Hamis Idd Yusuph vs Republic (Criminal Appeal No. 659 of 2024) [2025] TZCA 1035 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NDIKA. J.A.. KIHWELO. 3.A.. And NGWEMBE. J.A.1 ) CRIMINAL APPEAL NO. 659 OF 2024 HAMIS IDD YUSUPH...................................................... ..............APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Mambi, Jt dated 19th October, 2023 in DC. Criminal Appeal No. 26 of 2023 JUDGMENT OF THE COURT 1s t & 7th October, 2025 NGWEMBE. JA.: The appellant, Hamis Idd Yusuph was charged with three counts at the District Court of Dodoma at Dodoma. The first count involved unlawful possession of Government Trophy contrary to section 86 (1) (2) (c) iii of the Wildlife Conservation Act No. 5 of 2009 as amended read together with paragraph 14 of the first schedule and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act. It was alleged that the appellant on 31s t August, 2021 at Chemchem Village within Kondoa District in Dodoma Region was found in possession of i

one Giraffe skin valued at USD. 15,000 equivalent to TZS. 34,785,000.00 without permit of the Director of Wildlife. The second count was on unlawful possession of Government Trophy contrary to the same sections cited in the first count. The particulars indicated that the appellant on the same date, time and place was found in possession of four Impala legs valued at USD. 1,170 equivalent to TZS. 2,713,230.00 without permit from the Director of Wildlife. The third count was in respect of allegation of unlawful possession of Government Trophy contrary to the same sections referred to in the first count. It was alleged that on the same date, time and place, the appellant was found in possession of one Dikdik leg valued at USD. 250 equivalent to TZS. 579,750.00 without permit from the Director of Wildlife. It is on record that when the charge was read over and explained to the appellant, he pleaded not guilty in respect of all counts. At the trial, the prosecution paraded five prosecution witnesses. The substance of the prosecution evidence was to the effect that, on 31s t August, 2021 four Wildlife Warden, police and a ten-cell leader of Chemchem Village at night went to the appellant's house and searched his house, but found nothing. When they searched the outside of his house they found a toilet building. 2

Inside the toilet they found a bag hung on a tree. Inside that bag there were the above-mentioned Government Trophy. But according to PW3, the appellant when was asked about that bag he denied to know it. In his defence, the appellant consistently denied to know anything in respect of that bag and Government Trophy. However, at the end of trial, he was found guilty, convicted and sentenced to 20 years imprisonment on every count constituting an aggregate of 60 years running concurrently. The appellant unsuccessfully appealed to the High Court in Criminal Appeal No. 26 of 2023. Its decision is the subject of the instant appeal. Undaunted, the appellant has preferred the instant appeal predicated on sixteen (16) grounds. However, for the reasons to be apparent shortly, we do not deem it appropriate to reproduce those grounds. When the appeal was placed before us for hearing, the appellant who entered appearance in person unrepresented, prayed to adopt his grounds of appeal and preferred to rejoin after the response from the respondent Republic. The Republic was represented by M r. Geofrey Aron Mlagala, learned Principal State Attorney, assisted by Mr. Boaz Kabuche Zephania, learned State Attorney. At the outset, M r. Mlagala readily supported the appeal but for a different reasoning. 3

M r. Mlagala pointed out that the trial court lacked jurisdiction to try the matter for the obvious reason that the certificate of the Regional Prosecution Officer conferring jurisdiction on the Subordinate Court to try an economic case was improperly made. The certificate was incompetent for failure to cite the charging section indicated in the charge. Thus, rendering the certificate incompetent and unable to confer jurisdiction to the trial court. Moreover, he pointed out that the consent of the Regional Prosecution Officer to the prosecution of the appellant was incompetent and unable to amount into a legally acceptable consent for failure to cite the charging section as appears in the charge. It was his submission that the case was tried by an incompetent court for want of jurisdiction and without consent from the Director of Public Prosecutions through the Regional Prosecution Officer of Dodoma. In this regard, relying on the decision of the Court on similar circumstances to the appeal, that is, in Chacha Mnanga Chacha v. Republic (Criminal Appeal No. 107 of 2021) [2024] TZCA 1250 (11 December 2024) (TANZLII) and Dilipkumar Maganbai Patel v. The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25 July 2022, (TANZLII), the learned Principal State Attorney submitted that, the defect in 4

the consent and certificate of transfer issued by the Principal State Attorney in charge of Dodoma Region, rendered the proceedings and judgment of the trial court and the subsequent proceedings and judgment of the High Court nullity. In the circumstances, M r. Mlagala urged the Court to apply section 6 (2) of the Appellate Jurisdiction Act, Cap 141 RE 2023, to revise and quash both the proceedings and judgments of the lower courts and set aside the sentence therefrom. On the way forward, for the interest of justice, M r. Mlagala submitted against retrial because it was not viable given certain holes in the prosecution case. He pointed those holes including illegal search conducted to the appellant's premises without search warrant as shown at pages 28 - 29 of the record of appeal. Moreover, he pointed that, the prosecution failed to call material witness like the police investigator, who was material to prove the case. Above all, the learned Principal State Attorney pointed another defect that the seized items, giraffe skin, 4 impala legs and 1 leg of a dikdik were not tendered in court during trial to form part of the prosecution evidence. He buttressed his argument with case of John Marwa @ Mwita vs Republic (Criminal Appeal No. 66 of 2021) [2024] 5

TZCA 1276 (13 December 2024) (TANZLII), thus he implored the Court to allow the appeal and release the appellant from jail. The appellant supported the submission by the learned Principal State Attorney and urged the Court to release him from jail. It is settled that economic cases are triable by the High Court in terms of section 3 (3) of the Economic and Organized Crime Control Act (EOCCA). For clarity the section is reproduced hereunder: 3(3 ) "The Court shall have jurisdiction to hear and determine cases involving- (a) corruption and economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29 and 38 o f the First Schedule whose value is not less than one billion shillings, save for paragraph 14; (b) economic offences specified under paragraphs 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33,34, 35, 36, 37 and 39 o f the Schedule regardless o f their Value"; The excerpt above is crystal clear that the court seized with jurisdiction to entertain economic cases like the instant appeal is the High Court. However, in terms of section 26 (1) (2) of the EOCCA, subordinate courts 6

may try economic cases only upon being conferred jurisdiction by the Director of Public Prosecutions. The section is reproduced hereunder: 26.-(l) Subject to the provisions o f this section, no trial in respect o f an economic offence may be commenced under this Act save with the consent of the Director o f Public Prosecutions. (2) The Director o f Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining o f his consent for prosecutions may be expedited and may for that purpose, by notice published in the Gazette, specify economic offences the prosecutions o f which shall 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 may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his generai or special instructions. The above provision, is instructive that the charging section 86 (1) and (2) (c) (iii) of Wildlife Conservation Act has to be cited in both the consent and certificate to confer jurisdiction to the subordinate courts. However, the consent and certificate presented to the trial court, did not meet the threshold with respect to all three counts. 7

We therefore, agree with the learned Principal State Attorney that the respective consent and certificate conferring jurisdiction of the trial court were defective, incapable of conferring jurisdiction to the trial court to entertain the economic case as alluded to above. Consequently, as we decided in numerous cases of similar nature including the cases of Dilipkumar Maganbai Patel (supra); Rhobi Marwa Mgare and Others v. Republic (Criminal Appeal No. 192 of 2005) [2009] TZCA 222 (12 June 2009) (TANZLII); and Kwabi Nila Limbu v. R, (Criminal Appeal No. 26 of 2021) [2024] TZCA 1028 (4 November 2024) (TANZLII); and John Marwa @ Mwita (supra), the omission vitiated the whole proceedings, judgments and sentences of the lower courts for lack of jurisdiction. Accordingly, we proceed to nullify the those proceedings and set aside the respective judgments. The follow up issue for our determination is whether retrial is viable in the circumstances of this case. Mr. Mlagala was firm in this point that due to the holes in the prosecution case, retrial will occasion injustice to the appellant. We entirely agree with him that for the interest of justice, retrial is not a viable option because first, the search was illegally conducted to the premises of the appellant; second, the alleged trophy found in the premises 8

of the appellant were not tendered for no apparent reason; and three, the prosecution failed to call material witnesses including the investigator of the incident. Irrespective of the above observation by the learned Principal State Attorney, the oldest decision of the East African Court of Appeal in the case of Fatehali Manji v. R, (1966) EA 343 provide that, prior to the order for retrial, the court must be satisfied that the interest of justice prevails. The court observed as follows: "In general, a retrial will be ordered only when the original trial was illegal defective, it will not be ordered where conviction is set aside because of insufficiency o f evidence or for the purpose of enabling the prosecution to fill gaps in its evidence at the trial...each case must be decided depending on its own facts and circumstances and an order of retrial should only be made where the Interests o f justice require "(emphasis added) Trial de novo means a new trial on the entire case, comprising both on questions of facts and issues of law as if there had been no trial in the first place. Usually, the order for retrial will not be issued where it is likely to cause injustice to the accused person. 9

In the instant appeal, we go along with M r. Mlagala that to order trial is likely to cause injustice to the appellant. Consequently, we decline to order retrial. Since we have already nullified the whole proceedings and judgments of the lower courts, we order that the appellant be released from prison, unless held for other lawful cause. DATED at DODOMA this 6th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P . F . KIHWELO JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 7th day of October, 2025 in the presence of the appellant, in person /unrepresented, Ms. Rose Ishabakaki, learned State Attorney, for the Respondent / Republic, via virtual Court and John/Christina, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10