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. 463 OF 2020 MARWA CHACHA GEKON DO ...........................................................APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from Judgment of the High Court of Tanzania at Musoma) (Galeba, J .) dated the 14th day of August, 2020 in Criminal Appeal No. 53 of 2020 JUDGMENT OF THE COURT 2nd & 10th July, 2024 LILA. J.A.: In Economic Case No. 109 of 2018 of Serengeti District Court sitting at Mugumu, the appellant Marwa Chacha @ Gekondo, stood charged with five (5) offences. In the 1st and 2nd counts, he was charged for contravening the provisions of the National Parks Act, as amended by the Written Laws (Miscellaneous amendments) Act No. 11 of 2003 (the NPA). They are, respectively, unlawful entry into the national park contrary to sections 21(l)(a), (2) and 29(1) and unlawful possession of weapons in the national park contrary to section 24(l)(b) and (2). The remaining three counts are in i respect of economic offences charged under section 86(1) and (2)(b) (3rd count) and 86(1) and (2)(c)(iii) (4th and 5th counts) of the Wildlife Conservation Act No. 5 of 2009 (the WCA) read together with paragraph 14 of the First Schedule to the Economic and Organized Crime Control Act as amended by the Written Laws (Miscellaneous amendments) Act No. 3 of 2016 (the EOCCA). The offences are, respectively, being found in unlawful possession of government trophies to wit, two pieces of fresh zebra meat and two carcasses of zebra valued at TZS 5,280,000.00 (3rd count), two carcasses of wildebeest valued at TZS 2,824,000.00 (4th count) and two limbs of hartebeest valued at TZS 1,430,000.00 (5th count). The charge alleged that all the offences were committed on 7/10/2018 at Borogonja area within Serengeti National Park within Serengeti District in Mara Region. Upon convictions, in counts one (1) and two (2) the appellant was sentenced to serve one-year imprisonment and for each count in counts number three (3), four (4) and five (5) to serve twenty (20) years imprisonment. The sentences were ordered to run concurrently. He was aggrieved hence the instant appeal. The prosecution case was brief and straight forward as only four (4) witnesses testified for the prosecution and, for the defence, the appellant was the sole witness. Liberatus Amandus Kiko (PW1) and Theodori Malala Dudick (PW2) were Park Rangers. The substance of their evidence was that on the material date at 13:00 hour,s they were on patrol at Borogonja area where they saw the appellant, they surrounded him, arrested him and found him in possession of a panga, a knife, four (4) animal trapping wires (exhibit P.E. 1 collectively), two fresh pieces of zebra meat, two carcasses of zebra, two carcass of wildebeest, two fresh legs of hartebeest for which he had no permit. They took the appellant and the exhibits to Mugumu Police Station. Wilbrod Vicent (PW3), a Wildlife Warden, responding to a call by one DC Steven went to Mugumu police station to identify and determine the value of the government trophies which he identified and valued as stated above and prepared a Trophy Valuation Certificate (exhibit P.E.2). Thereafter, as the government trophies were subject to decay, a policemen one G. 4209 DC Stephen who investigated the case, prepared an inventory form (exhibit P.E.3) and took it to the magistrate for an order of disposal which was signed by the appellant and, on the same date (8/10/2020), the appellant was arraigned in court. It is worth noting right here that the inventory form was produced in court in lieu of the above listed government trophies. It was not disputed, by the appellant, during defence, that he was arrested by Park Rangers on 7/10/2020 but not within Serengeti National Park. He claimed that he was arrested at Merenga Village while drunk and walking slowly on the roadside waiting for transport to go home. He was proceeding home from playing a local music, "zeze", at the wedding ceremony at one Chacha Mwita Barante's house held in the night of 6/ 10/2020. To the trial magistrate, the prosecution evidence was enough in proving the charge beyond reasonable doubt. He convicted the appellant in all counts and sentenced him as earlier shown. Still struggling to exonerate himself from liability, the appellant is before the Court armed with a four (4) point memorandum of appeal seeking the High Court decision be overturned. However, before hearing commenced, the learned State Attorney sought leave of the Court to draw our attention to one material legal infraction committed by the trial court which is not part of the appellant's grounds of appeal. We permitted him to do so. His point was that: - "The trial of the appellant was a nullity for want of a requisite consent and certificate conferring jurisdiction to the District Court of Serengeti to try the case." According to the learned State Attorney, that point considered together with ground three (3) of the appellant's appeal, would sufficiently dispose of the appeal. That ground is couched thus: - "3. That, both the trial court and the first appellate court erred in law and fact to convict the appellant while the prosecution side failed to prove the case beyond reasonable doubt" At the hearing of the appeal, the appellant did not physically appear before us but was linked with the Court through video conference from Mvomero District Court. He was unrepresented and therefore he fended for himself. For the respondent Republic, it was Mr. Isihaka Ibrahim Mohamed, learned State Attorney, who argued the appeal and was present in Court. Faced with the disadvantage of being a layperson on legal issues and unrepresented, the appellant had nothing substantial to assist the Court in both elaborating his grounds of complaints and also on the procedural irregularity pointed out by Mr. Isihaka. He adopted the grounds of appeal and pleaded on us to allow his appeal. Then, he left it to the learned State Attorney to respond to the grounds of appeal. To begin with, Mr. Isihaka argued that, out of the five counts the appellant was charged with, three counts were about economic offences which, in terms of section 3 of the EOCCA, are triable by the High Court sitting as an economic crimes court. For courts subordinate to it, such as Serengeti District Court, to have jurisdiction to try such offences, he argued, there must be a consent and certificate conferring jurisdiction to it issued by the Director of Public Prosecutions (the DPP) in terms of section 26(1) of the EOCCA or an officer authorized by him in terms of section 26(2) of EOCCA. Arguing on the legal infraction he had noted, he submitted that in the record of appeal there is a consent issued under section 26(1) of EOCCA purporting to give consent to the appellant's trial by the District Court of Serengeti. But, he argued, the consent was signed by a Principal State Attorney instead of the DPP himself. To make it valid, he insisted, the Principal State Attorney ought to have issued the consent under section 26(2) of EOCCA. Besides, both the consent and the certificate conferring jurisdiction issued by the DPP or any State Attorney dully authorized by him in terms of section 12(3) of the EOCCA, argued Mr. Isihaka, did not reflect economic offences charged in counts number three (3), four (4) and five (5) which is a fatal defect. 6 Mr. Isihaka, arguing about the legal implication of the afore discussed anomalies, he said the consent was invalid hence could not be treated as consenting to the appellant's trial by Serengeti District Court. Further forthcoming, Mr. Isihaka argued that, absence of valid consent denied jurisdiction to Serengeti District Court to try the case and the proceedings, judgment and sentence meted out by it were a nullity liable to be quashed. He accordingly invited the Court to do so. As to the effect of that stance on this appeal, he argued that the proceedings and judgment of the High Court has no leg to stand on and should also suffer similar consequences. The Court's decisions in Dilipkumar Magambai Patel vs Republic (Criminal Appeal No. 270 of 2019) [2022] TZCA 447 (25 July 2022) (Tanzlii) and Peter Kongori Maliwa and Others, (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023) (Tanzlii) were cited to us in bolstering his argument. We have seriously scrutinized the record of appeal in this case. With respect, we agree with Mr. Isihaka wholesome. It is clear that the consent and the certificate conferring jurisdiction on the record of appeal bear the aforesaid anomalies. The consent was issued by the Principal State Attorney under a wrong provision of the law. He should have acted under section 26(2) of the EOCCA instead of section 26(1) of the EOCCA. Section 26(1) of the EOCCA bars trial in respect of an economic offence under the EOCCA by a subordinate court without a consent of the DPP. That section reads: - , "26. -(1) Subject to the provisions of this section no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." Since the District Court of Serengeti tried the appellant without a valid consent and certificate conferring jurisdiction to it, it obviously lacked jurisdiction as was rightly submitted by Mr. Isihaka. The trial was a nullity. In a plethora of Court's decisions, including the cited ones, the Court has consistently treated the anomaly as fatal with the effect of invalidating the consent. (See also Ally Salim @ Nyuku vs Republic, Criminal Appeal No. 87 of 2020 [2020] TZCA 1783 923 September 2020). We see no good cause to depart from that long established course. Without further ado, we accept the invitation by the learned State Attorney and we hereby declare the proceedings and judgments of both courts below a nullity. The question we now ask ourselves, upon our above finding, is whether the circumstances in this case merit an order of retrial be made. It was at this momentous time that Mr. Isihaka conceded to the appellant's ground three (3) of appeal that, even in the absence of the material irregularity discussed above, the prosecution case was tainted with evidential