Mohamed Makobela @ Nyanda & Another vs Republic (Criminal Appeal No. 427 of 2022) [2025] TZCA 1081 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA, J.A., MGEYEKWA, J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 427 OF 2022 MOHAMED MAKOBELA @ NYANDA . JUMANNE EMMANUEL @ KADUDYO I st APPELLANT 2 n d APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Tabora GALEBA. J.A.: Initially, the appellants, Mohamed Makobela @ Nyanda and Jumanne Emmanuel @ Kadudyo, along with Pastory Buduno @ Panduji (not a party to this appeal), were charged on one count of being found in unlawful possession of Government trophy, to wit, two elephant tusks, contrary to sections 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act, read together with paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) both of the Economic and Organized Crime Control Act. Their arraignment was before the Resident Magistrate's Court of Tabora, (the trial court), in Economic Crimes Case No. 98 of 2020. at Tabora) (Mwakatobe, PRM-Ext Juris.^ dated the 5th day of August, 2022 in Consolidated DC Criminal Appeals No. 73 & 75 of 2021 JUDGMENT OF THE COURT 29th September & 13th October ,2025

In that matter, the initial charge was filed on 31s t December, 2020 and on the same day, it was read over to them, and they all pleaded not guilty to it. The case was then adjourned to 13th January, 2021 where the following transpired: " State Attorney: I pray to file the consent and certificate, and I pray to substitute the charge sheet Accused: No objection. Court: 1. Consent and certificate have been admitted and filed in the court record. 2. The charge sheet read over and fully explained to the accused persons in Swahili language and asked to plead thereto as follows: 1st accused: "It is not true" 2n d accused: "It is not true" 3rd accused: "It is not true" Court: Entered piea o f not guilty." [Emphasis added] From that time on, the case proceeded to full trial and all the accused persons were found guilty and were convicted. They were each sentenced to serve 20 years imprisonment. Their appeal to the High Court was transferred to the Resident Magistrate's Court of Tabora to be heard by Mwakatobe PRM, with Extended Jurisdiction (the first appellate court). 2

Consequent to hearing the appeal, the latter court, dismissed it, but acquitted Pastory Buduno @ Panduji. Dissatisfied with the dismissal of their appeal, the appellants lodged this appeal in which each of them filed 6 identical grounds of appeal. For reasons to be clear as we proceed, we will not get to the details of those grounds of appeal. When this appeal was called on for hearing on 29th September, 2025, the appellants appeared each in person without legal representation, whereas the respondent Republic had the services of Mr. Joseph Makene, Ms. Anneth Makunja and Ms. Upendo Florian, all learned State Attorneys. Before parties could get their attention to the grounds of appeal, we sought to confirm with parties as to the status of the record of appeal. According to the record we had, there was only the initial charge which was read over to the appellants on 31s t December, 2020, but not the one which was amended and filed on 13th January, 2021. Ms. Makunja who addressed us on behalf of the respondent's team, confirmed to us that indeed, the substituted charge was nowhere in the record of appeal. At that point we required parties to address us, on the way forward. Ms. Makunja submitted that, as there is no charge sheet on which the appellants were tried, there is no way this Court can be able to determine this appeal fairly. Her prayer was for the proceedings of the

trial court from 13th January, 2021 onwards, to be nullified and those of the first appellate court to be quashed. As for the way forward, the learned State Attorney moved the Court to remit the original record of the case to the trial court with directions that a fresh trial be held, according to the law. As for the appellants, their common prayer was to be acquitted on ground that they have stayed in prison for over 5 years, so ordering a retrial will, by all means, entail an unjustifiable prolonged stay in prison. On our part, as intimated above, we carefully studied both the record of appeal as well as the original record of the trial court, but were unable to lie our hands on the amended charge sheet upon which the appellants were supposedly tried. This means, it is unclear as to the nature of the charge upon which the appellants were tried, convicted and consequently sentenced to 20 years imprisonment. Our position in this case is that, by requiring the appellants to plead to an amended charge on 13th January, 2021, the prosecution abandoned the initial charge to which the appellant had pleaded not guilty previously on 31s t December, 2020. That means, the charge upon which the appellants were tried and convicted is not known, for it is not on record. The law regulating presentation of criminal appeals to this Court, particularly rule 71 (1) (b) of the Tanzania Court of Appeal Rules, (the Rules) provides that a record of appeal must contain an information, an

indictment or a charge. It is essentia! to stress here that, in all criminal cases under the Tanzanian law, a charge or an information, is a foundation upon which the entire criminal trial rests and traces legitimacy. A charge sheet is so critical, and of an overriding significance in criminal law, for it is a document without which a criminal trial cannot legally be initiated or proceed. In this case for instance, no one can tell the section of the law which was allegedly breached by the appellants or the particulars of the offence for which the appellants were convicted. Fortunately, it is not the first time that this Court is coming face to face with the situation. In Paulo Apolo v. R, Criminal Appeal No. 260 of 2015 (unreported), like in this case, the substituted charge was missing, on appeal this is what we stated: 7/7 the totality o f the circumstances and in particular, the absence o f the copy o f the charge sheet which was allegedly substituted, this Court has been disabled from performing its primary duty, that o f examining if there were any errors in the charges which were prejudicial to any o f the parties. In the light o f our observations above, we can only say with certainty that we are not sure whether the appellant received a fair trial. So, his conviction is not safe. We thus allow the appeal and nullify all the proceedings o f the trial court and the High Court on first appeal." 5

The same approach as in the above case 'has been passed down in many of this Court's subsequent decisions, including Samwel Gitau Saitoti @ Saimoo and Another v. R, Criminal Appeal No. 5 of 2016 and Silivanus Nyaululi @ Musa v. R, Criminal Appeal No. 615 of 2021 (both unreported). Therefore, where a charge is missing in the record of appeal, it is impossible to tell whether there were any errors on the charge sheet which errors could be prejudicial to the person charged. And that, we think, is the rationale for the mandatory compliance with rule 71 (1) (b) of the Rules, we have referred to above. The absence of a charge sheet on the record puts an appellate court in a state of doubt and speculation, which makes it unsafe to uphold any conviction, in the circumstances. In view of the above, we invoke this Court's powers of revision under section 6 (2) of the Appellate Jurisdiction Act, and nullify all proceedings of the trial court recorded on 13th January, 2021 onwards including the conviction and the sentence that was imposed on the appellants. The proceedings of the first appellate court are also nullified and its judgment quashed. In the interest of justice, we order that the original record be remitted to the trial court for retrial of Economic Crimes Case No. 98 of 2020. Trial should proceed according to law, immediately after the order dated 31s t December, 2020. 6

In case the trial de novo we have just ordered results into other convictions and imprisonments, in computing the appellant's terms to serve in prison, the period of time already served in custody or prison from when they were arrested in December, 2020 up to such convictions, shall be treated as having been served by them. Meanwhile, pending retrial, the appellants shall remain in custody as remandees. DATED at TABORA, the 10th day of October, 2025. The Judgment delivered this 13th day of October, 2025 in the presence of 1s t & 2n d appellants in person, Ms. Suzan Barnabas assisted by Ms. Aziza mfinanga, both learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the original. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL