Awami Mahuru Salim vs Republic (Criminal Appeal No. 53 of 2023) [2025] TZCA 1043 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A., MASOUP. J.A. And ISMAIL. 3.AA CRIMINAL APPEAL NO. 53 OF 2023 AWAMI MAHURU SALIM .........................................................APPELLANT VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Mlvambina, J.) Dated 7th day of December, 2022 in Economic Case No. 2 of 2021 JUDGMENT OF THE COURT 3rd & 7th October, 2025 ISMAIL J.A.: The appellant, along with Nicodemas Pius Ngonyani and Deogratias Melkion Mhagama, both of whom are not part of this appeal, were charged with unlawful possession of government trophies. The subject of the trial proceedings was 10 pieces of elephant tusks. The allegation is that, on 24th January, 2021, Dayan Reuben Olekeney (PW2), a wildlife officer led a search operation that targeted Bombambili - Merikebu area, within Songea Municipality. With him, were police officers who masqueraded as buyers of the trophies. They pounced on a house rented by the appellant

and, in a search which was witnessed by a ten-cell leader (PW4), they recovered 10 pieces of elephant tusks (exhibit PI). These trophies were covered with a polyethylene bag (commonly known as sulphate bag) and stashed in a box. A certificate of seizure through which the recovery was done was tendered in court as exhibit P3 and it was signed by the appellant and witnesses who included PW4. The said exhibit PI, along with the appellant and his co-accused, were conveyed to Songea Police Station for custody. Subsequently, the said exhibit PI was identified and valued by Antony Wambura (PW3), a wildlife officer, who confirmed that they indeed were elephant tusks and he assigned them value of US$ 30,000.00 whose equivalence in Tanzanian currency was TZS. 69,570,000. A valuation report to that effect was admitted as exhibit P4. During trial, the appellant's cautioned statement in which he allegedly confessed to the wrong doing was admitted in court as exhibit P5, despite an objection to its admissibility on the contention that the same was procured involuntarily. The District Court of Songea at Songea in which the appellant and the co-accused were arraigned held the appellant to a culpable account. Consequently, it convicted him of the charged offence and sentenced him to a custodial term of 20 years. As it did that, the trial court found no

blemished role by the co-accused as the evidence led by the prosecution was too paltry to find them guilty. It acquitted them. The conviction and the sentence bemused the appellant. He mounted a challenge through an appeal instituted in the High Court at Songea (1s t appellate court). His challenge fell through when the 1s t appellate court dismissed the appeal and upheld the trial court's findings. This, then, saw the appellant take a ladder up to this Court. His memorandum of appeal contained six grounds of appeal, followed by a two-ground supplementary memorandum of appeal. As it shall be apparent soon, need will not arise for reproducing the grounds of appeal. At the hearing of the appeal, the appellant enlisted the services of M r. Augustino Mahenge, learned counsel, while Ms. Mwajabu Tengeneza, learned Principal State Attorney, along with Messrs. Frank Chonja and Issa Issa Chiputula, learned State Attorneys, represented the respondent Republic. As we were geared up for the hearing, we called upon the learned counsel to address us on the regularity or otherwise of the trial proceedings. Ms. Tengeneza, who addressed us first, was quick to concede that something was fatally wrong with the trial proceedings. She pointed out the ailment by stating that the consent and certificate that conferred

jurisdiction on the District Court of Songea were anomalous as they omitted to cite the provisions of section 86 (1) & (2) (b) of the Wildlife Conservation Act (WCA) under which the appellant was charged. Ms. Tengeneza contended that the failure to cite this provision in the consent and certificate rendered the said instruments defective and unable to support the charge. The learned counsel argued that the implication that comes with that, is that the appellant and his co-accused were charged and tried, and the appellant was ultimately convicted and sentenced without the consent of the Director of Public Prosecutions (DPP) and while the trial court was not seized with jurisdiction to do so. She urged us to nullify the proceedings, quash the conviction and set aside the sentence. Regarding the way forward, Ms. Tengeneza submitted that, ordinarily, the Court would be implored to order retrial but she was dissuaded that circumstances of the case would favour taking that route. She argued that, she realized that the case for the prosecution was weak and that, an order for retrial would hand the prosecution with a glorious opportunity to stitch what she considered to be a torn case, an abhorrent indulgence under the law. In amplifying her argument, the learned counsel drew our attention to pages 36 to 40 of the record of appeal in which PW4, an independent witness, testified as saying that he found the

appellant with police officers in the appellant's house when he was called to witness the search. This, she submitted, brought the impression that the search and seizure of the subject matter of the charge were shrouded in wanton irregularities that are sufficient to nullify the search and seizure. Ms. Tengeneza was of the contention that, PW4 is an independent witness whose testimony should be believed. The learned counsel implored us to look at the defence testimony, found at pages 48-50 of the record of appeal, wherein the appellant, then testifying as DW1, contended that the box containing the trophies was brought to his house by police officers. Ms. Tengeneza did not rest. She pointed yet another finger at the manner in which exhibit P5, the appellant's cautioned statement, was recorded. She argued that, whereas PW5 testified (at pages 40-46) that, when he recorded the statement on 29th January, 2021, the appellant was already under police restraint and incarcerated, exhibit P5 shows that the same was recorded on 24th January, 2021. This, she contended, created a serious doubt on the veracity of the appellant's confession. Ms. Tengeneza took a serious exception, yet again, to the legality of exhibit P5, contending that, that piece of evidence lacked the appellant's certification under section 53 of the Criminal Procedure Act (CPA), rendering it incurably defective. Given the fatal anomaly that comes with that omission, the learned counsel argued, the said exhibit has no 5

evidential value and liable to expungement. Overall, Ms. Tengeneza argued that, the totality of all this is to order that the appellant be set free. She so prayed. Mr. Mahenge did not have anything to submit. He only joined hands with his counterpart and urged the Court to allow the appeal and set the appellant at liberty. It is a settled position that, cases relating to corruption and economic offences are triable by the Corruption and Economic Crimes Division of the High Court. Such powers are vested in the said court by section 3 (1) of the Economic and Organized Crime Control Act, Cap. 200 (EOCCA). This provision stipulates as follows: "3- (1) There is established the Corruption and Economic Crimes Division of the High Court with the Registry and sub-registries as may be determined by the Chief Justice, in which proceedings concerning corruption and economic cases under this Act may be instituted." The law has also provided a leeway by allowing corruption and economic cases to be instituted and tried by a subordinate court. This latitude is catered for by section 12 (3) of EOCCA which empowers the DPP to issue a certificate conferring jurisdiction on a subordinate court to

try the matter where he deems necessary or in consideration of public interest. Worth of note, as well, is the fact that, commencement of trial proceedings in corruption and/or economic cases comes with yet another requirement. This is in terms of section 26 (1) and (2) of the EOCCA (before its repeal), which required, at that time, that, the proceedings should be preceded by consent issued by the DPP. Issuance of the DPP's consent and certificate conferring jurisdiction must, in terms of the legal position as it currently obtains, mirror what is cited in the charge that institutes the proceedings. Where any or both instruments omits any or all of the provisions under which the accused person is charged, such instruments suffer from invalidity. As rightly alluded to by Ms. Tengeneza, neither the consent nor the certificate contains section 86 (1) & (2) (b) of the WCA which is the main charging provision. Needless to say, the omission constituted a serious infraction with a devastating consequence to the trial proceedings and what came after the trial proceedings, including appeal proceedings to the 1s t appellate court, as jurisdiction of the trial court to entertain the matter was called into question. It is a legal certainty that has been stated by this Court, time and again, that the omission to align the consent and certificate with the charge sheet is a question touching on jurisdiction. In CRDB Bank PLC

v. Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637, we held as follows: ” It is worth noting that, the question ofjurisdiction is crucial and must be determined by the court/tribunal at the earliest opportunity. Jurisdiction is everything without which a court has no power to determine the dispute before it Where a Court has no jurisdiction there would be no basis for a continuation of proceedings. Generally a court is barred to entertain a matter in which it has no jurisdiction " A more lucid position on the matter was stated in the subsequent decision of the Court in Shaibu Hussein @ Twalibu Mambosafi v. Republic, Criminal Appeal No. 561 of 2022 [2024] TZCA 887 in which it was guided as follows: "'On our looking at the said documents, there is no gain saying that the two documents did not state the specific provisions under which the appellant was charged against. The omission to cite the specific provisions means that the appellant was charged, tried and convicted by the subordinate court without the consent of the DPP, and further without the jurisdiction to try the case. The Court has consistently maintained the said position in akin circumstances that, where a person is

arraigned before the subordinate court for an economic offence under EOCCA without the consent of the DPP authorizing the court to try the economic case and or the certificate which confers jurisdiction on that court to try the said offence, such subordinate court lacks the jurisdiction to try the economic offence concerned and if it does, the entire proceedings become a nullity/' From the foregoing, it is quite clear that, the trial proceedings and the appeal proceedings whose foundation was the consent and certificate, both of which have since been adjudged discrepant, are nothing but a mere travesty that should not be left unscathed. We, therefore, invoke the powers conferred on the Court by the provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap. 141, and revise and nullify the proceedings of the trial and first appellate courts. We also quash the conviction and set aside the sentence imposed on the appellant. Having done so, the next question is: what will become of the appellant? We agree with Ms. Tengeneza that, while retrial is a natural consequence where proceedings are nullified owing to some procedural impropriety, we do not find this to be a fitting course of action in the circumstances of this case. We subscribe to the counsel's view that, the testimony adduced by the prosecution suffers from serious credibility crisis

and pregnant disharmonies which cannot support the conviction. Aware of this fact, we hold that, retrial will only serve as an opportunity for mending the case and address the inadequacies in the prosecution case much to the appellant's prejudice. We are not prepared to allow that injustice to prevail. We, accordingly, order that the appellant be immediately released from prison, unless held for lawful cause. DATED at SONGEA this 07th day of October, 2025. Judgment delivered this 07th day of October, 2025 in the presence of Mr. Augustino Mahenge, learned counsel for the Appellant, Ms. Mwajabu Tengeneza and Mr. Frank Chonja, learned State Attorneys for the Respondent/Republic and Ms. Gloria Masige, Court Clerk, is hereby R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL