CONSOLIDATED CRIMINAL APPEALS NO 173 182 OF 2021 SHAMIM OMARI MWASHA ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. J.A.. ISSA. 3.A.. And ISMAIL. J.A.^ CONSOLIDATED CRIMINAL APPEALS NO. 173 AND 182 OF 2021 SHAMIM OMARI MWASHA.... ..............................................IstAPPELLANT ABDUL ISSA NSEMBO.........................................................2nd APPELLANT VERSUS THE REPUBLIC............................ .................................... . RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam) (Luvanda J.) dated the 31st day of March, 2021 in Economic Case No. 4 of 2020 JUDGMENT OF THE COURT 4th June & 14th November, 2024 LEVIRA, J.A.: In the High Court of Tanzania (the Corruption and Economic Crimes Division) at Dar es Salaam, (the trial court or the High Court), the appellants, who are husband and wife, were charged with two counts of trafficking in narcotic drugs contrary to section 15 (1) (a) and 2 (a) of the Drug Control Enforcement Act, No. 5 of 2015 (the DCEA), read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) both of the Economic and Organized Crime Control Act, Cap 200 R. E. 2002 (the EOCCA). It was alleged by the prosecution in the particulars of the first and second counts, respectively, that on 1st May, 2019 at Mbezi Beach area within Kinondoni District in Dar es Salaam Region, the appellants, jointly and together, trafficked in narcotic drugs namely, heroine hydrochloride. The weight of the said heroine hydrochloride in the two counts was 232.70 and 47.70 grams respectively, making a total of 280.4 grams. The appellants denied the charges laid against them. Nevertheless, upon a full trial they were convicted and each was sentenced to life imprisonment in each count; and the sentences were ordered to run concurrently. The record of appeal reveals that, on the material date, a search conducted at the appellants' house was led by Assistant Inspector Paschal Didas Daud (PW4) from the office of Drug Control and Enforcement Authority, (the DCEA). According to him, on 30th April, 2019 in the afternoon, he received an information from his officer in-charge SSP Salim Sherimo that there would be an assignment to carry out at night hours. After arriving at work at about 20:00 hours, he was informed that the assignment entailed conducting a search at a house of Abdul Issa Nsembo who was allegedly involved in the illicit business of narcotic drugs. On 1st May, 2019 at night around 01:00 hours, PW4 and other officers left the office for the scene of crime at Mbezi Beach 'B', Upendo Street, house No. 9, where they arrived before 02:00 hours. They surrounded the appellants' house for security purposes and PW4 directed A/Inspector Brown and DC Octatus to summon the ten-cell leader. Shortly, while they were still outside that house, A/ Inspector Brown and DC Octatus arrived with the ten-cell leader who was introduced as Jafari Adinan. Thereafter, they entered in the compound of the house and saw a watchman and a lady who introduced herself as Shamim Omary (the first appellant), the owner of the house and wife of Abdul Issa Nsembo (the second appellant). PW4 and other people who had accompanied him introduced themselves to the 1st appellant and asked her whether her husband was around. The response was in the negative. However, they informed her about their mission at that house and asked if she knew the ten-cell leader who had accompanied them; she responded affirmatively. PW4 informed the ten-cell leader that he was summoned to witness a search in that house. The first appellant had no qualms about the intended search, but she allowed them on condition that, she should search them first as an assurance that they had nothing in their possession connected with narcotic drugs. They agreed to the extent of showing that they had nothing in their clothes' pockets. After that, the first appellant led them to the house and they started to conduct the search. The following were the people who initially participated in search: The ten-cell leader, PW4, A/Insp. Msangi (PW8), A/Insp. Brown, A/Insp. Violet and DC Zuwena. The search commenced at the sitting room where they found nothing connected with narcotic drugs. They proceeded to the dining room and, while there, another person whom they did not know surfaced. He introduced himself as Nassoro Athuman (PW7), a local militia commander and that his presence there was a response to the ten-cell leader's call. The ten-cell leader confirmed that he called him to witness what was going on. Then, they continued with the search at the dining room and store but they found nothing in connection with narcotic drugs. According to PW4, they proceeded with the search at the first floor, verandas and rooms and in the course of doing so, they saw some dusty or floury material scattered on the floor. They became suspicious and after looking at the ceiling, they saw that a piece of gypsum board was broken. They asked the first appellant what was that and she told them that there was a technician who went there early in the morning to repair water tanks and left the suspicious marks. They were dissatisfied with the answer thus they asked her to show them where the technician passed when he went to repair the tanks. She showed them and A/Insp Brown climbed on the top of the roof to see if someone was hiding there but there was no body. He descended and they continued with search in children's and maid's bed rooms where they found nothing. TTiey proceeded to the appellants' bedroom where, on looking at the bed, they were convinced that there were two people who had been sleeping a while earlier so they became more suspicious. They again asked the first appellant to take them back to the room which had a broken ceiling and A/Insp. Brown climbed once again with the aid of a brighter torch light. He continued to search and suddenly he shouted having seen the second appellant hiding. He brought him down and took him straight to his bedroom and they proceeded with search therein. In the course, they found one weapon make pistol, four cans which had floury substances, a passport of the second appellant and other assorted documents. After completing the search in that room, they descended down stairs and proceeded to the carpark where they searched in the Land Rover Discovery with Registration No. T817 BQN, the property of the second appellant as per the testimony of Kelvin Walter Ndearinga, Tax Management Officer from the TRA (PW5), and a letter from the Commissioner General for Drugs Control and Combating Narcotic Drugs (Exhibit P6). At the rear seat behind the driver's seat in the seat cover pocket, they found a bag of cloth material, white in colour, which was inside a transparent nylon bag. PW8 removed it and handed it over to PW4 in the presence of both appellants and the independent witness, Jafari Adinan (the ten cell leader) and Nasoro Athuman (PW7). PW4 opened that bag and they saw floury substances inside it. He then returned it inside the bag. They, as well, searched other cars which were at the parking yard, but found nothing. After the search, PW4 recorded in the certificate of seizure all items which were seized, including the second appellant's iPhone and his CRDB Bank Tembo Card. Having recorded those items, he gave it to each of the appellants to read what was recorded, and both appellants were satisfied that the record contained authentic information and signed the certificate of seizure. Likewise, the ten-cell leader, Jafari Adinan satisfied himself with what was recorded and signed. Other people who signed the certificate of seizure were PW4 and PW7. All the seized items were kept under PW4's custody and taken together with the car (Land Rover, T817 BQN) to the office of DCEA for further investigation procedures. The whole exercise was completed at around 06:00 hours and they arrived at the office of DCEA just before 07:00 hours. PW4 locked the seized items in his office cupboard and retained the key. Later, at 08:00 hours on 1st May, 2019, PW4 handed those exhibits to the exhibit keeper, one A/Insp. Johari Issa Msirikale (PW2) who labelled them by case number DCEA/IT/6/2019 which was already created and marked them by alphabets, PW4 witnessed the labelling and recording of exhibits in the register. The transparent nylon which contained a white piece of cloth wrapped