20191016 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

ATMWANZA CRIMINAL APPEAL NO. 293 OF 2018 ( Originating from Criminal Case No. 59 of 2014 of the:·.District Court of Bunda District at Bunda) ':., JACOB DANIEL@ MASUNGA ......................... ~',············APPELLANT

VERSUS THE REPUBLIC ...... ■■■ I •••••••• ■■■■•■■ I ■■■■ .11111 ■ I ■■■■■•■■ I~;. 1 1 1 . I. ■■ RESPONDENT

JUDGMENT 25.9 & 16.10.2019 MADEHA, J Before District Court of Bunda, the appellant Jac~b Masunga with one . other accused was charged and convicted with the off~nce of entering into · a National Park without permit C/5 21 (1) and (2) of th,e National parks Act Cap 282 (R.E 2002) for the first count. For the secbnd count unlawful possession of weapons in a National Parks C/5 24 (lY,, (b) and (2) of the National Parks Act Cap 282 (R.E 2002) read together wit:h paragraph 14 (c) of the First Schedule to the economic and Organized Cri~e Control Act Cap ' 200 (R.E 2002), third count unlawful hunting in a national parks C/5 23 (1) of the National Parks Act (Cap 282 R. E. 2002). Fourth count the offence of unlawful possession of government Trophy C/S 86 (1) a~d (2) (c) of the 1 -. I ' Wildlife Conservation Act No 5 OF 2009, read tog~ther with paragraph 14 (d) of the first schedule to the Economic and Org~nized Crime Control Act I Cap 200 (R. E. 2002), the appellant was sentenc~d for the first count to serve one year in prison, for the second count to s'~rve one year in prison ' for the third count to serve three years in prison, for the fourth count to I serve twenty years in prison, the sentence run conc"urrently. The sentence I : • and conviction did not amuse him,· he lodged this first appeal on to the ' following grounds of the complaints, I hereby reprodJce as follows: Ii '' 1. That, the trial Court erred in law to conneif the appellant with ' ' irrelevant crime whereby they were arrested in different areas.

2. That, the appellant was not arrested within the ~ational parks as was ' evidence produced by the prosecution witnesses. There was no independent witness to corroborate the evidence by PW1 and PWJ. ' 3. That, the evidence adduced before the lower Co1/rt was full cooked ' exhibits that is PW1. PW2. And PWJ were the samt people from the ' same office, hence evidence fabricated one. ', ' 4. That, the consent of the office of the Director of the public prosecutions (DPPP) was not proved whatsoever by the prosecution 2 I 'I I I ' (DPP) was not proved whatsoever by th~ prosecution side {The I Economic and Organized Crime Control Act ~ap 200 (R.£ 2002). 'I The offence was alleged to have been commi~ed on 28Th June 2014. The appellant was sentenced for the first count aUaccused to serve one 1 years imprisonment, for the second count to serv~ one year in prison for 1 I the third count to serve three years in prison, for th~ fourth count to serve ' I twenty years in prison, the sentence run concurreqtly, the appellant was aggrieved by the conviction and the sentence and f1 led an appeal against 1 I '1 the conviction and sentence in the District Court. 1 Before me the appellant filed six grounds of appeal and I hereby I ' consolidated the grounds of complaints into four gr~unds, the appellant I appeared in Court in person, the respondent was repr~sented by Mr Juma I ' '' Sarige Senior State Attorney. '1

I I I ' Defending himself, the appellant faulted the de~ision of the Court I below, the appellant said that he remembers on 28/6/2tj14 he moved from ' ' his home and went to his farm, his farm was near ga~e reserve and he ' I was arrested, he was convicted and sentenced to serve 30 years in prison. ' 3 'I I I For the respondent Mr. Juma Sarige senior State Attorney who asked '1 for a retrial because the Director_ of Public Prose~utions did not sign the ' consent and the signature on the consent is of se'pior State Attorney who I ' has no authority to sign the consent. He went th(ough the case records ' I and found that there was a certificate, but the Director of Public 1 ' 'I Prosecution consent does not exist. This was derived from section 26 ( 1) of I the Economic and Organized Crime Act Cap 200 (R\ E 2002) as amended I i I by Act No 3 of 2016. The consent and the certificate did not include the I I offence in which Court has jurisdiction to determine, the Court has no I I ' jurisdiction to hear and determine this matter sine~ there is no proper '1 consent and certificate for these reasons the proceediri9s were a nullity. I '' ' The signature in the certificate to give juris~iction to hear and I determine this case was not signed by the Director of:: Public Prosecutions 1 I hands as the laws requires, the certificate was signed by the state Attorney ' '1 instead of the Director of Public Prosecutions, due to the diversity the Court 1 1 1 I 1 has no jurisdiction to hear and determine this case, he :,asked this case to ' I be marked as de nova. Because the available evidence 1s not sufficient to . I ' ' ground conviction of the appellants. In .his submission, heI cited the case of I Emmanuel Rutta V. R Criminal Appeal No 357 of 2014. :\It has got similar 4

