Adam Abubakari Dudu vs Republic (Criminal Appeal No. 791 of 2024) [2026] TZCA 377 (30 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCQRAM: GALEBA. 3.A.. MASOUD. J.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 791 OF 2024 ADAM ABUBAKARI DUDU ...... .............................................APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) ( Lonoopa, 3.) dated the 8th day of May, 2024 in DC. Criminal Appeal No. 134 of 2023 lMDGEMENT OF THE COURT 12th February & 30th March, 2026 GALEBA, J.A.: Adam Abubakari Dudu, the appellant in this appeal, was arraigned before the District Court of Kondoa at Kondoa (the trial court), where he was charged with three wildlife offences, namely; unlawful possession of Government trophy, to wit, four legs and a head of an eland, contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act, (the WCA) read together with paragraph 14 (d) of the 1st schedule to and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act, (the EOCCA), on the first count. On the second count, he was charged with unlawful entry in Mkungunero i game reserve, contrary to section 15 (1) (2) of the WCA, and; as for the third count, the appellant was charged with unlawful possession of weapons in a game reserve, to wit, one knife and a machete, contrary to sections 20 (1) (b) and (4) and section 111 (1) (b) both of the WCA. After a full trial, the trial court found that the prosecution had proved its case beyond reasonable doubt, and the appellant was convicted on all three counts as charged. He was therefore sentenced to twenty (20) years imprisonment on the first count; one (1) year imprisonment or a fine of T7S. 100,000.00 on the second count, and; six (6) months imprisonment or a fine of TZS. 200,000.00, for the third count. As per the normal procedure, the three sentences were ordered to run concurrently. The appellant was aggrieved and filed an appeal to the High Court (the first appellate court). He was unsuccessful; his appeal was dismissed for want of merit. Aggrieved further, he is now before us challenging the decision of the first appellate court on 12 grounds of appeal, which grounds, except for the substance of the fourth, we will not reproduce or discuss them in this judgement, for reasons to become obvious in due course. At the hearing of this appeal, the appellant appeared in person unrepresented, while Ms. Winifrida Mpiwa Ernest, assisted by Mr. Gothard Mwingira, both learned State Attorneys, appeared for the respondent Republic. When called upon to argue his appeal, the appellant adopted his grounds of appeal and opted to rejoin after the learned State Attorneys had made their reply. On her part, Ms. Ernest supported the appeal, relying on the fourth ground complaining that the trial court did not have jurisdiction to try Economic Case No. 7 of 2022, in which the appellant was tried and convicted. Elaborating her reasons for supporting the appeal, the learned State Attorney submitted; firstly, that the District Court sat as an Economic Crimes Court without a proper certificate of transfer by the Director of Public Prosecutions (the DPP) under section 12 (4) of the EOCCA. She argued that, the certificate of transfer was partial, for it covered only the economic offence under section 86 (1) and (2) (b) of the WCA, but omitted to confer jurisdiction for trial of the appellant in respect of the second and third counts. On this point, the learned State Attorney relied on this Court's decision in the case of Chacha Chiwa Marungu v. R, [2023] TZCA 17311. Her contention was that the certificate was invalid and could not vest any jurisdiction to the subordinate court to try the offences charged. Secondly, Ms. Ernest contended that the certificate made reference to the charged economic offence to be under section 86 (1) and (2) (b) of the WCA, whereas the particulars in the charge referred to the Government trophy to be four eland legs and one eland head. She argued that, an offence of being found in possession of Government trophies from the animal eland, cannot be charged under section 86 (1) and (2) (b) of the WCA, as that section covers trophies from animals covered under Part I of the first schedule to the WCA, while eland is covered under Part II of that schedule. Thirdly, Ms. Ernest complained also that, exhibit PI (the seizure certificate) was improperly admitted, because it was not read out in court, following its admission. This defect, she contended, rendered it evidentially valueless and the exhibit was liable to be expunged. She further stated that, the remaining evidence cannot by any stretch, establish the second and the third counts in the absence of the actual location of where the appellant was found during his arrest. In the circumstances, Ms. Ernest moved us to allow the appeal, nullify the appellant's conviction on all counts, and set aside the sentences, with a cumulative effect of ordering his unconditional release from prison. The learned State Attorney hinted that the Republic would not pray for a trial de novo because, for the charge sheet did not cite any section necessary for trying the appellant for being found in unlawful possession of the trophies from the animal eland, as indicated above. The appellant on his part, embraced the submissions by the learned State Attorney, and had nothing useful to add. 4 In this case, although the charge sheet had three offences as stated earlier on, the certificate purporting to vest jurisdiction in the said court, and even the consent referred only to one offence, that is unlawful possession of the Government trophy. We will let the certificate at page 6 of the record of appeal speak for itself; it says: "CERTIFICA TB O F THE REG IO N AL PRO SECU TIO N S O FFICER I, Catherine Goma Gwaltu, Regional Prosecutions Officer, Dodoma Region , do hereby, in term s o f section 12 (4) o f the Organized Crime Control Act, [CAP 200 R.E. 2022] read together with GN. No. 496H o f 2021, ORDER that ADAM S/O ABUBAKARI DUDU for contravening the provisions o f section 86 (1) and (2) (b) o f the W ildlife Conservation Act, [CAP 283 R.E. 2022] read together with paragraph 14 (d) o f the 1st schedule and sections 57 (1) and 60 (2) o f the Econom ic and Organized Crime Control Act, [ CAP 200 R.E. 2022], be tried