with a transparent nylon, which had flour-like substances inside suspected to be narcotic drugs, was labelled 'A'. Apart from that, the four cans which contained substances suspected to be narcotic drugs were also labelled as follows: The first can which had floury and yellowish substances was labelled 'B'; the other one containing dark khaki nearly yellow flour was labelled 'C'; the can which contained white flour was labelled 'D' and the other one which also contained white flour was labelled VE'. Having registered those exhibits, PW2 preserved them in a special room. Further, PW2 labelled the car by case No. DCEA/IR/61/2019. At the trial, the seizure certificate was admitted as exhibit P4 and the car (Land Rover) Registration No. T 817 BQN was also admitted as exhibit P5. In her testimony, PW2 confirmed that she received the seized items from PW4, labelled and kept them in a special exhibits room. On 2nd May, 2019, PW2 packed the exhibits which had flour in the envelopes and labelled them in the presence of both appellants and an independent witness, one Kelvin Charles Mtwanji (PW3), who also corroborated the evidence of PW2 and was able to recognize all exhibits at the trial. On the same day (2nd May, 2019), PW2 handed over those exhibits to the officer of the DCEA one S/Sgt Juma Suleman Ally (PW6) who witnessed the packaging and sent them to the Chief Government Chemist for expert analysis and chemical identification of the samples taken. According to Fidelis Segumba, a Chemist from Laboratory of the Chief Government Chemist (PW1) who conducted both, the preliminary and confirmatory tests, after analysis, tests showed that the white flour inside envelopes 'A' and 'D' had narcotic drugs called heroine hydrochloride. PW1 wrote a report (exhibit PI) and the exhibits were sealed, stamped, labelled with Lab. 1388/2019, signed and returned to PW2 by PW6. The exhibits were received by PW2 and registered in the register indicating that they were returned and then preserved in a special room till 25th May, 2020 when they were removed, sent and admitted to the court at the trial as intimated above. PW6 and PW8 were among the DCEA officers who went to the scene of crime on the material date. PW8 witnessed the search and seizure, while PW6 remained outside the compound of the searched house patrolling the area. Another prosecution witness who witnessed part of the search and seizure was PW7, whose evidence was almost the same as that of PW4, The defence side had three witnesses. Basically, the appellants denied the charges levelled against them. In her defence, the first appellant (DW3) testified on how the search was conducted starting from the cars which were parked in the car park. She partly participated in the search but did not witness when the alleged narcotic drugs were retrieved from the bath room. On his side, the second appellant (DW2) testified that he witnessed the whole exercise of search through CCTV camera where it started in the cars in the parking, but they found nothing, then proceeded to search inside the house. He continued watching the search inside the house except in the dining room and in the corridor where there were no cameras. When the search team approached his bedroom, the first person to enter was PW8 who found the second appellant holding a gun. He ordered him to surrender it, which he complied. The second appellant was kept under arrest and a police officer from the DCEA called Brown disconnected the CCTV camera and took two cables of it, charger and TTCL internet server. He testified further that, the search was conducted randomly in his bedroom which is huge while he was handcuffed and his wife was not around as she went to take care of their children. He denied to have been arrested while hiding. Upon weighing the evidence by both sides, the trial court was satisfied that the prosecution proved the case against the appellants beyond reasonable doubt. Accordingly, it convicted and sentenced them as indicated above, hence the present appeal. At the hearing of the appeal, the appellants were represented by Messrs. Jeremiah Mtobesya, Nehemiah Nkoko, Nassoro Dovutwa Juma, Ramadhani Chaurembo and Ms. Abbriaty Kivea, all learned advocates; whereas, the respondent Republic had the services of Ms. Veronica Matikila, learned Principal State Attorney assisted by Mses. Clara Charwe, Sabrina Joshi, Batilda Mushi and Amina Mawoko, learned Senior State Attorneys and State Attorney, respectively. As we intimated above, the appellants are husband and wife. They were charged jointly and together, prosecuted, convicted and sentenced to life imprisonment for the offences they were charged with. Both were aggrieved by the decision of the trial court but they appealed separately. Shamim Omary Mwasha (the first appellant) instituted Criminal Appeal No. 173 of 2022 and Abdul Issa Nsembo (the second appellant) instituted Criminal Appeal No. 182 of 2022. On 13th July, 2021, the first appellant filed in Court a Memorandum of Appeal comprised of five (5) grounds of appeal. On his part, the second appellant, on 12th July, 2021 filed a Memorandum of Appeal consisting of seventeen (17) grounds of appeal and on 15th March, 2023, a Supplementary Memorandum of Appeal containing one (1) ground of appeal. Therefore, at the hearing of the appeal, a total of twenty-three (23) grounds of appeal were placed before us for determination. However, for convenience purposes and taking into consideration that other grounds of appeal were repetitive and others overlapping, we consolidated the two appeals and required counsel for the parties to harmonize the grounds into one set, which they did. Eventually, the grounds were merged and condensed into the following seven (7) grounds: 1. That, the trial court erred in law and fact to rely on the evidence emanating from an illegal search to convict the appellants. 2. That, the trial court erred in law and fact to base its findings and conviction on exhibit PI which was insufficient to assist the court to make its findings. 3. That, the trial court erred in law and fact for failure to consider the appellants' defence. 4. That, the trial court erred in law and fact to convict the appellants based on envelopes admitted as evidence which did not comply with section 246 (2) o f the Criminal Procedure Act, Cap 20 and Rule 8 o f the Organized Crime Control (Corruption and Economic Crimes Provision) (Procedure) Rules o f 2016. 5. That, the trial court erred in iaw by hearing and deciding Economic Case No. 4 o f 2020 while committal proceedings which are the prerequisite to trial were procured illegally. 6. That, the trial court had no jurisdiction to try, convict and sentence the appellants. 7. That, the trial court erred in law and fact to convict and sentence the appellants while the case against them was not proved beyond reasonable doubt As the sixth ground is a complaint that the trial court had no jurisdiction to try the case, it was incumbent upon us to determine that ground first before we could deal with any other, and to do so, we invited counsel for the parties to address us on it, which they did. In support of that ground of appeal, Mr. Mtobesya submitted that the offence charged being economic, its trial was to be preceded by a consent issued by the Director of Public Prosecutions (the DPP), issuable in terms of section 26 (1) of the Economic and Organized Crime Control Act, Cap. 200 R.E. 2019 (the EOCCA). His point was that, although the consent document was on record and forms part of the record of this appeal, at page 5 of the record of appeal, such consent is, nonetheless, without an endorsement by the trial court and it is unclear as to how it found its way in the court record. He contended that tack of endorsement renders the said document inoperative. He cited the decision of this Court in Mohamed Mshamu Likulo v. Republic, Criminal Appeal No. 259 of 2022 [2024] TZCA 377 (20 May 2024, TANZLII), while insisting that endorsement of the consent of the DPP by the trial court was necessary and imperative procedure to be complied with. Thus, the learned counsel urged us to find that the proceedings and the subsequent judgement of the trial court were a nullity, in which case, he contended, this Court has to quash the appellants' convictions and set aside their respective sentences. Regarding the way forward, subsequent to quashing the conviction, Mr. Mtobesya submitted that, ordinarily the Court would have ordered a retrial but before doing so it has to ensure that such a retrial would not prejudice the appellants by providing an opportunity to the prosecution to call better and stronger evidence, citing to us the case of Fatehali Manji v. Republic (1966) EA 314. He implored us not to order any retrial in the present case because there is no sufficient evidence to sustain the appellants' convictions as it would be demonstrated in other grounds of appeal. In reply, Ms. Matikila, submitted that the trial court had jurisdiction to try the appellants' case because the High Court is the court vested with jurisdiction to try economic offences, in terms of sections 2 and 3 of the EOCCA. She supported her argument by the decision of the Court in Mohamed Mshamu Likulo (supra). Ms. Matikila conceded to the submission by the counsel for the appellants to the extent that, in terms of section 26 (1) of the EOCCA, no trial in respect of an economic offence may be commenced without the DPP's consent. Nonetheless, she argued that, the circumstances in case of Mohamed Mshamu Likulo (supra) are distinguishable from the present case. According to her, in that case, the issue regarding jurisdiction of the trial court was raised by the appellant but there was no response from the respondent due to non­ appearance on behalf of the respondent Republic. She argued that, had the respondent been present in that case, it would have shown that the case of Aloyce Joseph v. Republic, Criminal Appeal No. 35 of 2020 (2022) TZCA 771 (5th December 2022, TANZLII] relied upon by the Court in its decision originated from the subordinate court which has no jurisdiction to entertain economic offences, unless such jurisdiction is vested in such court by the DPP under section 12 (3) or (4) of the EOCCA. As such, she contended, subordinate courts have a different procedure in dealing with economic cases which requires presence of not only the consent but also a certificate of the DPP transferring the matter to such a court. When the matter is tried by the High Court (Economic Division), she submitted, the procedure is different because the High Court has jurisdiction and the consent of the DPP is normally attached with the information. It was her firm position that, the presence of consent of the DPP in the record of the High Court suggests that hearing could commence as section 26 (1) of the EOCCA does not provide for a procedure on how to present the consent. She went on to argue that, in the present case, the High Court had jurisdiction to try the appellants who were charged with an economic offence. Her point was fortified by the fact that, when the information was filed on 19th March, 2020 and endorsed by the trial court, attached with it was the DPP's consent. She insisted that, in the circumstances, it cannot be said that the trial court had no jurisdiction to try this case. She urged the Court to make a similar finding. Mr. Mtobesya made a brief rejoinder to the effect that section 26 (1) of the EOCCA provides for the jurisdiction of the trial court and that, the case of Mohamed Mshamu Likulo (supra) provides for the procedure of how a consent is supposed to be presented and received by the trial court. He submitted that it was immaterial that the case of Mohamed Mshamu Likulo (supra) was determined ex parte, even if the respondent would have been present at the hearing of the appeal, the position would not have changed. He implored us to hold that there was no consent of the DPP in the present case. We have carefully considered the submissions by counsel for the parties in respect of this ground of appeal, and have thoroughly studied the record of appeal, as appropriate. We wish to put on record a few points that we find useful before we dive deep into the submissions of parties. Such matters are these; first, both learned counsel were at one on the position of the law that, issuance of the DPP's consent is, by statute, a crucial prerequisite prior to commencement of trial of any economic offence. Second, it is not disputed that in the present case, the consent of the DPP was issued on 13th March, 2020 under the hand of Mr. Biswalo Eutropius Kachele Mganga, the DPP at the time. Third, there were no allegations before us, and there had been none before the trial court by the appellants that the consent in question is a forgery or that it was executed and issued by a person without legal mandate to do so. Fourth, there were no allegations before us, and there had been none before the trial court that, at the time of commencement of trial, the consent contained at page 5 of the record of appeal was not on record before the trial court, and; fifth, going through the record, there are no allegations by the DPP, expressly or by implication, that he did not execute or issue the said consent or that he did not consent to the prosecution of 16 the appellants. In fact, State Attorneys from the DPP's office dutifully prosecuted the appellants, which led to the appellants' contested convictions. In other words, in the context of the above understanding, the consent in question is a valid document, except that the same was not endorsed by the trial court upon its presentation to court. Mr. Mtobesya submitted to us that the omission made the High Court to lack jurisdiction to try the appellants. The issue for our determination in this ground of appeal is, whether the High Court's jurisdiction to try the economic offences was taken away by the court's own failure to endorse the consent. To do so, we will start with the law that provides for requirement of consent prior to commencement of trial of a criminal matter whose charge or information contains economic offences. We are of the considered view that the appropriate law in this case is section 26 (1) of the EOCCA which provides: "26. -(1) Subject to the provisions o f this section; no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions." At the outset, we wish to state firmly that jurisdiction of the High Court to try economic offences is never conferred by any of the parties to a criminal matter before it. Rather, the jurisdiction of the Hight Court in economic cases and indeed in any court matters, is vested into it generally by Article 108 of the Constitution of the United Republic of Tanzania, (the Constitution) and in economic cases specifically, by section 3 of the EOCCA. Article 108 of Constitution provides that: "108. -(1) There shall be a High Court o f the United Republic (to be referred to in short as "the High Court") the jurisdiction o f which shall be as specified in this Constitution or in any other law. (2) Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter o f such type. Similarlythe High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that: the provisions o f this sub article shall apply without prejudice to the jurisdiction o f the Court o f Appeal o f Tanzania as provided for in this Constitution or in any other law." What Article 108 (1) of the Constitution states is that, it is only the Constitution and the law that may vest jurisdiction in the High Court. It does not say that any institution, or any court process or any office or any party to a matter may vest jurisdiction in the High Court to try any matter. Jurisdiction of the High Court specific for trials of economic offences, is vested by section 3 (1) and (3) of the EOCCA which provides as follows: "3.- (1) There is established the Corruption and Economic Crimes Division o f the High Court with the Registry and sub-registries as may be determined by the Chief Justice, in which proceedings concerning corruption and economic cases under this Act may be instituted. (3) The Court shall have jurisdiction to hear and determine cases involving- (a) corruption and economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29 and 38 o f the First Schedule whose value is not less than one billion shillings, save for paragraph 14; (b) economic offences specified underparagraphs 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33,34, 35, 36, 37 and 39 o f the Schedule regardless o f their value; and (c) such other offences as may be referred to, or instituted in the Court in terms o f the provisions o f this Act." [Emphasis added] Under the EOCCA, economic offences are fisted under the First Schedule to it. Notable, as well, is the fact that the offence with which the appellants were charged relates to drug control, and such offence is specified under paragraph 23 of that schedule. That paragraph provides that: "23. A person is guilty o f an offence under this paragraph who commits any offence under section 15, 16 or 23 o f the Drug Control and Enforcement A c t" Thus, what brings the offences in this case under the economic offences category, is because in the first count of the information upon which the trial was predicated, the appellants were charged with trafficking in narcotic drugs contrary to section 15 (1) (a) and 2 (a) of the DCEA, read together with paragraph 23 of the First Schedule to the EOCCA quoted above. Thus, there is no doubt that the appellants were charged with economic offences, therefore the case at the trial, an economic case. With that brief explanation as to the nature of the offence charged, and the jurisdiction of the High Court that tried the appellants, we will now proceed to the record and the submissions of counsel for the parties in tackling the issue raised in ground six. In this case, the issue is not whether the DPP complied with section 26 (1) of the EOCCA by issuing the consent. It is as to whether the High Court had jurisdiction to try a case with a consent of the DPP which is not endorsed by the court upon receiving it. Mr. Mtobesya for the appellants urged us to hold that the omission by the court to endorse the consent took away the court's jurisdiction to try the case and referred us to the Court's decision in Mohamed Mshamu Likulo (supra). In the above case we restated the position of section 26 (1) of the EOCCA, as follows: "Moreover, it is noteworthy that in terms o f section 26 (1) o f the EOCCA, no prosecution o f a person charged with an economic offence shall commence unless there is a consent o f the DPP issued before the commencement o f the trial to prosecute such person. It follows therefore, if an accused person is charged with an economic offence before the High Court and there is no consent by the DPP to prosecute such a person, the said court would lack jurisdiction to try such an offence and the entire proceedings and the judgment thereof would be rendered a nullity." [Emphasis added] It is indeed true, that a trial of an economic offence without consent of the DPP or of a person authorized by him to issue it, is a nullity, precisely because the trial ought not to have commenced in the first place. So that is perfect, only that that holding is not in tandem with the issue before us. In the present case, the consent is there and was properly executed by the DPP himself and we have it on record. However, on top of the above quoted part of our decision, we added the following: "It is also noteworthy that in order for the trial court to be vested with such jurisdiction; the consent and a certificate conferring jurisdiction for a trial o f economic offence by a subordinate court, where applicable, such consent and certificate must be formally filed and endorsed by the respective court - See. Aloyce Joseph v. Republic'f Criminal Appeal No. 35 o f 2020 [2022] TZCA 771 (5th December, 2022)." With respect to Mr. Mtobesya, the above quoted text from the case of Mohamed Mshamu Likulo (supra), does not make any reference to a matter being tried in the High Court as a first instance court. We say so because jurisdiction of the High Court has nothing to do with the consent of the DPP or the certificate to vest jurisdiction, as elucidated eariier on. It is limited to the subordinate court, whose jurisdiction has to be derived from a certificate executed by the DPP under section 12 (3) or (4) of the EOCCA. We are supported in our reasoning by the fact that all the cases including the case of Aloyce Joseph (supra) from which the holding quoted above borrowed context, were tried at the Court of a Resident Magistrate. We further note that even the case of Maulid Ismail Ndonde v. Republic, Criminal Appeal No. 319 of 2019 (unreported), which had been referred to in Aloyce Joseph (supra), had been tried in the District Court of Namtumbo, a subordinate court. The same is the case in all other cases that were relied on in the case Mohamed Mshamu Likulo (supra). The point we are making is that, in Mohamed Mshamu Likulo (supra), when the Court was being called upon to rely upon the case of Salumu Andrew Kamande (supra), which was largely relied upon, the appellant did not address the Court that, that case had been tried in the subordinate court which did not have statutory powers to try economic offences. The Court too, did not have an advantage of hearing any counter-arguments from the side of the respondent Republic on account of the absence of any representative from the DPP at the hearing. It follows that, the first distinction between the cited case of Mohamed Mshamu Likulo (supra) and the present case, is the non consideration of the fact that the case of Salumu Andrew Kamande (supra) was tried in a court which could only have jurisdiction if only vested with it by the DPP, one of the parties to the very case. The other notable point is that in the above case, the appeal was heard and determined ex parte in absence of the respondent Republic, such that we did not have an advantage of considering pertinent issues that were raised in this appeal. One of such issues includes, whether there is in place a statutory procedure prescribing the manner in which the DPP should avail his consent in the High Court, in order to give way to commencement of trial. This issue was raised before us by Ms. Matikila and we are bound to investigate it. We will do so not losing sight of the Court's celebrated principle developed over the years from Paulo Osinya v. R [1959] EA 353, later applied in Shabir F. A. Jessa v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported) and also in Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527, all of which underscored the fact that a court record is deemed credible, such that what it contains represents what happened. In the latter case of Halfan Sudi (supra), the Court observed: "0J A court record is a serious document It should not be lightly impeached. (ii) There is always a presumption that a court record accurately represents what happened." The presumption that a court record is accurate, is rebuttable and the one to do so, is the person who alleges existence of the inaccuracy. In this case, the complaint was that, because the consent was not endorsed, then it is not known how it found its way on the court record. Our understanding of this complaint is that the appellants are concerned that the consent was illegally presented in the High Court. The point we wish to make is that, it was upon the appellants' counsel to show how and possibly when did the prosecution illegally sneak the consent in the court record, in order to rebut the presumption that the document was filed normally and its existence on record is proper. Other than flat lamentations, Mr. Mtobesya did not point out to us, any basis as to why the DPP would have to sneak the consent illegally in the court record and, what would be the likely motive of the DPP avoiding to present the consent lawfully. It is also profound to note that, giving or withholding a consent to prosecute an economic 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. In 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 25 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 of the appellants. In any event, we did not hear Mr. Mtobesya submitting at any point 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. Besides, unlike a charge sheet or an information or documentary evidence which are matters of substantive justice in a case, the need to give consent to the prosecution of a criminal matter is a matter of procedure / administrative as it is only required to trigger the hearing of an economic case, see the Court's decision in Nassib Abubakar Mwazyega @ Ras v. Republic, Criminal Appeal No. 146 of 2021 [2024] TZCA 576 (18 July 2024, TANZLII). We wish to observe, further more, 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. See the Court's decision in Flano Alphonce Masalu @ Singu and Four Others v. Republic, Criminal Appeal No. 366 of 2018 (unreported), in