Manyangu Hongo @ Ngusa and Another vs Republic (Criminal Appeal No. 49 of 2021) [2024] TZCA 1274 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA rCO RAM: WAMBALI J.A., MAIGE, J.A. And RUMANYIKA. J.A.^ CRIMINAL APPEAL NO. 49 OF 2021 MANYANGU HOGO @ NGUSA .................................................... I st APPELLANT SIMON MACHUPA @ SAGALA....................................................2 nd APPELLANT VERSUS THE REPUBLIC.................................................................. ........ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) fGaleba, 3.1 dated the 4thday of December, 2020 in Consolidated Criminal Appeal Nos. 138 and 143 of 2020 JUDGMENT OF THE COURT 25th November & 13th December, 2024 RUMANYIKA, J.A.: Before the Serengeti District Court (the trial court), Manyangu Hogo @ Ngusa and Simon Machupa @ Sagala, the first and second appellants, respectively, were convicted on two counts of unlawful entry into a Game Reserve contrary to section 15(1) and (2) of the Wildlife Conservation Act, Cap 283 (the WCA) and 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

Economic and Organized Crime Control Act, Cap 200 (the EOCCA), respectively. It was alleged that, on 14th March, 2019, the appellants were found at Mto Robanda area in the Ikorongo Grumeti Game Reserve within Serengeti District in Mara Region without authority. That they also were found unlawfully possessing government trophies namely two carcasses of Impala valued at "TZS 1,716,000.00, the property of the government of the United Republic of Tanzania. Upon trial, the appellants were convicted and sentenced to serve a custodial term of two years for the first count and to pay a fine of TZS 17,160,000.00, or twenty-years imprisonment in default, for the second count. Not amused, they appealed against the decision to the High Court of Tanzania at Musoma vainly. Persistently aggrieved, the appellants preferred the present appeal challenging the convictions and sentences with four grounds of grievance in their memoranda of appeal. Nonetheless, for the reasons that will be apparent shortly, we shall not reproduce all the grounds except the first one, which is paraphrased as follows; That, the two courts below erred in law for basing the convictions and sentences on a defective consent o f the Senior State Attorney In-

charge for Mara Region and the certificate conferring jurisdiction on the tria l court. At the scheduled hearing of the appeal before us, the first appellant appeared physically unrepresented while the second appellant was heard in person remotely on digital platform, by way of video conference linked from Morogoro Prison. Mses. Grace Madikenya, learned Senior State Attorney, and Agma Haule, learned State Attorney, teamed up representing the respondent Republic. The appellants adopted the grounds of appeal. However, they let the learned State Attorney respond to the grounds first while reserving the right of rejoinder. From the outset, Ms. Madikenya supported the appeal contending that the trial court tried the appellants without jurisdiction and, on that account, she urged the Cburt to nullify the impugned proceedings. She explained that, the consent and certificate did not indicate the offence section of the WCA regarding the second count of unlawful possession of Government trophy applicable. In effect, she argued, the trial court lacked jurisdiction as it was purportedly conferred on it. Ms. Madikenya added that, similarly, the High Court lacked jurisdiction because it acted on the nullity

proceedings of the trial court. She therefore prayed that, the proceedings be nullified, conviction quashed and sentences set aside, in terms of section 4(2) of the Appellate jurisdiction Act Cap 141 (the AJA). To reinforce her proposition, she cited the decision in Peter Kongori Maliwa and Others v. R (Criminal Appeal No. 253 of 2020) [2023] 7ZCA 17350 (14 June 2023; TanzLII). She stressed that should the proceedings be nullified, they would not ask for a retrial as the way forward because of the serious shortfalls referred above in the prosecution case. For this stance, she cited the case of Buluka Leken Ole Ndindai & Another v. R (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024; TanzLII). Therefore, she urged the Court to allow the appeal on the strength of the single ground stated above and restore the appellants' liberty. To the learned Senior State Attorney's submission and proposition, the appellants did not have any adverse comments. They beseeched the Court to allow the appeal and set them free. Upon considering the positions of both sides and more so Ms. Madikenya's concession to the appeal, the points for our determination are whether the said omission to cite the offence section in the consent and

certificate rendered the impugned proceedings a nullity and whether a tria l denovo is undesirable in the circumstances. It is worth noting that, in terms of section 26(2) of the EOCCA consent to try the accused on an economic case by court subordinate to the High Court may be issued by the Senior State Attorney In-Charge of the respective Region. Equally, a certificate conferring jurisdiction on the subordinate court to try economic case is a mandatory requirement under section 12 (3) of the EOCCA. A similar certificate may also be issued for trial of economic and non-economic offences under section 12(4) of the EOCCA. However, we note that the consent and certificate though dully issued under the respective provision in respect of the second count, did not cite the offence section. Therefore, we agree with Ms. Madikenya that the said omission rendered the consent and certificate incapable to initiate the trial of the appellants. This stance is consistent with our proposition in a number of cases including Buluka Leken Ole Ndindai & Another (supra). We have reviewed the said consent and certificate together with the charge. It is glaring to us that indeed, they did not cite the offence section in respect of the second count, that is section 86 (1) and (2) (c) (iii) of the 5

WCA. The omission fundamentally touched on the jurisdiction of the trial court. Therefore, its legal consequence is that the corresponding proceedings are null and void. This stance is consistent with a number of the Court's decisions such as in Buluka Leken Ole Ndidai And Another (supra), Peter Kongori Maliwa And Others (supra) and Diiipkumar Maganbai Patel v. R (Criminal Appeal No. 270 of 2019) [2022] TZCA 477 (25 July 2022; TANZLII). As for the way forward, we agree with the learned Senior State Attorney that, on account of the shortfalls singled out herein, an order of retrial will not be for the interest of justice. We note that there is no prima facie evidence on record which would sustain the charge on the first count without the prosecution filling the gaps. See-Nduru John Ng'waya & 2 Others v. R (Criminal Appeals 464,465 and 466 of 2020) [2024] TZCA 540 (10 July 2024; TanzLII). On the second count, we agree that the failure to accord the appellants right to participate when the disposal of exhibit P3 was carried out, left the prosecution with no evidence to prove the charged offence. We therefore allow the appeal based on the above stated ground. In the result, in terms of section 4(2) of the AJA, we nullify the proceedings, 6

quash the convictions and set aside the sentences imposed on the appellants. As such, for the interest of justice, we hold that, a retrial is undesirable in the circumstances of the case. We order their immediate release from prison unless they are held for other lawful cause. DATED at MUSOMA this 12th day 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 13th day of December, 2024 in the presence of appellants in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 7