' ' shall be prim a facie evidence of the matters stated th~rein including the fact that the signature thereon is that of the person holding the office specified therein." PW3, a game officer, neither featur~s within the r11eaning of section 3 of Cap. 283, nor is he in one of the two categories which feature in section 114 (3). It follows, therefore, as rightly submitted by the respondent's counsel, that the evaluation and certification in this case was done by an incompetent officer, thereby rendering the process a mere charade that cannot be relied upon. ' It is worthwhile to remember that Epvaluation and/ certification of the trophy is intended to ascertain the value of the trophy in order to determine the appropriate• sentence to :be imposed ' ' against an accused person, once cdnvicted by th~ court. If the process is tainted with patent flaws as is the case h~re, passing of ' ' the sentence which goes with the offence become~ irregular and untenable. 17 . ' I I ' i I", II I! I,: i I In the impugned judgment, sentenci1g of the app1llants in I, I - the third count was based on exhibit P3 wh~se making prqcess has { I flouted the mandatory requirements of thei law. This is, th~refore, a sentence which was based on a docJment whose l~gality is I · i I I profoundly wanting. It follows that the sen,ltence is as ille~al as the I I i I I I I I document on which it is based. I I I I I I Having so held in respect of the de/fects on the c~arge and I. I the impropriety in the evaluation and ciertification of the trophy, i' I I I what then follows? i I I I I I While admitting that these wer~! fundamental / irreg~larities I I which go to the root of the case, the {learned couns1~1 urged this 1,' I I I Court to invoke the provisions of sJction 388 of /the Criminal i' I I i Procedure Act and quash the conviction, set aside the sentence I I I I and order re-trial of the case de novo./ / , I II I While re-trial is one of the optio1s once trial pr~ceedings are I I i I quashed, the same can only be o! rdered if cirq1umstances so 1, I require. In Fatehali Manji v. RepubJic (1966) E.A./ 343, the East I I " I African Court of Appeal held as follotvs: I I I { I I , , I I I 18 /.' I . II , _, t __.--t\~!~-""(",-- 1 I I I I, I I I i I I j ' "In general, a retrial may be ordered only where the origtnal trial was illegal or defective; it will not be ordered where ifhe conviction is set aside because of insufficiency of evidence ' ' or for purposes of enabling the prosec1./tion fill in gaps in its ,P ,' evidence at the first trial ... each case: must depend 9n its own facts and an order for retrial should be made where the interest of justice required it." In the circumstances where exhibit P3 is tainted with irregularities which render it defective :and, therefore:, failing to support the sentence in the third count, ordering retrial will only provide an opportunity for the prosecution to fill in,: gaps in its evidence at the first trial. This includes possibility of curing exhibit P3. Since the infraction is of mammoth effect, as guided in Mlande's case, an order for retrial will only cement injustice that the appellants have suffered thus far. I am also mindful of the jail sentence that the appellants have already served ,based on an illegal evaluation and certification, since 3rd of January, 2017, when they were convicted and sentenced See David Walter Msumba (supra) With these findings, I find no reason to deal with the rest of the appellants' grounds of appeal. In the final analysis, I allow the 19 I I i ; 1: I 1 : II I : I I' l· : l I I , appeal in as for as third ground of appealiis ' concerned, ' iI on the [1 I basis of which, and on the strength of othefr anorna\ies,iqJash : I the t : conviction and set aside the sentence Oljl;.I ainst the app6 nants. I I 1 11 : I order that the appellants be released frtjrn I custody pnb : ! be set I . I I free, forthwith, unless they are held or detained for anyjot\her \awful cause. iI: 1, r It is so ordered. 1: I 1: DAIED at MWANIA this 291h day of July, 2019. - I, ~. ~' .~ ,. ~\-l--f"";:-= ··~~~-. . -~A,__- 01/ ,&.-.......~. 4 If ~ M.K. IS MAll , 1: :? ~:-, . f11\ \it JUDGE I i; .·",JtJ) J· I: ~~ c::.:c_:1 .,.,/·.- . /' ,,.;;.t'Q;'-·,.,7 JJ;! I >"~- I /,. 1 {It --· \ 1 ""1' , M" v t:-'"'· ·'.. ' / / \ i 20 ,t , ~ -·~,. ,j t t J Date: 29 /07/2019 Coram: Hon. M. K. Ismail, J Appellant: Present Respondent: Ms. Mwaseba, State Attorney B/C: Leonard MS. Mwaseba: The matter is for judgment. We are ,:'ready to recei'{e it. Sgd: M. K. Ismail JUDGE 29.07.2019 1st Appellant: I am ready for the judgment. Sgd: M. K. Ismail JUDGE: 29.07.20~9 2nd Appellant: We are ready My Lord. Sgd: M. K. I~mail JUDGE I' 29. 07.20i:l 9 ,! Court: " Judgment delivered in chamber~ in the presenqe of the ,, appellants in person, Ms. Mwaseba, sfate ,I Attorney f6r the I I respondent and, Mr. Leonard B/C, this 29 th July, 2019: a·~~ r, - f:f,J; ' ~, \(Ii !!o~mail : ! At Mwanza - · -·- , 1 29.07.2<111~9 \--~ -,,,.. ., }' il_:l>>:> ,.v ~-/ M\ "1 ""\'1..-, -. t' 21 ! ~ J J', • .- ' ~·::..--:--