Mahada Kipara @ Kaemereri @ Charles vs Republic (Criminal Appeal No. 564 of 2021) [2024] TZCA 963 (3 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KOROSSO. 3.A.. KAIRO. J.A. And KHAMIS, J.A.) CRIMINAL APPEAL NO. 564 OF 2021 MAHADA KIPARA @ KAEMERERI ©CHARLES ........ .................. APPELLANT VERSUS THE REPUBLIC .......... ...................... ................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) fGwae. J.1 ) dated the 6th day of August, 2021 in Criminal Appeal No. 20 of 2020 JUDGMENT OF THE COURT ffhJuly & 3rd October, 2024 KAIRO, J.A.: At the District Court of Babati at Babati, the appellant was charged with unlawful possession of Government Trophy contrary to Section 86 (1) (2) (b) of the Wildlife Conservation Act No. 5 of 2009 (the WCA) as amended by Section 59 (a), (b) of the Written Laws (Miscellaneous Amendment) Act No. 2 of 2016 read together with paragraph 14 of the 1s t Schedule to and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap 200 (the EOCCA) as amended by Sections 16 (a) and 13 (b) respectively of the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016.

The particulars of the offence as per charge were that, on 1s t March, 2017 at Burunge Wildlife Management Area-Vilima Vitatu Village within Babati District, Manyara Region, the appellant was found in unlawful possession of eight pieces of elephant tusks valued at TZS. 134,112,600.00, the property of the Government of the United Republic of Tanzania. He denied involvement in the commission of the offence. A brief background resulting to the instant appeal is as follows: Solomon Jeremiah, a wildlife officer (PW1) was at the material time, working with Arusha Northen Zone Task Force (KDU) covering Makuyuni, Minjingu and Mdori areas. Towards the end of February, 2017, PW1, together with one, Raymond Mdoe (PW3), while in their normal duties, were informed that, some people were looking for prospective buyers of elephant tusks. They plotted a trap by contacting the sellers and posing as prospective purchasers. Subsequently, on 1s t March, 2017, PW1 and PW3 arranged with the sellers of the elephant tusks to meet and conclude the deal at Burunge Park along Vilima Vitatu area. Upon arrival at the venue, they met with the sellers who were five in number, including the appellant. After agreeing on the terms, the appellant entered into the bush and came up with a green sulphate bag containing eight pieces of elephant tusks.

Upon production of the bag, PW1 and PW3 introduced themselves as law enforcers and arrested the appellant. The other sellers took to their heels and vanished into the thin air. Following the arrest, PW1 issued a seizure certificate (exh. PI) which was co-signed by the appellant and PW1. Thereafter, the same was witnessed by PW3. The appellant was then taken to Minjingu Police Station and the incident was reported to S/SGT Zuberi (PW2) who was on duty. Subsequently, the appellant was taken to KDU in Arusha alongside the seized exhibits PI and P3 which were handed over to Buchad Mukandala (PW4), an exhibit keeper. A handing over note (exh. P2) was accordingly issued and signed by the appellant as well. PW4 also filled in a chain of custody form in respect of the seized tusks (exh. P4). The elephant tusks were examined for identification and valued by Felix Meshack Mayumbilwa (PW5), a Wildlife Officer who also issued a trophy valuation certificate (exh. P5). The appellant was later interrogated by D/CPL Donald (PW6) on 2n d March, 2017 from 06:30 hrs. to 09:00 hrs and his cautioned statement was admitted in evidence as exh. P6.

Having heard the parties and evaluated the evidence adduced before it, the trial court found the prosecution had proved its case beyond reasonable doubt and that, the appellant committed the offence he was charged with. He was accordingly convicted and sentenced to pay a fine of TZS. 1,341,126,000.00 or serve 20 years imprisonment in default. Aggrieved, the appellant preferred an appeal to the High Court at Arusha in Criminal Appeal No. 20 of 2020. On 6th August, 2021, the High Court found that there were some procedural irregularities on the tendering and admission of exhibits PI, P2 and P6, and thus expunged them from the record. That notwithstanding, the High Court found that, the oral evidence of PW1 and PW3 was sufficient to prove the charge and thus, partly allowed the appeal sustaining the conviction and the sentence. Still determined to vindicate his innocence, the appellant approached this Court, armed with fourteen grounds of appeal, being nine grounds in the substantive memorandum of appeal lodged on 8th August, 2022 together with two sets of supplementary memoranda lodged on 27th June, 2024 and 8th July 2024, containing four and one grounds respectively. The appellant also filed written arguments in support of the appeal. However, for the reasons which will become

