Issa Salum Makale vs Republic (Criminal Appeal No. 789 of 2023) [2025] TZCA 1047 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE. J.A., MASOUP, 3.A, And ISMAIL, J.A.) CRIMINAL APPEAL NO. 789 OF 2023 ISSA SALUM MAKALE.....................................................................APPELLANT VERSUS THE REPUBLIC ......... ................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Madeha, J.) dated the 29th day of August, 2023 in DC. Criminal Appeal No. 25 of 2023 JUDGMENT OF THE COURT 30th September & 06th October, 2025 MKUYE, J.A,: The appellant, Issa Salum Makale along with two co-accused persons, Mohamed Rashid Said and Ally Mohamed Majalali, who are not subject to this appeal, were charged with unlawful possession of government trophy contrary to section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act, No. 5 of 2009 as amended read together with paragraph 14 of the First

Scheduled to, and sections 57 (1) and 60 of the Economic and Organized Crimes Control Act, Cap 200 R.E. 2019. It was alleged in the particulars of the offence that, the said appellant together with the two co-accused were, on 27th day of May 2022 at Mbesa Village within Tunduma District in Ruvuma Region, found in unlawful possession of Government Trophy; to wit thirteen pieces of elephant tusks with 35:25 Kilograms valued at USD 45,000 equal to Tanzanian Shillings one hundred and four million forty one thousand three hundred and fifty 104,041,350/=, the property of the Government of Tanzania without a permit from the Director of Wildlife. The appellant and his co-accused persons denied the charge prompting the prosecution to marshal seven witnesses and producing seven exhibits while the appellant and his co-accused persons fended themselves without calling other witnesses or tendering any exhibit. Upon a full trial, the trial court acquitted the co-accused persons due to insufficient evidence linking them in the possession of the alleged Government trophy. On the other hand, it was satisfied that the prosecution proved beyond reasonable doubt that the appellant herein had committed

the offence he was charged with and convicted and sentenced him to thirty years imprisonment. Aggrieved, he preferred his appeal to the High Court of Tanzania at Songea (first appellate court) against the conviction and sentence which was partly allowed in the sense that it upheld the conviction but reduced the sentence to twenty years imprisonment instead of thirty years imprisonment imposed on the appellant by the trial court. Still discontented, the appellant has appealed to this Court on four grounds of appeal which for a reason to become apparent shortly, we shall not reproduce them. When the appeal was called on for hearing, the appellant appeared in person without any representation and he prayed to adopt his grounds of appeal and let the respondent respond first while reserving his liberty to rejoin later, if need would arise. On the other hand, the respondent Republic had the services of Ms. Mwajabu Tengeneza, learned Principal State Attorney teaming up with Messrs. Frank Chonja and Issa Issa Chiputula, both learned State Attorneys.

On set, Ms. Tengeneza intimated to the Court that there was a defect which they detected when preparing for the hearing of this appeal. She contended that the appellant was charged with an offence of being found in unlawful possession of government trophy 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 to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, 200 R.E. 2019. However, she said, the certificate conferring jurisdiction on a subordinate court found at page 3 of the record of appeal shows that it transferred the case against the appellant and the co-accused for contravening the provisions of section 86 (1) and (2) (b) of the Wildlife Conservation Act [Cap 283 R.E. 2022] read together with paragraph 14 of the First Schedule to, and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2022 to be tried by the District Court of Tunduma District at Tunduma. She added that, even in the consent of the Regional Prosecutions Officer found at page 4 of the record of appeal, it consented for the prosecution of the above mentioned accused persons for contravening the provisions of section 86 (1) and (2) (b) of the Wildlife Conservation Act as shown above in the transfer order.

It was her argument that the provisions mentioned in the certificate conferring jurisdiction on the subordinate court and consent are at variance with the provisions mentioned in the charge sheet. In effect, she argued, the accused persons were charged and tried with the offence which had neither the consent nor the certificate of transfer of the case to be tried in that district court. She added that, unfortunately even the trial court as shown at page 69 of the record of appeal convicted the appellant for the offence predicated under section 86 (1) and (2) (c) (i) of the Wildlife Conservation Act. Yet, the High Court purportedly upheld the conviction but, on the offence, predicated under the provisions of section 86 (2) (c) (iii) of Wildlife Conservation Act which are different from the charging sections. To show that that was not proper, she referred us to the case of Peter Kongori Maliwa v. Republic, [2023] TZCA 17350, in which the Court when faced a similar scenario nullified the proceedings and decisions of the trial court and first appellate court for the reason that the certificate conferring jurisdiction to the trial court and the consent of the State Attorney in charge did not cite the provisions of the law creating the respective economic offences.

On the basis of the above cited authority, Ms. Tengeneza urged the Court to nullify the proceedings and judgments of both lower courts as the appellant and his co-accused were tried without a consent or certificate conferring jurisdiction to the trial court. As to the way forward, Ms. Tengeneza argued that, ordering for a retrial is not the best option in this case because; one, there is a variance between the charge sheet and evidence of PW2 as to the place where the offence was committed as between Mbesa village (charge sheet) or Chikomo village as was testified by PW2, an independent witness which evidence corroborated the appellant's version that he was at Chikomo village heading to Nakisi village. This contradiction, she said, raises doubt and renders PW2's evidence unreliable and hence the charge was not proved. Two, the trial magistrate had doubts on the evidence of PW2, independent witness, as he was called to witness search after the appellant had already been arrested and PW2 was in a team of officers who searched him and yet the trial court used his (PW2's) evidence to convict the appellant. In this regard, the learned Principal State Attorney implored to the Court resolve the doubts in favour of the appellant.

