CRM APP

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LILA. J.A.. KENTE. J.A.. And MGONYA. J.A.^1 CRIMINAL APPEAL NO. 464, 465 & 466 OF 2020 NDURU JOHN NG'W AYA.......................................................... 1st APPELLANT MACHEGE MUGABO KAMBARAGE...........................................2nd APPELLANT JUMA KITONGA NYING'ATI....................................................3 rd APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) (Galeba, J.l dated the 14th day of August, 2020 in Consolidated Criminal Appeal No. 73. 74 and 76 of 2020 JUDGMENT OF THE COURT 2nd & 10th July, 2024 MGONYA. 3.A.: Nduru s/o John @ Ng'waya, Machege s/o Mugabo @ Kambarage, Juma s/o Kitonga @ Nying'ati together with Jumanne s/o Chuchu @ Machambagara, not a party to this appeal, were arraigned before the District Court of Serengeti at Mugumu for four counts. Three of the counts (2nd, 3rd and 4th) were preferred under the Economic and Organized Crimes Control Act, Cap. 200 [R. E. 2002] (hereinafter to be referred as i EOCCA). In the 1st count, they were charged with the offence of unlawful entry into the game reserve contrary to section 15 (1) and (2) of the Wildlife Conservation Act No. 5 of 2009 ( the WCA); the 2nd count was unlawful possession of weapons in the game reserve contrary to section 17 (1) and (2) of the WCA read together with paragraph 14 of the First Schedule to the EOCCA as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016; while the 3rd and 4th counts charged them with unlawful possession of Government trophies, contrary to section 86 (1) and (2) (b) and 86 (1) and (2) (c) (ii) of the WCA respectively read together with paragraph 14 of the First Schedule to EOCCA as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. Particulars of the counts showed that the offences were committed on 30th August 2018, at Mto Rubana area in Ikorongo Game Reserve within Serengeti District in Mara Region. The appellants pleaded not guilty to the charge, hence the trial ensued. A total of four witnesses were summoned by the prosecution and four exhibits were tendered. On the adverse party, the appellants defended themselves on oath. The material facts leading to the appellants' arraignment and the instant appeal goes as follows. On 30th August, 2018 at around 02:15 hrs, PW1 and PW2, the park rangers, while in their normal patrol around Mto Rubana into Ikorongo Game Reserve, they arrested the appellants who were in possession of Government trophies to wit; thirty-four fresh meat of Zebra and a tooth of warthog. Moreover, the appellants had forty-two (42) animal trapping wires and one knife. When they were interrogated whether they had permit to enter into the game reserve and possess the above items, they replied to have none. Thus, the seizure certificate was prepared and signed by the appellants, who were apprehended and brought to Mugumu police station and a criminal investigation file opened against them. The next day on 31st August, 2018, (PW3) Wilbroad Vicent, a wildlife warden, while at Mugumu Police Station identified the said trophies and valued them atTshs. 8,829,000/= and prepared a Certificate of Trophy Valuation (exhibit PE. 3). After valuation, (PW4) DC Nashon prepared the Inventory Form (exhibit PE. 4) which was taken to court along with the seized trophies for effecting a destruction order from the Magistrate. Thereafter, the appellants were taken to court and charged with the offences as aforesaid. On the defence side, the appellants categorically denied to commit the offences charged. All the appellants told the trial court that, on the material date, they spent a day at Singisi Village where they were making bricks up to 18:00 hours. On their way back home, they opted to enter at the pombe shop for a local drink up to 23:00 hours. When they were going home, they met the game rangers who arrested them. After a full trial, all accused persons were found guilty with all four counts, hence, convicted and sentenced to serve 2 years' imprisonment for each of the 1st and 2nd counts and 20 years' imprisonment for the 3rd and 4th counts. All the sentences were ordered to run concurrently. The appellants were aggrieved by both conviction and sentences, hence they appealed to the High Court of Tanzania at Musoma vide Consolidated Criminal Appeal Nos. 73, 74 and 76 of 2020. Their appeal was partly successful, as they were acquitted on the 1st and 2nd counts while the conviction and sentences for the 3rd and 4th counts were sustained. Still discontented, the appellants filed this second and final appeal, each having a separate Memorandum of Appeal comprising of four grounds of complaints which appear to be alike. Basically, the appellants faulted the first appellate court to uphold the conviction