Kwabi Nila @ Limbu vs Republic (Criminal Appeal No. 26 of 2021) [2024] TZCA 1028 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. J.A., KITUSL 3.A. And MASHAKA. J.A.1 CRIMINAL APPEAL NO. 26 OF 2021 KWABI NILA @ LIMBU............................................................ APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Galeba, J.) dated the 10thday of August, 2020 in Criminal Appeal No. 109 of 2020 JUDGMENT OF THE COURT 29th October & 4th November, 2024 MASHAKA. J.A.: Before us, the appellant, Kwabi Nila @ Limbu is contesting the decision of the High Court of Tanzania sitting at Musoma in Criminal Appeal No. 109 of 2020 which upheld the conviction and sentences imposed on him by the District Court of Serengeti at Mugumu in Economic Case No. 121 of 2019. The appellant and Rau Mboje @ Magembe not a party to the appeal, were jointly charged with three counts; first, unlawfully entering in the National Park contrary to sections 21 (1) (c) and 29 of the National Park Act [CAP 282 R.E. 2002] (the NPA); second,

unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the NPA; and third, unlawful possession of government trophy contrary to section 86 (1) (2) (c) (iii) of the Wildlife Conservation Act, No. 5 of 2009 (the WCA) read together with Paragraph 14 of the First Schedule to, and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [CAP 200 R.E. 2020] (the EOCCA). The prosecution alleged that, on 22n d September, 2019 at Baragate area in Serengeti National Park within Serengeti District in Mara Region, the appellant and another person, entered into the Serengeti National Park without permission of the Director thereof previously sought and obtained; and were found in unlawful possession of weapons to wit; one panga and two knives without a permit and failed to satisfy an authorised officer that the same were intended for other purposes other than hunting, killing, wounding or capturing of wild animals. In the third count, the prosecution alleged that on the same day and area the appellant was found in unlawful possession of government trophy to wit; four carcasses of Gazelle Thomson valued at TZS. 4,400,000/= the property of the United Republic of Tanzania.

According to the record of appeal, after they were formally arraigned at the trial court, the appellant and another pleaded not guilty to all counts, and consequently, a trial commenced. During the trial the prosecution paraded four witnesses and relied on four documentary exhibits namely; certificate of seizure (exhibit PEI); Trophy Valuation Certificate (exhibit PE3); and inventory of claimed property (exhibit PE4). The trial court was satisfied with the prosecution evidence and found the appellant guilty, convicted and sentenced him to two years imprisonment for the 1st and 2n d counts; and for the 3r d count to pay a fine of TZS. 4,400,000/= or serve twenty years imprisonment. The sentences were to run concurrently. Aggrieved, the appellant unsuccessfully appealed to the High Court. Thus, this appeal. Basically, the substance of the brief evidence is that on 22/9/2019 at about l:00hrs, Wilson Adam (PW1), Sabo Mahimbo (PW3) and other fellow game rangers namely; Tanu Marila, Thadeus Manonga and Steven John were patrolling around Baragate area within the Serengeti National Park. They saw a torch light, followed it and arrested two persons suspected to be poachers who entered the said park without a permit and were found in possession of weapons in the park and government trophy to wit; four carcasses of Gazelle Thomson

which they seized and filled a certificate of seizure (exhibit PEI). It is stated by PW1 and PW2 that the suspected poachers introduced themselves as Kwabi s/o Nila (the appellant) and Rau s/o Mboje from Bariadi were arrested and taken to Mugumu police station and filed a case. G. 6069 D/C Elias (PW4) who conducted investigation against the two culprits. He called Wibrod Vicent (PW2) a park warden from Grumeti Ikorongo Game Reserve, who identified, valued the said trophies and filled exhibit PE3 confirming that the trophies were four carcasses of Gazelle Thomson. On the same day, PW4 then prepared exhibit PE4, took the four carcasses to the court and obtained an order from the Magistrate to destroy the said carcasses. In his defence, the appellant denied the accusations by the prosecution and stated that he was arrested in the village. He stated that after the game rangers had missed the actual suspects they were pursuing, they opted to arrest him. As alluded to earlier, the trial court convicted him on all three counts and following the dismissal of the first appeal to the High Court in Criminal Appeal No. 109 of 2020, still undaunted, he lodged this second appeal. The appellant filed a memorandum of appeal fronting five grounds of complaint as hereunder:

