MREMA JUDGMENT

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM – SUB REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 17585 OF 2024 (Originating from the decision of the Resident Magistrate Court of Kivukoni at Kinondoni in Criminal Case No. 10 of 2022 dated 27th day May 2024 before V.M. Kasego. FRANK DONUTUS MREMA………......………….......................1ST APPELLANT FAHAMI SALUM @ MGODA…………………………………………2ND APPELLANT ISSA JUMA HASSAN………………………………………………….3RD APPELLANT VERSUS THE REPUBLIC…………………..................................................RESPONDENT JUDGMENT 19th February &12thMarch,2025 MWANGA, J. Before the District Court of Kivukoni at Kinondoni, the appellants were arraigned for three counts, namely Illegal Dealing with Precursor Chemicals contrary to section 15 (1) of the Drugs Control and Enforcement Act [Cap 95 R.E 2019] read together with paragraph 23 of the first schedule to and Section 57 and 60 (2) of the Economic and Organized Crime Control Act ( Cap 95 R.E 2019, Being found in possession of counterfeit Stamps contrary to Section 122 of the Excise (Management and Tariff) Act CAP 147 read together with Regulation 36(1) (i) and (2) of the electronic tax stamps Regulations) GN No. 16 of 2018, and falsely 1 Applying Trade Marks contrary to section 3(b) of the Merchandise Marks Act, CAP 85 of 2005. The prosecution accusation against the appellants on the three counts is that, on the 17th day of September 2022 at Wazo uwanja wa panda area within Kinondoni District in Dares salaam Region, the appellants were found in possession of precursor chemical, namely Ethanol 531.2 liters, illegally dealing with counterfeit stamps purported to be of Tanzania Revenue Authority, falsely applying stamps onto the bottles and boxes with the trade mark of Tanzania Revenue Authority in counterfeit products for K-VANT, KONYAGI, DOUBLE KICK, and SMARTGIN contrary to the law. The prosecution paraded 12 witnesses and 25 exhibits to prove its case during the trial. At the same time, appellants fended for themselves and had no witnesses to call or exhibits to tender. After a full trial, the accused version was not bought by the trial court; the Court was convinced that the prosecution case was proved against the accused to the hilt and found them guilty as charged before convicting and sentencing them to a statutory sentence of life imprisonment in the first count, a fine of Tshs. Five million each for the second count and 1-year 2 imprisonment for the 3rd count 30, and the sentence was to run concurrently. In his quest to assail the convictions and sentences, the appellant lodged this appeal on eight grounds of grievance going thus; 1. That the learned trial Magistrate grossly erred in law to try the economic offense in the absence of the consent and certificate from the Director of the Public Prosecutions (the DPP) conferring jurisdiction to the trial court. 2. That the learned trial Magistrate grossly erred in law to convict the appellant in a case which the plea was illegally entered by the appellants when they were arraigned before the court for the first time and before the commencement of the trial where the charge was not read out to them and entered the plea. 3. The learned trial Magistrate erred in law and fact in convicting the appellants without considering that PW1 illegally conducted the search that led to the seizure of exhibits P3 and P17. 4. The learned trial Magistrate erred in law and fact in convicting the appellants without considering that the chain of custody of the seized items was not watertight. 3 5. The learned trial Magistrate erred in law and fact by relying on the evidence of an expert from the Government Chemist (PW6) whose evidence lacked the necessary scientific criteria for testing the accuracy of her conclusions and who tendered documentary exhibits P.20 and P.21 illegally. 6. The learned trial Magistrate erred in law and fact in convicting the appellants based on the evidence of the Prosecution witnesses, which is highly improbable, implausible, and materially self- contradictory. 7. The learned trial Magistrate erred in law and fact for failing to evaluate and consider the defense evidence and weigh it against the prosecution to determine which case is more cogent. 