Chacha Mengáni Kigocha vs Republic (Criminal Appeal No. 84 of 2022) [2024] TZCA 1056 (6 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. J.A.. KENTE J.A. And MGONYA, J.A.) CRIMINAL APPEAL NO. 84 OF 2022 CHACHA MENG'ANI KIGOCHA ................................................. APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) fMzuna, 3 .^ dated the 04th day of March, 2022 in Criminal Appeal No. 05 of 2021 JUDGMENT OF THE COURT 22n d October & 6th November, 2024 MGONYA. J.A.: This is a second appeal filed by Chacha Meng'ani Kigocha, the appellant herein against the decision of the High Court of Tanzania at Arusha which upheld the conviction and sentence imposed on him by the District Court of Ngorongoro. Briefly, according to the record of appeal, the appellant was arraigned before the District Court of Ngorongoro at Loliondo vide Criminal Case No. 04 of 2018 and charged with three counts: First count; Unlawful Hunting of Scheduled Animals without permit, contrary to section 47 (a) and (aa) 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), both of the Economic and Organized Crimes Control Act Cap. 200 (the EOCCA) as amended by section 16 (a) and 13 (b) respectively of the Written Laws Amendment Act No. 3 of 2016. Second count; Unlawful Possession of Government Trophies; contrary to section 86 (1) and (2) (b) of the WCA read together with Paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2), both of the EOCCA. And third count; Unlawful Possession of weapons in circumstances contrary to Section 103 of the WCA together with Paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) both of the EOCCA. Particulars of the offence showed that; on 10th November, 2018, at Karkamor area, Loliondo Game Controlled area within Ngorongoro District Arusha Region, the appellant was found in unlawful possession of one Giraffe head and Giraffe meat equivalent to one killed giraffe valued at TZS. 33,630,000.00 the property of the Government of Tanzania. On the second count, it was alleged that, on the same date and place, the appellant was found in possession of four pieces of traps of animals, one bush knife and two knives for the purpose of catching animals therein. The appellant pleaded not guilty to the charge, hence the trial followed. In a bid to prove the case, a total of seven witnesses were summoned by the prosecution and eight exhibits were tendered and

admitted in evidence. The appellant defended himself on oath and denied the allegations levelled against him by the prosecution. The substance of the prosecution evidence was that, on 10th November, 2018, PW2, PW3 and PW4, the Game Officers, received information that there were poachers within the Game Reserve killing animals at a certain place. Having that information, they asked for reinforcement from the police and they went to the area of the scene. They managed to reach the scene by the assistance of vulture birds which usually accumulate around the area where there is a meat. They surrounded the place and successfully arrested the appellant who was in possession of one killed Giraffe. Moreover, they inspected that area and found four wires, one panga and two knives. When they interrogated the appellant whether he had a permit to enter into the Game Reserve and kill the animal, he replied to have none. Therefore, a seizure certificate was prepared at the scene and signed by the appellant who was then apprehended and brought to Loliondo police station with the exhibits which were handed to G2906DC Idd (PW1), the exhibit keeper. The next day, on ll/li/2 0 1 8 Christian Cyril (PW5) a Game Officer was assigned to evaluate the seized trophies and valued it at USD 15,000.0 which by the exchange rate of that date was

equal to TZS. 33,630,000.00. Further, the valuation form (exhibit P5) was prepared in that respect. The next day, on 12/11/2018, Willium Keriko (PW4) prepared the inventory form (exhibit P.7) which was taken to court for securing a disposal order from the Magistrate. Finally, the appellant was taken to court and charged with the offences mentioned above. On the defence side, the appellant denied to commit the offence charged. He told the trial court that, he was arrested on 09/11/2018 when he was traveling from Mugumu Mbikili to Loliondo where his inlaw was arrested. After a full trial, the appellant was found guilty of three counts, hence, convicted and sentenced to serve twenty years imprisonment for the first and second counts respectively and one year imprisonment for the third count. All the sentences were ordered to run concurrently. It is noted that though the charge dated 3rd June, 2020 which contained two counts is the only one included in the record of appeal, upon perusal of the original file, there is a charge dated 16th July, 2020 that contained three counts of which the appellant was prosecuted, convicted and sentenced. We further note that, according to the record of appeal at page 38, on 26th August, 2020 the prosecutor informed the court that he had received a consent from the DPP'S Office and thus he

prayed to read the charge. The trial magistrate then ordered that the Consent was adopted and authorized the charge which contained three counts to be read, and thereafter, he recorded a plea of not guilty in respect of all counts. Nevertheless, according to the trial court's record, of the proceedings on that date, though there is no indication that there was a certificate conferring jurisdiction to the trial court from the DPP, the Charge Sheet contained in the original record, which purportedly was accompanied with the Consent and Certificate of the State Attorney Incharge of Arusha Region is not endorsed by the court. It thus questionable whether the appellant was properly tried upon the Consent of the DPP and Certificate conferring jurisdiction on the trial court to determine the case. It is no wonder that the said Consent and Certificate are not in the record of appeal as required. The appellant was aggrieved by both the convictions and sentences. However, he unsuccessfully appealed to the High Court of Tanzania at Arusha vide Criminal Appeal No. 05 of 2021. It was the first appellate court's findings that, the prosecution proved the case on the required standard, and that the convictions and sentences meted to the appellant were properly reached. As a result, the appeal was dismissed in its entirety.

