CRIMINAL APPEAL NO 24 OF 2021 JAMES SILULI MWITA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CO RAM: MUGASHA, J.A.. MASHAKA. 3.A. And ISSA. J.A/1 CRIMINAL APPEAL NO. 24 OF 2021 JAMES SILULI @ MWITA........................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba, 3,^ dated the 20th day of November, 2020 in Criminal Appeal No. 116 of 2020 JUDGMENT OF THE COURT 25th & 29th October, 2024 ISSA. J.A.: The appellant, James Siluli @ Mwita was arraigned before the District Court of Serengeti at Mugumu (the trial court) in Economic Case No. 55 of 2018 facing three counts of offence; first, unlawful entry in the National Parks contrary to sections 21(1) (a), (2) and 29(1) of the National Parks Act, Cap. 282 (the NPA); second, unlawful possession of weapons in the National Parks contrary to section 24(l)(b) and (2) of the NPA; third, unlawful possession of Government Trophy contrary to section 86(1) and (2)(b) of the Wildlife Conservation Act, Cap. 283 (the WCA) read together with paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act, Cap. 200 (the EOCCA). After a full trial the appellant was convicted and sentenced to serve 1 year imprisonment for the first count, 1 year imprisonment for the second count and 20 years imprisonment for the third count. The sentences were ordered to run concurrently. Before the trial court, the appellant was charged together with another accused person, Yohana s/o John @ Mahende who is not a party to this appeal. The prosecution case against the appellant was that, on 8th July, 2018 at 13.00 hours at Mto Grumeti area in Serengeti National Park (the national park) within Serengeti District in Mara Region, the appellant was found to have entered the park without permission, armed with one knife, one machete, and two animal trapping wires. He was also in possession of two dried meat of Zebra and two dried skin of Zebra valued at TZS. 2,616,000.00. The appellant pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge, and after a full trial he was convicted as charged and sentenced as stated earlier. For a reason that will become apparent shortly, we find unnecessary to explore the factual settings giving rise to the appellant's conviction and sentence. Aggrieved with that decision, the appellant instituted Criminal Appeal No. 116 of 2020 at the High Court of Tanzania at Musoma (the first appellate court) which confirmed the findings of the trial court and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal predicated on five grounds of appeal which goes thus: 1. That the two courts below erred in law and fact to convict and sentence the appellant as there was no evidence which prove that the appellant was found in possession o f weapons and the alleged government trophy which termed as exhibit P.E.l and P.E.3 within the National Park rather was recovery on a contrived evidence. 2. That the first appellate court erred in law and fact to upheld the judgment o f the District court as during the trial there was no consent from Director o f Public Prosecution and certificate conferring jurisdiction to subordinate court to entertain the case at hand since it falls under economic case. 3. That both the tower court and the first appellate court erred In law and fact to convict and sentence the appellant by admitting and relying on exhibit P.E.2 which was enacted by prosecution side to facilitate conviction and sentence the appellant as even PW3 who conducted evaluation of the alleged trophy did not disclose his qualification before the court since the case was totally fabricated against the appellant. 4. That the trial court and the first appellate court both erred in law and fact to pass conviction and sentence against the appellant relying on shaken and falsified evidence o f PW1 and PW2 which were incredible in nature and on the other hand failed to consider the appellant's defence but only making fleet reference to it. 5. That both the trial court and the first appellate court greatly erred in law and fact to convict and sentence the appellant by admitting the prosecution evidence which failed to prove the case beyond reasonable doubt. When the appeal was called on for hearing, the appellant was present in person fending for himself. Upon enquiry, he adopted his grounds of appeal and opted for the respondent Republic to submit first and to rejoin later if a need arise. The respondent Republic, on the other hand, was represented by Mr. Isihaka Ibrahim, learned State Attorney assisted by Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys. Mr. Ibrahim, outrightly, expressed the respondent's stance to support the appeal on the 2nd and 5th grounds of appeal. He submitted that the appellant was charged with economic and non-economic offence which falls in the jurisdiction of the High Court. The District Court can be vested with the jurisdiction provided there is a consent and certificate from the Director of Public Prosecutions (DPP). In the instant case, the consent and the certificate of the DPP are found on pages 6 and 7 of the record of appeal, but they were both invalid. They failed to mention the provision in relation to the third count of offence. Therefore, both