8. That the learned trial Magistrate erred in law and facts to convict the appellants in a prosecution case, which was not proved beyond reasonable doubt to justify the appellants' conviction. On the strength of the above grounds, the appellants pray that this court will allow the appeal by quashing the conviction, setting aside the sentence against them, and releasing the appellants from prison. At the appeal hearing, which was conducted by written submission, the appellants appeared in person, unrepresented. At the same time, 4 the respondent enjoyed the services of Ms. Phoibe Magiri, learned State Attorney. Expounding their grounds of appeal, the appellants submitted only on the 1st, 2nd,3rd, 4th, and 8th grounds of appeal. They requested that the court consider and determine grounds of appeal number 5, 6, and 7 that are not canvassed. On her side, the respondent submitted on the 1st and 2nd grounds of appeal only and prayed the court to order a retrial. Nevertheless, in determining this appeal, I intend to address the first and 2nd grounds only where the center of the controversy is whether the trial court adhered to the provisions of section 228 (1) of CPA Cap 20 [R.E 2022] if need be, I will revert to the remaining grounds of appeal. Submitting on these grounds, the appellants argued that the case against the appellants was entertained and tried by the court, which had no jurisdiction to entertain the case as in the first count, appellants were charged with an economic offense, and in the second and third counts were charged with non - Economic crimes. He clarified that the jurisdiction to try economic offenses is vested in the High Court (Corruption and Economic Crimes Division) in terms of section 3(3) of the Economic and Organized Crime Control Act [cap.200 RE 2019]. The 5 subordinate courts may be conferred with jurisdiction to try Economic Offences by the consent of the Director of the Public Prosecution (DPP) issued under section 26(1) of the EOCCA or the consent issued by a state attorney authorized by him under section 26(2) of EOCCA. For the accused person who is tried for both Economic and non-economic offenses, like in the present case, the certificate conferring jurisdiction is issued in a term of section 12(4) of the EOCCA. He contended that, in the case at hand, on page 10 of the record of the proceedings, the state attorney informed the trial court that they had obtained consent from the Regional Prosecution officer on behalf of the DPP to consent to the jurisdiction of the court under section 15(1 )(b) of the Drugs control and Enforcement Act, section 26(1) of the Economic and Organized Crime Control Act, [cap.95 RE 2019], then prayed for a date of Preliminary hearing and for the accused to be brought to the court. The appellants particularly singled out that the intended consent was the consent of the Regional Prosecution officer, which was supposed to be issued under section 26(2) of the Economic and Organized Crime Control Act. Instead, it was issued under section 26(1) of the same Act, which empowers the Director of Public Prosecutions 6 to issue consent in person. The Director of Public Prosecutions authorizes the Regional Prosecution Officer under section 26(2) of the EOCCA. In the appellant's contention, the consent was wrongly filed. Additionally, the proceedings do not indicate that the certificate conferring jurisdiction to the subordinate court was filed as required by sections 12(3) or 12(4) of the EOCCA. Worse still, no indication is discerned from the record whether the consent and certificate were received to form part of the trial court record. In the appellant's contention, this was an infraction of the law. To support their stance, he cited the case of Salum Andrew Kamande vs.R, Criminal Appeal No.513 of 2020 [2023] TZCA 133 (22nd March 2023 TANZLII), Maulid Ismail Ndonde v.R, Criminal Appeal No.319 of 2019 [2021] TZCA 538 (29th September 2021 TANZLII), Aloyce Joseph vs. R, Criminal Appeal No.35 of 2020 [2022] TZCA 771 (5th December, 2022TANZLII) and Salum Saad @ Rashid vs. Dpp, Criminal Appeal No.502 of 2019 [2023] TZCA 1737 (6th October, 2023 TANZLII). Based on the above, authorities submitted that, since in the case at hand, the consent of prosecution was filed by the Regional Prosecution officer under a section of the law that does not empower him to do the same and since the record of the proceedings is silent on whether the 7 certificate conferring jurisdiction to the subordinate court was issued and filed, and since the record of the proceedings does not locate any page on which the consent and certificate conferring jurisdiction was received to form part of the trial court record, then the court should find that, the appellants were tried with an economic