Mashauri Musa 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA DC. CRIMINAL APPEAL NO. 51 OF 2023 (Arising from Economic Crime Case No. 04 of2022 in the District Court of Kaiiua) MASHAURI MUSSA @ KULWA............................... APPELLANT VERSUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT Date of the Last Order: 12/02/2024 Date ofJudgment: 01/04/2024 & 01 KADILU, J. \ I In the District Court of Kaiiua, the appellant was charged with three counts. In the first count, he was charged with unlawful possession of firearms contrary to Section 20 (1) and (2) of the Firearms and Ammunition Control Act No. 2 of 2015 read together with paragraph 31 of the 1st Schedule to and Sections 57 (1), and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2019]. The prosecution alleged that on the 21st day of April 2022 at Ugansa Village within Kaiiua District in Tabora Region, the appellant was found in possession of a firearm namely, Muzzle Loader Gun without a permit. In the second count, the appellant was charged V/ith unlawful possession of ammunition contrary to Section 20 (1) and (2) of the Firearms and Ammunition Control Act, read together with paragraph^ of the 1st Schedule to and Sections 57 (1), and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2019]. It was alleged that on the 21st day of April 2022 at Ugansa Village within Kaiiua District in Tabora Region, the appellant was found in possession of ammunition to i wit; 10 pieces of iron bar, 50 pellets, and a bottle of gunpowder without a license. The third count was unlawful possession of Government trophy contrary to Section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the 1st Schedule to and Sections 57 (1), and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2019]. The prosecution alleged that on the 21st day of April 2022 at Ugansa Village within Kaliua District in Tabora Region, the appellant was found in unlawful possession of Government trophy to wit; common duiker's meat worth TZS. 581,312/= the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. On 25/04/2022 when the appellant was arraigned before Kaliua District Court for the first time, the charge was read over to him but he was not required to plead presumably because, the court had no jurisdiction to try an economic offence. On 15/11/2022, the Public Prosecutor informed the trial court that they had already received consent. The charge was then read over to the appellant and he allegedly pleaded guilty to all counts in the following words: 1st count: "It is true, I was found with the said weapons." 2nd count: "It is true, I was found with the said ammunition." 3d count: "It is true, I was found with the said meat." The trial Magistrate entered a plea of guilty to the charge and invited the prosecution to adduce the facts containing the substance of the 2 offences charged. The record reveals that the appellant admitted all the facts read over and explained to him. Moreover, he did not object to the admission of the muzzleloader gun, valuation report of the duiker meat, an inventory sheet for duiker meat, certificate of seizure, and his cautioned statement when they were tendered as exhibits. Based on the appellant's plea of guilty, the court convicted him of the three counts and sentenced him to twenty (20) years imprisonment for each count. Dissatisfied with the conviction and sentence, the appellant preferred the instant appeal to this court. He prayed for the court to allow the appeal, nullify the proceedings of the trial court, quash the conviction, and set aside the sentence meted upon him on the following grounds: 1. That, the case for the prosecution was not proved against the appellant beyond reasonable doubt as required by the law. 2. That, the alleged plea of guilty by the appellant was equivocal and ambiguous. 3. That, the reply to the facts of the case as put to the appellant by the prosecutor does not show the actual words of the appellant (in verbatim). 4. That, the omission to read aloud the documentary exhibits P2 collectively affected the plea ofguilty by the appellant. 5. That, the duiker meat and the ammunition allegedly seized from the appellant were not tendered in court as exhibits. 6. That, the trial Magistrate erred in law and fact to allow the prosecutor to read the facts of the case under section 192 (3) of the Criminal Procedure Act which carters for accused persons who have pleaded not guilty. 7. That, paragraphs 4 and 5 of the facts of the case as put to the appellant by the prosecutor without qualification do not constitute the essential ingredients of the offences charged namely, absence of the license. 3 During the hearing of the appeal, the appellant appeared in person as he had no legal representation. The respondent was represented by Ms. Alice Thomas and Ms. Suzan Barnabas, the learned State Attorneys. Before hearing the appeal, the court observed that the DPP's consent and a certificate conferring jurisdiction to the subordinate court were not properly received by the trial court. The parties were thus invited to address the court on the point. Ms. Alice conceded that being an economic offence, the trial court proceeded without having jurisdiction to entertain it because the DPP's consent and certificate conferring jurisdiction to the trial court were not properly admitted. According to her, the said documents are in the court's record, but the proceedings are silent about how they got into the case file. She added that the trial court asked the appellant to plead to the charge before the Magistrate had said anything concerning the consent of the DPP and certificate conferring jurisdiction to the court she was presiding over. She firmly concluded that there was non-compliance with the legal procedures in the conduct of this case by the trial court and that the proceedings remain illegal for lack of jurisdiction. She referred to the case of Selina Yambi& Others v R., Criminal Appeal No. 94 of 2013 to buttress her argument. She prayed for the court to order a retrial of the appellant. Submitting on the filed grounds of appeal, Ms. Alice started with the first ground and argued that the appellant was convicted on his plea of guilty to all counts therefore, he was not entitled to appeal against the conviction. Regarding the appellant's complaint that the plea was equivocal, the learned State Attorney contended that the plea was very 4 clear. Further, the appellant understood the charge and facts constituting the offences, which is why he pleaded guilty. Concerning the 4th and 5th grounds of appeal, Ms. Alice explained that it is not a legal requirement that exhibits tendered after the accused had pleaded guilty should be read out aloud. She cited the case of PaskaliKamara vR.f Criminal Appeal No. 457 of 2018 to support her argument. Regarding the 6th ground of appeal in which the appellant complains that the trial Magistrate allowed the prosecutor to adduce facts under Section 192 (3) of the CPA, the learned State Attorney argued that it is not supported by the record. She added that even if the same was true, it is still baseless because the appellant pleaded guilty. She prayed for the appeal to be dismissed. When the appellant was asked to submit on the grounds of appeal, he disagreed with the contention by the learned State Attorney that he pleaded guilty. He explained that he was tortured by the Wildlife Officers and the Police and they told him that if he did not admit the offence, they would teach him a lesson so, he pleaded guilty out of fear. According to him, he met the same Police Officer in court prosecuting the case hence, he could not tell the trial court that he was tortured. About the point raised by the court, the appellant urged the court to determine it without ordering a retrial for the interests of justice. He prayed for the court to allow the appeal and order his release from prison custody as he is suffering from ulcers. Having examined the grounds of appeal and submissions by both sides, I now have to determine whether the appeal is meritorious or 5 otherwise. It is apparent from the record that the appellant was charged with three counts of unlawful possession of firearms contrary to Section 20 (1) and (2) of the Firearms and Ammunition Control Act, unlawful possession of ammunition contrary to Section 20 (1) and (2) of the same Act, and unlawful possession of Government trophy contrary to Section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act. I am mindful that the amendment of the EOCCA via Act No. 3 of 2016 led to the offences under Sections 20 and 21 of the Firearms and Ammunition Control Act being prescribed as economic offences under paragraph 31 of the First Schedule to the EOCCA. The position is that, in the trial of every economic offence under the EOCCA, there should be the consent of the DPP under Section 26 (1) of the EOCCA, which states as follows: "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." The EOCCA, mandates the DPP to delegate his powers to his subordinates in terms of Section 26 (2) which stipulates: "The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions." Section 3 (1) of the EOCCA established the Corruption and Economic Crimes Division of the High Court in which proceedings concerning 6 economic cases under EOCCA may be instituted. Section 3 (3) (b) of the same Act stipulates as follows: "The Court shall have jurisdiction to hear and determine cases involving economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29, and 38 of the First Schedule whose value is not less than one billion shillings, save for paragraph 14; (b) economic offences specified under paragraphs 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37 and 39 of the First Schedule regardless of their value." Nevertheless, in terms of Section 12 (3) of the EOCCA, the DPP may confer jurisdiction to the subordinate court to try economic offence. The Section provides: " The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." Thus, consent of the DPP must be given before any trial of an economic offence by a subordinate court. A subordinate court could only be vested with jurisdiction to try an economic offence if conferred jurisdiction under Section 12 (3) of the EOCCA when the DPP issues a certificate that any offence triable by the High Court be tried by a court subordinate to the High Court. In the appeal before me, the trial commenced without obtaining the certificate conferring jurisdiction to the District Court of Kaliua. It is indisputable that the first question that needs to be determined in any adjudication is whether or not the court or tribunal is vested with the requisite jurisdiction. In the case of Fanue! 