Judgment Salu Sayi1 1

Page 1 of 10 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 23791 OF 2024 (Originating from a decision of the District Court of Mbogwe in Economic Case No. 05 of 2023) SALU SAYYI……………………….……………………………………….…...APPELLANT VERSUS REPUBLIC ………………………………………………………….....……..RESPONDENT JUDGMENT Date of last Order: 03/09/2024 Date of Judgment: 09/09/2024 MWAKAPEJE, J.: The appellant herein was charged, convicted and sentenced to twenty years imprisonment by the District Court of Mbogwe for the offence of unlawful possession of a government trophy contrary to sections 85(1)(d) and 86(1)(2)(b) of the Wildlife Conservation Act, Cap 283 R.E. 2022 as read together with paragraph 14 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2022 (EOCCA). Dissatisfied with the conviction and sentence, he appeals to this court. Before delving into the details of the appeal, it is worth summarising the facts behind it. The evidence on records stipulates that the appellant was apprehended at NG Bar in Masumbwe on 09 June 2023 after a wildlife Page 2 of 10 warden, one Paschal Marwa, received a tip-off that he had elephant tusks. A subsequent search of the appellant’s belongings yielded the aforementioned tusks, which were later subjected to expert identification and valuation, confirming their status as prohibited government trophies. The appellant, upon arraignment, unequivocally denied the charges. The prosecution marshalled eight witnesses, including police officers and a justice of the peace, whose testimonies detailed the chain of custody and the identification and valuation processes pertaining to the seized tusks. On the other hand, the appellant raised objections, alleging that he was subjected to coercion, thereby rendering any statements or signatures obtained from him involuntary and inadmissible. Notwithstanding these objections, the court admitted the evidence, including the tusks and associated documentation, and convicted and sentenced him accordingly. In his appeal, the appellant lodged seven grounds to support his appeal with this court as follows: 1. That the trial court magistrate erred in law and fact when she proceeded with a case, knowing that section 12(3) of the Economic and Organized Crime Control Act Cap 200 (R.E.2022) was not complied with. Hence, procedural irregularity. 2. That the prosecution failed to bring the owner of the NG Bar/lodge, where he was arrested to testify that he was arrested thereat. 3. That the trial court magistrate convicted him with no proof of professionalism or skill on the part of (PW5), who examined/evaluated and identified the stated tusks. Page 3 of 10 4. That the trial court magistrate failed to consider his evidence in evaluating the same. 5. That there were contradictions in his arrest and section 146(2) of the Tanzania Evidence Act Cap 6(R.E.2022) was not complied with by the trial magistrate. 6. That the trial court magistrate did not comply with section 312(2)of the penal code cap 16(R.E 2022). 7. That, he refuted his caution statement however the same was admitted in evidence. During the appeal hearing, the appellant appeared in person, while Ms Verena Mathias, learned State Attorney, appeared for the respondent. Being the first to address the court, the appellant had nothing substantial apart from his grounds of appeal and praying that he be set free. Ms Mathias, on the other hand, supported the appeal, raising concerns about the trial court's lack of jurisdiction and several procedural irregularities. She argued that the trial court did not comply with sections 26 and 12 of the Economic and Organised Crime Control Act (EOCCA). The appellant was charged with unlawful possession of a government trophy under sections 85 and 86 of the Wildlife Conservation Act. However, according to section 3 of the EOCCA and Paragraph 14 of its Schedule, the offences are classified as economic offences, requiring both consent to prosecute and a certificate to confer jurisdiction to a subordinate court. Ms Mathias pointed out that section 26(1) of the EOCCA requires consent from the Director of Public Prosecutions (DPP), with subsection (2) Page 4 of 10 allowing the DPP to delegate this authority. In this case, neither the DPP nor any subordinate provided such consent. Additionally, section 12 of the EOCCA mandates a certificate to confer jurisdiction to a subordinate court, which was not issued to the Mbogwe District Court for this matter. She emphasised that the trial court records did not indicate any conferral of jurisdiction, making all proceedings null and void, as demonstrated in the case of Juma Chacha Merengo & Another vs Republic (Criminal Appeal No. 461 & 462 of 2020) [2024] TZCA 538 (10 July 2024). Regarding procedural irregularities, Ms Mathias highlighted several issues: witnesses Paschal Marwa (PW1), J1783 DC Emmanuel (PW2), and Masumbuko Hussein (PW3) identified exhibits that had yet to be formally presented in court, and PW3, an independent witness, was not recalled to identify these exhibits after Inspector Geofrey Sayi (PW4) tendered them properly. Additionally, the appellant objected to H 686 DCPL Muyengi’s (PW7) submission of a caution statement, stating he had not been interrogated. Still, the court failed to conduct an inquiry and instead chose to consider the objection in the judgment, which Ms Mathias argued was improper. Similarly, the court did not conduct an inquiry when the appellant objected to PW8's extrajudicial statement on pages 32-33. Page 5 of 10 Ms. Mathias concluded that the issues with the extrajudicial and caution statements pertained to the accused's voluntariness under section 27 of the Evidence Act. Given the lack of jurisdiction and the procedural irregularities, she requested that the conviction and sentence be set aside and the appellant be released. The appellant, in his rejoinder, had nothing to say apart from insisting that he be set free. Having considered the submission by the learned State Attorney, I will start first by addressing the issue of the trial court's jurisdiction to hear the matter, and if need be, I will proceed to address other issues raised herein. The question of jurisdiction is pertinent as it should be the first to be considered by any court before proceeding with the determination of any matter since the same is the creation of the statute. In the case of Fanuel Mantiri Ng’unda vs. Herman M. Ng’unda, Civil Appeal No. 8 of 1995, CAT (unreported), where it was stated that: The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature. In our considered view, the question of jurisdiction is so fundamental that the courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. This should be done from the pleadings. The reason for this is that it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. Page 6 of 10 Therefore, for a court to validly decide a case, it must have the proper jurisdiction. The purpose of jurisdiction in law had been, among other things, to prevent arbitrary decision-making and ensure that the proper court, with the necessary expertise and authority, addresses the matter at hand. If a court lacks jurisdiction, its involvement in the case becomes illegitimate, as it is acting outside its authorised legal mandates. It was further stressed in the said case of Fanuel Mantiri Ng’unda vs. Herman M. Ng’unda (supra) that: “For the court to proceed to try a case based on assuming jurisdiction has the obvious disadvantage that the trial may well end up in futility as null and void on grounds of lack of jurisdiction when it is proved later as a matter of evidence that the court was not properly vested with jurisdiction.” The appellant herein was charged with unlawfully possession a government trophy, which, according to paragraph 14 of the schedule to the EOCCA, is an economic offence. According to section 3 of the EOCCA, the Court with jurisdiction to entertain the case is the High Court. The said section provides that: "The jurisdiction to hear and determine cases involving economic offences under the Act is hereby vested in the High Court." Furthermore, according to section 26(1) and (2) of the EOCCA, prosecution of economic offences cannot be commenced unless the Director of Public Prosecutions (DPP) has consented to their prosecution. See the Page 7 of 10 cases of Madeni Nindwa vs Republic (Criminal Appeal No. 350 of 2016) [2017] TZCA 348 (19 July 2017) and Jumanne Leonard Nagana @ Azori Leonard Nagana & Another vs Republic (Criminal Appeal 515 of 2019) [2021] TZCA 650 (4 November 2021). Notwithstanding the provisions of section 3 of the EOCCA, a subordinate court could entertain such offences when the DPP has conferred jurisdiction to try the matter as far as section 12(3) of the said Act is concerned. Section 12(3) provides that: “The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate.” Therefore, for a subordinate court to proceed to try the matter, there should be evidence of the endorsement and admission of the DPP’s consent and a certificate of transfer and conferring jurisdiction with the said court. Without such proof, the trial court's proceedings have no legal force as the trial court will have no requisite jurisdiction to entertain it. In the case of Maulid Ismail Ndonde vs Republic (Criminal Appeal 319 of 2019) [2021] TZCA 538 (29 September 2021), it was stated that, Page 8 of 10 “…….in the absence of the consent and the certificate of the DPP, the trial court lacked jurisdiction to try this case, rendering the entire proceedings a nullity.” Elsewhere, in the case of Mhole Saguda Nyamagu vs Republic (Criminal Appeal 337 of 2016) [2019] TZCA 61 (3 April 2019), it was further stressed that, “.……..in the absence of the DPP's consent given under Section 26 (1) of the Act and the requisite certificates given under subsections (3) and (4) of section 12 of the Act, the trial District Court had no jurisdiction to hear and determine charges against the appellant, as it did. We further firmly hold that the purported trial of the appellant was a nullity. In a similar vein, the proceedings and the judgment made by the High Court dated 8/06/2016 based on null proceedings of the trial court were also a nullity.” Now, in the present case, on the very first day when the case was scheduled for the preliminary hearing on 27/11/2023, there is nowhere we see on the record as to whether or not the DPP consented to prosecute the appellant with an economic offence nor the certificate of transfer to confer it with requisite jurisdiction to try the case. The learned magistrate proceeded to record the preliminary hearing, witness statement, and ultimately convicting and sentencing the appellant without evidence of presence, but also an admission of the DPP’s consent and certificate to confer her jurisdiction. Therefore, I agree with Ms Mathias that the subordinate court in this case lacked jurisdiction; hence, all that was done Page 9 of 10 was a nullity. This is so because the learned trial magistrate of the District Court of Mbogwe assumed the jurisdiction she did not have in the first place. In the case of Juma Chacha Merengo & Another vs Republic (supra), it was reiterated that: “…in the absence of the consent by the DPP together with a proper certificate conferring jurisdiction on the trial court, the trial of the appellants by the District Court of Serengeti and subsequent proceeding upon appeal to the first appellate court, were nullity for want of jurisdiction. In the circumstances, it goes without saying that since the DPP did not issue consent and a certificate conferring jurisdiction to the District Court of Mbogwe to try the case, all its proceedings were a nullity. Therefore, in the analysis herein, I find merits in the first ground of appeal. I, therefore, see no need to consider other grounds of appeal and concerns raised by Ms Mathias as the issue of jurisdiction sufficed in disposing of this appeal. Consequently, I quash the proceedings and conviction by the district court and set aside the sentence. Having quashed the proceedings, this Court's ideal order would have been a retrial. However, considering the fact that there were other irregularities in the said proceedings of the case at the trial court, as pointed out by the learned State Attorney, I agree with her that a retrial would attract the prosecution to fill in gaps in its evidence to the detriment of the appellant. Page 10 of 10 A retrial is, therefore, not ideal as it will prejudice the appellant. See the case of Fatehali Manji v. R [1966] 1 E.A 343. Consequently, I order the appellant's immediate release from prison if he is not otherwise detained for some other lawful cause. It is so ordered. DATED at GEITA this 9th day of September 2024. G.V. MWAKAPEJE JUDGE This Judgment is delivered this 09th day of September 2024 in the presence of Ms Luciana Shabani, learned Senior State Attorney for the Respondent and the Appellant in person. G.V. MWAKAPEJE JUDGE