CRM APP

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LILA. J.A.. KENTE. J.A. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 461 & 462 OF 2020 JUMA CHACHA MERENGO ..................................................... 1st APPELLANT ICHENE GHATI MUGENDI..................................................... 2nd APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza, 3.^ dated the 18thday of August, 2020 in Consolidated Criminal Appeal No. 28 and 29 of 2020 JUDGMENT OF THE COURT 01st & 10th July, 2024 KENTE, J.A.: The appellants namely, Juma Chacha Merengo and Ichene Ghati Mugendi appeared before the District Court of Serengeti, sitting at Mugumu (the trial court) where they were charged with and subsequently convicted of three offences. Whereas in the first count, they were charged with and convicted of unlawful entry into a National Park contrary to sections 21 (1) (a), (2) and 29 (1) of the National Parks Act, Chapter 282 of the Revised Laws, in the second count the appellants were charged with and convicted of unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the National Parks Act. In the third count, the appellants were jointly charged with and convicted of i unlawful possession of Government trophies contrary to section 86 (1), (2) (c) and (3) of the Wildlife Conservation Act, 2009 (the WLCA) read together with Paragraph 14 of the First Schedule to the Economic and Organised Crimes Control Act, Chapter 200 of the Revised Laws (the EOCCA). The particulars alleged in support of the first count were that, on the 3rd September, 2018 the appellants were found at a place called Korongo la Hingira, within Serengeti National Park without permission. With regard to the second count, it was particularized that at the same time and place, the appellants were found in unlawful possession of one panga, one spear and four snares without a valid permit and that, on being questioned by the authorized officer, they failed to give him sufficient explanation showing that the said weapons were not intended for hunting, killing, wounding or capturing animals. As regards the third count, it was alleged that, on the same day and at the same place, the appellants were found in unlawful possession of three pieces of Topi meat valued at TZS 1,744,000.00 the property of the United Republic of Tanzania. For the reasons which will soon become apparent, we do not find it necessary to deliberate on the evidence led by each party in support of its respective position. Suffice it to say that, regarding the first and second counts, the appellants were sentenced to one-year imprisonment for every count while, in respect of the third count, everyone was sentenced to twenty years imprisonment. Dissatisfied with the decision of the trial court, the appellants appealed to the High Court of Tanzania (sitting at Musoma) (the first appellate Court) in Consolidated Criminal Appeals Number 28 and 29 of 2020. After hearing the parties and having been satisfied that the prosecution case had been proved beyond all reasonable doubt, the first appellate court went on sustaining the decision of the trial court and dismissing the appeal by the appellants for lack of merit. Aggrieved by the above decision, the appellants filed the present appeal faulting the first appellate Court for having erred both in law and in fact in upholding their conviction and sentence by the trial court which, according to them, was based on cooked evidence which did not disclose how they were involved in the commission of the alleged offences. In the second ground of appeal, the appellants are faulting the first appellate court for upholding the decision of the trial court which was reached at after denying them the right to call witnesses who would testify in support of their case. The core of the appellants' complaint in the third ground of appeal is that, their conviction by the trial court which was subsequently sustained by the first appellate court, was based on planted exhibits which 3 were purposely intended to secure an undeserved conviction and sentence. And lastly, the appellants assail the concurrent decisions of the two lower courts for basing their conviction on the evidence of Game Wardens without corroboration from the evidence of an independent witness. At the hearing of the appeal, whereas the appellants appeared in person without any legal representation, the respondent/Republic was represented by Mr. Erasto Anosisye, learned Senior State Attorney who was assisted by Messrs Isihaka Mohamed and Felix Mshama, learned State Attorneys. On being invited to expound on their grounds of appeal, the appellants had nothing meaningful to say. They only implored us to consider their grounds of appeal, allow the appeal and set them free on the sole ground that they have been in prison for very long. For his part, Mr. Isihaka, learned State Attorney who addressed the Court on behalf of the respondent informed us, at the outset that, for a different reason, the respondent was supporting the appeal. In particular, the learned State Attorney's arguments were on the following lines: That, having gone through the record of appeal, he had discovered some disquieting procedural irregularities which must have vitiated the validity of the proceedings and orders of the two lower courts as to render them null and void. 4 To begin with, Mr. Isihaka submitted that, the consent for the prosecution of the appellants with an economic offence was purportedly issued and signed by the Principal State Attorney Incharge for Mara Region under section 26 (1) instead of being issued and signed by the Director of Public Prosecutions as required by law. As if that was not bad enough, Mr. Isihaka submitted that, the said consent and the certificate conferring jurisdiction to the trial court which was issued in terms of section 12 (4) of the EOCCA, did not specifically make reference to count three which charged the appellants with an economic offence of unlawful possession of Government trophies. Relying on our earlier decisions in the cases of Dilipkumar Magambai Patel v. Republic, Criminal Appeal No. 270 of 2019 [2022] TCA 477 (25th July 2022) and Peter Kongoli Maliwa, & Others v. Republic, Criminal Appeal No. 252 of 2020 [2022] TCA 17350 (14th June 2023), the learned State Attorney submitted that, the proceedings before the trial and the first appellate courts together with the resultant judgments and orders were a nullity and he thus urged us to find and hold accordingly. Regarding the critical question as to what then should we do to break the impasse, while admitting that in any case of the present nature, an order for retrial would normally be the appropriate remedy, Mr. Isihaka expressed some reservations about the evidence led in support of the prosecution case. Elaborating, the learned State Attorney submitted very briefly that, there was a considerable break in the chain of custody in handling the alleged Government trophies and that, the evidence regarding identification of the said trophies by Wilbrod Vicent (PW3) a Wildlife Warden was, for all purposes and intents, not sufficient. As to the second count which charged the appellants with unlawful possession of weapons in the National Park, Mr. Isihaka submitted that, it was not established through the testimonial evidence of the arresting officers (PW1 and PW2) that indeed the appellants were arrested within the bounderies of the Serengeti National Park as alleged in the particulars advanced in support of the second count. While he was obviously aware that by merely being officemates, officers from the Wildlife Protection Department who appear to testify in court, do not automatically become witnesses of their own interest to serve thereby requiring their evidence to be routinely corroborated, the learned State Attorney submitted correctly so in our view that, the requirement to lead sufficient evidence showing that the appellants were arrested within the boundaries of the National Park was increasingly so in view of the appellants' explanation that they were arrested at Merenga Village which was far from the Serengeti National Park. Given the above short-comings in the prosecution case, Mr. Isihaka was of the opinion and he accordingly submitted that a 6 retrial would not be a viable option. The learned State Attorney thus implored us to invoke our revisional jurisdiction in terms of section 4 (2) of the AJA, to nullify the proceedings of the lower courts, quash the appellants' convictions and set aside the custodial sentences meted out on them. We have carefully considered Mr. Isihaka's submissions which boil down to the conclusion that the trial court and, by extension, the first appellate court had acted without the requisite jurisdiction. We have as well considered the cumulative effect of the above-mentioned procedural anomalies. As earlier indicated, before the trial court, the appellants were charged with, inter alia, unlawful possession of Government Trophies which is an economic offence created in section 86 (1) and (2) (b) of the WLCA read together with paragraph 14 of the First schedule to the EOCCA. It must be noted that, ordinarily, in terms of section 3(3) of the EOCCA, the above - mentioned offence is triable by the Economic Crimes Division of the High Court. However, it is worthwhile to mention here that, in spite of that, in terms of section 12 (3) of the EOCCA, the offence of unlawful possession of Government trophies can be tried by a subordinate court as it happened 7 in this case but, subject to the DPP or any State Attorney duly authorized by the DPP directing by way of a certificate that, the accused person who is charged with an economic offence should be tried by a specified subordinate court. Moreover, the law requires that, for a trial of an economic offence to commence in the subordinate court, there must be consent by the DPP pursuant to section 26 (1) of the EOCCA which provides thus: "Subject the provisions o f this section, no tria l in respect o f an economic offence may be commenced under this A ct save with the consent o f the Director o f Public Prosecutions". While interpreting the above section, we held in a somewhat similar case of Peter Kongori Maliwa and Others (supra) and we think it bears repeating here, that: "in this case, consent was issued by the State Attorney incharge instead o f the DPP. That was a serious irregularity as the power to issue a consent under section 26 (1) o f the EOCCA is not delegable. It is absolutely vested in the DPP him self. As such, the consent under discussion having been issued by a person without mandate was incapable o f authorizing the tria l court to try the economic offences". 