Kartipu s/o Motaja @ Kilangi vs Republic (Criminal Appeal No. 674 of 2021) [2024] TZCA 796 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA. 3.A.. RUMANYIKA. J.A.. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 674 OF 2021 KARTIPU S/O MOTAJA @ KILANGI .......... ................................... APPELLANT VERSUS REPUBLIC.................................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Arusha) (Luvanda, J.1 dated the 27th day of October, 2021 in Economic Case No. 11 of 2020 JUDGMENT OF THE COURT 19th & 21st August, 2024 MGEYEKWA, 3.A.: The appellant, Kartipu Motaja alias Kilangi, along Hamisi Mujungu alias Kambarot who is not a party to this appeal, were tried before the High Court of Tanzania, Corruption and Economic Crimes Division sitting at Arusha (Luvanda, J.), for unlawful possession of government trophies. The charge was laid under section 86 (1) and (2) (b) of the Wildlife Conservation Act, No. 5 of 2009, as well as paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2002 ("the EOCCA"), as amended by i

sections 16 (a) and 13 (b) of the Written Laws (Miscellaneous Amendments) Act, 2016, Act No. 3 of 2016. The appellant was found guilty of the offence, but his co-accused was acquitted. Consequently, he was convicted and sentenced to pay a fine of TZS. 344,875,500.00 or to serve twenty years' imprisonment in default. Protesting his innocence, the appellant has lodged this appeal. The prosecution's narrative was essentially that the appellant and his co-accused were jointly and together, on 11th March, 2019 at Mdori area in Vilima Vitatu ward within Babati District in Manyara Region, found in unlawful possession of government trophies, to wit, two elephant tusks equivalent to one killed elephant valued at US$ 15,000.00, equivalent to TZS. 34,487,550.00, the property of the United Republic of Tanzania. Yohana Mtegeki Mgalula (PW3), a game warden, was on patrol in Babati on 11th May, 2019 along with his colleague, Goodluck Nnko. Based on a tip from a confidential informant, they planned a buy-bust operation to entrap an individual who was offering elephant tusks for sale. After some communication, they proceeded to Mdori along the Minjingu main road arriving there around 22:00 hours. They met a person with a polythene bag containing what they later examined and confirmed to be

two elephant tusks, which they promptly seized. At that point, they disclosed their identities and apprehended the vendor who happened to be the appellant. PW3 completed and signed a certificate of seizure (Exhibit P5) to verify the confiscation of the tusks. Exhibit P5 was countersigned by the appellant and the said Goodluck Nnko. The appellant, along with the confiscated tusks were transported to the Central Police Station at Arusha where they arrived at 00.00 hours on 12th May, 2019. The appellant was surrendered to police custody. PW3 handed over the seized tusks to the police exhibits keeper, No. F.7335 Corporal Evans (PW4), vide a handing over form dated 12th May, 2019 (exhibit P6). Having received the tusks, PW4 labelled and stored them at the police station. On 13th May, 2019, PW4 allowed Emmanuel Daniel Pius (PW2), a wildlife officer from the Anti-Poaching Unit, Northern Zone at Arusha, which is also known as Kikosi Dhidi ya Ujangili (KDU), access to the tusks for examination and valuation in accordance with the Wildlife Conservation (Valuation of Trophies) Regulations, 2012, Government Notice No. 207 of 2012. PW2 examined the seized contraband and confirmed that it was rough elephant tusks, weighing 45 kilogrammes, valued at US$ 3

15,000.00, which was equivalent to TZS. 34,487,550.00. He tendered in evidence a certificate of trophy valuation (exhibit P3) which he issued on 13th May, 2019. Once he was through, a few moments later, he returned the tusks to PW4, who then handed them over to James Kugusa (PW1), a game warden cum exhibits keeper of KDU, Arusha as noted in the handing over form (exhibit PI). PW1 transferred the tusks to KDU Offices for safe custody until 15th October, 2021, when he brought them to the trial court for tendering as an exhibit. They were admitted as exhibit P2. The appellant and his co-accused pointblank denied the charge against them. In so far as he was concerned, the appellant asserted that sometime in May 2019 while at his farm in Minjingu, he was captured by three people who bundled him into their motor vehicle and took him to Arusha. At that point, he realized that he was under police restraint. Stripped of the details, his defence was a general denial of accusation peppered with a claim that the charge he faced was a frame up. The trial court found the appellant guilty of the charge and sentenced him, as previously stated. However, his co-accused was acquitted of the offence upon the court's finding that there was no direct evidence linking him with the offence. 4

Aggrieved, the appellant has preferred the current appeal. In the memorandum of appeal, the appellant raised thirteen grounds and in the supplementary memorandum of appeal, he raised two grounds of appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented while Ms. Mary Lucas who was accompanied by Mr. Raphael Rwezaura, both learned Principal State Attorneys appeared for the respondent. In determining this appeal, we do not intend to consider all grounds presented but only ground one in the supplementary memorandum of appeal which in the circumstances of this matter is sufficient to dispose of this appeal for reasons which will unfold in the course of this judgment. The first ground in the supplementary memorandum of appeal is paraphrased to read: "That, the tria ljudge erred in law by upholding the appellant's conviction while the tria l was conducted without the consent o f Director o f Public Prosecution (the DPP)." On ground one of the supplementary of memorandum of appeal, the appellant complained that the prosecution had no jurisdiction to prosecute the case because the consent of the DPP to commence the trial 5

at the High Court was not endorsed as required under section 26 (1) of the EOCCA. The learned Principal State Attorney stoutly resisted the appeal. Submitting on the ground at hand, Ms. Lucas asserted that the trial court had jurisdiction to try the case because the consent of the DPP to prosecute the appellant at the High Court was filed. To support her submission, she referred us to the transmittal letter which states that, the consent to prosecute the accused person was attached to the said letter along with the information, statements of witnesses and documentary exhibits. However, when the Court enquired whether the consent of the DPP was attached to the transmittal letter, she conceded that looking at proceedings of the trial court, there is no indication that the consent of the DPP was lodged. Ms. Lucas acknowledged further that the DPP's consent to prosecute the appellant rendered the trial proceedings a nullity as the trial court had no jurisdiction to take cognizance of the matter and try it. The course taken by the trial court is a blatant violation of section 26 (1) of the EOCCA. To rectify the mishap, the learned Principal State Attorney urged us to invoke our appellate jurisdiction and nullify the entire proceedings of the trial court and, in lieu thereof, we should order a retrial.

Having heard the submissions of both parties, we, entirely subscribe to their concurrent stance, which we hereby uphold. Without the requisite consent of the DPP, no trial of an economic offence can commence before the court vested with jurisdiction. In other words, for a trial of every economic offence under EOCCA, it has to be preceded by the consent of the DPP under Section 26 (1) of EOCCA, which states that: "26. (1) Subject to the provisions o f this section ; no tria l in respect o f an economic offence m ay be commenced under this A ct save with the consent o f the Director o f Public Prosecutions." Emphasizing on the importance and need for the issuance of the DPP's consent in an economic trial, this Court in numerous decisions including of Salum Saad @ Rashid v. The Director of Public Prosecutions, Criminal Appeal No.502 of 2019 [2023] TZCA, 17737 (6th October 2023 TanzLII), held that: "A court cannot assume thatjurisdiction without a consent from the DPP or an officer authorized by him as prescribed under section 26(1) and (2) o f EOCCA . " Given the above legal standpoint, the appellant was prosecuted without the consent of the DPP, in the result, we are of the view that the 7

proceedings, conviction and sentence in the trial court were illegal and nullity. For this stance, see our decisions in the cases of Mhole Saguda Nyamagu v. Republic, Criminal Appeal No. 337 of 2016 (unreported) and John Julius Martine and Another v. Republic Criminal Appeal No.42 of 2020 [2022] TZCA 789 (8 December 2023, TANZLII). In view of the missing consent of the DPP, the trial court was not vested with requisite jurisdiction to try the appellant as charged. Equally, the court cannot assume jurisdiction which it does not have or contrary to the requirement of law. See Fanuel Mantiri Ngunda v. Herman Mantiri Ngunda &Two Others, (1995) T.L.R 155. The position which has been followed in numerous decisions of this Court including Samwel Slaa @ Sarea and Another v. Republic, Criminal Appeal No. 153 of 2021 [2024] TZCA 32 (13 February 2024 TanzLII) and Ramadhan Omary Mtiula v. Republic, Criminal Appeal No. 62 of 2019 [2020] TZCA 1734 (19 August 2020 TanzLII). We, therefore, nullify the proceedings of the High Court, quash the conviction, and set aside the sentence meted out against the appellant. Having made the above findings, the issue for consideration is whether or not a retrial should be ordered. In view of the circumstance 8

of this matter, we uphold the submission by the learned Principal State Attorney that the interests of justice in the matter at hand demand that there should be a retrial before the High Court. We thus order the case to be tried afresh by a court of competent jurisdiction, subject to the consent of the DPP to prosecute the appellant. In the meantime, the appellant shall remain in custody to await the resumption of the trial. Order accordingly. DATED at ARUSHA this 21st day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 21st day of August, 2024 in the presence of the Appellant in person and Ms. Grace Madikenya, learned Senior State Attorney for the Respondent/Republic is hereby certified as