Issa Brown Samson vs Republic (Criminal Appeal No. 256 of 2022) [2026] TZCA 271 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CCQRAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO, J.A J CRIMINAL APPEAL NO 256 OF 2022 ISSA BROWN SAMSON...................................................................... APPELLANT VERSUS THE REPUBLIC ................................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ebrahlm, J« ) dated the 20th day of May, 2022 in C^minalAppcaLRo. 102 of Z021 23'" February ft 9"1March, 2026 Phe appellant, Issa Brown Samson, together with two others (not A . ) to this appeal), were originally charged and convicted In the Court of Resident Magistrate of Mbeya at Mbeya (I conomlc Case No, 5 of 2017) for two counts of unlawful possession ol government trophies contrary to section 80 (1) (2) (c)(lll) of the Wildlife Conservation Act, No, b of 201W as amended section of 1 1 hi Wi ll ton Laws (Miscellaneous Amendments) (No, 2) Act 2016 lead together with paiagiaph l»l ol tin i

first schedule and section 57(1) of the Economic and Organised Crimes Control Act Cap. 200 R.E 2002. The prosecution alleged that, on 08/03/2017, in the Lupa area of Chunya District, the appellant and his co accused were found in possession of government trophies without a permit to wit Nine pieces of elephant tusks, valued at USD 45,000.00 (approximately TZS 100,350,000.00) and Two giraffe tails, valued at USD 30,000.00 (approximately TZS 66,900,000.00). During the trial, the prosecution marshalled four witnesses and five exhibits, including the trophies themselves, a digital scale, the motorbike, and a valuation report. The appellant herein entered his defence along with his co-accused persons. The trial court (Mteite, RM), rejected the appellant's defence. He found that the prosecution had proved the case beyond reasonable doubt, and convicted him. He was sentenced to 20 years' imprisonment on 12/04/2017. Aggrieved, it appears the appellant appealed to the High Court against the judgment and orders in the said Economic Case No. 05 of 2017. Although the record is silent on the notice, petition of appeal or transfer order of the case from High Court to the Resident Magistrate with 2

Extended Jurisdiction, it seems to us that by virtue of Criminal Appeal No.06 of 2020, the Resident Magistrate with Extended Jurisdiction on 30/09/2020 remitted the case back to the trial court for the appellant to be properly convicted as required by sections 235 and 312 of the Criminal Procedure Act [Cap. 20 R.E. 2019], now sections 252 and 331 of Cap. 20 R.E. 2023, the CPA. The record shows that on 16/11/2020, the case was placed before Hon. D.G. Luwungo - Resident Magistrate (RM) for compliance with the order of the court given earlier by Hon. Mwakatobe, RM with Ext. Juris. The case was adjourned for judgment several times until 7th June 2021 when the judgment was purportedly delivered and a sentence of 17 years imprisonment for both counts passed on the appellant. This judgment, however, is nowhere to be found on record. Dissatisfied, the appellant appealed to the High Court in Criminal Appeal No. 102 of 2021 raising ten grounds of appeal which were condensed into four issues. However, the High Court dismissed the appeal and affirmed the conviction and sentence. Aggrieved, the appellant has lodged the present appeal on three grounds of appeal: One, that the high courtjudge erred in iaw when he dismissed the appellant appeal without evaluating deeply the petition o f 3

appeal filed by the appellant; two, That the high courtjudge erred in law when he dismissed the appeal of the appellant without regarding that the prosecution failed to prove the charge as per law; three That the high courtjudge disregarded the defense of the appellant. In prosecuting the appeal, the appellant appeared in person and unrepresented whereas the respondent Republic had the services of Mr. Alex Mwita, learned Senior State Attorney and Ms. Veneranda Masai, learned Senior Attorney. In our settled view, this appeal presents an unusual scenario where the record of appeal lacks the trial court judgment from which the appeal is anchored. Therefore, before submitting on the substance of the appeal we invited the learned Senior State Attorney to address us on the appropriateness of the proceedings and the whereabout of the trial court judgment (by Hon. Luwungo, RM) upon which the present appeal emanates. Mr. Mwita conceded that the Hon. Mwakatobe, RM with Ext. Juris., remitted the file to the trial court to properly convict the appellant. However, the judgment by Hon. Luwungo, which would have executed the order by the Hon. Mwakatobe is nowhere to be seen in the record of I * appeal. Even after consulting the original file, it is conspicuously missing. What one gathers from pages 46-47 of the record of appeal is that the 4

