Shaibu Hussein @Twalibu Mambosafi vs Republic (Criminal Appeal No. 561 of 2022) [2024] TZCA 887 (12 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA ( CORAM: MWARIJA. J.A.. KEREFU. J.A.. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 561 OF 2022 SHAIBU HUSSEIN @ TWALIBU MAMBOSAFI .......................... APPELLANT VERSUS THE REPUBLIC .................. ...................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Songea at Songea) fLukuna. SRM. Ext. Jur.T Dated the 18th day of November, 2022 in RM Criminal Appeal No. 1 of 2022 RULING OF THE COURT 19hAugust & 12t h September, 2024 MAKUNGU. J.A.: This is a second appeal. The appellant Shaibu Hussein @ Twalibu Mambosafi was, at the District Court of Tunduru (the trial court), charged with two courts namely: being found in unlawful possession of firearm contrary to section 20 (1) (a) and (2), of the Firearms and Ammunitions Control Act No. 2 of 2015 (the Firearms Act) read together with paragraph 31 of the First Schedule to and section 60 of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002 now 2019] (the EOCCA), and being found in unlawful possession of ammunition contrary to section 21 (a) of i

the Firearms Act read together with paragraph 31 and section 60 (2) of the EOCCA. It was alleged in the charge sheet that on 4th June, 2017 at Mwenge darajani Village within Tunduru District in Ruvuma Region, the appellant was found in possession of one firearm make Riffle 375 and one round of ammunition of the said firearm without a licence. Upon trial, the appellant was convicted of both counts and sentenced to twenty years for the first count and twenty years for the second count. The sentences were ordered to run concurrently. His appeal to the first appellate court was unsuccessful and thus the instant appeal. To appreciate the nature of contention, a brief narration of the factual background of this appeal may be necessary. PF 19781 Inspector Aliko Luckson Mwakalindile (PW2) was tipped by the informer on the arranged ivory business to be carried on in Mchesi Ward. A trap was set and around 10:40 pm the police team had already positioned in the area. Sooner, the appellant appeared driving his motorcycle. Immediately, he was arrested by PW2. Yasin Ahmed Mohamed (PW3) a Ward Executive Officer (WEO) of Mchesi was phoned by PW2 to attend the scene and he rushed there. On his arrival, he found the appellant already under arrest. Afterwards, the 2

appellant was searched and found with one gun and ammunition (exhibit P3) which were seized as per the certificate of seizure tendered by PW2. In his evidence in defence, the appellant though admitted being arrested on the material date, he denied having been found in possession of exhibit P3. Instead, he claimed to have been tortured at the police station and forced to sign some documents. In its judgment, the trial court found the prosecution evidence credible and probable. It thus convicted the appellant with the offences and sentenced him accordingly. Aggrieved, the appellant appealed to the first appellate court, the appeal which was however, dismissed for being without merit. Once again aggrieved, the appellant has lodged this appeal wherein he is faulting the judgment of the first appellate court on a number of grounds. However, for the reason which shall become apparent henceforce, we find it unnecessary to reproduce them herein. When the appeal came for hearing on 19th August, 2024, the appellant appeared in person, unrepresented. The respondent Republic was represented by Ms. Tulibake Juntwa, the learned Senior State Attorney. The appellant informed the Court that, he would prefer the learned Senior State Attorney to respond first to the grounds of appeal. That being the position, we allowed Ms. Juntwa to address us on those grounds.

On taking the floor, Ms. Juntwa informed the Court that after she had carefully revisited the proceedings, especially, the consent of the Director of Public Prosecutions (DPP) and the certificate of the DPP appearing at pages 104 and 105 of the record of appeal, respectively, she noted that the said documents were not properly before the trial court. She was focused on her submission and argued that, the court which heard and determined the case had no jurisdiction to do so, as there was neither proper consent nor proper certificate conferring jurisdiction to the trial court to adjudicate on the economic offences alleged to have been committed by the appellant. Elaborating on her point, the learned Senior State Attorney argued that, the said consent and certificate which were both filed on 17th August, 2021, though prepared under sections 26 (1) and 12 (3) of the EOCCA respectively, did not provide the specific provisions under which the appellant was to be charged. She elaborated further that, according to the charge sheet, the appellant was accused of contravening sections 20 (1) (a) and (2) and 21 (a) of the Firearms Act. It was her contention that failure to specify the provisions under which the appellant was to be charged, affected the mandate of the intended court to hear and determine the case. On that basis, she argued that, the whole proceedings and the decision which originated therefrom were null and void. In the 4

same vain, the first appellate court proceedings and its decision cannot stand. To strengthen her arguments, she cited to us our previous decision in Lufino Gabriel @ Mwakayele v. The Republic, Criminal Appeal No. 652 of 2022 [2024] TZCA 484 (21 June 2024) whereby the Court maintained that, an omission to specify the provision in the consent under which the appellant was to be charged goes to the root of the matter as it does not confer jurisdiction to the court to adjudicate the case, and thus, all that follows are rendered a nullity. The learned Senior State Attorney further argued that, in such circumstances, the Court may nullity the proceedings, quash the conviction, set aside the sentences and order a retrial as a way forward. She insisted that a retrial is worth because the remaining prosecution account on record from PW1 to PW4 is sufficient to hold the prosecution case. In rejoinder, the appellant prayed his appeal to be allowed since the said omission was done by the prosecution side. Having heard the parties' submissions, the only issue for our determination is whether the trial court acted without jurisdiction in entertaining the case and the effect thereof. 5

Indeed, and as correctly submitting by Ms. Juntwa, the consent and certificate filed by the DPP when filing information to be read over to the appellant, did not specify the provisions of the law of offences charged against the appellant. It is a settled law that, the consent of the DPP and the certificate conferring jurisdiction on the subordinate court to adjudicate the economic crime case must specify the provisions of the law under which the charge was preferred. See Peter Kongori Maliwa and Others v. The Republic, Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14 June, 2023). On our looking at the said documents, there is no gain saying that the two documents did not state the specific provisions under which the appellant was charged against. The omission to cite the specific provisions means that the appellant was charged, tried and convicted by the subordinate court without the consent of the DPP, and further without the jurisdiction to try the case. The Court has consistently maintained the said position in akin circumstances that, where a person is arraigned before the subordinate court for an economic offence under EOCCA without the consent of the DPP authorizing the court to try the economic case and or the certificate which confers jurisdiction on that court to try the said offence, such subordinate court lacks the jurisdiction to try the economic 6

offence concerned and if it does, the entire proceedings become a nullity. There is a plethora of decisions to this effect including: Mwanahamisi Salimu Mshahara v. The Republic, Criminal Appeal No. 403 of 2022 [2024] TZCA 304 (6 May, 2024), Peter Kongori Maliwa and Others (supra), Hussein Sadick Matali and Another v. Republic, Criminal Appeal No. 34 of 2023 [2024] TZCA 435 (11 June 2024) and Lufino Gabriel @ Mwakayela (supra), to mention but a few. Being guided by the above authorities, we have no hesitation to rule out that, the trial court did not have the requisite jurisdiction to try the case against the appellant. We therefore, invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, and nullify the proceedings and conviction of the trial court and set aside the sentences imposed against the appellant. Likewise, we quash the proceedings of the first appellate court and set aside the judgment thereof as they originated from a nullity proceedings. On what should be the way forward after nullification of the proceedings and judgments of the lower courts, the learned Senior State Attorney urged us to order a retrial while the appellant was of the view that he should be released from prison. After considering the nature of this case that the appellant was allegedly found with a firearm and an ammunition, we believe, ordering re-trial is what justice demands in this

case. We thus order for retrial of the case, subject to proper certificate conferring jurisdiction to the trial court and consent of the DPP to prosecute the case. In the meantime, the appellant shall remain in custody pending retrial before a competent court. We further order that, should the appellant be found guilty and convicted, the served time in jail should be included in the term to be imposed. DATED at DAR ES SALAAM this 9th day of September, 2024. A. G. MWARD A JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 12th day of September, 2024 in the presence of the appellant in person, unrepresented and Mr. Elipidi Tarimo, learned State Attorney for the Respondent/Republic, via video link from High Court 8