Nyembi Chagu Shija vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL CASE No. 14645 OF 2024 (OriginatingfromtheEconomicCaseNo.18of2021ofMleleDistrictCourt) NYEMBI CHAGU @ SHIJA......................................... APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT JUDGMENT MWENEMPAZI, J.: The appellant herein had once appealed to this court in Criminal Appeal No. 82 of 2022 as he was aggrieved by the decision of the District Court of Mlele at Mlele (trial court) where he was arraigned before it for two counts. The first count was unlawful possession of government trophy contrary to Section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 05 of 2009, read together with paragraph 14 of the first schedule to and Sections 57 (1) and 60 (2) of Economic and Organized Crimes Control Act Cap 200 R. E. 2019, and the second count was unlawful possession of weapons in the National Park without any permit contrary to Section 24 (1) (b) and (2) of the National Park Act Cap 282 R. E. 2002. In that previous appeal, this found merit in it as the consent and 1 certificate conferring jurisdiction to the trial court were defective, and therefore an order for a retrial was made. As ordered, on the 29th day of November, 2023 a retrial commenced before a different trial Learned Magistrate. After the charges were read and explained to the appellant in the language best known to him, he denied all charges in which a full trial was inevitable. At the end of the trial, the appellant was found guilty of the two counts and in turn he was convicted and sentenced to serve the term of twenty years in prison for the first count and the term of one year in prison for the second count respectively and the sentences were ordered to run concurrently. Again, as expected of him, the appellant was aggrieved by the decision of the trial court, and therefore he filed this appeal to this court which consisted of five (5) grounds of appeal whereas they all suggest that he was convicted and sentenced over the charges which were not proved to the required standard of the law. On the hearing date, the appellant appeared for himself as he had no legal representation while the respondent, Republic was represented by Ms. Flavia Shiyo learned Senior State Attorney. When he was invited to argue for his grounds of appeal, as he did before, the appellant only prayed for this court to consider his grounds 2 of appeal and that it should not hesitate to release him because he has suffered. On the other side, Ms. Shiyo submitted that her side supports this appeal the basis of the irregularities which manifested on the matter concerned with jurisdiction of the trial court. She clarified that; this appeal emanates from Economic Case No. 18 of 2021 in the District Court of Mlele. That, the case is governed by the Economic and Organized Crime Control Act, [Cap 200 R.E 2019]. The court with jurisdiction is the High Court of Tanzania under section 3(1) of the Economic and Organized Crime Control Act, [Cap 200 R.E 2019]. Since the appellant was charged with the economic offence which falls under paragraph 31 of the 1st scheduled of the organized crime control Act, therefore section 3(2) of the Economic and Organized Crime Control Act should be applied. However, subordinate court may exercise such jurisdiction of trying the case only when the Director of Public Prosecution (DPP) exercised his power under section 12(3) of Economic and Organized Crime Control Act and that can be done by a document conferring jurisdiction to certain court. Ms. Shiyo proceeded that, in this appeal the documents, consent and certificate conferring jurisdiction were issued before commencement of 3 the trial. But they had irregularities because they missed the charging section as required under the law. Failure to include the charging section renders the documents defective and that makes the court incompetent to try the matter. She underlined that this position was discussed in the case of Peter Kagoni Maliwa and 4 Others vs Republic, Criminal Appeal No. 253 of 2020 Court of Appeal of Tanzania at Musoma at page 9 where it was held that; "Legal consequence of the omission to include the provision of the law creating the negative economic is to vitiate the trial proceedings as the trial court acted withoutjurisdiction” Nevertheless, Ms.Shiyo then submitted that, after the fore submission, it is clear there was evidence to prove the offence without leaving any doubt as was testified by PW1 who testified that on 07/10/2021 he was on patrol together with other officers in Katavi National Park