CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: SEHEL. J.A.. KITUSL J.A. And ISM AIL J.A.^ CRIMINAL APPEAL NO. 146 OF 2021 NASSIB ABUBAKAR MWAZYEGA @ R A S ...................... ....................... APPELLANT VERSUS THE REPUBLIC................. .................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Utamwa, J.^ dated 9th day of November, 2019 in Criminal Appeal No. 116 of 2019 JUDGMENT OF THE COURT 12th & 18th July, 2024 ISMAIL, J.A.: The appellant was convicted by the District Court of Chunya at Chunya, upon a finding of guilty on two counts of a charge. The first count related to unlawful possession of government trophies, while the second count involved the offence of unlawful dealing in government trophies. Both counts were said to be in violation of section 86 (1) (2) (c) (iii) of the Wildlife Conservation Act No. 5 of 2009 (as amended) (WCA), read together with paragraph 14 of the 1st Schedule and sections 57 (1) and 60 of the Economic and Organized Crime Control Act (EOCCA). The allegation in the counts is that on 4th and 11th March, 2018, the appellant was found in possession of four pieces of elephant tusks valued TZS. 33,859,500.00. The incident is alleged to have occurred at Mbugani village within Chunya District in Mbeya Region. The possession and dealing in the said trophies were alleged to fall foul of the cited laws. He, along with two of his co-accused who have since been acquitted, pleaded not guilty. He was found guilty on both counts and was sentenced to pay fine to the tune of TZS. 333,595,000.00 or, upon failure to pay fine, serve a jail term of twenty years. Efforts to overturn the decision through an appeal to the High Court fell through when the appeal was dismissed. He has taken a bold step to move a ladder up through the instant appeal. The factual settings constituting the background of the instant appeal are easy to glean. They are to the effect that, on 3rd March, 2018, an anti­ poaching Task Force Unit within the Ministry of Natural Resources and Tourism, comprising of F 4238 D/Cpl. Muyenjwa (PW4), CpI. Seleman, Isaack Nanyaro and Abel Manyanza got a tip off that there was a poaching activity going on in Mbeya. A phone number of one of the suspected dealers was shared to members of the Unit. They then left for Mbeya and, on arrival, 2 PW4 communicated with the suspected dealer who turned out to be the appellant. At 11:00 hours on the day they arrived in Mbeya, PW4 met the appellant at Green Lodge Iyunga in Mbeya. The former introduced himself as the dealer in government trophies. The duo's business discussion concluded by an undertaking by the appellant that he would deliver to PW4, 50 kg of elephant tusks at the cost of TZS. 300,000.00 per each kilogram. On 5th March, 2018, PW4 and his team reached out to Regional Crime Officer (RCO) the latter of whom offered Inspector Joram (PW2) to take charge of the operation. From that date to 11th March, 2018, communication went on between the appellant and PW4 and it got to a point where PW4 allegedly sent money to the appellant to facilitate transportation of the tusks from where they were stashed. On information that the appellant could not travei from Chunya to Mbeya, PW4 and his team travelled to Chunya and, on the direction of the appellant, they finally got to Mbugani village bus stop where they located the appellant. He carried with him two 20-litre gallons which were tied with a rope. PW2, a team member, arrested the appellant and, on being searched, he was found with four pieces of elephant tusks, two from each gallon. These items were seized by PW2 and a certificate of seizure was filled and signed by PW2, the appellant, CpI. Seleman and Abel 3 Manyanza. From there, the appellant was conveyed to Chunya Police Station. On interrogation, the appellant allegedly named his other partners in the business. These included Joseph Njwelo Mwakanyemba and Maxi Chrispin Kisinza, both of whom were arrested in Makongolosi Chunya on 15th March, 2018, and featured at trial as the appellant's co-accused persons. In his defence, the appellant denied any wrong doing, contending that he was not found with anything constituting the offence with which he was charged. The trial court would hear none of it as it held that a case against him had been established. While acquitting other accused persons, the trial court went ahead and convicted the appellant and sentenced him to payment of a fine or face a jail term in lieu of the fine. The decision irked the appellant but his attempt to protest his innocence hit a snag when the High Court upheld the decision of the trial court. His unyielding efforts saw him prefer the instant appeal. The memorandum of appeal that founded the appeal had four grounds of appeal. These grounds raise four complaints paraphrased as follows. One, the case for the prosecution was not proved at the required standard; two, failure to take into account the appellant's objections were overruled without a thorough evaluation; three, the 1st appellate court dismissed the appeal without taking into consideration that the testimony adduced by PW1, PW2, PW3 and PW4 was not corroborated by a civilian witness from the village in which the alleged crime occurred; four, the High Court dismissed the appeal without considering the defence. On 4th July, 2024, a supplementary memorandum of appeal containing a single ground of appeal was filed. This ground queried the jurisdiction of the trial court to try an economic offence while the consent and certificate issued by the Director of Public Prosecutions (DPP) were not presented and received by the trial court. Hearing of the appeal saw the appellant enlist the services of Mr. Felix Kapinga, learned advocate, while Messrs. Lordgud Eliamani and Dominic Paul Mushi, both learned State Attorneys, represented the respondent. Mr. Kapinga chose to confine his submissions to the question of jurisdiction which he considered to be of decisive importance. His take was that, the trial proceedings were instituted without there being consent of the DPP. He made reference to page 8 of the record in which the learned State Attorney who represented the prosecution at the time, informed the trial court that, the charge, certificate conferring jurisdiction on the trial court and the consent had been filed in the said court. Mr. Kapinga argued that the document which is found at page 5 of the record of appeal appears to be the consent talked about but there is no explanation as to how the said document found its way in the court file. This is in view of the fact that the same had not been endorsed by the court. Underlining the importance of endorsement and the consequence of the failure to endorse it, the learned advocate submitted that failure to endorse has a fatal effect, and he invited us to be guided by our own position accentuated in Mohamed Mshamu Likulo v. Republic, Criminal Appeal No. 259 of 2022 [2024]T7CA 377 (20 May 2024, TANZLII); and Hashim Nassoro @ Almas v. Director of Public Prosecutions, Criminal Appeal No. 312 of 2019 [2023] TZCA 17716 (4 October 2023 TANZLII), in both of which it was held that proceedings founded on an unendorsed consent are a nullity. He argued that, since the manner in which the consent found its way into the record was discrepant, then the trial court lacked requisite jurisdiction to try the matter. Addressing us on the way forward, Mr. Kapinga argued that, ordinarily, the course of action would be to nullify the proceedings and order a retrial. He, however, was mindful of the enduring principle enunciated in Fatehali Manji v. Republic [1966] E.A. 343 in which it was held that a retrial would not be ordered where the available evidence is insufficient to warrant a 6 conviction. The learned advocate's basis for his contention was twofold. One, that the search and seizure was shrouded in an irregularity as no independent witness, a civilian, witnessed the search and eventual seizure of, among others, the government trophy. He argued that, despite the fact that the scene of the crime was very close to a dwelling house which was lit with electric lamps, the prosecution found no need of enlisting an assistance of one of the dwellers of the house to serve as an independent witness. In the absence of such witness, Mr. Kapinga asserted, accusers became witnesses. This, he argued, was irregular and inconsistent with our holding in the Director of Public Prosecutions v. Mussa Hatibu Sembe, Criminal Appeal No. 130 of 2021 [2022] TZCA 238 (6 May 2022, TANZLII). Two, that the oral account which would substitute documentary evidence did not establish the chain of custody. Mr. Kapinga was concerned that the appellant who was arrested in Mbugani, Chunya, was taken back-and-forth from Chunya to Mbeya along with the alleged trophies, without any documentary trail and oral account on where these trophies were kept or where they came from when they were tendered in court at Chunya. This, he said, placed them in the danger of having the said trophies tampered. He buttressed his position with the decision in Jason Pascal & Another v. Republic, Criminal Appeal No. 615 of 2020 [2022] T7CA 448 (19 July 2022, TANZLII). When called upon to address on the provision of the law under which the consent was issued, Mr. Kapinga's contention was that the consent was issued by Mr. Joseph Sebastian Pande, Principal State Attorney (as he then was). He argued that, whilst issuance of consent under section 26 (1) of the EOCCA is the preserve of the DPP, the consent in question was issued under section 26 (1) and (2) which