a2 JOFREY ANYINGISYE

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 11629 OF 2024 (Originating from the district court of Mbarali at Rujewa in Economic Crime Case No. 30 of2022) JOFREY S/O ANYINGISYE....................................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT JUDGMENT Hearing date: 27/05/2024 Date ofjudgment: 08/07/2024 NDUNGURU, J. The appellant Jofrey Anyingisye was charged and sentenced in Economic Criminal Case No. 30 of 2022 by the District Court of Mbarali for unlawful possession of Government trophies. The charge reads STA TEMENT OF OFFENCE UNLAWFUL POSSESSION OF GOVERNMENT TROPHY contrary to section 86(1) and (2) (c) (ii) of the Wildlife Conservation Act [Cap 283 R: E 2022] read together with paragraph 14 of the First Schedule to, section 57(1) and 60(2) both of the Economic and Organized Crime Control Act [Cap. 200 R: E 2022].' The particulars of the offences were that, on 14th day of October, 2022 at Kongolo Mswiswi Village within Mbarali district in Mbeya region i the appellant was unlawfully found in possession of government trophies to wit dried meet of buffalo, forty-five (45) pieces. Valued at USD 1,900 equivalent to Four Million Three Hundred Thousand Sixty-Three and Seven Hundred and Eight Seven (sic. Four Million Three Thousand Sixty- Three Seven Hundred Eight Seven) Tsh 4,363,787 the property of the United Republic of Tanzania without permit. The appellant pleaded not guilty. The prosecution case was supported by eight (8) witnesses, namely, Paschal Alfred Martin (PW1), WP Coplo Adolphina (PW2), J190 PC Joffrey (PW3), David Nivocavity Mlay (PW4), Wine Augustine Makene (PW5), G.9928 D/Coplo Dodas (PW6), E. 8308 D/ST Ruben (PW7) and Isihaka Salum Myanza (PW8). In addition, tendered five exhibits certificate of seizure (Pl), bush knife (exhibit P2), trophy evaluation certificate (Exhibit P3) caution statement of the accused (exhibit P4) and unclaimed property form (exhibit P5). Substance of the prosecution evidence was that on 14/10/2022 PW1 and PW5 received a phone call from the informer that at Mswiswi there was a person possessing government trophies. They went there looked for the chairman who acknowledged to know Jofrey Anyingisye and escorted them to his home. Reaching there they introduced to the 2 appellant and the purpose of the visit, the house was searched, in the kitchen a sulphate bag containing forty-five dried meat of buffalo and a bush knife was retrieved. The same was seized and certificate of seizure signed by both parties. Certificate of seizure and bush knife was admitted in court as exhibit Pl and P2 respectively. Then the accused and the retrieved items were taken to Rujewa police station where a complaint was lodged by PW2 and items handed to PW3 a store keeper, marked and stored in exhibit room. On 15/10/2022 the dried meat of buffalo was taken by PW4 and PW7 for valuation purpose, after evaluation it valued USD 1,900 equivalent to Tsh. 4,363,787. Trophy evaluation certificate was tendered and marked as exhibit P3. At the police the appellant was recorded caution statement by PW6 in which he admitted to be found with dried meat, the statement was introduced in evidence as exhibit P4. In defence the appellant testified as DW1 and called three witnesses in support, Issa Lutengano Sakala (DW2), Charles Fabian Mwilongo (DW3) and Janeth Omary Mwamboli (DW4). The appellant's evidence was that on 14/10/2022 was not present at home, he went to buy pork and returned at 12:00hrs. After returning home he saw a sulphate bag under the tree soon the livestock officer 3 came for treating pig no sooner had it been done, the park rangers arrived put them under arrest and a chairman was called. When the sulphate bag was opened it contained dried meat and his wife DW4 told park rangers the sulphate was left by someone who had gone to market. They went at the market saw a person but was not arrested. Then he was taken to police and eventually arraigned in court. The appellant's testimony was materially supported by DW3 a street chairman who witnessed search and DW4 his wife. At the conclusion of the trial, the trial magistrate evaluated the evidence for both sides and was fully satisfied that the prosecution had proved the case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to twenty (20) years imprisonment. Dissatisfied with the conviction and sentence meted by the trial court, the appellant through service of Mr. Evance Rwekaza, learned advocate has filed a petition of appeal containing fourteen (14) grounds of appeal which I will not reproduce them here for the reason which will become apparent later. When the appeal came for hearing the appellant had legal representation of Mr. Evance Rwekaza, learned counsel whereas the respondent Republic was represented by Ms. Anastazia Elia, State 4 Attorney. Before counsel for the appellant had stood to address grounds of appeal, State Attorney informed the court that she was supporting the appeal on different ground to wit; that the consent and certificate conferring jurisdiction was defective for not specifying section and law which