anacecylia saidi shangari vs republic and 2 others 2023 tzhc 19102 14 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA CRIMINAL REVISION NO. 2 OF 2022 ANACECYLIA SAIDI SHANGARI APPLICANT VERSUS REPUBLIC 1st RESPONDENT MSAFIRI WAZIRI 2nd RESPONDENT JUSTIN RICHARD 3rd RESPONDENT RULING 22/05/2023 & 14/07/2023 BADE, J. This is a Ruling for an Application for Revision made by the Applicant. The Application required this Court to call and examine the record of Criminal Case No. 84 of 2021 which was before the District Court of Babati to investigate who is the real owner of Motor Vehicle No. T. 565 CEZ, to vacate the confiscation order in the said case and made any other orders which the court deems fit to grant. The Application was made by the Chamber Summons and supported by the affidavit sworn by the Applicant. In the affidavit, the applicant gave the background information which caused the application at hand and the grounds for the application. From the affidavit, the Applicant deposes to be the owner of the M/V with registration No. T 565 CEZ make Mitsubishi Fusso, which was forfeited by the Court in Criminal Case No. 84 of 2021. In the said case the 2nd and 3rd Respondents were arrested while transporting 44 illegal immigrants by using the mentioned motor vehicle. He alleged further that as the owner of the motor vehicle, he was not aware of the said illegal action of transporting illegal Immigrants. The forfeiture was based on the allegation that the Motor Vehicle was involved in the commission of the offence (transfer of illegal Immigrant). However, during the forfeiture exercise, he was not involved as the owner of the forfeited item, an act which is contrary to the requirement of the law. Neither was he notified by the Court to show cause why the order of forfeiture should not be issued against his motor vehicle. Therefore, as the vehicle was forfeited contrary to the law, she prayed the same to be returned to the applicant to serve justice. When the Application was called for hearing, the Applicant was represented by Mr. Mbaraka Katela, learned counsel whilst Mr. M.A Mbagwa, learned State Attorney represented the 1st Respondent, while the 2and 3 respondents never entered appearance despite being served through substituted service. The Application was argued by way of written submissions. In support of the Application, counsel for the Applicant contended that the confiscation order was made on 19/08/2022 and this Application was made two months after the order was made as per Section 351 (2) of the Criminal Procedure Act, Cap 20 R.E 2019, and that the owner of the confiscated motor vehicle was the Applicant herein (Anacecylia Saidi Shangari). The law under Section 16 (2) of the Criminal Procedure Act requires the court to satisfy itself if the applicant is not involved in the commission of the offence. The same is proved through Criminal Case No 84 of 2021 where the Applicant was not amongst the accused persons. The Applicant herein entered into an agreement with the 2nd Respondent to do transportation business by using her Motor Vehicle as evidenced by "Mkataba wa kukabidhiana gari" (Annexure C2). In further support of his argument, he cites the case of Novatus Anselimi Moshy vs The Republic, Criminal Appeal No. 31 of 2021 (HC- at Kigoma). It was his further submission that, the person who was supposed to notify him regarding the case (the 1st accused person/ 2nd Respondent herein) actually jumped bail, and therefore, he was not aware of the date the case was scheduled for Hearing as it proceeded ex-parte against the 1st /^Page*3 of 8 accused person. More to that, the Applicant acquired the said Motor Vehicle in 2016 while the commission of the offence was in 2021. Mr. Katela argued that the trial Magistrate ordered the property to be confiscated as government property contrary to Section 351 (1) and (4) of the Criminal Procedure Act while in actuality he lacks the power to do so. Thus, he prayed for this Court to revise the confiscation order as the same was done contrary to the law and the Applicant was just a bona fide third party who was not connected in any way with Criminal Case No. 84 of 2021. Opposing the Application, counsel for the 1st Respondent firstly, prayed for their counter affidavit to be part of the submission, and proceeded to submit to the effect that this Court has no jurisdiction to determine the Application before it as per Section 351 (2) of the Criminal Procedure Act, Cap 20 RE 2022. He explains further that as per the cited law, the Applicant was supposed to file an Application to the court which passed the confiscation order. He maintains further that, even Section 16 (2) and (6) of the Proceeds of Crimes Act, Cap 256, RE 2022 was improperly used by the counsel for the Applicant to move this Court. This is due to the fact that the said section has nothing to do with this kind of Application. If the Applicant could have decided to use the cited section, the same is not used by way of Revision as the same deal with crime acts proceeds by the Application made by the Director of Public Prosecution. Thus, this Application has no legal leg to stand. He argued further that as long as the motor vehicle was used in the commission of the offence, the fact that owner of the same not being one of the accused persons cannot be an excuse for the same not to be confiscated. Thus, the confiscation order by the trial court was properly made. He concludes his submission that basing on the factual and legal proposition made herein, he prayed for the Application to be dismissed. Having heard the rival submission both in support and against the Application, this court will now determine the merit of the Application. I propose to start with the argument raised by the counsel for the 1st Respondent that this court has no jurisdiction to entertain the matter as per Section 351 (1) and (2) of the Criminal Procedure Act, Cap 20 RE 2022. The stated section provides that: "1. Where a person is convicted of an offence and the court which passes sentence is satisfied that any property which was in his possession or under his control at the time of his apprehension- fa) has been used for the purpose of committing or facilitating the commission of any offence; or (b) was intended by him to be used for that purpose, that property shall be liable to forfeiture and confiscation and any property so forfeited under this section shall be disposed of as the court may direct. (2) Where the court orders the forfeiture or confiscation of any property as provided in subsection (1) of this section but does not make an order for its destruction or for its delivery to any person, the court may direct that the property shall be kept or sold and that the property or, if sold, the proceeds thereof shall be held as it directs until some person establishes to the court's satisfaction a right thereto; but if no person establishes such a right within six months from the date of forfeiture or confiscation, the property or the proceeds thereof shall be paid into and form part of the Consolidated Fund " (Emphasis is mine). Page 6 of 8 The cited provisions of the law, provide it clearly that a person who has a right with a confiscated property needs to establish his right on the same court that passes an order within six months from the date of the order. Therefore, without being detained for much, this court has no jurisdiction to entertain the matter at hand. In Japhet Evod Mapunda and 2 Others vs Lukresia Ciprian Mapunda, PC Criminal Appeal No. 02 of 2021, where this Court expounded the issue of jurisdiction. His Lordship Mlyambina, J. quoting from Osborn's Concise Law Dictionary, Eight Edition as edited by Leslie Rutherford and Sheila Bone, the word jurisdiction was defined as: "The power of the Court or judge to entertain an action, petition or other proceedings" Explaining further that jurisdiction is a fundamental issue in which the Court is vested with the power to entertain the matter at hand. In our laws, it is a cardinal rule that the jurisdiction is a creature of the statutes, and it cannot be ousted except by the express provision of the law. There is a plethora of decisions in which the Court of Appeal of Tanzania has so stated. See Republic vs Ahmad Ally Ruambo, Criminal Revision No. 03 of 2017, Court of Appeal of Tanzania (unreported); as well as Commissioner General Tanzania Revenue Authority vs African Page 7 of 8 Barrick Gold PLC, Civil Appeal No. 11 of 2020, (unreported) where the Court pronounced itself thus: "The jurisdiction of Courts or Tribunals is a creature of statutes, therefore, the question of jurisdiction is so fundamental and as a matter of practice at the commencement of the trial the Court or Tribunal must be certain of their jurisdictional position to determine whether they are vested with the requisite jurisdiction because it goes to the very root of the authority." For the foregoing reasons, this Court has no other option, but to dismiss the Application for want of jurisdiction. It is so ordered. Dated at Arusha this 14th day of July 2023 Z A. Z. Bade Judge 14/07/2023 Judgment delivered in the presence of parties / their representatives in chambers /virtually on the 14th day of July 2023. A. Z. Bade Judge 14/07/2023 'age 8 of8