paschal nada 4 others vs the republic 2024 tzhc 347 19 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 75 OF 2023 (Originating from RM Economic Case No 17/2021 before the court o f resident Magistrate of Manyara at Babati.) PASCHAL NADA................................................ 1st APPELLANT JOHN PETRO MUSSA .......................................2nd APPELLANT EMMANUEL BURA DUQAMGW.......................... 3rd APPELLANT IDD MUSSA @NGODA ...................................... 4THAPPELLANT JONAS JOHARI................................................. 5th APPELLANT

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

JUDGMENT 22ndNovember, 2023 & 19th February, 2024 Kahyoza, J.: Paschal Nada, John Petro Mussa, Emmanuel Bura Duqamgw, Idd Mussa @ Ngoda and Jonas Johari (the appellants) and Mlaalas s/o Amma @ Danniel s/o Amma and Nicodemus Dominic Safiri who are not subject to this appeal were charged with an offence of unlawful possession of government trophy before the court of the resident magistrate of Manyara at Babati, the appellants were convicted and sentenced to serve 20 years' imprisonment. Dissatisfied, they i appealed to the High Court of Tanzania against both conviction and sentence. Before, the state attorney replied to the brief submission from the appellant, the Court, I invited him to have a look at the certificate of transfer and consent as they appeared defective and address the Court. Mr Kapera, the learned state attorney examined and submitted that the Consent was defective as the officer subordinate to the DPP issued the consent under section 26(1) of the Economic and Organised Crime Control Act, [Cap.200 R.E. 2022] (the EOCCA). The sub-section empowers the DPP to issue consent and not for an officer subordinate to the DPP. The officer subordinate to the DPP can only issue a consent under sub-section (2) of section 26 of the EOCCA. He concluded that the consent was invalid. He also submitted after going through the certificate conferring jurisdiction to the court of the

resident magistrate, he noted that it was defective as it did not specify the section creating the offence. For that reason, the certificate was also defective. The district court had no jurisdiction to try the economic offence for want a valid consent and a certificate confering jurisdiction. He submitted that the proceedings are a nullity for want of a valid consent and certificate conferring jurisdiction. To support his contention he cited Peter Kongori Maliwa and 4 others V. R., Criminal Appeal No 253/2020 CAT, where the Court of Appeal held that where there is no valid consent or the certificate, the proceedings are a nullity. He submitted that the Court of Appeal in Peter Kongori Maliwa and 4 others v. Rv (supra) held that once the proceedings are nullified, the Court must consider to find whether there is evidence; If there is evidence the court may order a retrial and if there is no evidence, the appellants may be released. The state attorney submitted further that, there is enough evidence for the appellants to stand a retrial. The appellants were apprehended with exhibits as per Pw2 and Pw3. The witnesses pretended to be buyers and arrested the appellants. Pw4 identified the exhibit as elephant tusks and tendered the valuation report as exhibit P.5. He added that there is evidence to establish the chain of custody from the time of arrest to the time the exhibit was

tendered in court. He conceeded that there was no independent witness but he was quickly to submit that the circumstances leading to appellants' arrest did not warrant to have the independent witness. He prayed to cite the case of Tongola Wambura v. R., Criminal Appeal No 212/2026, CAT. 3 Finally, he prayed this Court to order retrial after nullifying the proceedings and the judgment. The appellants had an opportunity to reply to the state attorney's submission. All the appellants opposed the state attorney's prayer for trial de-novo. The first appellant stated that they have first appeared in court 2021. It is a long time. The second appellant added that the prosecution failed to call an independent witness so he prayed for their release. The fourth and fifth appellants submitted that the prosecution withdraw the case after witness had testified and commenced afresh. They beseeched the court not to order their retrial. A brief background is that, the appellants were found in unlawful possession of government trophy contrary to section 86 (1) and (2) of the Wildlife Conservation Act, [Cap. 283, now R.E. 2022] (the WLCA) read together with paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E 2019, now 2022] (the EOCCA). The prosecution alleged that the appellants were found on 14. 2. 2021 at two

different places within Mbulu district found in unlawful possession of government trophy, to wit, four elephant tusks. Are the proceedings a nullity? The law is settled that no court has jurisdiction to try an economic offence without consent from the DPP as provided by section 26 of the EOCCA. Section 26(1) of the EOCCA provides that- 26 -(1) Subject to the provisions o f this section, no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions. (Emphasis provided). As submitted by the respondent's state attorney, the consent which purported to give jurisdiction to the trial court to try an economic offence was defective. The Regional Prosecution Officer issued the consent under sub-section (1) instead of sub-section (2) both, of section 26 of the EOCCA. Officers subordinate to the DPP can issue consent to subordinates to prosecute economic offences under sub-section (2) of section 26 of the EOCCA. I am total agreement with state attorney that, a defective consent cannot confer jurisdiction to try an economic offence. Consequently, since consent was defective, the proceedings, conviction and sentence where a nullity as the trial court had no jurisdiction to try an economic offence for want of the valid consent. I, therefore nullify and quash the proceedings, set aside the conviction and sentence.

The next question is whether this Court should order a trial de novo ox released the appellants forthwith after quashing the proceedings and setting aside the conviction and sentence. Should this Court order a retrial? Mr. Kapera, the respondent's state attorney prayed the court to order a retrial. He contended that the prosecution's evidence was sufficient to order a retrial. The appellants beseeched the Court not to order a trial because the prosecution's evidence is insufficient and their first trial delayed to be completed. It is settled that retrial may be ordered when the original trial is nullified on account of illegality, only when is enough evidence. A re-trial will not be ordered when to do will give the prosecution a chance to fill the gaps in its evidence. The defunct Court of Appeal of East Africa held in Fatehali Manji v. R, [1966] EA 343 that- '7/7 general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and

circumstances and an order for retrial 6 should only be made where the interests o fjustice require it and should not be ordered where it is likely to cause an injustice to the accused person". I had cursory review of the evidence on record and considered the submissions, to say the least, the prosecution's evidence is sufficient for this court to order the appellants to be tried afresh. The appellants were found in possession elephant tusks by Pw2 and Pw3 who posed as buyers. The tusks were tendered as exhibits. There are caution statements which were admitted as exhibits. On the face of it, the chain of custody was not broken. The appellants complained that the prosecution did not call an independent witness, I abstained from examining this complaints in detail as unlike other searches, section 106 of the Wildlife Conservation Act, [Cap.283 R.E. 2022] for circumstances under which a search may be valid without an independent witness. It is therefore not automatic that when there is no an independent witness a search is invalid in cases under the Wildlife Conservation Act. I will leave it to the court to decide the issue on merit after trial. In the end, I quash the proceedings, set aside the conviction and sentence and order a fresh trial. I further order that, if a retrial is not commenced within 45 days from the date of the delivery of this judgment the appellants shall be

deem discharged and will be set free. Should the appellants be convicted as a result of the fresh trial, the trial court will have to take into consideration the period the appellants have been in custody both as inmates and as prisoners. The record should be remitted immediately for trial before another magistrate. I order accordingly. Dated at Babati, this 19th day of February, 2024. J. R. Kahyoza Judge Court: Judgment delivered in the presence of the appellants and Ms. Rose Kayumbo, Atate Attorney for the Respondent. Fatina Haymale (RMA) present. J. R. Kahyoza Judge 19/02/2024 Court: Right to appeal explained. J. R. Kahyoza. Judge. 19/02/2024 8