RAMADHAN BAKARI MGONJA AND ANOTHER VS REPUBLIC AND OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 11851 OF 2024 (C/F Miscellaneous Criminal Case No. 13 of 2023 of the District Court of Same at Same, originating from Criminal Case No. 84 of 2023 of Same District Court) RAMADHANI BAKARI MGONJA ........................... 1ST APPELLANT MLAVI BAKARI MFANGA ..................................... 2ND APPELLANT VERSUS THE REPUBLIC ...................................................1ST RESPONDENT ELIA LEMSUMBA .............................................. 2ND RESPONDENT MOONO MADAME @NATETWA ......................... 3RD RESPONDENT MATHIAS LAURENT CHUWA OF Kilicraals Adventure and Safaris Auctioneers ................... 4TH RESPONDENT JUDGMENT 07/10/2024 & 25/10/2024 SIMFUKWE, J. Before the District Court of Same at Same, the 2nd and 3rd respondents were charged and convicted of five offences to wit: 1 1st Count: Unlawful entry into a forest reserve, contrary to sections 84(1)(a) and 84(5) of the Forest Act No. 14 of 2002. 2nd Count: Unlawful introduction of domestic animals, to wit, two hundred thirty-five (235) heads of cattle, into the forest reserve, contrary to sections 26(n), 84(3), and 84(5) of the Forest Act read together with section 351(1)(a)(b) of the Criminal Procedure Act, [Cap. 20 R.E. 2022]. Third count: Unlawful destruction of forest vegetation, contrary to sections 26(i) and 84(5) of the Forest Act. Fourth count: Unlawful disturbance of the habitat and components of biological diversity, contrary to sections 188(c), 66, 67, 68, and 193(1)(a), (b), (2), (4), and (5) of the Environmental Management Act No. 20 of 2004. Fifth count: Unlawful erection of building structures within the forest reserve, contrary to sections 26(i) and 84(5) of the Forest Act (supra). 2 The offences were alleged to had been committed on 26th day of April 2023 in Chambogo Forest Reserve within Same district in Kilimanjaro Region. After full trial the trial court convicted the 2nd and 3rd respondents and forfeited to the government 235 heads of cattle. Aggrieved with the forfeiture order, the appellants herein moved the trial court under section 351(2) of the Criminal Procedure Act (supra) praying for the following orders: a) That the trial court be pleased to set aside the execution of the confiscation order of 235 herds of cattle made on 08/05/2023; b) That the trial court make a finding that the property subject to confiscation was not the property of the respondents, but rather the property of the appellants; c) That the court grant the appellants the right to be heard; d) Any other relief(s) as the court may deem fit and just to grant. 3 After a full hearing, the trial court dismissed the application for lack of merit. Aggrieved by the decision, the appellants appealed to this court on the following grounds: 1. That the trial court Magistrate erred in both law and facts by held (sic) that the appellants right to be heard was fully exercised according to art 13 (6) (a). 2. That the trial court Magistrate erred in both law and facts by held through merely words that the appellants are not the right owner of the said 235 cattle hence the forfeited order was correct even the evidence was strong enough to prove on standard that are required by law. (sic) 3. That the trial court magistrate erred in both law and fact by misdirect herself on principle regard the tendering of secondary evidence during the hearing of the case. (sic) 4. That the trial Court Magistrate erred in both law and fact by hold that the forfeited order was correct and was executed according to the meaning of section 351 (1) and (2). 4 When the appeal was called for hearing, the appellants were represented by the learned counsels Mr. Innocent Msacky and Mr. Julius Sabuni. The 1st respondent was represented by Mr. Frank Daudi Wambura, learned State Attorney, while the 2nd and 3rd respondents appeared in person, unrepresented. Mr. Mathias Chuwa, a Court Broker, appeared for the 4th respondent. The appeal proceeded viva voce. Mr. Msacky was the first to present his arguments. At the outset, he prayed to adopt the grounds of appeal to form part of their submission. Beginning with the first ground of appeal, the learned counsel cited Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time, which provides that: “13(6) (a) When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned." The learned counsel submitted that the quoted article was discussed in the case of Mbeya – Rukwa Auto- parts and Transport Limited vs 5 Jestina George Mwakyoma [2003] TLR 251 in which the Court of Appeal held that: “It is a cardinal principle of natural justice that a person should not be condemned unheard but fair procedure demands that both sides should be heard: Audi alteram partem.” Further, he referred the case of Miza Bakari Haji and 9 others v. Registered Trustees of Civic United Front (CUF) and 14 others, Civil Case No. 143 of 2022, High Court, Dsm, at page 25 which insisted the rule explained in Halsbury Laws of England, 5th Edition, Vol. 61 at page 545 paragraph 640, that: “The Audi alteram partem rule requires that those who are likely to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet. Similar notice ought to be given of a change in the original date and time, or of an adjourned hearing...” 