Venance Mapalala vs Republic (Criminal Appeal No. 240 of 2022) [2024] TZCA 1045 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: KEREFU, 3.A., KIHWELO, 3.A. And MPEMU. 3.A.) CRIMINAL APPEAL NO. 240 OF 2022 VENANCE MAPALALA ......... ..... ................ ......... ...... APPELLANT VERSUS THE REPUBLIC ........ ......... ..... ...... ................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Ndunquru, 3.) dated the 5th day of April, 2022 in Criminal Appeal No. 28 of 2021 JUDGMENT OF THE COURT 31s t October & 5th November, 2024 KIHWELO, 3.A.: This is a second appeal by Venance Mapalala, the appellant in quest for justice, seeking to challenge the decision of the High Court of Tanzania at Sumbawanga (Ndunguru, J.) in Criminal Appeal No. 28 of 2021 in which the High Court upheld the decision of the District Court of Mpanda at Mpanda which found the appellant and another person named, Jumanne Hussein who is not part to this appeal, guilty of two counts they stood charged and were convicted and accordingly sentenced. a

It is noteworthy that, in accordance with the charge laid at the appellant's door and evidence led by the prosecution in the trial Court in Economic Case No. 18 of 2018, the appellant was formally arraigned for two counts. Count one, was unlawful possession of firearm and count two, was unlawful possession of ammunition. The two counts were respectively, predicated on sections 20 (1) (b) and 21 (b) of the Firearms and Ammunition Control Act, No. 2 of 2015 read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 200 (the Act) as amended by sections 16 (b) and 13 (b) of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016. The particulars of the offence for the first count with respect to the appellant alleged that, on 20th October, 2018 at or about 17:30 hrs. at Imilamate area within the District of Mpanda in Katavi Region, the appellant was found in unlawful possession of one muzzle loading gun with serial number 9512 without authorization to do so under any written law. Furthermore, the particulars of the offence for the second count in respect of the appellant alleged that, on the same date, time and place

the appellant was found in unlawful possession of 50 grams of explosives, 51 pieces of iron bars ammunitions and 200 rounds of ammunitions without authorization to do so under any written law. The appellant refuted the accusations whereupon, the prosecution featured six prosecution witnesses to prove the charge, namely, Gasper Kahabi (PWl), a Park Ranger, Assistant Inspector Gofrey Ruzebila Ndangal (PW2), a Police Officer from Investigation Department in Mpanda, Marco Katabi (PW3), the Village Chairperson of Itenka, No. H. 3377 Police Constable Hamis (PW4), No. H. 6013 Detective Corporal Rwezaura (PW5) and George Pius Ilesha (P W 6 ), a Village Executive Officer of Mwankulu Village. The prosecution also produced a host of documentary and physical exhibits, namely, Certificate of Seizure (exhibit PI), Muzzle loading gun, Registration No. KHM 9512 with green belt and wooden black plastic (exhibit P2), 51 pieces of iron bars, 200 ball rounds and 50 grams of explosives (exhibit P3), Chain of custody form (exhibit P4), Cautioned statement of Jumanne Hussein (exhibit P5) and Cautioned statement of the appellant (exhibit P6). On the adversary side, the appellant defended himself and elected not to call any other witness.

When the respective cases from either side were closed, the learned trial Resident Magistrate was impressed by the prosecution case, and in the end, he was satisfied that the appellant together with his colleague committed the offences and found them guilty as charged. In consequence, the trial court convicted and sentenced the appellants to serve a prison term of twenty years for the first count and twenty years imprisonment term for the second count. The learned trial Magistrate ordered the sentences to run concurrently. Furthermore, the trial court ordered forfeiture of muzzle loading gun, exhibit P2 to the Government while the 51 pieces of iron bars, 200 ball rounds and 50 grams of explosives, exhibit P3 were ordered to be destroyed according to law. The appellant appealed to the High Court presided over by Ndunguru, J. who upon further evaluation of the evidence on record, he was satisfied that the trial court rightly found the appellant guilty for the offences charged and therefore, he dismissed the appeal and upheld the conviction and sentences. The appellant's dissatisfaction with the decision of the High Court is expressed in a memorandum of appeal comprising five grounds of grievance which were earlier on lodged in Court on 13th October, 2022.

