20180122 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA ' r,

ATMWANZA CRIMINAL APPEAL NO 24 OF 2017 (Original Criminal Case No 76 of 2014 of the District Court of Bunda District at Bunda Before Hon. Kasonso PDM} . GAMAYA PUJA .......................•... ~ APPELLANT

VERSUS THE REPUBLIC .................... .RESPONDENT

JUDGMENT 22.11.2017 & 22.01.2018 Matupa, J. , The appellant was convicted by the D.istrict Court of Bunda at Bunda with four counts of unlawful entry into a game reserve, unlawful possession of weapon in the game reserve contrary to section 21(1)(a), unlawful hunting in the game reserve contrary to section 24(1)(b)(2) as read together with paragraph 14(d) of the first schedule bf the Economic and organized cr,ime control Act cap 200 and Hlegal possession of government trophies contrary to section. 86 (1) of the Wildlife conservation Act as read together with paragraph 1 ,· 24ld) o,.f the 1st schedule to the Economic and organized Crime Control . . Act. th The facts of the case were that, on the 18 day of august, 2014 the appellant was found at a place known as Handajenga, within Serengeti District, with an assortment of weapons that is, two knives, one machete and six trapping wire, and also· he was in the possession of some parts of wildebeest. Accordingly, he was charged of the offences as aforesaid. At the conclusion of the trial, the appellant was convicted as charged and was sentenced to a term of one year imprisonment in relation to the first and second counts and three years imprisonment in relation to the third count. He was also sentenced to a statutory minimum term of twenty years imprisonment in respect of the fourth count. The appell·ant is aggrieved by the decision of the trial court, he has appealed to this court on the following grounds.

1. That the trial magistrate misdirected himself in facts and law and failed to evaluate .the evidence adduced · before the honorable coast since he came up with a wrong decision . 2 U< I 1.

2. That the trial court in this case did not have consert (sic) of the DPP as the case fall under economic crime. (Economic and Organized Crime Control Act Cap 200R.E 2002) 3. That the trial magistrate erred in a point of law and fact by believing and relying on evidence produced by prosecution witnesses and ignored completely my sole defense presented in court anyhow. There was no any independent witness whom witnessed the scene of the allege exhibit PE1 and PE2) Section 61 Evidence Act Cap 6 R.E 2002) 4. That the trial Magistrate erred in law laws and fact to admit exhibit (PE1 and PE2) also witness (PW1 and PW2) had failed to prove that the appellant was found in National Park by inviting more witnesses such as police officer SAP/WI police post or Bunda police station to achieve the scene apart from rangers of TANAPA section 130(1)(3)(4) and 5 of the evidence Act cap 5 of RE 2002 5. That it is not true that the appellant Wc?S caught in the national park but was due to he went to visit his friend who Jumped bail then he was involved this case in this way. When the appeal was called up for hearing the appellant did not have services of a counsel. The republic, the respondent herein was represented by Ms Mwaseba, learn~d state attorney. 3 \\ · !~ At, the outset, Ms Mwaseba conceded that the trial was a nullity as there were problems with the proceedings since the charge sheet

is ,,. not in accord with the consent. I have reconciled the three documents myself. One, there are two charge sheets. The first one is date 19th August, 2014 and the second one which substituted the former one, is dated 4th August, 2015. The 1 1 l .j consent of the State Attorney in charge is dated 10th April, 2015. Two, '.1 '.j the consent and certificate granting jurisdiction to the trial court were issued on different dates to the both charge sheets. Therefore, it is not known the consent and conferment of. jurisdiction is .in relation to what charge. Definitely, it could not be in relation to the second charge because the consent was issued before the charge was drawn. If the confer~ed jurisdiction was in relation to the first charge, then again this would be ir~egular as that charge was not the subject of the trial. This confusion would have been obviated., had the learned State Attorney in charge, and .on this, I wish to assume for the purpose of this case that he has jurisdiction over the area as he does not indicate 4 ~·~ ·. he is a State Attorney in charge of what station, complied by letter the dfrective of section 29 (6) and (7) of the Economic and Organized Crime control Act. It defeats logic that a state attorney in charge can give his consent to a charge which he has not seen and therefore he has no control. The provisions of section 12 (3) cannot function

without compliance with section 29 (6) and (7). This means that the function of satisfying the attorney of the prop'riety of remanding a case to a subordinate court under section 12(3) is a function of studying the file and making a decision on it, unless the conferment is general under section 26 (2). In other words, consent of a charge which does not contain a signature of the state attorney in charge is suspect. As it has happened in th~ present case, where a charge is signed several months after the consent is issued, cannot be said to be subject of the consent. Likewise, conferment of jurisdiction of such a case in that style is irregular and incurably, defective. Having said all this, I am in agreement with Ms Mwaseba learned State Attorney, that the consent in the present case is irregular and s \\ \\ JI_ 0 ; the trial ,on it is vitiated. The second ground of appeal is hereby allowed. The proceedings are accordingly quashed and set aside. i'J:) What would be the cause under the circumstances? Since the case was pending for trial at the district court, I will make an order remitting the matter to the trial court for the proceedings to continue as if the consent and the certificate were not given. The Director of public Prosecutions is urged to comply with section 29 (6) and (7) while acting under sections 26 (3) and 12 (3). In the meantime, the appellant shall remain in

remand custody. Having held as I have done, I· find no need to deal with the remaining grounds of appeal. 6 ; Date: 22.01.2018 Coram: Hon. Matupa, J Appellant: M/s Ghati - State Attorney Respondent: present B/c: Nazarena M/s Ghati State Attorney: The case is set for judgment and we are ready. Court: The judgment was delivered in chambers in the presence of the parties this 22 nd day of January, 2018. Right of appeal explained. 7 I' i I, \iI.