FELIX PHILIPO FELIX Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB REGISTRY AT SUMBAWANGA SUMBAWANGA DISTRICT REGISTRY CRIMINAL APPEAL NO. 10738 OF 2024 (Originating from Economic Case No. 1 of 2023 at Tanganyika District Court) BETWEEN FELIX PHILIPO FELIX……………………………………. THE APPELLANT VERSUS THE REPUBLIC…………………………………………..…….RESPONDENT Date of Last Order:15/10/2024 Date of Judgement: 16/12/2024 JUDGMENT NANGELA, J The appellant, Felix Philipo Felix, along with two others (not subject of this appeal) were arraigned before the Tanganyika District Court facing a charge of unlawfully possession of Government Trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 (d) of the first schedule and section 57 (1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200, RE 2019. It was alleged that, on 18th of December 2022, at Kasekese village, within Tanganyika District in Katavi Region, the accused Page 1 of 9 person along with his fellows, were found in possession of a government trophy to wit; one elephant tusk, valued at Tshs. 35,580,000/=, the property of the Government of Tanzania without any permit from the Director of Wildlife. After a full trial, the trial court found the charge against the appellant proved beyond reasonable doubt. Consequently, the court convicted him and, subsequently, sentenced him to a custodial sentence of twenty (20) years in prison. Aggrieved by the trial court’s decision, the appellant has preferred this appeal. Before this court appellant lodged his petition of appeal containing three grounds of appeal, challenging the conviction and sentence imposed on him by the trial court. The grounds of appeal are as hereunder, namely: 1. That the trial court erred both at law and fact by convict the appellant depending on conflicting inconsistence and concocted evidence adduced by the prosecution witnesses. 2. That the trial court erred at law to convict the appellant depending on a Page 2 of 9 certificate of seizure which was procured in contravention of the law. 3. That the trial court erred at law to convict the appellant with the offence which was not proved beyond all reasonable doubts as required by law. When this appeal was called for hearing, the appellant appeared in person unrepresented whereas the Republic was represented by Mr. Kapinga, learned state attorney. On the other hand, the Appellant, being layperson, prayed for his grounds of appeal to be considered without further additions. When Mr. Kapinga rose to address this court, Mr. Kapinga submitted that, the matter before this court, falls in only one legal issue i.e., the issue regarding the lack of a certificate, which would have given the court the jurisdiction to hear and determine the matter. The learned State Attorney submitted that, according to the law, a subordinate court can only hear and determine a case involving economic crimes, if the DPP has issued a certificate to that effect. To support his submission, the learned Senior State Attorney relied on what Section 12 of the Economic and Organized Crimes Control Act, Cap 200 RE 2022. Page 3 of 9 Mr. Kapinga submitted further that, according to the requirements of that provision, the certificate must state the provisions with which the accused is alleged to have violated and the same must align with the charge sheet. In his submission, Mr. Kapinga informed this court that the certificate available in the record is silent while it should have mentioned sections 86 (1) and 2 (b) of the Wildlife Conservation Act, Cap 283 RE 2022. He contended that, because there was no such mention, it means the court lacked jurisdiction and the proceedings were a nullity. Based on that submission, he urged this court to make such a finding and issue an order for the matter to be heard afresh. He relied on the case of Lufino Gabriel @ Mwakayela vs. Republic, Criminal Appeal No. 652 of 2022, to support his submission. Mr. Kapinga further submitted that the evidence, as it was presented before the trial court, does indicate that the accused was found in possession of the government trophy. He referred this court to what PW-1, PW-2 and PW-3 testified in court noting that they fully explained what happened and that it was after inspection that the accused was found in possession of the Government Trophy. Page 4 of 9 He noted that, even the rest of the witnesses do support that version. For that matter he settled for an order for trial de novo. In very brief rejoinder, the Appellant prayed for this court should ignore the respondent’s submission and proceed to release him as he was not involved in the commission of the alleged offence. He strongly opposed that the case should be heard afresh. Having heard the submissions of both sides, the question for determination before me is whether the appeal by the Appellant has merit. In principle, Mr. Kapinga, the learned senior state attorney appearing for the republic is not opposing this appeal. However, his argument is anchored not on what the appellant seems to have raised as his