Nonetheless, for a reason that will shortly become apparent, we think that it will be unnecessary for us to painstakingly recapitulate the background of the matter, the nature of the evidence and the five grounds of grievance raised by the appellant. When invited to address us, the appellant being a lay person not conversant with the law prayed to adopt his five (5) grounds of appeal and preferred for the respondent Republic to respond and he would rejoin if need to do so would arise, On his part, when eventually invited to: respond on the appeal, Mr. Deusdedit Rwegira, learned Senior State Attorney who argued the appeal on behalf of the respondent Republic, hastily, supported the appeal but on account of a different reason not being one of the five grounds of appeal raised by the appellant. He faulted the first appellate court for not finding that the learned trial Magistrate erred in convicting the appellant. Referring to the charge at pages 3 and 4 of the record of appeal, Mr. Rwegira contended that, the appellant was charged for two counts both which required consent of the Director of Public Prosecutions (the DPP) and certificate conferring jurisdiction to the subordinate court. In his

view, it was unfortunate that both the consent of the DPP and the certificate were defective since the charging sections were not cited. Elaborating, he argued that, the charge sheet cited sections 20 (1) (b) and 21 (b) of the Firearms and Ammunition Control Act, No. 2 of 2015 read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Act. But quite unfortunate, those charging sections were not cited in both the consent of the DPP and the certificate conferring jurisdiction, Mr. Rwegira further submitted that, in view of the above infraction, the consent and the certificate were invalid and therefore, the trial court was not properly seized with jurisdiction to try the appellant as charged. He took the view that, the only recourse available is to nullify the proceedings and the resultant orders of the trial court and the subsequent proceedings and judgment of the first appellate court. However, he was reluctant to beseech us to order re-trial for the reasons that, the evidence on record is wanting and doubtful. Expounding further, and while referring to pages 23,29 and 43 of the record of appeal he contended that, PW2, PW3 and PW6 who were at the same place and the same time recounted a different story on what exactly transpired when they were taken to where the muzzle loading gun was hidden. He

further faulted the cautioned statement of the appellant, in that it was taken out of the time prescribed by law. Illustrating, he referred us to exhibit P6 specifically at page 80 of the record of appeal where the appellant testified that he was arrested on 19th October, 2018, while PW5 at page 79 of the same record indicated that he recorded the cautioned statement of the appellant on 20th October, 2018 from 12.07 Hrs. Thus, he was of the considered opinion that, in the absence of any other explanation the cautioned statement was taken out of time. For one, Mr. Rwegira submitted that, the cautioned statement did not resolve the doubt and hence, that doubt has to be resolved in favour of the appellant. What is more, Mr. Rwegira contended that, re-trial is impracticable because the trial court at page 102 of the record of appeal ordered that, the 51 pieces of iron bars, 200 ball rounds and 50 grams of explosives, exhibit P3 be destroyed according to law. Understandably, there was no rejoinder submission from the appellant, apart from maintaining his innocence and reiterating his prayer that he be set at liberty.

In the light of the foregoing submission, the most vexing question which stands for our determination is whether the trial court was properly clothed with jurisdiction to hear and determine the matter before it. What is clear from the record is that, the appellant was charged with unlawful possession of firearm and unlawful possession of ammunition contrary to sections 20 (1) (b) and 21 (b) of the Firearms and Ammunition Control Act read together with paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Act. Being an economic offence and in terms of sections 57 and 3 (1) of the Act the matter was to be determined by the High Court, Corruption and Economic Crimes Division. Speaking of the provisions of section 3 (1) of the Act it reads: "The jurisdiction to hear and determine cases involving economic offences under this Act is hereby vested in the High Court." The above notwithstanding, courts subordinate to the High Court have jurisdiction over economic offences where the DPP transfers, by certificate, any such offence to be tried by the subordinate court in terms of section 12 (3) of the Act which provides: "The Director o f Public Prosecutions or any State Attorney duly authorized by him, may, in each

