Ngazi Kijeka @ Sungura vs Republic (Criminal Appeal No. 402 of 2023) [2026] TZCA 283 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI, 3.A., MAKUNGU, J.A. And MGEYEKWA, J.A.^ CRIMINAL APPEAL NO. 402 OF 2023 NGAZI KIJEKA @ S U N G U R A ............................................................... APPELLANT VERSUS THE R EPU B LIC .............................................................................. RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Shinyanga with Extended Jurisdiction) f Lukuna, SRM- Ext. Jur.^ dated the 30th day of July, 2021 in Criminal Appeal No. 63 of 2020 JUDGMENT OF THE COURT 23th February & 9th March, 2026 MGEYEKWA. J.A.: This appeal has been preferred by the appellant, Ngazi Kijeka @ Sungura against the decision of the Court of Resident Magistrate of Shinyanga at Shinyanga exercising Extended Jurisdiction in Criminal Appeal No.63 of 2020 presided over by Lukuna Senior Resident Magistrate (SRM) with Extended Jurisdiction. The appellant was charged with three counts. The first count, involved unlawful entry into a National Park contrary to section 21 (1) and (2) (a) of the National Parks Act, Cap. 282 [R.E. 2002] (the NPA). It was plainly alleged in the particulars in respect of this count that on the 14th day of July, 2019 at Mlima Selena area in Serengeti National Park within Bariadi District, Shinyanga Region, the appellant entered into the said National Park without a valid permission from the Director of Wildlife. The second count concerned unlawful possession of weapons contrary to section 103 of the Wildlife Conservation Act (the WCA) read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 200 (the EOCCA) as amended by Act No. 3 of 2016. The particulars alleged that on the same date and place the appellant was found in possession of weapons to wit; one knife, one bush knife and three animal trapping wires in circumstances which raise a reasonable presumption that he had used or intended or was about to use the same for the commission of an offence. The third count was in respect of unlawful possession of Government Trophies contrary to section 86 (1) and (2) (c) (iii) of the WCA read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. The particulars in support of this count alleged that on the same date and place, the appellant was found in possession 2 of Government Trophy, to wit; one dry skin and two horns of impala equivalent to one impala valued at USD 390 equivalent to (TZS 897,000). The evidence against the appellant was mainly from the key witnesses, Edes Shayo (PW2) and Mali Mathayo (PW3) both Park Rangers who were the arresting officers. The two witnesses told the trial court that on 14th July, 2019 in the morning, in the course of their routine patrol in the Serengeti National Park, they came across and arrested the appellant who was in possession of a knife, bush knife, one dry skin and two horns of impala which were admitted in evidence as exhibits P2 and P3 respectively. After his arrest they filled in a Certificate of Seizure (exhibit P4). Then they questioned the appellant, who admitted that he had no permit to enter the National Park. He was thereafter escorted to Bariadi Police Station. Michael Shirima (PW1), Wildlife Officer, evaluated the pieces of the government trophies and was satisfied that they were one piece of dry skin and two horns from one impala valued at USD 390 equivalent to TZS 897,000.00. The Trophy Valuation Certificate was admitted in evidence as exhibits PI. Another prosecution witness was H 8859 DC Riziki (PW4) who received one dry skin of impala, two joined horns of impala, one bush 3 knife, one knife and three animal trapping wires for safe custody after they were handed over to him by PW1. In his defence, the appellant raised an alibi, contending that he was not at the scene of the crime on the material day. He stated that he was arrested by two persons while on his way to search for his lost cattle and was thereafter taken to Bariadi Police Station. After a full trial, the trial District Court of Bariadi was satisfied that the prosecution's case was proved to the hilt. Hence, he convicted and sentenced the appellant on the first count to pay a fine of TZS 100,000.00 or default to twelve months imprisonment in respect of the first count. For the second count, he was ordered to pay a fine of TZS 300,000.00 or serve twelve months imprisonment in default and for the third count was ordered to pay a fine of TZS 897,000.00 or serve twenty years imprisonment in default. The sentences were ordered to be served concurrently. Undeterred, the appellant appealed to the High Court where, the appeal was transferred to the Court of the Resident Magistrate of Shinyanga to be heard by Lukuna, SRM with Extended Jurisdiction, whereas he determined the appellant's appeal and dismissed it. Still discontented, the appellant lodged this second appeal and raised six grounds of appeal. For reasons that wit! shortly become apparent, we do not intend to reproduce the respective grounds of appeal. At the hearing of this appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Mr. Anesius Kainunura, learned Principal State Attorney. At the very outset, Mr. Kainunura launched his submission by supporting the appeal on a ground other than those raised by the appellant. He contended that the trial court had no jurisdiction to try the case against the appellant for lack of the consent of the Director of Public Prosecutions (DPP) as required by sections 26 (1) and 12 (3) of the EOCCA. He clarified that the consent to the prosecution of the appellant which was issued by the Regional Prosecutions Officer, Simiyu Region on behalf of the DPP under section 26 (2) of the EOCCA was defective for not specifying the provisions of the offences stipulated in the EOCCA under which the appellant was alleged to have contravened. In the circumstances, Mr. Kainunura asserted that the defective DPP's consent to prosecute the appellant rendered the trial proceedings nullity as the trial court had no jurisdiction to try it. To rectify the mishap, the learned Principal State Attorney urged us to invoke our revisional 5 powers and nullify the entire proceedings of the trial and first appellate court. The Court then queried whether the Judge In-Charge had issued a transfer order to Lukuna, SMR with Extended Jurisdiction to hear and determine the appeal. In response, Mr. Kainunura submitted that the record of appeal reveals that the appeal from the District Court was filed at the High Court and placed before Lukuna, SRM with Extended Jurisdiction, who proceeded to hear the appeal and compose a judgment thereon. However, there was no transfer order from the Judge In-Charge in the record of appeal authorizing Lukuna, SRM with Extended Jurisdiction to preside over the appeal. He therefore submitted that the Senior Resident Magistrate had no jurisdiction to hear and determine the appeal. In conclusion, the learned Principal State Attorney submitted that the cumulative effect of the absence of a valid transfer order and the defective consent of the DPP strikes at the foundation of the proceedings, rendering them a nullity. The next issue for consideration is whether or not a retrial should be ordered. The learned Principal State Attorney submitted that as a general rule, considering the apparent omissions both at the trial and first appellate courts, the appropriate remedy is to order a retrial. However, he 6 was categorical that, in the circumstances of the present case, a retrial would not serve the interests of justice. He pointed out that the evidence on record does not establish that the appellant was arrested within the territorial boundaries of the Serengeti National Park. In view of that evidentiary gap, he urged the Court to nullify the proceedings of both courts below, quash the conviction and set aside the sentence imposed upon the appellant. The appellant did not advance any substantive submissions, understandably so, as the grounds upon which the learned Principal State Attorney submitted are purely a points of law. We have elected to commence with the issue raised by the Court suo motu, namely, whether the SRM with Extended Jurisdiction had jurisdiction to determine the appeal before him. We agree with Mr. Kainunura that the record of appeal speaks for itself: there is no transfer order from the Judge In-Charge to Lukuna, SRM with Extended Jurisdiction, authorizing him to preside over the appeal. In the absence of such an order, it cannot be maintained that the first appellate court was clothed with jurisdiction to hear and determine the matter. The question of jurisdiction is fundamental and therefore the court 7 cannot cloth itself with jurisdiction it does not have. For this stance see among other, Fanuel Mantiri Ngunda v. Herman Mantiri Ngunda & 2 Others (1995) T.L.R. 155, Samwel Slaa @ Sarea and Another v. Republic, Criminal Appeal No. 153 of 2021 [2024] TZCA 32 (13 February 2024, TanzLII) and Ramadhan Omary Mtiula v. Republic, (Criminal Appeal No. 62 of 2019) [2020] TZCA 1734 (19 August 2020, TanzLII). Since the learned SRM with Extended Jurisdiction lacked jurisdiction, the respective proceedings have to be nullified and order the High Court to deal with the appeal in accordance with the law. However, instead of remitting to the High Court, as we have noted above the trial of the appellant at the trial court was a nullity for lack of jurisdiction. Basically, in the absence of valid consent of the DPP or a dully authorized Officer, the trial court lacked jurisdiction to consent the trial. The next issue is whether an order for retrial would serve the ends of justice. In the circumstances, upon careful scrutiny of the factual setting in the record of appeal, and considering the submission of the Principal State Attorney with regard to the insufficiency of evidence to prove that the appellant was arrested within the boundaries of the Serengeti National Park, we are of the view that a retrial will occasion miscarriage of justice. Therefore, it will not be in the interest of justice. 8 In the event, we nullify the proceedings of both the trial and the first appellate courts for the infractions intimated above. We quash the conviction and set aside the sentence imposed upon the appellant. We further order that the appellant be released from custody forthwith unless he is otherwise lawfully held. DATED at SHINYANGA this 6th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 9th day of March, 2026 in the presence of the Appellants in person, Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. J. E. FOVO PUTY REGISTRAR OURT OF APPEAL 9