Aggrey s.o Taweli Mnjokava @ Mparee vs Republic (Criminal Appeal No. 294 of 2022) [2024] TZCA 1081 (8 November 2024)

m THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. 3.A.; KENTE J.A. And MGONYA, 3.A.1 CRIMINAL APPEAL NO. 294 OF 2022 AGGREY S/O TAWELI MNJOKAVA @ MPAREE .. ....................... APPELLANT VERSUS THE REPUBLIC.............................. .................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Arusha) (Mwenempazi, 3 .1 dated the 2n dday of'November, 2019 in Criminal Appeal No. 17 of 2018 • JUDGMENT :QF THE COURT 1st & 8th November, 2024 KENTE, 3.A.: The appellant appeals against the decision of the High Court of Tanzania (sitting at Arusha), upholding his conviction and sentence by the District Court of Ba,bati/ Xthe:;friai.ieount)/ dated :20^ December, 2017. On 30th November 2017, the appellant appeared before the trial court where he was charged with unlawful possession of Government Trophies contrary to section 86.(1), (2) (b) of the Wildlife Conversation Act, Chapter 283 of the Revised Laws (the WCA), read together with Paragraph 14 (d) of the First Schedule to, arid sections 57 (1) and 60 (2)

of the Economic and Organized Crimes Control Act, Chapter 200 of the Revised Laws, (the EOCCA). It was alleged that, on 24th May, 2016 at Mrara Kati area within the District of Babati in Manyara Region, the appellant was found in possession of two elephant tusks valued at TZ. 32,985,000.00 the property of the Government of Tanzania without a valid permit from the Director of Wildlife. The appellant denied the charge but, upon conviction, he was sentenced to the mandatory twenty years' imprisonment. In the alternative he was ordered to pay a hefty fine of TZS. 329,850,000.00 which he failed to pay. The evidence which the prosecution presented before the trial court was briefly to the following effect: On 24th May, 2017, Assistant Superintendent of Police Christopher Msamba (PW1) who was at the time, Incharge of the Ant Poaching Task Force for Northern Zone comprising of Tanga, Kilimanjaro, Arusha and Manyara Regions, was on patrol at Mrara Kati area in Babati District. Together with him, were Detectives Corporal Nicolaus and Josephine. PW1 recounted that, in the course of the patrol> he got information from his informer that there was a man suspected of being a poacher. Pursuant to that information, PW1 and his fellow Police Officers went to the appellant's home. After notifying and, consultation with the local leadership, a search for the suspected Government Trophies

was conducted in the appellant's home and two elephant tusks were found. The said tusks were exhibited at the trial as exhibit PI. When questioned about the presence of tusks in his house, the appellant's response was that, indeed they were found in his living room. After formalization of the seizure process, the appellant was whisked to the Police Station at Babati where he was booked for the offence of unlawful possession of Government Trophies. Six months later, he was brought before the trial court where he was charged with and convicted of the earlier mentioned offence of unlawful possession of Government Trophies. For the reason that the position that the appellant has taken in this appeal does not work in tandem With the grounds of appeal which he had filed initially, we will not set out the defence that he adopted in the trial court. Suffice it to say that, upon appeal to the High Court in which the appellant had complained cumulatively that the decision of the trial court was against the evidence on the record, the learned Judge of the first appellate court took the view that, the charge against, him had been proved^beyond reasonable doubt. Referring to the appellant's confessional statement (Exh. P6), which the appellant claimed that it was not voluntarily made, as he was severely beaten up by the Police Officers at Babati Police Station, the learned High Court Judge found this claim.to be

baseless. He reasoned that, the issue was brought up during the hearing of the prosecution case when the appellant raised the involuntary nature o f his confession,., a complaint which was however exhaustively dealt with by the trial court during an inquiry that ensued. Dismissing the appeal, the learned Judge premised the appellant's conviction on the evidence of PW1 and other eye witnesses whom he found credible together with the. appellant's confession concluding that, its contents were materially similar to the narrative of what transpired at the scene of the crime. Dissatisfied with the above outcome cf his appeal to the High Court, the appellant now appeals to this' Court. On i5 th June, 2022, he lodged a memorandum of appeal predominantly comprising his grievances on the insufficiency of evidence led in support of the prosecution case. However, after- this matter was cause-listed for hearing which was on 1st November, 2024, the appellant on 23rd October, 2024 lodged; a. supplementary memorandum of appeal containing two grounds of complaint couched in the following fashion:

1. That, the first appellate court erred in law and in fact in upholding the appellant's conviction while the District Court o f Babati had no jurisdiction in terms o fsection 12 (3) o fthe Economic and Organized Crimes ControlAct to try Economic Case No. 22 o f2017 in that:

i) The consent was defective for having been issued undera wrong provision o f the law which is section 26 (1) o f the Economic and Organized Crimes Control Act instead o f section 26 (2) o f the same Act; ii) Throughout the record o f appeal, there is nowhere where it is indicated that the prosecutor had requested the trial court to receive both the consent and certificate for trial; 2. That the first appellate court erred in law and in fact in not finding that both the delay, in arraigning the appellant and preparing a charge sheet casted doubt oh the allegations against the appellant At the hearing of the appeal, Mr. Hamisi Mkindi, learned Advocate who appeared to represent the appellant, upon consultation with his client, he prayed to abandon the memorandum of appeal initially filed by the appellant on 15th June, 2022. Simultaneously, the learned counsel abandoned the supporting Written submissions fiied by the appellant on 31st'May, 2024 apparently in terms Of Rule 74 (1) of the Tanzania Court of Appeal Rules, 2009. Once again, after consultation with the, appellant, Mr. Mkindi prayed to argue the first limb of the first ground of appeal which he believed, was sufficient enough to dispose of this appeal. : Elaborating, Mr. Mkindi submitted that, the offence of unlawful possession of Government Trophies of which the appellant was convicted, is an economic offence ordinarily triable by the Corruption and Economic Crimes Division of the High Court pursuant to section 3 (1) (a) of the

EOCCA. The learned counsel went on submitting and, this is certainly very elementary to the legal fraternity that, in terms of section 26 (1) of the same Act, no trial of an economic offence may be commenced without the consent of the Director of Public Prosecutions. Moving forward, Mr. Mkindi submitted correctly, so, that, section 26 (2) of the EOCCA empowers the DPP to delegate the powers conferred tp him under S. 26 (1) of the said Act to any officer duly authorized by him to give consent for the trial of any person in respect of an economic offence, to be tried by a specified subordinate court. Coming to the specifics of the instant case, Mr. Mkindi submitted tlnatf#N' consent given by the State Attorney Incharge foUVlanyara Region authorizing .the prosecution of the appellant: for an economic offence; was defective for having; been issued under Section 26 (1) instead of section 26 (2) of the EOCCA. Among other authorities, the learned counsel relied on our decisions in the cases of Mahada Kipara @ Kaemsrari @ GharSes V/Republic, (Criminal Appeal No. 564 of-2021) [2024] TZCA 963 (3 October 2024, TanzLII) and Peter Kongori MaHwa & Others v. Republic, (Criminal Appeal No. 252 of 2020).£2023] TZCA 17350 (14 June 2023, TanzLII) in which we dealt with a somewhat similar situation and consequently held that, the powers to give consent under Set^'on 26:i (,l) :of::the EOCCA>r.,:was not delegatable. Upon, the above

contravention of the law, Mr. Mkindi submitted that, the purported consent had no legal effect and therefore, the trial court had acted without the requisite jurisdiction. He thus implored us to allow the appeal, nullify the proceedings of the lower courts, quash the appellant's conviction and set aside the sentence imposed on him. On behalf of the respondent, the Republic, Ms. Mary Lucas learned Principal State Attorney who appeared along with Ms, Mwanaidi Chuma learned State Attorney had little to say. She only informed the Court in her brief concession address that, she was not supporting the appellant's conviction and sentence on the grounds and submissions advanced by Mr. i^iffidi&which she prayed to adopt. ; With regard to the course to be taken after nullifying the proceedings of the lower courts, quashing the conviction and setting aside the sentence meted out on the appellant, Ms. Lucas submitted that, ordinarily the appropriate remedy would be a retrial but, given the facts and circumstances obtaining in this case, she took the view that the prayer for retrial would be inappropriate. Elaborating why she did not think an order for retrial was appropriate, the learned State.Attorney stated that, she thought that there was a disconnection in the handling of the trophies forming the subject of the charge.

Referring to the evidence of PW i who was the arresting officer, Station Seargent Masoud (PW2) the then Exhibit-keeper, and William Maregesi (PW4) a Wildlife Officer at the time who was assigned to identify and evaluate the two elephant tusks, together with the document showing the chronological record of the handling of the said tusks (Exhibit P3), Ms. Lucas submitted that, there are material contradictions in the evidence of the above-named witnesses which affect their;credibility. With such lapses in the investigation and what she considered to be gaps in the prosecution i evidence/the learned Principal State Attornev was perfectly sure that the appellant will be entitled to the benefit of doubt if an order for retrial is made.-'Ms: Lucas insisted that, in the circumstances of this case,: a,proper chain of custody was; important and indeed indispensable for purposes, of showing that the two elephant tusks forming the subject of the charge, were not tampered with and that they were really what the witnesses said they were. , In the absence.of evidence .showing a proper chain of custody as it happened in this case, Ms, Lucas submitted that, in 'the alternative, if the appellant is subjected to a second trial, the prosecution will go into seeking to fill the gaps by looking for more or better evidence to support the charge against him, a procedure which is legally abhorrent.

Bearing in mind the principle stated in the case of Fatahel Manji v. Republic (1966) 1 EA 343 that, in general, a retrial will be ordered only when the original trial was illegal or defective and that 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 trial, and further that, 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. Ms. Lucas submitted in conclusion that, taking into consideration the particular circumstances of this case, it would be unfair to subject the appellant to a new trial. She thus implored us to allow the appeal, quash the conviction and order for the appellant's release from prison on the grounds that a retrial will not serve the best interest of justice. We have considered the first ground of appeal and the arguments canvassed by Mr. Mkindi and readily conceded by Ms. Lucas. Obviously, the main issue raised by this appeal is whether the trial court was clothed with the requisite jurisdiction to adjudicate the matter. The fact that the offence of unlawful possession of Government Trophies is an economic offence which, in terms of section 3 (1) of the EOCCA, is triable by the High Court, is well settled as to attract no controversy between the parties. It is as well not in dispute that in terms

of section 26 (1) of the same Act, no trial in respect of an economic i i offence may be commenced under the Act without the consent of the DPP. However, to simplify the process of obtaining consent of the DPP for prosecutions of economic crimes, the law allows the DPP to delegate the powers vested in him by S.26 (1). To that end section 26 (2) of the EOCCA provides that: "26-(2) The Director o f Public Prosecutions shaii establish and maintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify which shall require the consent o f the Director o fPublic Prosecutionsin person and those the power o f consenting to the prosecution o f which maybe exercisedby such officer or officers subordinate to, him as he may specify acting in accordance with his general or special instructions" In the present case, it is common ground that the consent for the prosecution of the appellant who was charged with an economic offence as we said earlier, was given by the State Attorney Incharge for Manyara Region under section 26 (1) of the EOCCA which is in the exclusive domain of the DPP. Faced with a similar situation in the case of Mwita Mohere v. Republic, (Criminal Appeal No. 340 of 2020) [2024] TZCA

294 (2 May 2024, TanzLII), we held that, this was a serious irregularity as the power under section 26 (1) of the EOCCA is vested in the DPP and is not delegatable. Because of the above said infraction of the law, we finally concluded that, the trial was conducted without the requisite jurisdiction as the consent by the State Attorney Incharge was invalid. Quite clearly, what was held by the Court in the above-cited case, is a statement of the law obtaining under our jurisdiction as it stands today. On that account, we adopt what we have been holding in a plethora of our earlier decisions in relation to the exercise of the powers of the DPP under section 26 (1) and (2) of the EOCCA. We hold in consequence that, in the instant case, the consent issued by the learned State Attorney Incharge was invalid for having been issued under the wrong provisions of the law. It follows therefore that, as rightly submitted by Mr. Mkindi and conceded by Ms. Lucas, the trial of the appellant was a nullity for want of jurisdiction. On the basis of all the foregoing, we find merit in the first limb of the first ground of appeal which we accordingly allow. In line with our earlier decisions on the same subject, pursuant to section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws, we revise and nullify the proceedings of the lower courts, quash the appellant's conviction and set aside the sentence passed on him.

Regarding the course to follow after nullifying the proceedings of the lower courts, quashing the conviction and setting aside the sentence, upon considering all the surroundings of this case, we entirely agree with Ms. Lucas that, indeed a retrial will not be in the best interest of justice. In the event, we order for the appellant's release from prison, if he is not detained for some other lawful cause. DATED at ARUSHA this 8th of November, 2024 F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 8th day of November, 2024 in the presence of Mr. Hamisi Mkindi, learned advocate for the appellant and Mr. Mahfudhu Mbagwa, learned State Attorney for the respondent/Republic,