20171012 TZCA Iringa 1

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA • (CORAM: . MJASIRI, J.A., MMILLA, J.A. And LILA, J.A_J CRIMINAL APPEAL NO. 1 OF 2016

VERSUS ' ·_. /·;.,, : !.T-~J:' REPUBLIC ································•11 ■ 1 ■ 11a1111 ■■■■ 1 ■■■■■■ a••···········•11 ■■ •11 ■■ 11RESPONDENT {Appeal from the decision of Resident Magistrate's Court of So_nge~ at Songea) {Dyansobera, PRM) Dated the 29 th day of May, 2014 :--..... : ..... ·:· ".',:,c, . ,.~-, ·. . . . ·•. , · RM.DC: Cr,mmal 'Apeal No. 38 of 2013 H/C Criminal Apr:teal No. 52 of 2013 11th & 13th October, 2017, MJASIRI, J.A.: . •,:<:· In the District Court' of Tunduru District at Tunduru, the· appellant . , ·•·;;}oh.n Ikland @ Ayoub was· charged. ·with two counts,· namely unlawful .. possession of government trophy contrary to section 86(1) and (2) (c) (i0 '' • 1' ,, pf:the Wildlife Conservation Act (Act No. 5 of 2009) read together with : , , par:agraph 14(d) of the 1st Schedule and sections 57(1) and 60(2) of the 1 ' Economic and Organised Crimes Control Act, Cap 200 R.E. 2002 (the -Economic Crimes Act), and unlawful possession of ammunition contrary to section 4(1) and 34 (i) and (2) of the Arms and Ammunition Act Cap 223, . R.E.

2002. The appellant was convicted as charged on his own plea of • ; . guilty and was sentenced to thirty (30) years imprisonment on the first count and ten (10) years imprisonment on the second count. Following his • conyiction and sentence, the appellant appealed· to the High Court. The recprd of the High Court. was transferred under section 45(2) of -the 1 , . Magistrates' Courts Act_· (the Act) to the· Resident Magrstrate s Court, for hearing of the appeal before Dyansobera 1 Principal Resident Magistrate ... with Extended Jurisdiction on October 1, 201.3. Following the transfer, the. 9ppeal was heard by the court of. the Resident Magistrate. The appellant's . . . ' appeal . before Dyansobera, PRM was unsuccessful ' save for the sentences . , ,! · yvhich were reduced to 15 years imprisonment on the first count and to a ?um of Shillings Five Hundred Thousand (500,000/=) on the second count. The appellant did not ·stop there, he .subsequently filed his appeal before · this Court. Unfortunate for him, his appeal was struck out by the Court for .. being incompetent, as his notice of appeal was defective. Undeterred, the 2 · appellant sought extension· of time to .file a notice of appeal in the High court which was granted .by Kwariko, J; .. : The·· appellant has presented a seven.;_. point memorandum of appeal· · before this Court which is summarized as Jollows:- · 1. No search .warrant was tendered In court to prove that ··the appellant was searched and found with the items.

2. No report was tendered.from t/Je gqvernment chemist 3. No witnesses were .called . to prove the prosecution case. · ,. . :...

4. Thecautidnedstatement.-was'i.rcicordedcontrary tdthe· ._ ,. . ,requirements under the law.

5. No Village leader/ ·such as Ten c-ell · leader~ Village. . Chairman . or Village ExecuttviY 'Otlicer vvete called ! t; .. witness the search .· , •·• ··: .....

6. The appellant was not given a chanc;e to defend himself. ,, ·. - 7. · That· the· chaige •agalnst'the. }ppella;i i,v~s not proved . beyond reasonable doubt.: •. · At the hearing of the app~a1~ the app.ellant appeared in person and . ~id_ ~ot have any leg·a1 repre~~ntatibn while the .;respondent Repubiic had .. r . •] .,. ' ' • .- ••- •, '. ' • ~·. • • • ,, : ' ' ' ' : • • •, : ' • ' i • ~• , .. ' , : _.. -, ~ .. .,·., .the . 1services I of Mr: Shabani: Mwegole, · assisted by, · Ms Amina Mawoko, i. , : :... lear~ed State Attorneys. When the appeal ·was called on for hearing, Mr. 3 ·l\'1\iVegole prayed to ,withdraw the prelimin~ry · objection a notice of which was filed in Court; which was granted by the Court. · Before the corinmencement -of hearing. qf the appeal, Mr. Mwegole• ·... sought leave of _the Court to present a pertinent legal issue on the· . . . . i • '•' .jurisdiction of the tri~I court, that is the District Cou.rt . '· of Tt.:mduru. firstly; . ... th~- trial court commenced the hearing of the case without the consent of .·the.Director of Public Prosecutions (OPP) as required under Section 26(1.) of the Econo.mic Cdmes Act - ~~condly,,.the- District· Cqurt:. sat as. the Economic Crimes' Court witt,out a ·proper certificate of transfer· by-the DPP· . . .: . - . under se~ion ·12(3) bf the Economic· Crimes Act under . which the appellant · yv~s charged.· The

