Sabayi Mngosi @ Marwa vs Republic (Criminal Appeal No. 48 of 2021) [2024] TZCA 1161 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: WAMBALI J.A.. MAIGE, J.A. And RUMANYIKA. J J U CRIMINAL APPEAL NO. 48 OF 2021 SABAYI MNGOSI @MARWA.................................................APPELLANT VERSUS THE REPUBLIC ................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) fGaleba. J.^ dated the 11th day of November, 2020 in Criminal Appeal No. 135 of 2020 JUDGMENT OF THE COURT 25th & 29th November, 2024 MAIGE, J.A,: At the District Court of Serengeti (the District Court), the appellant was charged with the offence of unlawful possession of Government trophies contrary to section 86(1) and (2) (c) (iii) of 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). The factual assertion in the charge sheet was that, on 29th November, 2019,

the appellant was found, in his dwelling house at Machochwa village within the Serengeti District in Mara Region, in unlawful possession of a fore limb and a neck of Topi worth TZS 1,840,000. 00, the property of the United Republic of Tanzania. As the offence involved was economic, the commencement of the trial was preceded by presentation of the documents purporting to be the consent of the Director of Public Prosecutions (the DPP), herein after referred to as "the consent" and the certificate conferring jurisdiction to the District Court, herein after referred to as "the certificate" At the conclusion of the trial, the appellant was held culpable of the offence and sentenced to twenty years imprisonment, the decision which was entirely concurred by the High Court of Tanzania (the High Court) on appeal. The appellant is still aggrieved, and, therefore, has preferred the current appeal faulting the decision of the High Court on three grounds. Nevertheless, for the reasons which shall be apparent henceforward, we shall not mention the said grounds. When the appeal was called on for hearing, the appellant appeared in person without representation, whereas the respondent

Republic had the services of Ms. Grace Madikenya, learned Senior State Attorney assisted by Ms. Agma Haule, learned State Attorney. At the very inception of the hearing, Ms. Haule drew our attention to the fact that, both the certificate and consent are invalid for non citation of the provisions of law the appellant was charged with, namely; section 86 (1) and (2) (c) (iii) of WCA. In her contention, therefore, in the absence of a valid certificate and consent, the trial court acted without jurisdiction, and, therefore, the decision and the proceedings thereof were nothing but a nullity. Reference was made in the case of Peter Kongoli Maliwa and 4 Others v. R (Criminal Appeal No. 253 of 2020) [2023] TZCA 17350 (14 June 2023, TANZUI]. She submitted further that, though ordinarily an order for retrial would be appropriate, in the present case it would be against the interest of justice as the government trophies the appellant was alleged to have been in possession of were destroyed based on the disposal order which was, contrary to the law, procured in the absence of the appellant. The omission, she submitted making reference to the case of Buluka Leken Ole Ndidai & Another v. R (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024, TANZUI), rendered

the respective document incapable of being relied upon in lieu of physical exhibits. In response, the appellant fully supported the submissions for the respondent Republic and prayed that he be set free. We have given the above submissions due consideration and it is desirable that we determine the appeal. It is common ground that, an economic offence like the one at issue is, as per section 3 (3) of the EOCCA, triable by the High Court sitting as the Corruption and Economic Crimes Court. Exceptionally, however, such an offence can be tried by a subordinate court if the DPP or any state attorney duly authorized by him, issues a certificate in terms of section 12(3) of the EOCCA conferring jurisdiction. The certificate notwithstanding, the exercise of such jurisdiction also requires a consent of the DPP or his duly authorized officer in terms of section 26(1) and (2) of the EOCCA, respectively. In here, both the certificate and consent issued by the Senior State Attorney in Charge Mara Region did not cite the provisions of the law under which the appellant was charged. Without much ado, therefore, we subscribe to the learned State Attorney that, such omission

rendered the trial by the District Court without jurisdiction and thus null and void. There are many decisions of the Court in support of that proposition. See for instance, Dilipkumar Maganbai Patel v. R (Criminal Appeal No. 270 of 2019) [2022] 7ZCA 477 (25 July 2022, TANZLII), Peter Kongori Maliwa and Others v. R (supra) and Chacha Chiwa Marungu v. R (Criminal Appeal No. 364 of 2020) [2023] TZCA 17311 (5 June 2023, TANZLII). On that account, we, in terms of section 4(2) of the Appellate Jurisdiction Act, nullify the proceedings of the District Court, quash the conviction and set aside the sentence thereof. We further nullify the proceedings of the High Court and quash the judgment thereof. In normal circumstances, we would have remitted the record to the District Court for retrial. In the instant case, however, it is not in the interest of justice so to do. This is because, as correctly submitted by the learned State Attorney, the inventory form which would be received in evidence in lieu of the physical exhibits is legally unreliable in so far as the relevant trophies were destroyed pursuant to a court order which was not procured in the presence of the appellant as the law requires.

We, therefore, order that the appellant be forthwith released from the prison unless therein held for other lawful reasons. DATED at MUSOMA this 28th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 29th day of November 2024 in the presence of the Appellant who appeared in person and Mr. Charles Kagirwa Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C . M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL