zunda kandukaki vs republic 2023 tzhc 22483 9 november 2023

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) ATSUMBAWANGA CRIMINAL APPEAL NO. 22 OF 2023 (Originating from Miele District Court in Economic Case No. 23 Of2021) ZUNDA KANDUKAKI........ .............. ......APPELLANT VERSUS THE REPUBLIC............. .... .....^^...^..RESPONDENT JUDGMENT fc 24/10/2023 & 09/11/2023 MWENEMPAZI, J. In the District Court of Miele (trial court) the appellant herein was arraigned for the offence of unlawful possession contrary to Section 86 (1) & (2)(c)(iii) of the Wild Conservation Act No. 5 of 2009 as amended read together with paragraph 14 of the First Schedule to, and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, [CAP. 200 R. E. 2019]. It was the prosecution's case that, on the 20th day of December, 2021 at Ilunde village within Miele District in Katavi Region, the appellant was found in possession of twenty kilograms (20 kgs) of roan meat valued at i US Dollars 2,550 which is equivalent to Tshs. 5,928,500/= being the property of the Government of the United Republic of Tanzania without aby permit from the Director of the Wildlife. During the full trial, the charge sheet was read to the appellant in the language best known to himself and he denied to have committed the charged offence. However, at the end of the trial, he was found guilty, convicted and sentenced to serve a term of twenty (20) years imprisonment. Aggrieved by the decision of the trial court, the appellant herein found it best to attempt his luck by filing this appeal to this court. In his petition of appeal, he had three (3) grounds of appeal which are as reproduced hereunder; 1. That the trial Court erred in law and fact by convicting the appellant on the basis of a caution statement which was unlawful procured. 2. That the trial Court erred at law to convict the appellant by relying on the evidence of the prosecution side who failed to tender a seizure receipt. 3. That the trial Court erred in fact and law to convict the appellant in the case which was not proved beyond reasonable doubt as the requirement of the law. 2 As the grounds rephrased above suggests, the appellant prays for this court to allow his appeal and enter judgment in his favour and order his release from custody. On the hearing date of this appeal, the appellant appeared for himself as he had no legal representation, whereas the respondent was represented by Mr. Mathias Joseph learned State Attorney. ‘‘"vt., The appellant was the first to submit that, he prays for his grounds of IF appeal to be considered and that this appeal be allowed and that he be released from custody so that he may go back to his homestead and take care of his family. On the other side, Mr. Mathias responded that, his side supports this appeal due to a legal ground that the consent and certificate lecked charging section. That, under the circumstances, the prosecution of the appellant was marred with the lack of proper authority/jurisdiction. The learned. State Attorney then prayed for this appeal to be allowed and that according to the evidence tendered, he believes it is sufficient to pray for a retrial. Thereafter, the appellant had no rejoinder in which, it left ample space for this court to swim at ease this appeal to the shore. Whereas, at this 3 juncture it is evident that this appeal has merits as the appellant was tried by a court with no jurisdiction. As rightly submitted by the learned State Attorney, as I cross-checked the two documents, that is the Consent of the DPP and the Certificate conferring jurisdiction to the trial court, they do lack the charging Section, namely section 86(1) and (2) (c) (iii) of the Wildlife Conservation Act, No. 5 of 2009 as amended read together with paragraph 14 of the first schedule to, and section 57(1) and 60(2) of the k-h "'"’'‘JW ... Economic and Organized Crime Control Act, [Cap 200 R.E 2019]. In the case of Dilipkumar Maganbai Patel vs Republic, Criminal Appeal 270 of 2019 (unreported) the Court of Appeal held that; "Having held that the. ConsenHand' Certificate were incurably defective there could not have been any valid proceedings before the trial court resulting in the conviction and sentence handed out to the appellant" According to the standard practice of this court, the defectiveness observed results to a nullity proceedings, conviction and sentence (see: Republic vs Miekwa Dede @ Masweya, Criminal Revision No. 4 of 2020). The practice has been confirmed by the Court of Appeal in the precedents of Dilrplumar Maganbai Patel vs Republic (supra) and Korwa Limbu @ Musha vs Republic, Criminal Appeal No. 279 of 2018. 4 Having found the present appeal with the same faults as the ones in the cited precedents of this court and the Court of Appeal, and being aware that this court is bound by the Court of Appeal decisions, I have decided to follow the same course without any hesitations. Therefore, I hereby quash the proceedings, conviction and sentence the law. In the meantime, the appellant shall remain in custody pending retrial before a competent court. It is so ordered Dated at Sumbawanga this 09th day of November, 2023 M. MWENEMPAZI JUDGE Judgment delivered in chamber this 09th day of November, 2023 in the presence of the Appellant in person and Ms. Scholastica Mwacha - State Attorney for the Respondent. T. M. MWENEMPAZI JUDGE 09/11/2023