8 In the present case, it is not in dispute that the consent was issued and signed under section 26 (1) of the EOCCA by the State Attorney Incharge for Mara Region who had no mandate and the requisite legal capability to authorize the trial of the appellants by the trial subordinate court. It follows in our judgment that, as a result of the procedural irregularities that we have just referred to above and, in view of the current state of our jurisprudence regarding the same point, the legal consequences of non-compliance with section 26 (1) of the EOCCA is to vitiate the proceedings before the trial court. Put simply and squarely, one can only say that, in the absence of the consent by the DPP together with a proper certificate conferring jurisdiction on the trial court, the trial of the appellants by the District Court of Serengeti and the subsequent proceeding upon appeal to the first appellate court, were a nullity for want of jurisdiction. In view of the foregoing discourse, we feel bound to conclude that the first appellate court fell into grave error when it failed to detect the above stated procedural anomalies and deal with them according to law. Having found merit in Mr. Isihaka's submissions regarding the glaring irregularities in the consent and certificate conferring jurisdiction on the trial court, we proceed to invoke our revisional jurisdiction in terms of section 4 (2) of the AJA and nullify the proceedings and judgments of 9 the trial and the first appellant court. We quash the appellants' convictions and set aside the custodial sentences imposed on them. Regarding the next question for us to decide namely, what should be the way forward, upon a cursory glance at the evidence led in support of the prosecution case, we entirely agree with Mr. Isihaka that indeed an order for retrial will not be viable and not in the interest of justice. As correctly submitted by Mr. Isihaka, we note from the prosecution evidence that the handling and ultimate disposal of the alleged Government trophies which was the basis of the appellants' conviction in the third count, was not without flaws. For instance, as it will be noted at once, the handing over of the said trophies between, on one hand, PW1 and PW2 who were the arresting officers and on another hand, the unnamed Police Officer at Mugumu Police Station where the trophies were kept before being given to PW3 for identification and evaluation purpose, leaves a lot to be desired. Considering the law as it stands today, it is axiomatic that this kind of hasty and slipshod method of criminal investigation is no longer acceptable under our jurisdiction. With regard to the first and second count, we need not belabor them very much. Whereas, as per our decisions in the cases of Dogo Marwa @ Sigana and Another v. Republic, Criminal Appeal No. 512 of 2019 and Mwita Mohere v. Republic, Criminal Appeal No. 340 of 2020 (both 10 unreported) and, as correctly submitted by Mr. Isihaka, the appellants were charged, tried, convicted, and subsequently sentenced in the first count for a non-existent offence of unlawful entry into Serengeti National Park, the charges in the second count were not proved. It behoves us to only observe here that, it would be rather unpragmatic to delve into this point as the appellants have already served their undeserved sentences in respect of the said counts. All in all, we are in agreement with Mr. Isihaka that, given the circumstances obtaining in this case, it seems odds-on that an order for retrial will give the prosecution the opportunity to ameliorate the situation and fill in the gaps in their evidence as amply demonstrated hereinbefore. Another thing which is for sure is the fact that, in the circumstances of this case, an order for retrial will definitely occasion injustice to the appellants and therefore go contrary to what was held by the erstwhile East African Court of Appeal in the famous case of Fatehali Manji v. Republic [1966] EA 343 in which it was emphasized, with great clarity that, an order for retrial should not be made if it is likely to accord the prosecution the opportunity to fill in the gaps in its evidence adduced during the first trial. It goes without saying that, the above position of the law which was valid about sixty years ago, still holds true today. (See for 11 instance the case of Adam Selemani Njalamoto v. Republic, Criminal Appeal No. 196 of 2016 (unreported). When all is said and done, we find merit in the appeal which we accordingly allow. We order for the immediate release of the appellants from prison if they are not otherwise detained for some other lawful cause. DATED at MUSOMA this 9th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 10th day of July, 2024 in the presence of the Appellants in person, and Mr. Felix Yona Mshama, learned State Attorney for the Respondent, is hereby certified as a true copy of the