is wrong. In his contention, the proper provision was section 26 (2) under which consents by other officers are issued. When he took the floor, Mr. Eliamani took a swipe at the arguments advanced by his counterpart. With regard to consent, the learned State Attorney conceded that both decisions cited by Mr. Kapinga guided that consent by the DPP must be formally endorsed. He, nevertheless, quickly submitted that, glancing through the certificate and the consent, it was clear that the same were filed in court and that proceedings at page 8 bear testimony to his contention. Mr. Eliamani further argued that these documents were endorsed, though the stamp appears a little faint. He argued that the distinction between this and the cited cases is that, unlike in the said matters where the documents bore no endorsement, in the instant case, the said documents were duly endorsed. He argued that, that is an explanation on how the documents found their way into the trial court's file. Submitting on seizure and absence of an independent witness, Mr. Eliamani's argument is that the contention by his counterpart appears to be self-defeating because, whereas the appellant appears to contend that there was no independent witness, he appears to acknowledge, at page 62 of the record, that there was an independent witness by the name of Abel Joram, and that he appended his signature on the certificate of seizure. On why such witness was not called, the contention by the respondent's counsel is that the law has not put the number of persons who can testify as witnesses. He argued that, in this case, need did not arise for calling Abel Joram as a witness because seizure of the exhibits was not disputed. He argued that the only objection related to competence of the person who tendered those exhibits. Mr. Eliamani contended that the settled principle is that defence of an accused person is built during cross examination, adding that failure to cross examine on an important fact constitutes an admission of that fact. On this, he cited the case of Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] T7CA 103 (21 May 2012, TANZLII). In his contention, the testimony of PW2 was sufficient to prove the case against the appellant. The learned counsel urged us to follow the path we took in Shija Ngasa v. Republic, Criminal Appeal No. 173 of 2022 [2024] TZCA 382(23 May 2024, TANZLII). The learned State Attorney rebuffed the contention that the chain of custody was broken. While arguing that the chain of custody was observed and established though not at the required standard, he submitted that not in every case in which the chain is broken the exhibit is rendered inadmissible. The learned State Attorney referred us to our earlier decision in Joseph Leonard Manyota v. Republic, Criminal Case No. 485 of 2017 [2017] TZCA 261 (11 August 2017, TANZLII). He contended further that the appellant did not cross-examine on this fact, implying that the alleged breakage was of no consequence. Adverting to the regularity of the issuance of the consent, Mr. Eliamani conceded that the consent erroneously cited section 26 (1) and (2) of the EOCCA as the provision under which the consent was issued. He was of the view that the appropriate provision in the circumstances of the case was sub-section (2). On Mr. Pande's powers, the learned counsel argued that, in terms of GN. No. 284 of 2014, the said officer was duly delegated to issue 10 the consent under section 26 (2). He urged us to hold that, there was nothing significant in the citation of sub-section (1) since the issuer is an authorized officer and that, in the spirit of not being bound by technicalities, the misnomer should be considered as trifling and curable under section 3A (2) of the Appellate Jurisdiction Act. In his brief rejoinder, Mr. Kapinga was insistent that what the law requires is that there should be an endorsement and admission of the consent in the court file. This was not done. On the issuance, the argument by Mr. Kapinga is that the law must follow its course. With regard to independent witness, the contention by the learned advocate is that Abel Manyanza who appears at page 30 of the record was not an independent witness. He was part of the arresting team. Regarding the chain of custody, the contention by the appellant's counsel was that we are not sure if the exhibit in this case was not tampered. He maintained that PW2 did not label the exhibit, rendering it susceptible to tampering, given the back-and-forth movements. He maintained that the appeal is meritorious and it should be allowed. We will embark on the disposal journey by resolving the question of jurisdiction, raised through the supplementary ground of appeal. In this li ground, the validity of the consent and certificate conferring jurisdiction on the trial court, given by the Office of the Director of Public Prosecutions on 30th April, 2018, is on the line. The contention by the appellant is that, since both documents were not endorsed and they found their way in the file mysteriously, the same are lacking in validity and, in view thereof, the court proceeded without requisite jurisdiction. The consent is also under the cosh on a different ground. This is that, the same was issued under a wrong provision of the law. In both contentions, the argument by the respondent is that there is nothing untoward in the issuance, endorsement and filing of the said documents. We wish to remark that the offence with which the appellant was charged is an economic offence, prescribed under the provisions of the EOCCA. This offence is triable by the High Court, Corruption and Economic Crimes Division except where the DPP or any of his authorized officers issue a certificate that confers jurisdiction on a subordinate court to preside over such case. Being an economic offence, its trial is also subject to consent by the DPP or an officer acting on his behalf. Such consent is issued under section 26 (1), in the case of the DPP, or sub-section (2) in the case of the 12 DPP's authorized officer. For ease of reference, the said provision states as follows: " 26. -(1) Subject to the provisions o f this sectionr no tria l in respect o f an econom ic offence may be commenced under this A ct save with the consent o f the D irector o f Public Prosecutions. (2) The D irector o f Public Prosecutions sh all establish and m aintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions m ay be expedited and may, fo r that purpose, by notice published in the Gazette, specify econom ic offences the prosecutions o f which sh all require the consent o f the D irector o f Public Prosecutions in person and those the power o f consenting to the prosecution o f which may be exercised by such officer o r officers subordinate to him as he may specify acting in accordance with his general or special instructions." While, as stated earlier, consent is given under the just cited provision, issuance of a certificate to confer jurisdiction on a court other than the High Court for economic offences is governed by section 12 (3) of EOCCA. 13 Regarding issuance of the consent, the question is whether citation of section 26 (1) and (2) while we know, as conceded by Mr. Eliamani, that the issuer was not the DPP was in order. We are constrained to agree with Mr. Eliamani's submission that, the lavish conduct exhibited by the DPP's office by citing sub-section (1) where the giving of such consent was by a person other than the DPP, was nothing more than a measle slip which is of a curable effect. It is in view thereof, that we accept the invitation by Mr. Eliamani to apply the provisions of section 3A (2) of the AJA and cure the misnomer. Turning on to the documents' entry into the court file, the argument by Mr. Kapinga is premised on our several decisions on the subject. They include the decision in Mohamed Mshamu Likulo v. Republic (supra) in which an unendorsed consent was considered to be discrepant, thereby rendering the proceedings a nullity as the trial court lacked jurisdiction to try the case. Significantly, the appellant does not dispute that the said certificate and consent were, at the commencement of the proceedings, in the court file, as found at pages 4 and 5 respectively. His counsel went further to cite page 8 of the record at which Ms. Mwajabu Tengeneza, learned State Attorney who appeared for hearing on the day was quoted as saying: 14 "May it please your honour, the case was scheduled for m ention, the facts o f the case, new charge, certificate conferring jurisdiction to subordinate court o f Econom ic Crim es Case No. 2 o f 2018 and the consent o f the State Attorney In charge has been prepared and filed to this honourable court, I am ready to proceed with the facts o f the case and have three w itnesses." What we gather from this excerpt and has not been seriously controverted by Mr. Kapinga is that, the consent and certificate, both of which were found in the court file, were filed by the office of the DPP in compliance with the requirements of sections 12 (3) and 26 (1) and (2) of EOCCA. We have also had an opportunity to glance through both of the impugned documents. What came out clearly is that they both bore an endorsement of the stamp of the District Court of Chuya, the court before which the appellant stood trial. It is an all assurance that these documents were formally given and received by the court. Mr. Kapinga, whose attention was drawn to the said documents, was content that the same were given and received. We, in consequence, find nothing untoward in the issuance and presentation of the consent and certificate that conferred jurisdiction on the District Court of Chunya, and it cannot be said, as Mr. Kapinga attempted 15 to contend, that the trial court was not clothed with jurisdiction to conduct trial proceedings that bred the instant appeal. Whilst we resolve this supplementary ground of appeal in the negative, we are constrained to delve a little deeper into the conversation on the beginning and end of the DPP's exercise of powers to give consent, in cases where such consent is a prerequisite for commencement of the trial proceedings. For a start, we wish to restate that, proceedings commenced without the DPP's consent are a mere charade that cannot be tolerated. This implies, and both counsel are in no qualms, that the giving of a consent by the DPP is an indispensable statutory obligation. While the duty to consent to the commencement of trial proceedings relating to economic offences is a legal prescription, it is also a factual reality that the law that compels the DPP to issue consent does not provide for a specific manner or procedure in which the consent given by the DPP should find its way in court. We know of no law, either, which compels the DPP to ensure that such consent be endorsed before it becomes operational. This means, in our considered view, matters relating to endorsement and filing are issues which are not part of the DPP's job prescription set by law. Absence of a codified procedure for submission of the DPP's consent and certificate means that endorsement and/or filing thereof is a matter of practice, built over a long period of time. The only condition, however, is that the giving of the DPP's nod must be done before commencement of the trial. We hold the view that, if the intention was to have the consent endorsed or be subjected to some formal and codified process, the legislature would state so in clear terms. We take a solace from our earlier decision in Republic v. Mwesige Godfrey & Another, Criminal Appeal No. 355 of 2015 [2015] TZCA 264 (19 February 2015, TANZLII) in which we drew an inspiration from the reasoning of the U.S. Supreme Court decision in Caminetti v. United States, 242 U.S. 470 227 U.S. 102 (1917) wherein it was held: "It is elem entary that the meaning o f a statute m ust in the first instance, be sought in the language in which the act is framed, and if it is plain .... the sole function o f the courts is to enforce it according to its term s..." The Court borrowed, yet again, a leaf from the U.S. Supreme Court in the subsequent decision in Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). It was held: "Courts m ust presume that a legislature says in a statute what it means and means in a statute what it says there." See also: Pan African Energy Tanzania Ltd v. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 81 of 2019 [2020] TZCA 54 (6 March 2020, TANZLII). We are of the view that the language used in section 26 (1) and (2) on the duty of the DPP is plain, requiring no interpolation and the sole duty of the courts, including this one, is to enforce it according to its terms. It says no more than that the DPP has to give a consent which he did. We entertain no doubt, therefore, that, since endorsement is not prescribed in the law, the only prescription known to law is that which requires that the DPP should give a consent and that it suffices if the information is accompanied by the consent and certificate issued by the DPP. As we observed earlier, the appellants' contention is premised on our decision is Mohamed Mshamu Likulo (supra) which cited several of our previous decisions that addressed the anomaly committed by subordinate courts, the same way we pronounced ourselves in our previous decision in Adam Selemani Njalamoto v. Republic, Criminal Appeal No. 196 of 2016 18 [2018] TZCA 373 (1 March 2018, TANZLII. This is primarily so, because, unlike in the High Court where consent and certificate are enclosures of the information and the transmittal letter which are delivered in the High Court, in the subordinate courts, these are submitted midway through the process and are entered in the file that was in existence from the time the accused person was arraigned but before committal proceedings. It is precisely why, in the instant matter, Ms. Tengeneza had to inform the trial court of the insertion of the documents when the parties appeared on 16th May, 2018. In our conviction, this is a point of departure that would render our earlier decision in Mohamed Mshamu Likulo (supra) applicable only in the situations where, as was in the cases cited therein, the proceedings have their origin in the subordinate courts. As we venture to illustrate, furthermore, the role that the DPP plays, we are constrained to hold that, since the duty of the DPP is that of "giving" consent as opposed to "filing" or "lodging", which applies to certificate conferring jurisdiction as per section 12 (5) of EOCCA, the responsibilities attached to each of these roles starkly differ from one another. This difference was clarified in our holding in Msafiri Hassan Masimba v. Republic, Criminal Appeal No. 425 of 2007 [2013] TZCA 377 (5 June 2013, TANZLII). At stake in the said case was the question as to whether an accused who had given a notice of appeal ought to have filed or lodged it. The Court observed as follows: "In this case, therefore, it was wrong for the learned judge to hold that the appellant had failed to file a notice o f appeal and proceed to dism iss it To us, the difference between "giving'' a notice o f intention to appeal and "filin g" or "lodging" a notice o f appeal is, in our respectful opinion, too glaring to need education. A fter all, if no notice o f intention to appeal had been given, the appellant would not have been supplied with the copies o f judgm ent and proceedings. " The important take away from the foregoing excerpt is that "giving" does not compel the giver to have what he gives filed or lodged. He is done if he avails it. Further lessons can be learnt from other pieces of legislation in which the DPP plays the same role. The case in point is where proceedings are commenced with consent of the DPP for offenders who are non-citizens of the United Republic of Tanzania for offences committed on the open sea. 20 These are regulated by section 94 of the Criminal Procedure Act (CPA), part of which provides as follows: "94.- (3) It sh all not be necessary to aver in any charge or inform ation that the consent or certificate o f the D irector o f Public Prosecutions required by this section has been given, and the fact o f the same having been given sh all be presum ed unless disputed by the accused person at the trial. (4) The production o f a docum ent purporting to be signed by the D irector o f Public Prosecutions and containing such consent and certificate sh all be sufficient evidencet, for the purposes o f this section, o f the consent and certificate required by this section . " Under the cited provisions, issuance of the DPP's consent may be presumed where such document is produced, unless the accused person disputes at the trial, implying that, mere production of such document is enough and constitutes sufficient evidence of the consent required by the cited section. The DPP is considered to be "home and dry" the moment such consent, and we may add, and the certificate, are proved to have been issued. The question of endorsement of the consent does not feature as a 21 condition precedent for commencement of trial or at all. This position was affirmed by the Court in Hsu Chin Tai & Another v. Republic, Criminal Appeal No. 250 of 2012 [2014] TZCA 2151 (28 March 2014, TANZLII. In this case, the Court considered the import of section 94 of the CPA and concluded that the court would be done if it was able to ascertain that consent was given by the DPP at the institution of the criminal proceedings which is equivalent to the time of commencement of trial in economic cases. The Court further guided on the sequence of events preceding commencement of trial as follows: "... a proceeding is instituted by ... the filin g o f inform ation in trials before the High Court under section 245 (6) o f the CPA. This inform ation is then transm itted to the com m ittal court for tria l under section 246. A fter a com m ittal order, the prosecution has no room to file any other document relating to the institution o f the proceedings, except with leave o f the tria l court. Only after instituting the proceedings can a tria l commence. In d e a r w ords o f se ctio n 94 (1 ) o f th e CPA, th erefo re, le a ve o r co n se n t o f th e D P P h a d to be a v a ila b le b e fo re th e in s titu tio n o f th e p ro ce e d in g s." [Emphasis is added] 22 We consider the import of section 94 of the CPA to be a proper guide from which an inspiration on the process may be drawn. The clear message that we discern is that, in the absence of any dispute or objection that consent was not given, the presumption is that the same was given. We take a firm view that the Court's postulation in Hsu Chin Tai (supra) is to the effect that, in cases that require consent of the DPP, what matters is that such consent must be available before the commencement of the trial, and the DPP is considered to have fulfilled his obligation the moment he avails it. If no objection is raised at trial, the accused is taken to have 'missed the bus'. Our dispassionate review of the record of appeal brings a clear sense that when the consent was made available at the trial, no dispute was raised by the appellant who, we understand, enjoyed the able services of a legal counsel and that the representation lasted for the entirety of the trial proceedings. An attempt to raise an issue at this stage of the proceedings is a mere afterthought that we cannot, with respect, go along with. We are decidedly of the view that, since consent is a requirement for arraignment, administrative processes on how the consent lands in court cannot supersede the necessity of having the consent in place and in time. As we wind down on this emotive issue of consent, we find apt to reiterate our consistent position which is to the effect that even where irregularities are said to exist, such irregularities will only bear adverse consequences if they result in prejudice to the accused person - see: Simon s/o Shauri Awaki @ Dawi v. Republic, Criminal Appeal No. 62 of 2020 [2022] TZCA 51 (23 February 2022, TANZLII); Deo John v. Republic, Criminal Appeal No. 361 of 2020 [2022] TZCA 59 (24 February 2022, TANZLII; and Yanga Omari Yanga v. Republic, Criminal Appeal No. 102 of 2019 [2021] TZCA 220 (1 June 2021, TANZLII). In all those cases, the holding is that, such infractions may be cured by invoking the provisions of section 388 of the CPA. This is what we underscored in Simon s/o Shauri Awaki @ Dawi (supra) in which failure to supply a copy of the committal proceedings consistent with the imperative requirement of rule 9 (1) of the Economic and Organised Crime Control Rules, 2016 GN. No. 267 of 2016, which is, in our opinion, a graver infraction than non-endorsement of the consent, was considered to be too insignifcant to vitiate the trial. Guided by the foregoing, we find this ground of appeal hollow and we dismiss it. Conclusion of the question of jurisdiction takes us back to the merits of the matter. On this, the critical areas of consternation by the parties are: search and seizure of exhibits, and the question of chain of custody. With respect to search and seizure, the appellant's gravamen of complaint is that the search was not witnessed by an independent witness. This is irrespective of the fact that the scene of crime was very close to a dwelling house. This contention has been discounted by the respondent and that, the fact that the same was not opposed means that there was nothing flawed in the entire process of search and seizure. We are aware of the import of section 38 (1) and (3) of the CPA which requires that a search conducted by a police officer be witnessed by a independent witness, and that such witness must append his signature on the receipt or certificate of seizure. This requirement was underscored in Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 [2021] TZCA 13 (11 February 2021, TANZLII). In that decision, the Court put a caveat which was that the requirement of presence of such witness would only constitute an absolute and indispensable requirement if there was a law 25 backing it. See also: The Director of Public Prosecutions v. Mussa Hatibu Sembe (supra). Thus, whilst section 38 (3) of the CPA sets that requirement, the reading of it must go together with section 106 (1) (b) of the WCA which stipulates as follows: "(1) W ithout prejudice to any other law, where any authorized officer has reasonable grounds to believe that any person has com m itted or is about to com m it an offence under this Act, he may- c e n te r and search without any warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or use o f such person, open and search any baggage or other thing in his possession: Provided that, no dw elling house sh all be entered into w ithout a warrant except in the presence o f a t least one independent w itness." What we gather is that, where search and seizure involve wildlife offences, and the place to be searched is a place or vessel other than a dwelling house, such search and seizure may be conducted without warrant and without the presence of an independent witness. We reiterated this position in our recent decision in Omary Said @ Lubawa v. Republic, 26 Criminal Appeal No. 31 of 2023 [2024] TZCA 486 (24 June 2024, TANZLII). wherein we observed as follows: 1That besides, we a/so agree with the Senior State Attorney that, section 38 (1) and (3) o f the CPA m ust be read with section 106 (1) (b) o f the WCA. The latter gives w ildlife officers wide powers o f entry, search and seizure without warrant or a requirem ent o f an independent witness, save where a dw elling house is involved." We are convinced that, in the circumstances of this case, need did not arise for the presence of an independent witness. His presence would only serve to increase the credibility of the search and seizure process and nothing more. But even assuming that procurement of an independent witness constituted an imperative