two documents are incurable defective and it was as good as there was neither consent nor certificate. Hence, the proceedings and judgment were a nullity. He bolstered his argument by citing the Court's decision in Peter Kongori Maliwa and 4 Others v. The Republic, Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14th June 2023, TANZLII). Mr. Ibrahim added that, although the trial court had no jurisdiction the respondent is not seeking for retrial as the evidence on record is not sufficient to sustain the conviction. The case was not proved to the hilt. On this basis, he moved to the 5th ground and submitted that in the first count the appellant was charged with unlawful entry in the national park contrary to section 21 (l)(a) of NPA, but he argued that after the amendment made in 2003 the charged provision does not create an offence of unlawful entry in the national park. With respect to the second count, Mr. Ibrahim submitted that unlawful possession of weapons was also not proved as such proof depended solely on the evidence of PW1 and PW2 whose testimonies did not state about the coordinates which would confirm that the appellant was arrested inside the national park. Further, he said although the inventory (exhibit P.E.3) was tendered in the trial court, there were anomalies on the procedure for disposal of the government trophy. The appellant was not involved, hence he was not given the right to be heard. He concluded that exhibit P.E.3 ought to be expunged. To support his argument, he cited the Court's decision in Buluka Leken Ole Ndidai and Another v. The Republic, Criminal Appeal No. 459 of 2020 [2024] TZCA 116 (21st February 2024, TAIMZLII). He added that, on the face of these anomalies, the third count could also not stand. He prayed for the appeal to be allowed and the appellant to be set free. The appellant, in his reply, did not have anything of substance to say. He prayed for the Court to set him free. Taking into consideration the above submissions, the issues we have to determine are whether the trial court had and if not what is the remedy. The appellant, as mentioned earlier, was charged with three counts: unlawful entry into the park, unlawful possession of weapon in the park and unlawful possession of Government Trophy in the park. Before determining the jurisdiction of the trial court, we feel obliged to say a word about the first count. Mr. Ibrahim submitted that unlawful entry into the park is no longer an offence in this country, which we fully agree. The reason for our agreement is that, section 21 (l)(a) and (2) of the NPA which used to create the offence of unlawful entry was amended by Act No. 11 of 2003. Before the amendment the provision stated: "21(1) Subject to the provisions of section 15, it shall not be lawful for anyperson other than - (a) the Trustees, and the officers and servants o f the Trustees; or (b) a public officer on duty within the national park and his servants, to enter or be within a national park except under and In accordance with a permit in that behalf issued under regulations made under this Act. (2) Any person who contravenes the provision o f this section commits an offence against the Act." After the amendment made in the National Parks Act by Act No. 11 of 2003, the section provides: "21 (1) Any person who commits an offence under this Act shall, on conviction, if no other penalty is specified, be liable - (a) in the case o f an individual, to an fine not exceeding five hundred thousand shillings or to Imprisonment for a term not exceeding one year or to both that fine and imprisonment. (2) Any person who contravenes the provisions o f this section commits an offence against this Act." There is no doubt in our mind that, the act of unlawfully entering or remaining in the national park is no longer an offence under section 21 of the NPA as it stood in 2018 when the offence was committed. Therefore, the appellant was charged, tried, convicted, and sentenced for a non­ existent offence of unlawful entry into the Serengeti National Park. (See - Dogo Marwa@ Sigana and Another v. The Republic, Criminal Appeal No. 512 of 2019 [2021] TZCA 593 (21st October 2021, TANZLII). Coming to the issue of jurisdiction, it is critical first to state the law. The appellant was charged with three counts in which the first and second were non-economic offences while the third was the economic offence. The jurisdiction of the court to try economic offences has been conferred to the Corruption and Economic Crimes Division of the High Court under section 3(3) of the EOCCA, but the same Act under section 12(3) provided that the economic offences can be tried by a subordinate court if the DPP or any State Attorney duly authorised by the DPP directs by certificate under his hand that it should be tried by such subordinate court. In the event that the charge involves both economic and non­ economic offences section 12(4) of EOCCA provides that the certificate should be issued under this provision. (See - Mhole Saguda Nyamagu v. The Republic, Criminal Appeal No. 338 of 2017 [2019] TZCA 623 (5th April 2019, TANZLII). In the instant case, the certificate was correctly issued