1. "That the trial court and the first appellate court law and fact to convict and sentence the appellant since the prosecution side failed to tender the certificate o f seizure as the same o f their reliable document to prove their case.
2. That both the trial court and the first appellate court erred in law and fact to convict and sentence the appellant as during the trial the appellant was not accorded with the opportunity to call his witnesses.
3. That the trial court and the first appellate court erred in law and fact to convict and sentence the appellant as during the hearing the trial magistrate was not impartial since denied the appellant enough opportunity to be heard.
4. That the trial court and the first appellate court erred in law and fact to convict and sentence the appellant without considering and giving weight to the defence adduced by the appellant.
5. That the trial court and first appellate court erred in law and fact to convict and sentence the appellant without prosecution side proving the case beyond reasonable doubt".

At the hearing of the appeal, the appellant appeared in person unrepresented and urged us to consider his grounds of appeal contained in the memorandum of appeal as he was convinced that he had explained sufficiently each of the grounds. He requested us to allow the respondent Republic respond to his complaints and reserved the right to rejoin if need would arise. The respondent Republic enjoyed the services of Ms. Sabina Choghoghwe, learned Senior State Attorney assisted by Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys. It is Ms. Mgumba who addressed the Court in response to the appellant's complaints and at the outset supported the appeal. We must state at the onset that having scrutinized the appellant’s grounds of appeal and heard the submissions by Ms. Mgumba, we are of the decided opinion that the determination of this appeal is centred on the issue as to whether the trial court was clothed with jurisdiction to determine Economic Case No. 121 of 2019. We will therefore deal with this issue concerning jurisdiction. Ms. Mgumba initially submitted that the trial court had no jurisdiction to conduct the trial which involved an economic offence. She contended that both the consent of the DPP and the certificate

conferring jurisdiction on a subordinate court to try economic and non economic cases were invalid having not cited the provision of the laws under which the offence of unlawful possession of government trophy in the third count was preferred. Thus, she argued that in the absence of a valid consent and certificate the trial court was not legally conferred with jurisdiction to try the case which involved an economic offence rendering the proceedings and judgments of the lower courts a nullity. To bolster her arguments she referred the case of Peter Kongori Maliwa & Four Others v. Republic (Criminal Appeal No. 253 of 2020) [2023] TZCA 17350 (14 June 2023 TANZLII). She prayed to the Court to invoke revisional powers under section 4 (2) of the Appellate Jurisdiction Act (the AJA) to quash the proceedings and judgments of the lower courts and set aside the convictions and sentences. The appellant being a layman had nothing useful to add, implored the Court to set him free. It is provided under section 3 (1) of the EOCCA, that the High Court is the Economic Crimes Court vested with powers to determine economic offences. However, under section 12 (3) of the EOCCA, the economic offences can be tried by a subordinate court if the DPP or any State Attorney duly authorized directs by certificate that it should be tried by such subordinate court. Also, the law requires that, before

any trial commences in respect of an economic offence, there must be consent from the DPP issued under section 26 (1) of the EOCCA or from a State Attorney duly authorised to issue consent under section 26 (2) of the EOCCA. In the respective consent and certificate, the provision under which the charge is preferred against the accused person must be indicated. In this appeal at page 7 of the record of appeal, we reproduce the purported consent of the State Attorney In- Charge hereunder: "IN THE DISTRICT COURT OF SERENGETI ATMUGUMU ECONOMIC CASE NO. 121 OF 2019 REPUBLIC VERSUS 1 , KWABIS/O NILA @ LIMBU 2. RAU S/O MBOJE @ MAGEMBE CONSENT OFSTA TEA TTORNEYINCHARGE I, VALENCE S. MA YENGA, Senior State Attorney In charge Mara Region, do hereby, in terms o f section 26(2) o f the Economic and Organized Crime ControlAct [CAP 200 RE2002] and GN. No. 284 o f2014 CONSENT to the Prosecution o f KWABI S/O NILA @ LIMBU and RAU S/O MBOJE @ MAGEMBE for contravening the provisions if paragraph 14 o f the first schedule to, and section 57 (1) and 60(2) o f the Economic and Organized Crime Control Act [CAP 200 R.E 2002] as Amended by the Written Laws (Miscellaneous Amendment) Act No. 3/2016, and sections 21(1) (a)

