Leonard Matacha Rhobi vs Republic (Criminal Appeal No. 302 of 2022) [2024] TZCA 958 (2 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CORAM: WAMBALI, 3.A., MASHAKA. J.A. And MASQUD. J.A.^ CRIMINAL APPEAL NO. 302 OF 2022 LEONARD MATACHA RHOBI ............ .......................... .............. APPELLANT VERSUS THE REPUBLIC............. .....................................................RESPONDENT [Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam] fLuvanda. J.'t dated the 26th day of May, 2022 in Economic Case No. 22 of 2021 JUDGMENT OF THE COURT 29th May, & 02n d October, 2024 MASHAKA. 3.A.: The appellant, Leonard Matacha Rhobi is challenging the conviction and sentence of the High Court of Tanzania, Corruption and Economic Crimes Division (the trial court) for the offence of trafficking in narcotic drugs contrary to section 15 (1) (a) and 3 (iii) of the Drugs Control and Enforcement Act, Cap. 95 R.E 2019 [the DCEA] read together with Paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organised Crimes Control Act, Cap. 200 R.E 2019 [the EOCCA].

The prosecution alleged that, on 26th February 2021 at Misugusugu area within Kibaha District in Coast Region, the appellant was found trafficking in narcotic drugs namely cannabis sativa commonly known as 'bhangi 'weighing 197.85 kilograms. The appellant pleaded not guilty to the charge hence a full trial ensued. The prosecution relied on nine witnesses and a number of documentary exhibits to prove the offence. The trial court was impressed by the prosecution evidence and found the same to have proved the offence. Therefore, it found the appellant guilty and sentenced him to 25 years imprisonment. Briefly, the evidence of the prosecution was that, Insp. David Kerenge (PW2), a police officer had received a call on 26th day of February, 2021 from an informant tipping him that he had participated to unload a cargo of 20 sulphate sacks from a motor vehicle at a petrol station at Maili 35 Mlandizi area within Kibaha District in the Coast Region suspected to contain narcotic drugs. In setting a trap to apprehend the culprits, PW2 in the company of G1428 CPL Sospeter, traffic police (PW9) headed to Misugusugu where PW9 stopped Gerald Uiso (PW7), driver of a tricycle known as TOYO with registration number MC 593 MCK (exhibit P5) loaded with ten (10) sacks containing leaves suspected to be narcotic

drugs mixed with rice chaff in the company of the appellant and placed them under custody and seized the ten sacks. PW2 procured Ally Mbaga, a Ward Executive Officer (PW3), an independent witness to witness the inspection of the seized 10 sacks found on exhibit P5 suspected to contain the narcotic drugs (exhibit P2). After the seizure in the presence of PW3 and the appellant, PW2 filled the certificate of seizure (exhibit P3) and was signed by PW2, PW3, PW7 and the appellant. Thereafter, PW2 took the appellant, PW7 and exhibits P2 and P5 to Mlandizi Police station. On 10th March, 2021, exhibit P2 was taken to the Government Chemist Laboratory Authority (the GCLA) for tests and analysis conducted by Yohana Goshashy (PW1) officer at the GCLA and found that exhibit P2 was a narcotic drug namely cannabis sativa weighing 197.85 kilogram. Thereafter, the appellant was arraigned in court as alluded earlier. The appellant in his defence stated that he was an innocent passenger onboard exhibit P5 as he had travelled from Mwanza to Visiga, Coast Region by a lorry where the journey ended. It was his contention that a lorry driver had requested for a lift on his behalf. Thus, he got a lift from PW7 to go to Kitunda in Dar es Salaam. On his way together they were stopped by policemen who apprehended and took them to the police

station. He was later charged with the offence of trafficking in narcotic drugs, which led to his conviction and sentence. The trial court was not persuaded with the defence of the appellant because it failed to cast any doubt on the prosecution evidence and based its findings on the evidence of PW7 who had stated that he was hired by the appellant to transport exhibit P2. At the end, the appellant was convicted and sentenced in the manner stated earlier. Aggrieved, the appellant lodged the present appeal raising three sets of memoranda challenging the verdict of the High Court. The substantive memorandum dated 31s t August, 2022 contained eight grounds of appeal, while the 1s t and 2n d supplementary memoranda dated 24th July, 2023 and 6th December, 2023 respectively contained three and one grounds. The supplementary memorandum of appeal dated 6th December, 2023 raised one ground of appeal; that the trial court had no jurisdiction to hear and decide the case. For reasons to be apparent in due course, we have reproduced ground one of appeal. At the hearing of the appeal, the appellant entered appearance in person, unrepresented, whereas the respondent Republic was represented by Messrs. Grey Uhagile, learned Senior State Attorney, Eric

