t SAID NKIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL APPEAL NO. 20458 OF 2024 (Originating from the District Court of Chunya at Chunya in Criminal Case No. 20 of 2022) SAID NKIA................................................................................ APPELLANT Versus THE REPUBLIC...................................................................... RESPONDENT JUDGMENT 26th & 30th August 2024 TIGANGA, J. In this appeal, Said Nkia (the appellant) challenges the conviction and sentence of the District Court of Chunya in Economic Crime Case No. 20 of 2022. In that case, the appellant was arraigned and convicted of the three counts of unlawful possession of Government trophies contrary to section 86(1)(2) III of the Wildlife Conservation Act No. 05 of 2009 and sections 57(1) and 60(2) both of Economic and Organised Crimes Control Act [Cap. 200 R.E 2019] [Now R.E 2022] in the first counts, and unlawful possession of firearms c/s 21(a)(b) of the Fire Arms and Ammunition Control Act, read together with paragraph 31 to the schedule and sections 57(1) and 60(2) both of Economic and Organised Crimes Control Act [Cap. 200 R.E 2019] [Now R.E 2022], in the 2nd count, while in the third count, i he was charged with unlawful possession of Ammunition without licence c/s 21(a)(b) of the Fire Arms and Ammunition Control Act read together with paragraph 31 to the schedule and sections 57(1) and 60(2) both of Economic and Organised Crimes Control Act [Cap. 200 R.E 2019] [Now R.E 2022] and sections 60(1) and 34 of the Fire Arms and Ammunition Control Act No. 02 of 2015 as amended by section 31 of the Written Laws (Miscellaneous Amendment) Act No. 06 of 2016 in the 3rd count. After a full trial, he was found guilty, convicted, and consequently sentenced to pay a fine of TZS 1,731,000/= or serve twenty years in jail for the first count, he was also sentenced to pay a fine of TZS. 5,000,000/= or to serve five jails, in the second count, and so is in the third count. Aggrieved by the decision of the trial Court, the appellant appealed to this court by preferring three grounds of appeal as follows; 1. That the trial Court erred in law by convicting and sentencing the appellant without taking into account that the prosecution side failed totally to prove that charge in both Courts as per law, (sic) 2. That the trial Court erred in law by convicting and sentencing the appellant relying on exhibits PE2 and PE3 without regard that the same was tendered at the trial court without any form of chain of 2 custody from the police station to prove the correctness of these exhibits. 3. That the trial court erred in law and fact to convict and sentence the appellant without taking into consideration that if PW1 and others took the said exhibits with the appellant to VEO of BITIMANYANGA village and up to the police station at Chunya why did these leaders was not called to corroborate the evidence of PW1 a single witness. 4. That the defence of the appellant was not considered by the trial Court. When the matter was called for hearing, the appellant asked for the learned State Attorney to start. Responding to the call to start, the learned State Attorney supported the appeal but not on the ground raised by the appellant, he said after passing through the consent and certificate which they filed to give the jurisdiction of the District Court of Chunya to hear the case. He said the consent and the certificate did not cite the law and the offence he was charged with. In his view, failure to do so renders the court to have no jurisdiction to hear and determine the case at hand. In support of his contention, he cited the case of Malegi Shenye @ Lusinga vs The Republic, Criminal Appeal No. 152 of 2020, CAT on page 10 of the judgment where the Court of Appeal held that for consent 3 and a certificate to give a proper and legal power/jurisdiction to the court then the section of the Economic offence must be in the consent and the certificate conferring the jurisdiction of the court. Therefore, without citing the law and offences the two documents lack legal force. For that reason, the court that hears the case based on such defective consent and certificates does so without jurisdiction. He in the end asked the court to quash the proceedings and set aside the judgment. Having prayed for the orders he sought, he submitted that, after issuing those orders the court has two options, either to acquit the accused person or order retrial before the trial Court. He said acquittal comes in when the court having assessed the evidence on record is satisfied that even if the court orders for retrial, the evidence is such much insufficient to found the conviction and that the retrial will afford the prosecution the opportunity to fill the gap in their evidence. On the second option, the court will order retrial when it finds after assessing the evidence previously tendered or adduced that the same was sufficient and that there will be no chance for the republic to rectify the shortcomings in the prosecution case. In his view, after passing through the record, particularly the evidence recorded against the accused in the first count, he is of the view 4 that the same is not sufficient and does not prove the first count of being in unlawful possession of government trophies, in that neither the trophies allegedly found in the possession of the accused were tendered nor its inventory if at all the trophies were disposed off by the order of the Court. On the second and third counts of unlawful possession of weapons (firearm) and ammunition, notwithstanding the shortcomings that can be noted in the chain of custody of the said exhibits the evidence is seemingly sufficient for the court to order for retrial. Thus, he prayed for the appellant to be acquitted in the first count, but an order for retrial in the second and third counts. Given the chance to rejoinder, as the layperson as he is, the appellant had nothing