created the alleged offence. Submitting on that point, the State Attorney stated that the appellant was charged under section 86(1) and (2) (c) (ii) of the WCA, the crime is economic as per the EOCCA. That according to section 3 and 57(1) of the EOCCA it is the high court which has jurisdiction to entertain the case, however under section 12(3) of the EOCCA, the DPP has power to transfer the case to subordinate court upon issuing consent and certificate. State Attorney went on to state that looking at the consent and certificate document have no specific section and law which creates the alleged offence. The defect State Attorney said implies that the trial court had no jurisdiction and the whole proceedings is nullity. The case of Kulwa Kashibi, vs R, Criminal Appeal No. 208 of 2021 was cited to support the argument. As for the way forward, State Attorney prayed for retrial because there was evidence that the appellant committed the offence. 5 Mr. Evance for the appellant supported the State Attorney that the consent and certificate were defective and therefore trial court had no jurisdiction. The point of departure is the way forward. Mr. Evance was not in support of retrial, he argued that retrial cannot be based on nullified proceedings and the prosecution cannot benefit from their own wrong, thus prayed release of the appellant. Rejoining Ms. Anastazia submitted nullification of proceedings did not mean witnesses has lost capacity to testify. I have considered the submission of counsels on the issue brought to the attention of the court by the State Attorney. Indeed, the appellant was charged with the offence of unlawful possession of government trophy to wit dried meat of buffalo which is economic offences whose trials are within the jurisdiction of the Corruption and Economic Crimes Division of the High Court in terms of section 3(3) of the provisions of EOCCA. Nevertheless, there is an exception to that statutory prescription, that a certificate issued by the DPP or any authorised State Attorney may confer jurisdiction on a subordinate court to try an economic offence case pursuant to section 12 (3) of the EOCCA where an accused person is charged with a pure economic offence as it happened here. 6 It is also the law that, for a trial to commence at the respective subordinate court, there must be a consent from the DPP or State Attorney authorised by him under section 26(1)(2) of the EOCCA. Issuance of a valid consent and certificate is a condition precedent before any trial of such nature. In the present appeal there is consent of District Prosecution Officer and certificate conferring jurisdiction to the District court of Mbarali to try economic offence, it was issued on 26th day of May 2023. For purpose of clarity the two documents are partly reproduced below; x CONSENT OF THE DISTRICT PROSECUTION OFFICER Zz ALEX MARWA MWITA, district prosecutions officer of Mbarali district, in terms of section 26(1) and (2) of the Economic and Organised Crime Control Act [Cap 200 R: E 2022] read together with Government Notice No. 496H of2021, CONSENT to the prosecution ofJOFREY S/OANYINGISYE for contravening the provision of paragraph 14 of the first schedule to, and section 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap 200 R: E 2022], be tried by the District Court of Mbarali at Rujewa the particulars of which are stated in the charge sheet. DA TED at Mbarali this 26F day of May of2023 Signed 7 ALEX MARWA MWITA DISTRICT PROSECUTION OFFICER' On the other hand, certificate read; 'CERTIFICATE CONFERING JURISDICTION TO SUBODINATE COURTY TO TRY AN ECONOMIC CASES Z, ALEX MARWA MWITA, district prosecution officer of Songwe Region, in terms of section 12(3) of the Economic and Organised Crime Control Act [Cap 200 R: E 2022] read together with Government Notice No. 496H of 2021, ORDER that JOFREY S/O ANYINGISYE who is charged for contravening the provision of paragraph 14 of the first schedule to, and section 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap 200 R: E 2022] BE TRIED by the district court of district court of Mbarali at Rujewa. DA TED at Mbarali this 26th day of May of2023 Signed ALEX MARWA MWITA DISTRICT PROSECUTION OFFICER Looking at both the consent and certificate of the District Prosecution Officer omitted some of the provisions appearing in the charge. The offence charged and that appearing in the two documents were therefore at variance. In the case of Mussa Juma Bakari versus The Republic, Criminal Appeal No. 532 of 2022 [2024] TZCA 455 (13 8 June 2024; TanzLII) the court was faced with the same issue and it held that; since the consent issued by the DPP authorizing commencement of the appellant's trial did not contain the specific provision of the law under which he was charged, the omission invalidated the said consent. As a result, it is as good as there was no consent before commencement of the appellant's trial and the trial court was not properly moved to exercise its jurisdiction to try the appellant.' [see also; Kasim Aman Simba versus The Republic, Criminal Appeal No. 378 of 2021 [2024] TZCA 219 (22 March 