and (2) and 29(1) and 24(1) (b) and (2) o f the National Parks Act [ CAP 282 R.E. 2002], the particulars o f which are stated in the charged sheet DA TED at MUSOMA this 7th Day o f November, 2019. Signed SENIOR STA TEA TTORNEYIN-CHARGE." The certificate purporting to confer jurisdiction to a subordinate court issued by the learned Senior State Attorney In-Charge was as follows: 1 1 IN THEDISTRICT COURT OFSERENGETI ATMUGUMU ECONOMIC CASE NO. 121 OF 2019 REPUBLIC VERSUS

1. KWABIS/O NILA @ LIMBU a. RAU S/O MBOJE @ MAGEMBE CERTIFICATE CONFERRINGJURISDICTION ON A SUBORDINATE COURT TO TRY AN ECONOMIC AND NON ECONOMIC CASES j I , VALENCES. MAYENGA, Senior State Attorney In- charge Mara Region, do hereby, in terms o f section 12(4) o f the Economic and Organized Crime ControlAct [CAP 200 RE 2002J and GN. No. 284 o f 2014 ORDER that's KWABI S/O NILA @ LIMBU and RAU S/O MBOJE @ MAGEMBE who are charged for contravening the provisions o f paragraph 14 o f the first schedule to, and section 57(1) and 60(2) o f the Economic and Organized Crime Control Act [CAP 200

R.E 2002] as amended by the Written Laws (Miscellaneous Amendment) Act No. 3/2016, and Sections 21(1) (a) and (2) and 29(1) and 24(1) (b) and (2) o f the National Parks Act [CAP 282 R.E 2002} be tried by the District Court o f SERENGETI District at MUGUMU. DATED at MUSOMA this 7thDay o fNovember, 2019. Signed SENIOR STATEA TTORNEYIN-CHARGE." As earlier stated, the purported consent and certificate issued by the Senior State Attorney did not cite the provision of law creating the offence in the 3rd count of unlawful possession of Government Trophy that is, section 86 (1) and (2) (iii) of the WCA. The legal consequence of such omission vitiates the trial proceedings and judgment as the trial court acted without jurisdiction. In view of the aforegoingdiscussion and the settled position of the law, as correctly submitted by the learned StateAttorney, on account that the trial court is lacking jurisdictionto entertain the trial, the proceedings and judgments of the two lower courts are a nullity. The fate of proceedings based on invalid consent and certificate has been a subject of discussion by the Court in numerous cases including Rhobi Marwa Mgare and Two Others v. Republic, Criminal Appeal No. 192 of 2005 (unreported), Dilipkumar

Maganbai Patel v. The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25th July 2022,TANZLII), James Siluli @ Mwita v. Republic (Criminal Appeal No. 24 of 2021) [2024] TZCA 1006 (29 October 2024 TANZLII). In Dilipkumar Maganbai Patel v. Republic (supra), we stated: 'We have no doubt that in view o f our deliberation above the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) o f the EOCCA but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to section 86(1), (2) (ii) and (3) o f the WCA which was clearly cited in the charge sheet The certificate and consent were therefore incurably defective and the trial magistrate could not cure the anomaly in judgment as suggested by the learned State Attorney for the respondent The defects rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason ’ we are constrained to find that the trial and proceeding before the Resident Magistrate Court o f Dar es Salaam at Kisutu in Economic Case No. 58 o f 2016 and the High Court in

