DC Criminal Appeal 08 of 2023 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA DC CRIMINAL APPEAL NO. 08 OF 2023 (Originated from the District Court of Mlele at Mlele in Economic Case No. 17 of2021) MHOJA MWINALIMA @MABULA................................................. APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT JUDGMENT 200 September & 22nd November, 2024 MRISHA, J. Before the trial court which is the District Court of Mlele at Mlele, the appellant Mhoja Mwinalima @Mabula was arraigned with five counts. The first count was Unlawful Hunting into Game reserve contrary to section 47(a)(iii)(a) of the Wildlife Conservation Act No. 5 of 2009 (the WCA) read together with paragraph 14 of the First Schedule to and sections 57(1) and 60 (2) of the Economic and Organized Crimes Control Act, CAP 200 R.E. 2019 (the EOCCA). 1 The allegations leveled against him in relation to that count, were that on the 8th day of October, 2021 at Malangari area within Rukwa Game Reserve in Mlele District and Katavi Region, the appellant hunted one Zebra valued at Tshs. 2,760,000/= and one Bush buck valued at Tshs. 1,380,000/= without having any permit from an authorized officer. In the second count which also relates to the third count, the said appellant was charged with the offence of Unlawful Possession of Government Trophy contrary to section 86 (1) and (2)(b) of the WCA as amended by section 59 (a) of the Written Laws (Miscellaneous Amendment) (No. 2) Act, No. 4 of 2016 read together with paragraph 14 of the First Schedule to and sections 57(1) and 60 (2) of the EOCCA. In regard to the above counts, it was the prosecution allegation that on the same date and place as mentioned in the first count, the appellant was found in possession of 10 Kilograms of Zebra meat valued at Tshs. 2,760,000/= and one Bushbuck tail valued at Tshs. 1,380,000/= respectively, without having any permit from an authorized officer. As for fourth count, the appellant was charged before the said trial court with an offence of Unlawful Possession of Weapons into the Game Reserve 2 contrary to section 17(1) and (2) of the WCA read together with paragraph 14 of the First Scheduled to and section 57 (1) and 60 (2) of the EOCCA. It was alleged in respect of that count that on 8th day of October, 2021 at Malangari area within Rukwa Game Reserve in Mlele District and Katavi Region, the appellant herein was found in possession of weapons to wit: Ten explosives and eleven match boxes without a permit from an authorized officer. In the last count, the appellant was charged with an offence of Unlawful Possession of Ammunition into the Game Reserve contrary to sections 21 (b) and 60 (1) of the Firearms and Ammunition Control Act, No. 02 of 2015 read together with paragraph 31 of the First Schedule to and section 57(1) and 60(2) of the EOCCA. In this count, the prosecution alleged that on the same date and place, as stated in the previous counts, the appellant was found in possession of 11 ammunitions of Muzzle loading gun commonly known as "GoOrre" without any license or permit from an authorized officer. When the charge sheet was read and explained to him in a language he clearly understood, the appellant pleaded not guilty to all the above counts. 3 The appellant’s denial constrained the prosecution Republic to call a total of five witnesses who testified as prosecution witnesses, and tendered five exhibits in order to discharge their legal duty of proving the offences against the appellant who upon being found with a prima facie case, fended for himself as the sole defence witness. In the end, the trial court convicted and sentenced the appellant in respect of the second and third counts, save for first, fourth and fifth counts which it found that the prosecution had failed to prove beyond any reasonable doubts. Therefore, in the second and third counts, the appellant was sentenced to serve as sentence of twenty (20) in prisons for each count, and the trial court ordered the above sentences to run concurrently. It further ordered that Exhibit P4, one animal tail, one bicycle, two machetes, six pieces of small iron bars, five small round balls, nine primers, and eleven match boxes be forfeited to the Director of Wildlife and handed over through the OC-CID of Mlele District. Having been dissatisfied by the above decision, the appellant has lodged the instant appeal to this court which is composed of three grounds. Being the first appellate court, this court is supposed to consider and address 4 such grounds of appeal in order to ascertain if they are meritorious. However, for the reasons to be explained hereinafter shortly, I will not go that way, rather I will delve into considering whether the trial court had jurisdiction to try the Economic Case No. 17 of 2021 against the appellant herein. When the appeal was called on for hearing, the appellant appeared in person, unrepresented while on the other side, the respondent Republic was represented by Ms. Flavia Shiyo, learned State Attorney. The appellant started by adopting his grounds of appeal and stated in his petition of appeal arguing that the same are self-explanatory. Thus, he implored this court to allow his appeal and set him free. The appellant’s appeal was supported by Ms. Flavia Shio, though in a different approach. In supporting the appellant’s appeal, the learned State Attorney argued that there was a serious irregularity occurred on matter of jurisdiction of the court. She submitted that, the present appeal is originated from Economic Case No. 17 of 2021, in which the law applicable is the EOCCA and the High Court is the one with original jurisdiction to hear and determine the economic cases regardless of their value. 5 Besides, she submitted that the subordinate court may exercise such jurisdiction only when the Director of Public Prosecutions exercise his powers under section 12 (3) of the ECCOA. This can be done by issuing a certificate and consent to entitle the subordinate court to hear and determine economic offences. In her submission, the learned State Attorney drew the attention to this court by submitting that the consent and certificate allegedly giving consent and conferring the trial court jurisdiction to try the appellant on the aforementioned economic offences, fall short of displaying the charging provision something which make such documents to be incurably defective. To bolster her position, Ms. Flavia Shio cited the case of Peter Kogani Maliwa and 4 others v Republic, Criminal Appeal No. 53 of 2020 CAT Musoma (unreported). Lastly, she wound up by praying to this court to order a retrial on the ground that there is sufficient evidence for the prosecution Republic to prove its case against the appellant beyond any reasonable doubts. On his part, upon being given an opportunity to make his rejoinder after hearing the submission of the learned State Attorney, the appellant 6 reiterated his previous prayer to be acquitted and added that there is no sufficient prosecution evidence to prove the case against him and he has been in prison since 2021. I have personally, considered the foregoing submissions of both parties and I agree with the learned State Attorney that the trial court did not have jurisdiction to hear and determine the case against the appellant. This is because; it is the High Court which is vested with original jurisdiction to hear and determine the economic offences. That is provided under section 3 of the EOCCA which declare that: "The jurisdiction to hear and determine cases involving economic offence under the Act is hereby vested in the High Court. ”' Without prejudice the above provision of the law, it is important to bear in mind that the economic offence case cannot be commenced without obtaining the consent of the DPP, as required under section 26(1) of the EOCCA, which provides that: “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 Prosecution.” 7 In the trial court, the appellant was charged and prosecuted with an offence of unlawful hunting of an animal, unlawful possession of government trophy, unlawful possession of weapons into game reserve and unlawful possession of ammunitions which is an economic offence, and the High Court is the one vested with original jurisdiction to try that case. Despite the fact that the Regional Prosecutions Officer issued a certificate conferring the said trial court with jurisdiction to try such economic case under section 12(3) of the EOCCA, the said certificate lacks the charging section. This is mirrored from the court records as can be shown hereunder: "CERTIFICATECONFERINGJURISDICTION TOSURBODINATE COURT TO TRYAN ECONIMIC CRIME CASE I ABEL M. SANGA, Regional Prosecutions Officer of Katavi Region, DO HEREBY in terms of section 12 (3) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2019] read together with Government Notice No. 296H of 2021 ORDER that MHOJA S/O MWANAMILA @MABULA who is charged for contravened the provisions ofparagraph 14 of the First Schedule to, and section 57(1) 8 and 60(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] BE TRIED by the DISTRICT COURT OF MLELE. Dated at MPANDA this 24th day ofJune, 2022 Sgd REGIONAL PROSECUTIONS OFFICER” Moreover, the consent issued by the Regional Prosecutions Officer to prosecute the appellant stated as follows: - "CONSENT OF THE PROSECUTION ATTORNEY IN-CHARGE I, ABEL M. SANGA, Regional Prosecutions Ofcer of Katavi Region, DO HEREBY in terms of section 26(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] read together with Government Notice No. 496H of2021 CONSENT to the prosecution of MHOJA S/O MWINAMILA @MABULA who is charged for having contravened the provision of the paragraph 14 of the First Scheduled to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019], the particulars of which are set out in the charge. 9 Dated at MPANDA this 24th day ofJune, 2022. Sdg REGIONAL PROSECUTIONS OFFICER” From the above scripts, it is apparent that both the certificate conferring jurisdiction to the subordinate court and the consent of the Regional Prosecutions Officer do not have the insertion of section 47 (a) (iii) (a), section 86 (1) and (2) (C) (ii) and section 17(1)(2)(b) and (2) of Wildlife Conservation Act No. 5 of 2009 and section 20(1)(a)(3) and 21(b) and 60(1) of the Firearms and Ammunition Control Act No. 2 of 2015 which are the proper charging provisions, as rightly submitted by Ms. Flavia Shio. The law is settled that, a certificate and consent of the DPP or State Attorney without reference to the relevant provisions of the law creating economic offence, are incurably defective and renders the trial court proceedings a nullity. This stance has been emphasized by the Court of Appeal in various cases. (See: Peter Kongori Maliwa and 4 Others v Republic, Criminal Appeal No. 252 of 2020 [2023] TZCA 17350, (14 June 2023) Tanzlii, Dilipkumar Maganbai Patel v Republic, Criminal Appeal 10 No. 270 of 2019 [2022] TZCA 477 (25 July 2022) Tanzlii and Chacha Chiwa Marungu v Republic, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5 June 2023) Tanzlii. In the case of Peter Kongori Maliwa and 4 Others v Republic (supra) the Court of Appeal held inter alia that: "In the same token, both the certificate conferring jurisdiction to the trial court and consent of the State Attorney In charge did not cite the provisions of law creating the respective economic offences. We, therefore, agree with the learned State Attorney that, the legal consequence of the omission is to vitiate the trial proceedings as the trial courtacted withoutjurisdiction. ”' Since it has been observed in the case at hand that the alleged consent and certificate conferring jurisdiction to the trial court to try the appellant lack the charging section which appears in the charge sheet, I am constrained to follow the guiding principle cited by the learned State Attorney for the prosecution which was stated in the case of Peter Kongori Maliwa and 4 Others v Republic (supra). 11 Having said so, I proceed to find and hold that the trial and proceedings before the trial court were a nullity. Therefore, based on the foregoing reasons, I nullify the whole proceedings of the trial court; quash the judgment and the conviction entered thereto. I also consequently, set aside the sentence which was imposed upon the appellant. Having concluded that the trial court lacked jurisdiction to try the appellant, the next issue for determination, is whether or not a retrial should be ordered by this court. In present case, the appellant pleaded not guilty to the offences he was charged with. The prosecution Republic called five witnesses and produced five exhibits to prove the offences beyond reasonable doubt. However, the trial court convicted the accused person on two counts, second and third counts, while in the remaining counts which were the first, fourth and fifth counts, it acquitted the appellant upon failure of the prosecution Republic to prove them beyond any reasonable doubt. Under such circumstances, I am afraid I cannot side with the learned State Attorney’s proposal to order a retrial, as doing so will be providing the prosecution with chances to reorganize their case and fill in gaps in 12 evidence at the trial court, which may prejudice the appellant against one of the principles in Fatehali Manji (supra). Thus, owing to the foregoing reasons, I refrain from taking the direction proposed to me by the learned State Attorney and, in lieu thereof, I order for the immediate release of appellant from the prison custody unless he is otherwise lawfully held therein. It is so ordered. A.A. MRISHA JUDGE 22.11.2024 DATED at SUMBAWANGA this 22nd day of November, 2024. A.A. MRISHA JUDGE 22.11.2024 13