deficiencies to ground the appellant's convictions of the offences he was charged with. He outlined a few of the apparent deficiencies as hereunder. His first onslaught was that the offence charged in count one of entering into the nation park could not stand as the provisions of section 21(l)(a), (2) of the NPA create no offence after its amendment and he relied on the Court's decision in the case of Maduhu Nhandi @ Limbu vs Republic (Criminal Appeal No. 419 of 2017) [2022] TZCA 78 (25 February 2022) (Tanzlii). We indeed agree with him. Following the amendment in the NPA by Act No. 11 of 2003, the offence of entering into the national park ceased to exist and the appellant was therefore charged under a non­ existent law. (See also Mwita Mohere vs Republic, Criminal Appeal No. 340 of 2020 (unreported). Secondly, Mr. Isihaka pointed out that the boundary of Serengeti national park was not established by PW1 and PW2 who claimed to have arrested the appellant within Serengeti national park. They merely asserted 9 that they arrested the appellant while hiding in the bush at Borogonja area within the park without telling the legal boundaries of the park as prescribed in section 5(1) of the NPA. We entirely agree with Mr. Isihaka as each national park has its prescribed boundaries. To hold an accused liable, it must be established by the prosecution that, indeed, the appellant was found within the precincts of the prescribed boundaries of a national park [see Maduhu Nhandi @ Limbu vs Republic, Criminal Appeal No. 419 of 2017, [2022] TZCA 78 (25th February 2022)]. As rightly argued by Mr. Isihaka, PW1 and PW2 failed to do so. As such, there could be no justification to disagree with the appellant's contention during defence that he was found and arrested by game officers while at the roadside at Merenga Village. It becomes obvious that a successful prosecution of the appellant on offences of entering into the national park and unlawfully possessing weapons in the national park cannot succeed. Thirdly, the procedure adopted for tendering exhibits of the prosecution was faulted by Mr. Isihaka for being made by the prosecutor who was not a witness and could not be cross-examined on oath or affirmation. He referred the Court to the case of Seleman Moses Sotel @ White vs Republic, [Criminal Appeal No. 385 of 2018 [2020] TZCA 40 (28 10 February 2020) (Tanzlii)] underscoring the position that, a prosecutor is not a witness. He urged the exhibits be expunged from the record of appeal the consequences being that the charges in the second to fifth counts will collapse. Mr. Isihaka is right. It is vivid on the record that it was the public prosecutor who sought leave of the trial court to tender exhibits PI and P2. There was no indication whatsoever that the witnesses sought to tender them after identifying and clearing them. It is trite law that a prosecutor is not a witness able to legally tender exhibits in court for not being a witness and not sworn or affirmed so that he can be cross-examined (See Thomas Ernest Msungu @ Nyoka Mkenya, Criminal Appeal No. 78 of 2012 and followed in Frank Massawe vs Republic, Criminal Appeal No. 302 of 2012 (both unreported). We accordingly expunge from the record all the prosecution exhibits leaving the charges without any proof. Once all the exhibits are disregarded, no substantive evidence remains to incriminate the appellant with the offences charged in all counts save for the first count which, however, we have earlier held no such offence legally exists. Insufficiency of the evidence on identification of government trophies by PW3 disturbed Mr. Isihaka arguing that no detailed explanation was given on how he identified the animal parts distinguished them with parts of other ii domestic animals. We agree with him. This is what the trial court was told by PW3 at page 47 of the record of appeal: - "I remember on 08/10/2018 at about 09:001 was at Police Station Mugumu called by DC Steven to identify and value government trophies. I identified two (02) fresh meat of zebra, two (02) carcass of wildebeest and two (02) hind limb/legs of Hartebeest. Therefore, I proceeded to make valuation...." Quite obviously, this is not what is expected of an expert. Expert findings are based on analysis of data or facts and the findings are well reasoned. An expert has, therefore, to provide the criteria and material for adjudging situations. This should be reflected on the reasons they give to support their findings so as to assist the court to make own judgment by observing or comparing the criteria given and the real thing for which the opinion is given (See The DPP vs Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of 2012 (unreported). A final finding is, however, made by the court as his are mere opinions not binding the courts. We would add here that where criteria are given and are well explained, such evidence (opinion) should not be easily ignored by the court but reasons should be given (See Saidi Mwamwindi vs R [1972] HCD n. 212 at page 249). In