geofrey musoma vs the republic 2024 tzhc 785 19 january 2024

IN THE HIGH COURT OF TANZANIA (DISTRICT COURT OF SUMBAWANGA) ATSUMBAWANGA DC CRIMINAL APPEAL CASE NO. 50 OF 2022 (Originates from the District Court of Miele at Miele in Economic Case No. 15 of2021) GEOFREY MUSOMA.......................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT JUDGMENT 7h December, 2023 & 14h January, 2024 MRISHA, J. This is an appeal from the District Court of Miele at Miele (the trial court) before which the appellant was charged with one count of Unlawful possession of Government trophy contrary to section 86(1) and (2)(c)(i) of the Wildlife Conservation Act No. 5 of 2009(the WCA) read together with paragraph 14 of the schedule to, sections 57(1) and 60(2) both of the Economic and Organized Crime Control Act Cap 200 R.E. 2019(the EOCCA). i The particulars of the offence were that on 21st day of August, 2021 at Ukingwamizi area in Katavi National Park within Miele District in Katavi Region, the appellant was found in unlawful possession of twenty (20) kilograms of Bushbuck meat valued at USD 600 equivalent to Tshs 1,390,800/=, the property of the United Republic of Tanzania. The record reveals that when the case was presented to the District Court for the first time on the 30th August, 2021 that the charge was read over and explained to the appellant who was not required to plead thereto on account that the offence he was charged with, was triable by the High Court. On 16th February, 2022 the prosecution Republic filed with the trial court the consent and certificate to confer it with jurisdiction to try that offence, then the appellant's plea was taken upon which a plea of not guilty was entered. The prosecution called a total of six witnesses to prove its case against the appellant who upon being found with a prima facie case, fended for himself as DW1. In the end, the appellant was convicted and sentenced to serve the imprisonment sentence for a term of twenty (20) years in prison. The appellant is disgruntled with both conviction and sentence. He has thus, preferred the present appeal before this court through a Petition of Appeal which 2 contain three grounds of appeal. In determining the appeal, I will not intend to preface my judgment with a detailed factual background of the case, the evidence adduced by the prosecution and that of the defence side. Likewise, for reasons which will be apparent shortly, I will not dwell much on the grounds raised by the appellant, rather I will take a different approach in determining the instant appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented whereas the respondent Republic had the legal service of Ms. Atupelye Makoga, learned State Attorney. The appellant started challenging the impugned decision of the trial court by submitting that, on 10th June, 2022 he filed a Petition of Appeal with the court comprising of several grounds of appeal which are self-explanatory. Hence, he prayed to the court to adopt the said petition of appeal in order to form part of his submission in chief. He finally prayed to this court to allow his appeal. The appeal was supported by Ms. Atupele Makoga, though on a different approach. She supported the appeal on the ground that the trial court convicted and sentenced the appellant without having jurisdiction to hear and determine the case against the appellant. 3 Ms. Atupele Makoga contended that the trial court with original jurisdiction to try economic offences is the High Court; referred section 3(3) of the EOCCA which vests the High Court with jurisdiction to hear and determine cases involving economic offences. She went on submitting that however, the Director of Public Prosecution (the DPP) or the State Attorney authorized by him, may by a certificate, order any case involving an offence triable by the High Court, be tried by such subordinate court to the High Court, as provided under section 12 (3) of the EOCCA. She also submitted that section 26(2) of the EOCCA provides for the manner in which the consent for prosecution of the accused person before the subordinate court for an economic offence may be obtained without delay. She further submitted that the appellant herein was charged and prosecuted before the trial court after the State Attorney in charge of Katavi Region had issued certificate and consent. k However, Ms. Atupele Makoga submitted that unfortunately, both the certificate and consent appears to lack the charging section and for those circumstances, it was her argument that the omission makes all the proceedings of the trial court a nullity. She referred the case of Dilpkumar Maganbai Patel v Republic, 4 Criminal Appeal No. 270 of 2019 CAT Dar es Salaam (unreported) to strengthen her argumentation. Lastly, she argued that the evidence adduced before the