which, having considered an omission by the trial court to comply with section 210 (3) of the CPA, the Court stated: "The issue, then, is what is the effect o f this violation? Admittedly, in Mussa s/o Abdallah Mwiba (supra), cited by Mr. Mtobesya, the Court held such an irregularity as fatal. However, in our earlier decision in Jumanne Shabani Mrondo v. Republic, Criminal Appeal No. 282 o f 2010 (unreported) where we confronted an identical irregularity; we emphasized that in every procedural irregularity the crucial question is whether it has occasioned a miscarriage o fjustice." [Emphasis added] Notably, the Court in the case of Mussa Abdallah Mwiba and Two Others v. Republic, Criminal Appeal No. 200 of 2016 (unreported), had held that omission to comply with section 210 (3) of the CPA, was fatal, but in the subsequent case of Flano Alphonce Masalu @ Singu (supra), had to question itself whether it was right in its reasoning. In the end, the Court had to follow its former decision in Jumanne Shabani Mrondo v. Republic, Criminal Appeal No. 282 of 2010 (unreported), where it had taken the view that a procedural infraction is only material if, its effect is prejudicial to the interests of either party. It is settled position of the law in our jurisdiction that, where a procedural lapse is spotted and found not to result in any failure of justice to any party, such an error is rectifiable under section 388 of the CPA and, more recently, under sections 3A and 3B of the Appellate Jurisdiction Act, Cap 141 which introduced the principle of overriding objective to that Act. We observe that, in this case, Mr. Mtobesya did not highlight on how a valid consent on record although not endorsed, adversely affected or could affect the appellants, who were ably represented by counsel at the High Court. Thus, non-endorsement, being a procedural omission which was not demonstrated to have affected the appellants, is, in our fortified view, curable under sections 388 of the CPA. Next, we will consider the point raised by the learned State Attorney that there is no statutory procedure in place to file a consent to the High Court. In fact, Mr. Mtobesya did not refer us to any such procedure, except his submission that the procedure to file a consent is detailed in the case of Mohamed Mshamu Likulo (supra). Upon our thorough perusal of that authority, we did not trace any detailed procedure on how a consent may be availed to the High Court, save for an observation made that a certificate must be filed formally and endorsed by the respective court. In this case, on 13th March, 2020 the DPP attached the consent with the information and delivered them to the High Court and the court registry endorsed on the letter and the information but not the consent. We did not hear any submission from the appellants' counsel stating that anything unlawful was done by delivering a consent to the court in that way, and we find no issues with it either, because, there is no rule of procedure which was cited as having been breached. Luckily, it is not the first time, that we are holding that an omission by a trial court to endorse a consent does not diminish the substance of the DPP's consent to prosecute a suspect of an economic case. Having duly considered the provisions of section 94 (3) and (4) of the CPA relating to the consent for trial of foreigners for offences committed within this country's territorial waters, and having considered this Court's decision in Hsu Chin Tai and Another v. Republic, Criminal Appeal No. 250 of 2012 (unreported), the Court in the case of Nassib Abubakar Mwazyega @ Ras (supra), stated as follows: "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 o f the DPP\ what matters is that such consent must be available before the commencement o f the trial, and the DPP is considered to have fulfilled his obligation the moment he avails it... We are decidedly o f the view that, since consent is a requirement for arraignment, administrative processes on how the consent lands in court cannot supersede the necessity o f having the consent in place and in time." Consequently, on the basis of the foregoing, we find that the sixth ground of appeal is destitute of merit and we dismiss it. We now revert to consider the first and second grounds of appeal regarding legality of search and seizure. The appellants have expressed some concerns on a number of issues regarding search and seizure of what came to be identified later as Exhibit P3 (a & d). The contention is that the search and seizure did not conform to the requirements of the law. Key among the appellants' complaints were the absence of written authority (search warrant). On this, we were referred to the case of The DPP v. Doreen Mlemba, Criminal Appeal No. 359 of 2019 (unreported). It was contended that the manner in which the search was conducted was random. Learned counsel for the appellants placed their reliance on the case of Shabani Said Kindamba v. Republic, Criminal Appeal No. 390 of 2019 [2021] TZCA 221 (02 June 2021, TANZLII) in which an irregular search which did not conform to the law was adjudged illegal. In response Ms. Matikila firmly submitted that, the search which was conducted was an emergency search in respect of which no written authority was required and that the conduct of the search was well arranged. Ms. Matikila was of the contention that the circumstances in this case are distinguishable from the case of Shabani Said Kindamba (supra). She contended, in the alternative, we think, that in any case, section 48 of the Drugs Control Enforcement Act, Cap 95 (before the amendment) allowed officers of the DCEA to conduct search without any warrant. The question that follows is whether this was an emergency search. The powers of search and seizure by the police officers are governed by the provisions of the CPA and the general rule is that searches must be sanctioned through search warrants or orders. This is the import of section 38 of the CPA. Where the search is carried out on emergency basis, the guiding provision is section 42 of the CPA. It is significant to note that, where search is in relation to suspicion of drug trafficking and is carried out by officers of the DCEA, the regulating provision is section 48 of the DCEA. As was held in Islem Shebe Islem v. Republic (Criminal Appeal No. 187 of 2020) [2023] TZCA 17625 (18 September 2023), the import of section 48 is to provide for procedural safeguards or a checklist of what has to be done before an arrest of the suspect and seizure of the suspected object of the arrest is done. Our critical review of the testimony adduced by the prosecution witnesses, especially PW4, conveys the impression that details of information on what was to be done on the fateful night was conveyed to him at 20:00 hours but, for reasons which are not apparent, such information was shared to PW6 at 1:00 hours. PW8 has also testified that information to him was relayed in the early hours of 1st May, 2019, whilst PW4 and PW6 testified that the search began into the appellants' house at 2:00 hours. According to PW8, in the hours preceding the search and seizure, particulars were flowing from the informant (page 145 lines 6-9). What we gather from this testimony is that, unlike all other scheduled searches whose conduct is regulated by section 38 of the CPA, in this matter circumstances were exceptional, falling in the realm of circumstances listed under section 42 of the CPA. In our considered opinion, they, for all intents and purposes, convert the search to an emergency search for which no warrant or order is required. Such circumstances are similar to what obtained in the cases of Islem Shebe Islem (supra), Yanga Omari Yanga, Criminal Appeal No. 102 of 2021 [2021] TZCA 220 (01 June 2021, TANZLII) and Marceline Koivogui v. Republic, Criminal Appeal No. 469 of 2017 (unreported). We are in 32 agreement with the learned counsel for the respondent that the case of Shaban Said Kindamba (supra), is distinguishable from the present case as circumstances are plainly different. Significantly, in the latter decision, we adjudged the search illegal not solely on the absence of a search warrant. Other irregularities that marred the search and seizure contributed to this finding. The same can be said with regard to the case of The DPP v. Doreen John Mlemba (supra) in which a search was found to be discrepant on account of the absence of the accused person when the search was conducted. As we conclude this issue, we wish to reiterate our consistent position, held in our numerous decisions in the past. It is to the effect that unimpeached credible oral account cannot be faulted in the absence of documentation. TTiis position takes into account the fact that documentation is not the only requirement in dealing with exhibits and that such testimony will not fail the test merely because there was no documentation. Other factors have to be looked at, depending on the prevailing circumstances in every particular case as we held in Marceline Koivogui (supra). See also: Saganda Saganda Kasanzu v. Republic, Criminal Appeal No. 53 of 2019 [2020] TZCA 304 (18 June 2020, TANZLII). In our considered view, testimony of PW4, PW6 and PW8, whose credibility was filled the void of absence of the search warrant and 33 was enough to prove that the search was legitimate and compliant. Their testimony was not contradicted during trial. Besides, the appellants complained on the manner in which the search was conducted. The contention is that the search was randomly conducted. This contention was premised on the fact that the number of officers of DCEA who participated in the search was, in the eyes of the appellants, excessive. It is on record that the search was led by PW4 who was accompanied by four other officers, including, PW8, Optatus, Zuwena and Brown, and two independent witnesses; Jafari Adinan, the ten-cell leader, and PW7, together with the appellants. "This fact was acknowledged by the first appellant when she testified on page 186 of the record of appeal. PW4 testified on how the search was carried out, one room after another, a fact that the second appellant attested too when he said, he was watching the entire search through CCTV cameras. None of the witnesses testified that multiple searches were conducted at the same time. This factual account was confirmed by PW7 who stated that the search that started in the house ended in Exhibit P5 in which some substances were found. We are not convinced that the search was carried out randomly as suggested by the appellants and we find the contention lacking in merits. We reject it. Regarding a complaint on participation of PW7 in search, we wish to note that, it is not disputed that PW7 came to the scene of the crime without invitation of PW4. According to PW4's testimony, the said witness came at the instance of Jafari Adinan with whom they participated in the search and appended their signatures as independent witnesses. The appellants have denied that he was a militiaman as none of such people exists in their locality. Nonetheless, he participated in the entire process of witnessing the search, save for search in the dining room and, as it were, he testified as one of the prosecution witnesses. The question that we are called upon to resolve is whether the involvement of PW7 in the search and eventually testifying in court was proper. We are in agreement with the learned counsel for the appellants that the manner in which PW7 joined the team of investigators in the search is a step out of the ordinary and it raises a few eyebrows. He was not a welcomed guest so to speak, but he participated in the search. In our considered view, the fact that neither of the sides claimed to have known him before the incident serves to cement the fact that this was an independent witness whose credibility was not seriously challenged. He falls within the type of an independent witness described in Shaban Said Kindamba (supra) wherein we held: "...We are inclined to take it as logical that an independent witness to a search must be credible, or the whole exercise would be rendered suspect..." None of the defence witnesses or counsel for the appellants brought any semblance of factual account to the effect that PW7's participation in the search exercise planted what was recovered and later confirmed as narcotic drugs. In other words, his presence and participation as a witness in the search was not, by any stretch of imagination, harmful to the appellants at all. It follows that, as an independent witness who appended his signature on the certificate of seizure, he offered himself for testimony and when he testified nothing irregular was committed. In our view, he did so as a competent and compellable witness who was conversant with the issues in question. Since the presence of PW7 during search did not prejudice the appellants, we are constrained to hold that their claim is unmerited and dismiss it. The appellants' complaint in the third ground of appeal is that their defence was not considered by the trial court in its decision. However, we observe from the appellants' arguments that their contention is that their defence was accorded less weight. The contentious issues raised by the appellants were that, during search the CCTV cameras were still working as per the testimonies of DW2, DW3, PW4 and PW7, but the footage was not used to clear doubts as to where exactly the search began. While the prosecution stated that it started in the house, the appellants maintained that it began in the cars but nothing was found therein. This is found at pages 157 and 183 of the record of appeal, respectively. The appellants' further argument was that, since the gadgets were not tendered as exhibits by the prosecution, the court ought to have raised doubts on why those items were not brought. According to the appellants, a different conclusion would be arrived at had the trial Judge been considerate enough. In reply, Ms. Joshi argued that it is not true that defence evidence was not considered. She referred us to page 400 of the record of appeal where the learned Judge deliberated on the contention that the drugs were planted. As such, she said, the defence failed to raise doubt on prosecution case. As regards the claim that CCTV server was not tendered, Ms. Joshi opposed the claim and referred us to page 405 of the record of appeal where the said issue was discussed. She argued that, the appellants too were unaware of the reason for malfunctioning of the server despite tendering it as exhibit Dl. Ms. Joshi submitted firmly that the prosecution witnesses were eye witnesses and their credibility was not challenged, citing the case of Abas Kondo Gede v Republic (Criminal Appeal No. 472 of 2017) [2020] T7CA 391 (12 August 2020, TANZLII). According to her, the duty of the defence was to raise doubts but, in the instant matter, they failed to cross examine prosecution witnesses on tempering and failure to produce CCTV server. Thus, to raise it during defence was an afterthought and failure to produce CCTV server did not affect witnesses on what happened. As such, she said, the defence failed to raise any doubt against prosecution case. The pertinent issue for our determination is whether the defence case raised doubts that weakened the prosecution case. The appellants agree that their defence was considered but was accorded less weight as they insisted that the CCTV camera could help to reveal whether search began outside or inside the house. With respect, we do not find the claim valid in the sense that, the allegation was trafficking in narcotic drugs. At any rate, whether it began outside or inside the premises does not challenge the allegation that they were found in possession of narcotic drugs, for possession amounts to trafficking. After all, it is on record that in the bedroom where the cans containing narcotic drugs were found, there were no cameras, so the CCTV server could not show anything in relation to the said drugs. Apart from that, DW3 did not dispute the fact that she had cans resembling the ones seized and tendered at the trial. 38 The second appellant's defence was that the car used by the driver could as well raise a reasonable doubt against prosecution's case because there was a contradiction between the appellants. While the second appellant said that the car was used to take children to school, the first appellant gave a different account saying that they used another car, make 1ST. We agree with Ms. Joshi and it is our finding that, the defence case did not raise reasonable doubt against credible prosecution evidence as generally, it failed to punch holes in the evidence pertaining the allegations levelled against them. In any case, what is alleged to be the variance in the factual account were the narration by the appellants and the defence case generally. We are inclined to take the first appellant's version as credible and one which was not seriously contradicted. We, in consequence, find that this ground of appeal is unmerited and dismiss it. The appellants' complaint in the fourth ground of appeal is that, the trial court erred in law and fact to convict them based on envelopes admitted as exhibits which did not comply with section 246 (2) of the Criminal Procedure Act, Cap. 20 and Rule 8 of the Organized Crime Control (Corruption and Economic Crimes Provision) (Procedure) Rules of 2016. Mr. Nkoko, who addressed us on this ground, referred us to page 35 of the record of appeal, arguing that the trial court was urged to receive five envelopes which were objected by the counsel for the appellant but, the 39 objection was overruled despite the fact that the envelopes did not feature in the committal proceedings as the law demands. He argued further that the trial court convicted the appellants based on the substance which was not stated during committal proceedings. His take is that, in terms of section 3 of the Evidence Act Cap 6, writings on the envelope are contents that make the envelope a document which should be read. He went on stating that the drugs in the envelope were not described and the appellants could not know the type of narcotics. He cited the case of Grace Teta Gbatu v. Republic (Criminal Appeal No.84 of 2019) [2023] TZCA 17516 (23 August 2023, TANZLII) in which the envelopes were received, but were not opened, arguing that the opening would have cured the anomaly. He, as well, cited the following cases: Said Shabani Malikita v. Republic (Criminal Appeal No.523 of 2020) [2023] TZCA 17302 (5 June 2023, TANZLII), Edwin Cheleh Swen v. Republic (Criminal Appeal No. 649 of 2021) [2024] TZCA 272 (17 April 2024, TANZLII) and Ibrahim s/o Juma Mbwambo v. Republic (Criminal Appeal No. 455 of 2020) [2024] TZCA 296 (2 May 2024,TANZLII), wherein the Court held that section 246 (2) of the CPA must be complied with. Finally, he urged us to expunge those exhibits from the record. In response, Ms. Matikila submitted that this ground is devoid of any merit. She argued that at pages 2 and 9 of the record of appeal all physical 40 exhibits including the envelopes containing narcotic drugs were mentioned. According to her, narcotic drugs were mentioned many other times in the record of appeal including in the statement tendered in court as it can be seen at page 320 of the record of appeal which was read during committal proceedings. It was her firm position that, since narcotic drugs were mentioned and described, it means the appellants knew what was going to be tendered at the trial and thus there was no contravention of the law. She supported her position with the decision of the Court in Edwin Swen (supra). Ms. Matikila insisted that the contention by the counsel for the appellants that the markings on the envelope turn the physical exhibits into documentary exhibit, is misconceived. She went on stating that at page 34 of the record of appeal, the envelope and containers were opened ahead of tendering and the appellants did not object. They only posed questions after admission of those exhibits. According to her, the circumstances in Ibrahim Mbwambo's case (supra) are different and distinguishable. Therefore, she urged us to dismiss this ground as well. In rejoinder Mr. Nkoko challenged Ms. Matikila for not distinguishing the case of Shabani Malikita (supra) which was to the effect that failure to meet the requirement under the law renders the exhibit irregularly received and that it must be expunged. He also submitted that the case of Edwin Swen referred to by Ms. Matikila is distinguishable from the circumstances of the present case. Having heard the rival arguments between the parties in this ground, the issue for our determination is whether the envelopes containing narcotic drugs were admitted in contravention of section 246 (2) of the CPA. The main argument by the appellants was that they were not made aware of the contents contained in the envelopes during committal, which argument was highly opposed by the counsel for the respondent. The above section provides: "246 - (2) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial." The issue we have raised above need not detain us much. It is clear, on the record of appeal, that the envelopes containing narcotic drugs were among the physical exhibits listed and explained to the appellants in compliance with Rule 8 (2) of the Economic and Organized Crimes Control (The Corruption and Economic Crimes Division) (Procedure) Rules, 2016, which is the same as section 246 (2) of the CPA. Apart from physical exhibits, the documentary exhibits were read and explained to the appellants during committal, including the Government Chemist Report which explained clearly the contents and type of the narcotic drugs which the appellants were found in possession to be Heroin Hydrochloride. The said drugs were kept in the envelopes, listed as physical exhibit and eventually tendered during trial. In the circumstances, we do not agree with the appellants' contention that they were not made aware of the contents and type of exhibit prior its tendering. We are equally unconvinced that the envelopes containing narcotic drugs were the documentary evidence in terms of section 3 of the Evidence Act, as argued by the counsel for the appellants. In terms of the said section, a document means: "document" means any writing, handwriting, typewriting, printing, Photostat, photography, computer data and every recording upon any tangible thing, any form o f communication or representation including in electronic form, by letters, figures, marks or symbols or more than one o f these means, which may be used for the purpose o f recording any matter provided that recording is reasonably permanent and readable; "documentary evidence" means all documents produced as evidence before the court." In the circumstance of the present case, what was being presented as exhibit to be tendered at the trial was not the envelopes but what they contained which was clearly explained to the appellants. We agree with the counsel for the respondent that the writings on the envelopes could not turn the physical exhibit into documentary exhibit. We find the claim on failure to read the contents of the envelopes invalid. This ground of appeal is unfounded and we dismiss it. The gist of appellants' complaint in the fifth ground of appeal is on the propriety of the committal proceedings. The counsel for the appellants argued that committal proceedings were conducted out of time contrary to Rule 8 (1) of the EOCCA Rules and section 30 of the EOCCA. Tine provisions require the committing court to cause the accused to appear before it within 14 days upon receipt of the copy of the information for the purposes of conducting committal proceedings. He contended that Rule 7 of the EOCCA Rules provides that the transfer has to be done within 7 days which expired on 26th March, 2020 counting from 19th March, 2020 when the information was filed. However, committal of the appellants was done on 29th April, 2020 which is 20 days after the expiry of 14 days. The counsel added that the record is silent as to whether the extension of time was sought and granted. According to him, since committal proceedings are a prerequisite requirement for trial then, non-compliance with Rule 8 44 (1) of the EOCCA Rules rendered the trial a nullity for being based on defective committal proceedings. In view of that, it was his proposition that the jurisdiction of the court was ousted, hence the committal proceedings as well as the decision of the trial court should be nullified. Hie learned counsel found support in the case of Mohamed Mshamu Likulo (supra). Opposing the appellants' complaint, Ms. Matikila submitted that the case was filed on 13th March, 2020 and committal proceedings were conducted on 29th April, 2020. However, she said, there is no indication on record to show when the information along with supporting documents were dispatched from the High Court to Kisutu Resident Magistrate's Court and when the court received