within Mlele District in Katavi Region where they arrested the accused/appellant with two heads of bush pigs, three complete carcass of bush pigs, one machete, one bicycle and one spear; whereby after arrest they seized the items and the appellant signed the certificate of seizure. She added that, according to the evidence and other witnesses, it is clear there was enough evidence, and that she prays the court to 4 consider the case of Goodluck Kyando vs Republic [2006] TLR 363, where the Court of Appeal observed that: “Everywitnessisentitledtocredenceandmustbebelieved andhistestimonyacceptedunlesstherearegoodandcogent reasonsfornotbelievingawitness.” In winding up, the Senior State Attorney prayed for this court to believe the evidence by the witnesses and order for a retrial because the available evidence is enough to convict the accused/appellant. The appellant himself had nothing to rejoin but reiterated that he prays to be released. After reading the grounds of appeal and the submissions made by both sides, and also reading the records of the trial court before me, I am fortified that the only issue to be delt with in this appeal is whether this appeal has merit. Despite the fact that the respondent herein had supported this appeal, still this court is obligated to analyse the validity of the support of this appeal by the respondent. As I considered in the past decision of this court in Criminal Appeal No. 82 of 2022. The Court of Appeal of Tanzania in its various decision has emphasized the compliance with the provisions of section 12 (3), 12 5 (4) and 26 (1) of the of Economic and Organized Crimes Control Act, Cap 200 R. E. 2019, and held that the consent of the DPP must be given before the commencement of a trial involving an economic offence. I again insist to see, Rhobi Marwa Mgare & 2 Others vs The Republic, Criminal Appeal No. 192 of 2005, Elias Vitus Ndimbo & Another vs The Republic, Criminal Appeal No. 272 of 2007, Nico Mhando & 2 Others vs The Republic, Criminal Appeal No. 332 of 2008 (all unreported). I do agree with the learned Senior State Attorney, I did peruse the documents conferring jurisdiction to the trial court, and indeed they fall short of the requirements of the law. The two documents do not have the charging sections of the offence that the appellant is charged with. It was the holding of the Court of Appeal in the famous case of Dilip Kumar Maganbai Patel vs Republic, Criminal Appeal No. 270 of 2019. CAT ta Dar es Salaam at page 10-11 where it held that; "We have no doubt that in view of our deliberations above the consentandcertificateconferringjurisdictiononthetrialcourt weredefective,thoughtheyweremadeundertheappropriate provisions;section12(3)and26(1)oftheEOCCAbutreferred totheprovisionswhichtheappelantwasnotchargedwith. 6 The consent and certificate did not refer to section 86(1), (2)(c)(i)and(3)oftheWCAwhichwasclearlycitedinthe charge sheet. The certificate and consent were therefore incurablydefectiveandthetrialmagistratecouldnotcurethe anomalyintheJudgment..." The cited case above reflects the situation in the case at hand, and considering the holding of the Court, that, the consent and certificate were incurably defective there could not have been any valid proceedings before the trial court resulting in the conviction and sentence handed out to the appellant, and consequently, the proceedings thereto was thus a nullity. To that extent, I do join hands with the learned counsel and declare that her support of this appeal is valid as the documents conferring jurisdiction to the trial court were incurably defective, and there would have not been any valid proceedings, conviction and sentence emanating from a trial court which lacked jurisdiction to entertain this matter. As the matter of fact, I proceed to allow this appeal as it has merit, and as the result, I nullify the proceedings of the trial court, quash the judgement. The conviction and the sentence thereof are hereby set aside. 7 However, an order for a retrial would not be prudent considering the time the appellant has suffered in prison since his first appeal to this court, when he was firstly convicted and sentenced to serve a void sentence only to be again noticed at this appellate level, that he was retried by a court which had no jurisdiction. I therefore deny the learned Counsel’s prayer for an order of a trial de novo and I proceed to order an immediate release of the appellant from custody unless he is being held therein for another lawful cause. Dated at Sumbawanga this 28th day of October, 2024. T. M. MWENEMPAZI JUDGE 8