MWANAHARUSI SALIMU MSHAHARA CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT TANGA ( CORAM: MWAMBEGELE. J.A.. MASHAKA. J.A. And ISMAIL, J J U CRIMINAL APPEAL NO. 403 OF 2022 MWANAHARUSI SALIMU MSHAHARA......................................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) (Mansoor, J.) dated 12th day of August, 2022 in DC Criminal Appeal No. 10 of 2022 JUDGMENT OF THE COURT 23rd April, & 6th May, 2024 MASHAKA, J.A.: This second appeal is against the decision of the High Court of Tanzania, Tanga registry in which the appellant, Mwanaharusi Salimu Mshahara, was arraigned by the Resident Magistrate's Court in RM Economic Case No. 16 of 2019, and charged with and convicted of two counts; first, leading organized crimes contrary to Paragraph 4 (1) (a) of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2002] (the EOCCA); and second, unlawful possession of government trophies contrary to section l 86 (1) (2) (c) (ii) and (3) of the Wildlife Conservation Act, No. 5 of 2009 read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. It was alleged that on 7th day of February 2018 at Mwakijembe area within Mkinga District in Tanga Region, the appellant together with another person who was not in court wilfully organized and supervised a criminal racket to wit, dealing in government trophies by possessing nine pieces of elephant tusks valued at TZS. 100,800,000.00 with intent to reap profit or other benefit. In the second count, on the same day, it was alleged that the appellant was found in possession of government trophy to wit; nine (9) elephant tusks valued at TZS. 100,800,000.00 the property of the Government of the United Republic of Tanzania. The appellant pleaded not guilty to both counts. To establish its case, the prosecution called five (5) witnesses and tendered six exhibits in evidence. The trial court convicted and sentenced the appellant to twenty years imprisonment for each count. Her first appeal was only successful on the first count in which the conviction was quashed and the sentence set aside. However, the first appellate court upheld the conviction and sentence in respect of the second count. Hence this final appeal. 2 From the evidence of five prosecution witnesses, the account by the prosecution is that Damas Paschal (PW1) a Natural Resources Officer attached to the Anti-Poaching Unit stationed at Mikocheni area was called by his head, Abraham Jullu of the Anti-Poaching Unit located at Mpingo House along Nyerere Road, Dar es Salaam. He informed him and David Marwa, an office colleague, that he had received information from an informant that there was a person selling government trophies in Tanga. He gave him the phone number of the informant for further communication. PW1 contacted the informant, and was satisfied that there was such a dealer doing the business of selling government trophies in Tanga. PW1 arranged a trip to Korogwe in the company of David Marwa where they would pose as businessmen intending to buy elephant tusks and ultimately arrest the culprits. On 7th February, 2018, PW1 and David Marwa travelled to Korogwe where he reported to the OC-CID, ASP. Samson Mwandambo, and informed him about the task. They arranged two teams; team one comprised of PW1 and David Marwa, while team two, under the team leader ASP. Mwandambo, included WP 5324 D/CPL Josephine (PW2), D. 9937 Sgt. Salum (PW3) and Evarist Mgonja (PW4). PW1 was directed by the informant who was in constant communication with him to travel to Mombo, then to Lugunza village where they met one woman (the appellant) who introduced herself as the seller and agreed to take them to where they could buy the elephant tusks. She and the team travelled to Mwakijembe area, Mkinga District. During the trip, the appellant was communicating with another person who was not known to them. Along the road, they found a man carrying a sulphate bag, he waved at them and they stopped. After introduction, the man known as Bernard Yohana Kimathi opened the white sulphate bag and showed them the elephant tusks. They placed them under arrest and inquired if they had any permit which they had none. They seized the elephant tusks and a certificate of seizure (exhibit P2) was filled by PW1 who signed it together with the appellant, Bernard Yohana Kimathi, David Marwa and PW2. On the same day, at around 19:00 hours, PW1, in the company of other wildlife officers and police officers, arrested the appellant and Bernard Kimathi for being in possession of government trophies; namely, nine (9) pieces of elephant tusks which were admitted in evidence as exhibit P6. PW1 took the appellant, Bernard Yohana Kimathi and exhibit P6 to Korogwe Police Station where he handed the tusks and the appellant to D. 9937 Sgt Salum (PW3) for custody. 4 After receiving exhibit P6, PW3 labelled and kept it in custody until 8th February 2018 when he handed it over to Emmanuel Michael Mkali (PW5) the latter of whom conducted the identification, valuation and found that they were elephant tusks obtained from three elephants which were killed. The tusks were valued at TZS. 100,800,000/=. PW5 prepared a trophy valuation certificate (exhibit P5). He handed back exhibit P6 to PW3 after the valuation. The appellant was interrogated at the police station where it is alleged that she confessed to be found in possession of exhibit P6. The appellant was eventually arraigned in court on two counts as stated earlier. After a full trial she was found guilty in both counts and sentenced as shown above. The appellant filed a memorandum of appeal, the details of which we may not be called upon to deliberate. During hearing of the appeal, the appellant appeared in person, unrepresented. While the respondent Republic enjoyed the services of Ms. Sylvia Mitanto, learned Senior State Attorney and Ms. Petrida Muta, learned State Attorney. After the appellant had opted first to hear the respondent's reply to his grounds of appeal, Ms. Muta, who addressed the Court, pointed out at the onset, some procedural irregularities in the prosecution case concerning the 5 jurisdiction of the Resident Magistrate's Court which tried the case. She believed that it vitiated the trial as to render it null and void. The learned State Attorney pointed out that the consent was given to prosecute the appellant who was charged for contravening the provisions of Paragraph 14 of the First Schedule to, and section 57 (1) and 60 (2) of the EOCCA. While the charge cited section 86 (1) (2) (c) (iii) and (3) of the same Act which was not consented to by the Director of Public Prosecutions (the DPP) to prosecute the appellant. In addition, there was no certificate of the DPP conferring jurisdiction that the appellant be tried by the Resident Magistrate's Court of Tanga Region. In other words, there was no consent of the DPP and no certificate conferring jurisdiction on the subordinate court to try the economic offence. She argued that under section 3 of the EOCCA, it is the High Court (Corruption and Economic Crimes Division) that has the jurisdiction to try economic cases, unless the DPP confers jurisdiction to a subordinate court under section 12 (3) of the Act by issuing a certificate. She contended that since there is no certificate by the DPP conferring jurisdiction on the Resident Magistrate's Court of Tanga in this case, the trial court had no jurisdiction to try it. She reinforced her position with the decision of the Court in Hashim Nassoro Almas v. Director of Public Prosecutions, 6 Criminal Appeal No. 312 of 2019 [2023] TZCA 17716 (4 October 2023) TANZLII. Ms. Muta further argued that because of the above-mentioned procedural shortcomings in the issuance of consent and certificate conferring jurisdiction on the trial court, such court was not clothed with the requisite jurisdiction to try the appellant with the economic offence. The learned State Attorney implored us under section 4 (2) of the Appellate Jurisdiction Act, (Cap. 141 R.E. 2019) (the AJA) to nullify the proceedings and the resultant orders. On the way forward, learned State Attorney was hesitant to pray for an order of retrial. Instead, she submitted that there is no sufficient evidence to prove the case against the appellant beyond reasonable doubt and cited two instances of inadequacy in the prosecution case, that the chain of custody was not solid and the failure to arraign Bernard Yohana Kimathi, the accomplice who was found in possession of the elephant tusks. When the appellant was called upon to address the Court on the issue raised by the respondent Republic, she simply agreed with the legal 7 position taken by the learned State Attorney and prayed to the Court to set her free. In determining the appeal, we wish to address and determine the procedural irregularity raised by the learned State Attorney who substantially supported the appeal. Having perused the record of appeal and considered the submissions made by the parties, the issue for our determination is whether the trial court was properly clothed with jurisdiction to hear and determine the economic offence against the appellant in compliance with sections 26(1) and 12(3) of the EOCCA. It is on record, and as it is intimated above, that the charge laid against the appellant before the trial court comprised an economic offence. As gleaned from the record of appeal, the consent and certificate conferring jurisdiction on a subordinate court was sought and filed before the trial court on 24/01/2020. The consent of the DPP was issued and signed under section 26 (1) of the EOCCA stating: "CO N SEN T B Y THE D IR ECTO R O F P U B LIC PR O SEC U TIO N S 8 J, B ISW A LO EU T R O PIU S K A C H ELE M G AN G A, D irector o f Public Prosecutions in term s o f Section 26 (1) o f the Econom ic and Organized Crim e Control A ct [CAP 200 R.E. 2002] DO H ER E B Y CO N SEN T to the prosecution of M W A N A H A R U SI D /O S A LIM M SH AH ARA who is ch arg e d fo r co n tra v e n in g th e p ro v is io n s o f p a ra g ra p h 4 (1 ) (a) and 1 4 o f th e F irs t S ch e d u le to , and Section 57 (1) and 60 (2) o f the Econom ic and Organized Crim e Control A ct [C A P200 R. E 2002] th e p a rtic u la rs o f w h ich a re s ta te d in th e ch arg e s h e e t Signed a t Dar es Salaam this J d day o f October 2019. Signed Bisw aio Eutropius Kacheie Mganga D IR ECTO R O F P U B LIC PR O SEC U T IO N S" [Emphasis added] The certificate of the DPP which conferred jurisdiction as gleaned from the record of appeal states: "C E R T IFIC A T E O F THE D IR ECTO R O F P U B LIC PR O SEC U TIO N S CO N FER R IN G JU R IS D IC T IO N O N SU R BO D IN A TE CO U RT TO TR Y ECO N O M IC C R IM E O FFEN CES 9 I, B ISW A LO EU T R O PIU S K A C H ELE M G AN G A, D irector o f Public Prosecutions in term s o f Section 12 (3) and 12 (4) o f the Econom ic and Organized Crim e Control A ct [CAP 200 R.E. 2002] DO H ER E B Y O RD ER that M W A N A H A R U SI D /O S A LIM M SH AH ARA who is ch a rg e d w ith fo r co n tra v e n in g th e p ro v is io n s o f Paragraph 4 (1) (a) and 14 o f th e F irs t S ch e d u le to f and Section 57 (1) and 60 (2) o f the Econom ic and Organized Crim e Control A ct [CAP 200 R.E. 2002] BE TRIED in the Resident M agistrate's Court o f Tanga Registry a t Tanga. Signed a t Dar es Salaam this J d day o f October 2019 Signed Bisw aio Eutropius Kachele Mganga D IR ECTO R O F P U B LIC PR O SEC U T IO N S" [Em phasis added] It is undisputed that the appellant was charged with unlawful possession of government trophy contrary to section 86(1), (2) (c) (ii) and (3) of the WCA read together with paragraph 14 of the First Schedule to, and section 57 (1) and 60 (2) of the EOCCA. This, therefore, is an economic offence and consent of the DPP to prosecute the appellant and certificate conferring jurisdiction to the subordinate court is mandatory. 10 Admittedly, section 3(3) of the EOCCA confers jurisdiction upon the Corruption and Economic Crimes Division of the High Court to hear and determine cases involving economic offences which are specified under paragraph 14 of the First Schedule to the said Act. As an exception to the rule, courts subordinate to the High Court have jurisdiction to try economic offences where the DPP transfers, by a certificate, any such offence to be tried by the court in terms of section 12(3) of the EOCCA which stipulates that: - "The D irector o f Public Prosecutions or any State Attorney duly authorized by him, m ay in each case in which he deems it necessary or appropriate in the p ublic interest, by certificate under h is hand, order that any case involving an offence triable by the Court under this A ct be tried by such court subordinate to the High Court as he m ay specify in the certificate It is worthy to note that without the consent of the DPP, no trial of an economic offence can legally commence before a subordinate court without it being clothed with jurisdiction. On the other hand, section 26(1) of the EOCCA provides that: - li "Subject to the provisions o f this section, no tria l in respect o f an econom ic offence m ay be commenced under this A ct save with the consent o f the D irector o f Public Prosecutions". The charge against the appellant being an economic offence as prescribed under section 57 of the EOCCA, was to be determined by the High Court, Corruption and Economic Crimes Division. However, the DPP conferred jurisdiction on the subordinate court under section 12(3) of the EOCCA to try the economic offence and gave his consent to prosecute the appellant as charged. In this regard, as conceded by the learned State Attorney, the consent did not cite the proper provision contravened as stated in the charge. The record shows that the consent and certificate issued by the DPP are in relation to contravention of the provisions of Paragraph 14 of the First Schedule to the EOCCA. Paragraph 