CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 27050 OF 2024 (Arising from the decision of the District Court of Masasi at Masasi in Economic Case No. 5 of2023) HAMISI ABDALLAH LILOMBE.............. ......................... ................ 1st APPELLANT AMRI SELEMANI SAID @MNUNDUMA..................... .................. 2ND APPELLANT VERSUS THE REPUBLIC....................... RESPONDENT JUDGMENT 28$ November & December2024. DING'OHI,J; In the District Court of Masasi district at Masasi (the trial court), the appellants were charged jointly and together with two counts; first, unlawful possession of a Government Trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act (CAP 283 R.E 2022) read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) and (3) of the Economic and Organized Crime Control Act [CAP 200 R.E 2022]; second, unlawful possession of a Government Trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act (CAP 283 R.E 2022) read Page 1 of 15 together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2.) and (3) of the Economic and Organized Crime Control Act [CAP 200 R.E 2022]. The particulars of the offences as per the charge sheet are to the effect that; on the 8th day of October 2023 at Madaraka Street within Masasi District in Mtwara Region the appellants jointly and together were found in unlawful possession of the following Government trophies to wit; fifteen teeth, eight legs, four nails and seven footprints of Leopard worthy TZS. 44,892,000/-. They are also found in unlawful possession of four footprints, four teeth, and one nail of a Lion valued at TZS 17,458,000/= without a permit from the Director of Wildlife to possess the mentioned Government trophies. When the charge was read and explained to the appellants, respectively, pleaded guilty to both counts. The appellants7 pleas moved the trial court to invite the prosecution side to bring out the facts of the case for both counts. In the course of reading out the facts of the case, the prosecution side tendered the following as exhibits to corroborate the commission of the offences in both counts; Certificate of Seizure (Exhibit Pl), Receipt of Seizure (Exhibit P2), Sketch map of the scene (Exhibit P3), Appellants caution statements (Exhibits P4 & P5), Extra Judicial Statements Page 2 of 15 (Exhibits P6 & P7), Valuation reports (Exhibits P8 & P9), Government trophies (Exhibit PIO), and the motorcycle make SANLG (Exhibit Pl 1). After the facts were read over to them, the appellants admitted to the facts constituting the offences charged. Based on their unequivocal plea of guilty on both counts and the facts of the case which were read over to them, the learned trial court magistrate convicted the appellants on their own pleas of guilty. They were sentenced to serve twenty (20) years imprisonment each, for each count. The sentences were ordered to run concurrently. Unhappy with the above conviction and sentence meted out by the trial court, the appellants preferred their grievance to this court on the following three grounds of appeal; 1. That. The learned trial magistrate erred In law and fact by entertaining the matter withoutjurisdiction. 2. That, the learned trial magistrate erred in law and fact by convicting and sentencing the appellants basing on the equivocalplea ofguilty. 3. That trial magistrate erred in law and fact by convicting the appellants while charge sheet was not read out during Preliminary Hearing. Page 3 of 15 When the appeal was called up for hearing, both parties agreed that the same be argued orally. The appellants had the services of Mr Rainery Songea, the learned advocate, whereas the respondent, Republic was represented by Mr Edson Laurence Mwapili, the learned State Attorney. When allowed to expound the grounds of appeal, Mr, Songea prayed to abandon the second and third grounds of appeal and remained with the first ground of appeal. On that ground, the learned advocate faulted the trial court for trying the matter that it had no jurisdiction to entertain. According to the learned advocate, the trial court had no jurisdiction to entertain an economic offence because according to the law, the said offence is only triable by the High Court unless there is a certificate conferring jurisdiction to the subordinate court to try the economic case as provided for under section 25 (1) and section 12 (3) of the Economic and Organized Crimes Control Act. To clarify his point, Mr. Songea submitted that in the trial court proceedings, the prosecutor was recorded saying that there were filed consent and a certificate conferring jurisdiction on the subordinate court to try economic offence, but nowhere does the record show that those Page 4 of 15 documents were received or admitted by the trial court. It does not show how those documents were entered into the trial court records. He added that even assuming that the consent and certificate are in the case record, since they were not properly admitted per the law the whole proceeding becomes a nullity. To cement his position; Mr. Songea cited the cases of Armelindo Anibal Ganhane vs. The Republic (Criminal Appeal No. 105 of 2023) [2024] TZHC and Mahada Kipara @ Kaemereri @ Charles vs Republic (Criminal Appeal No. 564 of 2021) [2024] TZCA 963. Mr. Songea thus prayed that this appeal be allowed, conviction and sentences set aside, and the appellants be released from custody. In response, Mr Mwapili vehemently resisted the appeal. He has the view that the trial court had the requisite jurisdiction to entertain the economic case before it. He elaborated that there is no dispute that it is the High Court that has been vested with jurisdiction to entertain economic cases like that faced the appellant in the trial court. He submitted however that the law also allows the economic cases to be entertained by the subordinate courts upon consent and a certificate conferring jurisdiction issued by the DPP as per section 12 (3) Economic and Organized Crimes Control Act, Cap. 200 R.E 2022 and section 12 (4) of the same Act. Page 5 of 15 He contended that the prosecution's duty in that kind of case is only to make sure that the consent and the certificate are in the case file per the law. No law commands them to trace how the consent and the certificate got inside the case file. There is no law governing the procedure or manner in which those documents should get inside the case file which gives the prosecution party the duty to make sure that the documents concerned are endorsed by the court. It is the duty of the court itself, if any. Mr. Mwapili argues that the good thing is that those documents are available in the trial court record. The consent and certificate were issued and were available before the commencement of the case subject to this appeal, in the trial court. He, therefore, disputes the submission by the advocate for the appellant that those documents are not in the case file. According to him, it was not fatal for the consent and certificate to be admitted the way it had been done by the trial court. It was not irregular. If there was any problem the appellants were to object in the trial court otherwise, that is an afterthought. To buttress his proposition, the learned state attorney referred this court to the case of Nassib Abubakar Mwaziega @ Ras vs Republic Criminal Appeal No. 146/2021. Page 6 of15 However, according to Mr. Mwapili, if this court finds that it was procedurally fatal to submit the consent and certificate conferring jurisdiction to the trial court as it was done and as submitted by the advocate for the appellants, the appellants should not be acquitted. Alternatively^ the order for retrial may be attempted in the interest of justice and taking into consideration that the trophy is government property which is to be protected. The learned State Attorney concluded his submission by inviting this court to be guided by the stance made in the case of Republic vs. Seif Abdallah Chombo and 5 Others (Economic Case 4 of 2022) [2022], TZHC 15198. In a brief rejoinder, apart from reiterating what had already been submitted in chief, Mr Songea insisted that the retrial is not proper under the circumstances of this case as that shall mean allowing the republic to go and correct the defects. According to him, the court will be more right if the appellants are acquitted rather than ordering a retrial. Having carefully considered the arguments by the learned counsel for the parties, there is no doubt that the first and the only remained ground of appeal raises the issue of jurisdiction. Page: 7 of 15 It has been stated without a number that the issue of jurisdiction may be raised at any stage. It may even be raised at the appellate stage like this. That is per the decision in the case of Mwanachi Communications Ltd & Others vs. Joshua K. Kajula & Others (Civil Appeal No. 126 of 2016) [2020] TZCA 1824, where the Court observed inter alia that; 'The law is well settled that the question of jurisdiction may be canvassed at any stage even on appeal by the parties or suo motu by the court since it goes to the substance of a trial/ As correctly submitted by both learned counsels its only the High Court that has been vested with the jurisdiction to try the economic case as per section 3 (1) of the Economic and Organised Crime Control Act [CAP. 200 R.E. 2022]. The subordinate courts may try the economic case if the DPP or any State Attorney duly authorized by him directs by certificate that, the particular economic case be tried by a subordinate court. That is per section 12 (3) of the Economic and Organised Crime Control Act [CAP. 200 R.E. 2022] that; 'The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case Page 8 of 15 in which he deems it necessary or appropriate in the public interest, by 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.' It is also a cardinal principle of the law that for a trial to commence on economic offences before the subordinate court, there must be consent from the DPP that casting the respective subordinate court to try the matter. This requirement is further reinforced by 26 (1) of EOCCA, which states in mandatory terms that; '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.' In the case at hand, it is on record that on the first day, when the case came before the trial court it shows that the learned trial court magistrate started the case after being satisfied that the consent and certificate had been filed in court. For ease of reference, I wish to spell out what the learned trial court magistrate recorded on that first day, I quote; 'CORAM DATE: 24/10/2023 Page 9 of 15 BEFORE B. K. KASHUSHA ~SRM FOR PROSS: MR. KAJIRU ACCUSED: Present both CLERK: UPENDO Crt: Charge sheet, consent of the District prosecutions officer and Certificate conferring jurisdiction on a subordinate court to try an economic offence are filed in court.' From