peter kongori maliwa others vs republic 2023 tzca 17350 14 june 2023

IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA (CORAM: MKUYE. J.A.. MWANDAMBO. J.A. And MAIGE. J.A.l CRIMINAL APPEAL NO 253 OF 2020 PETER KONGORI MALIWA.................................................... 1st APPELLANT CCM MAYONGA KHAMIS......... ............................................. 2nd APPELLANT YOHANA NYAMBEHO WASHA MANG'UTA.............................. 3rd APPELLANT WANGI SAMWEL WANGI...................... ................................ 4™ APPELLANT JUMATANO BONIPHASE NYERERE........................................ 5™ APPELLANT

VERSUS THE REPUBLIC....... ............................................................. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) (Galeba. J.) dated the 8th day of May, 2020 in Consolidated Criminal Appeal No. 170.171.182.183 and 184 of 2019

JUDGMENT OF THE COURT 9* & 14* June 2023 MAIGE J.A.: At the District Court of Serengeti at Mugumu (the trial court), the appellants were charged jointly and together with the following counts; first, unlawful entry in the National Parks contrary to sections 21(l)(a), (2) and 29(1) of the National Parks Act (the NPA); second, unlawful possession of weapons in the National Parks contrary to section 24(l)(b) and (2) of the i NPA; third, unlawful possession of Government trophies contrary to section 86(1) and (2) (b) of the Wildlife Conservation Act of 2009 ( the WLCA) read together with paragraph 14 of the First Schedule to the Economic and Organized Crime Control Act (the EOCCA), fourth, unlawful possession of Government trophies contrary to section 86(1) and (2) ( c ) (iii) of the WLCA, fifth, unlawful dealing with Government trophies contrary to section 84(1) of the WLCA read together with paragraph 14(b) of the First Schedule to the ECOCCA. In the last count, it is important to say, the appellants were jointly charged together with Joseph Kibaba @ Nyambacha and Tatu Sirocha Machota who are not parties in this appeal (the sixth and seventh accused). The sixth and seventh accused were also separately charged with the offence of failure to report possession of Government trophies. The particulars of the offence as per the charge sheet were that, on 29th day of July, 2018 (the

material day), the appellants were found in Serengeti National Parks without permission while in unlawful possession of the following items. First, weapons to wit; one knife, one panga and thirty eight animal trapping wires. Second, Government trophies to wit; fourteen pieces of dried meat of zebra worth TZS 2,640,000.00, the property of the United Republic of Tanzania. Third, Government trophies to wit; two hundred seventy six pieces of dried meat of Wildebeest worth TZS 2 55,770,000.00, the property of the United Republic of Tanzania. Further that, on the same day, the appellants and the sixth and seventh accused were found, at Robanda village within Serengeti District in Mara Region unlawfully dealing with the government trophies herein mentioned. Upon trial, the trial court found that the prosecution had proved beyond reasonable doubt that the appellants committed all the offences they were charged with. They were accordingly convicted and sentenced to serve one year imprisonment each in respect to the first count, one year imprisonment each in respect to the second count, twenty years imprisonment each in respect to the third count and twenty years imprisonment each in respect to the fourth count. As to the fifth count, the appellants and the sixth and seventh accused were sentenced to pay a fine of TZS 4, 000,000.00 each. Aggrieved, each of them preferred his own appeal

to the High Court of Tanzania at Musoma (the first appellate court), the appeals which were consolidated as above reflected. The first appellate court partly allowed the appeal to the extent of the complaints of the sixth and seventh accused and dismissed it in respect to the appellants herein. Once again aggrieved, the appellants have preferred the instant appeal. In effect, the complaints in their memoranda of appeal are as follows: One, they were convicted based on exhibits whose chain of custody was 3 not established. Two, the case against them was not proved beyond reasonable doubt as the oral evidence in place was full of material contradictions. Three, the Government trophies on which their conviction was based were destroyed without them being involved. Four, they were convicted on confessional statements which were extracted out of time. Five, they were linked with exhibits which were seized without any certificate of seizure. Six, their defence was not considered. The substance of evidence which justified the conviction and sentence of the appellants can be narrated as follows. Edwin Njimbi (PW l) was at the material time, working with the Serengeti National Parks as a Game Officer. He got information from an informer that in between Bwitenga village and Park Nyigoti, there was a motor vehicle offloading government trophies. In company of his fellow game officers,

they went at the area and found a motor vehicle Toyota Land Cruiser-pick up with registration No. T. 916 AEU, the property of Ikona Wildlife Management Authority which was in possession of the sixth and seventh accused. Upon arrival of inspector Abdallah from Mugumu Police Station (PW5), the said motor vehicle was searched and found with remnants of small pieces of meat believed to be of government trophies. They were further informed that, the government trophies which were in the said vehicle had been offloaded at the house of 4 the third appellant. They went to the residence of the third appellant and found him present. He allegedly admitted to have committed the offence together with the first, second, fourth and fifth appellants and thereafter led PW1 and his team to the residences of the first, second, fourth and fifth appellants whereupon all of them were arrested and taken to the residence of the third appellant. In their presence and that of the village chairperson one Mariam Mewele (PW3) and some neighbors, a search was conducted into the house of the third appellant and five parcels consisting of 276 dried meat of wildebeests and 14 of zebra were allegedly discovered. On further interrogation, the appellants led PW1 and his team to their camp within the National Park where they found 38 animal trapping wires, one panga, one knife and eight cooking pots (exhibit

PE6). All the appellants recorded cautioned statements (exhibits PE8, PE9, PE10, PE13 and PE14) admitting commission of the crimes under discussion. In their defence, however, they each denied connection with the crimes. That aside, as we have said, the trial court entered a verdict of guilt against them and sentenced them accordingly. The conviction and sentence having been confirmed by the first appellate court, they are now asking for our intervention by way of a second appeal as we hereby do. 5 When the matter came for hearing on 9/06/2023, the appellants were represented by Mr. Cosmas Tuthuru and Mr. Innocent Kisigiro learned advocates. The respondent Republic had the services of Mr. Tawabu Yahya Issa, learned State Attorney teaming up with Ms. Janeth Kisibo and Mr. Isihaka Ibrahim, learned State Attorneys. Before the hearing could commence, Ms. Kisibo who addressed the Court on behalf of the respondent Republic, informed us that, the judgments and proceedings of the courts below cannot stand in view of serious irregularities which render them null and void. She pinpointed two irregularities. One, the consent that was filed at the trial court purportedly under section 26(1) of EOCCA was signed by the State Attorney In charge instead of the Director of the Public Prosecutions (the DPP) as the law requires. Two, while in respect to the third, fourth and fifth counts

the appellants were charged for violating the provisions of sections 86(1) and (b) and (2) (c) (iii) and 84(1) of the WLCA read together with paragraph 14 of the First Schedule to the EOCCA, in both the consent and certificate conferring jurisdiction to the trial court, neither of the provisions from WLCA was cited. Relying on the case of Dilipkumar Maganbai Patel v. Republic, Criminal Appeal No. 270 of 2019 (unreported), she urged us to 6 hold that the proceedings of both the trial court and the first appellate court were nothing else other than a nullity. On what should be the appropriate remedy, she submitted that though ordinarily an order for retrial would be the best approach, in the instant case where the prosecution evidence suffers from serious weaknesses, the appropriate remedy is an order of acquittal. She pointed out three areas of weaknesses in the prosecution case which in her humble view cannot be addressed without filling gaps in the prosecution evidence. One, the inventory (exhibit PE 15) was prepared without the involvement of the appellants as they did not sign in it. Two, the Government trophies on the basis of which the appellants were convicted were destroyed in the absence of the appellants and thus denying them a right to be heard. Three, the appellants were convicted on confessional statements which were extracted out of time. She clarified that, in

law, such statements ought to have been expunged from the record. Once the cautioned statements and inventory are expunged from the record, she submitted, there would be no factual materials to link the appellants with the said economic offences. Mr. Tuthuru who addressed the Court for the appellants, concurred with the learned State Attorney that, the trial court tried the matter without jurisdiction. He added that, aside from being taken out of time, the confessional statements in question were recorded in total disregard of the requirement under section 57 of the Criminal Procedure Act in that they were not read to the appellants. Neither were the appellants afforded an opportunity to make comments or corrections thereon. That, he submitted, was fatal on the strength of the Court's decision in Chamuriho Kirenge and Chamuriho v. Republic, Criminal Appeal No. 597 of 2017 (unreported). Having heard the counsel's concurrent submissions, we have to decide whether the trial court acted without jurisdiction in entertaining the case and the effect thereof. As we discussed herein above, the appellants were charged with, among others, unlawful possession of government trophies and unlawful dealing with government trophies. These are economic offences whose trials are within the jurisdiction of the Corruption and Economic Crimes Division of the High Court in terms of section 3(3) of

the provisions of EOCCA. Under section 12(3) of the same Act however, the offences though economic, can be tried by a subordinate court if the DPP or any state attorney duly authorized by him, directs by certificate that, it should be tried by such subordinate court. It is also the law that, for a trial to commence at the 8 respective subordinate court, there must be a consent from the DPP under section 26(1) of the EOCCA which provides as follows: "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". In this case, consent was issued by the State Attorney In charge instead of the DPP. That was a serious irregularity as the power to issue a consent under section 26(1) of the EOCCA is not delegable. It is absolutely vested in the DPP himself. As such, the consent under discussion having been issued by a person without mandate was incapable of authorizing the trial court to trial the economic offences. In the same token, both the certificate conferring jurisdiction to the trial court and the consent of the State Attorney In charge did not cite the provisions of law creating the respective economic offences. We, therefore, agree with the learned State Attorney that, the legal consequence of the omission is to vitiate the trial proceedings as the trial

court acted without jurisdiction. Equally so, for the resulting proceedings of the first appellate court. There are many decisions in support of this position. See for instance, Dilipkumar Maganbai Patel v. Republic (supra), Rhobi Marwa Mgare and two others v. Republic, Criminal Appeal No. 192 of 2005, Elias Vitus Ndimbo and Another v. Republic, Criminal Appeal No. 272 of 2007 and Chacha Chiwa Marungu v. Republic, Criminal Appeal No. 364 of 2020 (All unreported). In the, Dilipkumar Maganbai Patel (supra), we stated as follows: "We have no doubt that in view o f our deliberation above the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) o f the EOCCA but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to section 86(1), (2) (ii) and (3) o f the WCA which was clearly cited in the charge sheet The certificate and consent were therefore incurably defective and the trial magistrate could not cure the anomaly in judgment as suggested by the learned State Attorney for the respondent The defects rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason, we are constrained to find that the trial and proceedings before the

Resident Magistrate Court o f Dar es Salaam at Kisutu in Economic Case No. 58 o f 2016 and the High Court in Criminal Appeal No. 146 o f 2018 were nothing but a nullity." 10 In the light of the foregoing discussions and guided by the above authorities, we agree with both counsel that, the proceedings before both the trial court and first appellate court were, for the reason pointed out irregularities in the consent and certificate, null and void. In terms of section 4(2) of the Appellate Jurisdiction Act, therefore, we nullify the proceedings of the trial court, quash the conviction and set aside the sentence thereof. In the same way, we nullify the proceedings of the first appellate court, quash the judgment and set aside the orders therein. On the way forward, we are in agreement with the learned State Attorney that, an order for retrial is not in the interest of justice due to the apparent weaknesses in the prosecution case in relation to the last three counts as hereunder discussed. In the first place, as rightly submitted by the learned State Attorney, the government trophies which were the basis of appellants' conviction of the said offences , do not suggest that they were destroyed in the presence of the appellants as neither of them was caused to sign into the relevant inventory. The conviction would have stood on the appellants' confessional statement. However, as

correctly submitted by both counsel, the said exhibits were incurably defective for being recorded out of time. In the circumstances, ordering for a retrial would give the prosecution a chance to fill in gaps and thus occasioning injustices to the appellants. That 11 would be against the settle principle in the case of Fatehali Manji v. Republic [1966] E.A. 343, that retrial cannot be ordered for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. In the final result, we order the immediate release of the appellants from prison custody unless held there for some other lawful cause. Order accordingly. DATED at MUSOMA this 13th day of June, 2023. R. K. MKUYE

JUSTICE OF APPEAL L. J. S. MWANDAMBO

JUSTICE OF APPEAL I. J. MAIGE

JUSTICE OF APPEAL The Judgment delivered this 14th day of June, 2023 in the presence of Mr. Cosmas Tuthuru, learned counsel for the appellants and Ms. Magreth Fyumagwa, learned State Attorney of the Respondent/Republic, is hereby of the original. C. M. f&C^SA

DEPUTY REGISTRAR

COURT OF APPEAL 12