NYABOSE KICHAMA JDGMNT

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI. J.A.. MAIGE. J.A. And RUMANYIKA. J.A.) CRIMINAL APPEAL NO. I l l OF 2021 NYABOSE KICHAMA NYAKIROTO.......................................... APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Musoma with Extended Jurisdiction at Musoma) ( Movo, SRM - EXT. JUR.^ Dated the 31st day of December, 2020 in Criminal Appeal No. 20 of 2020 JUDGMENT OF THE COURT 3rd & 11th December, 2024 WAMBALI, J.A.: In Economic Case No. 17 of 2019, Nyabose Kichama Nyakiroto, the appellant, was charged and prosecuted at the District Court of Serengeti at Mugumu with three counts. The first count related to unlawful entry in the National Park contrary to sections 21(1) (a) and 29 (1) of the National Parks Act, Cap 282 (the NPA). The particulars in respect of the first count alleged that, on 18th February, 2019 the appellant entered into Barageti area within Serengeti National Park in Serengeti District in Mara Region without obtaining the permission of the Director. The second count involved unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the NPA. It was plainly alleged in the particulars in support of the count that, on the same date and place, the appellant was found in possession of weapons; to wit, one knife and three animal trapping wires without a permit. It was further disclosed that the appellant failed to satisfy the authorized officer that the said weapons were intended to be used for the purpose other than hunting, killing, wounding or capturing wild animals. The third count was preferred on allegation of unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, Cap 283 (the WCA), read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organization Crime Control Act, Cap. 200 (the EOCCA). The particulars alleged that on the same date and place, the appellant was found in unlawful possession of Government trophy, to wit, two pieces of dry meat of Impala and one carcass of Impala worth USD 780 which was equivalent to TZS. 1,716,000.00; the property of the United Republic of Tanzania. The appellant contested the allegations levelled against him by the prosecution in all the counts as he pleaded not guilty. At the trial, the prosecution case was supported by four witnesses; namely, Ezekiel Kulwa (PW1), Nurdin Bawazir (PW2), F. 6443 DC Pius (PW3) and Wilbroad Vincent (PW4) together with four exhibits; a Certificate of Seizure (exhibit PEI), one knife and one spear (exhibit PE2), Trophy Valuation Certificate (exhibit PE4) and Inventory Form (exhibit PE3). The substance of the prosecution evidence as gathered from the record of appeal was that, on 18th February, 2019, while on patrol within Serengeti National Park at 02:00 PM, PW1 and PW2 together with other Park Rangers namely; Mustapha Hamis, Mtenganyi Wambura and Musa Maduka, arrested the appellant at Barageti area carrying a luggage. When they searched the appellant, he was found in possession of a knife, three animal trapping wires (exhibit PE2 collectively), two pieces of dry meat of Impala and one carcass of Impala. The Certificate of Seizure (exhibit PEI) was filed and signed by the appellant and other persons who were present at the scene of the crime. Thereafter, the appellant was taken to Mugumu Police Station. PW4 valued the trophies and filed the Valuation Certificate (exhibit PE4). According to PW3, on 19th February, 2019 he secured a disposal order before the Resident Magistrate at the District Court of Serengeti. The Inventory Form to that effect was admitted as exhibit PE3. Consequently, the appellant was arraigned and prosecuted at the District Court of Serengeti at Mugumu as alluded to above. The prosecution maintained that, the witnesses and the admitted exhibits demonstrated without doubt that the appellant was guilty of the offences he was charged with at the trial court. The defence of the appellant was that on 18th February, 2019 at 14:00 hours, he went to graze animals at the area where he met Park Rangers who arrested him and was sent to Mugumu Police Station and later to the trial court. He emphasized that, he did not know the boundaries between the National Park and the village. During cross - examination, he stated that it was his first time to graze in that area. At the height of the trial, the District Court of Serengeti believed the evidence of the prosecution and found that the appellant's defence had not cast doubt to the case against him. It thus found the appellant guilty, convicted and sentenced him to serve sixth months, one year and twenty years imprisonment in respect of the first, second and third counts, respectively to run concurrently. The appellant's appeal to the High Court was transferred to the Court of Resident Magistrate of Musoma and was assigned to Moyo SRM, Ext. Jur., who dismissed it for want of merit, hence this second appeal. The memorandum of appeal contains three grounds of appeal. However, at the hearing, it was apparent that the determination of the appeal revolved around a point of law on the jurisdiction of the trial court. In this regard, we do not deem it appropriate to make reference to the respective grounds of appeal herein. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent Republic was represented by Ms. Shose Naiman and Mr. Charles Kagirwa, learned Principal State Attorney and Senior State Attorney respectively. At the outset, Ms. Naiman urged the Court to determine the appeal based on the propriety of the proceedings of the trial court in view of the defects in the consent and certificate conferring it the jurisdiction to try both economic and non­ economic offences. Submitting in support of the respective point of law, Ms. Naiman argued that, it is in the record of appeal that the Senior State Attorney In charge of Mara Region issued consent to prosecute the appellant and a certificate conferring jurisdiction to the District Court of Serengeti to try both economic and non-economic offences under the provisions of sections 26 (2) and 12 (4) of the EOCCA, respectively. However, she stated, the respective documents are notably defective for omitting to indicate the provisions of section 86 (1) and (2) (c) (iii) of the WCA under which the third count involving unlawful possession of Government trophy was preferred in the charge. In the circumstances, she submitted that the defects in the consent and certificate rendered the same invalid, citing the decisions of the Court in James Siluli @ Mwita v. The Republic (Criminal Appeal No. 24 of 2021) [2024] TZCA 1006 (29 October 2024, TANZLII) and Silasila Chacha and 2 Others v. The Republic (Criminal Appeal Nos. 44, 45 and 46 of 2021 [2024] TZCA 1027 (4 November 2024, TANZLII). The learned Principal State Attorney argued further that, in essence, the defect affected the proceedings of the trial court rendering it to lack jurisdiction to try the case against the appellant. She added that, equally, the proceedings of the Court of Resident Magistrate of Musoma with extended jurisdiction on appeal, whose decision is the subject of this appeal, were affected by the defects as they emanated from nullity proceedings of the trial court. In this regard, Ms. Naiman urged the Court, in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), to nullify the proceedings of both courts below, quash the convictions and set aside the sentences imposed on the appellant. With regard to the fate of the case against the appellant, Ms. Naiman submitted that ordinally, the prosecution would have urged the Court to order a retrial. However, she stated that, considering the circumstances of the case, a retrial will occasion injustice on the part of the appellant. The learned Principal State Attorney outlined the following reasons for not supporting a retrial order: one, under the current set up of the law, the provisions of section 21 (1) (a) of the NPA under which the first count was preferred does not create an offence, but a penalty. Therefore, she argued that a retrial under the same section will be a futile exercise. Two, according to the evidence on the record, there is no proof that the appellant was found in possession of the alleged weapons within the boundaries of the Serengeti National Park. That, if a retrial is ordered, the prosecution will seek to fill the gaps in its evidence to secure conviction on the second count. Three, the order of the District Court of Serengeti for disposal of the Government trophy (exhibit PE3), the subject of the third count, was improperly procured by the prosecution. Ms. Naiman explained that there is no evidence that the appellant participated and was given right to be heard before the order was issued by the Resident Magistrate, though he is purportedly indicated to have signed at the back of the exhibit by a thumb print. Besides, she added, exhibit P3 indicates that the officer who appeared before the Resident Magistrate is Abdu Athuman, a Park Ranger of Fort Ikoma and not F. 6443 DC Pius (PW3), a police officer. She submitted that according to the record of appeal, it was PW3 who testified that he prepared the Inventory Form and sent the seized trophy together with the appellant to the Resident Magistrate at the District Court of Serengeti where a disposal order was issued on 19th February, 2019. In her view, the doubts involving the procurement and involvement of the appellant and other relevant parties before the order was issued has to be resolved in favour of the appellant. She added that the inadmissibility of that exhibit dents the prosecution case in respect of the third count. To support her position, she referred the Court to the decision in Buluka Leken Ole Ndidai and Another v. The Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024, TANZLII). In the end, Ms. Naiman prayed that, the proceedings of both courts below be nullified, the convictions quashed and sentences set aside, and ultimately the appellant be set free. Having heard the submissions of the learned Principal State Attorney, the appellant joined hands with her and urged the Court to order that he should be released from custody. It is the requirement of the law that for a subordinate court to try economic offences which are triable by the High Court as provided under section 3 (3) of the EOCCA, the Director of Public Prosecutions (the DPP) or the duly authorised officer must issue a consent and certificate transferring jurisdiction to the respective court, in terms of section 26 (1) and (2) and section 12 (3) of the EOCCA, respectively. Indeed, the DPP or his duly authorized officer may issue a certificate conferring jurisdiction to the subordinate court to try both economic and non-economic offences under section 12 (4) of the same Act. According to the record of appeal, the Senior State Attorney In charge of Mara Region issued a consent and certificate under the relevant provisions stated above authorising the District Court of Serengeti to