PIRI MASAI SOLO VS

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: WAMBALI. J.A.. MURUKE 3.A. And MGONYA, J.A.) CRIMINAL APPEAL NO. 227 OF 2022 PIRI MASAI @ SOLO MANINGE......... ....................... .... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Robert. 3.^ dated the 13th day of May, 2022 in Criminal Appeal No. 57 of 2020 JUDGMENT OF THE COURT 23rd October & 6th November, 2024 MGONYA, J.A.: Piri s/o Maasai @ Solo Maninge, was arraigned before the District Court of Babati at Babati for one count of unlawful possession of the Government trophy, contrary to section 86 (1) and (2)(b) 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 Organized Crime Control Act, Cap. 200, as amended by sections 16 (a) and 13 (b) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016; herein to be referred as EOCCA. Material facts leading to the appellant's arraignment and the instant appeal are to the effect that: On 23rd July, 2018, at Hallu Village within Babati District in Manyara Region, the appellant was found in possession of zebra meat valued at TZS. 2,733,600/= the property of Tanzania Government without the permit from the Director of Wildlife. Thus, Seizure Certificate was prepared and signed by the appellant and park rangers who arrested the appellant. The same was admitted in evidence before the trial court as exhibit P2. The appellant was then apprehended and brought at Babati Police Station where the investigation file was opened against him. On the same day, on 23rd July, 2018, Trophy Evaluation Form (exh. P.6) was prepared. After valuation, PW5.Samwel Daniel Bayo, game officer prepared the Inventory Form (exh. P.4) which was taken to the court along with the seized trophy for securing a destruction order from the Magistrate. Thereafter, the appellant was arraigned in court and charged with the aforesaid offence. The appellant denied the charge. The prosecution in a bid to prove their case, called six witnesses and relied five documentary exhibits and two physical exhibits. During defence, the appellant categorically denied to commit the offence charged stating that, on the material date, he was at his home. Instantaneously, two park rangers approached and took him to their car where they took his particulars before they sent him to Babati Police Station and later arraigned before the trial court for the offence charged. After a full trial, the appellant was found guilty and sentenced to 20 years imprisonment. Aggrieved by both conviction and sentence, the appellant appealed to the High Court at Arusha vide Criminal Appeal No. 57 of 2020. The appeal was dismissed for lack of merit. Still discontented, the appellant filed the instant appeal through two memoranda of appeal comprising of eleven grounds of appeal. When the appeal was called on for hearing, the appellant appeared in person, unrepresented; whereas, Mr. Benedict Kivuma Kapela learned Senior State Attorney assisted by Ms. Rose Kayumbo, learned State Attorney, appeared for the respondent Republic. Before we commence the hearing, it was apparent that, the appeal can be disposed of based on the first ground of appeal shown in the substantive and supplementary memorandum of appeal regarding the jurisdiction of the trial court. When invited to amplify the grounds of appeal, the appellant prayed the Court to consider the said ground of appeal, written submission and list of authorities in support of the appeal. Finally, the appellant prayed the Court to consider the complaint in the ground of appeal, allow it and set him at liberty. The relevant ground of appeal is to the effect that: "First appellate court erred in law and fact when it failed to note that, the consent was issued by the Regional Prosecution Officer contrary to section 26(I) o f the EOCCA Submitting in reply to the said ground, Ms. Kayumbo at the outset supported the appellant's appeal on the strength of the complaint in the stated ground above. Referring to the consent appearing in the record of appeal issued in respect of the instant case at the trial court, it was Ms. Kayumbo's observation that, the same was issued by the State Attorney In charge purportedly under section 26(1) of the EOCCA, instead of the DPP who has been conferred with powers to issue consent under the said section. The learned State Attorney stated that the Regional Prosecution Officer who signed the said consent, is only authorized to issue the same under section 26(2) of the EOCCA and not otherwise. The learned State Attorney argued further that, the anomaly is fatal and vitiates the entire trial court's proceedings and those at the first appellate court. Supporting her stance, the learned State Attorney referred us to the decision in Juma Chacha Marengo & Another v. Republic (Criminal Appeal No. 461 & 162 of 2020) [2014] TZCA 538 (10 July 2024, TanzLII). The learned State Attorney thus invited us to invoke section 4(2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to nullify the entire trial court's proceedings and those of the first appellate court as the same emanated from nullity proceedings. Searching for remedy to the detected legal shortfall, the learned State Attorney was of the view that the way forward was to order for a retrial. However, she submitted that, obvious under the given fact that the appellant was not involved in procuring an order for destruction of trophy before the magistrate contrary to the law; an order for retrial will not be appropriate. She referred us to the case of Buruka Lekeni Ole Ndidai & Another v. Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024, TanzLII), which laid down the principles to be followed in the process of destruction of the exhibit so as to have a fair procedure; and that failure to comply with the requirement, dents the admission and reliance of the exhibit in evidence. It was thus the learned State Attorney's concern that, under the circumstances of this case, retrial will not serve any justice to the appellant as prosecution will have no credible evidence to sustain conviction against the appellant as the exhibit, the substance of the charge will not be legally admitted. The learned State Attorney, therefore, prayed the Court to order the appellant's release from prison. The appellant in his rejoinder had nothing to add, rather he prayed that his appeal be considered and allowed leading to him being set free. Having considered the parties7submissions in respect of the single ground, the main issue for determination is whether the trial court had jurisdiction to try and determine the case against the appellant. 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 DPP or the State Attorney duly authorized to give i mandate to the subordinate courts to try economic cases through a duly issued Consent and Certificate. Therefore, the subordinate courts' powers to determine economic case 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. The appellant, before the Court was charged with an offence of unlawful possession of Government trophy which falls within the economic offences triable by the High Court. After a comprehensive scrutiny of the record of appeal, we have confirmed that, though the certificate conferring jurisdiction to the District Court of Babati to hear and determine the case was issued in accordance with section 12(3) of EOCCA, the consent was wrongly issued under section 26(1) of the EOCCA by the State Attorney Incharge of Manyara Region instead of section 26(2) of the same Act. As alluded above, a subordinate court cannot assume jurisdiction to try the case without the consent from the DPP or an officer duly authorized by him as prescribed under section 26(1) and (2) of EOCCA respectively. It is beyond controversy that the consent in the instant case was issued under section 26(1) of the EOCCA, and therefore it is invalid as the Senior State Attorney (Regional Prosecutions Officer) purported to be the DPP. It has been repeatedly insisted by the Court in several occasions, including in the case of Dilipkumar Magambai Patel v. Republic (Criminal Appeal No. 270 of 2019) [2022] TZCA 477 (25 July 2022, TanzLII), Peter Kongori Maliwa & Others v. Republic (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023, TanzLII), and John Julius Martin & Another v. Republic (Criminal Appeal No. 42 of 2020) [2022] TZCA 789 (8 December 2022, TanzLII), that this legal shortfall is fatal and renders the consent invalid with the resultant effect of rendering the proceedings before the trial court a nullity. The shortfall is fundamental as it was categorically stated in the case of Ally Salim @ Nyuku v. Republic (Criminal Appeal No. 87 of 2020) [2020] TZCA 1783 (20 September 2020, TanzLII), that, such deficiency is as good as there was no consent for the subordinate court to try such an offence. From the foregoing, it is plain that, the appellant's trial by the Babati District Court commenced without the sanction of the DPP, hence lacked jurisdiction to try the case. It follows as correctly submitted by Ms. Kayumbo that the trial was a nullity because jurisdiction of the court is the bedrock of the court's authority to try a case. In this regard, we allow the first ground of appeal. Finally, we have no hesitation whatsoever in accepting the learned State Attorney's submission that given the nature of the material in the record with regard to the sufficiency of the evidence to support the appellant's conviction, if a retrial is ordered, injustice will be occasioned. Therefore, the interest of justice will be served if we refrain from ordering it. Consequently, we allow the appeal, nullify the proceedings, quash the convictions and set aside the sentences imposed by the trial court. We do the same to the proceedings of the High Court sustaining the trial court's decision. In the end, we order that, the appellant be released from prison custody forthwith if not held therein for any other justifiable cause. DATED at ARUSHA this 5th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 6th day of November, 2024 in the presence of the appellant in person and in the presence of Mr. Donard Mahona, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. m W. A. HAMZA [&// DEPUTY REGISTRAR W COURT OF APPEAL