CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA CRIMINAL APPEAL NO. 79 OF 2023 (C/fin the Resident Magistrate Court o fArusha, Economic Case No. 73/2020) LABUU OLOLA.......................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT JUDGMENT 23rd May; 11 July 2024 D. D. NDUMBARQ. J. The appellant Labuu Olola is standing charged with the offence of unlawful possession and unlawful dealing of Government Trophy contrary to sections 86 (1), (2) (b), and sections 80(1) and 84(1) of the Wildlife Conservation Act No. 5 of 2009 respectively read together with paragraph 14 of the first schedule to section 57(1) and 60(2) of Economic and Organized Crime Control Act Cap 200 RE 2002 as amended by Section 16(a) and 13(b) of Written Laws (Miscellaneous Amendments) Act No.3 of 2016 and convicted to 20 years imprisonment. The fact of the case states, that on the 21st day of July 2017 at Endamararieki village within Karatu District Arusha Region, the appellant was found with unlawful possession of 11 elephants task which is equivalent to six killed elephants valued at United States Dollars 90,000 equivalent to TZS 201,894,300 property of Government of United Republic of Tanzania contrary to law. Dissatisfied with the Judgment and conviction of the trial court, appealed before this Court against conviction and sentence by lodging a petition of appeal with 8 grounds; - 1. The trial magistrate erred in law and fact when entertained to try economic Case No. 73 of 2020 without consent and requisite jurisdiction, nowhere endorsed the said consent and certificate in trial court proceedings. 2. The trial magistrate erred in law and fact when they failed to notice that the charge sheet was bad and hence defective. 3. The trial magistrate erred in law and fact When accorded no weight on the evidence of the appellant. 4. The trial magistrate erred in law and fact in conducting a preliminary hearing contrary to section 192(1)(2) of the Criminal Procedure Act. 5. The trial magistrate erred in law and fact in not noticing that the said the weight of alleged elephant tusks was conducted by the incompetent and not an expert person for the weight and measurements agency. 6. The trial magistrate erred in law and fact for holding that the prosecution prove his case beyond reasonable doubt; 7. That the trial court erred in law and fact for holding that the prosecution witness is credible and reliable, 8. The trial magistrate erred in law and fact for holding that the chain of custody of 11 Tasks was established by the prosecution witness was right without presenting the handing over certificate The appellant sought to move the court to allow his appeal, set aside conviction and sentence, and set the appellant at liberty. Parties chose to dispose of the matter by way of written submission. The appellant was self-represented and respondent Republic was represented by Godfrey C. Nugu State Attorney. 3 During submission, the appellant introduced additional two grounds. On the first additional ground argued the charge sheet was not stamped and signed by the presiding magistrate contrary to section 128(5) of CPA and lenders the charge defective therefore pray to be expunged. On the second additional argument, the trial court had no jurisdiction to try economic case No. 73 of 2020, consent certificate dated order on 23rd November issued by prosecuting Attorney in charge was in respect of economic case No.24 of 2022 and not economic case No. 73 of 2020, contrary to section 12(3),26(1), (2) and 29(1) of Economic and Organized Crime Act (EOCCA), and made prayer to this court to nullify the proceedings and judgment. In support of his prayer cited the case of Ibrahim Iddi Naam and 2 others Vs R Criminal Appeal No. 11 of 2021 pages 13, 14, and 15. In the 9th ground, the appellant argued that the offense was not proved beyond doubt. A number of issues were not proved on the required standard, starting with the issue of jurisdiction, and discrepancies of the certificate of seizure that need to be expunged because it was filled before the seizure of the said government trophy and it was not tendered before the court. On the issue of jurisdiction argued, section 12(3) of Economic and Organized Crime Control Act Cap 200 RE 2002 vested jurisdiction to DPP or authorized State Attorney to institute economic offenses, and section 26(1) of the Act restricted any economic offense to proceed without the consent of DPP. Argued further, however, in this case consent certificate was issued for case No. 24 of 2021 instead of case No. 73 of 2020. Argued further the case was supposed to be tried at Karatu but was brought in Arusha contrary to Section 29(1) of EOCCA and faulted that the accused was denied the right to bail and he was tortured to confess. Cited the case of Pirbaksh Asharaf and 10 others Vs R Criminal Appeal No.345 of 2017 Unreported, Pages 6 and 7. The appellant did not choose to argue other grounds. In reply, the respondent opposed the appeal and supported the decision of the trial court. On the first additional ground argued the appellant misdirected himself on the interpretation of Section 128(1) and (5), the section shows a manner in which proceedings should be brought before the court of law that proceedings may be signed magistrate if it is drawn by him or if it was brought by state Attorney may be signed by State Attorney. The claim of 5 violation is a serious misconception. The charge in this case was signed by the State Attorney in charge under section 128(6) of CPA. The charge in this case can only be defective if is contrary to 132 and 135 of the Criminal Procedure Act Cap 20 RE 2022. Therefore, this ground lacks merit. On the issue of jurisdiction due to the fact that the consent and certificate conferring jurisdiction was directed to the case No. 24 of 2021 while the appellant was charged in case No. 73 of 2020. The respondent argued that the certificate addresses the provision of law under which the appellant was charged, and it was a typing error. On the third ground that, the offence was proved beyond reasonable doubt the accused was unlawfully found in possession of a Government trophy and the chain of custody was intact. In support of the argument cited the case of Moses Charles De Vs R 1987 TLR 34. In rejoinder, retaliated his submission in chief and further argued that the argument that the consent and certificate conferring jurisdiction referring to the offense charged and it was a typing error cannot be considered. The fact is the court lacked jurisdiction in economic case No. 73 of 2020, the resident magistrate court was not conferred with jurisdiction to try under section 12(2) of EOCCA rather than economic case No. 24 of 2021. Support the argument cited a case of Ibrahim Iddi Naam and 2 others Vs R Criminal Appeal No. 11 of 2021 pages 13, 14, and 15. That the judgment and proceedings be nullified for lack of jurisdiction. Argued that ordinarily when the proceedings and judgment are quashed on the ground of illegality an order of retrial follows, however before doing that the court should consider if the other ground had merit, that when the interest of justice requires. In support of submission cited a case of Fatehal Manji Vs R 1966 EA 343. Faulted that, the order of retrial may not be issued because the evidence was not evaluated, there is a variation of evidence example PW4 said the accused was arrested on 21/07/2017 while on page 71 said the accused was arrested on 19/07/2017. Exhibit P5 which bears police number KRT/IR/1418/2017 testified to have been filed by PW4 at Kibaoni, thereafter testified to have filed at the police station. Further PW4 claimed to communicate with the appellant by phone before, but no phone printout was brought before the court to prove. Argued the contradiction goes to the root of the case to the lender that the case has not proved beyond the reasonable doubt. Considering the submission of both parties, the applicant on the second additional ground raised the issue of jurisdiction, that the trial 7 court had no jurisdiction to try economic case No. 73 of 2020, consent certificate dated order on 23rd November issued by prosecuting Attorney in charge was in respect of economic case No.24 of 2022 and not economic case No. 73 of 2020, contrary to section 12(3),26(1),(2) and 29(1) of Economic and Organized Crime Act (EOCCA), and pray to the court to nullify the proceedings and judgment, in support of his prayer cited a case of Ibrahim Iddi Naam and 2 others Vs R Criminal Appeal No. 11 of 2021 page 13, 14 and 15. As practice demands whenever a party raises a matter of jurisdiction, the court proceeds with the determination of the objection first as in the case of Fanuel Mantiri Ng'unda Vs Herman Mantiri Ng'unda & 20 Others, (CAT) Civil Appeal No. 8 of 1995 (unreported) had this to say " The question o fjurisdiction for any court is basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature ... The question o f jurisdiction is so fundamental that courts must as a matter o f practice on the face o f it be certain and assured o f their jurisdictional position at the commencement o f the trial. ...It is risky and unsafe for the court to proceed with the trial o f a case on the assumption that the court has jurisdiction to adjudicate upon the case." As I hereunder find it safe to determine the jurisdiction issue before all, considering the submission by the appellant that the consent certificate dated order on 23rd November issued by the prosecuting Attorney in charge was in respect of economic case No.24 of 2021 and not economic case No. 73 of 2020, contrary to section 12(3),26(1), (2) and 29(1) of Economic and Organized Crime Act (EOCCA). Whereby the respondent argued it was an error. I find that the error goes to the root of the case needs to be determined. Going through trial court proceedings on pages 1-32 shows trial commenced on 03/11/2020; whereby on 20/04/2021 Preliminary hearing commenced, on 04/05/2021 preliminary objection was raised and it was determined by way of written submission and it was decided on 27/09/2021. On 26/10/2022 hearing began with evidence of PW1 and PW2, whereby PW1 tendered exhibit PF 16 as exhibit PI (11 elephant Tasks), exhibit P2 four sulfate bags and P3 weighing scale all exhibits were admitted, as is clearly seen on pages 26-32 of trial court proceedings. On 9 9/11/2022 the State Attorney raised an issue that, the court lacked jurisdiction, that, there was no consent certificate from DPP, and prayed to file the consent certificate. The said consent was filed and received by the court on 23/11/2022 after the closure of evidence of PW1 and PW2 who were independent witnesses. The trial court commenced without consent and certificate from the Director of Public Prosecutions conferring jurisdiction, despite the fact, that the said consent was issued to criminal case No. 24 of 2021 instead of criminal case No. 73 of 2020, and thereafter accused was sentenced to 20 years imprisonment. Section 26(1) of Economic and Organized Crime Control Act Cap 200 RE 2002 requires that every economic offense under the Act has to be preceded by the consent of the DPP as: - 26 (1) '!'Subject to the provisions o f this sectionno trial in respect o f an economic offense may be commenced under this Act save with the consent o f the Director o f Public Prosecutions. The DPP is mandated to delegate its powers to its subordinates in terms of subsections 2 and 3 of section 26 of the said Act. The sections require the consent of the DPP must be given before the commencement 10 of a trial, the position is supported in the case Paulo Matheo Vs Republic 1995 T.L.R 144. The matter determined without jurisdiction is a nullity, the position is supported by the case of Israel Misezero @ Minani Vs Republic, Criminal Appeal No. 117 of 2006; Madeni Nindwa Vs Republic, Criminal Appeal No. 350 of 2016; Desai Vs Warsama 1967 E.A 351, and Mhole Saguda Nyamagu Vs Republic, Criminal Appeal No. 337 of 2016 unreported where the economic case was tried by the subordinate court without the consent of the DPP and the certificate conferring jurisdiction to that court. In the last cited case of Desai Vs Warsama, the Court held that:- "From the foregoing brief discussion we are satisfied that in the absence o f the D.P.P's consent given under section 26 (1) o f the Act and the requisite certificates under subsections (3) and (4) o f section 12 o f the Act, the trial District Court had no jurisdiction to hear and determine charges against the appellant, as it did. We further firmly hold that the purported trial o f the appellant was a nullity. In a similar vein, the proceedings and li judgment made by the High Court dated 8/06/2016 based on null proceedings o f the trial court were also a nullity." Thus, in this appeal the Resident Court of Arusha proceeded with the hearing of the case without the DPP's consent and certificate conferring the jurisdiction, This is to say there was no consent to case No. 73 of 2020 and the accused were charged without consent, therefore Criminal Case No. 73 of 2020 is considered to be nullity. This makes a proceeding nullity and judgment in a trial court arose from nullity proceedings also a nullity. Before I proceed to final nullify due to the said effect, that is, whether to order retrial as per practice, I have to consider if the rest of the grounds have merit. On the first additional ground that the charge sheet was not stamped and signed by the presiding magistrate contrary to section 128(5) of CPA and lenders the charge defective I agree with the submission of the respondent that the appellant misinterpreted the provision. Section 128(5) and (6) of CPA a charge may be drawn and signed by a magistrate, however, if the arrest was made without a warrant, a charge is prepared and signed by a police officer or public prosecutor. The role of the 12 magistrate is taken by event. For the purpose of clarity let's reproduce the section herein under: - 128(5) The magistrate, upon receiving any complaint shall, subject