20190620 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY I · ATMWANZA. I. CRIMINAL APPEAIL NO. 240 OF 2018 MASHAURI JAMES_ _ _ _----"-_ _ _ _ _ _ _APPELLANT ·

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VERSUS THE REPUBLIC_ _ _ _ _ _I_ _ _ _ _ _RESPONDENT

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JUDGMENT Date of last order 14.5.2019 Date of judgment 20.6.2019 Madeha, J . Before District Court of Bunda, the appellant Mashauri James with three . I . other accused was charged and convicted with the offence of entering into I the game reserve without a lawful wtitten permit C/S 15 (1) of the Wildlife . I . Conservation Act No 5 of 2009 for the first count. For the second count unlawful possession of weapons in a game reserve, C/5 17 (1) and (2) of the Wildlife Conservation Act, Act No 5 of 2009. Third count the offence of unlawful possession of government Trophy C/5 86 (1) and (2) (c) of the . I . Wildlife Conservation Act No 5 OF 2009, read together with paragraph 14 I I (d) of the first schedule to the Economic and Organized Crime Control Act Cap 200 (R. E. 2002), the sentence bnd conviction did not amuse him, he l I lodged this first appeal on to the fdllowing grounds of the complaints I hereby reproduce as follows: 1. That, the trial Magistrate erred in point of the law and facts to connect and charge the appellant with irrelevant Crime where he was arrested in different area.

2. That, the trial Magistrate erred in point of law and facts to admit all exhibits which carry no weight to, convict the appellant and even the evidence which was produced by PWl and PW3 had failed to prove that the appellant was found in the game reserve also there was no other witness who could testify to the scene.

3. That, the appellant's conviction and sentence were illegal because the prosecution_side lacks legal basis and the trial Magistra(e tried the case at hand without the concert from the Director of Public Prosecution as the case fall under the Economic and Organized Crime Control Act 4. That, the learned trial Magistrate erred in point of law and facts when he admits the cooked evidence of PWl/ PW2 also the exhibit P3 and P4 who was not admitted any the Expert from the Government Chemist as required by the law. 2 ( ' 5. That the trial Magistrate erred in point of the Law and facts by believing and relying on evidence produced by prosecution witness and ·ignore completely my sole defence presented in court anyhow.

6. That in view of the above grounds of appeal, it is clear that the trial Magistrate erred in point of the Law and facts he failed to examine/ consider and evaluate the evidence which led_ to come up with a wrong decision. The offence was alleged to have been committed on 20 th November 2016. All the accused person, including the appellant who was the third accused was sentenced for the first count all accused to pay a fine of Tshs 100,000/= on default to serve one year in prison, 2nd Count all accused to pay a fine of Ths 100,000/= on default to serve one year in prison, and for the 3rd Count all accused to serve 20 years in pnison. The 3rd accused person (the appellant) was aggrieved by the conviction and the sentence and filed an appeal against the conviction and sentence in the District Court. Before me the appellant filed six grounds of appeal, the appellant appeared in Court in person, the respondent was represented by Mr Juma Sarige Senior State Attorney. 3 I Defending himself, the appellant faulted the decision of the Court below, the appellant said that he entered the areas· of National Parks j . ' . following his livestock that he was shepherding and feeding to the P·arks, ' I they entered into a park three people and they were arrested and sentenced -! to serve 20 years in prison, the appellant was not arrested with Zebra the appellant begun with the firs~ ground;

of appeal that he was arrested _by unknown people and for the second ground he did not enter the area of the ) I National Parks. The third ground there no consent from the Director of Public I Prosecution. The exhibit itself does nbt show whether the animal makes Zebra is the property of the appellant. j For the respondent Mr. Juma Sarige senior State Attorney who asked j for the retrial because the appellant w9s convicted in 18/04/2017, he asked I for a retrial because the Director of ~ublic Prosecutions did not sign the I consent and the signature on the consent is of Senior State Attorney who ' I has no authority to sign the consent. H_e went through the case records and ' found that there was a certificate, but the Director of Public Prosecution I I consent does not exist. This was derived from section 26 (1) of the Economic and Organized Crime Act Cap 200 (R. ,E 2002) as amended by Act No 3 of 2016. 4 The signature in the certificate' to give jurisdiction to h~ar and determine this case was not signed by the Director of Public Prosecutions hands as the laws requireS, the certifiJte was signed by the state Attorney I instead of the Director of Public Prosecilitions, due to the diversity the Court I . has no jurisdiction to hear and determine this case, he asked this case to be marked as de nova. Because the availlble evidence is sufficient to ground conviction of the

