Jdg in Cr

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14484 OF 2024 (Arising from Economic Case No. 14 of 2023 in the District Court of Babati at Babati) SAID IBRAHIM ISSA @ MAGODORO………………… APPELLANT VERSUS THE REPUBLIC…………………………………………. RESPONDENT JUDGMENT 24th December 2024 & 20th February, 2025 Kahyoza, J. Said Ibrahim Issa @ Magodoro (the appellant), Issa Hussen Tomola and Juma Mohamed Ismail were charged before the district court with the offence of unlawful possession of government trophy, to wit six pieces of elephant tusks weighing 45.5 kilograms, the property of the United Republic of Tanzania. They pleaded not guilty. After trial, the trial court convicted the Said Ibrahim Issa @ Magodoro (the appellant) and acquitted Issa Hussen Tomola and Juma Mohamed Ismail. Aggrieved, Said Ibrahim Issa @ Magodoro (the appellant) appealed against conviction and sentence. The DPP also appealed against the acquittal of Issa Hussen Tomola and Juma Mohamed Ismail. Thus, there are two pending appeals originating from the same original case. 1 Said Ibrahim Issa @ Magodoro (the appellant), raised three grounds of appeal, which topped to three issues; one, whether the prosecution proved its case beyond reasonable doubts, two, whether the trial court had jurisdiction to try an economic offence; and three, whether the procedural irregularities vitiate the appellant’s conviction. A brief background is that; Simon Marmo Barnaba (Pw5), got information from an informer that three people had tusks and were looking for customers. He reported to the operation officer who instructed him to go to Babati police station with Simon James Msoka and a driver. At Babati police station, they met Insp. Fadhili (Pw2), who had prior information. They went to Magugu where they reached at 12:50 Pm. Insp. Fadhili (Pw2) communicated with the informer and advised them to park at NMB bank’s office Magugu. Three people came to the vehicle. They knocked. Fadhili (Pw2) went out and talked to them. One was tall and others were short. They negotiated the price and demanded to be paid Tzs. 300 per kilogram. They brought two sacks, which had elephant tusks. Simon (Pw5) arrested the appellant Saidi Magodoro. Fadhili (Pw2) seized the elephant tusks. He prepared the certificate of seizure in the presence of the accused persons and an independent witness 2 Constantine Augustino (Pw3). Goodluck James (Pw6) the wildlife officer identified the tusks while at Babati police station. The accused persons denied the allegations. Saidi Magodoro denied to commit the offence. He deposed that while at Magugu on 03.01.2020 received telephone call from a stranger who asked him if he was Saidi Magodoro. He asked him to meet him. They called him at 11:00 told him to move to the side of road. They went grabbed him and took him to the car. He found other people who were handcuffed. He did not recognize them. They drove up to Matufa where they stopped, got off the vehicle with other people. They came back holding two sacks and asked him if he knew the owner. He denied. They tortured him. Issa Hussein also denied to commit the offence. He deposed that he went to Matufa in search of an employment. Whilst there, police arrested him at night and took him to police station. The following day they brought two bags and told him to hold the bags and took photos. Was the trial court clothed with jurisdiction? I opted to commence with the second ground of appeal as it raised a point of law, if established, would vitiate the proceedings, the conviction and the sentence. The appellant complained in the second ground of appeal that, 3 the district court erred in law and fact by entertaining the matter at hand without jurisdiction. To support the second ground of complaint, Mr. Festo, the appellant’s advocate, submitted that he perused the court record and found only the consent. He argued that the consent was issued under section 26(2) of the Economic and Organized Crime Control Act, [Cap. 200 R.E. 2022] (the EOCCA) though the record depicts that consent was issued under 26(1) of the same law. The appellant’s advocate submitted further that, the DPP did not provide any provisions of the law creating the respective offence upon which the consent and certificate were issued. He prayed for nullification of the proceedings and cited Peter Kongori Maliwa & Others vs R. (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023). The respondent’s state attorney replied that the appellant’s complaint that the trial court acted without jurisdiction, did not hold water since the consent was issued properly under section 26(2) of EOCCA. He added that, the court’s proceedings depicting that consent was issued under section 26(1) was a mere slip of a pen. Having heard the rival submissions, I perused the record to find out if the trial court had jurisdiction or it assumed jurisdiction to try economic 4 offence. Any court to have the jurisdiction to try an economic offence, the DPP or the DPP's delegate must issue consent to that court to try that offence. The DPP’s consent must specify the offence and the provisions of the law creating the offence. Section 26(1) of the EOCCA provides that- "26.-(1) Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." As the record bears testimony, the DPP's delegate issued consent under section 26(2) of EOCCA on 13th July, 2023 to try Said Ibrahim Issa @ Magodoro, Issa s/o Hussein Tomolo and Juma s/o Mohamed Ismail for contravening the provisions of section 86(1) and (2) of the Wildlife Conservation Act, [Cap. 283, R.E. 2022] (the WLCA) read together with paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the EOCCA. The DPP’s delegate not only specified in the said consent, the offence and the provisions of the law creating the offence the accused persons were to be charged with, but also, stated that he issued the consent under section 26(2) of the EOCCA. Like, the respondent’s state attorney, I find nothing wrong with the consent. It was properly issued and by the competent authority. The trial court’s finding that the consent was made 5 under section 26(1) of the EOCCA was a slip of a pen and has no impact. It was an error or misdirection which does not change the fact that consent was issued under section of 26(2) of the EOCCA. Reading sections 2, 3 and 11(1) of the EOCCA, the court vested with jurisdiction to make inquire into economic offences alleged to have been committed, and to make such decisions and orders for the purposes of the EOCCA as it may in each case find fit and just, is the Corruption and Economic Crimes Division of the High Court. For subordinate courts to make inquire into economic offences, the DPP must order by a certificate that the case triable by the Corruption and Economic Crimes Division of the High Court be tried by the specified subordinate court. The DPP or an officer authorized by him, has to direct subordinate courts to try economic offence by a certificate issued under section 12(3) or (4) of the EOCCA. A certificate issued by the DPP’s or an officer authorized by him, is commonly referred to as the certificate of transfer conferring jurisdiction to subordinate courts. Having scrutinized the record of trial court, it is notable that the prosecution filed the charge sheet and attached the DPP’s consent issued under section 26(2) of the EOCCA. Unfortunately, the prosecution did not file or attach the certificate of transfer conferring jurisdiction to Babati district 6 court to try the offence. The record shows that, the prosecution mistakenly filed two original copies of the DPP’s consent instead of filing consent and certificate of transfer conferring jurisdiction. I find it proved that, the court tried the appellant and his co-accused persons, without the DPP’s certificate of transfer conferring jurisdiction to it. For that reason, the trial court had no jurisdiction to try the appellant and his co-accused persons. The trial court’s record recording that the DPP’s consent and the certificate of transfer conferring jurisdiction were received, was a misdirection as there was no certificate of transfer conferring jurisdiction filed. I therefore, agree with the appellant’s advocate that the trial court had no jurisdiction to try an economic case. The proceedings, conviction and sentence were nothing but a nullity. They cannot stand. Consequently, I quash the proceedings, set aside the conviction and sentence. Should this Court order a retrial? The appellant’s advocate prayed this court not order a re-trial as they were procedural irregularities and that if a retrial is ordered, the prosecution will have an opportunity to rectify the irregularities. He submitted that trial court did not properly admit the exhibits. The respondent did not reply to the issue whether this court should order a retrial or not. 7 It is settled that a retrial may be ordered when the original trial is nullified on account of illegality, only when there is enough evidence. A re- trial will not be ordered when to do so 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- “In 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 of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of 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 should only be made where the interests of justice 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 to say the least, the prosecution’s evidence is sufficient for this court to order the appellant and his co-accused persons to be tried afresh. The prosecution alleged that the appellant and his co-accused persons were found in possession elephant tusks by (Pw2), (Pw4) and (Pw5) who posed as buyers. The tusks were tendered as exhibits. (Pw3) testified as an independent witness. On the face 8 of it, the chain of custody was not broken. The appellant’s advocate complained that the exhibits were not properly admitted. I do not wish make a finding on that, but let us assume it is true that the exhibits were not properly admitted. Does that affect the prosecution’s case? My answer is it does not. The appellant’s advocate would have convinced me if he had complained against the manner police handled the exhibits, which would render the exhibit not admissible. As there is evidence on record, to order a retrial will not be give the prosecution an opportunity to fill the gaps in its evidence at the first trial. Having found that the trial was a nullity, I find no reason to consider and determine the first and third grounds of appeal. 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 this judgment, the appellant shall be deem discharged and should be set free. A fresh trial shall involve the appellant and his co- accused persons who were acquitted. However, the prosecution’s failure to arrest and charge appellant’s co- accused persons who were acquitted, shall not be a ground to delay the trial. Should the appellant and his co-accused persons be convicted as a result of the fresh 9 trial, the trial court will have to take into consideration the period the appellant and the co-accused persons stayed in custody both as inmates and as prisoner. I order accordingly. Dated at Babati, this 20th day of February, 2025. J. R. Kahyoza Judge Court: Judgment delivered in the presence of Ms. Rose Kayumbo for the Respondent and absence of the appellant together with his advocate. Mr. Shedrack (RMA) present. John R. Kahyoza Judge 20.02.2025 10