to section 129, draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offense with which the accused is charged unless the charge has been signed and presented by a police officer. (6) Where an accused person who has been arrested without a warrant is brought before a magistrate, a formal charge containing a statement of the offense with which the accused is charged, shall be signed and presented by a public prosecutor preferring the charge. Considering that the prosecutor was mandated to prepare and sign the charge sheet made under arrest without a warrant, I found this ground to have no merit. In the 9th ground, the appellant argued that the offense was not proved beyond doubt, a number of issues were raised by the applicant 13 including discrepancies in the certificate of seizure, issues of jurisdiction such as the matter was supposed to be filed in Karatu and not Arusha, PW4 testified to have signed the exhibit P5 in two different places that is Kibaoni and police station, No phone print out was brought before the court to prove the case, a chain of custody was not intact, certificate of seizure was not admitted before the court. On the issue of jurisdiction such as the matter was supposed to be filed in Karatu and not Arusha, it is clear that at that time when the offense was committed Karatu was part of Arusha, therefore the court had jurisdiction, therefore I found this ground to have no merit. On the issue that there was variation in a place where the seizure certificate for the exhibit was signed, going through the trial court proceedings there was no variation seen, PW4 testified to sign the seizure at Kibaoni and give an explanation to the police station. Therefore I find these grounds to have no merit. On the issue of the chain of custody was not intact, the trial court proceedings page 73 PW4 in cross-examination testified that exhibits were not labeled after seizure, this created doubt as to the custody of exhibit and blockage of the chain. The claim that the phone sprints out was not 14 brought before the court, going through trial court proceedings the phone printout was not brought before the court to prove the case. I consider the evidence would be of weight if it was brought before the court by the prosecution side. I therefore find these grounds to have merit. On the issue that no receipt of the seized exhibit was issued to the appellant and the seizure certificate was not admitted before the court contrary to section 38(2). I have ample time to go through trial court proceedings on pages 68 and 69 and find that no seizure certificate (P5) was tendered before the court, it is clear that no receipt was issued, further, the said seizure certificate was not tendered before the court. The requirement of receipt is mandatory to verify ownership of the seized exhibit, the position is supported by the case of Andrea Augustino and others Vs Republic No. 365/2018, which held that; - 'The whole purpose o f issuing receipt to the seized items and obtaining the signature o f the witnesses is to make sure that the property seized came from no place other than the one shown therein. I f the procedure is observed or followed, the complaints normally expressed by suspects that the evidence 15 arising from such search is fabricated w iii to a great extent be minimized" Section 38 (2) of CPA Cap 20 provides " Where anything is seized in pursuance o f the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing, being the signature o f the owner or occupier o f the premises or his near relative or other person for the time being in possession or control o f the premises, and the signature o f witnesses to the search, if any. " It is my view that the requirement of issuing a receipt is necessary to prove ownership of seized documents or exhibits, and to get rid of claims that the evidence from the search is fabricated. However, on pages 14 and 15 of trial court proceedings neither receipt was issued nor seizure certificate and handling certificate were tendered before the court, this is 16 Considering that there is merit on the issue raised by the appellant that the trial court try the matter without consent and certificate conferring jurisdiction and considering there is merit in other grounds appeal, I find that this appeal has merit due to that I refrain myself from ordering a retrial. I, therefore, quash the sentence and conviction of the District Court of Arumeru Arusha imposed against the appellant. For lack of jurisdiction and order appellant be released in custody unless lawfully ordered otherwise. It is ordered accordingly. DATED at ARUSHA this 11 day of July 2024. D. D. NDUMBARO JUDGE 11/07/2024 17