appellants. In his submission, he cited the _case of Emmanuel Rutta V. R Criminal Appekl No 357 of 2014. It has got similar to this case as he stated that the evidtce is enough to be able to ground the conviction of the appellant. The isLe here is whether the District Court ' has got jurisdiction to entertain this cak. I will determine this appeal _by di cussing the third grounds of appeal 1 other ground I reproduce as follows: 3. "The appellant's conviction and' sentence were illegal because the · prosecution side lacks legal basis Jnd the trial Magistrates tried the case at hand, without the consent from ~he Director of the PublicProsecutions I as the case follow under the Econo}nic and Organised Crime Control Act " I 5 -I As a result of the grounds of appeal as shown above, I combine the ideas . I . of the Senior State Attorn~y and the ideak in the case of Emmanuel Rutta V. R Crimina·1 Appeal No 357 of 2014 held at Bukoba ·and to follow the . .I decision of CAT in this case, in hereabov~ cited cases it was stated that: "The question · we have to address is whether the two -1 ·documents issued by the learnkd Principal State Attorney I did conferjurisdiction in the Distrct Court to try the offences. the appellant was charged wittl. Under section 3 (1) of the Economic CrifTles Court Howevkr, economic crimes Act the . I . High Court is Economic Crimes Court. However, economic -

I crimes can be tried in the subordinate Court where the Director of Public prosecution/ fulfils certain conditions. A consent to have the case tried by the subordinate Court I under section 26 (1) must be issued'~ The section reads: I " The Director ofPublic Prosecutions is also required to issue certificates under section 12 (3) transferring Case tr the trial in the Subordinate Court'. I Back to this case at hand the appellant (3 rd accused) was charged and I other two accused persons with the offence of unlawful possession of the I 6 government trophy C/S 86 (1) (2) (c) of the Wildlife Conservation Act No 5 ~f 2009 read together with paragraph 1~ .(1) of the first schedule of the Economic and Organized Crimes Control Act Cap 200 (R.E 2002). Was· a . . I consent of the Principle State Attorney I_n -Charge issued under section 26 of the Economic and Organized Crime Control Act No 13 of 1984. The consent reads as follows ''I LUKERO SAMWELI, State Attorney In- Charge, Mara Region, do hereby in terms of lection 26 of the Economic I Crimes Control Act (cap 2001 and G.N No 284 of 2014 Consent to the prosecution of MANIGASA S/O NYAMTACHO, . I .· STEPHINE S/O ANDREA and MASHAURI 5/0 JAMES. For contravening the provisiJ of paragraph. ... Of the first schedule to, of the Economic jnd Organized Crimes Control Act (cap 200 R.E 2002) the pktticulars of which are stated in the charge sheet. I . I Dated at Musoma this 21 da1of November 2016

SIGNED I PRINCPLE STA TE ATTORNEY IN- CHARGE." 7 I 'm inclined to ~dopt the decision in the case of Emanuel Rutta V. R criminal Appeal No 357 of 2014 helq at Bukoba, because it has got the . same situation as that· which took place· at· the Court of Appeal Tanzania (Bukoba). For the above reason the trial conducted by the District Court of Bunda ""fas a nullity, I share the views of the learned State Attorney in the fate which will fall on the appellant in the event of a Court ordering retrial. Therefore, I hereby quash all the proceedin_gs of the subordinate Courts and leave the fate of the appellant to be dealt with by the Director of Public Prosecution. I give an order for the release of the appellant from prison unless he is held there for other lawful purposes. Appeal allowed. Order accordingly. . /J.E. Madeha Judge 20/6/2019 Judge 20/6/2019 8