offense with the court which lacked jurisdiction. They implored the court to nullify the trial court’s proceedings and the resultant judgment. In contrast, Ms. Magiri started by citing the case of Sefu Abdallah Chombo @ Baba Fatina & Others (Criminal Appeal No 628 of 2022[2024] TZCA 811, where the court of Appeal as in Shamim Omari Mwasha’case (Consolidated Criminal Appeals No 173 and 182 of 2021) [2024] TZCA 1105 considered the validity of consent issued by the DPP to prosecute the appellants. In the end, however, the court, among other things, held that a person charged with an offense related to terrorism and/or of economic nature shall not commence unless the consent of the DPP is issued before the commencement of the trial to prosecute such person, and if an accused person is charged with any of the said offenses before the High Court and when there is no consent by the DPP to prosecute such a person, the said court would lack 8 jurisdiction to try such offense and the entire proceedings and judgment would be a nullity. While conceding that the trial court let the issue of endorsement of the consent issued by the DPP on 26th June 2023 pass unchecked, the state attorney said the remedy can be found in the case of Shamim Omari Mwasha, where the court was of the position that, giving or withholding consent to prosecute an economic case, is exclusively within the domain and mandate of the DPP. The purpose of the consent is for the DPP to signify his desire and intention to the trial court that he is ready to prove the charge against a suspect that Intention or the substance of the DPP’s consent, thus the spirit of the consent cannot be enhanced or be diminished by its endorsement or non-endorsement by any other person or official other than the DPP. On the second ground, Ms. Magiri submitted that the records show the court read over the charge but did not take the appellants' plea, an act contrary to the law. It was her submission that failure by the trial court to observe the requirement imposed under the said provision vitiates the entire trial and renders the proceedings and the judgment a nullity and remedy if they are to be quashed. While admitting the 9 that the omission was a bit wayward, she implored the court to order a retrial. I have carefully reviewed the parties’ submission regarding above complaints with the weight it deserves. I have also scrutinized the available records. As mentioned earlier, the center of controversy is non-adherence to the provisions of section 228(1) of the CPA cap 20 R.E 2022 and the trial court's jurisdiction on the first count. Starting on the issue of jurisdiction. The appellant contends that the record is silent on how the certificate conferring jurisdiction to the subordinate court got its way on the trial court's file, as the court did not endorse it. This point will not detain me. As rightly submitted by learned state attorneys, the law is now settled that the same is not fatal, as the purpose of the consent is for the DPP to signify his desire and Intention to the trial court that he is ready to prove the charge against a suspect. That Intention or the substance of the DPP’s consent Cannot be enhanced or diminished by its endorsement or non- endorsement by any other person or official. This sound principle was discussed in the case of Nassib Abubakari Mwazyega@ Ras vs. Republic, Criminal Appeal No.146 of 2021, where the court held that, 10 “We are decidedly of the view that, since consent is a requirement for arraignment, administrative processes on how the consent lands in court cannot supersede the necessity of having the consent in place and in time. As we wind down on this emotive issue of consent, we find it apt to reiterate our consistent position, which is to the effect that even where irregularities are said to exist, such irregularities will only bear adverse consequences if they result in prejudice to the accused person - see: Simon s/o Shauri Awaki @ Dawi v. Republic, Criminal Appeal No. 62 of 2020 [2022] TZCA 51 (23 February 2022, TANZLII); Deo John v. Republic, Criminal Appeal No. 361 of 2020 [2022] TZCA 59 (24 February 2022, TANZLII; and Yanga Omari Yanga v. Republic, Criminal Appeal No. 102 of 2019 [2021] TZCA 220 (1 June 2021, TANZLII). In all those cases, the holding is that such infractions may be cured by invoking the provisions of section 388 of the CPA. This is what we underscored in Simon s/o Shauri Awaki @ Dawi (supra) in which failure to supply a copy of the committal proceedings consistent with the imperative requirement of rule 9 (1) of the Economic and Organized Crime Control Rules, 2016 GN. No. 267 of 2016, which is, in our opinion, a graver infraction than non-endorsement of the consent, was considered to be too insignificant to vitiate the trial. Guided by the 11 foregoing, we find this ground of appeal hollow, and we dismiss it.” Applying the above authority to the fact of this case, it is my conviction that since the certificate conferring jurisdiction to the trial court was filed in court on 26th June 2023, and the same is found in the court file, then the appellant's contention is baseless and the same is dismissed. Similarly, his argument that the state attorney tendered the certificate by referring to the wrong provision is equally unfounded as the duplicate certificates carry the proper provision, and the appellants were not prejudiced in any way. Next is the appellants’ contention that the trial court did not comply with the provisions of section 228(1) of the Criminal Procedure Act Cap 20 R.E 2022. For clarity, I find it prudent to reproduce the relevant section here under; “228. -(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2) Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses, and the magistrate shall convict him and pass sentence upon or make an order 12 against him unless there appears to be sufficient cause to the contrary”. The above section is evident that, before the accused person is called to enter his plea to any criminal charge, the trial court is duty-bound to state or explain to him the substance of the charge in detail to elicit the true and unequivocal plea from him when pleading to the said charge. Secondly, his plea should be recorded as nearly as possible in his words. This suggests that each accused person’s plea should be recorded. The rationale behind the narration of facts from the charge sheet took its foundation to the fair trial and principle of Natural justice; the accused must understand the content of the charge for a fair trial. Expounding on this position, the Court of Appeal in the case of Mussa Mwaikunda Vs. Republic [2006] TLR No. 387 CAT Held that “The minimum standard which must be complied with for an accused to undergo fair trial are (i) He must understand the nature of the charge, and this can be achieved if the charge discloses the essential element of the offense charged (ii) That he must plea to the charge and exercise the right to challenge it. (iii) He must understand the nature of the proceedings to be an inquiry into whether or not he committed the alleged offense (iv) He must follow the course of the proceedings (v) He must understand the substantial effect if any evidence that may 13 be giver against him (v) That he must make a defense or answer to the charge..." Failure to comply with the provisions of section 228 of the CPA is prejudicial to the accused's right to a fair hearing. This position was adumbrated in the case of Rojeli s/o Kalegezi & 2 Others vs Republic, Criminal Appeal No. 141 CF 143 of 2009, where the Court of Appeal determined that failure to comply with the mandatory requirements of Section 228 of the Criminal Procedure Act amounts to an unfair trial. In the present appeal, it is undisputed that the appellants were charged with three counts, where the first count was an economic offense. In contrast, the remaining counts were non-economic offenses. Worse enough, when first arraigned to court, the appellant entered a plea on the first count while the court had no jurisdiction to take their plea. The records further reveal that the certificate conferring jurisdiction to the trial court to try the first count was introduced in the trial court proceedings dated 22/08/2023, where the State Attorney was recorded as follows; “S.A. The case is coming to day for mention. However, we have obtained consent from the Regional Prosecution officer on behalf of the DPP to consent the jurisdiction of this court under section 15(1)(b) of the Drugs control and Enforcement 14 Act, section 26(1) of the Economic and Organized Crime Control Act, [cap.95 RE 2019]. I therefore pray for a date of Preliminary hearing and the accused be brought to this court. Hearing of the case will be after Preliminary hearing on the same day. I have a witness who is ASP. Omary Wawa from Kawe Police Station. ORDER: 1. Phg and hearing on 23.05.2023 2. witness Asp. Omari Wawa is warned to attend 3. R/o be issued. Sgd: H.S. MSONGO - SRM 22.08.2023” The next date, which is 23/08/2023, the records read; Coram: Hon. H.S. Msongo-SRM PP: Deborah Mushi-SA CC: Filomena-RMA 1st Accused: 2nd Accused: All Present 3rd Accused: SA: For phg. Accused: We are ready. Court: The accused refreshed then charges. Sgd: H.S. Msongo-SRM 15 The trial magistrates continued with the Preliminary hearing stage. As the records suggest, the court read over the charge but did not take the appellants' plea. This was a colossal irregularity that the court should not have cast a blind eye on. The same prejudiced the appellants' right to a fair trial as it was well stated in the case of Naoche Ole Mbile vs Republic (1993) TLR 253, the Court of Appeal had this to say; “1) One of the fundamental principles of our criminal justice is that at the beginning of a criminal trial, the accused must be arraigned, i.e., the Court has to put the charge or charges to him and require him to plead. 2) Non - compliance with the requirement of arraignment of an accused person renders the trial a nullity." Under the guidance of the above authority, I, thus, enjoined to invoke the revisional powers conferred to this court under section 373(1)(a) of the CPA and proceed to nullify the proceedings and judgment, quash appellant’s conviction and sentence inflicted upon the appellants is set aside. Having so found, the immediate question is the remedy under the circumstances. As alluded to earlier, Ms. Magiri implored the court to remit the file back to the trial court for retrial. On their side, appellants strongly 16 oppose retrial, claiming that there are other anomalies in the trial court proceedings, such as the chain of custody not being watertight, the search leading to the seizure of the incriminating exhibits in the case being conducted illegally, and thus the case was not proved beyond a reasonable doubt. As the law stands, whether to order a retrial or not depends on the circumstances of the case. This principle was enunciated in the case of Adam Seleman Njalamoto vs Republic, Criminal Appeal No. 196 of 2016 CAT, Dar es Salaam, where it was stated that - 'We are mindful that where the trial court fails to direct itself on an essential step in the course of the proceedings, it does not, in our view, automatically follow that a re-trial should be ordered, even if the prosecution is not to blame for the fault. Clearly, of course, each case must depend on its particular facts and circumstances". Moreover, to ascertain whether this court should thus order a retrial, guidance is provided in the case of Fateh Ali Manji Vs. R [1966] E.A. 343 where the court held; “In general, a retrial may be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for purposes of enabling the prosecution to fill in gaps in its evidence at the first trial. Each 17 case must depend on its own facts, and an order for retrial should only be made where the interests of justice require it." Having that position in mind, the immediate question is whether, in the case at hand, there are no gaps the prosecution will fill when a retrial is ordered. The answer to that question is not far-fetched. As appellants lament, the chain of custody of exhibit P3 to P17 is not watertight as the record is barren on how the same was handled from the time of their seizure to the time of their production in court, that is to say, the chain of custody was not established; Secondly, some seized items were missing thus not tendered to court as admitted by PW1, and there is no explanation to that effect. Under that circumstance, ordering a retrial will allow the prosecution to fill those gaps. As there is a complaint in the eight grounds of appeal that the prosecution case was not established at the required standard, and as long as there are trial defects as shown above, ordering a retrial will give a chance for the prosecution side to fill in the gaps, the act which will be against the dictates of the cited case of Fatehali Manji (supra). On the above account, I refrain from ordering a retrial. Since this ground of appeal is sufficient to dispose of the appeal, I do not find any useful reason to consider the rest of the grounds of appeal. Eventually, I 18 allow the appeal; the appellants should be released from prison unless held for any other lawful cause. It is so ordered accordingly. H.R. MWANGA JUDGE 12/03/2025 COURT: Judgment delivered at Dar es Salaam in chambers this 12th March 2025 in the presence of appellants in person and Ramadhani Kalinga State Attorney for the Respondent. H.R. MWANGA JUDGE 12/03/2025 19