JUDGMENT SELEMANI EZEKIA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 16569 OF 2024 CASE REFERENCE NO. 202406192000016569 (Originating from Economic Case No. 27 of 2023 in the district court of Mbarali at Rujewa) SELEMANI S/O EZEKIA MGUNDA ........................................ APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT JUDGMENT 25th November 2024 & 17th February 2025 NONGWA, J. The appellant Selemani S/O Ezekia Mgunda appeared before the District Court of Mbarali at Rujewa in Economic Crime Case No. 27 of 2023 to answer the charge of unlawful possession of Government Trophies contrary to the provision of section 86(1)(2)(c)(iii) of the Wildlife Conservation Act [Cap. 283 R: E 2022] read together with paragraph 14 of the First Schedule to and section 57 (1) of the Economic and Organized Crime Control Act [Cap. 200 R: E 2022] (the EOCCA). It was alleged that on 2nd day of September, 2023 at Madundasi village within Mbarali District in Mbeya region the appellant was found in 1 possession of government trophy to wit two elephant tusks worth USD 20,000/= which is equivalent to Tsh. 48,633,268/= the property of the government of the United Republic of Tanzania without permit. The accused denied the charge. To prove the charge, the prosecution summoned six witnesses and produced two documentary exhibits, seizure certificate and trophy valuation certificate (exhibit P2 and P3 respectively) and one real exhibit, two elephant tusks, exhibit P1 collectively. The appellant was the sole witness for defence. It started with Abisai Gabriel Nassary (PW1) and Kelvin Mwaseba (PW2) who stated on 2/9/2023 while on patrol with one Diamile Yabie at Madundasi village saw a person with a luggage, suspecting him, the person was stopped, when asked what he was carrying, did not respond. The luggage was opened and discovered to be elephant tusks. The same was seized and certificate of seizure filled, the elephant tusks and certificate of seizure were tendered and marked as exhibit P1 and P2 respectively. The seized item and the accused were taken to Rujewa police station where they were received by Amani Mwenda Mbwambo (PW3). The elephant tusks were given reference number Rujewa IR/1031/2023 and taken to exhibit keeper one J.190 PC Geofrey (PW5) 2 who testified that before he stored, signed the occurrence book and recorded in the register. On 03/9/2023 the elephant tusks were taken by the investigation officer DC. Niclaus who handed to wildlife conservation officer one David Mlay (PW4) for valuation purpose. After evaluation returned to him until 8/5/2024 when was taken to court. PW4 stated to have identified the luggage given to be the elephant tusks. He checked with valuation regulation in which one elephant tusk was worth USD 20,000 equivalent to Tzs 23,416,634 and concluded that the two elephant tusks were equivalent to Tzs. 48,63,269/=. The trophy valuation certificate was tendered and admitted as exhibit P3. G.5437 CPL Issa recorded caution statement of the accused in which he said, the appellant admitted but its tendering into evidence was rejected due to some flaws in the law. On defence, the appellant stated that at the night of 2/9/2023 was at his father-in-law attending his sick child when some persons who introduced to be park rangers knocked. They required to search the house but his father-in-law demanded presence of a locality chairman. They tried to call the chairman in vain and the park rangers insisted they conduct search alone as they had limited time. Finally, they forced into the house, searched but found nothing. They took him to park rangers’ camp and 3 then to police station where he was put in lock up and after two days taken to interrogation room. He said was forced to admit, when he refused was tortured and forced to sign some papers. He distanced himself from the commission of the offence. At the end of trial, the court was satisfied, the prosecution had proved the case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to pay fine of Tshs. 48,633,268 or in default serve twenty years imprison. The whole judgment aggrieved the appellant who through his advocate, Mr. Evance Rwekaza has filed petition of appeal on eleven (11) grounds. In this judgment, I will not reproduce all grounds as it turns out that the appeal can be disposed on ground two alone to the effect that; 2. The trial magistrate erred in law and fact when entertained the mater without being properly conferred with jurisdiction. On the hearing day, the appellant had legal representation of Mr. Evance Rwekaza, learned advocate whereas the Respondent/Republic was represented by Mr. George Ngwembe, State Attorney. Both sides agreed to dispose the appeal by filing written submissions. Dutifully complied with the scheduling order. 4 On the second ground, Mr. Evance submitted that the trial court was not clothed with jurisdiction to try an economic offence for want of consent from the Director of Public Prosecution (DPP) and certificate conferring jurisdiction. He referred the court to the case of Chacha Chiwa Marungu vs Republic, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5 June 2023; TanzLII) and Peter Kongori Maliwa & Others vs Republic, Criminal Appeal No. 252 of 2020 [2023] TZCA 17350 (14 June 2023; TanzLII) to bolster the point. Counsel went on to state that for consent and certificate conferring jurisdiction to be legally recognised, it must be endorsed and admitted to form part of the proceedings, failure of that renders the proceeding a nullity. Connecting to the present appeal, Mr. Evance referred at page 9 of the proceedings, that the state attorney informed the court to have consent and certificate but the same was not endorsed and admitted. In support, cited the case of Hussein Sadick Matali and Another vs Republic, Criminal Appeal No. 34 of 2023 [2024] TZCA 435 (11 June 2024; TanzLII), Emmanuel Mark Nyambo vs Republic, Criminal Appeal No. 559 of 2021 [2024] TZCA 602 (19 July 2024; TanzLII) and Sefu Abdallah Chombo @ Baba Fatina & Others vs Republic, 5 Criminal Appeal No. 628 of 2022 [2024] TZCA 811 (22 August 2024; TanzLII), in all cases it was held that proceedings founded on an unendorsed consent are a nullity. He argued that, since the manner in which the consent found its way into the record was discrepant, then the trial court lacked requisite jurisdiction to try the matter. Mr. Evance added that the state attorney did not request and present it to form part of the court record hence the court lacked jurisdiction over the matter. He prayed the proceedings and judgment of the trial court to be quashed, set aside and the appellant to be released from prison. Responding, Mr. Ngwembe conceded that there was no evidence that consent and certificate were endorsed and admitted to form part of the proceedings. Further that the ailment renders all proceedings and judgment a nullity and sought guidance from the case of Chacha Chiwa Marangu (supra). As the way forward, Mr. Ngwembe opted for retrial contending that prosecution have enough evidence to ground conviction. He cemented the preposition with the case of Sefu Abdallah Chombo @ Baba Fatina & Others (supra). 6 In rejoinder, Mr. Evance attributed absence of consent and certificate as reckless and fault of the prosecution. He stated retrial will prejudice the appellant considering the time has spent in custody and that the prosecution has no evidence upon which conviction can be grounded. I have considered rival submissions, parties are in agreement that consent and certificate conferring jurisdiction to the subordinate court was not filed and endorsed by the court to form part of its record. It has to be noted that the appellant was charged with the offence of unlawful possession of government trophy to wit elephant tusks which paragraph 14 of the EOCCA makes it an economic offence 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. The subordinate court can try economic offence where the DPP or any of his authorized officers issue a certificate that confers jurisdiction to preside over such case pursuant to section 12 (3) of the EOCCA in case the accused person is charged with a pure economic offence as it happened here. Section 12 (3) of EOCCA which reads; ‘The Director of Public Prosecution 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 7 by the Court under this Act be tried by such subordinate to the High Court as he may specify in the certificate.’ It is also the law that, for a trial economic offence to commence, there must be consent issued by the DPP or officer authorised by him under section 26(1)(2) of the EOCCA. It provides; ‘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. (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions.’ In this appeal, it has been submitted that consent and certificate conferring jurisdiction was not endorsed and admitted by the trial court to form part of its records. Indeed, at page 9 of proceedings the state attorney acknowledged to have consent and certificate conferring jurisdiction but did not pray the same to be filed and received by the court. 8 Worse enough there is no any note by a magistrate to have appreciated the concern of the state attorney. To appreciate what transpired I reproduced; ‘State attorney May it please your honour, I appear for the republic, the matter is coming for mention, however we have the consent, certificate conferring jurisdiction to this court and the new charge sheet, I pray to proceed. Accused person: I am ready Court: charge sheet read over and well explained to the accused person on the language well known to him “swahili” in reply he plead as follows; …’ The above incept tells that the state attorney did not file or present or supply consent and certificate conferring jurisdiction to the court to form part of its record. It is so, even my perusal of the original file, I have not been able to find any consent and certificate conferring jurisdiction to the subordinate court. Thus, there was total non-issuance of consent by the DPP or the officer authorised by him contrary to section 26(1)(2) of the EOCCA to try the appellant and certificate conferring jurisdiction issued in terms of section 12(3) of the EOCCA, hence the trial court tried the case without jurisdiction. It is settled law in our jurisdiction that any 9 decision reached by any court without jurisdiction is a nullity. In Lufino Gabriel Mwakayela vs Republic, Criminal Appeal No. 652 of 2022 2024 TZCA 484 (21 June 2024; TanzLII) discussing akin circumstances, the court stated; ‘.... where a person is arraigned before the subordinate court for an economic offence under EOCCA without the consent of the DPP authorizing the court to try the economic case and /or the certificate which confers jurisdiction on that court to try the said offence, such subordinate court lacks the jurisdiction to try the economic offence concerned and if it does, the entire proceedings become a nullity.’ [Similar position see; Mwanaharusi Salimu Mshahara vs The Republic, Criminal Appeal No. 403 of 2022 [2024] TZCA 304 (6 May, 2024; TanzLII)]. In the event, the proceedings of the trial court were a nullity as it could not assume the jurisdiction without the requisite consent to prosecute the appellant and certificate conferring jurisdiction to subordinate court to try economic offence as required by law. The next question is whether I should, as implored by the learned State Attorney, order a re-trial or not. Test for retrial is laid in the case of 10 Fatehali Manji vs The Republic [1966] 1 EA 343 when the court stated; ‘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 purpose of enabling the prosecution to fill up the 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 be blamed, it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made where the interests of justice require.’ It is the law that an order for retrial will not be given so as to avail an opportunity to the prosecution to fill in gaps. This was the stated also in Peter Kongori Maliwa & Others vs Republic, Criminal Appeal No.252 of 2020 [2023] TZCA 17350 (14 June 2023; TanzLII) and Salumu s/o Andrew Kamande vs Republic, Criminal Appeal No. 513 of 2020 [2023] TZCA 133 (22 March 2023; TanzLII)]. I have considered the prosecution evidence and found lacking some important distinctive features of the subject matter of the charge, elephant tusks (exhibit P1). Despite PW1 and PW2 being park rangers they gave no details, explanation and distinctive features of the items 11 recovered from the appellant apart from giving generalized evidence that it was elephant tusks. Similarly, PW4 who conducted trophy valuation and filled trophy valuation certificate, exhibit P3 gave sweeping statement that; ‘I was given two elephant tusks which was kept in the sarufeti with green colour, your honour, I identified the tusks to be elephant after seeing all features supposed to be in the elephant tusk, therefore I filled evaluation form.’ In his evidence PW4 did not mention any distinctive features of elephant tusks which differentiates from other domestic animal, he just jumped to the conclusion it was elephant tusks. Faced with akin scenario, in the case of William Maganga @ Charles vs Republic, Criminal Appeal No. 104 of 2020 [2023] TZCA 17742 (6 October 2023; TanzLII) the court having considered evidence of the officer who conducted trophy valuation observed that; ‘With respect, the above linear statement does not demonstrate any kind of expertise that PW5 had, in identification of animal species or their body parts. He does not say why did he conclude that the items were elephant tusks and not any horn or tooth of any other animal. The point we want to clarify ourselves about is that, not every person can identify and differentiate animals or animal parts particularly wild 12 animals. In this case we expected some animal science in the evidence of PW5, at least to mention a feature or two, that are peculiar to elephant tusks and which are not available in any other animal species.’ [Emphasis supplied]. The court then held; ‘That is the precise point we are making in this case. A generalized statement is not acceptable, because anybody can make such a sweeping statement. In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly filled in Trophy Valuation Certificate, which is a standard form document created under the Wildlife Conservation (Valuation of Trophies) Regulations 2012, (Government Notice No. 207 of 2012). Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert detailing the distinctive features of a given animal. Such oral explanation or description may be based on animal science or the witness's experience in wildlife conservation and management…’ [emphasize supplied]. In another case of Justine Bruno @ Mkandamambwe vs The Director of Public Prosecutions, Criminal Appeal No. 323 of 2018 [2021] TZCA 490 (17 September 2021; TanzLII) the court stated; 13 ‘.... Whilst he was able to identify the 4 elephant tusks and that the 4 tusks were equal to two elephants and gave the value of the tusks to be Tzs. 60,000,000/= he could not give an in-depth explanation and expertise as to how he was able to tell that those were elephant's tusks and not any other animal horns.’ The above law applies to this appeal, PW1 and PW2 were resolute that the items recovered from the appellant was elephant tusks, but did give their expertise in the identification of animal species and any distinctive features of those items as opposed to other animals. Similarly, PW4 who conducted trophy valuation did not give his expertise in the field and mention the distinctive feature of elephant tusks. With this shortcoming, retrial cannot be considered as the prosecution may get the opportunity to fill those gaps. Since the discussed point of law is sufficient to dispose of the appeal, as stated earlier dwelling on other grounds of appeal will only amount to a wasted effort. Consequently, I allow the appeal and nullify the proceedings, quash the conviction and set aside the sentence that was imposed on the 14 appellant. I further direct that the appellant be released from prison custody unless he is held there for some other lawful cause. V.M. NONGWA JUDGE 17/2/2025 Dated and Delivered at Mbeya this 17th Day February 2025 in presence of Mr. Dominic Mushi, Ms. Atuganile Kaponda and Mr. Denis Lazaro – State Attorneys for the Respondent and Mr. Evance Rwekaza advocate for the Appellant. V.M. NONGWA JUDGE 15