try both economic and non- economic offences. However, as correctly submitted by Ms. Naiman, the respective consent and certificate are defective for failure to indicate the provisions of section 86 (1) and (2) (c) (iii) of the WCA under which the third count was premised. The defect, it is stressed, rendered the consent and certificate invalid and thus the same could not be the basis of authorising the trial against the appellant and conferring jurisdiction to the District Court of Serengeti to try the case. In Omar Bakari @ Daudi v. The Republic, Criminal Appeal No. 52 of 2022 (unreported), the Court made reference to its previous decision in Ramadhani Omari Mtiula v. The Republic Criminal Appeal No. 62 of 2019 (unreported), where it was stated that: "Thus, without the DPP's consent and certificate, conferring jurisdiction, the District Court o f Serengeti embarked on a nullity to try Criminal Case No. 8 o f 1995. On that account, since the first appeal stemmed from null proceedings, this adversely impacted on the appeal before the High Court" It was thus important for the consent and certificate issued by the Senior State Attorney In charge of Mara Region to make reference to all the provisions of the NPA, the WCA and the EOCCA under which the appellant was charged as reflected in the charge sheet. In the circumstances, as the District Court of Serengeti lacked jurisdiction to try the case against the appellant, its proceedings and those of the Court of Resident Magistrate of Musoma with extended jurisdiction on appeal are a nullity. The next issue for consideration is the fate of the case against the appellant upon declaring the proceedings of the trial and first appellate courts a nullity. We entirely agree with the learned Principal State Attorney that an order for retrial depends on the circumstances of each case. In the case at hand, we have no hesitation to state that, considering the current set up of the law in relation to section 21 (1) (a) of the NPA after the amendment by the Written Laws (Miscellaneous Amendments) Act, 2003 (Act No. 11 of 2003), and the insufficiency of the evidence to sustain convictions, a retrial on the first and second counts, respectively, will occasion a miscarriage of justice on the appellant. We are settled that according to the factual setting on the record, the prosecution did not establish that the appellant was found in possession of the said weapons within the boundaries of the Serengeti National Park. Moreover, in respect of the third count, we are satisfied that, the noted uncertainty and doubts concerning the presence and involvement of the appellant at the District Court of Serengeti when a disposal order of the Government trophy was issued by the Resident Magistrate is contrary to the requirement of the law. In Mohamed Juma Mpakama v. The Republic [2019] T.L.R. 514; (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27th February 2019, TANZLII), and also in Buluka Leken Ole Ndidai and Another v. The Republic (supra), among several decisions of the Court, we stressed the requirement that disposal of the perishable exhibits under section 101 (1) (a) (i) and (2) of the WCA must be conducted in the presence of the suspect from whom the alleged trophy was seized and that he should be given opportunity to be heard before the disposal order is made by the Magistrate. In this case, as it is apparent that the said requirement was not complied with, a retrial on the same count will be in vain as exhibit PE3 will not be legally admitted in evidence hence, the third count will essentially crumble. To this end, in Mohamed Juma Mpakama v. The Republic (supra), the Court stated in an akin situation that: 'While the police investigator ... was fully entitled to seek the disposal order from the Primary Court Magistrate, the resulting inventory form (exhibit P3) cannot be proved against the appellant because he was not given the opportunity to be heard by the Primary Court Magistrate. In addition, no photographs o f the perishable Government trophies were taken as directed by the PGO". In the case under consideration, the situation is worse as PW3 who purported to have been present before the Magistrate at the District Court of Serengeti is not vividly noted in exhibit PE3. On the contrary, it is the Park Ranger, who however, did not testify at the trial. In the circumstances, a retrial will not be in the interest of justice as readily conceded by the learned Principal State Attorney. It is instructive to note that, in Fatehali Manji v. The Republic [1966] E.A. 343 at page 344, the defunct East Africa Court of Appeal, stated, among others, that: "... each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interest of 13 justice require it and should not be ordered where it is likely to cause an injustice to the accused person". Considering the circumstances of the case at hand, we accordingly endorse the cited holding, and ultimately refrain from ordering a retrial. Consequently, pursuant to section 4 (2) of the AJA, we nullify the proceedings of both the trial and first appellate courts, quash the convictions and set aside sentences imposed on the appellant. In the end, we order that the appellant be set free unless he is held for some other lawful cause. DATED at MUSOMA this 10thday of 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 11th 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. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL