John Ikland @ Ayoubvs Republic (Criminal Appeal No. 1 of 2016) [2017] TZCA 1056 (12 October 2017)

IN THE COURT OF APPEAL OF TANZANIA • AT IRINGA (CORAM: . MJASIRI, J.A., MMILLA, J.A. And LILA, J.A_J CRIMINAL APPEAL NO. 1 OF 2016 VERSUS ' ·_. /·;.,, : !.T-J:' REPUBLIC ································•11 ■ 11 ■ 11a1111 ■■■■ 11 ■■■■■■ a••···········•11 ■■ •11 ■■ 11RESPONDENT {Appeal from the decision of Resident Magistrate's Court of So_nge at Songea) {Dyansobera, PRM) Dated the 29 th day of May, 2014 :-- ..... : ..... ·:· ".',:,c, .. ,.~-, ·. . . . · •. , · RM.DC: Cr,mmal 'Apeal No. 38 of 2013 H/C Criminal Apr:teal No. 52 of 2013 11 th & 13 th October, 2017, MJASIRI, J.A.: . •,:<:· In the District Court' of Tunduru District at Tunduru, the· appellant . , · •·;;}oh.n Ikland @ Ayoub was· charged. ·with two counts,· namely unlawful '' • 1' ,, .. possession of government trophy contrary to section 86(1) and (2) (c) (i0 pf:the Wildlife Conservation Act (Act No. 5 of 2009) read together with : , , par:agraph 14(d) of the 1 st Schedule and sections 57(1) and 60(2) of the 1

' 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 (i) 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 • conyiction and sentence, the appellant appealed· to the High Court. The recprd of the High Court. was transferred under section 45(2) of -the , . Magistrates' Courts Act_· (the Act) to the· Resident Magrstrate 1 s Court, for hearing of the appeal before Dyansobera 1 Principal Resident Magistrate ... with Extended Jurisdiction on October 1, 201.3. Following the transfer, the. 9ppeal was heard by the court of. the Resident Magistrate. The appellant's . . . ' appeal before Dyansobera, PRM was unsuccessful save for the sentences . ' . , , ! · yvhich were reduced to 15 years imprisonment on the first count and to a ?um 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 Jollows:- · 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 t/Je gqvernment chemist 3. No witnesses were called to prove the prosecution . . case. · , ... : ... 4. Thecautidnedstatement.-was'i.rcicordedcontrary tdthe· . ,. . ,requirements under the law. 5. No Village leader/ ·such as Ten c-ell · leader~ Village. . Chairman . or Village ExecuttviY 'Otlicer ! vvete called t; .. witness the search .· , •·• · · : ..... 6. The appellant was not given a chanc;e to defend himself. ,, ·. - 7. · That· the· chaige • agalnst'the. }ppella;i i,vs not proved . beyond reasonable doubt.: •. · At the hearing of the appa1~ the app.ellant appeared in person and . ~id_ ~ot have any leg·a1 repre~~ntatibn while the .;respondent Repubiic had .. r . • ] .,. ' ' • .- •• - • , '. ' • ·. • • • ,, : ' ' ' ' : • • • , : ' • ' i • ~ • , .. ' , : _.. -, ~ .. ,·., the 1services of Mr: Shabani: Mwegole, ·· assisted by, · Ms Amina Mawoko, . . . . I i. , : : ... leared State Attorneys. When the appeal ·was called on for hearing, Mr. 3

·l'1\iVegole prayed to ,withdraw the preliminry · objection a notice of which was filed in Court; which was granted by the Court. · Before the corinmencement -of hearing. qf the appeal, Mr. Mwegole• ·... sought leave of _the Court to present a pertinent legal issue on the· . . . i • .jurisdiction of the triI court, that is the District Cou.rt of Tt.:mduru. firstly; . '•' . . '· ... th~- trial court commenced the hearing of the case without the consent of .·the.Director of Public Prosecutions (OPP) as required under Section 26(1.) of the Econo.mic Cdmes Act - ~~condly,,.the- District· Cqurt:. sat as. the Economic Crimes' Court witt,out a ·proper certificate of transfer· by-the DPP· . . . : . - . under seion · 12(3) bf the Economic· Crimes Act under .. which the appellant · yvs charged.· The :certificate of transfer was partiql and :·did: ·not cover • ,'! ' section 86(1) and (2D (c) (ii) of the Wildlife Conservation Act (Act No·. 5 of · '. , 2009) which is supp@sed to be read together with paragraph 1{qi (d) of the·.•·-· •' . : ;< ryrst schedule to and ·sections 57 (1) and 90 _ (2) of the Economic Crimes ' ·, . . . . . ., . . : Act. He asked the C~urt to nullify the proceedings and the decisions of the • ' • .: ." .. ' . : . .. .I. . • . ~ , •. ' . ~ :· ':. . :· • .·,. ,' ' .District Court and thbse 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 rec9rd that the requirements under the law , __ ; .. '.. we.re not complied with. The proceedings in the bistrict Court and the ,:__--~= ~---=--~~~- l .. . . . . :-,::;f;-·:,,, __ -;---1 ! • ' ,'::"':;- .. R,.esiderit. Magistrate's court with . !:xtende9 JtJrisdi_ction were indeed a ={"2:~~\ -;:,:- i. ~ ., . ·,· . ; . . ' i~·J .. _~ ~--- .. ~ ' -~~ i ##·;,: :::.huHity. The trial in the District Court was conducted before the consent of

--~~: > :t~~t DPP was filed and ·without a compl~te ce1tificate of transfer issued and 
., .. ·,·,· .,.f . ;· 
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.. ,. ., signed by the DPP in order to authorJze ari economic case to be tried by a 
.,, ,., '·· . - ., ·. . 
:;" , ,.. ?upordinate court. · The jurisdiction is vested in·:the +ngh Court sitting as · · ·. 
: .. the Eco~omic Crimes Court.; The'•consent of''the DF'P l~i mandatory uqder 
section 26 (1) of the Econom.ic Crimes Act, whic::h provides as follows:- . 
• • ' • - 4 ' • _.-;, •• ,,,., -.· '. • • 
. "Subject to the provisions of this section, no trial 
in respeit 'oi a,/· eco~~mic ~ff~n~e .n~ay be 
. -~~mmJnc~d under this Act save with the 
· ·consent . or ,(he Director . of;, Public 
prosecutions." , .. 
[Emphasis provided]. 
Sec 12(3) of the Economic Crimes Act provides that ;:- 
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"The Director of 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 hancl order 
that any case involving an · offenc~ ·triable· by the 
court under _this Act be· - tr/ed by such court 
subordinate to the High Court a$ he may specify in 
the certificate:" 
Once the consent ofthe 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 vvere missing -as the 
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certificate of transfer was incomplete.- 
The law is settled. In the case of ~hobt M~rwa Mgare and Two 
. o~hers v. Republic Criminal Appeal no. )92 -of 2005 (unreported)/ the 
< requirements under section .12(3) and. 26(1} of the f;conomic. Crimes Act 
. . . . . . . 
were clearly amplified. The Court stated thus:-~ .... 
''It follows thatin the absence of the DPP's consent 
and certificate of transfer of the economic offence 
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to be . tried by Tafime District (6uJt in terms of · 
section 12(3) and 26(1) ofthe Act th(;! $l!bordinate 
court had no jurisc(iction. to try the case. The trial . 
was thus a nullity and ~he ensuing conviction and 
sentences are . nothing but nullities. Even the 
proceedings. before. the High Court ·o~ first appeal 
were a nullity'~ . 
See als_o Cretus Sambi @. K:imbwenga ancl Geofrey Chazyu v. 
_.,J 
j 
-· • ' _·: • . • . . • • •• ' . : . '. : : . . • . . ..... •,•_ •• -·; -~·~ · . . : :- ! .. 
, R,epublic, Gtimina.l Appeal No. 270 .of 2010 and Niko Mhando and Two 
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,, others v. Republic, Crim,inal Appear N<J. 3J2 of 
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io'o'a ,(both. unreported) .. 
In view of the -non:-cornplian~e. w,ith .the _!qw, it follows th~IJ)for;e as 
• ,' ' • I 1 ." '': ' : . • ' ' • I• . ' : • . 
;·:s-,,' the. night fqllows ·day, that the. proce~qings _ir1 _the District· Court ~nd' the. 
: ' ·. " . . • . . '• l ·. :, . • . ~ . : . . : ' . ,' . . • . , ; . :; '. ·. ( / . • ' 
.... _·, Resident Magistrate's Court with Extended Jurisdiction, on appeal were a 
!. •. •. ' . . ' . . .• • '. i : ,· ' : '. •. '.. . - :_·: . ;-:'.. ·, ·. ;_ ' _: \:' ,_, . ·.'.:·, .!. '•: _I • - • : . 
. , ,, _., -nulUty. By the powers vested in us under section -4(2) of the Appellate 
.. _ - . -':,· ' .. ~ ..... - .· ·.. ./ : .. ,. . ,:.'· ,; ·.' .. ;. 
Jurisdiction Act,'- Cap 141, we hereby nullify and qua.sh all proceedings and 
. . '. •. ' : : •. '' • • \ ··... .• • ·: • '. _,~. . '! .. " . ' 
judg-;,,ents of the- triaL court and those of the firsVappeHate Coy rt. We also·. 
,~et .as.ide· -th-e se-nt~nces ·and w~·hereby orde1- a refrraL· The appellant who·. 
~c:1s convicted· in NC>vember 2012 to remain in custody pending the trial 
. >: ._ c:Jenovo, which shou·ld be conducted expeditiously. The time ·the appellant 
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had spent in prison serving the sentence of 15 years imprisonment should 
be taken irito consideration should the new trial result in a co~viction. 
: It is so ordered. 
• DATED at IRINGA this· 12 
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day of October,· 2oi7 . 
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. S. MJASIRI 
JUSTICE OF APPEAL . 
B. M. MMILLA 
JUSTICE OF -APPEAL' , 
S; A. LILA 
JUSTICE OF.APPEAL 
-· I certify that this is at~ue copy of the original. · 
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