20190429 TZHC Mwanza2 1

IN. THE HIGH COUR:T OF TANZANIA 1N THE DISTRICT REGISTRY ATMWANZA $\ . HC. CRIMINAL APPEAL NO. 278 OF 2018 l , /, (Original economic case No. 26 of2016 ,Serengeti District Court.) \ ,1 ... \V1~BURA S/0 CHACHA@ MAKANG'A } . · :,). PIUS S/0 CHACHA@ i½NGE . ......................................APPELLANTS Versus · THE REPUBLIC .................................................. ;: ........................ ;.......... RESPONDENT JUDGMENT 01/04/2019 & 29/4/2019 G. J. Mdemu, J; This is an appeal from Economic case No: 26 of 2016 in the District Court of Serengeti in which the two Appellants . . got convicted as charged for the offences of . unlawful entry into the National Park contrary to section 21(1) (a) and (2) and 29 (1), unlawful possessions of weapons in the National Park contrary to section 24(1) (b) and (2) all of the National Parks Act, Cap. 282 as amended by Act. No 11 of 2003 and unlawfol possession of government trophies contrary to the provisions of section 86(1) and (2) (c) (i) (iif of the Wildlife Conservation Act, Cap. 283 read together with paragraph 14( d) of the First Schedule t.o and sections 5 7 (l) and 60 of the Economic and organized Crime Control Act, Cap. 200. ' In the particulars of the offence to the charge it is sated that; on the 11 th day of June, 2016 at Magadi area within Serengeti National Park, the two Appellants were found in the National Park while possessing2 bows, 4 arrows, 2 knives, three animal trapping wires and 7 pie.ces of dried i.mpala valued at tshs. 877,500/;= without permit. Though denied ·the charge, the Court found them guilty as charged and upon conviction, were sentenced to one year imprisonment for the first count, two years \ 1 ,. prison term for the second count and twenty (20) years prison term for the third : . . I . count. Thi.5'.~as ono1e 2 3'' ofF ebruary, 2017 -1 1 . On the 29 th of October, 2018, the two appellants file.cl a petition of appeal containing fiv~ grounds of appeal as follows:- \. . . 1. That, search and seizure of the alleged prosecutions exhibits was 1 1 I ' convict the appellants in as erroneous relied by the trial Court to . ~ . much as the prosecution . failed to issJe i an offici~l receipt evidencing· such seizer, so a violation to th~ law. · \ . 1 2. That, the trial Court erred in law and facts to rely on PW3 and exhibit "P3" so far as PW3 was inc_ompetent witness/not exper~ in that his evidence was not authentic and unsafe 'lo base a verdict. · . \ 3. That, the trial Court had erred in law to convict the child of a tender . ! age i.e 16 years old (WAMBURA S/0 :cHACHA @ MAKANG'S) so a l . violation to the child.Act. 4. That, the case under appeal was poorly investigated as 6. trivial, so r much as no investigator ever testifie'd more so the independent corroboration is wanting. \ _ . 5. That, the prosecutwn case wasn.cTt provef beyond reasonable doubts. .The appeal came for hearing on the 1st of April, 2019.. The two Appellants j appeared in person whereas the Respondent was represented by Ms. Maryasinta l· . Lazaro, learned State Attorney. \ . . Ms. Maryasinta Lazaro, at the hearing, info_rmed the Court on the following; One, the proceedings are incomplete as the record of all witnesses during trial is missing. Two, that th~ charge in the· third count 01! unlawful, possession of . I government trophies was preferred under wrong provisions as the proper section was section 86 (1) {2) ( e) (iii) of the Wildlife Conservation Act, Cap. 283. Three, the 2 ~ l ' . . '"··------ -·---------· consent of th~ OPP ai1d certificate of transfer do not indi'cate V1rhich offence was subject to con~ent and certificate respectively. ,In this,_ it was. her observation that ( the Court lacked jurisdiction. \ .i Having pointed those irregularities in the conduct of the trial of the two . . . Appellants, . the Ieari1ed . State Attorney did not. sub_mit father on the grounds of appeal due to incomplete record. She however urged me to order aretrial. When given an opportunity to comment_; on the submission of the learned State Attorney, the First Appellant submitted that,there is no any basis for retrial o'n what happened as he testified in Court. The second Appellarit made ai1 observation that the available record be considered by thi$ court and determine the appeal forthwith. On this, Ms. Maryasinta Lazaro briefly submitted that, defective charge, lack of consent of the Director of Public Prosecutions and certificate of transfer are legal requirement which cannot ~e lightly ignored. As ·there is no record of ' witnesses, there is nothing to consider in lookin&" as to what went wrong in the trial Court's judgment. I have heard the parties, and upon perusal to the record· both typed and hand 1 written, as Ms. Maryasinta did, I also noted that the record is incomplete. I think I . should a little bit write something regarding the record. On 14 th of June, 2016 the charge against the two Appellant~ got admitted in Court and the same day they were aligned in 'the District Court of Serengeti in economic case No. 26 of 2016. As there was no consent and certificate from Director of Public Prosecutions, the two Appellants never pleaded to the charge. From there, usual Court processes followed and on 21s t of June, 2016 the proceedings of the trial court records as here under:- "DATE: 21/06/2016 CORAM: I. E. NGAILE - DRM PROS: ZUMBA ACC: PRESENT . . B/C: ANNA SAMWEL - RMA PP: Investigation is incomplete, we make clear to Court, the Pius Chachci @ Range his other name is Nyamhanga Kimoge and Wam'bura Chacha @ Makange, his name is Wambura Kinuri. They decided to change the name because they were wanted for shooting a park ranger with an arrow one Antony Mwisemi on 29 th day of December, 2015, the Park Ranger of. Serengeti National Park and their case at police is MUG/IR/4206/2015 and while being traced one people militia one Chacha Marwa Ngoena, they did cut him with 'panga' and case opened at Machochwe MCC/R/79/2016, they committed the offence on 12 th day of March, 2016 and ran into the forests. The said Chacha Marwa Ngoena is now attendance; we therefore pray that, the accused person not be considered on bail (the victim Chacha Marwa shown to the Court the wounds). Therefore the accused person committed to---" From the above record, it appears to miss something. There is no relationship between that quoted above record and an immediate ruling of a case to answer just typed below in that page three of the proceedings with different dates as hereunder:- "I find that the prima facie case is well founded warranting the accused person her~ to bring their defence pursuant .Co section. 231 _of the Criminal Procedure Act Cap. 20 R.E. 2002. It is so found." SDG: I.E. NGA/LE - DRM 09/01/2017 From the ruling, there cannot be a ruling of a case to answer without consideration of the prosecution case which, in this case is missing. It was however 4 -~, I =- . -·------ 1 ------ •• ordered the defence hearing to com~nence- on 10 th day of January, 2017. On that date, the Appellants did not appear and an or.derJor warrant of arrest was issued. It \,_ came to the knowledge of the Court on 26 th day of January, 2017 that, the Appellants are at large and· the Court therefore set to pronounce judgment on 23 rd day of ~e~ruary, 2017. From that, history, it is obvious that, the record of prosecution witnesses is missing. As to the defence, unlike what the first Appellant sJated that, he testified, . i the defence case do not miss in the record as the Appellants absconded bail. The learned State Attorney did not comment on this as she had a general observation that, the record is missing for both prosecution and defence cases. Reverting· to the retrial issue, I agree with learned State Attorney that following lack of consent from the DPP and certified of transfer, the Court was not vested with jurisdiction to try the Appellants in the second count of unlawful possession of government trophies. It is trite law, and I must admit, that ordering . . retrials on issues of jurisdiction is a subject which is rich in our jurisprudence. Of interest perhaps is the holding in the case of Adam Seleman Nyalamoto Vs. R, criminal appeal No. 196 of 2016 {unreported) in its ruling dated 1st of February and 1st of March, 2016 stated at pages 10 - 11 that;- ' "There are many decisions on the question of what appropriate case would attract an order for retrial, but on the main, the principle that has been accepted to Court, is that each case must depend on the particular facts and circumstances of that case. An order for retrial should only be 11 made where interest ofjustice require it. The question which we have to ask ourselves in the present appeal, is what facts or circumstances of public interest wil'l attract a retrial? Ms. Maryasinta in her submissi_ons observed irregularities in the charge, consent of the OPP and certificate of transfer. In this, the charge is also framed on wrong provisions of the law. The 5 f. j I . . consent and· c.ertificat~ did not go to those wron.~ provisions but ra~her is on the I provisions whi_ch are nowhere recorded in the (h~rge. Accordfog to the charge ( whidi Ms. Maryasinta stated to be bad in law, the Appell~nts were charged under ,_ . . . . I . . the provision~ of section 86 (1) and (2) ( c) (i) (ii) of the wildlife Conservation Act, No. 5 of 2009 rec,¾d _together with ·paragraph 14j ( d) of the First schedule to -and · sections 57 (1) and 60(2) of the Economic and Organized Crime Coritrol Act, Cap . . 1 200. The consent and certificate signed by the P;rincipal State Attorney In-charge . issu~d under section 26 (1) and 12 (3) all of Cap'. 200 and GN No. 284 of 2014 for I consent and certificate respectively stated that, the Appellants contravened . .I paragraph 14. (c) and ( d) of the First Schedule to Cap. 200. I There are two problems in this. One, is thJt what consent and certificate got issued for is not in the alleged defective charge. Two, that the parent Act, that is, the I Wildlife Conservation Act is not mentioned at all in the certificate and consent. In I . my view, the Economic and Organized Crime Cont:rol Act, Cap. 200 as amended from I time to time just make certain offences economit. It cannot be read in isolation or . . . I operate_in silos of other Acts of Parliament that createq. substantive offences. In the long title to the Act, Cap. 200 the following are contained:- . . I ':4.n Act to make better provision for the! control and eradication of • I certain crime . and culpable non-crimina'! misconduct through the . ( . prescription of modified investigation and trial procedures, and new . I penal prohibitions, the provisions of enhanced sanctions and new '< remedies and for related matter~." _j I As per the long title, the aim of the Act isI to control and eradicate certain . I crimes by introducing in investigations and trials Imodified procedures and enhance sanctions. This presupposes that, there is an Act of Parliament which has made I • . . . certain acts and conducts crimes. That means, a consent and certificate of transfer, I as this one, which do not incorporate the parent !Act that created the offence which I 6 ,. • < • in turn, in terms of Cap._ 200 came to be an economic offence, cannot be-accepted. In < fact it is bad drafting of consent and certificate of transfer by ~ht; respective ( Authority. '· Ms. Maryasinta emphasis to retrial is · mostly on the missing part of proceedings. I think she is right in the _sense that, much as the issue of jurisdiction overrides, she is unable to make comment on the defective charge and weight. of evidence. However, I ·have taken a step further on the principles stated in the cas.e of Adam Seleman Ngalamoto V.R (supra) to see how far and to what extent can assist in resolving the controversy. They are two; ·one, ~s to order retrial where inte_rest of justice permits and two particulars or certain peculiar facts should lead to that. in fact, this latter is .what is considered in the .so called interest of justice. In that case (Ngalamoto), a retrial was ordered. What however is in the interest of justice has not been stated. In my view as,.in Ngalamoto's case the value of the trophy (elephant tusks) was Tshs. 24i936,750/= and given the efforts deployed by the state to protect that specie, on~ would think that the value of the trophies is what moved the Court to order a retrial. In another case of HSU ,Chin Tai and Zhao Hanquing V.R, criminal appeal No. 250 of 2012 ( unr.eported) whe:re Chinese Nationals go~ ·involved in unlawful deep sea fishing, causing pollution and degradation to environment, the Court ' hesitated to order retrial but left the matter at the dis·cretion of the Director of Public Prosecutions. I have pointed this two cases to indicate that ordering a retrial guided by principles of interest of justices might not be an easy task. In the present appeal, the Appellants in that economic offence, the value of the government trophy according to the charge in the second count is Tshs. 877,500/=. The charge in that count was wrongly framed. With the value of the property and the duration of the prison term served by the Appellants from 23rd day . ' of February, 2017 to date, I do not think if is in the interest of justic,e to order retrial. 7 l • I In the upshot, I hereby nullify proceedings land judgment of the trial Court . f . I _·and for reasons stated above, I order release of the ppellant from prisons forthwith uniess lawful held for some other reasons. It is so ordered. · ! . I order accordingly. i .,j I i I I I ,,: ;a,' G. J. Mdemu I I ri, Judge ·Ii I ~ 29/4/2019· I I !', I 1 I' .. I I I .. Dated at MWANZA this 29 th day of April, 2019. ! 8