while the charge was not proved beyond reasonable doubt. At the hearing of the appeal, the appellants appeared in persons unrepresented whereas, Mr. Erasto Anosisye, learned Senior State Attorney assisted by Messrs. Isihaka Ibrahim Mohamed and Felix Yona Mshama, learned State Attorneys, appeared for the respondent, Republic. When invited to amplify the grounds of appeal, the appellants preferred the learned State Attorney to begin while reserving their rights to rejoin. When given the floor, Mr. Isihaka, did not begin by responding to the appellants' grounds of appeal rather, he successfully sought leave of the Court to address on the legal shortcomings they noted from the trial court's proceedings. He commenced by submitting that, the trial court tried the 2nd, 3rd and 4th counts which are economic crimes without having the requisite jurisdiction. By referring the Court at page 5 and 6 of the record of appeal, he stated that a consent and certificate issued were defective for failure to include the provisions relating to the 3rd and 4th counts which are section 86 (1) and (2)(b) and 86 (1) and (2) (c) (ii) of the WCA. Hence, the subordinate court had no jurisdiction to try the appellants in respect of the above counts. To bolster his stance, he cited the case of Dilipkumar Magambai Patel v. Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25 July 2022) (TanzLII) And Peter Kongori Maliwa & Others v. Republic, (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023) (TanzLII). Due to the above stated legal shortcoming, the learned Senior State Attorney urged the Court to exercise its revisional powers provided under Section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 as amended, (the AJA) and nullify the proceedings of both lower courts and their decisions forthwith. On the way forward, Mr. Isihaka submitted that, normally he would have prayed for an order for a retrial, but he could not for the reasons that, there are many other legal shortcomings in the trial court's proceedings. To start with, he pointed out the anomaly in the evaluation of the trophies. By referring the Court to page 19 line 16 of the record of appeal, he argued that, evaluation of the Government trophies was very general as the witness (PW3) did not explain how he managed to identify the seized meat and differentiate it from other meats of domestic animals. To fortify his stance, the case of Shija Ngasa v. Republic, (Criminal Appeal No. 173 of 2022) [2024] TZCA 382 (23 May 2024) (TanzLII) was relied on. 6 Another anomaly pointed out by Mr. Isihaka is on the involvement of the appellants in the destruction of the trophies. That, nothing reveals that the appellants were involved and as they did not comment anything on the process. Consequently, he urged the Court to disregard PW4's evidence on that respect. To support his stance, he cited the case of Mohamed Juma @ Mpakama v. Republic, (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019) (TanzLII). From the anomalies pointed out above, Mr. Isihaka insisted that this case cannot be appropriate for retrial. Further, he submitted that the said anomalies support the appellants' complaint in the first ground of appeal that, the charge was not proved beyond reasonable doubt. In the event therefore, he prayed the Court to allow the appeal and order for the appellants to be set free. When we turned to hear the appellants, they all had nothing substantial to rejoin rather, they prayed their appeal be allowed and the Court to set them at liberty. Having duly considered the submissions made by the learned State Attorney and going through the record of this appeal, the main issue for determination by this Court is whether the trial court was vested with the requisite jurisdiction to try the economic offences before it. Generally, the law under section 3 (1) and (3) (a) and (b) of the EOCCA, confers jurisdiction to hear and determine cases involving corruption and economic offences to the Corruption and Economic Crimes Division of the High Court. Nonetheless, in order to expedite the process, the law empowers the Director of Public Prosecutions (the DPP) or State Attorney duly authorized to allow the subordinate courts to try economic cases. However, the subordinate courts' power must be preceded by a consent issued by the DPP or the State Attorney duly authorized under section 26 (1) or 26 (2) respectively of EOCCA, along with a certificate conferring jurisdiction on a subordinate court issued under section 12 (3) or (4) of the same Act. As alluded to above, the appellants herein, among other counts were charged with the offence of unlawful possession of Government trophies. The said offences fall within the economic offences triable by the High Court. After close scrutiny of the record of appeal, specifically at pages 5 and 6, we entertain no doubt that there was a consent and a certificate issued to the District Court of Serengeti to hear and determine this matter. The only doubt as pointed out by Mr. Isihaka is whether the court had jurisdiction to try the appellants on the 3rd and 4th counts while the provisions of the law relating to those counts which are Section 86 (1) and (2) (b) and 86(1) and (2) (c) (ii) of the WCA were not indicated in the consent and certificate issued. Notably, it is on record that the consent and certificate issued referred only paragraph 14 of the First Schedule to EOCCA as amended by the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016, without including a specific provision under which the appellants were charged with as shown in the charge sheet. Neither the consent nor certificate indicates that the appellants were to be prosecuted for contravention of section 86 (1) and (2) (b) and 86(1) and (2) (c) (ii) of the WCA. In the case of Maganyi Senteu Maganyi v. Republic (Criminal Appeal No. 254 of 2020) [202] TZCA 4016 (6 June 2024) (TanzLII), in which an akin situation occurred, this Court held that: "The other irregularity is that the same does not indicate that the learned State Attorney In-charge had consented to the prosecution o f the appellant and second accused person fo r the offence o f unlaw ful possession o f Governm ent trophies under section 86(1) and (2) (ii) o f WCA, it m eans therefore,, that the appellant and second accused 9 were charged under s. 86 (1) and (2) (ii) o f the WCA w ithout requisite consent That is fatal irregularity vitiated the proceedings." Likewise, in Dilipkumar Maganbai Pater v. Republic (supra) the Court stated that: "In view o f the irregularities in the consent and certificate o f the DPP with regard to the name and propriety o f the provisions o f law, the tria l court was not properly seized with jurisdiction to try the appellant as charged." Being guided by the above position, we also agree with the learned State Attorney that, the omission to indicate the provision relating to the offence of unlawful possession of trophies vitiates the proceedings as the trial court tried economic offences without jurisdiction. As a result, therefore, we have no any other option but to exercise the Court's powers of revision provided under section 4 (2) of the Appellate Jurisdiction Act. Henceforth, we hereby nullify the proceedings and judgments of the two courts below, quash the appellants' conviction and set aside the sentence imposed to them. On the way forward, as rightly argued by Mr. Isihaka, normally having nullified the lower courts' proceedings and decisions, the first 10 remedy would have been an order for retrial. However, from the legal shortcomings pointed out by the learned State Attorney, a nagging question is; whether an order for retrial will save justice or not. It is settled law that, an order for retrial will be ordered only when the original trial was illegal or defective. The same will not be ordered where conviction is set aside because of insufficiency of evidence or to allow the prosecution to fill up the gaps in its evidence. See - Fatehali Manji v. The Republic [1966] 1 EA 343. Having painstakingly gone through the record of this appeal, we agree with the learned State Attorney that, an order for retrial will not save justice to the appellants. The reasons for our stance are not far to fetch. To start with, a chain of custody of thirty-four fresh meat of zebra and one tooth of warthog was broken from the moment they were seized. PW1 and PW2 who arrested the appellants did not testify to whom they handed over the said exhibits when they took the appellants to Mugumu Police Station. There is no evidence on who stored the said trophies and whether the same were handed over to the exhibit keeper or not. Likewise, there was no any exhibit register that was brought to court to prove the movement and custody of the trophies prior to the execution of destruction order. ii Equally, PW3 informed the court that on 31st August, 2018 while he was at Mugumu Police Station, he identified the trophies which were brought there. However, the record is silent on who brought the trophies for identification and valuation. This raises doubt as to whether the items seized on 30th August, 2018 were the same items identified and valued by PW3. See our decision in Shija Ngasa v. Republic (supra), where this Court held that: "The prosecution evidence shows that after the said trophies were found in possession o f the appellant, PW1 took them to Nguruka Police Station but he did not m ention the name o f the exhibits keeper to whom he handed them over. Meanwhile, PW 4 who said to have received the exhibits on 1st May, 2019, did not m ention who had handed them to him. He did not either identify him self to be the exhibits keeper a t the said police station. Moreover, the exhibits register was not tendered in evidence despite a prom ise by PW1 to do so. We thus fin d that the movement o f the seized item s from one person to another was not accurately docum ented." See also our previous decisions in Issa Mustapha Gora & Another v. Republic, Criminal Appeal No. 330 of 2019 and Salum s/o Andrew 12 Kamande v. Republic, Criminal Appeal No. 513 of 2020 (both unreported). Our concern is further intensified by the failure to involve the appellants in the process leading to the order of the court to destroy the said trophies as the law requires. In Nyakwama s/o Ondare @ Okware v. Republic (Criminal Appeal No. 507 of 2019) [2021] TZCA 592 (21 October 2021), this Court stated that: "Even if exhibit PE4 could have been tendered by a witness, s till its authenticity was doubtful fo r two reasons. One, there is no evidence as subm itted by Mr. Byamungu that the appellant was involved in the process o f seeking the order o f destruction o f the game m eat before the M agistrate which is the requirem ent o f the law as we affirm ed in our decision in Mohamed Jum a @ Mpakama (supra)". Additionally, in Buluka Leken Ole Ndidai & another v. Republic, Criminal Appeal No. 459 of 2020 (unreported), this Court went far to state that, without a proof that the suspects were present before the Magistrate and once the inventory form did not contain any comment, remark or objection from the appellants, as regards the exhibit sought to be disposed of, the Court will conclude that the appellants were not heard and their comments or objections (if any), were not taken at the time the 13 disposal order was procured. Hence, the inventory will be ineffectual to prove any case against the appellants. See also Mosi Chacha @ Iranga v. Republic, Criminal Appeal No. 508 of 2019 (unreported). Flowing from the above authorities, we also find that nothing portrays that the appellants were involved in the process of procuring a destruction order. This casts some doubt on the prosecution's case. In addition to the above, we also agree with the learned State Attorney that, the identification of the alleged trophies is wanting. PW3's testimony is too general and simple. Nothing was stated by PW3 which reveals special marks to distinguish the features from the alleged trophies with any other meat of domestic animals. For a useful discussion we find it valuable to reproduce what was testified by PW3 as we do hereunder: 7 identified the said trophies which were brought there. I identified the said trophies as thirty-four fresh m eat o f zebra and one teeth ofw arthog, the case file d as MUG/IR/2928/2018. A fter being identified it, I made the valuation as per one zebra US D ollar 1200 tim es three zebra total value as 3600 US D ollars and p er one warthog p er 450 US dollar total o f which were 4050 US dollars per 2180 US dollar. I valued those into Tshs. total was 14 Tshs. 8,829,000/=. Thereafter, I prepared the Certificate, Trophy Valuation Certificate". The above is an excerpt of what was testified by PW3, a material witness who told the trial court that, the seized meat was from three zebra and a tooth was from a warthog. It is upon the above extract the appellants were sentenced to serve 20 years' imprisonment. On our part, we did not find that, what was testified by PW3 was a conclusive identification of the alleged trophies for the court to found a conviction. This being a criminal trial, the court was duty bound to ascertain that the prosecution case is built on a strong and reliable evidence and not a mere narration without any substance before entering a conviction. The court should focus on adherence to the basic and fundamental principles sacred and sacrosanct to the criminal justice system that; every person is presumed to be innocent and that the prosecution has a duty to prove the guilt of the accused beyond reasonable doubt. That said, we find the first appellate court erred to sustain a conviction on the 3rd and 4th counts basing on weak evidence adduced by the prosecution witnesses. Having amply demonstrated the evidential shortcomings pertaining to this matter, we allow the appellants' appeal in its entirety. We further 15 proceed to order the appellants to be released from prison forthwith unless they are otherwise lawfully held. DATED at MUSOMA this 09th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 10th day of July, 2024 in the presence of the 1st, 2nd and 3rd appellants who appeared in persons and Mr. Felix Yona Mshama, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. t o J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 16