requirement, Mr. Kapinga's contention that a house neighboring the scene of the crime was lit with electric lights is not, in the absence of the testimony that it was inhabited at the time the search was carried out, an assurance that it would produce a person who would serve as an independent witness. We have reviewed the record of appeal, especially the testimony of PW2, Insp. Joram Magova through whom exhibit PEI was tendered and 27 admitted. Admission of this document was objected to by the counsel for the appellant, the contention being that the prayer for its admission was done under a wrong provision of the law. Nothing was raised against the making of the said exhibit or absence of an independent witness to witness the seizure. This means that the appellant did not have any qualms about the process and the making of the document. In consequence, we find the contention by Mr. Kapinga on this aspect underwhelming and we reject it out of hand. The other battleground area is in relation to the chain of custody. Mr. Kapinga has scathed the handling of the government trophy, exhibit PE2. His argument is that several back-and-forth movements of this exhibit made it prone to tampering. Mr. Eliamani conceded that the custody was less than impressive and the indications are that the chain was broken. His contention, however, is that the breakage did not result in its tampering. There is no gainsaying that, establishment of chain of custody is of mighty significance, and many of our decisions point to the fact that the rationale behind this salutary requirement is to establish that the alleged evidence is in fact related to the alleged crime - see: Paulo Maduka & 4 Others v. Republic, Criminal Appeal No. 110 of 2007 [2009] T7CA 69 (28 28 October 2009, TANZLII). This position was reiterated in Zainabu Nassor @ Zena v. Republic, Criminal Appeal No. 348 of 2015 (unreported) in which the rationale for establishing the chain of custody was held to be: "To show a reasonable possibility that the item that is fin ally exhibited in court as evidence has not been tam pered with along its way to the co u rt" As both counsel submitted in unison, the chain of custody of exhibit PE2 left a lot to be desired. Besides the absence of any documentary evidence that would keep a trail of the said exhibit, the oral account, especially that of PW2, gave every indication that the process of keeping it in custody was bungled. We are mindful, however, that, as Mr. Eliamani rightly contended, breakage of the chain of custody does not, ipso facto, render the exhibit inadmissible if such breakage does not lead to tampering of the said exhibit. This settled view has been accentuated in many a decision of this Court. In Joseph Leonard Manyota v. Republic (supra), we reasoned as follows: .. it is not every tim e that when the chain o f custody is broken, then the relevant item cannot be produced or accepted by the court as evidence, regardless o f its nature. W e a re ce rta in th a t th is ca n n o t be 29 th e case s say, w here th e p o te n tia l evid en ce is n o t in th e dan g er o f b e in g destroyed, o r p o llu te d , a n d /o r in a n y w ay tam p ered w ith. Where the circum stances may reasonably show the absence o f such dangers, the court can safely receive such evidence despite the fact that the chain o f custody m ay have been broken. O f course, this w ill depend on the prevailing circum stances in every particular case. "[Emphasis added]. Mr. Kapinga attempted to impress upon us that exhibit PE2 was susceptible to tampering. He, however, argued that he was not sure if, on account of the breakage of the chain of custody, the same was not tampered. This argument does not resonate to us and the reason is twofold. One, that there was nothing placed before us by the appellant's counsel to suggest that the said exhibit was tampered. Two, from what we know, exhibit PE2 is not in the mould of the evidence that can be said to be in the danger of being destroyed, polluted or tampered with. It follows that the fears raised by Mr. Kapinga are nothing more than a mere figment of imagination, and we are unable to lend any credence to it. 30 It is our considered view that, on the basis of the foregoing, the appellant's conviction and sentence were well-grounded and we find nothing on which to fault the concurrent finding of the two lower courts. Accordingly, we find the appeal barren of fruits and we dismiss it in its entirety. DATED at MBEYA this 17th day of July, 2024. B. M. A. SEHEL JUSTICE OF APP EAL I. P. KITUSI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 18th day of July, 2024 in the presence of the Mr. Felix Kapinga, learned counsel for the Appellant and Mr. Augustino Magesa, State Attorney for the Respondent/Republic, is hereby certified as ★ 31