7 Mantiri Ngunda vHermanMantiriNg'unda and20 Others, [1995] TLR 155, it was held that: "The question ofjurisdiction for any court is basic. It goes to the very root of the authority of the court to adjudicate upon cases of different nature. The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of theirjurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed with the trial ofa case on the assumption that the court hasjurisdiction to adjudicate upon the case." In Kingoio Limbu @tina and Another vR.f Criminal Appeal No. 445 of 2017, it was stated that the fate which befalls the proceedings and a decision made without jurisdiction is a nullity. As hinted, in the instant appeal, the District Court of Kaliua proceeded without the DPP's certificate conferring jurisdiction to it to try an economic case. The proceedings reveal that the DPP's consent was received by the court on 5th June 2022, but the record is silent about the certificate. The proceedings in which the appellant allegedly pleaded guilty were conducted on 15th November 2022. A certificate conferring jurisdiction on the subordinate court is in the case file and was signed by the Regional Prosecutions Officer on 5th May 2022, but it is not reflected anywhere in the proceedings. Even the DPP's consent was not correctly received by the court as the record shows that from 6th May 2022 to 15th November 2022, the Public Prosecutor kept on informing the trial court that he had received the DPP's consent, but the court remained muted. There is nothing in the court's orders signifying that the consent was made part of the court's proceedings. In the circumstances, this court finds that the DPP's consent 8 and certificate conferring jurisdiction to the trial court were not properly admitted. I thus, agree with the submission by Ms. Alice that, the said documents are in the record of the court, but the proceedings are silent about how they got into the case file. The Court of Appeal, in the case of John Julius Martin and Paulo Samwel Girengi v R., Criminal Appeal No. 42 of 2020 stated that the DPP's consent and certificate should be reflected in the proceedings and endorsed by the trial Magistrate. Failure to do so takes away the trial court's jurisdiction to decide that particular case. In Mhole Saguda Nyamagu v R. Criminal Appeal No. 337 of 2016, Court of Appeal of Tanzania at Mwanza, it was held that in the absence of the DPP's consent given under section 26 (1) of the Act and the requisite certificate under subsections (3) and (4) of section 12 of the Act, the trial District Court had no jurisdiction to hear and determine charges against the appellant as it did. Therefore, the purported plea by the appellant in Kaliua District Court was a nullity since the court acted without having jurisdiction. On that same account, the ruling of that court which convicted and sentenced the appellant is adversely impacted because it emanated from nullity proceedings. Consequently, I nullify the proceedings of Kaliua District Court in Economic Case No. 04 of 2022, quash the conviction, and set aside the sentence meted against the appellant. Ordinarily, after having quashed the entire proceedings of the lower court, there are two alternative and competing orders that a court may make, either to order a trial de novo or to release the appellant. 9 To avoid allowing the prosecution to rectify some defects or fill in gaps at the detriment of the appellant, courts are discouraged from ordering a retrial unless it is inevitable. However, the facts of the case at hand are quite different because the appellant pleaded guilty. For that matter, his innocence or otherwise was not determined based on evidence and there are no gaps capable of being filled. For apparent reasons, I will not discuss the grounds of appeal filed by the appellant. In the upshot, I allow the appeal to the extent stated but withhold the appellants prayer against a retrial order. On the way forward, I order a trial of the appellant before a different Magistrate, subject to the trial court's proper admission of a certificate conferring jurisdiction and consent of the DPP. In the meantime, the appellant shall remain in custody pending his trial. The right of appeal is fully explained. Order accordingly. KADILU, M.J. JUDGE 08/04/2024 in chamber on the 8th Day of April, 2024 in the presence of the appellant and Ms. Tunosye Luketa, State Attorney, for the respondent. JUDGE 08/04/2024 io