Mussa Charles Mayombe Manyonyo vs R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DISTRICT REGISTRY OF DODOMA

AT DODOMA DC CRIMINAL APPEAL NO. 74 OF 2023 (Originating from conviction and sentence in Economic Case No. 6 of2022 of Manyoni District Court) MUSSA CHARLES MAYOMBE @ MANYONYO.................. APPELLANT

VERSUS THE REPUBLIC........................................................... RESPONDENT

RULING Date of the last Order: 25/6/2024 Date of the Ruling: 27/6/2024 KHALFAN, J. The appellant was arraigned before the district court of Manyoni charged with one count of unlawful possession of government trophy contrary to section 86(l)(2)(c) (iii)(3)(b) 11 l(l)(a) and 113 (2) of the Wildlife Conservation Act No. 5 of 2009 as amended by section 59(a) and (b) of 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(1) both of the Economic and Organised Crime Control Act [CAP 200 R.E 2019], (hereinafter referred to as the EOCCA). According to the charge laid against the appellant, it was alleged that on 3/1/2022, at Mpandepande village within Manyoni District in Singida region, the appellant was found in unlawful possession of government trophy namely two elephant tusks obtained from one elephant valued at USD 15,000 equivalent to TZS 34,636,000/= the property of the Government of the United Republic of Tanzania. The appellant pleaded not guilty, hence full trial ensued. In the attempt to prove their case beyond reasonable doubt, the prosecution called a total of seven witnesses and tendered five exhibits. The appellant was the sole witness for the defence. A brief background underlying the instant appeal is not difficult to comprehend. On 2/1/2022, PW6, a police officer, received a tip

from an informer that the appellant was dealing with government trophies. PW6 laid a trap and managed to arrest the appellant who was at the pombe shop. It is on record that the appellant was arrested in the night of 2/1/2022, and on the following day of 3/1/2022, having obtained search warrant (exhibit PE5), PW6 conducted search at the appellant's house. The search conducted in the appellant's house was witnessed by PW7. In the course of searching, the appellant directed PW6 into the room used by the appellant's children in which under the bed, two elephant tusks buried on the ground were unearthed. The certificate of seizure was prepared and signed by PW6, PW7 and the appellant. The record reveals further that the appellant was taken before the justice of peace (PW5) where he recorded extra judicial statement which was tendered as exhibit PE4. The seized elephant tusks were tendered as exhibit PE2 by PW1. PW3 conducted valuation of exhibit PE2 and tendered trophy valuation certificate as exhibit PE3. As pointed out before, the appellant was the sole witness for the defence. In his defence, the appellant denied to have committed the offence. He readily admitted that he was arrested on 2/1/2022 at the pombe shop and locked up in the police post until the following day where he was tortured. He claimed that, while at the police station, he was forced to sign some papers which he

could not understand. He denied to have led the police into his children's room where the elephant tusks were retrieved. After hearing the matter, the learned trial magistrate was satisfied that the prosecution managed to prove the case against the appellant hence he convicted and the sentenced him to serve twenty (20) years imprisonment. Aggrieved with the conviction and sentence meted out against him, the appellant preferred the instant appeal whereby, initially, he filed 3 a petition of appeal containing four grounds but later on, he added eleven grounds. I will not reproduce the grounds of appeal for the reason that would be apparent shortly. At the hearing of the appeal, the appellant appeared in person while the Republic was represented by Mr. Geofrey Mlagala, learned state attorney. The appeal was disposed of orally. In the course of composing the judgment after having gone through the record, I came across a pertinent issue, that the notice of intention to appeal in the instant appeal is not proper. Hence, this necessitated the opening up of the proceedings of this court and I invited the parties to address the court on the issue. The appellant, being a layperson, had nothing of substance to tell. On the other hand, Ms. Zubeda Lyaumi, the learned state attorney argued that the notice of appeal filed by the appellant was defective. Thus, since there is no proper notice

of intention to appeal, it is same as having no appeal before this court. She thus urged the court to strike out the appeal. Having gone through the arguments by the learned state attorney and the record before me, it is mandatory that an aggrieved party from the decision of the district court in the exercise of its original jurisdiction 4 in criminal matters, should file notice of intention to appeal within ten (10) days of the decision. This requirement is stipulated under section 361 (1) of the Criminal Procedure Act [CAP 20 R.E 2022], (hereinafter referred to as the CPA). The said provision reads as: 361.-(1) Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 359 shall not be entertained unless the appellant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; [Emphasis added]. Although the CPA makes it mandatory to file notice of intention to appeal, it does not prescribe the format on how the notice of intention to appeal to this court should appear. However, case laws have laid down the format in which notice of intention to appeal to this court should appear. In the cases of Farijala Shabani Hussein and Another vs. The Republic, Criminal Appeal No. 274 Of 2012,

Court of Appeal of Tanzania at Dar es Salaam and The Director of Public Prosecutions vs. Sendi Wambura and Three Others Criminal 5 Appeal No. 480 of 2016 Court of Appeal of Tanzania at Bukoba (both unreported); the Court of Appeal of Tanzania held that the notice of intention to appeal to this court must have the heading "High Court of Tanzania." In Farijala Shabani Hussein and Another vs. The Republic (supra) the Court of Appeal observed; "...a written notice of intention to appeal under section 361(i)(a) should, accordingly be titled: "In the High Court of Tanzania." In the Director of Public Prosecutions vs. Sendi Wambura and Three Others (supra), the Court of Appeal proceeded to nullify the proceedings and decisions of the High Court as the notice of intention to appeal was not titled as shown above. In the instant matter, the impugned notice is just a headed letter from the advocate who was acting for the appellant and it is addressed to the resident magistrate in charge of the Manyoni district court expressing the appellant's intention to appeal. Hence, it is without doubt that the said notice was not titled "High Court of Tanzania". It follows therefore that; the instant appeal has been supported by a defective 6 notice of intention to appeal which renders the instant appeal incompetent. In the upshot, basing on the above brief analysis, I find the appeal incompetent and I proceed to strike it out. It is so ordered. Dated at Dodoma this 27th day of June 2024. F. R. KHALFAN

JUDGE 7