apparent shortly, we shall not reproduce them except for the sole ground of appeal in the supplementary memorandum filed on 8th July, 2024, which suffices to dispose of the appeal. The ground reads: "The first appellate court erred in law and fact in not finding that, the trial court had no jurisdiction to try Economic Case No. 5 o f2020, because the consent was issued under section 26 (1) o f the EOCCA, instead o f section 26 (2) o f the EOCCA, therefore the consent was defective". At the hearing of the appeal, the appellant appeared in person without representation whereas the respondent Republic, was represented by Mr. Benedict Kivuma Kapela, learned Senior State Attorney and Ms. Rose Sebastian Kayumbo, learned State Attorney. Before the hearing could commence, Mr. Kapela brought up a point of law for consideration regarding an irregularity in the consent issued by the Regional Prosecution Attorney of Manyara authorizing prosecution of the appellant on behalf of the Director of Public Prosecutions (the DPP). Mr. Kapela submitted that, according to section 3 (1) (3) (a) (b) of the EOCCA, the jurisdiction to hear and determine corruption and economic crime cases is vested in the High Court Corruption and

Economic Crimes Division. However, he submitted that, in terms of section 26 (1) of the EOCCA, no trial in respect of an economic offence may be commenced under the Act without the consent of the DPP. In addition, he contended that, under section 26 (2) of the EOCCA, the DPP can delegate his powers to an officer or officers subordinate to him as may be specified in the requisite consent, as happened in this case. He advanced that, the consent toprosecute the appellant in the case at hand was erroneously issued by the Regional Prosecution Officer under section 26 (1) of the EOCCA instead of section 26 (2) of the EOCCA. He referred us to page 81 of the record of appeal where the said consent appears. Further to that, the record does not show the same to have been endorsed by the trial court. The learned counsel therefore concluded that, the consent the was invalid for being issued by the officer who had no authority. Thus, the appellant's prosecution was invalid, rendering the proceedings, conviction as well as the sentence arising therefrom illegal. He cited the case of Peter Kongori Maliwa and Others vs Republic, Criminal Appeal No. 252 of 2020 [2023] TZCA 17350 (14 June 2023) TANZLII to fortify his arguments. Consequently, he beseeched us to follow our stance in the case of Joseph Ngadupa Akilimbaya and Another vs Republic, Criminal

Appeal No. 632 of 2020 [2024] TZCA 39 (14 February 2024) TANZLII and moved us to invoke section 4 (2) of Appellate Jurisdiction Act, Cap 141 (the AJA) to nullify the trial court's proceedings, quash the conviction and set aside the sentence imposed on the appellant, together with the proceedings and judgment of the High Court, having originated from nullity proceedings. When asked by the Court on the way forward, Mr. Kapela implored the Court to order a retrial, asserting that, the evidence available on record was sufficient to mount conviction of the appellant. Clarifying, he submitted that, the appellant was apprehended red- handed with the eight pieces of elephant tusks by PW1 and PW3, and that, the said pieces were examined and confirmed by PW5 to be of elephant tusks who explained how he identified them. He also contended that, the chain of custody on the impounded pieces of elephant tusks had not been broken from when they were seized on 1s t March, 2017 until the same were produced in court and admitted in evidence on 26th March, 2019 as exhibit P3. He maintained that, a re trial will suit the demand of justice in the circumstances of this case. In reply, the appellant welcomed the submissions by the Senior State Attorney and moved the Court to nullify the trial court's

proceedings, decisions and orders arising therefrom but departed on the way forward praying the Court to order for his release from the prison. It was the contention of the appellant that, retrial is not in the interest of justice as argued by the respondent because the prosecution case was weak and incapable of proving charges against him beyond reasonable doubt as required. Having heard the parties' rival arguments and examined the record of appeal, the issue for our determination is whether or not the appeal is merited. It is a legal requirement under section 26 (1) of the EOCCA that, no trial can be conducted in respect of an economic offence, like the one the appellant was charged with, without the consent of the DPP. However, for expeditious process of seeking and obtaining his consent, the DPP may delegate those powers to his subordinate officers sanctioned to exercise those powers under section 26 (2) of the EOCCA. For ease of reference, we wish to reproduce section 26 (1) and (2) as follows: "(1) Subject to the provisions o f this section/ no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director of Public Prosecutions.

(2) The Director o f Public Prosecutions shaii establish and maintain a system whereby the process o f seekingand obtaining o f his consent for prosecutions may be expedited and made for that purpose by notice published in the Gazette specify economic offences the prosecutions o f which shaii require the consent o f the Director o f Public Prosecutions in person and those the power o f consenting to the prosecution o f which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his generai or special instructions " Our perusal of the consent at issue appearing at page 81 of the record of appeal revealed that, the same was erroneously issued under section 26 (1) of the EOCCA by the Regional Prosecution Officer who ought to have issued it under section 26 (2) of the EOCCA. It goes therefore that, the consent under review, having been wrongly issued by a person not mandated to act under that provision, it did not confer jurisdiction to the trial court to prosecute the appellant [See: Peter Kongori Maliwa (supra), Solomon Makuru Mtenya @ Kuhembe & Others vs Republic, Criminal Appeal No. 117 of 2022 [2024] TZCA 376 (20 May, 2024) TANZLII.

