Amos Nyakiha vs Republic (Criminal Appeal No. 42 of 2021) [2024] TZCA 1023 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. J.A.. KITUSI, J.A. And MASHAKA. J J U CRIMINAL APPEAL NO. 42 OF 2021 AMOS NYAKIHA......................................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) ( Kahvoza, J.1 ) dated the 7th day of December, 2020 in Criminal Appeal No. 99 of 2020 RULING OF THE COURT 29th October & 1st November, 2024 KITUSI, J.A.: This second appeal by Amos Nyakiha challenges the decision of the High Court of Tanzania sitting at Musoma which affirmed the decision of the District Court of Serengeti at Mugumu before which he and another who escaped had stood charged with three counts to wit: "IN THE DISTRICT COURT OF SERENGETI AT MUGUMU ECONOMIC CASE NO. 106 OF 2018 REPUBLIC VERSUS 1 . AMOS S/O NYAKIHA 2. DAUD S/O NYAMKORO @ MWITA 3 . MARWA S/O MAHANGA @MWITA

1 st COUNT: STA TEMENT OF OFFENCE: UNLAWFUL ENTRY INTO THE NATIONAL PARK; Contrary to Section 21 (1) (a), (2) and 29 (1) o f the National Parks Act [CAP 282 R.E:2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 11 o f 2003. PARTICULARS OF OFFENCE: AMOS S/O NYAKIHA, DAUDI S/O NYAMKORO @MWITA AND MARWA S/O MAHANGA @MWITA, on 3 d day o f October, 2018 at Korongo la Nyamburi area into Serengeti National Park within Serengeti District in Mara Region, entered into the Serengeti National Park without permission o f the Director thereof previously sought and obtained. 2 nd COUNT: STA TEMENT OF OFFENCE: UNLAWFUL POSSESSION OF WEAPONS IN THE NATIONAL PARK; Contrary to Section 24 (1) (b) and (2) o f the National Parks Act, [CAP 282 R.E:2002]. PARTICULARS OF OFFENCE: AMOS S/O NYAKIHA, DAUDI S/O NYAMKORO @MWITA AND MARWA S/O MAHANGA @MWITA, on 3rd day o f October, 2018 at Korongo la Nyamburi area into Serengeti National Park within Serengeti District in Mara Region, were found in unlawful possession o f weapons to wit; one Panga and two animal trapping wires without permit and failed to satisfy an authorized officer that the same were intended to be used for purposes other than hunting, kiiling, wounding or capturing o f wild animals.

3 rd COUNT: STA TEMENT OF OFFENCE: UNLAWFUL POSSESSION OF GOVERNMENT TROPHIES; Contrary to Section 86(1) and (2) (c) (Hi) o f the Wildlife Conservation Act No. 5 o f2009 as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 o f 2016 read together with paragraph 14 o f the first . schedule to, the Economic and Organized Crime Control Act [CAP. 200 R.E 2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 o f 2016. PARTICULARS OF OFFENCE: AMOS S/O NYAKIHA, DAUDI S/O NYAMKORO @MWITA AND MARWA S/O MAHANGA @MWITA, on 3rd day o f October, 2018 at Korongo la Nyamburi area into Serengeti National Park within Serengeti District in Mara Region, were found in unlawful possession o f Government Trophy to wit: one leg o f wildebeest and one Rib of wildebeest valued at Tshs. 1,417,000/= the properties of the United Republic o f Tanzania. The District Court convicted the appellant of all counts and sentenced him to 2 years, 3 years and a fine of Tshs. 10, 417,000.00 or to 20 years imprisonment in default, respectively for the first, second and third counts. The High Court upheld the convictions and sentences, hence this appeal, predicated on 3 grounds challenging the evidence for the prosecution especially the certificate of seizure which the appellant disputed to have signed. The appellant appeared in person to argue his appeal but wished to hear the submissions by the respondent Republic, first. As, luck would

have it, the respondent Republic appearing through Ms. Sabina Choghoghwe, learned Senior State Attorney, Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys, supported the appeal. Ms. Haule who argued the appeal on behalf of her colleagues, made it clear from the start that she was supporting the appeal but on grounds other than those raised by the appellant. The learned State Attorney submitted that the offence charged in the first count is non-existent, making the proceedings in respect of that offence a nullity. This position causes natural death to the second count which alleges that the appellant was found in possession of weapons within a National Park, because this offence is dependent on that in the first count. On the third count, Ms. Haule submitted that, the District Court before which the appellant was tried had no automatic jurisdiction to try an offence under the Economic and Organized Crime Control Act Cap 200 (EOCCA). However, she argued, jurisdiction may be conferred by a consent signed either by the Director of Public Prosecutions (DPP) or a State Attorney, under section 26 (1) of EOCCA, and section 26 (2) of EOCCA respectively.

The learned State Attorney pointed out that the consent in this case was made under section 26 (1) of EOCCA but instead of it being signed by the DPP it was wrongly signed by a Principal State Attorney. She added that the consent as well as the certificate were also inadequate for not specifying the offence(s) to be tried, citing the case of Peter Kingori Maliwa & 4 Others v. Republic (Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14 June 2023) TANZLII. Ms. Haule submitted further that the consent and certificate were therefore invalid which rendered the proceedings before the District Court null and void for want of jurisdiction. She prayed for the same to be nullified under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (AJA). Ordinarily, she said, she would have prayed for a retrial but aware of the principle in the case of Fatehali Manji v. Republic [1966] EA 334, she desisted from making that prayer. This is because, she submitted, there are gaps in the prosecution case, and an order of retrial might provide an undue opportunity to the said prosecution to fill those gaps. She cited at least one instance of a gap that might be covered if a retrial is ordered, that the disposal of the exhibit was done in the absence of the appellant which violates the settle principle in Mohamed Juma

Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019) TANZLII. We agree with Ms. Haule that the proceedings before the District Court suffered the incurable defects mentioned by her. First the offence charged in the first count is non-existent and that in the second count had no legs to stand on. That court proceeded without jurisdiction so far as the economic offence of being in possession of government trophies charged in the third count, was concerned. It is also evident that the rule as to chain of custody of the trophies was violated, which is another area that the prosecution would have filled the gap to the detriment of the appellant, if a retrial were to be ordered. Having heard the submissions by Ms. Haule, the appellant simply prayed for an order setting him free. We accept Ms. Haule's invitation and act under section 4 (2) of the AJA to nullify the proceedings before the District Court, quash the judgment and set aside the sentence. The proceedings before the High Court resulting from the proceedings that were null, are equally a nullity. We quash the judgment and orders made by the High Court. We agree with Ms. Haule that an order of retrial will not be in the interest of justice and against the settled principle in Fatehali Manji (supra).

Consequently, we order the appellant's immediate release from custody unless he is being held for some other lawful case. 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 Ruling delivered this 1s t day of November, 2024 in the presence of the Appellant in person - unrepresented and Mr. Felix Yona Mshama, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.