14 which states: "J4 . A person com m its an offence under this paragraph who com m its an offence under section 17,19, 24, 26, 28, 47, 53,103,105, Part X or Part X I o f the W ildlife Conservation A ct or section 16 o f the N ational Parks A ct." This paragraph states several acts which are economic offences under the WCA and the National Parks Act. It was expected of the DPP 12 to be specific in stating the specific provision of the law which the appellant had contravened and grant appropriate consent and certificate. In the circumstances, the appellant was charged with an offence, tried and convicted by the subordinate court without the consent of the DPP to prosecute her and without the jurisdiction to try the economic case. The charge was not sanctioned by the dictates of sections 12(3) and 26(1) of the EOCCA. It is the position of this Court and has been well settled in our jurisprudence that, if an accused person is arraigned before subordinate court for an economic offence under the EOCCA and there is no consent to try the accused and, no certificate which confers jurisdiction on that subordinate court to try the said offence, such a subordinate court lacks jurisdiction to try the economic offence and the entire proceedings become a nullity. To mention a few, see: Rhobi Marwa Mgare and Two Others v. The Republic, Criminal Appeal No. 192 of 2005, Elias Vitus Ndimbo and Another v. The Republic, Criminal Appeal No. 272 of 2007, Nico s/o Mhando and Two Others v. The Republic, Criminal Appeal No. 332 of 2008 (all unreported), Aloyce Joseph v. Republic, (Criminal Appeal No. 35 of 2020) [2022] TZCA 771 (05 December 2022) TanzLII, Samson Amon Kauga v. Republic, (Criminal Appeal No. 446 13 of 2019) [2023] TZCA 121 (17th March 2023) TanzLII, Kulwa Kashiki v. Republic (Criminal Appeal No. 208 of 2021) [2023] TZCA 17928 (12 December 2023) TanzLII and Salumu s/o Andrew Kamande v. Republic (Criminal Appeal No. 513 of 2020) [2023] TZCA 133 (22 March 2023) TanzLII. Equally, in the instant case, there is no gainsaying that the consent and certificate of the DPP conferring jurisdiction on the Resident Magistrate's Court to try the economic offence under section 86 (1), (2) (c) (ii) and (3) of the WCA read together with paragraph 14 of the First Schedule to, and section 57 (1) and 60 (2) of the EOCCA was lacking as mandatorily required under section 12 (3) of the same Act. Therefore, the trial court lacked jurisdiction to adjudicate the case. The irregularity vitiated the entire trial hence rendering the trial proceedings a nullity. Even the proceedings and judgment in the appeal before the High Court stemmed from nullity proceedings suffer the same ailment. This being the position, and as a way forward, we hereby invoke our revisional powers under section 4 (2) of the ADA and nullify the proceedings before the Resident Magistrate's Court of Tanga, the resultant conviction and sentence together with the proceedings before the High Court, Tanga registry which upheld those illegal proceedings. Further to 14 that, we quash the appellant's conviction and set aside the sentence imposed on her. The next question is whether we should, as implored by the learned State Attorney, order a retrial or not. Looking at the circumstances of this case, we are of the view that a retrial order is likely to prejudice and persecute the appellant. It is not what the justice of the case demands. In Fatehali Manji v. Republic [1966] E.A. 343 at page 344, it held that: "...In general a re tria l w ill be ordered only when the original tria l was ille g a l or defective; it w ill not be ordered where the conviction is se t aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to f ill up gaps in its evidence a t the first trial; even where a conviction is vitiated by a m istake o f the tria l court fo r which the prosecution is not to blam e, it does not necessarily follow that a re tria l should be ordered; each case m ust depend on its particular facts and circum stances and an order fo r re tria l should only be made where the interests o f ju stice require it and should not be ordered where it is like ly to cause an injustice to the accused person . " 15 Guided by the above authority, we do not find it appropriate to order a retrial. In the event, we order the immediate release of the appellant from prison unless she is lawfully held. DATED at TANGA this 4th day of May, 2024. J. C. M. MWAMBEGELE JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 6th day of May, 2024 in the presence i of the Appellant in person and Mr. Paul Kusekwa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.