Still dissatisfied, the appellant filed this second appeal backed by a Memorandum of Appeal comprising nine grounds of appeal. However, for the purpose of the judgment we reproduce only the first ground. "That, both the trial court and the first appellate courtgrossly erred in law and fact to convict and sentence the appellant as the trial court lacked Jurisdiction to try the case at hand since there was no consent o f the Director o f Public Prosecutions and certificate conferring Jurisdiction to the subordinate court to try the case at hand which fa ll under Economic offence." At the hearing of the appeal, the appellant appeared in person, unrepresented whereas, Ms. Eliainenyi Njiro, Ms. Amina Kiango and Ms. Neema Mbwana, all learned Senior State Attorneys appeared for the respondent Republic. When invited to submit on the grounds of appeal, the appellant prayed the Court to consider the written submission in determining his appeal. He had nothing to add. In reply, Ms. Njiro at the outset supported the appeal. The thrust of the learned Senior State Attorney's stance was premised on the strength of the first ground of appeal reproduced above, to the effect that the trial court entertained the case without having jurisdiction to try it.

Submitting in support of the appeal, Ms. Njiro referred us to section 3 of the EOCCA, and stated that, due to the fact that this was an economic offence case, it was supposed to be tried by the High Court. He added that, a subordinate court would only have tried it if there was a Consent and Certificate issued by the Director of Public Prosecutions (the DPP) or a duly authorized officer under section 26(1) and (2) and 12(3) of the EOCCA respectively. She argued that, in this case there was no any endorsement of the consent of the DPP to prosecute the appellant and certificate conferring jurisdiction to the trial court to try the case. In this regard, placing reliance on the decision of the Court in John Julius Martin & Another v. Republic (Criminal Appeal No. 42 of 2020) [2022] TZCA 789 (8 December 2022, TanzLII), she argued that, the omission is fatal, hence the proceedings of the trial court and those of the first appellate court are a nullity. In the end, Ms. Njiro implored us to allow the appeal and invoke the provisions of section 4(2) of the appellate Jurisdiction Act, Cap. 141 (the AJA), to nullify the proceedings of the two lower courts, quash convictions and set aside the sentences imposed on the appellant. On the way forward, she submitted that, under the circumstances, there are two options for the Court: first, to order retrial; and second, to order the release of the appellant from prison. However, it was Ms. Njiro's

submission that, considering that the first appellate court expunged exhibits P2 - P8, therefore, a retrial will not be in the interest of justice as there would be no tangible evidence to connect the appellant with the offence so as to sustain conviction. Therefore, she submitted that, the only option is for the Court to allow the appeal and order release of the appellant from prison. Having heard Ms. Njiro's submission, the appellant had nothing substantial to rejoin. Essentially, he urged the Court to allow the appeal based on the first ground and set him free. On our part, having considered the concurrent submissions of the parties in respect of the first ground of appeal, and the material in the record of appeal, we agree that, the trial court tried and determined the case without having the requisite jurisdiction. As alluded to above, the appellant was charged with the offence of unlawful possession of Government trophy which falls within the ambit of economic offences triable by the High Court. It is evident in the record of appeal at page 38 that, on 26/08/2020 when the case was before the trial court, the Prosecutor informed the trial magistrate that, they had received the consent from DPP's office to continue with the case. It is from that information that the trial magistrate ordered that the said consent was

adopted and went on to read the charge to the appellant who was then asked to plead thereto as stated earlier on. It is however noteworthy that despite the reference to the consent, nothing was stated by the prosecutor regarding the certificate conferring jurisdiction to the District Court of Ngorongoro to determine a case. More importantly as we have stated above, the Consent and Certificate were not formally indorsed and admitted to form part of the record. That explains why they are not part of the record of appeal. This was a fatal irregularity as the trial court acted without the requisite jurisdiction. Consequently, the trial court proceedings are a nullity. The irregularity also tainted the first appellate court's proceedings. In the case of Maganzo Zelamoshi @ Nyanzomola v. Republic (Criminal Appeal No. 355 of 2016) [2018] TZCA 543 (7 September 2018, TanzLII), which was referred by the Court in Aloyce Joseph v. Republic (Criminal Appeal 35 of 2020) [2022] TZCA 771 (5 December 2022, TanzLII), it was stated that: "..when the consent o f the DPP to commence a prosecution and the certificate to confer jurisdiction on the subordinate court are not formally filed in the trial court, the trial becomes a nullity'

Likewise, in Dilipkumar Magambai Patel v. Republic (Criminal Appeal No. 270 of 2019) [ 2022] TZCA 477 (25 July 2022, TanzLII), it was held that: "This court in its various decisions had emphasized the importance o f compliance with the provisions o fsection 12(3) and 26(1) o f the EOCCA and held that the certificate and consent o f the DPP must be given before commencement o f a trial involving an economic offence before subordinate courts." As a result, we find that the first ground of appeal has merit and we allow it. On the way forward, as rightly submitted by Ms. Njiro, after having nullified the two lower courts' proceedings, and considering that a retrial will not be in the interest of justice because the substance of the would- be credible evidence is tainted which led to the same being expunged, we refrain to order it. Premising on the above stated reason, we find the first appellate court have erred to sustain the convictions and sentences on the appellant. Consequently, we allow the appellant's appeal in its entirety. Ultimately, in terms of section 4(2) of the AJA, we nullify the proceedings

of the two courts below, quash convictions and set aside the sentences imposed on the appellant. We further proceed to order that the appellant be released from prison forthwith unless he is otherwise lawfully held. DATED at ARUSHA this 5th day of November, 2024 F. L. K . WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGOIMYA JUSTICE OF APPEAL The Judgment delivered this 6th day of November, 2024 in the presence of the appellant in person and in the presence of Mr. Donard Mahona, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.