CRIMINAL APPEAL NO 419 OF 2021 WARIOBA MBIRO WARIOBA 2 OTHERS V REPUBLIC 1

IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA (CORAM: SEHEL. J. A., KAIRO. J.A And KHAMIS, J.A.) CRIMINAL APPEAL NO. 419 OF 2021 WARIOBA s/o MBIRO @ WARIOBA............................. 1st a p p e l l a n t GORIGO s/o AMOS @ KERAO ..................................... 2nd APPELLANT MAKEGO s/o MATHIAS @ MTANGERA......................... ..3rd APPELANT

VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Musoma) (Galeba, J.) dated the 6th day of December, 2019 in Consolidated Criminal Appeals No. 113, 114 and 115 of 2019

JUDGMENT OF THE COURT 18th & 24th February, 2025 SEHEL, 3.A.: The appellants were jointly and together charged before the District Court of Serengeti at Mugumu (the trial court) with three counts. The first count was unlawful entry into the Game Reserve contrary to section 15 (1) and (2) of the Wildlife Conservation Act (the WCA). It was particularized that, on 16th November, 2018 at Mto wa Mbu area in Grument Game Reserve within Serengeti District in Mara Region, the appellants entered into the Game Reserve without a permit of the Director thereof previously sought and obtained. The second count was unlawful possession of weapon contrary to section 17 (1) and (2) of the WCA read together with paragraph 14 (c) of the First Schedule to, of the Economic and Organized Crime Control Act (EOCCA). It was alleged that, on the same date and place, the appellants were found in unlawful possession of weapons to wit; one panga, one spear, three knives and nine animal trapping wires without permit and failed to satisfy to the authorized officer that the said weapons were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. In the third count the appellants were charged for unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the WCA read together with paragraph 14 of the First Schedule to, of the EOCCA. The

particulars of offence alleged that, on the same date and place, the appellants were found in unlawful possession of Government trophy to wit; one fresh head of wildebeest, one fresh tail of wildebeest, one rib of wildebeest, two fresh fore limbs of wildebeest and one flesh hind limb of wildebeest, all valued at T7S. 1,430,000.00, the properties of the United Republic of Tanzania. At this juncture, we find it prudent to state that the second and third counts were economic offences. The appellants pleaded not guilty to the charges. Consequently, a full trial ensued. At the trial, the prosecution relied on four witnesses, namely; Kabichi Suma (PW1), Wilbroad Vicent (PW2), Dilei Kasenge (PW3) and a police officer, F. 5834, Detective Corporal James (PW4). In addition, physical evidence mentioned in the charge sheet was tendered and collectively admitted in evidence as exhibit PI, and two documentary evidence, namely; a trophy valuation certificate and an inventory form were tendered and admitted in evidence as exhibits P2 and P3 respectively. Essentially, the prosecution evidence was such that; on 16th November, 2018 at 10:40 hours, PW1 and PW3, a game scout and a game warden respectively, were on patrol within the Ikongoro Grument Game Reserve Area. While on patrol, they saw footsteps of human beings. They followed the lead and found the appellants in 3 possession of a knife, a

bush knife, a leg of a giraffe, warthog meat and 50 wires snares for trapping animals. They asked them if they had any permit for entering in the National Park and hunt, they replied that they did not have it. PW1 and PW3 seized the weapons, arrested the appellants and sent them to Mugumu Police Station. On the next day, PW4 was assigned the case for further investigation. In the process of investigating, he summoned PW2, a wildlife warden and an expert in identifying and valuing government trophies to come at the Police Station and identify the suspected Government trophy. PW2 examined them by their colour, features and shape and concluded to be of a wildebeest worth USD 650 equals to T7S. 1,436,000.00. In their defence, the appellants strongly denied any involvement in the commission of the alleged offences. The 1st appellant said that, on the fateful day, he went to the river to wash his clothes and bath. Three game scouts arrived while he was washing his clothes and started arguing with him. Shortly, the 2nd appellant appeared and they were both arrested and taken to Mugumu Police Station. The 2nd appellant testified that, on 16th November, 2018, he went to his farm. While there, he heard an alarm and responded to it. He went and found game scouts who arrested him and then transported to Mugumu Police Station. The 3rd appellant said that, on the fateful day he went to find

