Hamisi Majid Mohamed vs Republic (Criminal Appeal No. 164 of 2014) [2014] TZCA 2205 (27 November 2014)

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPEAL NO. 164 OF 2014 (CORAM: BWANA, J.A., ORIYO, J.A., And KAIJAGE, J.A.} HAMISI MAJID MOHAMED ........................................ APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (App~,al from the decision of the High Court of Tanzania · at Mtwara) (Kibela, J.} _ dated the-14 th day-of February-, 20-13 . in Criminal Appeal No. 37 of 2013 JUDGMENT OF THE COURT ' 25 th & 28 th November, 2014 KAIJAGE J.A.: · Before the District court of Kilwa at Masako,· the appellant and another person were charged with unlawful possession of government trophy contrary to section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14(d) of the first Schedule to the Economic and Organized Crimes Control Act, Cap 200 R.E. 2002. After a full trial, they were convicted as charged and each was sentenced to twenty (20) years imprisonrrient. Aggrieved by such both conviction and sentence, the appellant unsuccessfully appealed to the High Court, hence this second appeal. 1

Before us, the appellant appeared in person, fending for himself. Mr. Paul Kimweri, learned State Attorney, appeared for the respondent Republic. When the appeal was called on for hearing, the learned State Attorney rose to point out a pertinent jurisdictional issue, its determination of which could easily dispose of this purported appeal. The issue touched on the jurisdiction of the trial District Court to entertain and determine an economic offence. In elaboration, the learned State Attorney submitted that an offence of unlawful possession of government trophy with which the appellant was charged with and eventually convicted of, is an offence under the Economic and Organised Crimes Control Act, (the Act), triable by the High Court with the prior consent of the Director of Public Prosecutions·(the DPP). He further contended that c~urts subordinate to the High Court have no jurisdiction to try such offences unless the DPP gives his consent and, he, or the State Attorney duly authorised by him certifies that such offences could be tried by any designated subordinate court, he contended. In the light of the immediate foregoing, the learned State Attorney was of the view that in this case, the District Court of Kilwa had no 2

jurisdiction to try an economic crime case without there being a requisite consent from the DPP in terms of section 26(1) of the Act. Upon this shortcoming, he asserted that appellant's purported trial was a nullity. As such, he urged us to quash and set aside the null proceedings and judgments of both courts below, as well as the sentence imposed on the appellant. With respect, we are in full agreement with the learned State Attorney. We entertain no doubt that the District Court of Kilwa at Kilwa could have validly tried the appellant, on an economic offence, upon obtaining a requisite prior consent of the DPP under section 26 (1) of the Act which provides:- 11Section 26 (1) Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." (Emphasis supplied). Notwithstanding the existence of a transfer certificate issued by the State Attorney in terms of section 12 (3) of the Act, we are settled in 3

our minds that the absence of the DPP's consent given under section 26 (1) of_tb~ Act, vitiated_tbe_entire appellaot's __ tr.ial. In the exercise of our revisional powers under section 4 (2) of the

• Appellate Jurisdiction Act, Cap 14fR. E. 2002, we hereby quash ahd set - - - aside the null proceedings in, and the judgment of, the two courts below as well as the sentence meted out against the appellant by the trial court and affirmed by the High Court. We are leaving the matter entirely in the wisdom of the DPP to decide on whether or not to mount a fresh prosecution against the appellant. In the meantime, we order the immediate release of the appellant from prison unless he is otherwise lawfully held. DATED at M1WARA this 27h day of November, 2014 S.J. BWANA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. ci{)Dt5R . ~BAMPIKYA SENIOR DEPUTY REGISTRAR· COURT OF APPEAL 4