YAKOBO DANIEL JDGMNR

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI. J.A.. MAIGE, J.A. And RUMANYIKA, J.A.) CRIMINAL APPEAL NO. 112 OF 2021 YACOBO DANIEL @ SIONG'O.................................................APPELLANT VERSUS THE REPUBLIC..................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Gaieba, J1 Dated the 15th day of January, 2021 in Criminal Appeal No. 132 of 2020 JUDGMENT OF THE COURT 6th & 11th December, 2024 WAMBALI, J.A.: Yacobo Daniel @ Siong'o together with Makitania Machera @ Lucas (not a party to the appeal) were arraigned before the District Court of Serengeti at Mugumu in Economic Case No. 9 of 2018 where they faced allegations of committing economic and non-economic offences. Particularly, the charge sheet contained four counts. The first and second counts related to unlawful entry and unlawful possession of weapons into the Game Reserve contrary to section 15 (1) and (2) and section 17 (1) and (2) of the Wildlife Conservation Act, Cap 283 (the i WCA), respectively. The allegations in respect of those offences were that, on 6th September, 2018, the appellant and Makitania Machera @ Lucas entered Samisami area into Ikorongo Game Reserve within Serengeti National Park in Serengeti District Mara Region, without the permission of the Director. It was further alleged that they were found in unlawful possession of weapons namely, one panga, two spears and seven animal trapping wires without permit and that; they failed to satisfy the authorised officer that, the respective weapons were not intended to be used for the purpose other than hunting, killing, wounding or capturing of wild animals. The third and fourth counts which concerned unlawful possession of Government trophies were preferred under section 86 (1) and (2) (c) (iii) of the WCA read together with Paragraph 14 of the First Schedule to the Economic and Organized Crimes Control Act, Cap 200 (the EOCCA). We wish to note that, in the third and fourth counts, the prosecution omitted to cite the provisions of sections 57 (1) and 60 (2) of the EOCCA. We will revert to address the anomaly later in this judgment. Nonetheless, the particulars in the third count indicated that, the appellant and another were found in possession of three fresh legs and two fresh ribs meat of wildebeest worth TZS. 1,417,000.00 and one fresh skin of Topi worth TZS. 1,744,000.00 making a total of TZS. 3,161,000.00, the properties of the United Republic of Tanzania. The allegation in the fourth count was to the effect that, on the same date and place, the appellant and Makitania Machera @ Lucas were found in possession of two fresh legs and two fresh ribs meat of Zebra worth TZS. 2,616,000.00, the property of the United Republic of Tanzania. It is noteworthy that Makitania Machera @ Lucas (the second accused) who was charged together with the appellant as intimated above, jumped bail before the trial of the case commenced. Indeed, according to the record of appeal, on 18th November, 2019, the prosecution prayed to withdraw the case against Makitania Machera @ Lucas, in terms of section 98 (a) of the Criminal Procedure Act, Cap 20 (the CPA). An order to that effect was made by the trial court and on the same day, the trial proceeded against the appellant who pleaded not guilty in respect of all four counts. However, it is noted that the charge was not amended to remove the name of Makitania Machera @ Lucas whose case was withdrawn. Despite that fact, the evidence of the prosecution witnesses namely, Hamis Liranga (PW1) and Kabichi Juma (PW2), still maintained that they arrested the appellant and Makitania Machera @ Lucas within the Ikorongo Game Reserve in 3 possession of the alleged weapons and Government trophies on 6th September, 2018 at Samisami area. The Certificate of Seizure and the seized weapons were tendered and admitted as exhibits PEI and PE2, respectively. Wilbroad Vicent (PW3), a Wildlife Warden, evaluated the trophies and at the trial, he tendered a Trophy Valuation Certificate which was admitted as exhibit PE3. Moreover, G. 5834 DC James (PW4), a police officer, who investigated the case testified that, he sent the seized trophies together with the appellant before the Resident Magistrate at the District Court of Serengeti where an order for disposal was issued on 7th September, 2018. An Inventory Form to that effect was tendered and admitted as exhibit PE4. Essentially, the epicentre of the prosecution witnesses' evidence was that the appellant was fully connected with the offence he was charged with. The appellant denied to have committed the offence, and testified that, he was arrested on 6th September, 2018 at about 8:00 AM while he was on the way to his farm. He contended that after the arrest, he was put into the car where he found the meat of which he was later told to have been in possession of. That, thereafter, he was taken to the camp and later to the police station where the case involving the charge was opened. He pleaded not guilty to all four counts when the charges were read over and explained to him at the trial court. The trial court evaluated the evidence of both sides and at the end, it found that the prosecution had managed to prove the case against the appellant beyond reasonable doubt. Consequently, it found the appellant guilty and entered convictions against him in all four counts. Subsequently, it imposed sentences of imprisonment of one year each in respect of the first and second counts, respectively, and twenty years imprisonment, for the third and fourth counts, respectively. It also ordered that the sentences had to run concurrently. The