It is a settled principal of law that, any decision reached by any court without jurisdiction is a nullity and there is a plethora of authorities on this issue including Fanuel Mantiri Ng'unda vs Herman Mantiri Ng'unda & 2 Others [1995] T.LR. 155, CRDB Bank PLC vs Lusekelo Mwakapala, Civil Appeal No. 143 of 2021[2023] TZCA 17637 (22 September, 2023) TANZLII, Aloyce James Kasawa vs William Mufungo Mwangwa & Another, Civil Reference No. 5 of 2021 [2021] TZCA 610 (22 October, 2021) TANZLII, to mention but a few. In CRDB Bank PLC (supra), the Court observed as follows: "It is worth noting that, the question o f jurisdiction is crucial and must be determined by the court/ tribunai at the eariiest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it... Generaiiy, a court is barred to entertain a matter in which it has no jurisdiction" Applying the above authorities to the situation at hand and having found that the consent of the DPP in the case at hand was invalid, it follows that, the appellant was wrongly prosecuted before the trial court as correctly argued by the learned Senior State Attorney.

That apart, there was yet another irregularity as regards the failure of the trial court to endorse and or to formerly admit the consent and the certificate so as to form part of its record, despite being filed. The Court in a similar scenario in the case of Salum s/o Andrew Kamande vs Republic, Criminal Appeal No. 513 of 2020 [2023] TZCA 133 (22 March 2023) TANZLII quoted in Solomon Makuru Mtenya @ Kuhembe & (supra) observed as follows: 7/7 the present appeal, at pages 3-4 o f the record o f appeal, there Is a consent to prosecute the appellant and certificate conferring Jurisdiction on the District Court o f Mufindi at Mafinga but the record to form part o f the proceedings. We note that at page 15 o f the record o f appeal, the PP informed the trial court that he had received the consent from the DPP but the record is silent as to whether the same was received to form part o f the trial record. Since there is no dear indication discerned from the record o f appeal as to how the consent and certificate found their way into the trial court record, we are in agreement with the counsel for the parties that the appellant was tried without prior consent o f his prosecution and there was no certificate issued

to confer jurisdiction on the District Court o f Mufindi at Mafinga. Given that there was no consent and certificate, the trial court iacked Jurisdiction to try the appeilant with an economic offence . Accordingly, we find that the triai court proceedings and that o f the first appeiiate court were a nullity". [See also Maulid Ismail Ndonde vs Republic, Criminal Appeal No. 319 of 2019 [2021] TZCA 538 (29th September, 2021] TANZLII. Guided by the above cited authorities, we agree with the learned Senior State Attorney that, the trial court entertained this matter without having the requisite jurisdiction to do so. We thus, allow the reproduced ground in the supplementary memorandum filed on 8th July, 2024. Consequently, we nullify the proceedings and judgments of the two lower courts and set aside the respective sentences imposed against the appellant. On the way forward, we have considered Mr. Kapela's submission that, a retrial is a proper course to take. According to him, there is enough evidence to mount conviction on the appeilant as he endeavored to clarify above. However, on our part, we do not subscribe to his position and we shall explain.

It is on record that exhibits PI, P 2 and P6 were expunged from the record by the High Court on account of material irregularities on their admission. Though we are aware that oral testimonies in some scenarios can be sufficient to prove a criminal case and secure conviction [see: Joseph Thobias & Others vs Republic, Criminal Appeal No. 295 of 2019 (unreported), it is our firm view that, in the case at hand, the evidence of PW1 and PW3, being the arresting officers who issued the certificate of seizure (exhibit PI), together with the handing over notes of exhibit document (exhibit P2) in respect of the said elephant tusks, cannot stand on its own and prove the prosecution case to the required standard. As such, possible filling in the gaps pointed out in the initial trial, cannot be avoided. Likewise, the evidence of PW2, PW4, PW5 and PW6 cannot stand as well, considering that PW1 and PW3 are material witnesses in the case at hand and without their evidence, no conviction can stand. In the circumstances, ordering a retrial in our view would be against the cherished principle established in Fatehali Manji vs Republic [1966] E.A. 343 which observed that, retrial should not be ordered where the prosecution will get a chance to fill in the gaps in its evidence at the trial. Relying on the said principle and with due respect, we decline the respondent's prayer to order re-trial. We therefore allow the appeal,

quash the conviction and set aside the sentence. Ultimately, we order the appellant's release from prison forthwith, unless he is being held for another lawful cause. DATED at DAR ES SALAAM this 2n d day of October, 2024. W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgement delivered this 3r d day of October, 2024 in the presence of the appellant in person/unrepresented and Mr. Stanslaus Halawe, learned State Attorney for the Respondent/Republic, both through Video link from High Court Arusha, is hereby certified as a true copy of the original.