traditional medicine near the game reserve where he was arrested there and taken to Mugumu Police Station. At the end of the trial, the trial court found PW1, PW2, PW3 and PW4 established beyond reasonable doubt that the appellants were in the game reserve area without a permit, and that, they were in unlawful possession of a Government trophy and traditional weapons. Accordingly, the appellants were convicted in all three counts and each sentenced to pay a fine of T7S. 100,000.00 or serve twelve months imprisonment in default in respect to the first count; pay a fine of TZS. 50,000.00 or serve six months imprisonment in default in respect of the second count and serve twenty years imprisonment for the third count. It was further ordered that, in case of default to pay the fines, the terms of imprisonment were to run concurrently. Aggrieved, each appellant filed a notice of appeal before the High Court of Tanzania at Musoma (the first appellate court) that gave 5 rise to three separate appeals, namely; Criminal Appeal No. 113 of 2019; Criminal Appeal No. 114 of 2019 and Criminal Appeal No. 115 of 2019. The first appellate court consolidated the appeals as one, to wit, Criminal Appeals No. 113, 114 and 115 of 2019 and, after hearing it, dismissed it. The appellants have now come to this Court armed with five grounds of appeal. However, for a reason soon to unfold, we shall not

reproduce the grounds of appeal. At the hearing of the appeal, the appellants appeared remotely through a video link conference from Musoma Central Prison at Musoma. On the other hand, Ms. Grace Michael Madikenya, learned Senior State Attorney, assisted by Ms. Beatrice Timothy Mgumba, learned State Attorney, appeared before the Court for the respondent Republic. When the appellants were invited to argue the appeal, they preferred to adopt the grounds of appeal and let the respondent to begin the address while reserving the right to make a rejoinder, if need would arise. On her part, Ms. Mgumba supported the appeal on grounds other than the ones raised by the appellants. She submitted that, the proceedings of the trial court were marred with procedural irregularities that vitiated the entire trial proceedings. Elaborating on it, she pointed out that, the consent for prosecution of economic offences against the appellants appearing at page 8 of the record of appeal indicated that, it was issued under section 26 (1) of EOCCA and signed by the Senior State Attorney In-Charge. She contended that section 26 (1) of the EOCCA vests powers to the Director of the Public Prosecutions (the DPP) to issue consent and not to the Senior State Attorney In-Charge. She added that, the proper provision conferring powers to the State Attorney In-Charge is section 26 (2) of the EOCCA. She further

argued that, the charging provisions cited in the consent and in the certificate conferring jurisdiction on subordinate court differed with the charge sheet. She pointed out that both the consent and certificate expressed that the appellant contravened the provisions of paragraph 14 of the First Schedule to, of the EOCCA and section 15 (1) (2) of the WCA which is not the case. She added that, 7 according to the charge sheet, the appellant was alleged to have contravened the provisions of sections 17 (1) (2) of the WCA read together with paragraph 14 of the First Schedule to, of the EOCCA and section 86 (1) (2) (c) (iii) of the WCA read together with Paragraph 14 (d) of the First Schedule to, of the EOCCA. As such, she said, the offences which the appellants were charged with were neither consented to by the DPP nor authorized by the DPP to be tried by the subordinate court. She relied on the case of Peter Kongori Maliwa & 4 Others v. The Republic (Criminal Appeal No. 253 of 2020) [2023] TZCA 17350 (14th June 2023; TANZLII) to fortify her submission. In that regard, she urged us to declare the proceedings of the trial court and of the first appellate court a nullity in terms of our revisional powers enshrined under section 4 (2) of the Appellate Jurisdiction Act (the AJA) and to quash the conviction and set aside the sentences and orders issued thereof. On the way forward, she

argued that, usually the Court would have ordered a retrial but she suggested that on account of the anomalies in the case that approach is not preferred because the 8 prosecution will have an opportunity to fill in the gaps to the appellant's prejudice. She pointed out that the inventory form, exhibit P3 was prepared in absence of the appellants. Relying on the case of Buluka Leken Ole Ndidai & Another v. The Republic (Criminal Appeal No. 459 of 2020) [2023] TZCA 116 (21st April 2024; TANZLII), she argued that, the inventory is required to indicate that the suspects were present; were they asked for any comment, remark or objection as regards the exhibit which was sought to be disposed of; if no comment, remark or objection is made, it shall be indicated in the record and if the suspect makes any comment, remarks or objection it should also be indicated. She argued that, in the present appeal, since exhibit P3 did not comply with the law, it should be expunged from the record of appeal. She added that, in absence of the inventory form, which stands in the place of the destroyed exhibits, there is no evidence left to connect the appellants with the charged offences. It was her view that, where the inventory for disposal of exhibits was prepared in absence of the appellants, it would be improper to order a retrial because it would give a chance to the prosecution to fill in the 9 gaps and thus occasioning a miscarriage of justice to the appellants. To fortify her submission, she cited to us the case of Fatehali Manji v. The Republic [1966] E.A.

343. In rejoinder, the appellants simply prayed to be released from prison. From the submission made by Ms. Mgumba, the issue for our determination is whether the consent and certificate issued by the State Attorney In-Charge validly authorized and sanctioned the District Court of Serengeti at Mugumu to try the appellants with economic offences. Generally, section 3 (1), (3) (a) and (b) of the EOCCA confers jurisdiction to hear and determine cases involving corruption and economic offences to the High Court. Nevertheless, in terms of section 12 (3) of the EOCCA, the Director of Public Prosecutions (the DPP) or any officer authorised by him may issue a certificate directing such cases to be tried by a subordinate. Furthermore, in terms of section 26 (1) and (2), a consent to prosecute must be given before any trial involving an economic offence can be tried. Section 26 provides: 10 "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." It follows then that, section 26 (1) empowers the DPP to give consent for the prosecution of any accused person facing an economic offence while subsection (2) to section 26, empowers the DPP to delegate his powers of issuance of such consent to any officer. In the instant appeal, the consent appearing at page 8 of the record of appeal was issued by the State Attorney In-Charge under section 26 (1) of the EOCCA while the said section deals with the powers of the DPP. We think that was wrong because the section invoked by the State Attorney In-Charge does not confer him with such powers. We say so because in the case of Peter Kongori Maliwa & 4 Others v. The Republic (supra) we held that the powers to issue a consent under section 26 (1) of the EOCCA is not delegable. In that regard, we find that the State Attorney In-Charge usurped powers which he did not have. The proper provision under situation was section 26 (2) of the EOCCA which confers powers to any officer authorized by the DPP. Another anomaly which is obvious on the consent and the certificate conferring jurisdiction to the subordinate court is the failure to cite the

provisions creating the economic offences. We entirely agree with Ms. Mgumba that sections 17 (1) and (2) of the WCA and sections 86 (1) (2) (c) (iii) of the WCA do not feature anywhere in the consent and the certificate. This means that, the economic offences which the appellants stood charged with were not consented to by the DPP and the trial court was not conferred with the jurisdiction to try the same. Therefore, we are inclined to go along with Ms. Mgumba's submission that in the absence of the valid consent and certificate to commence proceedings against the appellants involving economic offences, the trial court lacked the requisite jurisdiction to try the case. For that reason, we declare the proceedings of the trial court and the first appellate court a nullity. In the event, we invoke the Court's revisional powers under section 4 (2) of the AJA and nullify all the proceedings in the two courts below, quash the conviction and set aside the sentences and orders made therein. As to whether the appellants be subjected to re-trial or not, we are of the firmed view, as it was submitted by Ms. Mgumba, the circumstances of this case, a retrial cannot be ordered. This is because a retrial order will allow the respondent Republic to fill in the gaps pointed out to us by the learned State Attorney. All said, we order for the immediate release of the appellants, namely; Warioba s/o Mbiro @ Warioba, Gorigo s/o Amos @ 13 Kerao and Makego s/o Mathias @ Mtangera from custody unless otherwise held for other lawful reasons. We further make an order that the imposed fine be refunded to the appellants, if paid. DATED at MUSOMA this 22nd day of February, 2025. B. M. A. SEHEL

JUSTICE OF APPEAL L. G. KAIRO

JUSTICE OF APPEAL A. S. KHAMIS

JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in the presence of the 1st, 2nd and 3rd appellants in person via virtual Court from Musoma Prison and Mr. Jonas Kivuyo, learned State Attorney for the Republic/respondent; is hereby certified as a true copy of the original.