John Ikland @ Ayoub vs Republic (Criminal Appeal No. 1 of 2016) [2017] TZCA 944 (13 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: MJASIRI. J.A.. MMILLA. J.A. And LILA. J.A.^ CRIMINAL APPEAL NO. 1 OF 2016 JOHN IKLAND @ A Y O U B ............. .................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of Resident Magistrate's Court of Songea at Songea) (Dyansobera, PRM) Dated the 29th day of May, 2014 In RM.DC. Criminal Apeal No. 38 of 2013 H/C Criminal Appeal No. 52 of 2013 JUDGMENT OF THE COURT 11th & 13th October, 2017 MJASIRI. J.A.: In the District Court of Tunduru District at Tunduru, the appellant John Ikland @ Ayoub was charged with two counts, namely unlawful possession of government trophy contrary to section 86(1) and (2) (c) (ii) of the Wildlife Conservation Act (Act No. 5 of 2009) read together with paragraph 14(d) of the 1s t Schedule and sections 57(1) and 60(2) of the

Economic and Organised Crimes Control Act, Cap 200 R.E. 2002 (the Economic Crimes Act), and unlawful possession of ammunition contrary to section 4(1) and 34 (1) and (2) of the Arms and Ammunition Act Cap 223, R.E. 2002. The appellant was convicted as charged on his own plea of guilty and was sentenced to thirty (30) years imprisonment on the first count and ten (10) years imprisonment on the second count. Following his conviction and sentence, the appellant appealed to the High Court. The record of the High Court was transferred under section 45(2) of the Magistrates' Courts Act (the Act) to the Resident Magistrate's Court, for hearing of the appeal before Dyansobera, Principal Resident Magistrate with Extended Jurisdiction on October 1, 2013. Following the transfer, the appeal was heard by the court of the Resident Magistrate. The appellant's appeal before Dyansobera, PRM was unsuccessful save for the sentences which were reduced to 15 years imprisonment on the first count and to a sum of Shillings Five Hundred Thousand (500,000/=) on the second count. The appellant did not stop there, he subsequently filed his appeal before this Court. Unfortunate for him, his appeal was struck out by the Court for being incompetent, as his notice of appeal was defective. Undeterred, the 2

appellant sought extension of time to file a notice of appeal in the High court which was granted by Kwariko, J. The appellant has presented a seven - point memorandum of appeal before this Court which is summarized as follows:-

1. No search warrant was tendered in court to prove that the appellant was searched and found with the items.
2. No report was tendered from the government chemist.
3. No witnesses were called to prove the prosecution case.
4. The cautioned statement was recorded contrary to the requirements under the law.
5. No Village leader, such as Ten cell leader, Village Chairman or Village Executive Officer were called to witness the search.
6. The appellant was not given a chance to defend himself.
7. That the charge against the appellant was not proved beyond reasonable doubt At the hearing of the appeal, the appellant appeared in person and did not have any legal representation while the respondent Republic had the services of Mr. Shabani Mwegole, assisted by Ms Amina Mawoko, learned State Attorneys. When the appeal was called on for hearing, Mr.

Mwegole prayed to withdraw the preliminary objection a notice of which was filed in Court, which was granted by the Court. Before the commencement of hearing of the appeal, Mr. Mwegole sought leave of the Court to present a pertinent legal issue on the jurisdiction of the trial court, that is the District Court of Tunduru. Firstly, the trial court commenced the hearing of the case without the consent of the Director of Public Prosecutions (DPP) as required under Section 26(1) of the Economic Crimes Act. Secondly, the District Court sat as the Economic Crimes Court without a proper certificate of transfer by the DPP under section 12(3) of the Economic Crimes Act under which the appellant was charged. The certificate of transfer was partial and did not cover section 86(1) and (2) (c) (ii) of the Wildlife Conservation Act (Act No. 5 of 2009) which is supposed to be read together with paragraph 14 (d) of the first schedule to and sections 57 (1) and 60 (2) of the Economic Crimes Act. He asked the Court to nullify the proceedings and the decisions of the District Court and those of the Resident Magistrate's Court with Extended Jurisdiction. 4

The appellant on his part, agreed with the submissions made by the learned State Attorney. Being a layman and unrepresented he did not have much to say. It is evident from the record that the requirements under the law were not complied with. The proceedings in the District Court and the Resident Magistrate's court with Extended Jurisdiction were indeed a nullity. The trial in the District Court was conducted before the consent of the DPP was filed and without a complete certificate of transfer issued and signed by the DPP in order to authorize an economic case to be tried by a subordinate court. The jurisdiction is vested in the High Court sitting as the Economic Crimes Court. The consent of the DPP is mandatory under section 26 (1) of the Economic Crimes Act, which provides as follows:- "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 o f Public prosecutions." [Emphasis provided]. Sec 12(3) of the Economic Crimes Act provides that

"The Director o f Public Prosecutions or any State Attorney duly authorized by him\ may in each case in which it deems necessary as appropriate in the public interest by a certificate under his hand, order that any case involving an offence triable by the court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." Once the consent of the DPP is not available, the District Court would not have any jurisdiction to hear and determine an economic offence as a trial court. In the instant case two mandatory documents were missing as the certificate of transfer was incomplete. The law is settled. In the case of Rhobi Marwa Mgare and Two others v. Republic Criminal Appeal no. 192 of 2005 (unreported), the requirements under section 12(3) and 26(1) of the Economic Crimes Act were clearly amplified. The Court stated thus:- "It follows that in the absence o f the DPP's consent and certificate o f transfer o f the economic offence 6

to be tried by Tarime District Court, in terms o f section 12(3) and 26(1) o f the Act, the subordinate court had no jurisdiction to try the case. The trial was thus a nullity and the ensuing conviction and sentences are nothing but nullities. Even the proceedings before the High Court on first appeal were a nullity". See also Cretus Sambi @ Kimbwenga and Geofrey Chazyu v. Republic, Criminal Appeal No. 270 of 2010 and Niko Mhando and Two others v. Republic, Criminal Appeal No. 332 of 2008 (both unreported). In view of the non-compliance with the law, it follows therefore as the night follows day, that the proceedings in the District Court and the Resident Magistrate's Court with Extended Jurisdiction, on appeal were a nullity. By the powers vested in us under section 4(2) of the Appellate Jurisdiction Act, Cap 141, we hereby nullify and quash all proceedings and judgments of the trial court and those of the first appellate Court. We also set aside the sentences and we hereby order a retrial. The appellant who was convicted in November 2012 to remain in custody pending the trial denovo, which should be conducted expeditiously. The time the appellant 7

had spent in prison serving the sentence of 15 years imprisonment should be taken into consideration should the new trial result in a conviction. It is so ordered. DATED at IRINGA this 12th day of October, 2017. S. MJASIRI JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. E DEPUTY^REGISTRAR COURT OF APPEAL 8