discussing the position expert opinion has in the administration of justice, a statement by Lord President Cooper in the case of Davie v. Edinburgh Magistrates, 1953 S. C. 34 at page 40 was accepted by the Court in the case of The DPP vs Shida Manyama @ Seleman Mabuba, (supra) as providing a proper elaboration of the duty of an expert that: - "To furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form its own independent judgment by the application of these criteria to the facts proven in evidence." Based on the above requirement, an expert is not expected to rush and give a finding without elaborating the basis of his conclusion. Reasons for his findings are paramount in making his findings worthy it. The Court, in The DPP vs Shida Manyama @ Seleman Mabuba (supra) therefore citing the case of Romesh v. Regency Hospital Ltd., (2009) 9 SCC 709, remarked that an expert has to go beyond making mere assertions, if he is to be taken seriously as "convincing and effective". And, the Court cautioned that: - "Mere assertions without mentioning the data or basis is not evidence, even if comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value..." When approached in the light of the above dimensions, there is no dispute that the testimony by PW3 fell far short of establishing the criteria applied in identifying the meat. It constituted of mere avowals which deserved to be excluded in determining the liability of the appellant. It was no evidence worth being relied on. The courts below ought to have had taken it that the alleged trophies were not properly identified. This, too adversely affected the evidential value of the Trophy Valuation Report (exhibit P.E.2) and inventory form (exhibit P.E.3) which indicated the type or kind of government trophies rendering them useless in the eyes of the law. The kind or type of trophy and its value, is significant in the determination of a proper sentence as, in terms of section 86(1) and (2)(a), (b), (c) of the WCA, assessment of sentence, upon conviction, is based on the type of government trophy and its value. Failure to establish the type of the trophy 14 and in the absence of Trophy Valuation Report (exhibit.E.2) render it impossible to assess the sentence upon conviction. Failure to involve the appellant when the disposal order of exhibits was made by the magistrate was pointed out by Mr. Isihaka as one of the serious procedural infractions committed by the prosecution. According to him, the inventory form (exhibit P.E 3) prepared by PW4 and signed by the magistrate to endorse disposal of government trophy lacked the appellant's comments quite inconsistent with the law. He referred us to the Court's decision in the case of Buluka Leken Ole Ndidai and Another vs Republic, Criminal Appeal No. 459 of 2020 (unreported). We have had a glance on exhibit P.E. 3 located at page 64 of the record of appeal. It is plain that the appellants were not asked to give comments, if any, as the record exhibit P.E.3 is silent about it. In the cited case, the Court observed that reflection of the accused's comments on the inventory form saves important purposes such as being proof that they were present before the magistrate when the disposal order was made and more significantly, they serve as evidence that they were heard and their comments taken by the magistrate before the order is made. If accused persons are involved by being present at the time of parking drugs in offences such as illicit traffic in drugs before being taken to the Government Chemist for examination, we see no reason why not in disposal of exhibits. Fair trial requires transparency and one crucial factor is involvement in matters that affect the rights of the parties or any of them during trial such as in disposal of exhibits. In the present case, absence of appellant's comments in exhibit P.E.3 affected its credence and as rightly argued by Mr. Isihaka, it was improperly relied on to ground the appellant's conviction. It should have been disregarded. In the light of the above discussion, we agree with the learned State Attorney that the prosecution case is tainted with serious legal and procedural infractions such that an order of retrial, if made, it will be at the detriment of the appellant as such anomalies may be corrected by the prosecution in their verge to secure a conviction quite inconsistent with the spirit embedded in the case of Fatehali Manji vs Republic [1966] EA 343 and followed by the Court in Adam Selemani Njalamoto vs Republic, Criminal Appeal No. 196 of 2016 (unreported). We, accordingly refrain from making an order of retrial. In the final analysis, we allow the appeal, quash the appellant's convictions and set aside the sentences imposed on all counts by the trial 16 court and sustained by the High court. We order that he be set free forthwith if not held for any justifiable 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 Appellant who appeared via video linked and Mr. Felix Yona Mshama, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. 17