Abson Samwel Chaula & Another vs Republic (Criminal Appeal No. 546 of 2024) [2026] TZCA 278 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A. 3.A.. KENTE, J.A. And MURUKE, 3.A.) CRIMINAL APPEAL NO. 546 OF 2024 ABSON SAMWEL CHAULA.......................................................1 st APPELLANT SAID YASSIN CHEKELO ...... . ............................ . ..................... 2 nd APPELLANT VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (Mkwizu, J.1 Dated the 16th day of June, 2023 in Criminal Appeal No. 186 of 2022 JUDGMENT OF THE COURT 16th February & 10th March, 2026 MWARIJA. 3.A.: In the Resident Magistrates's Court of Dar es Salaam at Kisutu, the appellants, Abson Samwel Chaula, Said Yassin Cheketo (the 1st and 2n d appellants respectively) and another person, Leonard Twikilo Nannie were charged with two counts under the Wildlife Conservation Act, No. 5 of 2009 (the WCA) read together with Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws (the EOCCA). In the first count, the appellant were charged with the offence of being found in unlawful possession of Government trophies contrary to section 86 (1) and (2) of the WCA read together with paragraph 14 (d) of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA. It was alleged that on 30/9/2016 at Jangwani area in Ilala District within the Dar es Salaam Region, they were found in possession of five elephant tusks valued at USD 75,000, equivalent to TZS 163,000,000.00, the property of the Government of the United Republic of Tanzania without permit from the Director of Wildlife. In the second count, the appellants and the said Leonard Twikilo Manie were jointly charged with the same offence of unlawful possession of Government trophies contrary to section 86 (1) (2) (c) (iii) of the WCA read together with paragraph 14 (d) of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA. It was the prosecution's allegation that, on 3/10/2016, the trio were found in possession of two buffalo horns valued at USD 1900, equivalent to TZS 4,145,800.00, the property of the Government of the United Republic of Tanzania without permit from the Director of Wildlife. When they were arraigned, the appellant and their co-accused person denied their respective counts. As a result, the case proceeded to a full trial at which, while the prosecution relied on the evidence of seven witnesses, the appellants and their co-accused relied on their own evidence in defence. At the conclusion of the trial, the learned trial Senior Resident Magistrate found that, the case against Leonard Twikilo Namie was not proved and therefore, the said person was acquitted. On their part, the trial court was satisfied that, the prosecution had proved the case and thus convicted and sentenced them to twenty years imprisonment. Aggrieved by the decision of the trial court, the appellants unsuccessfully appealed to the High Court hence this second appeal. The background facts giving rise to this appeal many be briefly stated as follows: On 30/9/2016, the police received information that some persons were intending to conduct illegal business of selling elephant tusks. According to the information, which was received by a police officer, Inspector Victor Francis Kashai, the transaction was to be conducted at Jangwani, Mafuso area within the Dar es Salaam City. The said police officer who testified as PW1, formed a team which included the officer from the Wildlife Conservation Authority, one Kiza Yusuph Baraga and another police officer, Detective Corporal Emmanuel Nahande. They went to the scene in the company of the informer who pointed out to them two persons, who had in their possession, a sulphate bag. The suspects were arrested. According to the evidence of PW1, Kiza Yusuph Baraga and Detective Corporal Emmanuel Nahande who testified as PW3 and PW4 respectively, upon being searched in the 3 presence of one Mohamed Said Ngeropera, who testified as PW2, five pieces of elephant tusks were found in the sulphate bag. Consequently, the appellants were taken to Msimbazi Police Station and later charged in court. They were convicted and sentenced as stated above. In this appeal, the appellants have raised six grounds of appeal in their joint memorandum filed on 22/7/2024 and one ground in their supplementary memorandum filed on 19/5/2025. For reasons which will be apparent herein, we do not intend to delve in all the grounds but only on the ground of appeal contained in the supplementary memorandum. The complaint in that ground is as follows: "1. That the learned tria l Judge erred in law to sustain the appellants' conviction and sentence in an econom ic offence which was tried by the court which had no jurisdiction to entertain the case." At the hearing of the appeal, the appellants appeared in person unrepresented while on its part, the respondent/Republic was represented by Mr. Clemence Ruta Kato, learned Senior State Attorney assisted by Ms. Grace Kibaki, learned State Attorney. Before we could hear the appellants who, together with their memoranda of appeal had filed their written arguments, we required Mr. Kato to inform the Court about the respondent's stance on the appeal. He readily supported the appeal on account of the ground of appeal which has been reproduced above. He conceded that the trial court acted without the requisite jurisdiction because in the consent certificate, the provision of the law said to have been breached by the appellants was not specified. He submitted that, in the circumstances, the appeal may be allowed and as a result, the proceedings and the judgments of the two courts below be quashed and the sentence set aside. He however prayed, as a way forward, that a retrial order be issued. It is indeed a correct position as conceded by the learned Senior State Attorney that, the provision of law which the appellants were alleged to have breached was not cited in the consent of the Director of Public Prosecutions (the DPP). The consent dated 19/10/2020, which is at page 90 of the record of appeal, reads as follows: " C o n sen t o f th e D ire cto r o f P u b lic P ro se cu tio n s I Biswalo Eutropius Kachele Mganga, D irector o f Public Prosecutions, in terms o f section 26 (1) o f the Econom ic and Organized Crime Control A ct [Cap 200 R.E. 2019] DO H ER EB Y CO N SEN T to th e p ro se cu tio n o f A BSO N SAM W EL CH AU LA ,, S A ID YASSIN CHELEKO , LEO NARD TW IKILO N A M IE for contravening the provisions o f paragraph 14 o f the First Schedule to, and sections 57 (1) and 60 (2) o f the Econom ic and Organized Crime Control Act, [Cap 200 R.E. 2019], the particulars o f which are stated in the charge sheet Sgd: BISWALO EUTR0P1US KACHELE MGANGA D IRECTO R O F PU B LIC PRO SECU TIO N 19/10/2020 The omission to specify in the DPP's consent, the relevant provision of the law under which an accused person was charged renders the proceedings a nullity. In the case of Silvanus Maneno Mkasanga @ Kelvin Ali Khamis Juma v. Republic (Criminal Appeal No. 347 of 2023) [2024] TZCA 870, confronted with similar situation in which the appellant was charged with the offence of trafficking in narcotic drugs contrary to section 15A (1) (a), (c) and (3) (i) of the Drugs Control and Enforcement Act, Chapter 95 of the Revised Laws but that section was not cited in the consent of the State Attorney In-Charge the Court held that, the omission vitiated the trial. It cited previous decisions which decided to that effect, including the case of Peter Kongori Malima and 4 Others v. Republic (Criminal Appeal No. 252 of 20200 [2023] TZCA 17350 in which it was held that: "Both the certificate conferring jurisdiction to the tria i court and the consent o f the State Attorney In Charge did not cite the provisions o f iaw creating the respective economic offences. We, therefore , agree with the iearned State Attorney that, the iegai consequence o f the om ission is to vitiate the tria l proceedings as the tria i court acted without jurisdiction. Equally so , for the resulting proceedings o f the first appellate court." Since in this case, the consent of the DPP suffers the same defect, the omission vitiated the proceedings. As a consequence, we hereby nullify the same, quash the judgments of both courts below and set aside the appellants' conviction. On the way forward, given the position of the law as it stands now; that by virtue of the provisions of section 4 of the Written Laws (Miscellaneous Amendment (No. 3) Act, No. 8 of 2025, section 26 of the EOCCA, which provided for a requirement of consent of the DPP in the trial of economic cases has been repealed, we find it inappropriate to issue a retrial order. The reason is that, a retrial must be based on the charge which at the time required a consent and as found above, the issued consent was defective. A retrial order will not therefore, support the charge. That being the case, we leave the matter to the discretion of 7 the DPP. Meanwhile, we order for the release of the appellants forthwith unless they are otherwise lawfully held. DATED at DAR ES SALAAM this 7th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The judgment delivered via virtual link, this 10th day of March, 2026 in the presence of the 1st and 2n d appellants appeared in person and Ms. Glory Baltazary Kilawe, learned State Attorney for the respondent/Republic and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a true copy of the original, r\ 8