CRIMINAL APPEAL NO 652 OF 2022 LUFINO GABRIEL MWAKAYELA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO fCORAM: MKUYE. 3.A., KAIRO. J.A. And MLACHA, J.A,^ CRIMINAL APPEAL NO. 652 OF 2022 LUFINO GABRIEL @MWAKAYELA..........................................APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Morogoro) fMalata. J/l dated the 17th day of March, 2023 in Criminal Appeal No. 108 of 2022 JUDGMENT OF THE COURT 12th & 215t June, 2024 KAIRO. 3.A.: This is a second appeal. The appellant and another, not a party to this appeal, were jointly and together charged of unlawful possession of Government Trophies contrary to section 86 (1), (2) (b) and (3) of the Wildlife Conservation Act, No. 5 of 2009 [Cap 283] (the WCA) as amended by the Written Laws (Miscellaneous Amendment) Act No. 4 of 2016 read together with Paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2002] (the EOCCA) as amended by Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. The second count of unsafe custody of fire arms concerned Germanus Iddi Ngaliluwula; the second accused who was later acquitted by the trial court after finding that, the prosecution failed to prove the case against him (henceforth the acquitted accused). According to the charge, it was alleged that the appellant and Germanus Iddi Ngaliluwula were on 19th July, 2017 at Live Green Lodge, Sokoni area, Mlimba village, within Kilombero District in Morogoro Region, were found in possession of Government Trophies, to wit; 4 pieces of elephant tusks worth USD 1500 equivalent to TZS. 33,586,500/= the properties of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. The allegations were strongly denied by the duo; hence a full trial was held. The prosecution side paraded eleven witnesses and tendered five exhibits which were certificate of seizure (exhibit PI), four pieces of elephant tusks labelled as LI up to L4 MLB/IR/507/2012 (exhibit P2), Trophies Valuation Certificate (exhibit P3), Court Exhibit Register No. 2/2007 (exhibit P4), and Chain of Custody Records (exhibit P5) to support its case. On the other hand, the appellant and the acquitted accused were the only witnesses for defence and were represented by Messrs. Joseph Kitale and Innocent Mwelelwa, learned advocates. After a full trial, the second accused was acquitted as alluded to and the appellant was found guilty and sentenced to serve 15 years imprisonment term. Dissatisfied with the decision of the trial court, the appellant appealed to the High Court of Tanzania at Morogoro where Malata J. confirmed the conviction but found that, the jail term of 15 years imposed was erroneous. He therefore enhanced it to 20 years imprisonment in terms of section 60 (2) (a) of EOCCA on 17th March, 2023. The appellant was further aggrieved and decided to lodge the present appeal raising twelve (12) grounds of appeal. However, for the reasons to be apparent shortly, we refrain from reproducing them herein. At the hearing, the appellant enjoyed the legal services of Mr. Daudi Mkilya, learned counsel. On the other hand, Miss. Upendo Shemkole, learned Senior State Attorney who teamed up with Mses. Rosemary Mgenyi and Veronica Chacha, represented the respondent Republic. Before the hearing commenced, the Court wanted to ascertain the propriety of the Consent of the Director of the Public Prosecution (the 3 DPP) and the Certificate of the DPP appearing at pages 7 and 8 of the record of appeal respectively, conferring jurisdiction on the subordinate court to try and determine the case at hand. The Court therefore invited the parties' counsel to address it on the raised matter. Mr. Mkilya was focused on his submission and charged that, the court which heard and determined the matter had no jurisdiction to do so, as there was neither proper consent nor proper certificate conferring jurisdiction to the trial court to adjudicate on the economic offence alleged to have been committed by the appellant. Elaborating, Mr. Mkilya argued that, the said consent and certificate which were both filed on 27th November, 2018 appearing at pages 7 and 8 of the record of appeal, though prepared under sections 26 (1) and 12(3) & (4) of EOCCA respectively, did not state the specific provisions under which the appellant was to be charged. He went on to elaborate that, according to the charge sheet, the appellant was accused of contravening section 86 (1), (2) (b) and (3) of the WCA. It was his contention that, failure to specify the provision under which the appellant was to be charged, affected the mandate of the intended court to hear and determine this case. On that account, he argued, the whole proceedings and the decision emanated therefrom was null and void ab initio. In the same vein, the High Court proceedings and its decision cannot stand, having stemmed from the nullity proceedings. To substantiate his arguments, he cited to us our previous decisions in Dilipkumar Maganbai Patel vs The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25 July 2022) TANZLII and Maganyi Senteu Maganyi vs The Republic, Criminal Appeal No. 254 of 2020 [2024] TZCA 401 (6 June 2024) TANZLII whereby in both of the cases, the Court maintained that, an omission to specify the provision in the Consent, under which the appellant was to be charged goes to the root of the matter as it does not confer jurisdiction to the court to adjudicate the case, and thus, all that follows is rendered a nullity. Mr. Mkilya further argued that, in such circumstances, the Court may nullify the proceedings, quash the conviction, set aside the sentence and order a retrial, as a way forward. However, according to Mr. Mkilya, the order for retrial would not be in the interest of justice in the circumstances of this case. Expounding, he argued that, since originally there were two accused in this case and the one acquitted is not a party to this appeal, the re-trial, if ordered, will prejudice his right to be heard which is guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. Mr. Mkilya therefore, beseeched the Court to set free the appellant after quashing the 5 proceedings, conviction and setting aside the sentence meted on the appellant. In her response, Ms. Shemkole who was the defence lead counsel, conceded to the pointed-out flaw. She further conceded that, the consent appearing at page 7 of the record of appeal, which was given by the DPP did not confer jurisdiction to the court concerned to hear and determine the matter due to the omission to quote the specific provision of the law under which the appellant was charged. She went on submitting that, even the certificate that appears at page 8 of the record of appeal purported to have been given under section 12(2) & (4) of EOCCA, did not as well state the specific provision for which the Certificate was given. It was her submission that, for the said omission, the respondent shared the same view with the appellant that, the trial court in the said circumstances was not seized with the jurisdiction to adjudicate the case. To wind up, she implored the Court to invoke its powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA), and nullify the proceedings of the trial court, quash the conviction and set aside the sentence imposed on the appellant together with the whole proceedings and decision of the High Court which stemmed from the nullity proceedings. She however, parted ways with Mr. Mkilya on the consequent order to be given. According to Ms. Shemkole, a trial de novo order will serve the interest of justice as she argued that, the evidence available on the prosecution side was sufficient to mount conviction on the appellant. In her move to convince the Court further on the respondent's suggested way forward, Ms. Shemkole also submitted that, the chain of custody of the impounded pieces of elephant tusks has not been broken from when the same were seized on 19th July, 2017 until when the same were taken to court and tendered. She also submitted that PW2 examined the pieces of elephant tusks found in possession of the appellant for verification and according to his report, he was satisfied that, what was found with the appellant were truly pieces of elephant tusks. Reacting to the submitted prejudice to the acquitted accused if re­ trial will be ordered, Ms. Shemkole vehemently refuted the contention. She argued that, since his acquittal emanated from the nullity proceedings, as such, even the acquittal order was void. When probed as regards the contention that re-trial order will deny him the right to be heard as he is not a party to the proceedings which would give the order, Ms. Shemkole was of the view that, what has been raised is a legal issue, as such, even if Germanus Iddi Ngaliluwula would have been in this Court, he would have nothing to react to change the stated legal stance. She thus maintained that, re­ trial will suit the demand of justice in the the circumstance of this case. Having heard the counsel representatives' concurrent submissions, the issue for our determination is whether the trial court acted without jurisdiction in entertaining the case and the effect thereof. Indeed, and as correctly submitted by the parties, the consent and certificate filed by the DPP when filing information to be read over to the appellant, did not specify the provision of the law of offence charged against the appellant. It is a settled stance of law that, the consent of the DPP and certificate conferring jurisdiction on the subordinate court to adjudicate the economic crime case must be given in respect of the provisions in the charge. See Peter Kongori Maliwa and others vs The Republic, Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14 June, 2023). As alluded to above, the joint charge of the appellant and the acquitted accused was for unlawful possession of Government trophies contrary to section 86 (1), (2) (b) and (3) of the WCA read together with paragraph 14 of the First Schedule to and sections 57(1) and 60 (2) of the EOCCA. However, as correctly submitted by the parties' representatives in both the consent and the certificate conferring jurisdiction to the trial court, the DPP did not cite the provisions of law creating the respective economic offences. We shall let the respective consent and certificate which appear at pages 7 and 8 of the record of appeal speak for themselves as hereunder: "CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS IBISWALO EUTROPIUS KACHELE MGANGA, Director o f Public Prosecutions, in terms o f section 26 (1) o f the Economic and Organized Crime Control Act, [Cap 200 R.E. 2002], DO HEREBY CONSENT to the prosecution o f LUFINO GABRIEL @ MWAKAYELA and GERMANUS IDDI NGALILUWULA for contravening the provisions o f paragraph 14 o f the First Schedule to, and section 57 (1) and 60 (2), o f the Economic and Organized Crime Control Act, [Cap. 200 R.E. 2002], the particulars o f which are stated in the charge sheet SIGNED at Dar es Salaam this 27th day o f November, 2018. Sgd Biswalo Eutropius Kachele Mganga DIRECTOR OF PUBLIC PROSECUTIONS" 9 "CERTIFICATE OF DIRECTOR OF PUBLIC PROSECUTIONS CONFERRING JURISDICTION ON A SUBORDINATE COURT TO TRY ECONOMIC CRIME CASE I, BISWALO EUTROPIUS KACHELE MGANGA, the Director o f