2024; TanzLII).] From the above law, the consent to try the appellant and certificate conferring jurisdiction to the subordinate court were invalid for failure to cite the provisions and specific offence under the Wildlife Conservation Act under which the appellant was to be tried in the trial court. Paragraph 14 of the first schedule to the EOCCA refers to section 17, 19, 24, 26, 28, 47, 53, 103, 105, Part X or Part XI of the Wildlife Conservation Act or section 16 of the National Parks Act which has made offences under those provision economic and the appellant was not charged with all those offences. The defects pointed rendered the trial court to lack jurisdiction over the matter and render the whole proceedings a nullity. I therefore nullify the proceedings of the trial 9 courts, quash the appellant's conviction and set aside the custodial sentence imposed on him. As for the way forward, the State Attorney was in favour of retrial while counsel for the appellant went for release of the appellant. To decide whether retrial is appropriate order or not, test laid in the case of Fatehali Manji vs The Republic [1966] 1 EA 343 is to be considered, the court stated that; 'In general, a retrial will 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 purpose of enabling the prosecution to fill up the gaps in its evidence at the first trial. Even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to be blamed, it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made where the interests ofjustice require.' [See also; Peter Kongori Maliwa & Others vs Republic, Criminal Appeal No.252 of 2020 [2023] TZCA 17350 (14 June 2023; TanzLII) and Salumu s/o Andrew Kamande vs Republic, Criminal Appeal No. 513 of 2020 [2023] TZCA 133 (22 March 2023; TanzLII)]. io I have gone through the record of appeal, prosecution evidence and grounds of appeal filed by the appellant. I have noted that subject matter of the charge that is forty-five dried meat of buffalo was not tendered in evidence. It is the law that in the particular circumstances of the case, the effect of the omission to tender in court the item which is the subject matter of the charge, is to render the charge unproved. See Jonathan Joseph versus The Republic, Criminal Appeal No. 391 of 2020 [2022] TZCA 444 (18 July 2022; TanzLII). Even if I assume that the dried meat is perishable and therefore was destroyed in accordance with section 88 or 101 of the WCA, there is no such evidence in record. Further no inventory form was tendered by the prosecution to prove its destruction. In Ngasa Tambu vs Republic, Criminal Appeal No. 168 of 2019 [2022] TZCA 455 (21 July 2022; TanzLII) the court stated; 'The critical concern is that the only evidence to show that there existed any trophy any time after destroying them is the document called Inventory, containing the order for destroying the trophies. Otherwise, if the offence of unlawful possession of government trophies is not admitted by a suspect, in the absence of both the physical Government Trophies, and an Inventory, a charge of ii unlawful possession of the trophies cannot be proved. Emphasize supplied. In this appeal neither the seized forty-five dried meat of buffalo nor the inventory of its destruction were tendered by the prosecution let alone certificate of seizure, exhibit Pl and trophy valuation certificate exhibit P3 which are not subject matter of the charge. Another shortcoming is that dried meat of buffalo was not proved, distinctive features of dried meat of buffalo which differentiates from other dried meat of domestic animal was not stated by prosecution witness apart from giving generalized evidence and tendering of trophy valuation certificate, exhibit P3. In William Maganga @ Charles vs Republic, Criminal Appeal No. 104 of 2020 [2023] TZCA 17742 (6 October 2023; TanzLII) the court stated; In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly filled in Trophy Valuation Certificate, which is a standard form document created under the Wildlife Conservation (Valuation of Trophies) Regulations 2012, (Government Notice No. 207 of 2012). Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert detailing the distinctive 12 features of a given animal. Such oral explanation or description may be based on animal science or the witness's experience in wildlife conservation and management...' In this appeal PW4 said he identified due to its thick hide and fibres but did not different it with dried meat of domestic animals and his expertise in dealing with wild animal parts let alone education background. In the same vein he tendering trophy evaluation certificate without explaining how he concluded that it was wild animal parts. The pointed shortcomings in the prosecution case vindicates that the prosecution case against the appellant was not proved and if retrial is ordered it will enable them to fill up gaps in its evidence during retrial. In the final result, I order the immediate release of the appellant JOFREY S/O ANYINGISYE from prison custody unless held there for some other lawful cause. It is so ordered. D.B. NDUNGURU JUDGE 08/07/2024 13