The DPP vs ALLY JUMA ALLY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT DAR ES SALAAM ECONOMIC APPLICATION NO. 33328 OF 2024 (Arising from Economic Case No 56 of 2021 of the Resident Magistrate’s Court of Dar es Salaam at Kisutu) THE DIRECTOR OF PUBLIC PROSECUTIONS ……….…………………. APPLICANT VERSUS ALLY JUMA ALLY …………………………………….………………….. RESPONDENT RULING 4th and 4th December, 2024 KISANYA, J.: By way of chamber summons, this ex-parte application is made under section 38(1) of the Proceeds of Crime Act [Cap. 256, R.E. 2022] (POCA), wherein the applicant seeks the following orders: 1. A restraining order prohibiting the Respondent, his agent(s) or any person(s) acting on his behalf from disposing of or interfering with the properties listed hereunder: (a) A motor vehicle with registration number T. 627 DRE make Toyota Crown, the property of Ally Juma Ally. (b) A motor vehicle with registration No. T. 503 DHC Make Toyota Prado. 1 2. An order prohibiting the Commissioner General of Tanzania Revenue Authority, from effecting disposition or transfer of ownership of the Motor Vehicles described in Paragraph 1(a) and (b) above. 3. Any other order this Honorable Court may deem fit and just to grant. In support of the application is an affidavit sworn by Seleman Mbwambo, a Senior Investigator with the Drugs Control and Enforcement Authority (DCEA) in Dar es Salaam, providing the basis for the orders sought. From the affidavit, it is deduced that on 02/06/2021, the respondent, an employee of the Tanzania Revenue Authority, was on patrol in the Kawe area alongside other officers from the DCEA. During their patrol, they attempted to stop a motor vehicle, but the driver evaded them, speeding away. Subsequently, the respondent and his colleagues pursued the vehicle and managed to seize it after it was abandoned at Kimara Bucha area within the City and Region of Dar es Salaam. The vehicle, identified as registration T. 503 DHC, make Toyota Prado, was searched, and substances suspected to be narcotic drugs were found. 2 The affidavit further asserts that the narcotic drugs were later divided between the respondent and his colleague, and the respondent subsequently used his own vehicle, registration T. 627 DRE, make Toyota Crown, to traffic the narcotic drugs by selling them. He was arrested on 23/06/2021, and later charged before the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Economic Case No. 56 of 2021 for trafficking in narcotic drugs, a case that is still pending. Believing that the two vehicles are tainted properties, the Director of Public Prosecutions has filed this application seeking the restraining orders as indicated earlier. When the application came up for hearing today, the applicant was represented by Mr. Juma Mahona, Ms. Phoibe Magili and Ms. Glory Kilawe, learned State Attorneys. In his submission, Mr. Mahona adopted the supporting affidavit and reiterated the facts deposed therein as part of his submission. He urged the Court to grant the application, contending that the vehicles subject to this application are instrumentalities of crime and, therefore, tainted properties within the meaning of section 3 of the POCA. It was his further 3 argument that the application complies with the requirements under section 38(3) of the POCA and aligns with the principles established in the case of DPP vs. Julius Mahangaiko Chasama, Economic Application No. 24326 of 2024 (unreported). In wrapping up, the learned State Attorney implored the Court to grant the orders as sought in the application. In determining the merits of this application, I have carefully examined the chamber summons, the affidavit in support, the appended documents, and the submissions made by the learned State Attorney. At the outset, Section 38(1) of the POCA authorizes the Director of Public Prosecutions to apply ex-parte for a restraining order on property linked to persons being investigated, charged, or convicted of serious offences. Section 3 of the POCA, on the other hand, provides that a 'serious offence' includes, offences punishable by death, imprisonment for a term of twelve months or more, and offences involving property usage, proceeds generation, or benefit derivation. The supporting affidavit indicates that the respondent and his colleague have been charged in Economic Case No. 56 of 2021 before the 4 Resident Magistrate of Dar es Salaam at Kisutu for trafficking in narcotic drugs. Trafficking in narcotic drugs is considered a serious offence, as section 15(1) and (3)(i) of the DCEA, read together with Paragraph 23 of the First Schedule and Sections 57(1) and 60(2) of the Economic and Organised Crime Control Act, [Cap. 200 R.E. 2022] (EOCCA), stipulate that its punishment is life imprisonment. As Mr. Mahona rightly pointed out, Section 39(3) of the POCA applies since the respondent has not been convicted. It enables the Court to grant a restraining order upon being satisfied that reasonable grounds exist to believe the respondent committed the offence; and that, the property is tainted or that the respondent has derived a benefit from the offence. Addressing the first condition for a restraining order, the supporting affidavit outlines that a search of the respondent's vehicle, T. 627 DRE, make Toyota Crown, resulted in the seizure of narcotic drugs. The affidavit further implies that the narcotic drugs seized from the respondent’s vehicle were part of his share from narcotic drugs originally found in the vehicle with registration T. 503 DHC, make Toyota Prado. In my considered opinion, this fact establishes a reasonable foundation for the Court to 5 believe that an offence of trafficking in narcotic drugs has been committed, thereby satisfying the first condition for granting the restraining order. In relation to the second condition, paragraphs 6 and 16 of the supporting affidavit provide evidence that the vehicles with registrations number T. 503 DHC Make Toyota Prado and T. 627 DRE, make Toyota Crown were instrumental in or connected to the offence of trafficking in narcotic drugs. As a result, both vehicles fall within the scope of tainted properties as defined by section 3 of the POCA. Based on the above, I am satisfied that the application meets the necessary legal criteria and, therefore, grant the restraining orders sought as follows: 1. The Respondent, his agent(s) or any person(s) acting on his behalf is hereby prohibited from disposing of or interfering with the following properties: (c) A motor vehicle with registration number T. 627 DRE make Toyota Crown, the property of Ally Juma Ally. (d) A motor vehicle with registration No. T. 503 DHC Make Toyota Prado. 6 2. The Commissioner General of Tanzania Revenue Authority is prohibited from effecting disposition or transfer of ownership of the Motor Vehicles described in Paragraph 1(a) and (b) above. DATED at DAR ES SALAAM this 4th day of December, 2024. S.E. KISANYA JUDGE Ruling delivered this 4th day December, 2024 in the presence of Ms. Phoibe Magili, learned State Attorney for the Applicant and Ms. Angel Abasy, RMA, and in the absence of the respondent. . S.E. KISANYA JUDGE 04/12/2024 7