I I I \I I I to this case as he stated that theievidence is eno~gh to be able to ground 'r \ the conviction of the appellant. The issue here is ~hether the District Court 1 : I I I has got jurisdiction to entertain thi~ case. 1 , I I will determine this appeal by ~iscussing the f~urth grounds of appeal 1: I other ground I reproduce as follow~ : \ 1

II I r \ That, the consent of the office '., of the Direct0r I of the public I,, I prosecutions (DPPP) was npt proved whatsoever by the , I prosecution (DPP) was ndt proved whatsoever by the prosecution side {The Ecohomist and orJanized Crime Control Act Cap 200 (R.E 2ob2J." \ Ii' I I I As a result of the grounds of ap9eal as shown a'pove, I combine the ideas of the Senior State Attorney an~\ the ideas in thJ\ case of Emmanuel Rutta V. R Criminal Appeal No 357 of 2014 held at Bukoba and to follow the decision of CAT in this case, in ~ereabove cited bases it was stated I \ that: :;I

I I I i',, I "The question we have to address is whether I the two I 1 1 I. II documents issued by the learnf Principal Stat\ Attorney did confer jurisdiction in the District Court to try the 11 :; I 1 I I offences the appellant was charrd with. Under\section 3 1 1, II I I 1. 5 II \ I \ ' .

I

I

I

I

I

I

I I I (~) of the Economic Crimes Court Hdwever, economic '1 I crimes Act the High Court is EconomicI Crimes Court. I I However, economic crimes can be tried iri the subordinate 1 I I Court where the Director of Public p/9secution fulfils I certain conditions. A consent to have the c~se tried by the ' subordinate Court under section 26 (1) mpst be issued'~ I I The section reads: I I I ' I I "The Director of Public Prosecutions is also I required to issue I '1 certificates under section 12 (3) transferring case for the trial in the '1 I Subordinate Court'. 11 1

I

I

I I I Back to this case at hand the appellant was charged I and other one accused persons with the offence of unlawful ' possession of the 1 1 '1 government trophy C/S 86 (1) (2) (c) of the Wildlife Cqnservation Act No 5 I I ' of 2009 read together with paragraph 14 (1) of the fir:st ' schedule of the Economic and Organized Crimes Control Act Cap 200 '(R.E ' ' 2002). Was a consent of the Principle State Attorney In -Charge issuedI under section 26 of the Economic and Organized Crime Control Act No i3 of 1984. There were no consent and certificate from the director of publ prosecution. 6 ' \. \ I ,. r.,:~inclined to adopt the defision in the cast of Emanuel Rutta V. , I R criminal Appeal No 357 of 2014\.held at Bukoba,\ because it has got the ·,; I I I same situation as that which took\place at the Coµrt of Appeal Tanzania '

I II 1 (Bukoba). For the above reason thd,. trial conducted py the District Court of ', I . I, I ' Bunda was a nullity, I share the vielvs of the learne~ State Attorney in the '1; , I I fate which will fall on the appellant i8 the event of a <Court ordering retrial. ' \ , I Therefore, I hereby quash all ~he proceedings ~nd judgement of the I I ,1 ·1. subordinate Courts and leave the fat~ of the appella~t to be dealt with by :, I the Director of Public Prosecution. I \give an order f~r the release of the appellant from prison unless he is ~fld there for ot~er lawful purposes. I I 1 Appeal allowed. Order accordingly. 1 ; \ ~ U.E. Ma,deha I\ Judge \ 16/10/2019 I I 1: i I I Delivered in Mwanza on the 16Th day oflOctober, 2019 I I I \ \ U.E. Madeha I Judge \ 16/10/2019 \I \

I I I 7 ' \ : I ' ' \ i I I I t. \ I I ,I I ' ' I i' I I ' I I '\ \