william pius vs the republic 2024 tzhc 1 4 january 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CRIMINAL APPEAL NO. 30 OF 2021 (Originating from Economic Case No. 6 of 2018 from Mpario^District Court) WILLIAM PIUS .......................^t.??^........^APPELLANT ' w "W.. w VERSUS 1 THE REPUBLIC , RESPONDENT

JUDGMENT % % < 2SY December, 2023 & 04 Janiiar/, 2024,. MRISHA, J. In the Disti'ict^CourtW Mpanda, the appellant was arraigned for unlawful possession of Government trophies contrary to section 86(1) and (2)(c)(ii) of the Wildlife.Cppservation Act No. 5 of 2009 (the WCA) as well as section 57(1) and section 60(2) and paragraph 14 of the first Schedule to the Economic and Organized Crime Control Act, [CAP 200 R.E. 2002] (the EOCCA) as amended by sections 16(b) and 13(b) of the Written Laws (Miscellaneous Amendments) (No.

3) Act of 2016. i The particulars of the charge sheet were that on 26th January, 2018 on or about 4:00 hours at Sango Village within Tanganyika District in Katavi region, the appellant was found in possession of government trophies to wit; four (4) pieces of elephant tusks valued at USD 15,000 equivalent to Tshs 32,050,000/=, the property of the United Republic of Tanzania. The |full trial/The prosecution paraded four (4) prosecution witnesses^© profits case, Online other side, the appellant was the only witnessun the defence/case. After a full trial, the appellantws found guilty, convicted and sentenced to serve a term of twenty 020) yearsin prison. The appellant is dissatisfied Wk 'w with both conviction and,,sentence. He has therefore, preferred the present appeal beforetthis court which is predicted into six (6) grounds in the petitignfof^ppealrtHpwevei^gn account of reasons to be apparent in due course^shall not^prbduce the said grounds of appeal. At the hearing of the instantyappealy the appellant appeared in person, unrepresented whereas the Respondent Republic had the service of Ms. Maula Tweve, learned State Attorney. As matter of practice, the appellant started throw the ball’by adopting his grounds of appeal as stipulated in his petition of appeal in order to form 2 part of his submission in chief. Further, he prayed to this court to consider those grounds of appeal,

allow his appeal and set him free. Responding to the appeal, Ms. Maula Tweve supported the appeal and argued that the certificate conferring jurisdiction to the subordinate court to try the offence the accused person stood charged'&pre it together with the consent issued by the State Attorney in "charge, lack|the charging section. In her submission, she referred section 3(3) piftheTOCCA which confers jurisdiction the High Court wiffigurisdictibn toTear and determine cases involving economic offences; twhereby the DPP or State Attorney in charge may transfer the case by .issuing rthe certificate and consent to the subordinate court to hear and;determine^he economic case. The learned StatedMttorneyhalso submitted that the certificate which confengurisdictioin ®the subordinate court and consent that was issued to the said, subordinate court, lack the charging section and for those JI circumstances^l^aFirregularity makes all proceedings of the trial court to become nullity. To supports her stance, she cited the case of Mauli Ismail Ndombe v Republic, Criminal Appeal No. 319 of 2019 CAT and Salum Andrea Kawande v Republic, Criminal Appeal No. 513 of 2020 CAT (both unreported). 3 Finally, she argued that the defect which she has pointed out on the certificate which confer jurisdiction to the subordinate court as well as the consent thereto, goes to the root of the case. Hence, she

implored this court to quash both the conviction and sentence and order a retrial of the accused person because prosecution side has enoughysvidence to ground convict upon the appellant. ft.. lb- In reply, the appellant being a lay personBhadnothing tgSd^yl^prayed to this court to consider the time he hadlpentiriprison'remand which is six w % years since he was convicted;^ W W IK WS'- 'Wk Having heard the submissions of both sides, and read the cases referred therein, I subscribe to the submissionsfof the learned State Attorney for 'Mils, the respondenBRepubKc lacking of charging section in the certificate and consent of State. Attorney imcharge the trial court was not conferred with tt. 'W jurisdiction to conduct the trial against the appellant, makes the whole lb, ft proceed! ng s'ofrthgsu bo rd inate court/the trial court to be a nullity. The root of her argument is that the trial was nullity on account of the defectiveness of the certificate and consent, thus the trial court was not vested with requisite jurisdiction. 4 I have thoroughly read the trial court records and considered the learned State Attorney submissions. The issue for determination is whether the trial court was properly clothed with the requisite jurisdiction to hear and determine the Case against the appellant. As stated earlier, the appellant was charged with the offence with unlawful possession of the