under section 12(4) of the EOCCA. Section 12(3) and (4) provides: "(3) The Director o f Public Prosecutions or any State Attorney duly authorised by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate. (4) The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case which he deems it necessary or appropriate in public interest, by certificate under his hand order that any case instituted or to be instituted before a court subordinate to the High Court and which involves a non-economic offence or both and economic and non-economc offence, be instituted in the court." The law also states that, for a trial to commence at the respective subordinate court, there must be a consent from the DPP under section 26(1) of the EOCCA or an officer subordinate to the DPP under section 26(2) of the EOCCA. Section 26 provides: "26 (1) 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 Prosecutions. (2) The Director o f Public Prosecutions shall establish and maintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions of which shall require the consent o f the Director o f Public Prosecutions in person and those power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or specific instructions. (3) N/A" The consent in the instant case was issued under section 26(1) of the EOCCA by the Principal State Attorney instead of the DPP. This was a 10 serious irregularity. We have said time and again that the power under section 26(1) of the EOCCA is vested in the DPP himself and is not delegable. (See- Peter Kongori Maliwa and 4 Others v. The Republic (supra) and Amiri Ally Shaban and Another v. The Republic, Criminal Appeal No. 155B of 2023 [2024] TZCA 35 (14th February 2024, TANZLII). Therefore, the trial was conducted without the requisite jurisdiction as the consent was invalid. Further, the consent and the certificate conferring jurisdiction to the trial court suffered another anomaly. They did not cite the provisions of law creating the offence of unlawful possession of Government Trophy. We join hands with Mr. Ibrahim that, the legal consequence of such omission is to vitiate the trial proceedings as the trial court acted without jurisdiction. (See - Dilipkumar Maganbai Patel v. The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25th July 2022, TANZLII), Rhobi Marwa Mgare and 2 Others v. The Republic, Criminal Appeal No. 192 of 2005 (unreported) and Chacha Chiwa Marungu v. The Republic, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5th June 2023, TANZLII). In Dilipkumar Maganbai Patel (supra), the Court stated: "The consent and certificate conferringjurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) o f the EOCCA but referred to the provisions which the appellant was not charged with.... The certificate and consent were therefore incurably defective .... The defects rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid." We, therefore, agree with Mr. Ibrahim that both the consent of the DPP and the certificate conferring jurisdiction to the trial court were invalid and hence the proceedings are a nullity. We nullify the proceedings of the trial court and first appellate court, quash the convictions and set aside the sentence thereof. The burning question left to answer is the way forward. Mr. Ibrahim has urged us not to order retrial as the evidence on record is not sufficient to sustain a conviction. We agree with him for the following reasons. One, the first count as we have discussed earlier was not an offence in law, as our law does not incriminate entrance in the park. Two, in the second and third counts there is nothing on record suggesting that the appellant was found in the national park with weapons. According to section 5 of the NPA read together with the First Schedule of the NPA it was not proved that Mto Grumeti where the appellant was alleged to have been arrested was within the Serengeti National Park. Further, the certificate of seizure was not tendered in evidence and there was no oral or paper trail showing the chain of custody of the said weapons and the trophy. Three, the record shows that the trophy was destroyed in the absence of the appellant and hence was not given the right to be heard in the disposal process. Further, the inventory which was tendered in evidence did not follow the guidelines laid down in Buluka Leken Ole Ndikai case (supra). In the circumstances, ordering a re-trial would provide the prosecution a chance to fill in gaps and thus occasioning injustices to the appellant. That would be against the settled principle in the case of Fatehali Manji v. The Republic [1966] E.A. 343 that: "a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial." In the light of the foregoing discussion, a retrial will not serve the best interests of justice. Therefore, in the final result, we order the 13 immediate release of the appellant from prison custody unless he is otherwise lawfully held. Order accordingly. DATED at MUSOMA this 29thday of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 29th day of October, 2024 in the presence of Appellant in person un-represented and Mr. Zarubabel Ngowi, learned State Attorney for the respondent / Republic, is hereby certified