CR APP 20231213000039791 JOYCEMWITA VS REP

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO.20231213000039791 (Arising From Busega District Court in Criminal Case. No 6 of 2023) JOYCE 0/0 MWITA APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 191' & 2st" March 2024 F.H. MAHIMBALI, J The appellant herein was arraigned before the trial court for the offence Unlawful Possession of Narcotic Drugs; Contrary to section 15(2) of the Drugs Control and Enforcement Act, Cap 95 RE 2019. It was alleged that on 18th day of January,2023 at Mwanza bust stop within Lamadi village and Busega District in Simiyu region, was found unlawfully in possession of narcotic drugs to wit; cannabis sativa commonly known as "bhangi" weighing 6.886 kilograms. After full consideration the trial court convicted the appellant and sentenced him to suffer 30 imprisonments. Aggrieved by the conviction and sentence, the appellant has approached this Court blessed with four 1 grounds of appeal, which all fall under the question of evidence and jurisdiction of the trial court. During the hearing of the appeal, Mr Kadata learned State attorney appeared on behalf of the republic/respondent while the appellant was present in person. Arguing on the grounds of appeal the appellant prayed for adoption of her grounds of appeal to form party of her submission. She thus prayed to be acquitted. Mr. Kadata opposed the appeal and all the four grounds of appeal. With the first ground of appeal, that chain of custody was not complied with in the handling of this case. In his view Mr. Kadata submitted that the grounds lack merit. He further contended that basing on the court proceedings and testimony by PW6, the said bhangi was dully admitted as exhibit P.4 of the case. This PW6 testified very eloquently and clearly how the said exhibit bhangi was seized from the appellant, stored/kept until its production in court. Together with him, PW6 narrated each of the i witnesses who came into dealing with it and the documentary proof of the said transaction (pages 29 -30) of the typed proceedings. Moreover, the appellant didn't object the admission of the alleged exhibit. Thus, this ground of appeal is legally an after thought, thus lacking any legal merit for its consideration. With the second ground of appeal, Mr. Kadata argued that the absence of independent witness is also unreasonable ground, because the said search was witnessed by PW2 who was present at Police station where the said search was being done. This PW2 also signed the seizure certificate which was admitted as exhibit P.l. This PW2 was not an arresting police officer, thus had no any interests with the said case. Furthermore, the legal requirement of having an independent witness is not absolute. It can be relaxed in situation like this at hand. He referred this Court to the case of DPP vs. Musa Hatibu Sembe, Criminal Appeal No. 130 of 2021 at page 13, the CAT discussed well the requirement of law under section 38 (3) of the CPA, that the law has not stated the requirement of independent witness, nevertheless, as a general rule, such a witness is supposed to be an independent. The Court went further saying that where no such an independent witness is available, the available police shall be a witness of the said search in addition to the seizing officer. Moreover, Section 143 of the TEA, is clear that no particular number of witnesses is required for a proof of any fact. Thus, the arrest of the appellant while being in possession of a bhangi cargo was established by many witnesses, including the appellant herself who freely admitted in her cautioned statement which also didn't dispute its admission before the court of law. Further, Mr. Kadata submitted on the third ground of appeal, that the same is baseless as the said cautioned statement was not disputed its admissibility before the court of law as the court's records establish so. The appellant didn't cross examine any question on that. The records further establish that the said cautioned statement was read over to her in the swahili language she thoroughly understands it. It is trite law that failure to dispute the admissibility of the said cautioned statement and further none - questioning on it, amounts to admission (see the case of Shomary Mohamed Mkwama Vs. The Republic, Criminal Appeal, No. 601 of 2021, CAT at DSM at page 18 and the case of Alex Ndendya V. The Republic, Criminal Appeal No. 207 of 2018, CAT at Iringa at page 12 (last paragraph). Lastly, on the last ground of appeal, that there was no DPP's certificate sanctioning the commencement of a criminal trial before the trial court, Mr.Kadata argued that in the context of this case, was of the view that this ground is equally base less. This is because, the legal requirement of DPP's certificate is only available pursuant to section of 12(3) of the Economic and Organized Crime Control Act, Cap 200 R.E 2022 for economic offences only. As per records of the case, the accused person was charged under section 15A of the DCEA. This being not an offence 4 falling under the economic offences, as it is not listed in the list of offences as per first schedule of the Act. Thus, the DPP's consent on this normal criminal offence, it is not a legal requirement. Therefore, this ground of appeal was well established beyond reasonable doubt against the accusations of the appellant at the trial court. He finally pressed for the appeal to be dismissed and the appellant's conviction be upheld and the meted sentence be maintained as well. The appellant had no rejoinder rather she prayed to be acquitted. The above notwithstanding, when probed by the court as the appellant was charged under what section of the law; is it under section 15(2) of the Drugs Control and Enforcement Act (DCEA) or section 15 A (1),(2) of the same Act? (DCEA). The probing was based on the confusion of brought by the trial court record itself. Whereas the charge sheet reads unlawful possession contrary to section 15(2) of the Drugs Control and Enforcement Act, but its conviction is based under section 15 A (1),(2) of the Drugs Control and Enforcement Act. Parties had to address the Court on this fracas and the legal effect. The appellant nothing to submit, a lay person as she is. Mr. Kadata on his part submitted that, the raised issue is a confusion even to him. It is true that as per trial court's record, the 5 appellant was charged with section 15 (2) of the DCEAand not section 15 A (1) (2) of DCEA. If one is charged under the former section, that is an economic case as per First Schedule of the Economic and Organized Crime Control Act, Cap 200 R.E 2022, but the latter is not. If this is the case as per original record of the trial court, he left it for the court's deliberation. On the side of the appellant, she had nothing to submit other than praying for her acquittal. Having heard both parties on merit, I have to determine this appeal, and the issue for consideration is whether this appeal has been brought with sufficient cause. In consideration with what have been submitted by the parties and upon scanning the trial court records, I find prudent to dispose this appeal basing on the issue of jurisdiction and the issue raised suo mota by this court and do away with the rest of the grounds of appeal. As correctly argued, that the appellant was charged under section 15(2) of the Drugs Control and Enforcement Act (DCEA) while her conviction is based under section 15 A of the Drugs Control and Enforcement Act. 6 Before I go further, I better reproduce the charging section as well as the convicting section to see the legal difference in them. The charging section as per charge sheet in the trial court record is s.15(2) of the DCEA. As per law, the charging section reads: Any person who produces, possesses, trensports; exports, imports into the United Republi~ sales, purchases or does any act or omits anything in respect of drugs or substances not specified in the Schedule to this Act but have proved to have drug related effects, or substances used in the process of manufacturing of drugs commits an offence/ and upon conviction shall be sentenced to life imprisonment The convicting section applied by the trial magistrate provides: 15A. -(1) Any person who traffics in narcotic drugs, psychotropic substances or illegally deals or diverts precursor chemicals or substances with drug related effects or substances used in the process of manufacturing drugs of the quantity specified under this 7 section commits an offence and upon conviction shall be liable to imprisonment for a term of thirty years. (2) For purposes of this section a person commits an offence under subsection (1) if such person traffics in- (a) narcotic druas. psychotropic substances weighing two hundred grams or below," (b) precursor chemicals or substance with drug related effect weighing 100 litres or below in liquid form, or 100 kilogram or below in solid torm: (c) cannabis or khat weighing not more than fifty kilogram. The issue for consideration now is whether the charge offence is an economic offence or not. Mr. Kadata says, the charging section is not an economic offence but the convicting section used by the trial magistrate , is. He further says, if the offence is an economic offence, then the issue of jurisdiction of the court comes into question whereas to non-economic o offence is different. The law is under section 57 (1) and (2) of the EOCCA that With effect from the 25th day of September, 1984, the offences prescribed in the First Schedule to this Act shall be known as economic offences and triable by the Court in accordance with the provisions of this Act. The Minister may, by order published in the Gazette, and with the prior approval by resolution of the National Assembly, amend or otherwise alter the First Schedule to this Act but no offence shall be removed from the First Schedule under this section except by an Act of Parliament. According to item 23 of the First schedule of the Economic and Organized Crime Control Act, Cap 200 RE 2022; for offences falling under the DCEA, the economic offences as per law are those offences listed under sections is, 16 or 23 of the Drugs Control and Enforcement Act. Thus not every offence listed there is an economic offence. Others are not. It was therefore wrong for a trial magistrate to alter the charging section to the one appearing in his judgment. Since the charging section falls under the category of economic offences, there was a procedural requirement for compliance, it being an economic offence. It is undisputed that, the offences enshrined under first schedule of Economic and Organized Crime Control Act, are deemed to be economic offences. Thus, the dealing of economic offences is clearly stipulated. Section 2 (2) of Cap 200 provides that all offences created by or punishable under the First Schedule to this Act shall be referred to as economic offences. Now, guided with the principles in the above legislations, I am of the view that the appellant in relation to the charge against her ought to have charged with economic case. See Section 2 (2) of Cap 200 and item 23 of the 1st schedule of the Economic and Organized Crime Control Act, Cap 200 RE 2022. Being the case, it is easier to conclude that the trial court decided the matter without jurisdiction. It is trite law that, economic offences are tried by subordinate courts only when the respective lower court is conferred with jurisdiction to try the matter (see section 12 of the EOCCA)and consent to prosecute by DPP (see section 26 of the EOCCA).In the absence of the duo legal requirements, a subordinate court is barred from entertaining an economic offence save the Economic Court only dully established under section 3 of the EOCCAwhich is the Corruption and Economic Crimes Division of the High Court. 10 Apparently, in number of cases the court has ruled for the crucial requirement of consent and certificate conferring jurisdiction to the subordinate court to be issued by the DPP before a trial of an economic offence in a subordinate Court could commence. See the cases of Nico Mhando and 2 others Versus Republic, Criminal appeal No.332 of 2008 (unreported) and Chacha Chiwa Marungu versus Republic, Criminal Appeal No. 364 of 2020 (CAT) at Musoma. Generally, as accepted by Mr. Kadata that since the appellant was charged under Section 15 (2) of DCEA, then ought to be economic case and thus required the certificate and consent of the DPP which was not in this case. It is thus glaring that, the default so made, make me to associate with the ground cherished by the appel/ant that the trial Court had no jurisdiction to try the matter as there was no DPP consent. I am also paused, how the trial magistrate had inserted section 15A (I), (2) of DCEAwhich led him to convict the appellant based on provision of the law not charged with. It is therefore to conclude that the appellant was convicted under wrong provision, which is fatal in law and thus vitiates the whole proceedings of the trial Court. See the cases of 11 Edward Yusuph @Gao vs Republic, Criminal Appeal No. 496 of 2020, John Ikland@Ayoub vs Republic, Criminal No. 196 of 2014 (both unreported). With all these observations, I find this appeal to have been brought with sufficient cause, I allow it and order the appellant's immediate release from custody unless otherwise lawfully held. Right of appeal explained. -===---- F.H. Mahimbali Judge 12