trial court, is sufficient to prove the case against the appellant, hence she prayed to this court quash conviction as well as the sentence meted out to the appellant and order a retrial of the appellant. In rejoinder, the appellant being a lay person had nothing to add rather than reiterating his previous prayer that his appeal be allowed so that he becomes free. I have personally, considered the foregoing submissions of both parties. I agree with the learned State Attorney that the trial court did not have jurisdiction to hear and determine the case against the appellant. This is because, it is the High Court which is vested with original jurisdiction to hears and determines the economic offences. It is provided under section 3 of the EOCCA thus: "The jurisdiction to hear and determine cases involving economic offence under the Act is hereby vested in the High Court." 5 Without prejudice the above provisions of the law, the economic offence cannot be commenced without obtaining the consent of the DPP as required under section 26(1) of the Act, which provides that: "Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act, save with the consent of the Director of Public Prosecution." In the trial court, the appellant was charged and prosecuted with an offence of unlawful possession of government trophy which is an economic offence, and the High Court is vested jurisdiction to try the case. Despite the fact that the State Attorney in charge issued a certificate conferring the said trial court with jurisdiction to try such economic case under section 12(3) of the EOCCA, the said certificate lacked the charging section. This is mirrored from the court records as hereunder: "CERTIFICA TE CONFERING JURISDICTION TO SURBODINA TE COURT TO TRY AN ECONIMIC CRIME CASE I ABEL M. SANGA, Regional Prosecutions Officer of Katavi Region, DO HEREBY in terms of section 12(3) of the Economic and Organized Crime Control Act [Cap 200 R. E. 2019] read together with Part III of the Schedule to Government Notice No. 296H of 2021 ORDER that GEOFREY S/O MUSOMA who is charged for contravening the provision of paragraph 14 6 of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] BE TRIED by the DISTRICT COURT OF MLELE at MLELE. Dated at Mpanda this 22nd day of December, 2021 Sgd Abe! M. Sanga REGIONAL PROSECUTIONS OFFICER" Moreover, the consent of the Regional Prosecutions officer to prosecute the appellant stated as follows: "CONSENT OF THE REGIONAL PROSECUTIONS OFFICER I, ABEL M. SANGA, Regional Prosecutions Officer of Katavi Region, DO HEREBY in terms of section 26(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] read together with Part III of the schedule to Government Notice No. 496H of 2021 CONSENT to the prosecution of GEOFREY S/O MUSOMA for contravening the provision of the paragraph 14 of the First Scheduled to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] the particular of which are stated in the charge sheet. Dated at Mpanda this 22nd day of December, 2021 Sdg Abei M. Sanga REGIONAL PROSECUTIONS OFFICER" 7 According to the charge sheet, the appellant was charged with unlawful possession of government trophy contrary to section 86(1) and (2)(c)(i) of WCA read together with paragraph 14 of the first schedule to, and sections 57(1) and 60(2) both of the EOCCA, but that the charging section is not inserted in the certificate confer jurisdiction and the consent issued by the State Attorney In charge of Katavi Region. Since the alleged consent and certificate conferring jurisdiction to the trial court to try the appellant, lack the charging section which appears in the charge sheet, I am constrained to follow the guiding principle cited by the learned State Attorney for the prosecution which was stated in the case of Dilipkumar Maganbai Patel v Republic (supra); See also the case of Manganzo Zelamoshi @Nyanzomola v Republic, Criminal Appeal No. 233 of 2016 (unreported). Having said so, I proceed to find out that the trial and proceedings before the trial court, were nullity. I therefore nullify the whole proceedings of the trial court, the judgement and the conviction entered thereto. I also consequently, set aside the sentence which was imposed upon the appellant. 8 As for the way forward, I equally agree with the submission of the learned State Attorney that remedy thereto is to order a retrial before another Magistrate with competent jurisdiction, as I hereby do. I further order that should the appellant's case end up with a conviction, then in imposing the sentence; the convicting Magistrate should take into account the period already spent by the appellant in prison custody. In the meantime, the appellant should remain in custody to wait for the retrial of his case. It is so ordered. JUDGE 19.01.2024 DATED at SUMBAWANGA this 19th day of January, 2024. 9