Shija and Obed Kasambala, both learned State Attorneys. The appellant filed written submission ahead of the date of hearing, which we shall consider along with his oral address. The appellant's complaint is that, the trial court had no jurisdiction to hear and determine the economic case. He argued that the charge against him was an economic offence and in terms of section 3 (3) of the EOCCA, within the jurisdiction of the Corruption and Economic Crimes Division of the High Court. Additionally, he submitted, a consent of the Director of Public Prosecutions (the DPP) is a mandatory requirement under section 26 (1) of the EOCCA to prosecute him. He argued that the said consent did not specify the offence facing the appellant as prescribed in the information under the DCEA. He implored the Court to find the proceedings and judgment of the trial court a nullity and allow the single ground of appeal. It was M r. Uhagile's concession that undoubtedly the trial court had no jurisdiction to try the appellant as the consent of the DPP had failed to cite the provision of the offence facing the appellant as discerned from the charge. He therefore submitted that since the said consent was defective, there was no consent to prosecute the appellant. It was his contention that though the DPP's consent cited paragraph 23 of the First

Schedule to the EOCCA, it failed to state the appropriate provisions which is section 15 (1) (a) and (3) (iii) of the DCEA. He bolstered his stance with the cases of Mwanaharusi Salimu Mshahara v. Republic (Criminal Appeal No. 403 of 2022) [2024] TZCA 304 (6 May 2024, TANZLII) and Chacha Chiwa Marungu v. Republic (Criminal Appeal No. 364 of 2020) [2023] TZCA 17311 (5 June 2023, TANZLII). In the circumstances, he implored the Court to nullify the proceedings of the trial court, quash the conviction, set aside the sentence and set the appellant free in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the ADA). He refrained to pray for an order of a retrial on the contention that owing to the procedural irregularity on exhibit P2 which is liable to be discredited, the remaining evidence will not support the prosecution case. Rejoining, the appellant was in support of the submission by the learned Senior State Attorney and urged the Court to not order retrial as the prosecution will get an opportunity to fill in the gaps in the prosecution evidence. He thus beseeched the Court to set him free. We have examined the record of appeal and considered the submissions by both parties raising the issue for our determination on

whether the trial court was properly seized with jurisdiction to try the economic offence which the appellant stood charged and convicted. The record of appeal before us shows that Economic Case No, 22 of 2021 was lodged before the High Court, Corruption and Economic Crimes Division, Dar es Salaam registry on 9th November, 2021 upon filing of information for the offence of trafficking in narcotic drugs. In compliance to section 29 (7) of the EOCCA and reflected at page 01 to page 06 of the record of appeal, the information containing the consent, statements of intended witnesses and documentary exhibits were presented for filing in the said registry. Undoubtedly, the information against the appellant as prescribed under Paragraph 23 of the First Schedule to the EOCCA is an economic offence. As discerned from the information, the appellant was charged with trafficking in narcotic drugs contrary to section 15 (1) (a) and 3 (iii) of the DCEA read together with Paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. Therefore, a trial for every economic offence under the EOCCA has to be clothed with the consent of the DPP under section 26 (1) of the EOCCA which provides:

"(1) Subject to the provisions o f this section ; no trial in respect of an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions." [Emphasis added] It is therefore plain that in terms of section 26 (1) of the EOCCA, the consent of the DPP must be given before the commencement of any trial involving an economic offence. Jurisdiction of courts is a creature of statute and not what the litigants like or dislike. We are fortified in that account because our courts are creatures of statutes and they have such powers as are conferred upon them by statute. See for instance, Israel Misezero @ Minani v. Republic, Criminal Appeal No. 117 of 2006 and Madeni Nindwa v. Republic, Criminal Appeal No. 350 of 2016 (both unreported). As to the fate of a decision made without jurisdiction, a judgment of a court without jurisdiction is a nuiiity and where a Court decides to exercise a jurisdiction which it does not possess its decision amounts to nothing. In Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 20 Others, Civil Appeal No. 8 of 1995 (unreported), the Court had this to say: "The question o fjurisdiction for any court is basic, it goes to the very root of the authority o f the court to adjudicate upon cases o f different nature... The 8

question o f jurisdiction is so fundamental that courts must as a matter o f practice on the face o f it be certain and assured o f their jurisdictional position at the commencement o f the trial.... It is risky and unsafe for the court to proceed with the trial o f a case on the assumption that the court has jurisdiction to adjudicate upon the case." The above excerpt is applicable to the matter under scrutiny because jurisdiction is vested by the law and it cannot be assumed. Having revisited the record of appeal at pages 04 and 05, we find it necessary to cite verbatim the information and the consent of the DPP as follows: " THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION DAR ESSALAAM REGISTRY A T PAR ES SALAAM ECONOMIC CASE NO. 22 O F 2021 REPUBLIC VERSUS LEONARD MA TACHA RHOBI At the session to be held a t ......... on the ........ day o f ......... 2021 the Court is informed by the Director o f Public Prosecutions on behalf o f the

United Republic that LEONARD MATACHA RHOBI is charged with the following offence. STA TEMENT OF OFFENCE TRAFFICKING IN NARCOTIC DRUG; Contrary to Section 15(1) (a) and (3) (Hi) o f the Drugs Control and Enforcement Act, [Cap 95 R.E. 2019] read, together with paragraph 23 o f the first schedule to, and section 57(1) and 60 (2) o f the Economic and Organised Crime Control Act, [Cap 200 R.E. 2019]. PARTICULARS OF OFFENCE LEONARD MATACHA RHOBI; On 26h day o f February, 2021 at Misugusugu area within Kibaha District in Coast Region was found trafficking in narcotic drugs namely Cannabis Sativa commonly known as "Bhangi" weighing 197.85 Kilograms. Dated at Dodoma this 26th day o f June, 2021 Signed PRINCIPAL STATE ATTORNEY Presented for filing this 9 day o f November, 2021 Signed REGISTRY OFFICER CONSENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS I, SYLVESTER ANTHONY MWAKITALU, Director o f Public Prosecutions in terms o f Section 26 (1) o f the Economic and 10

Organized Crime Control Act [Cap 200 R.E. 2019] DO HEREBY CONSENT to the prosecution o f LEONARD MATACHA RHOBI for contravening the provisions o f Paragraph 23 o f the First Schedule to, and Sections 57 (1) and 60 (2) o f the Economic and Organized Crime Control Act [Cap 200 R.E. 2019] the particulars which are stated in the information. Signed at Dodoma this 1st day o f July, 2021 Signed Sylvester Anthony Mwakitalu DIRECTOR OF PUBLIC PROSECUTIONS" As reflected in the excerpt above, the said consent did not specify the offence which the appellant was charged as per the particulars in the information. Instead, it simply stated that the appellant had contravened the provisions of paragraph 23 of the First Schedule to the EOCCA, despite the fact that the said provision refers to three unrelated offences under the DCEA. For clarity, section 15 involves trafficking in narcotic drug, section 16 concerns possession of machines, equipment and laboratory for narcotic drugs and psychotropic substances and section 23 involves finance of illegal activities. Indeed, no reference was made to section 15 of the DCEA which was the epicentre of the appellant's offence he was alleged to have committed as per the information. In that circumstance,

there was no consent of the DPP to prosecute the appellant for the offence shown on the information. The law is dear that no trial can commence in respect of an economic offence without the consent of the DPP. It is the consent of the DPP which confers jurisdiction to the economic court to hear the case in the absence of which the trial becomes a nullity. See for instance, Chacha Chiwa Marungu v. Republic (supra) and Peter Kongori Maliwa & Others v. Republic (Criminal Appeal No. 252 of 2020) [2023] TZCA 17350 (14 June 2023, TANZLII). The consent of the DPP must be given in respect of the provisions in the information and state specifically by making reference to the offence charged or else becomes useless rendering the court without jurisdiction to try the offence for want of consent. It is not contested as conceded by the learned Senior State Attorney that the consent of the DPP did not cite the provision of the respective economic offence charged that is section 15 (1) (a) and 3 (iii) of the DCEA. On the contrary, it cited only Paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA as reproduced above. Regarding the instant case, the appellant was charged, tried, convicted and sentenced by the High Court, Corruption and Economic

Crimes Division at Dar es Salaam without being clothed with jurisdiction to try the said economic offence under section 15 (1) (a) and 3 (iii) of the DCEA read together with Paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA as there was no consent for the said offence to be prosecuted. In other words, the trial of the appellant was not sanctioned by the consent of the DPP in terms of section 26(1) of the EOCCA. The consequence of such omission is to vitiate the trial proceedings as the trial court acted without jurisdiction. On the way forward, as intimated above, it was Mr. Uhagile's invitation that the Court should invoke its revisional power under section 4 (2) of the AJA to nullify the proceedings and judgment of the trial court, quash the conviction, set aside the sentence and set the appellant free. In the result, we allow ground one of the supplementary memoranda of appeal dated 6th December, 2023. Indeed, as this ground suffices to dispose of this appeal, we find the appeal to have merit and allow it. Consequently, in terms of section 4 (2) of the Appellate Jurisdiction Act, we nullify the proceedings of the trial High Court in Economic Case No. 22 of 2021, quash the conviction and set aside the sentence meted out against the appellant.

In fine, we order the immediate release of the appellant unless he is otherwise held for another lawful cause. DATED at DAR ES SALAAM this 27th day of September, 2024. F . L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 2n d day of October, 2024 in the presence of the Appellant in person connected via video facilities from Ukonga Prison and Mr. Harrison Lukosi, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.