judgment was not written following the order by RM Ext. Juris., remitting the file to the trial court so that it can properly convict the appellant (then the accused). Further, the Court reminded the learned Senior State Attorney that the notice of appeal on page 48 is against Hon. Luwungo's judgment. But the petition of appeal which is against that purported judgment contained grounds that were drawn from Hon. Mteite's judgment. More confusingly, is the fact that the High Court decision was based on Hon. Mteite's judgment which was not appealed against. Mr. Mwita submitted that the Hight Court as the first appellate court dealt with judgment which was not appealed against. He beseeched the Court to invoke its powers under section 6(2) of the Appellate Jurisdiction Act [Cap 141 R.E. 2023], the AJA and nullify the proceedings of the trial court (Hon. Luwungo's proceedings) and set aside the ensued orders, nullify the proceedings of the High Court, set aside its appeal judgment, and order the trial court to compose a judgment and convict the appellant as directed by Hon. Mwakatobe RM with Ext. Juris. Rejoining, the appellant submitted that the problems have been caused by the magistrates for which he is not to blame. He lamented that 5

he has been in prison since 2017. Eventually, he urged the Court to consider his grounds of appeal. In this appeal as a preliminary, the Court is called upon to determine the implication of the defect noted in the trial court proceedings, that is a missing judgment which is the foundation of the appeal at hand. A scrutiny of the record of appeal on pages 39-41, there is a ruling by Hon. Mwakatobe RM Ext. Juris, which on page 41 after noting that the appellant was not properly convicted by the trial court, she remitted the file to trial court with an order that it properly convicts the appellant as required by sections 235 and 312 of the CPA now sections of 251(1) and 331 (1) of the CPA [Cap. 20 R.E. 2023]. At this point, we expected Hon. Luwungo, RM who presided over the matter at the trial court to compose a judgment in which proper conviction will be visible. But to our surprise as page 46 of the record of appeal shows, the learned Resident Magistrate purports to have delivered the judgment which is not seen in the record. We wonder how the conviction was entered while there was no judgment. What follows as the record bears witness are the antecedents, where the learned State Attorney remarked that the appellant had no previous record and mitigation followed, eventually the sentence was imposed upon the appellant as seen on page 47 of the record of appeal. 6

Disgruntled, the appellant filed (on page 48 of the record of appeal) a notice of appeal against that purported judgment of the trial court. The petition of appeal shows that it was against the conviction and sentence dated 7th June 2021. But the grounds reflect the judgment of Hon. Mteite, RM dated 17th April 2017. Unfortunately, the fatal irregularity was not detected by the first appellate court. Apparently, the decision of the trial court delivered on 7th June, 2021 by Hon. D.G. Luwungo, RM on proper conviction which formed the basis of the appeal before the first appellate court is nowhere to be found in the court record. Therefore, it is uncertain whether the order of the court dated 30/9/2020 at page 39 of the record of appeal was complied with. We wish to emphasize that court Orders must be respected and implemented. See CRDB Bank Pic v. Heri Microfinance Limited & Another [2024] TZCA 202. In the premises, we agree with the learned Senior State Attorney that the trial court proceedings by Hon. Luwungo RM and the High Court proceedings should be nullified. And their respective judgment(s) and orders be set aside. As we hereby do. From the foregoing analysis, we allow the appeal, nullify the proceedings of the trial court conducted from 16/11/2020 to 07/06/2021 7

appearing at pages 42-47 of the record of appeal and subsequent proceedings of the High Court in terms of section 6(2) of the AJA. In that regard, we quash and set aside the judgments of the lower courts and the sentence imposed. Further, we remit the case file to the High Court for the trial court to properly convict the appellant in accordance with the law as ordered by Hon. Mwakatobe RM Ext. Juris., in so doing, thetime spent by the appellant in prison shall be considered. DATED at MBEYA this 6th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 9th day of March, 2026 in the presence of the appellant in person, Ms. Upendo Lyimo, learned State Attorneys for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original.