Godbless Joshua Mwamakula vs Republic (Criminal Appeal No. 122 of 2023) [2025] TZCA 1065 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO. J.A., KENTE. J.A. And KHAMIS, J.A.] CRIMINAL APPEAL NO. 122 OF 2023 GODBLESS JOSHUA MWAMAKULA ....................................... .APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) dated the 15th day of February, 2023 in Criminal Appeal No. 40 of 2022 JUDGMENT OF THE COURT 29th September & 10th October, 2025 KENTE, J.A.: The appellant, Godbless Joshua Mwamakula was one of the three accused persons who appeared before the District Court of Ilemela (the trial court), on a charge of unlawful possession of Government Trophies contrary to section 86 (1) and (2)(c) (ii) of the Wildlife Conservation Act No. 5 of 2009, read together with Paragraph 14 of the First Schedule and Sections 57(1) and 60(2) of the Economic and Organised Crimes Control Act, Chapter 200 of the Revised Laws. The charge arose from an incident at Buzuruga Bus Stand within the District of Ilemela in Mwanza Region on 1

5thNovember 2021 when the appellant and his co-accused were allegedly found in unlawful possession of one hundred and one Leopard Tortoises priced at 7ZS. 16,282,210.00, the property of the United Republic of Tanzania. All the accused persons pleaded "guilty" to the charge and were subsequently convicted as charged and sentenced to pay a fine of TZS. 16,282,210.00 each or serve ten years imprisonment upon default. Dissatisfied with the conviction and sentence on the grounds that they stemmed from an equivocal plea of guilty, the appellant vainly appealed to the High Court of Tanzania (sitting at Mwanza) which, as it turned out, after hearing the parties, not only went on dismissing the appeal for lack of merit but it also enhanced the imprisonment sentence that was imposed on the appellant by the trial court from ten years to twenty years. Undaunted by this awful outcome, the appellant appealed to this Court on what can be termed as a litany of complaints. For the reasons that will soon become apparent, we will neither reproduce nor synopsize all the grounds raised by the appellant most of which were couched in a repetitious style. Suffice it to say that, at the hearing of this appeal, the appellant who appeared in person without any legal representation, prayed to sort of rephrase the clumsily worded third ground of appeal so

as to read that, the trial court did not have jurisdiction to try him and his co-accused as the consent issued by the District Prosecutions Officer Incharge authorising the trial court to try them, was ineffectual for having been issued under the wrong provision of the law. In support of this ground, the appellant submitted very briefly that, the consent that was filed in the trial court signifying the District Prosecutions Officer's authorisation of their trial, was defective for having been issued under section 26(1) of the Economic and Organised Crime Control Act a provision which, at the time, exclusively vested powers in the Director of Public Prosecutions (the DPP) to issue such certificates. In. this regard, the appellant referred us to our earlier decisions in the cases of Leonard Matacha Rhobi v. Republic, Criminal Appeal No. 502 of 2022 and Chacha Chiwa Marungu v. Republic, Criminal Appeal No. 364 of 2020 to underscore the position of the law that, since the charge against him and his co-accused was in respect of an economic offence ordinarily triable by the High Court, a consent by the DPP in terms of section 26(1) of the EOCCA was a prerequisite requirement to prosecute them in the subordinate court. The main thrust of the appellant's complaint was that, in the instant case, the consent appearing on page 3 of the record of appeal issued by one Martha Damian Mwadenya, a District

Prosecutions Officer Incharge for Ilemela, purportedly in terms of section 26(1) of the EOCCA which is the exclusive domain of the DPP, was invalid as Ms. Mwadenya not being the DPP, ought to have exercised the powers conferred upon her by section 26(2) of the EOCCA. In this regard, as earlier on indicated, what the appellant sought to convey is that, in the absence of a consent duly issued by the DPP or any other authorised officer under the applicable law, the trial court could not try them due to want of jurisdiction. To that end, the appellant implored us to allow the appeal, quash the conviction and set aside the custodial sentence meted out on him. Submitting in reply, Ms. Bitunu Msangi, a learned State Attorney who appeared along with Ms. Safi Amani, learned Senior State Attorney, to represent the respondent-Republic, did not seek to resist the appeal. Correctly in our view, the learned State Attorney repeated much of what the appellant had said particularly regarding the established legal principles and conclusions on cases of the present nature. Relying on the same authorities as those cited to us by the appellant, Ms. Msangi submitted that, as the law stood at the time, the powers to grant consent under section 26(1) of the EOCCA were in the exclusive domain of the DPP and that, since the District Prosecutions Officer for Ilemela was not

the DPP, she should have granted consent in terms of sub- section (2) of the above-cited law. The learned State Attorney oppositely concurred with the appellant that as a matter of law, the trial court acted without jurisdiction and that, the proceeding and judgment consequently arising from there, were entirely a nullity. As to the way forward, the learned State Attorney implored us to nullify the proceedings, set aside the sentence and order for a retrial. However, when we engaged Ms. Msangi on the viability or otherwise of the retrial order, regard being had to the fact that the appellant was convicted along with two others who are not parties to this appeal, upon reflection, she left it in the discretion of this Court to decide on the course to be taken. At the outset, we endorse the appellant's complaint and the concurrent position taken by Ms. Msangi on behalf of the respondent. As the law stood at the time, the powers to grant consent to prosecute anyone who contravened among other laws, paragraph 14 of the First Schedule to the EOCCA were, pursuant to section 26 (1) of the EOCCA, vested in the exclusive province of the DPP. As was correctly submitted by the appellant and readily conceded by Ms. Msangi, officers subordinate to the DPP could only, exercise similar powers but specifically under section 26(2) of the EOCGA which provided that:

"(2) The Director o f Public Prosecutions shail estabiish and maintain a system whereby the process o fseeking and obtaining o fhis consentfor prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions o f which shail require the consent o f the Director o f Public Prosecutions in person and those the power o f consenting to the prosecution o f which maybe exercisedby such officer or officers subordinate to him as he may specify acting in accordance with his genera! or special instructions." This Court in a somewhat similar situation in the case of Chacha Chiwa Murungu (supra} referred with approval to what we had to say in Ramadhani Omari Mtiula v. Republic, Criminal Appeal No. 62 of 2019, that: "... without the DPPs'consent... the District Court o fSerengeti embarked on a nullity to try Criminal Case No. 8 o f 1995. On that account, since the first appeal stemmed from null proceedings this adversely impacted on the appeal before the High Court." In this regard, in the case of Leonard Matacha Rhobi (supra), we stated categorically that: 6

"... no trial can commence in respect o f an economic offence without the consent o f the DPP. It is the consent o f the DPP which confers jurisdiction to the economic court to hear the case in the absence o f which the triai becomes a nullity." If one has to conclude as the appellant and the learned State Attorney in the present instance correctly submitted that, indeed the trial court was not clothed with the jurisdiction requisite to try the appellant and his co-accused, it must follow from our established jurisprudence that, the entire of what the trial court did was no more than a nullity and we so hold. Consequently, we allow the appeal, nullify the proceedings of the trial court, quash the appellant's conviction which was sustained by the first appellate court and set aside the custodial sentence meted out on him. As to the way forward, if one has regard to the fact that the case against the appellant has spun approximately five years and he was charged and convicted along with two others who are not parties to this appeal, one is tempted to conclude, as we hereby do that, an order for retrial will not be in the interest of justice in the particular circumstances 7

of this case. In the result, we order for the appellant's immediate release from jail if he is not further detained for some other lawful cause. DATED at MWANZA this 9th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 10th day of October, 2025 in the presence of the appellant in person and Mr. Adam Murusili, learned State Attorney for the Respondent/Republic, connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy Qf the original. 8