the above extract, the question is whether as the way it shows herein above, is it enough to say that the consent and certificate were properly admitted before the court. The advocate for the appellant says it was not enough while the learned state attorney says it was enough. I have respectively considered the submissions by both sides on that. Admittedly that has been a wide debate in our jurisprudence nowadays. The Court of Appeal in the recent decision of Daniel Sijala Bakari@ Daniel Sigila and Another vs Republic (Criminal Appeal No. 382 of 2022) [2024] TZCA 1253 (11 December 2024) had the following to say; 'Mr. Chauia, submitted in reply that the complaint was baseless as the record of appeal shows that a substituted charge accompanied by the consent of the Prosecuting Attorney in Charge and certificate oforder for trial of an economic case in the Resident Page 10 of 15 Magistrate's Court at Arusha were duly admitted by the trial Magistrate on 02/03/2020 after granting prayers by the Prosecuting Officer to file the said documents and substitute the charge. In our considered assessment, we agree with the learned Senior State Attorney because as vividly shown at pages 3,4 and 50 of the record of appeal, the said documents were duly admitted by the trial Magistrate. The case of John Julius Martin & Another v. Republic (supra) is distinguishable as the situation in the above case is not similar to the state of affairs obtaining in this present appeal Therefore, we hold that the trial court had the jurisdiction to try the economic case. Thus, ground two is baseless and we dismiss it.' The Court of Appeal of Tanzania in another recent decision of Shamim Omari Mwasha and Another vs. Republic (Consolidated Criminal Appeals No. 173 and 182 of 2021) [2024] TZCA 1105 (14 November 2024) also discussed this matter in a wide and it gave out a clear position concerning this issue which I think it is a good position to follow. The Court stated inter alia that; It is also profound to note that, giving or withholding a consent to prosecute an economic Page 11 of 15 case, is exclusively within the domain and mandate of the DPP, and the purpose of the consent is for the DPP to signify his desire and intention to the trial court that he is ready to prove the charge against a suspect. That intention or the substance of the DPP's consent, which we can also call the spirit of the consent, cannot be enhanced or be diminished by its endorsement or non-endorsement by any other person or official other than the DPP. The consent of the DPP is the document of the DPP'. The Court heid further that; Tn this case, the DPP drew the consent, signed and sent it along with the information to the trial court. The said consent is on record at page 5 of the record of appeal and no party to this appeal is questioning its authenticity or validity. Apart from that written consent, in further demonstrating and supporting the said consent to prosecute the case, the DPP sent State Attorneys who diligently prosecuted the matter to finality. Not only that, even in the present case before us, the State Attorneys who appeared, never indicated to us that the DPP had erroneously consented to the trial ofthe appellants. In anyevent, we did not hear Mr. Mtobesya submitting at any point Page 12 of 15 in time, that, when the hearing commenced, the consent was not on record. The appellants' trial can only be questioned on the basis of the consent, if it can positively be asserted with certainty, that at the trial, the consent was not on the record.7 The Court of Appeal emphasized further that; We wish to observe, furthermore, that, the alleged endorsement of the said consent is to be done by a judicial or court registry officer. In such a case, the Court has times without number, stated in many of its decisions that, unless and until a procedural infraction leads to a failure of justice, the omission cannot render any court proceedings invalid.7 In terms of the above reasoning of the Court of Appeal, and upon scanning the trial court proceedings it is undisputed that the consent and certificate that conferred the trial court to try the matter are on the court file. Moreover, upon careful perusal of the trial court records, I realized that the said consent and certificate were endorsed by the official seal of the trial court. I think this would have been worse if the consent and certificate were not in the trial court file, and it would have been more different if the trial Page 13 of 15 court magistrate had not written to accept that the consent and certificate were properly filed before the trial court. Unfortunately, that was the only ground of appeal chosen by the learned advocate for the appellant to be considered. I have already indicated that it has failed. In the premises, borrowing the wisdom given by our apex Court as quoted herein above, I find that the trial court had the jurisdiction to try the economic matter which was before it. The opposite submission given by the appellants' counsel is no longer a good law and thus without merits. Consequently, the appeal is hereby dismissed. DATED at MTWARA this 18th day of December 2024. DING'OHI JUDGE 18/12/2024 COURT: Judgment delivered this 18th day of December 2024 in the presence of Mr Edson Laurance Mwapili, the learned State Attorney for the Republic, and Mr. Ahyadu Nannyohe, the learned advocate for the appellants. Page 14 of 15 18/12/2024 Page 15 of 15