MORE MARIJA

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI J.A.. MAIGE, 3.A. And RUMANYIKA. J.A.) CRIMINAL APPEAL NO. 47 OF 2021 MORE MARIJA @ MORE................................................................... APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba, J.) dated the 11th day of December, 2020 in Criminal Appeal No. 133 of 2020 JUDGMENT OF THE COURT 5th & 13th December, 2024 RUMANYIKA, J.A.: The appellant, More Marija @ More, was arraigned in the District Court of Serengeti at Mugumu (the trial court) in Economic Case No. 64 of 2019 on four counts. The first one is of unlawful entry into the National Park contrary to sections 21(l)(a) (2) and 29(1) of the National Parks Act, Cap 282 as amended by the Written Laws (Miscellaneous Amendments) Act No. 11 of 2003 (the NPA). The second count concerned unlawful possession of weapons in the National Park contrary to section 24 (1) (v) and (2) of the NPA. The third count was about unlawful possession of government trophies i contrary to section 86(1) and (2) (c) (ii) of the Wildlife Conservation Act, Cap 283 (the WCA) as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 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 (the EOCCA) as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. The fourth count related to unlawful possession of government trophies, contrary to section 86 (1) and (2) (c) (iii) of the WCA as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 read together with Paragraph 14 of the First Schedule to and sections 57(1) and 60(2) of the EOCCA. The Republic alleged that on 4th July, 2019, at Mto Grumet area in Serengeti National Park (the National Park) within Serengeti District in Mara Region, the appellant entered thereinto without authority and was unlawfully found in possession of weapons, to wit one panga, one knife, one spear and four animal trapping wires. He is allegedly to have failed to show that the weapons were not intended for hunting, killing, wounding or capturing animals therein. It was also alleged that he unlawfully possessed government trophies, namely; a dry skin of Impala valued at TZS 858,000.00, three dried pieces of Wildebeest meat worth TZS 1,430,000.00 2 and a dried skin of Topi valued at TZS 1,760,000.00, all the property of the United Republic of Tanzania. Upon trial, the appellant was convicted as charged and sentenced to serve one- year imprisonment for the first two counts each. For the third and fourth counts, a term of twenty years imprisonment each. All the sentences were to run concurrently. Aggrieved by that decision, he appealed to the High Court of Tanzania at Musoma (the first appellate court) unsuccessfully. Still aggrieved, the appellant preferred the present second appeal. As to the background on this appeal, it all began with Samson Njohome (PW1) and Anthony Cleophace @ Mwisemi (PW2), the National Park Rangers who, while on patrol at Mto Grumet area on July, 2019 around 08:000 am arrested the appellant in the Serengeti National Park. That they found him in possession of traditional weapons to wit; one panga, one knife, one spear and four animal trapping wires and government trophies, namely, a dried skin of Impala, three dried pieces of wildebeest meat and skin of Topi, without permission of the respective authority. The corresponding certificate of seizure was admitted as exhibit PI. Then the appellant was produced to Mugumu Police Station together with the seized weapons (exhibit P2) and the government trophies. G. 5834 DC James (PW4) was the one who investigated the case. Wilbrod Vicent (PW3) asserted to have identified the seized trophies and he valued the Impala skin at TZS 858,000.00 while the three dried pieces of Wildebeest were worth TZS 1,430,000.00. The value of Topi meat was established to be TZS 1,760,000.00, all making a total value of TZS 4,480,000.00. PW3 prepared the Trophy Valuation Certificate (exhibit P3). They also testified that, PW4 prepared an Inventory Form (exhibit P4) with which the appellant was produced to the magistrate who ordered destruction of the exhibit. The appellant fended for himself without calling any witnesses. He distanced himself from the charged offences asserting that he was only arrested on 5th July, 2019 while grazing animals around there. Upon being convicted and sentenced, as highlighted above, the appellant's appeal to the High Court bore no fruit hence the instant appeal. He had four grounds in the initial memorandum of appeal filed on 27/04/2021 and five grounds in the supplementary memorandum of appeal presented at the hearing. However, for the reasons that will come to light shortly, we find mentioning all of them quite unnecessary, except the second ground in the belatedly filed supplementary memorandum of appeal. That; the conviction was vitiated for being founded on an incurably defective consent o f the Senior State Attorney In-Charge for Mara Region, which did not cite the offence section, with respect to the third and fourth counts. At the hearing of the appeal, the appellant appeared in person while Ms. Mwajabu Tengeneza, learned Principal State Attorney represented the respondent Republic. The appellant adopted the set of memoranda of appeal and urged us to allow the appeal, quash the convictions, set aside the sentences and to set him free. Ms. Tengeneza supported the appeal outrightly. She contended that, from the inception, the consent and certificate conferring jurisdiction on the trial court issued by the Senior State Attorney In charge for Mara