Criminal Appeal No. 146 o f 2018 were nothing but a nullity". Having observed that the trial was a nullity, likewise the proceedings and judgment of the first appellate court, we agree with the learned State Attorney that, a retrial is not worthy in the interests of justice given the apparent weak prosecution evidence as we will explain. The first count is unlawful entry in the National Park contrary to section 21(1) (a), (2) and 29 (1) of the NPA, while the second count is unlawful possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the NPA. The Court has traversed this path in several cases and it is settled that the said provisions create no offence, but provides for penalties for those who commits an offence under the Act. Therefore, the appellant was tried, convicted and sentenced for non-existent offence. In an akin situation, in Dogo Marwa @ Sigana and Another v. Republic, Criminal Appeal No. 512 of 2019 [2021] TZCA 593 (21 October 2021 TANZLII), the Court stated: "It is now apparent that the amendment brought under Act No. 11 o f2003 deleted the actus reus (illegal entry or illegal remaining in a national park) and got confusion in section 21

(1) o f the NPA. As far as we are concerned, the appellants were charged, tried, convicted, and sentenced for a non-existent offence o f unlawful entry into Serengeti National Park'' From the foregoing, it is clear to us that the appellant was charged and convicted under section 21 (1) (a) of the NPA in respect of the first count which does not disclose any offence and the second count for unlawful possession of weapons in a National Park which has no legs to stand on. On the third count regarding the offence of possession of government trophies, the prosecution evidence was discrepant on the manner in which the carcasses of the Gazelle Thomson were disposed. PW4 did not state specifically if the appellant was present during the proceedings for the disposal of the trophies. The powers to issue disposal orders of a perishable exhibit are provided for under section 101 (1) (a) (i) and (2) of the WCA. It is settled law that, the disposal must be conducted in the presence of a suspect from whom the exhibit was retrieved and he should be accorded opportunity to be heard and raise objection if any, in respect of the intended disposal of the exhibit. See for instance, Mohamed Juma @ Mpakama v. The Republic, Criminal Appeal No. 385 of

2017 and Buluka Leken Ole Ndidai and Another v. Republic, Criminal Appeal No. 459 of 2020 (both unreported). In Buluka Leken Ole Ndidai and Another v. Republic (supra), the Court stated: "...it will be sufficient for a magistrate before whom an order to dispose a perishable Government trophy or trophies, to make such order, provided that; one, the prayer to issue the order to dispose of perishable exhibits may be made by the investigator or the prosecution informally before a magistrate in chambers; two, if the order is likely to be relied upon in any future court proceedings against any suspect, that suspect must be present at the time o f making the prayer and; three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shall record the fact that, the suspect was invited to make any comments, remarks or objections, but he opted to make none. Five, if the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side of the Inventory Form or on any separate piece o fpaper or papers and shall be signed by the magistrate . "

The record of appeal is silent whether the appellant was present during the purported disposal. We safely conclude that the appellant was not present during the purported disposal, hence, denied the right to be heard before conducting disposal. Thus, given the discrepant disposal, exhibit PE4 cannot be proved against the appellant and as such, the trial court wrongly invoked the provisions of section 101 (2) of the WCA to ground the conviction of the appellant. On chain of custody, the evidence of PW1 and PW3 did not suggest if the trophy was intact from the time it was seized, transported, stored and disposed. PW3 did not state to whom the trophies were handed to. Likewise, PW4 did not state as to how the said trophies came to his possession, and PW2 did not state who handed to him the trophies for valuation as he only asserted that he was called by PW4. This creates doubts if the government trophies were the same as those which were seized, valued and destroyed. Therefore, the chain of custody was compromised. In view of the foregoing, since the trial court embarked on trial in the absence of jurisdiction, we invoke our revisional powers under section 4 (2) of the AJA and nullify the trial proceedings and judgments of both lower courts. Consequently, we quash the

conviction and sentences meted on the appellant and order the immediate release of the appellant unless held for some other lawful cause. DATED at MUSOMA this 1s t day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P . KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 4th day of November, 2024 in the presence of the Appellant in person un-represented and Mr. Michael Kayombo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL