Benard Masalu Ngalula vs Republic (Criminal Appeal No. 374 of 2022) [2024] TZCA 1206 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CCQRAM: MWARIJA, 3.A., LEVIRA, J.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 374 OF 2022 BENARD MASALU NGALULA ......... .... ...... ...............APPELLANT VERSUS THE REPUBLIC................................. ...........................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court at Babati) (Lusewa, PRM, Ext. Jur.) Dated the 13th day of June, 2022 in Criminal Appeal No. 24 of 2021 JUDGMENT OF THE COURT 4th & 6th December, 2024 MASOUD, J.A.: The appellant was jointly and together, at the Resident Magistrate Court of Manyara at Babati (the trial court), charged along with three others with the offence of unlawful possession of government trophy contrary to section 86 (2) (b) of the Wildlife Conservation Act, 2009 read together with paragraph 14 of the 1s t Schedule to and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act, Cap. 200 (EOCCA). The particulars of the offence in respect of which the appellant was, along with the others, charged reads thus: Particulars of the offence Yendeni s/o Masumbuko, Bernad s/o Masalu Ngalula, Ramadhan s/o Swafehe and Mwajuma d/o i

Athuman Yendesoni on 25th day of February, 2021 at Moya Village within Babati District in Manyara Region, jointly and together were found in possession o f thirteen (13) pieces of elephant tusks equivalent to seven killed elephants valued at USD 105,000.00 equivalent to Two Hundred Forty Three Million Four Hundred Ninety Five Thousand Tanzanian Shillings only (TZS 243,495,000) the property of Tanzanian Government without permit from the Director of Wildlife. While the others were acquitted after a full trial which saw the prosecution procuring a total of six witnesses and tendering a total of six exhibits, the appellant was convicted, allegedly, of his own plea of guilty at the preliminary hearing found at page 5 through 9 of the record of appeal and was sentenced to imprisonment for a term of 20 years. The appellant was, however, aggrieved by the conviction and sentence. He appealed against the trial court's decision. His appeal was unsuccessfully heard and determined by Lusewe, PRM, Ext. Jur. Since the appellant was still dissatisfied, he preferred the instant appeal before us on a number of grounds. Of significance for the determination of this second appeal, is the supplementary ground raised by the appellant who at the hearing appeared in person unrepresented. The same was to the effect that the lower courts erred in not finding that the consent issued by the regional prosecutions officer of Manyara Region was

invalid for having been issued under section 26 (1) of the EOCCA instead of 26 (2) of the EOCCA and the case was, as a result, tried without requisite jurisdiction. It is instructive that the appellant had lodged his written submissions in support of the relevant supplementary ground as well as a list of authorities containing a number of decisions of this Court supporting the position relating to the ground. See for instance, Peter Kongori Maliwa & Others v. Republic (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023); Juma Chacha Merengo & Another v. Republic (Criminal Appeal No. 461 & 462 of 2020) [2024] TZCA 538 (10 July 2024); and Piri Masai @ Solo Maninge v. Republic (Criminal Appeal No. 227 of 2022) [2024] TZCA 1057 (6 November 2024). In the said submission, the appellant implored us to quash the conviction and set aside the sentence and direct his release from the prison. When Ms. Blandina Msawa, learned Senior State Attorney for the respondent Republic, who was being assisted by Raphael Rwezahula, learned State Attorney, was invited to make her submission in reply, she informed us that the latter would address us. Submitting in reply, Mr. Rwezahula, expressly, made it clear that the respondent is supporting the appeal on the above ground.

Elaborating and relying on the authorities cited by the appellant, he submitted that since the consent was issued by the Regional Prosecutions Officer under section 26 (1) of the EOCCA, it meant that there was no a valid consent in respect of which the appellant could have been prosecuted for the economic offence relating to unlawful possession of government trophy as charged. Thus, the trial court proceeded without having jurisdiction to conduct the trial against the appellant. The learned State Attorney implored us to allow the ground and nullify the proceedings of the lower courts, quash the appellant's conviction and set aside the custodial sentence meted out on him. The learned State Attorney, however, urged us, as to the way forward, to make an order for the appellant to stand trial afresh. He relied on the cases of George Claud Kasanda v. DPP (Criminal Appeal 376 of 2017) [2020] TZCA 76 (27 March 2020); and Chacha Matiko @ Magige v. Republic (Criminal Appeal No. 562 of 2015) [2018] TZCA 552 (27 April 2018) which were all guided by the celebrated authority of Fatehali Manji v. R [1966] E. A. 334. His justification for imploring us to make an order for the appellant to stand trial afresh was that there is ample evidence which can sufficiently ground the appellant's conviction. We asked Mr. Rwezahula to consider the charge which the appellant was charged with along with the others who had after the full trial been acquitted, and the evidence of the prosecution in respect of which they were

acquitted and address us on whether there was not possibility of the prosecution to fill in the gaps in the evidence which was adduced if the Court makes an order for the appellant to stand trial. We did so mindful of the principle governing determination of whether or not an order for retrial should in the circumstances of a given case be made as enunciated in the case of Fatehali Manji (supra) thus: "In general a retrial will be ordered only when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests ofjustice require i t " In his response, the learned State Attorney had it that there was independent and distinct evidence which can sufficiently ground the conviction against the appellant. Thus, there was, according to him, no room for filling in the gaps in the prosecution evidence. In that respect, he insisted that the evidence that was marshalled by the prosecution against those who had been acquitted was completely different and distinct from the evidence the prosecution was going to lead against the appellant if an order for him

to stand trial is made, hinging his arguments on the allegation of existence of confessional statements that the appellant allegedly recorded which however were not on the record before us. When we drew the attention of the learned State Attorney to the charge sheet in which the appellant along with the others were all, jointly and together, charged for being, allegedly, found in unlawful possession of the trophies; he admitted that if the appellant is ordered to stand trial, the prosecution would have to amend and substitute the charge for one that is only laid against the appellant. He insisted that, the evidence on the record which was marshalled against the other accused persons and on basis which they were acquitted of the charge had nothing to do with the appellant. According to the learned State Attorney therefore, if the trial of the appellant is ordered, the prosecution would lead evidence against him other than the evidence on the record that was adduced against the other accused persons. Looking at the record before us, it means that the learned State Attorney was referring to the evidence of Samwel Daudi Bayo (PW1), Christopher Peter Christopher Peter Laizer (PW2), John Ombeni (PW3), Jackson Robert Munuo (PW4), H 5871 PC Godfrey (PW5) and E 6749 DCPL Donald (PW6) along with six exhibits, namely, 13 pieces of elephant tusk (exhibit PI), seizure certificate (exhibit P2), trophy evaluation certificate (exhibit P3), weight report (exhibit P4), sketch map (exhibit P5) and cautioned statement of one, Yendesoni s/o Masumbuko (exhibit P6) which

is on the record of the trial proceedings of the other accused persons from page 13 through page 38 of the record of appeal. Having heard the learned State Attorney, the appellant had nothing useful to rejoin other than denying that he made confessional statements which if he is ordered to stand trial would be adduced against him as alleged by the learned State Attorney. In addition, he urged us to quash the conviction, set aside the sentence meted out against him and set him free. After paying due regard to the submissions by the appellant and the learned State Attorney on the ground of appeal that the proceedings of both the trial court and the first appellate court were nothing else other than a nullity since there was no valid consent, we gave a critical look at the record before us. It did not take us long before we confirmed that the consent at page 3 of the record of appeal was indeed issued by the Regional Prosecutions Officer under section 26 (1) of the EOCCA instead of the DPP. Guided by the authorities of this Court in respect of which there is a long and unbroken chain, we are of the finding that the consent under discussion was issued by a person who had no such mandate under that provision of the law. Thus, the prosecution of the appellant and the three others for the economic offence they were jointly and together charged with was null and void as there was no valid consent and the trial court had therefore no jurisdiction.

In addition to the authorities of this Court which were cited by the appellant and adopted by the learned State Attorney, see for instance also, Sandu John v. The Director of Public Prosecutions (Criminal Appeal No. 237 of 2019) [2023] TZCA 17719 (4 October 2023); Amos Nyakiha v. Republic (Criminal Appeal No. 42 of 2021) [2024] TZCA 1023 (1 November 2024); Siia Sila Chacha and 2 Others v. Republic (Criminal Appeal No. 44, 45 & 46 of 2021) [2024] TZCA 1027 (4 November 2024) and; Amiri Ally Shaban & Another v. Republic (Criminal Appeal No. 155 "B" of 2023) [2024] TZCA 35 (14 February 2024). Based on the position of the law restated in all these authorities, it means that the trial was conducted without the requisite jurisdiction as the consent was invalid. Accordingly, we allow the respective ground of appeal. Consequently, we nullify the proceedings and judgments of the lower courts, quash the appellant's conviction and set aside the custodial sentence imposed on him. As alluded to herein above, whilst the appellant urged us to set him free, the respondent through Mr. Rwezahula implored us to make an order for the appellant to be tried afresh. The respondent's learned State Attorney argued that the prosecution evidence available, which is distinct from the evidence adduced to prove the charge against the other accused persons, is sufficient to ground the appellant's conviction. That evidence, he insisted, is featured by the appellant's confessional statements, which however were nowhere on the record. According to him, there would be, therefore, no room

for filling in the gaps if the appellant is ordered to stand trial, although as shown above, the learned State Attorney admitted that the prosecution will obviously have to amend and substitute the charge for one that charges the appellant himself with the economic offence he was initially charged jointly and together with the other accused persons who had been acquitted. We have looked at the evidence which was led by the prosecution against the other accused persons which came from PW1, PW2, PW3, PW4, PW5 and PW6 as well as exhibit PI to P6. We noted that this evidence was found insufficient to prove the charge against the other accused persons, which charge, as admitted by Mr. Rwezahula, will have to be amended and substituted for another charge befitting the distinct evidence to be marshalled by the prosecution against the appellant if the Court orders him to stand trial. We do not, however, agree with the learned State Attorney that the prosecution against the appellant could be conducted without the above evidence. We say so because, in respect of the charge laid against the appellant and the other accused persons, they were all alleged to have jointly and together committed the economic offence relating to unlawful possession of government trophy. Thus, the evidence on the record was, accordingly though unsuccessfully, led to prove the charge against the other accused persons after the appellant had, allegedly, entered a plea of guilty.

We are satisfied that if the appellant is in the circumstances ordered to stand trial afresh, there would be room for the prosecution to fill in the gaps in the evidence that came to light in the trial of the other accused persons who were in the end acquitted. We also think that any attempt by the prosecution to amend and substitute the charge for another one and marshal distinct evidence against the appellant would amount to an act of mounting a better case against him by filling in the gaps in order to achieve a conviction. The course will, definitely, occasion injustice to the appellant. We are, in line with the above, guided by the principle that for the court to order a retrial, it should ensure that the prosecution is not going to utilize the order as an opportunity to mount a better case against an accused person by filling in the gaps in order to achieve a conviction. See for instance, Fatehali Manji (supra); John Julius Martin and Another v. Republic [2022] TZCA 789 (8 December 2022); Juma Chacha Merengo & Another v. Republic (Criminal Appeal No. 461 & 462 of 2020) [2024] TZCA 538 (10 July 2024) and; Recho Abdala & Others v. Republic (Criminal Appeal No. 493 of 2021) [2024] TZCA 1067 (8 November 2024). Although the principle relates to considerations for making an order for a retrial or otherwise, we think, it is as well applicable in the circumstances of the instant case. We are thus inclined for such reasons, not to order the appellant to stand trial as we hereby do so.

Once all is said and done, we find merit in the appeal which we accordingly allow. Henceforth, we order for the immediate release of the appellant from prison if he is not otherwise detained for some other lawful cause. DATED at ARUSHA this 5th day of December, 2024. The Judgment delivered this 6th day of December, 2024 in the presence of the appellant in person, Ms. Blandina Msawa, learned Senior State Attorney and Mr. Raphael Rwezahula, learned State Attorney for the Republic/respondent; is hereby' ' ‘ true copy of the original. A. G. MWARIJA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. G. MRANGU S SENIOR DEPUTY REGISTRAR £ 7 / COURT OF APPEAL