the record. She submitted further that movement of those documents is an administrative action which is not part of the record. Therefore, absence of that fact has the effect of not knowing when exactly 14 days would run and it is improper to contend that the proceedings were time barred. Ms Matikila submitted, which we think was in the alternative, that there is no indication from the appellants' account that they were prejudiced by the delay to appear before the court for the purposes of committal proceedings. She thus implored us to dismiss this ground of appeal. Conduct of committal proceedings in economic cases is governed by Part III of the EOCCA Rules. Rule 7 imposes a mandatory obligation to the Registrar of the High Court to transmit a copy of information together with all documents attached to it to the committing court within 7 days from the date the information was filed in court. Rule 8 (1) provides further conditions to the committing court, upon receipt of the copy of the information, to cause the accused to appear before it for the purposes of conducting committal proceedings. For better appreciation of the legal requirements, it is not insignificant to quote the relevant provisions. "Rule 7. The Registrar shall, within seven days from the date the information was filed in court, endorse it and transmit a copy thereof together with all documents attached to it to the district or a resident magistrates' court. 8.-(l) Upon receipt o f the copy o f the Information, the district or a resident magistrates' court shall, within fourteen days, cause the accused to appear before it for the purposes o f conducting committal proceedings." We have examined the proceedings in the light of the parties' arguments. The proceedings do not reflect that the provisions were complied with. There is no dispute that the information was transmitted to the committing court after lapse of seven days of its filling. Similarly, it is beyond doubt that the appellants were caused to appear before the court for the purposes of committal proceedings beyond 14 days prescribed by the law. Those facts led the appellants' counsel to implore us to find that the trial of the appellants was a nullity for, it was based on invalid committal proceedings. We agree that it was important for the Registrar and the committing court to comply with the mandatory legal requirements different from Ms. Matikila's argument that movement of documents was a mere administrative procedure which could not be raised as a legal ground. However, we are aware of the settled position that not every omission to comply with procedural requirement in the trial, leads to the annulment of the proceedings except where it is established that the omission led to a miscarriage of justice on the party complaining. In Stanley Murithi Mwaura v. Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 (22 November 2021), it was held: "... where there is failure or omission to comply with a procedural requirement in the course o f trial, the question the appellate court should ask itself, before it can nullify or impeach the proceedings, is whether such failure or omission occasioned a miscarriage o f justice on the part o f the party complaining - see Richard Mebolokini v. R [2000] T.L.R 90. Other decisions in which the principle was considered include Jumanne Shabani Mrondo v, R, Criminal Appeal No. 282 o f 2010 and F/ano Afphonce Masaiu @ Singu And 4 Others Versus R, Criminal Appeal No 366 o f 2018." In our view, the appellants were not prejudiced by the omission because, the purpose of committal proceedings which is to commit an accused person for trial by the High Court was properly met. Likewise, the appellants' counsel did not express in any way how non-compliance with rules 7 and 8 (1) of the EOCCA Rules had adverse effect to the appellants prior and during trial. In the circumstances, we find that non-compliance with the above rules did not prejudice the appellants and thus, curable under section 388 of the CPA. As a result, we dismiss this ground of appeal. The seventh and last ground of appeal is consequential after determining other grounds of appeal. The appellants' claim is that the case was not proved beyond reasonable doubt against them. Mr. Mtobesya faulted the trial Judge for making reference to the first appellant's conducts on page 408 of the record of appeal to conclude that it was not consistent with an innocent person. According to him, what is in the proceedings is contrary to the findings of the learned trial Judge. He referred to the evidence of PW4 who testified that the first appellant allowed them to enter the premises and carry out the search, she was cooperative and had nothing to conceal. He cited the case of Shabani Said Kindamba (supra) and argued that, since there was no resistance, it shows that she was innocent, a fact which the trial Judge ought to have considered for the benefit of the appellants. He insisted that the findings of the trial Judge were inappropriate because the evidence on record does not prove the charge against the appellants beyond reasonable doubt. Ms. Joshi replied in respect of this ground to the effect that, the prosecution proved its case beyond reasonable doubt. She pointed out that, the appellants were charged with two counts of trafficking in narcotic drugs and the prosecution was required to prove whether they trafficked and what they trafficked were narcotic drugs. The term trafficking is defined under section 2 of the DCEA and it includes possession. According to her, PW4, PW7 and PW8 who participated in the search were able to prove that the appellants were found in possession of narcotic drugs. Besides, she said, the appellants witnessed when four cans were retrieved from their bathroom; among them, two contained narcotic drugs, according to the evidence as it can be seen at pages 69, 82, 124 and 135 of the record of appeal. Other drugs were retrieved from the appellants' car in presence of both appellants and they signed the certificate of seizure. The appellants did not deny their signatures, and that, any subsequent challenge is an afterthought, she added. As regards the first appellant's conduct, Ms. Joshi said that it must be adversely construed because in the first place she said her husband (the second appellant) was not at home while he was hiding in the house. Not only that, but also upon being asked about the dust found on the floor, she said the same was left by a technician who went there to fix tanks while it was an escape route used by the second appellant to the roof where he was hiding. From the testimony adduced by the prosecution, it comes out clearly that the case against both appellants was proved at the standard set out for proof in criminal cases. Through the totality of the said testimony, we have gathered, without any flicker of doubt, that a search conducted on 1st May, 2019 in the appellants' house, led by PW4 seized some powdery substance which was suspected to be narcotic drugs. The substance, which was subsequently subjected to test by PW1 brought a result which was recorded in exhibit PI, and that the said exhibit confirmed that what was seized from the appellants' house and vehicle were narcotic drugs known as heroine hydrochloride. Possession of these drugs constituted the appellants' charged offence giving rise to the instant appeal. This factual account which constituted the prosecution testimony and was not seriously challenged by the defence evidence sufficiently discharged the prosecution's burden of proof and the conviction was properly grounded against both appellants. Following what we have endeavoured to discuss above, we are satisfied that the charge against the appellants was proved beyond reasonable doubt, for the prosecution proved that the appellants trafficked in narcotic drugs. Consequently, we dismiss the appeal. DATED at DAR ES SALAAM this 14th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 14th day of November, 2024 in the presence of the both appellants via virtual link from Ukonga and Segerea Prisons respectively and Mr. Ramadhani Chaurembo holding brief for Mr. Juma Nassoro, learned counsel for the 1st Appellant, Mr. Nehemia Nkoko, learned counsel for the 2nd appellant and Ms. Marieta Maguta, State Attorney for the Respondent/Republic, is hereby certified as a true copy