Silvanus Maneno Mkasanga @Kelvin and Another vs The Republic (Criminal Appeal No. 347 of 2023) [2024] TZCA 870 (5 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO fCORAM: MKUYE. J.A. KAIRO. 3.A. And MLACHA. J.A.1 ) CRIMINAL APPEAL NO. 347 OF 2023 SILVANUS MANENO MKASANGA @ KELVIN ALI KHAMIS JUMA ................... . ......... . ...... , .1st APPELLANT 2 n d APPELLANT RESPONDENT Appeal from the decision of the High Court of Tanzania, (Corruption and Economic Crime Division) at Morogoro Sub registry) (Ismail. J.^ dated the 28th day of April, 2023 5th June & 5th September, 2024 MKUYE, 3.A.: The appellants, Silvanus Maneno Mkasanga @ Kelvin and Ali Khamis Juma, (the 1st and 2n d appellants and former 2n d and 1s t accused persons) were charged and convicted with an economic offence of trafficking in narcotic drugs contrary to section 15 (1) (a) and (3) of the Drug 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 Crime Control Act, Cap 200 R.E. 2019 (the EOCCA). Upon conviction, they were sentenced to life in Economic Case No. 07 of 2023 JUDGMENT OF THE COURT

imprisonment and being aggrieved by the outcome of the trial court, they have now appealed to this Court. Before embarking to the merit of the appeal, we find it appropriate to narrate, albeit briefly, the background of the matter leading to this appeal as follows: On 28/4/2021, ASP Hassan Masawika (PW9) was at his place of work at the Anti-drug Unit offices (ADU) in Dar es Salaam. He received a directive from his commanding officer to intercept a motor vehicle which was enroute from Songea to Dar es Salaam as it was suspected to carry narcotic drugs. Having been provided with the name of the suspect, PW9 and his fellow officers left for Morogoro. After receiving intelligence information that the said vehicle was within Mvomero District, the police team moved to Sanga Sanga check point. At around 3:00 p.m., the suspected vehicle arrived. The police stopped it and ordered the passengers in the vehicle to get out of the vehicle with their luggages. Upon inspecting the trunk area, a package was revealed and on inquiry of who might be its owner, at first no reply came out. However, on further inquiry, the 1s t appellant replied that the package belonged to him.

The contents of the package were removed in the presence of the independent witness Nicholaus Joash Makamba (PW5) and in the midst of a bunch of onions two packages were found which on first inspection revealed that they might be narcotic drugs. A seizure certificate was then prepared and those who were passengers in the motor vehicle were restrained. Upon further interrogation, the 1s t appellant revealed that the recipient of one of the packages was the 2n d appellant whom he was to meet with at Chalinze. The police officers, while accompanied with the 1s t appellant and others proceeded to Chalinze where they managed to arrest the 2n d appellant. They also went to Tanga and searched the 2n d appellant's home but nothing was found except his ordinary items. Thereafter, the two appellants together with other passengers in that vehicle were bought to ADU offices at Dar es Salaam where they witnessed the labelling of the suspected drugs in the presence of an independent witness, one, Mashaka Abdi Hamad (PW6). Each appellant recorded his cautioned statement which were admitted in evidence as Exh. P6 and P7. Later, the suspected narcotic drugs were taken to the Government Chemist Laboratory Agency (GCLA)

for analysis and the outcome of the examination revealed that they were narcotic drugs of the type of Heroine. The appellants were arraigned before the High Court and on conclusion of trial, they were convicted and sentenced as alluded to earlier on. The basis of the trial court's decision was direct evidence, documentary evidence (confessions) and physical exhibits. The appellants have lodged both a substantive memorandum of appeal, which was a self-crafted by themselves and a supplementary memorandum of appeal lodged by their counsel. The substantive memorandum of appeal comprises of sixteen (16) grounds of appeal for the 1st appellant and twelve (12) for the 2n d appellant to which on the hearing date, the learned counsel abandoned all the grounds except ground no. 12 of the 2n d appellant which they sought to argue together with four (4) grounds in the supplementary memorandum appeal. The said grounds of appeal are as follows: l)The trial judge convicted and sentenced the appeiiant without considering that the committal court assumed the jurisdiction and allowed substitution o f the charge sheet while it was not vested with such powers and jurisdiction to do so.