case in which he deems it necessary or appropriate in the pubiic interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." It has to be noted further that, an economic offence cannot be validly tried by the court without the consent of the DPP in terms of section 26 (1) of the Act which provide thus: "Subject to the provisions o f this section, no triai in respect o f an economic offence may be commenced under this Act sa ve with the consent o f the Director o f Public Prosecutions," In the appeal before us, the certificate conferring jurisdiction to the subordinate court is reflected at page 7 of the record of appeal and the consent of the DPP is reflected at page 6 of the same record and they were made under the appropriate provisions of sections 12 (3) and 26 (1) of the Act respectively. Looking closely at the certificate and consent, they only mention paragraph 31 of the First Schedule to and sections 57 (1) and 60 (2) of the Act, as the provisions that the appellant contravened leaving aside sections 20 (1) (b) and 21 (b) of the Firearms and

Ammunition Control Act contrary to the mandatory requirements of the law. Thus, an issue looms as to whether the consent and certificate were properly issued and therefore, valid. The answer to this question, lies in the submission which Mr. Rwegira made and to which we find considerable merit that, since the charging sections were not cited in both the consent of the DPP and the certificate conferring jurisdiction then, they were invalid. The cumulative effect is that, the appellant was charged with an offence, tried and ultimately convicted by the subordinate court without being clothed with jurisdiction. As the subordinate court was not clothed with jurisdiction as alluded to above, it is noticeably that the trial was a nullity. To say the least, on account of the infractions in the matter at hand, we have no viable option than to nullity the proceedings and judgments of the courts below as they stemmed from a nullity trial, quash and set aside conviction and sentence in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141. Having done so, we need not belabor on the other grievances raised by the appellant.

However, the way forward in this matter has exercised our mind quite considerably. We seriously pondered whether or not we should order a retrial and, in this regard, we were guided by our earlier unreported decision in the case of Shaban Abdallah v. Republic, Criminal Appeal No. 255 of 2013 in which we observed that: "It is not the rule o f the thumb that a retrial will always be ordered when the original trial is illegal or defective. Each case will depend on its own facts and circumstances,. Indeed/ an order of retrial should only be made where the interest o f justice require Now, regressing back to the appeal before us as rightly argued by Mr. Rwegira, the evidence on record is wanting and doubtful. Looking at the testimony of PW2, PW3 and PW6 who were at the same place, the same time and talking of the same thing, but their account of what exactly transpired when they were taken to where the muzzle loading gun was hidden and ultimately recovered presents different versions. Moreover, the cautioned statement of the appellant exhibit P6, was taken out of the time prescribed by law, as the appellant was arrested on 19th October, 2018 and PW5 recorded the cautioned statement on 20th October, 2018. This is, palpably vivid on record and there was no any

other explanation to the contrary hence, the cautioned statement did not resolve the doubt and therefore, that doubt is resolved in the favour of the appellant Furthermore, we have considered also, the issue of exhibits which have already been disposed. It is conspicuously clear that, the trial court at page 102 of the record of appeal ordered that, the 51 pieces of iron bars, 200 ball rounds and 50 grams of explosives, exhibit P3 be destroyed according to law. Moreover, there is glaring anomaly in the prosecution witness which is another piece of the puzzle which remains unanswered. Whereas the Certificate of Seizure, exhibit PI had eleven (11) items that were seized, but the Chain of Custody form, exhibit P4 it Only had the Muzzle loading gun, exhibit P2 and it was not clear how the other exhibits were handled. Finally, and of great significance in the orderly administration of justice, and coupled with the shortfalls we have pointed out in the prosecution evidence, we have considered our duty to guard the prospect of giving the prosecution a chance to fill in gaps in its evidence at the trial which vyill indeed, not serve the interest of justice. See, for instance, Fatehali Manji v. Republic [1966] 1 EA 343.

In the circumstances, and for the reasons stated hereinabove, we order an immediate release of the appellant unless otherwise held for other lawful cause. DATED at SUMBAWANGA this 5th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.