Region were too defective and invalid to found a conviction. She explained that, the consent and certificate omitted to cite section 86 (1) and (2) (c) (iii) of the WCA with respect to the third and fourth counts. She argued that the omission rendered them inconsequential and that they have to be excluded from the record of the proceedings as the courts below lacked jurisdiction. She cited Peter Kongori Maliwa and Four Others v. R (Criminal Appeal No. 252 of 2020 (2020) [2023] TZCA 17350 (14 June 2023) to cement her point. In terms of section 4 (2) of the Appellate Jurisdiction Act Cap. 141 (the AJA) therefore, Ms. Tengeneza urged us to nullify the proceedings of the two courts below for being flawed, quash the convictions and to set aside the sentences. However, she did not press for a retrial for one main reason; that the proceedings did not show if the appellant participated in the destruction of the trophies nor did the Inventory Form (exhibit P5) reflect it except a name and thumb print. Prompted by the Court, about the first and second counts, Ms. Tengeneza contended that, the first count was preferred under the provision which does not create an offence as per the amendment made by Act No. 11 2003. With regard to the second count, she stated that, the crime scene was not proved to be part of Serengeti National Park, therefore, the offence of unlawful possession of weapons in the National Park could not stand. However, she argued that, the appellant had finished the corresponding sentence of one year and therefore, a retrial was uncalled for. Agreeing with the appellant's contention and prayer, she urged us to allow the appeal, quash the convictions, set aside the sentences and to release him. Having considered the submissions by both sides and more so, Ms. Tengeneza's concession to the appeal, the pertinent issues for our consideration is whether the alleged defects in the consent and certificate 6 rendered the impugned proceedings a nullity and whether a retrial is ruled out in the circumstances. It is recalled that, under section 3 (3) of the EOCCA, the High Court is solely vested with power to hear and determine economic offences. However, under section 12 (3) of the EOCCA, such offences can be tried by subordinate court thereto, in this case the trial court. It is so allowable only where the DPP or his delegate confers it with jurisdiction vide a certificate issued under section 12 (3) of the EOCCA along with consent, pursuant to section 26 (1) or (2) of the same Act, whichever is applicable. A certificate conferring jurisdiction on the subordinate court to try both economic and non-economic offences can be issued in terms of section 12(4) of the EOCCA. However, we note, in this appeal that the consent and certificate omitted to cite the charging section 86 (1) and (2) (c) (iii) of the WCA with respect to the third and fourth counts. As such, the omission constituted a fatal ailment as the two courts below acted without jurisdiction hence a nullity. See- James Siluli @ Mwita v. R (Criminal Appeal No. 24 of 2021) [2024] TZCA 1006 (29 October 2024, TanzLII) and Kwabi Nila Limbu v. R (Criminal Appeal No. 26 of 2021) [2024] TZCA 1028 (4 November 2024; TanzLII). Considering the status of the trial and first appellate courts' proceedings, the follow up question is pertinent. It is on the way forward. Drawn from the defects addressed by Ms. Tengeneza, as noted above, we agree with her that unless the prosecution filled the gaps thereby causing injustice on the appellant, a retrial is not desirable in the circumstances of the case. The reasons we are holding so, are; one, the consent and certificate were defective and inconsequential both to the proceedings, as rightly argued and proposed by Ms. Tengeneza. Two, in the wake of the Written Laws (Miscellaneous Amendments) Act, 2003 the offence of unlawful entry into a National Park previously established under sections 21 (1) (a), (2) and 29 (1) of the NPA was removed. Therefore, it did not exist at the alleged material time as what was left in the Act was the penalty section only. Logically, therefore, the offence of unlawful possession of weapons could not have survived the impugned proceedings for lack proof that indeed, the alleged offence was committed within the boundaries of Serengeti National Park. We took the same stance in Dogo Marwa @ Sigana and Another v. R (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021; TANZLII). Three, with regard to the third and fourth counts, the procedure to destroy the trophy-exhibit was incurably flawed. We note that the appellant was neither summoned nor was he given opportunity to air out his views, if any, before the disposal of the exhibit was carried out, in terms of section 101 (1) (a) (i) and (2) of the WCA which also 8 rendered a retrial undesirable option. See- Dogo Marwa @ Sigana and Another (supra) and Buluka Leken Ole Ndidai and Another v. R (Criminal Appeal No. 459 of 2020) [2024] T7CA 116 (21 February 2024; TanzLII). In the circumstances, we decline to order a retrial. In the event, we allow the appeal on that single ground only. Consequently, we nullify the proceedings of the two courts below, quash the convictions and set aside the sentences imposed on the appellant. We also order the immediate release of the appellant from prison unless he is otherwise held lawfully. DATED at MUSOMA this 12th December, 2024 F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence of appellant in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.