John Marwa @ Mwita vs Republic (Criminal Appeal No. 66 of 2021) [2024] TZCA 1276 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CO RAM: WAMBALI J.A.. MAIGE, 3.A. And RUMANYIKA. J.A.1 CRIMINAL APPEAL NO. 66 OF 2021 JOHN MARWA @ MWITA............................................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kisanva, 3.) dated the 21st day of December, 2020 in Consolidated Criminal Appeal Numbers 101 and 102 of 2020 JUDGMENT OF THE COURT 29th November M S * December, 2024 RUMANYIKA. J. A:. This appeal arises from the decision of the High Court of Tanzania at Musoma, (Kisanya, J.) dated 21st December, 2020 in Consolidated Criminal Appeal Numbers 102 and 102 of 2020. That decision upheld the convictions and sentences passed by the District Court of Serengeti (the trial court) against John Marwa @ Mwita, the appellant and four others who were charged on three counts namely; unlawful entry in the National Park and unlawful possession of weapons and government trophy therein.

It is worth noting that the appellant and four others who are not parties to this appeal were charged with the said offences contrary to sections 21 (1) (a), (2) and 29 (1) of the National Parks Act, Cap 282 as amended by Act No. 11 of 2003 (the NPA), section 24 (1) of the NPA and section 86 (1) (2) (b) 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 Crime Control Act, Cap 200 (the EOCCA) respectively for the first, second and third counts. It was alleged that on 22n d April, 2019 at Nyabehu area in Serengeti National Park within Serengeti District in Mara Region, the appellant and those others entered thereinto without authority. And that, while there, they were found possessing weapons, namely, three knives, one panga and six animal trapping wires with which were suspected poaching. That also, they unlawfully possessed government trophies, to wit, eleven pieces of fresh meat of zebra totally valued at TZS 2,640,000.00, the property of the United Republic of Tanzania. Four prosecution witnesses testified and four exhibits were tendered to support the case. The witnesses were Thadeus Joseph Manonga (PW1) and Driku Shaban (PW2), the National Park rangers who gave almost the same evidence. Their evidence was that while on ordinary patrol in the

National Park at the material time, they saw five suspicious people including the appellant and fellow whom they arrested possessing the weapons and trophies. The respective certificate of seizure was admitted as exhibit PI while the weapons were admitted as exhibit P2 collectively. Three of the culprits were dropped down the lane leaving only the appellant and fellow behind. Wilbrod Vicent (PW3) identified and valued the government trophy as shown in the Valuation Certificate (exhibit P3). With respect to the seized trophy, he procured a court disposal order as demonstrated in Inventory Form (exhibit P4). G. 8345 DC Innocent (PW4) is the one who investigated the case. The appellant and fellow testified as the sole defence witnesses. He denied the charge stating that they were only arrested while at work in shamba. Upon full trial, the appellant was convicted and sentenced as stated herein above. Aggrieved, he appealed against the decision in the High Court vainly. Still dissatisfied, the appellant has presented four grounds before us. However, for the reasons that will follow shortly, we shall not reproduce the grounds. At the scheduled hearing of the appeal, the appellant appeared in person, unrepresented whereas Ms. Janeth Kisibo and Mr. Charles Kagirwa, learned Senior State Attorneys, represented the respondent 3

Republic. The appellant elected the learned Senior State Attorney to respond to the grounds of appeal first as he reserved the right of rejoinder. Ms. Kisibo readily supported the appeal though on different grounds. She contended that the proceedings of the two courts below were vitiated for being preceded by an incurable defective consent of the Senior State Attorney In-Charge for Mara Region and a certificate which purportedly conferred jurisdiction on the trial court. Expounding on the point, she asserted that, none of the two instruments cited the offence section for the third count regarding unlawful possession of government trophies and have to be discounted. Ms. Kisibo cited our decision in Buluka Leken Ole Ndidai And Another v. R (Criminal Appeal 459 of 2020) [2024] TZCA116 (21 February 2024; TanzLII) to substantiate her argument. She argued that the legal implication of the said omission was that the trial court and the High Court for that matter, acted without jurisdiction rendering the proceedings a nullity. Thus, in terms of section 4(2) of the Appellate Jurisdiction Act (the A3A) she urged the Court to nullify the respective proceedings. Should the proceedings be nullified, Ms. Kisibo added, they would not press for a retrial as it would ordinarily be the case because of the

apparent defects in the prosecution evidence. She mentioned them to be; one, the evidence to support the third count is wanting because the appellant was denied an opportunity to air out his opinion to the intended destruction of the exhibit contrary to section 101(l)(a) (i) and (2) of the WCA. Let alone to witness the process. To support her argument, she cited Buluka Leken Ole Ndidai and Another v. R (supra). Elaborating, she also drew our attention to the respective Inventory Form (exhibit P4) to show that the destruction was executed behind the appellant. Two, the evidence of PW1 and PW2 materially contradicted with the certificate (exhibit PI) about the number of pieces of zebra meat which was allegedly seized from the appellant. Further, Ms. Kisibo contended that the two witnesses talked about eleven pieces while the respective certificate of seizure talked about seven pieces only. Three, regarding the first count that the Written Laws (Miscellaneous Amendments) Act, 2003 omitted the offence of unlawful entry into the National Park leaving the penalty section only. Additionally, she asserted that, in that regard, the offence of unlawful possession of weapons charged on the second count could not be proved against the appellant because of insufficiency of evidence on the record. Based on the foregoing, Ms. Kisibo also urged the Court to nullify the proceedings of the two courts below, quash the convictions and set

aside the sentences and order immediate release of the appellant from prison. On his side, the appellant welcomed Ms. Kisibo's submission on the fate of the proceedings and her proposed way forward and asked the Court to set him free. Upon hearing both sides to this appeal and on further perusal of the record of appeal, the pertinent issue is whether the trial court had jurisdiction to try the case. We note that, ordinarily, an economic case is triable by the High Court, in terms of section 3 (3) of the EOCCA. This is to say that, the trial court could not have tried the case without consent of the DPP given under section 26 (1) or by his delegate under section 26 (2) of the EOCCA, as the case may be, and a certificate conferring jurisdiction on a trial court in terms of section 12 (3) of the EOCCA. However, it is trite law that the respective provision, in this case, section 86 (1) (2) (b) of the WCA has to be cited in the consent and certificate. It is very unfortunate that, the consent and certificate did not meet the threshold, with respect to the third count on unlawful possession of government trophies. Having observed it all, the legal consequences of the omission referred above cannot be overstated than we have done on a number of occasions. See, for instance, our decision in Rhobi Marwa Mgare and

Two Others v. R, Criminal Appeal No. 192 of 2005 (unreported) and Kwabi Nila Limbu v. R (Criminal Appeal No. 26 of 2021) [2024] TZCA 1028 (4 November 2024; TanzLII). As such, the omission vitiated the respective proceedings as the two courts below lacked jurisdiction. Now that from the inception the proceedings of the two courts 1 below were null and void, the follow up question is whether the case should be tried denovo as way forward as it is ordinarily the case. We agree with Ms. Kisibo's contention that a retrial is overruled in the circumstances of the case because, not only they will achieve nothing, but also, it is likely to occasion injustice on the appellant. It is so because of two main reasons; one, regarding the first count, it is clear to us that the appellant was charged with a non-existent offence of unlawful entry, because the preferred section created a penalty after the amendments by Act No. 11 of 2003. See- Dogo Marwa @ Sigana and Another v. R (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021; TANZLII) and Willy Kitinyi Marwa v. R (Criminal Appeal No. 511 of 2019) [2021] TZCA 608 (25 October 2021; TanzLII) from a plethora of our decisions. We want to stress, in passing that for a sustainable wildlife management on one side and assurance of freedom and liberty of the people beyond boundaries of Game Reserves or National Parks on the other hand, have to be protected with alike zeal and vigour. It is so

because, at times the boundaries between them are technical such that, offence of unlawful entry has to be proved with cogent evidence and not with plain statements by the rangers and wardens. Two, the prosecution's failure to establish whether the appellant was arrested at Nyabehu area within boundaries of the Serengeti National Park rendered the charge of unlawful possession of weapons on the second count to crumble automatically. Concerning the third count on unlawful possession of government trophies and the alleged non-involvement of the appellant in the process to destroy the exhibit, we agree with Ms. Kisibo on a contention that the exercise was flawed irreparably for contravening section 101 (1) (a) (i) and (2) of the WCA. Similarly, we note that, the appellant's name did not feature in the corresponding Inventory Form (exhibit P4) to show his participation, let alone the name of the magistrate who presided over in the respective proceedings. It also omitted the name of PW4 who purportedly participated in the disposal of that exhibit, let alone their signatures. As such, the appellant was not accorded the deserving right to participate in the process to allow him to object to the disposal or to give opinion. It is insisted thus, that it has been the Court's stance that any disposal of exhibits also has to be witnessed by the accused for him to object or opine, should the need arise. See-Dogo Marwa @ Sigana 8

and Another (supra), Buluka Leken Ole Ndidai and Another (supra). It is emphasized that the said omission posed a fatal ailment which should not be cured by way of a retrial since exhibit P4 would not be proved against the appellant. It is from the foregoing factual setting on the record that we decline to order a retrial. Consequently, we nullified the proceedings of the two courts below pursuant to section 4 (2) of the AJA, quash the convictions and set aside sentences meted on the appellant. We also order the appellant's immediate release from prison unless held for some other lawful cause. DATED at MUSOMA this 12th 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 13th 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