Tabu Magembe @Zizi vs Republic (Criminal Appeal No. 109 of 2021) [2024] TZCA 1275 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: WAMBALI J.A.. MAIGE. J.A. And RUMANYIKA. J.A.^ CRIMINAL APPEAL NO 109 OF 2021 TABU MAGEMBE @ ZIZI .................................................................... APPELLANT VERSUS THE REPUBLIC ................................... .......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Gglefra, 3Q dated the 15th day of November, 2021 in Criminal Appeal No. 130 of 2020 JUDGMENT OF THE COURT 3 rd & 1 3 th December, 2024 RUMANYIKA, J.A.: This appeal emanates from the decision of the High Court of Tanzania at Musoma (Galeba, J.) dated 15.11.2021 in Criminal Appeal No.109 of 2021, in which it upheld the decision of the District Court of Serengeti (the trial court) in Economic Case No. 53 of 2019. In that case, Tabu Magembe @ Zizi, the appellant, was convicted and sentenced to serve one-year imprisonment for the first count of unlawful entry into the Serengeti National Park, one-year custodial sentence for unlawful possession of weapons 1

thereinto, and twenty years' imprisonment for unlawful possession of government trophies, regarding the third count Aggrieved by the decision of the High Court, he preferred the present appeal. Theappellant and another person one Daniel Maduhu who is not a party to the appeal, faced the said three charges for contravening, respectively sections 21 (1) (a), (2) and 29 (1) of the National Parks Act (Cap 282) as amended by Act No. 11 of 2003 (the Act), section 24 (1) (b) and (2) of the Act and section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act Cap 283 (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). It is noted that the said Daniel Mduhu jamped bail before the trial commenced. The prosecution alleged that, on 3rd June, 2019 at Milima Soloyi area in Serengeti National Park within Serengeti District in Mara Region, the appellant and another entered into it without authority. That, while there, they were found in possession of one panga, one knife and four animal trapping wires unauthorised. Just as they did not show cause as to why should the weapons not be considered to be used in illegal poaching therein. That also, the appellant and another were found in unlawful possession of

government trophies, to wit, one lion skin valued at TZS 11,000,000.00 and seven skins of zebra valued at TZS 2,640,000.00 which totalled at TZS 13,640,000.00, the property of the United Republic of Tanzania. The appellant and another denied the charges, hence a full trial. To prove their case, the prosecution had five witnesses with five exhibits. Ezekiel Kulwa stood as PW1, Godino Gosbeth @ Ndegize testified as PW2, Wilbrod Vicent as PW3, G. 3694 DC Shaban was PW4 while PW5 was F. 3785 D/CpI Proches. The appellant testified as the sole defence witness since he did not call any, and his fellow jumped bail. PW1 and PW2 in a nutshell commonly stated that as they were on patrol at about 07:00 on the material date at Milima Soloyi area in the Serengeti National Park, they spotted two suspicious people in the bush. That, they arrested them while possessing two knives, six animal trapping wires, a fresh lion skin and seven fresh skins of zebra. The respective certificate of seizure prepared by PW1 was admitted as exhibit PI. The said weapons were admitted as exhibit P2 collectively. That, the investigator (PW5) notified PW3 who identified and valued the government trophies, as shown in the certificate (exhibit P3). He filled in the respective Inventory Form (exhibit

P5) and in that regard, presented the seized trophies and the appellant to the magistrate who ordered destruction of the same. On defence, the appellant stated that on 2n d June, 2019 him and the missing friend were caught up by time heading to Issenye to sell charcoal, and for that matter, they killed the night at Maliwa Village. That, while continuing with their safari on the next morning, they were arrested and driven away to Nyansirori Camp where they signed documents whose contents they could not know at once, as they were tortured. Upon full trial, the appellant was convicted and sentenced as stated earlier on. Aggrieved by the decision, the appellant unsuccessfully appealed to the High Court, hence the second appeal before us. He had four grounds of grievance in a memorandum of appeal filed on 27/11/2024 and another five grounds in the memorandum presented at the commencement of the hearing on 03/12/2024. Nonetheless, for the reasons that will come out soon herein after, we will conveniently not mention the grounds except the second one raised in the belatedly presented supplementary memorandum of appeal; That the consent o f the Senior State Attorney In-Charge and certificate conferring ju risd iction on the tria l court were incurably defective fo r non-citation o f section 86 (1) and (2) (b) o f the WCA.

As such, the appellant's complaints revolve around one decisive issue; Whether the consent and certificate issued by the Senior State Attorney In-Charge were valid enough to sustain the impugned proceedings. At the hearing of the appeal, the appellant appeared in person, unrepresented. He let the counsel for the respondent Republic respond to the grounds of appeal ahead of him. Ms. Janeth Kisibo and Mr. Charles Kagirwa, learned Senior State Attorneys represented the respondent Republic. Ms. Kisibo supported the appeal uprightly basing on the appellant's complaint, on the validity or otherwise of the consent and certificate referred above. She contended that, non-citation of section 86 (1) and (2) (c) (iii) of the WCA in relation to the third count implied that the trial court assumed the jurisdiction. And that the assumed jurisdiction was inconsequential as it rendered the proceedings of the two courts below null and void. She therefore urged the Court to nullify those proceedings in terms of section 4 (2) of the Appellate Jurisdiction Act Cap 141 (the A]A). Proposing so, she relied on our decisions in James Siluli @ Mwita v. R (Criminal Appeal 459 of 2020) [2024] TZCA 116 (21 February 2024;

TanzLII) and Sila Sila Chacha and 2 Others v. R (Criminal Appeals 44, 45 and 46 of 2021) [2024] TZCA 1027 (4 November 2024; TanzLII). Should the Court nullify the proceedings, Ms. Kisibo asserted, the Republic would not press for retrial because the existing evidence could not prove the case, unless they took advantage of the retrial to fill the gaps. According to her, the defects included; One, that, in the wake of the Written Laws Miscellaneous Amendments Act, 2003, the offence of unlawful entry into a National Park was non-existent, as there remained only a penalty section. Moreover, Ms. Kisibo argued that, the evidence of PW1 and PW2 on the second count did not sufficiently substantiate the allegation that they found the appellant so armed within boundaries of Serengeti National Park. She urged the Court to allow the appeal, quash the convictions and set aside the sentences and set the appellant free. She cited decisions in the cases of 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) to support her argument. Further, that, the materials on the record do not support the allegation on the second count that the appellant was found in possession of weapons

within boundaries of Serengeti National Park. The Inventory Form did not suggest that the appellant participated in the destruction of the exhibit. Two, that, the trophy (exhibit P5) was destroyed in the absence of the appellant and thus, he was not accorded a hearing with the view to giving him opportunity, if any, to give his opinion, in terms of section 101 (1) (a) (i) and (2) of the WCA. She added that, the grant of the disposal order was inconsistent with our proposition in Buluka Leken Ole Ndidai and Another v. R (Criminal Appeal 459 of 2020) [2020] TZCA 116 (21 February 2024, TanzLII). Three, that although F3785 D/CPL Proches (PW5) is on record to have produced the appellant and the trophies to the magistrate for a disposal order, his appearance did not feature in the respective proceedings as reflected in exhibit P5. Besides, it was one Shadrack Hongoa of TANAPA was the one who prepared it and not D/CPL Proches, as alleged. On that account, Ms. Kisibo urged us to exclude the Inventory Form from being relied in evidence on the record, which will leave nothing to connect the appellant with the charged offence on the third count. On his part, the appellant welcomed Ms. Kisibo's concession to the appeal. Therefore, he prayed for an order to allow the appeal in its entirety and set him at liberty.

Upon further perusal of the record, and having considered the position taken by both sides, the pertinent issue is whether the said defects in the consent and certificate rendered the impugned proceedings of the trial court and first appellate court a nullity, and, if the answer is in the affirmative, whether there has to be a tria l denovo. Any economic case which is ordinarily triable by the High Court may otherwise be tried by a subordinate court thereto, in this case the trial court, only when and where it is preceded by the consent and certificate issued by the Director of Public Prosecutions or his duly authorized officer under sections 26 (1) or (2) and 12 (3) of the EOCCA as the case may be. A certificate to try both economic and non-economic offences is also issued under section 12(4) of the EOCCA. It is also worth noting that the respective offence sections have to be cited therein. We note in the present case that, indeed the consent and certificate conferring jurisdiction on the trial court did not meet the threshold, with respect to the third count of unlawful possession of government trophies. As such, we take Ms. Kisibo's contention to be the correct position of the law and that consequently, the respective proceedings were vitiated hence a nullity. Truly, the two courts bellow acted without jurisdiction. This has been the Court's stance in a number of cases. 8

For instance, See- Dilipkumar Maganbai Patel v. R (Criminal Appeal No. 270 of 2019) [2022] TZCA 477 (25 July 2022; TanzLII) and James Siluli @ Mwita v. R (Criminal Appeal No. 24 of 2021) [2024] TZCA 1006 (29 October 2024, TanzLII). On the third count regarding the offence of unlawful possession of government trophies, we agree with Ms. Kisibo that the exclusion of the appellant in the proceedings to destroy the seized (exhibit P5) posed yet another serious ailment. It contravened the mandatory provisions of the law as noted above. The law is settled that, failure to accord the appellant an opportunity to raise objection if any, or to give opinion in respect of the intended disposal of the exhibit, renders the entire exercise sterile. See- Dogo Marwa @ Sigana and Another (supra), Mohamed Juma @ Mpakama v. R [2019] T.L.R 514 and Buluka Leken Ole Ndidai and Another (supra). With the impugned proceedings nullified, the pertinent question is whether, in the circumstances the case is amenable for retrial. We agree with Ms. Kisibo's assertion that an order for retrial is undesirable in the circumstances of the case, as the said three defects will always persist thereby occasioning injustice on the appellant. g

Consequently, we allow the appeal to the extent explained above, with regard to the single ground. Moreover, for the reason that the two courts below acted without jurisdiction, we, in terms of section 4 (2) of the AJA nullify the proceedings, quash the convictions and set aside the sentences meted on the appellant. We finally order the appellant's immediate release unless held for other lawful cause. DATED at MUSOMA this 12th day of December, 2024. 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 the original. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL C. I vl. I v IM V j L^ > M DEPUTY REGISTRAR COURT OF APPEAL