to add. It has been held in a plethora of cases that, the consent and the certificate must as a matter of law, state the provision of the law creating the offence that the accused person has been indicted and for which the consent and certificate are issued to confer the jurisdiction to the subordinate court to try the case economic offence for which the consent and certificate are issued. In the case of Malegi Shenye @ Lusinga vs The Republic, (supra) which has been cited by the learned State Attorney, it was held inter that; 5 "It is dear that all the economic offences with which the appellant was charged and convicted were not specified in the consent of the Prosecution Attorney In-Charge and therefore, we agree with the learned Senior State Attorney that the trial court did not have jurisdiction to try them. The proceedings were, therefore, a nullity. See the case of Chacha Marungu vs Republic, Criminal Appeal No. 364 of2022 (unreported) cited by Mr. Mwegoje." In the case at hand, based on the concession, I have also passed through the consent and the certificates issued by the learned Regional Prosecution Officer, the two documents do not indicate the provision of the law, that is the Wildlife Conservation Act, and the offence which the appellant was charged with and for which the consent and the certificate were issued by the learned Regional Prosecutions Officer. Therefore, the trial District Court proceeded without jurisdiction. The Court of Appeal in CRDB Bank PLG v. Lusekelo Mwakapala (Civil Appeal No. 143 of 2021) [2023] TZCA 17637 (22 September 2023, TANZLII), emphasized the importance of satisfying itself as to whether it has jurisdiction before hearing the case. It held- "It is worth noting that, the question ofjurisdiction is crucial and must be determined by the court or tribunal at the eadiest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it. Where a 6 Court has no jurisdiction, there would be no basis for a continuation of proceedings. Generally, a court is barred to entertain a matter in which it has no jurisdiction. " It is trite law that jurisdiction is very basic, every court or tribunal should entertain the matter before it after satisfying itself that it is clothed with the jurisdiction to try the matter, short of that whatever it does becomes a nullity. Therefore, since it has been established that there was no valid consent and certificate the proceedings and the judgment before the trial Court are a nullity. Now having so declared the proceedings and the judgment a nullity, the next question is what should be the right recourse. On that I agree with the learned State Attorney that the options are only two, either to order for fresh trial or to acquit the appellant. The fresh trial or retrial in its common terms can be ordered only when the conditions stipulated in the case of. It is also trite that a retrial may 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 to enable the prosecution to fill in the gaps in its evidence at the first trial. This position was stated in the famous case of Fatehali Manji v. Republic (1966) EA 343, where 7 the Court considered the factors in deciding whether to order a retrial and stated thus- "In general retrial may 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 purposes of enabling the prosecution to fill in the gaps in its evidence at the first trial.... Each case must depend on its own facts and an order for retrial should only be made where the interest ofjustice requires it." Further, the Court of Appeal in balancing the interest of both, the prosecution and the accused, in Marko Patrick Nzumila & Another v. Republic, Criminal Appeal No. 141 of 2010 CAT (unreported) held that in considering whether to order for retrial a court should consider whether it is fair to do so for both the accused person and the public. It held: - "Failure ofjustice (sometimes, referred to as miscarriage of justice) has equally occurred where the prosecution is denied an opportunity ofconviction. This is because, while it is always safer to err in acquitting than punishment; it is also in the interests of the state that crimes do not go unpunished. So, in deciding whether a failure ofjustice has been occasioned the interests of both sides of the scale of justice have to be considered." 8 In the case at hand even though the court that entertained the case subject of this appeal had no jurisdiction, nevertheless that does not obliviate the fact that there was evidence that was recorded and upon which the conviction was founded. Critical examination of the evidence reveals that even if the appeal would have been heard on merit, the evidence was so insufficient to sustain the conviction. I hold so because as correctly submitted by the learned state attorney in support of the appeal, the appellant was charged with unlawful possession of government trophies in the first count, however in the evidence by the prosecution, neither such government trophies were tendered nor the inventory signifying that the same was disposed of vide a court disposal order were tendered in court. On the second and third counts which are unlawful possession of firearms and unlawful possession of Ammunition without a licence, looking at the evidence given it is abundantly clear that the chain of custody of the said exhibit was by and large not established at all, all these shortcomings impede this court to order for a fresh trial, for doing so will allow the prosecution to fill in the gaps in its evidence at the first trial and it is not in the interest of justice to do so. 9 That said; therefore, this is not the proper case in which retrial can be ordered, I consequently acquit the accused person in all three counts for the reasons given hereinabove. The appellant be set free from the charge unless otherwise lawfully withheld. It is accordingly ordered. DATED and delivered at MBEYA on this 30th day of August 2024. J.C. TIGANGA JUDGE 10