government section 60(2) of the EOCCA. According to the provisions oCsection3 oFthe EOCCA, it is the High Court which is vested with jurisdiction to try economic' offences. The said section provides as follows: - ,g| "3(1) th&jurisdiction mtear and determine cases involving economic Wr hereby vested in the High Court." '9&- ’Wk It is important to note that, the economic offences cannot be commenced without obtairiing'fhe consent of the DPP as required under section 26(1) of the EOCCA which provides that: 5 "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" The appellant was charged with an economic offence under section 57(1) of the EOCCA, which as a matter of practice and procedure, had to be said court to prosecute tne^appeiiant^as cqargea. Tn tne present case, as earlier stated, the certificate which^wasassued by the State Attorned In charge under sectioriW(2)lbf the EOCCA, is reflected in the trial court "CERTIFICATECONFERRING JURISDICTION ONA SUBORDINATE ^OURT TO TRYECONOMOC CRIMES CASE 4 ACNILES PAUL MULISA Senior State Attorney in charge of Katavi Region, do hereby, in terms of section 12(3) of the Economic and Organized Crimes Control Act [Cap 200 R.E. 2002] read together with Government Notice No. 284 of 2014 ORDER that WILLIAM S/O PIUS who

is charged for contravening the provisions of Paragraph 14 of the First Schedule there to, read together with 6 sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2002] as amended by section 16(b) and 13(b) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 BE TRIED by RESIDENT MAGISTRATE COURT OF KATA VI REGION. Dated atMpanda this 12& day of02, 2018. Sgd 1 Achlles Pau! Mulisa appellant stated that ^taw^pgibn^ do^hergby, 26(2) of the Economic and Organizes Crime Control Act,A[Cap 200 R.E. 2002] and Government Notice No. 2&Lpf 201^ONSENT to the prosecution of WILLIAM S/O PIUS for contravening the provisions of Paragraph 14 of the First Schedule there to read together with sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2002] both as amended by sections 16(b) and 13(b) The Written Laws (Miscellaneous Amendments) Act No, 3 of 2016 the particulars of which are stated in the charge sheet. 7 Dated at Mpanda this l^1 day of02, 2018 Sgd Achiles Paul Mulisa SENIOR STATE A TTORNEY" In the present case, the appellant was charged with, the offence of unlawful possession of government troph^^^ptrary^ito^section 86(l),(2)(cXii) of the WCA read together With parag^^^fc^of the First Schedule to the said Act, andfsectiorr^7ifiXJnd section 60(2) of the EOCCA, where the chargingOction 86(l) and.(2)(c)(iii)

of the WCA which Bf '. is clearly shown in lhe charge-sheet containing economic offences the % W W % w appellant charged with, was notindicated in the certificate which conferred jurisdiction to the triaftourt, and in the consent. In th&ircumstances^t,is my finding that the appellant was charged with an offeree, tried and convicted by the subordinate court without it being w.; jf ' ' fully clothed with -jurisdiction to try the appellant with the offence charged. There numerous decisions of the Court of Appeal on the same aspect where the Court of Appeal nullified the proceedings of the trial court where the certificate and consent is defective. See the cases of Whole Saguda 8 Nyamangu v Republic, Criminal Appeal No. 334 of 2016; Mauli Ismail Ndombe v Republic (supra), Adam Seleman Njalamoto v Republic, Criminal Appeal No. 196 of 2016 and Manganzo Zelamoshi @Nyanzomola v Republic, Criminal Appeal No. 233 of 2016. In the latter case, the Court of Appeal stated, Inter alia: "Without the requisite consent and certificate^pfthe learned DPP, the entire proceedings of the trial couitspere aipuilit^yst^were the Zf proceedings of the High Court^which then had ho iegs to stand on Since, the certificate and consentissuectbyState Attaney in charge do not have an insertion of the charging section 86(1) and (2)(c)(iii) of the WCA ' ®. A '% ’X;? which is clearly shown, in the charge sheet

containing economic offence the appellant charged with, if us hiy'settled'view that the said certificate and quash the conviction entered by the trial court and set aside the sentence passed thereto?® I equally agree with the submission of the learned state Attorney that the remedy is to order retrial of the appellants case before another Magistrate with competent jurisdiction. I further order that should the case end with a 9 conviction, then in the course of assessing and imposing sentence, the assigned trial magistrate should consider the period which the appellant has spent in prison custody. Meanwhile, the appellant should remain in custody to wait for the reopening of the trial subject to the above directions. It is accordingly so ordered. 04.01 DATED at jA this 04 )day January, 2024. ::±zha

JUDGE 04.01.2024 10