in the D istrict Court o f Kondoa a t Kondoa. Dated a t Dodoma this 1st day o f March, 2023 Sgd. CATHERINE GOMA GWALTU REGIONAL PROSECUTIONS OFFICER" 5 Plainly therefore, the trial court was vested with jurisdiction to try the appellant on only one offence, although section 12 (4) of the EOCCA states that the certificate in such circumstances ought to be in relation to a combination of both economic and non-economic offences. That section provides thus: "(4) The D irector o f Public Prosecutions or any State Attorney duly authorized by him, may) in each case in which he deems it necessary or appropriate in the public interest, b y c e rtific a te u n d er h is h an d o rd e r th a t a n y case instituted or to be instituted before a court subordinate to the High Court and w hich in v o lv e s a non -econ om ic o ffe n ce o r b o th an econ om ic o ffen ce a n d a n o n econ om ic o ffen ce, be instituted in the Court . " [Emphasis added] That is to say, the charge in the instant case contained offences in respect of which there was no certificate vesting jurisdiction to try them. See this Court's decision in Chacha Chiwa Marungu (supra), in which case the offences in the charge sheet were different from those in the certificate to transfer jurisdiction. Thus, we agree with the learned State Attorney that, the appellant was tried by the trial court without that court being clothed with requisite jurisdiction to do so. In appropriate circumstances, the proper course of action would have been to permit a retrial because, the error was technical. However, in 6 this case, Ms. Ernest argued that, if we were to make such order, it would be prejudicial to the appellant because the seizure certificate was invalid and the charge sheet was irrelevant and inapplicable to the trophies in question. In supporting her very last point in respect of the irrelevance and inapplicability of the charge, the learned State Attorney's point was that the offence of unlawful possession of the trophies from the animal eland cannot be charged under section 86 (1) and (2) (b) of the WCA, because that section deals with animals listed in Part I of the second schedule to the WCA which list does not include the animal eland. To determine this point, we will consider both section 86 (1) and (2) (b) of the WCA, on one hand, and Part II of the first schedule to the WCA, on the other. And we will start with the former section which provides that: "86 - (1) Subject to the provisions o f this Act, a person shaii not be in possession of, or buy, se li or otherwise deal in any Government trophy. (2) (a) N/A (b) where the trophy which is the subject m atter o f the charge or any part o f such tro p h y is p a rt o f an a n im a l sp e c ifie d in P a rt I o f th e F irs t S ch e d u le to th is A ct, and the value o f the trophy exceeds one hundred thousand shillings, to a fine o f a sum not less than ten tim es the value o f the trophy 7 or im prisonm ent for a term o f not less than twenty years but not exceeding thirty years or to both." [Emphasis added] It is obvious that, the above section relates to animals listed in Part I of the first schedule to the WCA. Our careful study of the list of 31 animals, reptiles, amphibians and National Games in Part I of that schedule to the WCA, did not reveal that eland was one of such animals. So, we decided to go to Part II of the schedule, which lists the following 12 animals: "PA R T I I K is w a h ili Nam e E n g lish Nam e S c ie n tific Nam e F isi M aji African Clawless Otter Aonyx capensis F isi M aji Spotted necked Otter Lutra m aculicollis Kiboko Hippopotamus Hippopotamus am phibious (Linnaeus) Korongo Roan Antelope Hippotragus aequinus (Desmarest) Kuro-ndogoro Waterbuck Common Kobus ellipsiprym nus (Ogilby) Kuro singisi Waterbuck Defassa Kobus defasa (Reppell) Mamba N ile Crocodile Crocodylus niloticus Mbuni Ostrich Struthio camelus (Linnaeus) Nyemeia Topi Dam aiiscus korrigum (Ogilby) Paiahaia (Mbarapi) Sable Antelope Hippotragus niger (Harris) P o fu ( M bunju ) E la n d T au rotragu s o ry x (P a lla s) Tandaia Kubwa Greater Kudu Strepsiceros strepsiceros (Pallas) [Emphasis added] 8 Notable from above is that, the animal eland is found in Part II of the first schedule to the WCA. It was Ms. Ernest's submission that, section 86 (1) and (2) (b) of the WCA has nothing to do with any trophies from the animal eland because that animal is not listed in Part I of the first schedule, for which the section applies. We agree with her on that point, that the appellant was tried based on a charge which did not relate to the trophies he was alleged to have been found in possession of. Thus, an order for the appellant's trial de novo would be prejudicial to him. According to the celebrated case of Fatehali Manji v. R, (1966) E.A. 343, a retrial should not be permitted if the appellant would be prejudiced by carrying out the order or if the order will facilitate the prosecution to fill in the gaps in the evidence and be able to come up with a better version of the case. In view of that, without going into any discussions involving other illegalities that were highlighted by Ms. Ernest, we hold that the prosecution case suffered two worse infractions of law highlighted above namely; one, the trial court had no jurisdiction to try the case; and two, the charge sheet that initiated the case, cited the provision of law which had nothing to do with the trophies mentioned in the particulars of offence. Thus, we find merit in the fourth ground of 9 appeal. As the above findings and conclusions are sufficient to dispose of the whole appeal, we find no need to discuss any other grounds. In the final analysis we allow the appeal. We quash all proceedings and judgments of both lower courts, the appellant's conviction, and set aside the sentences that were imposed upon the appellant. We consequently order his immediate release from prison unless he is held there for some other lawful cause. DATED at DODOMA this 26th day of March 2026. Judgment delivered virtually, this 30th day of March, 2026, in the presence of the Appellant in person, Ms. Rose Ishebakaki, learned State Attorney for the Respondent/Republic and Ms. Harida Hamis, Court Clerk, is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 10