:certificate of transfer was partiql and :·did: ·not cover • ,'! ' section 86(1) and (2D (c) (ii) of the Wildlife Conservation Act (Act No·. 5 of · '. , 2009) which is supp@sed to be read together with paragraph 1{qi (d) of the·.•·-· •' . : ;< ryrst schedule to and ·sections ' . 57 (1) and ·, . . 90 ._(2) . of the Economic Crimes ., . . : Act. He asked the C~urt to nullify the proceedings and the decisions of the • ' • .: ." .. ' . : . .. .I. . • . ~ , •. ' . ~ :· ':. . :· • .·,. ,' ' .District Court and thbse of the Resident Magistrate's Court with Extended Jurisdiction. 4 The appellant on his part, -agreed with. the submissions made by' the··. learned State. Attorney. Being ,a layman and unrepresented· he did· not· have much to say ..· It is evident from the rec9rd that the requirements under the law _, ; .. '.. we.re not complied with. The proceedings in the bistrict Court and the ;,:~~--~= ~---=--~~~- l . . . . . :-,::;f;-~~·:_,,, __ ~-;---1 ! • ' ~,':~:"':;~- .. R,.esiderit. Magistrate's court with . !:xtende9 JtJrisdi_ction were indeed a =~{"2:~~\ -~_;:,:-_ i. ~ ., . ·,· . ; . . ' i~·J.._~ ~-- .. ~ ' -~~ i ##·;,: :::.huHity. The trial in the District Court was conducted before the consent of ~~~_,,;~;1 . . .' . . . . . . . --~~: >:t~~t DPP was filed and ·without a compl~te ce1tificate of transfer issued and . ,.. ·,·,· . ,. , .,.f . ;· .. ,. ,.,., '·· signed .,, . by

the DPP in order to authorJze - ., ·. ari economic case to be . tried by a :;" , ,.. ?upordinate court. · The jurisdiction is vested in·:the +ngh Court sitting as · ··. :. the Eco~omic Crimes Court.; The'•consent of''the DF'P l~i mandatory uqder section 26 (1) of the Econom.ic Crimes Act, whic::h provides as follows:- . • • ' • - 4 ' • _.-;, • • ,,,., -.· '. • • ."Subject to the provisions of this section, no trial in respeit 'oi a,/· eco~~mic ~ff~n~e .n~ay be .-~~mmJnc~d under this Act save with the · ·consent . or ,(he Director . of;, Public prosecutions." , .. [Emphasis provided]. Sec 12(3) of the Economic Crimes Act provides that ;:- • I • 5 "The Director of Public Prosecutions or any State · Attorney duly authorized by him, may in each case in which it deems necessary as appropriate in the public interest by a certificate under his hancl order that any case involving an ·offenc~ ·triable· by the court under _this Act be· -tr/ed by such court subordinate to the High Court a$ he may specify in the certificate:" Once the consent ofthe DPP is not available, the District Court would not have any jurisdiction to hear and determine an economic offence as a • •• • •• ,.·· ' . , - · ..... • --· -: • ; ,'.. • •• ' _: - ,· < - • • trial court. In the instant ·case two .. mandatory documents vvere missing -as the .. certificate of transfer was incomplete.- The law is settled. In the

case of ~hobt M~rwa Mgare and Two . o~hers v. Republic Criminal Appeal no. )92 -of 2005 (unreported)/ the < requirements . . under . section .12(3) and. . 26(1} of the . . f;conomic. Crimes Act . were clearly amplified. The Court stated thus:-~ .... ''It follows thatin the absence of the DPP's consent and certificate of transfer of the economic offence 6 to be . tried by Tafime District (6uJt in terms of · section 12(3) and 26(1) ofthe Act th(;! $l!bordinate court had no jurisc(iction. to try the case. The trial . was thus a nullity and ~he ensuing conviction and sentences are .nothing but nullities. Even the proceedings. before. the High Court ·o~ first appeal were a nullity'~ . See als_o Cretus Sambi @. K:imbwenga ancl Geofrey Chazyu v. _.,J j -· • ' _·: • . • . . • • •• ' . : . '. : : . . • . . ..... •,•_ •• -·; -~·~ ·. .: :- ! .. ,R,epublic, Gtimina.l Appeal No. 270 .of 2010 and Niko Mhando and Two ··-==-4 -· ,, others v. Republic, Crim,inal Appear N<J. 3J2 of1io'o'a ,(both. unreported) .. In view of the -non:-cornplian~e. w,ith .the _!qw, it follows th~IJ)for;e as • ,' ' • I 1 ." '': ' : . • ' ' • I• . ' : • . ;·:s-,,' the. night fqllows ·day, that the. proce~qings _ir1 _the : ' ·. " . . • .. '• l ·. :, . • . ~ . : . . : ' . ,' . .• . , ;. :; '. ·. ( / District· Court ~nd' the. .• ' ...._·, Resident Magistrate'si : Court !. •. •. ' . . with -Extended ,· ' : '. •. '. . '

. Jurisdiction, on appeal were a :_·: . ;-:'.. ·, ·. ;_ ' _: \:' ,_, . ·.'.:·, . .• • '. .!. '•: _I • - • : . . , ,, _., -nulUty. By the powers vested in us under section -4(2) of the Appellate .. _ - . -':,· .. ~ ' ..... - .· ·.. ./ : .. ,. . ,:.'· ,; ·.' .. ;. Jurisdiction Act,'- Cap 141, we hereby nullify and qua.sh all proceedings and . . '. •. ' : : •. '' • • \ ··... .• • ·: • '. _,~. . '! .. " . ' judg-;,,ents of the- triaL court and those of the firsVappeHate Coy rt. We also·. ,~et .as.ide· -th-e se-nt~nces ·and w~·hereby orde1- a refrraL· The appellant who·. ~c:1s convicted· in NC>vember 2012 to remain in custody pending the trial . >: ._ c:Jenovo, which shou·ld be conducted expeditiously. The time ·the appellant 7 had spent in prison serving the sentence of 15 years imprisonment should be taken irito consideration should the new trial result in aco~viction. :It is so ordered. •DATED at IRINGA this· 12th day of October,· 2oi7 . . S. MJASIRI JUSTICE OF APPEAL . :· i B. M. MMILLA i i JUSTICE OF -APPEAL' , i . i I -:j j . --·-1·i S; A. LILA JUSTICE OF.APPEAL j -· I certify that this is at~ue copy of the original. · ~1. -,--j' ! I I l -4 8 .