On his part, in rejoinder, the appellant joined hands with the Principal State Attorney's submission and urged the Court to allow the appeal and set him free. The issue for this Court's determination is whether the appellant was tried and convicted by the court without having jurisdiction to do so. As alluded to earlier on, the appellant and his two co-accused persons were charged with unlawful possession of government trophy contrary to section 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) of the Economic and Organized Crimes Control Act. Essentially, this is an economic offence which, according to section 3 (3) of the Economic and Organized Crimes Act, is triable by the Corruption and Economic Crimes Division of the High Court. However, even if they are triable by the High Court, in terms of section 12 (3) of the Economic and Organized Crimes Control Act, such offences can be dealt with by subordinate courts where the Director of Public Prosecutions or any State Attorney duly authorized by him, by certificate, directs that such offences be tried by subordinate court. Apart from that, for a trial of any such offence to be carried out at the High Court or subordinate court, there must be a consent from the Director

of Public Prosecutions or authorized State Attorney issued under section 26 (1) or (2) of the Economic and Organized Crimes Control Act. In issuing the consent and the certificate conferring jurisdiction upon the subordinate court it presupposes that such consent or and certificate will reflect the proper or correct provisions which create the economic offences concerned. In this case, as was rightly submitted by the learned Principal State Attorney, the certificate conferring jurisdiction upon the trial court as well as the consent of the Regional Prosecutions Officer did not mention the correct provisions of the law reflecting the required economic offence as per the charge sheet. As was alluded to earlier on, according to the charge sheet, the offence to which the appellant and his co-accused persons were charged was predicated on among the provisions section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act. However, both the certificate conferring jurisdiction on the trial court and the consent made under sections 12 (3) and 26 (2) of the Economic and Organized Crimes Control Act, respectively, cited among other provisions, section 86 (1) and (2) (b) of the Wild Conservation Act instead of the provisions to which the appellant was charged with, that is section 86 (1) and (2) (c) (ii) of the Wild Conservation Act as cited in the charge sheet.

There is no doubt that both the certificate and consent were defective. In effect, this vitiated the entire proceedings since the trial court conducted the trial without the requisite jurisdiction. In the same token, even the proceedings of the first appellate court together with the resultant decision were vitiated. In the case of Peter Kongori Maliwa (supra) that was cited by Ms. Tengeneza, the Court while referring to the case of Dilipkumar Magambai Patel v. Republic, [2022] TZCA 477 well-articulated the consequences of failure to cite proper provisions of the law in the consent or certificate conferring jurisdiction on the trial court as hereunder: 'We have no doubt that in view of our deiiberations above, the consent and certificate conferring jurisdiction on the triai court were defective, though they were made under the appropriate provisions; sections 12 (3) and 26 (1) of the Economic and Organized Crimes Control Act but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to section 86 (1), 2 (ii) and (3) of the Wild Conservation Act which was clearly cited in the charge sheet The certificate and consent were therefore incurably defective and the trial magistrate could not cure the 9

anomaly in the judgment as suggested by the learned State Attorney for the respondent. The defects rendered the consent of the Director of Public Prosecutions and the certificate transferring the economic offence to be tried by the trial court invalid. For that reason , we are constrained to find that the trial and proceedings before the Resident Magistrate's Court of Dar es Salaam at Kisutu in Economic Case No. 146 of 2018 were nothing but a nullity." In view of the above cited authority, we are in agreement with the learned Principal State Attorney that the proceedings of the trial court as well as the first appellate court were a nullity as they were backed up by the consent and certificate marred with irregularities. Thus, we invoke our revisional powers bestowed on us under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 to nullify the proceedings of the trial court, quash the conviction and set aside the sentence that was imposed on the appellant. Likewise, we nullify the proceedings of the first appellate court and quash the resultant judgment and set aside the orders thereof. As regards the way forward, we agree with Ms. Tengeneza that ordering a retrial will not be the best option or rather will not serve the

interest of justice on account of discrepancies in the prosecution evidence which if allowed may enable the prosecution to fill up gaps contrary to the principle/guidance propounded in the case of Fateheli Manji Patel v. Republic [1966] E.A. 343. Such discrepancies include, one, variance between the charge and prosecution evidence regarding the place the offence was committed as between the charge sheet and PW2's evidence. Whereas the charge shows it was committed at Mbesa village, PW2 who was the purported independent witness said it was committed at Chikomo village. Apart from that the trial magistrate in his judgment seemed to discredit the evidence of PW2 for having been called to witness search after the appellant had been arrested and that he (PW2) was in a team that searched him and yet the same magistrate relied on the said witness's testimony to convict the appellant. For those reasons, we find that ordering a retrial will not serve the interest of justice.

Given the circumstances, we are constrained to resolve the doubts in favour of the appellant and consequently we order for his immediate released from custody unless held for some other lawful cause(s). It is so ordered. DATED at SONGEA this 06th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 06th day of October, 2025 in the presence of the Appellant in person, M r. Madundo Mhina and Ms. Agnes Simba, learned State Attorneys for the Respondent/Republic and Ms. Gloria Masige, Court Clerk, is herebv certified as a true co d v of the original.