By Faustine Kapama, The Daily News
The High Court has rejected the appeal lodged by Chinese Yang Feng Clan popularly known as ‘Queen of Ivory,’ and two Tanzanians, opposing the 15-year imprisonment sentence imposed on them for leading organised crime on 860 pieces of elephant tusks, worth 13bn/-.
Judge Joaquine De Mello ‘struck out’ the appeal of the trio, including the Tanzanians, Manase Philemon and Salivius Matembo, after upholding a technical ground presented by State Attorney Salim Msemo, for the prosecution, relating to defects on wrong title of submissions in support of the appeal in question.
“The fact that, the submissions are based on a wrong title, condensed with the aforementioned position, I strike out the appeal, it being incompetent in its entirety with costs” the judge ruled. When resisting the appeal, the trial attorney had remarked on the validity and lawfulness of the submissions from the appellants on two folds.
The title reads, “In the Court of Appeal of Tanzania at Arusha, Criminal Appeal No. 125 of 2018. This, he submitted, was opposed to what was before the Court and for Appeal Titled in the High Court of the United Republic of Tanzania (Dar es Salaam District Registry) at Dar es Salaam, Criminal Appeal No. 95 of 2019.
According to her, such error goes to the root of the matter rendering the submissions misplaced and therefore non in place. In her ruling, the judge was attracted by a series of cases, including that of DPP vs. Abdallah Zombe and others, Criminal Appeal No. 254 of 2009, among others.
It was held in among the cases that wrongly titled of notice of appeal is fundamentally defective and not a minor defect, it is a fundamental irregularity, which goes to the root of the matter affecting the validity of the notice of appeal that is a vital document with regard to the application.
“I am increasingly of the view that, not even Article 107A (2) (e) featured in our Constitution does away with all rules of procedure in the administration of justice in this country or that every procedural rule can be outlawed by that provision of the Constitution,” the judge observed.
Judge De-Mello further noted that not even the Overriding Objectives Principle which Courts have been urged to embrace, as amended by Written Laws Miscellaneous Amendment Act No. 3 of 2018, enjoin Courts to deal with cases justly and have due regard to substantive justice.
On February 19, 2019, Principal Resident Magistrate Huruma Shaidi of the Kisutu Resident Magistrate’s Court in Dar es Salaam convicted the trio of three offences they were charged with, after being satisfied by the evidence produced by 11 prosecution witnesses.
While sentencing the accused, the magistrate pointed out that the offences committed were serious and had an adverse impact on the country’s economy and the court would not close its eyes, but rather ensure the natural resources are protected and those jeopardizing them are punished.
“For the first count of leading organized crime, the third accused (Clan) is hereby sentenced to 15 years in jail, for the second count of leading organized crime, the first (Matembo) and second accused (Philemon) are each sentenced to 15 years in jail,” the magistrate declared.