appellant's appeal to the High Court in Criminal Appeal No. 132 of 2020 was dismissed in its entirety. Still discontented, he has lodged the second appeal to this Court. The discontents of the appellant are demonstrated by the memorandum of appeal which contains four grounds. However, before the hearing, it was agreed that the determination of the appeal centred on the point of law with regard to the jurisdiction of the trial court. At the hearing of the appeal, the appellant had no legal representation as he appeared in person, whereas Ms. Mwajabu Tengeneza, learned Principal State Attorney appeared for the respondent Republic. At the inception of the hearing, Ms. Tengeneza informed the Court that, having scrutinized the record of appeal, it was clear that the District Court of Serengeti (the trial court) had no jurisdiction to try the case against the appellant. She explained the reasons for her stand to be the following: one, the consent to prosecute the appellant was issued in terms of subsection (1) instead of subsection (2) of section 26 of the EOCCA. She explained that, the mandate of the Senior State Attorney In charge of Mara Region to issue a consent is premised under subsection (2) and not subsection (1) of section 26 of the EOCCA which is reserved for the Director of Public Prosecutions (the DPP) only. She thus submitted that, the consent was invalid and could not in law be a basis of the authority for the trial of the appellant. Two, though the certificate conferring jurisdiction to the trial court to try both economic and non-economic offences was properly issued under section 12 (4) of the EOCCA, the certificate was defective for omitting to cite the provisions of section 86 (1) and (2), (b), (c) (iii) of the WCA and sections 57 (1) and 60 (2) of the EOCCA, under which the third and fourth counts of unlawful possessions of Government trophies were preferred. She added that, the certificate also made reference to the provisions of sections 21 (1) (a) and (2) and 29 (1) and section 24 (1) (b) and (2) of the National Parks Act, Cap 282 (the NPA) in respect of the first and second counts, respectively, instead of the provisions of section 15 (1) and (2) and section 17 (1) and (2) of the WCA which were cited in the charge sheet. In her submission, the defects in the certificate rendered it invalid to the extent of affecting the jurisdiction of the trial court to try both economic and no-economic offences against the appellant. In the circumstances, Ms. Tengeneza submitted that, the invalidity of the consent and certificate left the trial court with no jurisdiction and therefore, its proceedings and those of the High Court on appeal are a nullity. Relying on the decision of the Court in Peter Kongori Maliwa and 4 Others v. The Republic (Criminal Appeal No. 253 of 2020) [2020] TZCA 15350 (14 June 2023, TANZLII), she beseeched the Court, in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA), to nullify the proceedings of the trial and first appellate courts, quash the convictions and set aside the sentences meted on the appellant. On the other hand, when prompted by the Court, Ms. Tengeneza admitted that, despite the invalid consent and certificate, the charge sheet was also defective because; firstly, in the third and fourth counts, save for citing Paragraph 14 of the First Schedule to the EOCCA, the provisions of sections 57 (1) and 60 (2) of the same Act were not referred as required. Unfortunately, she submitted, no amendment was made to the charge contrary to the requirement of section 234 (1) of the Criminal Procedure Act, Cap 20 (the CPA). Secondly, the charge was also not amended after the case for the second accused had been withdrawn and therefore, the trial proceeded against the appellant while the charges still indicated two persons. In this regard, considering the circumstances of the case, Ms. Tengeneza refrained to press the Court to order a retrial. She stated that, a retrial will certainly occasion injustice to the appellant because according to the evidence on the record, the prosecution did not parade sufficient evidence in support of the first and second counts to demonstrate that the appellant was found within the boundaries of the Ikorongo Game Reserve in possession of the alleged weapons. Moreover, Ms. Tengeneza submitted that the evidence in support of the third and fourth counts is insufficient because the disposal order (exhibit PE4) for the seized trophies was made by the Resident Magistrate in the absence of the appellant. She therefore submitted that, as exhibit PE4 is not legally admissible in evidence, a retrial will be a futile exercise. To buttress her argument, she made reference to the decision of the Court in Buluka Leken Ole Ndindai and Another v. The Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024, TANZLII). In conclusion, Ms. Tengeneza implored the Court to set the appellant at liberty. In response, the appellant graciously supported the submission by the learned Principal State Attorney and beseeched the Court to order his immediate release from prison. We do not need to overemphasize that the consent to prosecute the accused issued under section 26 (1) of the EOCCA by an officer other than the DPP is invalid and cannot therefore be the basis of authorizing prosecution of the accused. In Peter Kongori Maliwa and 4 Others v. The Republic (supra), the Court stated: "In this case, consent was issued by the State Attorney In charge instead o f the DPP. That was a serious irregularity as the power to issue a consent under section 26 (1) o f the EOCCA is not delegable. It is absolutely vested in the DPP himself. As such, the content under discussion having been issued by a person without mandate was incapable of authorising the trial court to try economic offences. " We thus find that, the consent which was issued by the Senior State Attorney In charge of Mara Region to prosecute the appellant is invalid. Moreover, the omission to cite the relevant provisions in the certificate conferring jurisdiction to the trial court as per the charge sheet was highly irregular. In essence, the omission rendered the respective certificate invalid and therefore, the trial court was left with no jurisdiction to try the case against the appellant as pronounced by the Court in Rhobi Marwa Magare and Two Others v. The Republic, Criminal Appeal No. 192 of 2005 (unreported). Indeed, in this case, the defect was hastened by the fact that the certificate conferring jurisdiction to the trial court also cited the provisions of the NPA instead of those of the WCA indicated in the charges. On the other hand, having perused the charge sheet in the record of appeal, we are satisfied that the same was defective. The defects are: one, the provisions of sections 57 (1) and 60 (2) of the EOCCA was not cited in the third and fourth counts. Two, though the case against the second accused who was tried together with the appellant was withdrawn before the trial commenced, no amendment was made to remove his name and to rectify the particulars. Therefore, the trial proceeded as if nothing had happened regarding the fate of the second accused. The omission greatly prejudiced the appellant. It is settled that, defects in the charge can be cured by amendment as long as the accused person is not embarrassed in his defence and to avoid a failure of justice [see Burton Mwapabilege v. The Republic, Criminal Appeal No. 206 of 2009 (unreported)]. In this regard, the trial court has a duty to cause an amendment to the charge at any stage of the trial before it is concluded as provided under section 234 (1) of the CPA. It follows that in this case, failure by the trial court to adhere to the provisions of section 234 (1) of the CPA occasioned injustice on the part of the appellant. We deem it appropriate at this juncture to stress that indicating the proper provisions, the involved person (s) and the nature of the accusation in the charge enable the accused to know what he is likely to face during the trial. In Omary Abdallah @ Bwangwa v. The Republic (Criminal Appeal No. 127 of 2017) [2019] TZCA 529 (5 March 2019, TANZLII), the Court observed: "... a charge sheet or information is an important document which puts in motion a criminal trial before a trial court. The charge or li an information therefore as primary accusatory instrument must plead the prosecution case with sufficient detail and clarity". All in all, having regard to the fact that the trial court lacked jurisdiction to try the case against the appellant for lack of consent and certificate of the DPP, we declare its proceedings and those of the first appellate court a nullity. Regarding the fate of the case against the appellant, we entirely agree with Ms. Tengeneza that, a retrial will not be in the interest of justice. We hold this view because; firstly, the factual setting in the record of appeal leaves no doubt that the allegations in the first and second counts concerning unlawful entry and unlawful possession of weapons into the Ikorongo Game Reserve were not substantiated. In Willy Kitinyi @ Marwa v. The Republic (Criminal Appeal No. 511 of 2019 [2021] TZCA 608 (25 October 2021, TANZLII), the Court reiterated its stand that, to succeed in the offence of unlawful entry, the prosecution must sufficiently establish that the accused was found within the boundaries of the game reserve and that; for the offence of unlawful possession of weapons, the evidence must show that the accused was found in possession of the alleged weapons within the said boundaries. More particularly, in an akin situation, in Mosi s/o Chacha @ Iranga and Another v. The Republic (Criminal Appeal No. 508 of 2019) [2021] TZCA 607 (21 October 2021, TANZLII), the Court stated thus: "For an offence o f illegal entry to stand' the evidence must prove that the game scouts arrested the appellants strictly within the statutory boundaries o f this game reserve. It will not suffice, for the prosecution witnesses to merely allege that the scouts stopped the appellants at Mto Rubanda area into Ikorongo Game Reserve. The trial court must evaluate competing evidence and be satisfied that the Mto Rubanda area is within the Ikorongo Game Reserve". In the case under our scrutiny, the factual settings do not support the settled position of the law. On the other hand, the failure by the prosecution to cause the presence of the appellant before the Resident Magistrate where the disposal order of the seized trophies was made, discredited exhibit PE4 from being legally admitted and relied on in evidence to ground conviction on the respective offence as held by the Court in Buluka Leken Ole Ndidai v. The Republic (supra). In the circumstances, we harbour no doubt that an order for retrial will occasion injustice to the appellant. In the final analysis, in terms of section 4 (2) of the AJA, we nullify the proceedings of the trial and first appellate courts, quash the convictions and set aside the sentences meted on the appellant. In the event, we order that the appellant be released from custody unless his incarceration is for other lawful cause. DATED at MUSOMA this 10thday of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of appellant in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.