Ally Hassan Mpapata vs Republic [1992] TZHC 28 (7 September 1992)


Mkude, J.: An interesting point of law arises in this appeal: Is the plea of autrefois acquit available to an accused person whose previous trial has been declared null and C void? The question as framed may be an oversimplification but that is the essence of the point calling for decision in this case. The appellant, Ally Hassan Mpapata, was charged with unlawful possession of Government trophies c/s 67 (l) of the Wildlife Conservation Act, 1974 read with section 59 and paragraph 16 (d) of the Economic and D Organized Crime Control Act, 1984 in the district court of Kilosa. The charge alleged that on 2/7/89, at Msowero Village in Kilosa district he was found in possession of 449 elephant tusks valued at Shs.28,540,000/= the property of the Government. This is an economic offence for which the consent of the Director of Public Prosecutions E (hereinafter the DPP) is necessary before a trial in respect of it can be commenced. This is in accordance with the provisions of section 26 (l) of the Economic and Organized Crime Control Act. Subsection (2) of the same section empowers the DPP by notice published in the Gazette to delegate some of his powers in this regard to State F Attorney by specifying economic offenses which require his personal consent and those that can be consented to by State Attorneys. By Government Notices N. 191 of 1984 the DPP reserved to his own consent the prosecution of offences specified in part I of the schedule to the Notice and delegated to State Attorney-in-charge of the zone or G region in which the economic offence took place the power to consent to the prosecution of offences specified in Part II of the Schedule. Offences under the Wildlife Conservation Act fall under Part II of the Schedule and hence fall under the delegated power. The problem arose in this case because the State Attorney who purported to H consent to the prosecution of the offence was not a State Attorney-in-charge as required by the Government Notice.
This point escaped the attention of the trial court and so the trial proceeded and at the conclusion of the trial the accused was acquitted for insufficiency of evidence. The I DPP appealed against the acquittal. In the High Court (before Lugakingira J.) arguments

on the merits of the appeal were preceded by two preliminary objection. The first A objection question the competence of the appeal itself. The court held that the appeal was competent and overruled the preliminary objection. The second objection challenged the regularity of the proceedings in that the prosecution commenced on the consent of a person not competent to give such consent. The court held that the B proceedings were a nullity and issued a declaration to that effect. The court then went on to consider the evidence adduced at the trial and came to the conclusion that the learned trial magistrate was justified in acquitting the accused and dismissed the appeal by the DPP. C
The DPP then prepared a fresh charge against the appellant and two others, annexed to it his consent for the prosecution as well as his certificate conferring jurisdiction upon a district court to an economic crime case and filed it in the District Court of Kilosa. The charge and particulars of offence alleged the same offence and was word for word D similar to the charge in the previous trial declared to be a nullity by Lugakingira J. While the case was still pending at the Kilosa District Court the appellant filed an application for bail in the High Court, and when the file was pleased before Lugakingira J. for hearing he declined to hear it and gave his reasons as follows: E
Court: The arrest and re-arraignment of the applicant rises either from a misunderstanding or a disregard of the judgment in which I upheld his acquittal. I cannot embark upon hearing this application without appearing to be a judge in my own cause. FThe matter should be placed before another judge.
The authorities obliged and placed the matter before Kyando, J. who proceeded to hear the application and ordered that the matter should be handled by the trial court since G it has been given jurisdiction to try the case under the certificate issued by the DPP. Before leaving the matter Kyando J. made the following observations:
H Thirdly it does certainly not appear to me that Lugakingira J. only nullified the first proceedings in this case. As shown above already he considered also the evidence in the case and was satisfied that even if he were to hold that the proceedings were valid he would still have upheld the acquittal on the evidence - which was weak and could not I sustain a conviction.

A On all these above points, it is clear that to all intents and purposes, the appeal by the Director of Public Prosecutions in the first proceedings was dismissed on its merits. The reinstitution of the case therefore amounts to an abuse of the process of the courts. However, as is clear, I am here dealing with a bail application. The matter whether the B applicant has already been acquitted in the case is to be properly dealt with by the district court which is trying him. He may deem it necessary to plead autrefois acquit before that court. (emphasis supplied.) C
Armed with the observations of two judges of this court, Mr. Rutabingwa, learned advocate, appeared before the District Court at Kilosa and pleaded autrefois acquit. The learned Resident Magistrate who presided was not impressed by this plea; he rejected it and said: D
I totally concur with Mr. Kamba that the appeal was not heard on merit. The defence of autrefois acquit does not arise in this case. The fact that Hon. Lugakingira J. did not order for retrial of the case did not mean that the Prosecution could not recharge the accused. E
It is the opinion of this court that the acquittal as entered by Hon. Lugakingira J. was if the proceedings were valid but they were not VALID AND HAD NULLIFIED them at the beginning of his judgment. F
The application for defence of autrefois acquit for 1st accused is dismissed. The case is to proceed as scheduled.
The appeal before me now is against this last order of dismissal. Mr. Matupa, learned G State Attorney who appeared for the Respondent/Republic, raised the question whether the order rejecting the plea of autrefois acquit is appealable. He argued that if the plea is accepted by the court and upheld then it is final and appealable immediately but if it is rejected then it is merely interlocutory and therefore not immediately appealable. This H is an interesting point very much like that covering the submission of no case to answer but I find it unnecessary to decide in this appeal and so I refrain from expressing any opinion on it, if only to learn a lesson or two from the observations of my two learned others.
Mr. Rutabingwa faithfully referred to and relied on the observations of Lugakingira J. I both in his judgment and in the

note he wrote declining to hear the bail application, as well as the observation of A Kyando J. reproduced above in which he regarded the action of the DPP in filing fresh charges against the appellant and his two friends as an abuse of the process of the courts. While I have every sympathy for his arguments I am unable to accept them. One cannot eat one's cake and have it. Once Lugakingira J. disagreed with Mr. Matupa, B learned State Attorney, on the power of Miss Korosso to consent to the prosecution of the appellant, and declared the trial null and void then, ipso facto, there was no "acquittal" for his lordship to uphold. This is so because the purported acquittal is a necessary part of the very trial that has been declared a nullity. It could not, and, like C those by Kyando J. in the ruling on the application for bail, were not at all necessary for determination of the appeal.
For the above reasons this appeal fails and I dismiss it.
D Appeal dismissed.


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