Public Prosecutions, in terms o f section 12 (3) and (4) o f the Economic and Organized Crime Control Act; [Cap 200 R.E. 2002, DO HEREBY ORDER that LUFINO GABRIEL @ MWAKAYELA and GERMAN US IDDI NGALILUWULA who are jointly and together charged for contravening the provisions o f Paragraph 14 o f the First Schedule to, read together with sections 57 (1) and 60 (2), o f the Economic and Organized Crime Act, [Cap. 200 R.E. 2002], which are triable by Economic Crimes Court BE TRIED in the Resident Magistrate's Court o f Morogoro Region at Morogoro. Signed at Dar es Salaam this 27th day o f November, 2018. Sgd Biswaio Eutropius Kachele Mganga DIRECTOR OF PUBLIC PROSECUTIONS" Looking at the quoted documents above, there is no gain saying that the two documents did not state the specific provision under which the appellant and the acquitted accused were charged against. The omission to quote the specific provision means that the appellant 10 and the acquitted accused were charged, tried and convicted by the subordinate court without the consent of the DPP, and further without the jurisdiction to try the case. The Court have consistently maintained the said position in akin circumstances that, where a person is arraigned before the subordinate court for an economic offence under EOCCA without the consent of the DPP authorizing the court to try the economic case and /or the certificate which confers jurisdiction on that court to try the said offence, such subordinate court lacks the jurisdiction to try the economic offence concerned and if it does, the entire proceedings become a nullity. There is a plethora of decisions to this effect including: Mwanaharusi Salimu Mshahara vs The Republic, Criminal Appeal No. 403 of 2022 [2024] TZCA 304 (6 May, 2024), Peter Kongori Maliwa and others vs The Republic (supra), Hussein Sadick Matali & Another vs Republic, Criminal Appeal No. 34 of 2023 [2024] TZCA 435 (11 June 2024), Dilipkumar Maganbai Patel vs Republic (supra), Madeni Nindwa vs The Republic, Criminal Appeal No. 350 of 2016 [2017] TZCA 348 (19 July, 2017) TANZLII, to mention but a few. For instance, in Dilipkumar Maganbai Patel (supra), we stated as follows: li "We have no doubt that in view o f our deliberation above the consent and certificate conferring jurisdiction on the trial court were defective\ though they were made under the appropriate provisions; section 12(3) and 26(1) of the EOCCA but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to section 86 (1), (2) (ii) and (3) o f the WCA which was clearly cited in the charge sheet The certificate and consent were therefore incurably defective and the trial magistrate could not cure the anomaly in judgment as suggested by the learned State Attorney for the respondent The defects rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason, we are constrained to find that the trial and proceedings before the Resident Magistrate Court o f Dar es Salaam at Kisutu in Economic Case No. 58 o f 2016 and the High Court in Criminal Appeal No. 146 o f 2018 were nothing but a nullity. Basing on the above authorities, we have no hesitation to rule out that, the case at hand has to follow suit. We, therefore, invoke our revisional powers under section 4 (2) of the AJA and nullify the 12 proceedings before the Resident Magistrate's Court of Morogoro, the resultant conviction and sentence together with the proceedings before the High Court, Morogoro sub registry which upheld those illegal proceedings. Further to that, we quash the appellant's conviction and set aside the sentence imposed on him. As regards the order to follow, the parties had divergence views. While Mr. Mkilya was of the view that the appellant be released from prison, Ms. Shemkole was for a retrial order. The next question is whether we should, as implored by the learned State Attorney, order a re-trial or not. It is not disputed that, Germanus Iddi Ngaliluwula with whom the appellant was charged with, was acquitted and thus, not a party to this appeal. It is further not in dispute that, the pointed-out infractions had rendered the entire proceedings of the trial court illegal, as it had no jurisdiction to hear and determine the economic case before it, and these are the proceedings which resulted to the acquittal of Germanus Iddi Ngaliluwula. In other words, there could be no valid acquittal emanating from the nullity proceedings. That apart, the order for retrial will entail hearing both suspects afresh, as such, none of the suspects will be denied a right to be heard, and the contention of Mr. Mkilya is far-fetched and just fancy. For what we have endeavored to 13 discuss, we believe, ordering re-trial is what justice demands in this case. We thus order for re- trial of the case, subject to proper certificate conferring jurisdiction and consent of the DPP to prosecute the case. In the meantime, the appellant shall remain in custody pending retrial before a competent court. We further order that, should the appellant be found guilty and convicted, the served time in jail should be included in the jail term to be imposed. DATED at DAR ES SALAAM this 20th day of June, 2024. R. K. MKUYE JUSTICE OF APPEAL L G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The judgment delivered this 21st day of June, 2024 in the presence of the Appellant in person vide video link from remand prison Morogoro and Ms. Daria Sanga, learned State Attorney for the Respondent/Republic vide video link from the High Court of Tanzania at Morogoro, is hereby certified as^ true copy of the original. ULflUlU' A. S. CHipULU DEPUTY REGISTRAR COURT OF APPEAL 14