grounds of appeal but rather on a technical ground that the court lacked jurisdiction to hear and determine the matter due to there being no certificate vesting such powers on it. The point raised by Mr. Kapinga is a purely point of law. It touches on the competence of the outcomes of the entire trial before the trial court. In law, where the trial court lacks jurisdiction to try a particular matter, whatever comes out of the purported hearing process is a nullity for want of jurisdiction. Page 5 of 9 As stated earlier, the appellant herein was charged with and convicted of unlawful possession of government trophy. Under the law, that amounted to an economic offence as it was a violation of Section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 (d) of the first schedule and section 57 (1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200, RE 2019. According to Section 3 (1) and (2) of the Act (as amended by Section 8 of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016), the jurisdiction to hear and determine cases involving economic offences under the Economic and Organized Crimes Control Act, is vested in the High Court, sitting as an Economic Crimes Court. Further, Section 26 (1) of that same Act provides for the prerequisite conditions before commencement of trial of economic cases. It requires first the consent of the Director of Public Prosecutions. But where the matter is to be tried by a subordinate court, the law provides yet another requirement that is to be dutifully observed. The requirement is the need to ensure that either the Director of Public Prosecutions or a State Attorney dully authorized by him has issued a certificate conferring jurisdiction to the Page 6 of 9 subordinate court to try such a case which would, save for the issuance if that certificate, have been tried by the High Court as provided under the provision of section 12 (3) of the Act. In the instant matter, Mr. Kapinga has contended that the requirement of Section 12 (3) of the Act was not complied with. Indeed, the record of this appeal, does not indicate that there was a valid certificate vesting the requisite jurisdiction on the trial court to hear and determine the matters placed before it. The trial court’s record only indicate that a consent was issued and indeed the same is in the trial court’s file. However, the certificate conferring jurisdiction is not available in the record availed to this court. What seems to be present as I sated is two consent papers both dated on 4th April, 2023 and which seems to have been presented for filing and endorsed by the trial court on the same date. While Mr. Kapinga did not raise any query regarding the consent of the State Attorney in charge which seems to be properly filed in court, his concern is on whether the trial court was duly vested with the appropriate jurisdiction to try the matter before it. As rightly submitted by the Learned State Attorney the certificate, if available must have as well mentioned Section 86 (1) and 2 (b) of the Wildlife Conservation Act, Cap 283 RE 2022. Page 7 of 9 Since the certificate is lacking, it follows that the trial court had no powers to proceed with the matter and all what was done was a nullity. (See Gerald Paul Niyonzima vs The Republic, Criminal Appeal No. 257 of 2010, (Mwanza) CAT, unreported and Wagana Mwita and Another vs The Republic, Criminal Appeal No. 148 of 2009 (Tabora) CAT, (unreported). Having held that way, this court invokes its revisional power under section 373 (1) (a) of the CPA read together with section 366 (1) (a) (i) of the CPA and quash and set aside the proceedings and judgment of the trial court in Economic case No. 1 of 2023. I also quash and set aside the conviction and sentence passed by the trial court on 5th March 2024. Before the dusts are allowed to settle down, one pertinent question to follow is whether this court should order a re-trial as prayed by Mr. Kapinga. If this court is to harken to Mr. Kapinga’s prayer, it must in the first place be satisfied that ordering a re-trial will not occasion a miscarriage of justice to him the appellant, especially where the prosecution will find that to be an opportunity to marshal for better evidence. In this appeal, the appellant is complaining that the evidence against him was insufficient. Having set aside the quashed the proceedings and set aside the sentence, I do not find it fit to order Page 8 of 9 a trial de novo as that would not avail a room to counter what the appellant seems to have alleged even if this court did not go to that extent in its determination of this appeal. In view of the above, I find it pertinent to make an order for an immediate release of the appellant, Felix Philipo Felix from prison forthwith unless he is lawfully held. The appellant shall thus be immediately released from prison unless he is lawfully held for a lawful cause. It is so ordered. DATED ON THIS 16TH DAY OF DECEMBER 2024 ......................................... DEO JOHN NANGELA JUDGE Page 9 of 9