2. The learned trial judge convicted and sentenced the appellants without considering that the trial court had no jurisdiction to hear and determine the case without the consent o f the Director o f Public Prosecutions under the provisions o f section 26(1) o f the Economic and Organised Crime Control Act, Cap 200 R.E 2022.
3. The teamed trial Judge convicted and sentenced the appellant without considering that Exh. PI (Form No. DCEA 001) P2f (analysis report by GCLA), P3 (a box containing 20 packets o f powdered substance) and P4 (Seizure Certificate No. DCEA 003) including statements o f PW1 and PW9 were admitted in contravention o f section 246 (2) o f the Criminal Procedure Act, [Cap 20 R.E. 2022] and rule 8 (2) o f the Economic and Organised Crime Control Act (The Corruption and Economic Crimes Division) (Procedure) Rules 2016, GN No. 267 o f 2016. 4)The learned trial Judge failed to re-evaluate and analyze the evidence particularly the defence evidence thus occasioned failure o f justice and prejudice to the appellants.
4. The trial Judge convicted the appellants while the case was not proved beyond reasonable doubt as required by the provisions o f section 3 (2) (a) and 5

110 (1) and (2) o f the Evidence Act, Cap 6 R. £ 2019]. When the appeal was called on for hearing, the appellants were represented by Messrs. Nehemiah Nkoko and Aliko Mwamanenge, both learned advocates; whereas Ms. Upendo Shemkole, learned Senior State Attorney teaming up with Mses. Rosemary Mgenyi and Veronica Chacha, learned State Attorneys, appeared representing the respondent Republic. We propose to begin with ground no. 2 relating to the competence of the appeal, as we think, it may have the effect of disposing of the entire appeal without necessarily discussing the remaining grounds. Submitting on the complaint that the trial court had no jurisdiction to try an economic offence, Mr. Mwamanenge contended that there was no consent of the Director of Public Prosecutions (the DPP) issued under section 26(1) of the EOCCA authorizing the trial of the offence since there is nowhere in the record of appeal showing that the said consent was admitted and endorsed as part of the record be it during the committal proceedings or during the trial. He added that, neither did the trial court admit and endorse it to form the part of the record.

He went on arguing that, an insertion of the copy of consent in the record does not mean that the court admitted it to form part of the record. To fortify his stance, he referred the Court to the case of Mohamed Shamu Likulo v. Republic, Criminal Appeal No. 259 of 2022 [2024] TZCA 377 (20 May 2024) TANZLII, where the Court was faced with an akin scenario and had to say this: "... the record o f appeal does not bear out that it (consent) was received by the trial court as there is no endorsement o f any court official signifying its receipt Apart from that, the record is silent as it does not show if the public prosecutor requested to present it in court." In this regard, it was the learned counsel's prayer to the Court to find that the trial court proceeded without the consent and thereby rendering whatever was done a nullity. He, then, implored the Court to nullify the trial court's proceedings and the resultant judgment, quash the conviction and set aside the sentences meted out against the appellants. On being prompted to express his views on the manner the consent was crafted while leaving out the provisions of the law which create the offence, Mr. Mwamanenge contended that, the consent ought to be specific to the offence as per the charge sheet. For that matter, he

submitted that, section 15A (1) (a) and (3) (i) of the DCEA ought to have been specifically cited in the consent. He reiterated his previous prayer for the proceedings and judgment of the trial court to be nullified as the charge was accompanied with a defective consent. As to the way forward, he urged the Court to release the appellants forthwith from custody. In response, Ms. Shemkole was not in agreement with Mr. Mwamanenge that the consent was not received by the court. It was the learned Senior State Attorney's contention that the consent as shown at page 34 of the record of appeal, indicates that it was endorsed by the court clerk on 22/8/2022 which was also the date shown in the information. She was of the view that, that was an indication that it was admitted in court before the commencement of the trial. In this regard, she argued that the case of Mohamed Shamu Likulo (supra) was distinguishable to this case because in that case there was no record that the consent was ever received in the court. As regards the 2n d limb of the complaint, she conceded that the consent was not proper. She explained that, although it cited the proper enabling provisions of 26 (2) of the EOCCA, it did not cite section 15A

(1) (a) and (3) (i) of the DCEA which establishes the offence charged. She was of the view that, this discrepancy was a fatal omission and prayed to the Court to invoke section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the ADA) and nullity both proceedings and judgment, quash the conviction and set aside the sentence. As to the way forward, she urged the Court to order for a retrial since there was sufficient evidence to mount a conviction. While referring to the case of Fatehali Manji Patel v. Republic, (1966) EA 343, she argued that the case qualifies for a retrial as the prosecution will not use that opportunity to fill in gaps in the prosecution's case. In endeavour to justify an order for retrial, Ms Shemkole pointed out that there was evidence of PW5, PW4 and PW7 on how they received a tip off regarding a person transporting drugs, how they tracked him and set a trap at Sanga Sanga area where they arrested the 1s t appellant. She said, the witnesses also explained as to how they got information of the 2n d appellant's involvement and arrested him at Chalinze. She added that, there was also evidence from appellants' cautioned statements and that the chain of custody was intact. She thus, insisted that an order for a retrial be issued under the circumstances of the case.

In rejoinder, it was Mr. Nkoko who took the lead. He insisted that, the case of Mohamed Shamu Likulo (supra) was relevant and, therefore, the consent ought to be presented in court. As to the way forward, he countered the learned Senior State Attorneys' submission and argued that the available evidence was not sufficient particularly against the 2n d appellant. He also, assailed the doctrine of common intention contending that it was not established. On top of that, he challenged Exh. P4 (certificate of seizure) arguing that even the search to which it relates was not an emergency one. Besides that, while making reliance on the case of Mwanahamis Makenzi Said v. The Director of Public Prosecutions, Criminal Appeal No. 687 of 2023 [2024] TZCA 330 (8 May 2024), Mr. Nkoko insisted that a receipt of seized items ought to have been issued. On that basis, he beseeched the Court to refrain from ordering for a retrial and ultimately the appellants should benefit from the anomalies. Now, having heard the submissions from both parties for and against the appeal, we are in a position to render our determination. In relation to the issue of consent, there are two limbs for consideration by this Court. One, whether or not it was received by the trial court; and two, whether it was incomplete or rather defective for omitting to cite 10

the provisions of section 15A (1) (a) and (3) (i) of the DCEA which create the offence. For a better sequence of events, we propose to begin our deliberation with the first limb based on the issue whether or not the consent was received by the court. It is the argument by the appellant that it is not shown in the record of appeal that the consent was received or endorsed by the presiding officer so as to form part of the record. The respondent is of the view that, it was received in court as signified by endorsement by the court clerk (see page 34 of the record of appeal). Sections 2 and 3 of the EOCCA confer the jurisdiction to hear and determine corruption and economic cases to the High Court - Corruption and Economic Crimes Division. While section 2 of the said Act defines the Court "to mean the Corruption and Economic Crimes Court Division; section 3 of the same Act establishes the Court and provides for its jurisdiction in clear terms as follows: "(1) There is established the Corruption and Economic Crimes Division o f the High Court within the Registry and sub registries as may be determined by the Chief Justice, in which proceedings concerning corruption and economic cases under this Act may be instituted.

(2)... n/a ... (3) The Court shall have jurisdiction to hear and determine cases involving- (a) corruption and economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29 (a) o f the Corruption• , Economic and Organised Crime Control Act [Cap 200 R.E. 2022] and paragraphs 11 and 38 o f the First Schedule whose value is not less than one billion shillings save for paragraph 14. (b) economic offences specified under paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, and 39 o f the First Schedule regardless o f their value." Apart from that, section 26 (1) of the EOCCA prohibits prosecution of a person for an economic offence unless there is a consent issued by the DPP or a person duly authorised by him before the commencement of the trial to prosecute such person. This means that, where a person is charged with an economic offence before the High Court and there is no consent issued by the DPP for his prosecution, the said Court will have no jurisdiction to entertain such an offence and if it so happens, the proceedings and decision thereof will be rendered a nullity. For clarity, we reproduce the provisions of section 26 (1) of the EOCCA as follows: 12

"Subject to the provisions o f this sections, no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions." In compliance with such requirement, the prosecution presented a purported consent as shown at page 34 of the record as follows: "CONSENT OF THE PROSECUTIONS A TTORNEY INCHARGE I, Edgar Evarist Bantutaki, Prosecutions Attorney In charge o f Morogoro Region do hereby, in terms o f section 26 (2) o f the Economic and Organized Crime Control Act, [Cap 200 R.E. 2019] and paragraph 13 o f Part III o f the Economical Offences (Specification o f Offences for Consent) Notice, Government Notice No. 496H o f 2021, CONSENT to the prosecution o f SILVANUS MANENO MKASANGA @ KELVIN and ALI KHAMIS JUMA, for contravening the provisions o f 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], the particulars o f which are stated in the information. DATED at Morogoro this 29h day o f June, 2022. Edgar Evarist Bantuiaki 13

PROSECUTIONS A TTORNEY INCHARGE Presented for filing this 22 day o f August, 2022. Sgd Court Clerk" [Emphasis added] As alluded to earlier on, the first limb of the appellant's complaint is that the said consent was not received in court as it was not endorsed by the presiding judge and that no prosecutor asked to present it in court. On the other hand, the learned State Attorney maintained that it was received since it was endorsed by the court clerk. Admittedly, in the case of Mohamed Mshamu Likulo (supra), we emphasized the need for the consent of the DPP to be endorsed by the court official to signify its receipt. This was a stance also taken in the case of Aloyce Joseph v. Republic, Criminal Appeal No, 35 of 2020 [2022] TZCA 771 (5 December 2022). However, it should be noted that in Mohamed Mshamu Likulo's case (supra), the consent was found in the record of appeal without any signature which made the Court to question how it found its way in the record of appeal. On our scrutiny of the record of appeal particularly at page 34 thereof, we observed that, indeed, the said consent was presented for filing and was received and signed by the court clerk on 22/8/2022 14

which was the date when the information was lodged by the prosecution

• (see page 32 of the record of appeal). It seems to us that the same was filed prior to the formal arraignment of the appellants before the High Court which was done on 8/9/2022. What does this mean? The matter commenced before the trial court on 8/9/2022, well after the information and consent had already been filed on 22/8/2022. Since the consent together with the charge sheet were received and endorsed by the court clerk on 22/9/2020, we think, the issue of the prosecutor requesting it to be received by the trial Judge and endorsed did not arise. This is because, at the commencement of the trial, the trial Judge found the documents already in the case file. On this stance, we are fortified by our recent decision in the case of Nassib Abubakar Mwazyega @ Ras v. Republic, Criminal Appeal No 146 of 2021 [2024] TZCA 576 (18 July 2024). In that case, it was observed that the case of Mohamed Mshamu Likulo (supra) is distinguishable in matters with origin of the High Court. It was further observed that unlike in the High Court where the consent and certificate are enclosures of the information and the transmittal letter which are delivered in the High Court, in the subordinate courts, those documents are submitted midway through the process and are entered in the file that was in 15

existence from the time the accused person was arraigned before the court. We, thus, agree with the learned Senior State Attorney that the consent was well received by the court. The 2n d limb is on the defectiveness of the consent due to failure to include section 15A (1) (a) (c) and 3 (i) of the DCEA. Both parties are at one that there was an omission to mention the provisions which create the offence in the consent and as such, the consent was defective. On our part, we agree with both the appellants and the respondent that the impugned consent is defective. Looking at the consent reproduced earlier on, it is crystal clear that the consent that was issued related to the contravention of paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. It does not relate to the offence of trafficking in narcotic drugs contrary to section 15A (1) (a) and (c) and (3) (i) of the DCEA which specifically establishes the said offence. This is not the first time that the Court is confronted with akin scenario where the consent did not mention the specific provisions of the law creating the offence. In the case of Chacha Chiwa Maningu v. Republic, Criminal Appeal No. 16

364 of 2020 [2023] T7CA 17311 (5 June, 2023) TANZLII, the Court had this to say: "Even if the said certificate and consent were made under proper provisions o f the iawf sections 12 (4) and 26 (2) o f the EOCCA, since such consent and certificate o f transfer did not make reference to sections 17 (1) (2) and 86 (1) (2) (c) (Hi) o f WCA which when read together with paragraph 14 o f the First Scheduie to the EOCCA make them economic offences, then the said certificate and consent were incurably defective. In this regard the proceedings in the triai District Court in Economic Case No. 129 o f 2019 and in the High Court Criminal Appeal No. 5 o f2020 were a nullity because the certificate and consent in question were incurably defective. So, the proceedings in the trial court which culminated in the conviction o f the appellant and sentence was a nullity." Similarly, in the case of Peter Kongori Malima and 4 others v. Republic, Criminal Appeal No. 252 of 2020 [2023] TZCA 17350 (14 June, 2023) TANZLII, when the Court was faced with a situation in which the specific provisions of the law establishing the offence were not mentioned in the consent or certificate of transfer, the Court stated that: 17

"Both the certificate conferring jurisdiction to the triai court and the consent o f the State Attorney In- charge did not cite the provisions o f law creating the respective economic offences. We, therefore ; agree with the iearned State Attorney that, the iegai consequence o f the omission is to vitiate the triai proceedings as the triai court acted without jurisdiction. Equally so, for the resulting proceedings o f the first appellate court/' It follows therefore that even in this case, the omission to mention in the consent the specific provisions of section 15A (1) (a) (c) and 3 (i) of the DCEA which created the offence vitiated the proceedings and the resultant judgment as the case was tried without the requisite consent. In other words, the decision which was reached by the trial court without having the jurisdiction was a nullity. [See also: Hashim Nassoro @ Almas v. Director of Public Prosecutions, Criminal Appeal No. 312 of 2019 [2023] TZCA 17716 (4 October 2023) TANZLII. It follows therefore that, the proceedings and the resultant judgment are liable to be nullified as was stated by the learned State Attorney. As for the way forward, we have considered the rival arguments from both sides. However, we think the interest of justice demands that an order for retrial be issued. 18

Consequently, in terms of section 4 (2) of the ADA, we invoke our revisional powers bestowed on us and nullify the proceedings and judgment thereof, quash the conviction and set aside the sentence meted out against the appellants. We further order that the matter be remitted to the trial court for an expedited retrial before another Judge. Meanwhile, the appellants shall remain in custody to await the retrial. It is so ordered. DATED at DAR ES SALAAM this 5th day of September, 2024. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 5th day of September, 2024 in the presence of Mr. Aliko Mwamanenge, learned counsel for the appellants and Mr. John Mkonyi, learned Senior State Attorney for the Respondent/Republic vide video link from High Court at Morogoro is her o \ Ss^jKue copy of the original. R. W. CHAUNGU < * / ' DEPUTY REGISTRAR / COURT OF APPEAL 19