6 Having established the above position of the law, Mr. Msacky submitted that the instant appeal emanates from Misc. Criminal Application No. 13 of 2023, originally Criminal Case No. 84 of 2023. In the said application, one of the prayers was to be accorded the right to be heard. He explained that, upon reading pages 10 and 11 of the decision of the trial court, it was evident that the appellants were completely denied the right to be heard, contrary to Article 13(6)(a) of the Constitution (supra). Mr. Msacky invited the court to make reference to the case of Miza Bakari (supra) on pages 32 and 33, where the Court referred the case of Onyango Oluo v. A.G [1986-1989] EA 456 and held that: “The right to be heard is basic and any decision that will violate that right will be nullified.” The learned counsel prayed the first ground of appeal be allowed so that the appellants may adduce evidence in Criminal Case No. 84 of 2024. Supporting the second ground of appeal in respect of ownership and that the forfeiture order was not correct; Mr. Msacky referred the case of Dodo Takwai v. Republic, Criminal Appeal No. 20 of 2021 (HC), in which at pages 8, 9, and 10, the court stated that the question of ownership must 7 be established in order to prove the case on the standard required by the law, particularly in cases concerning destruction. In the present matter, the learned counsel asserted that pages 7, 8, and 15 of the court proceedings, along with pages 3 and 7 of the judgment, provide proof that the appellants are the rightful owners of approximately 235 cattle, which were inherited from their grandfather. It was noted that the second and third respondents said that they were just shepherds. The learned counsel continued to submit that at page 8, the trial magistrate denied the appellants the right of ownership on pretext that they had not provided any document of probate as proof that the heads of cattle were inherited from their father. Another issue raised by Mr. Msacky was that the court maliciously deprived the appellants of ownership of the heads of cattle. He contended that the court should have considered why the application was made by the appellants only and decided to the contrary. Moreover, the learned counsel argued that the forfeiture was incorrect because the law applied was improper. He asserted that the relevant law was section 193(1) of the Environmental Management Act No. 20 8 of 2004. Instead, the Court relied only on section 351(1) of the Criminal Procedure Act. He supported his position with the case of DPP v. Kishinadiri Degeshi and 2 Others, Criminal Appeal No. 339 of 2018 which stated that where there is a specific provision, such specific law shall prevail. He pointed out that in Misc. Criminal Application, the forfeiture was done under irrelevant law. He prayed for the court to allow the second ground of appeal Mr. Sabuni submitted on the remaining two grounds of appeal. In respect of the fourth ground which concerns forfeiture order, Mr. Sabuni explained that in Misc. Criminal Application No. 13 of 2023, the appellants prayed to set aside the forfeiture order. However, the court declined to issue that order. He was of the view that the forfeiture order was unlawful on the following reasons: First, the trial court erred by saying that it could not lift the forfeiture order. That, right to be heard in the said order was not accorded to the appellants. The learned counsel cited the case of DPP v. Kilo Kidang’ai and 2 Others, Criminal Appeal No. 340 of 2018 [CAT] and the case of Amani Bulemi Mafuru vs Republic, Daniel Gabi and 43 Others, Criminal Appeal No. 52 of 2022 (HC). He argued that in the trial court’s record, it is not indicated 9 that the second and third respondents were asked who was the lawful owner of the heads of cattle. Second, that the preferred provisions did not require ownership of the cattle. He quoted section 351(2) of the Criminal Procedure Act, which provides that: “351 (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.” He further supported the arguments regarding the right to be heard before issuing the forfeiture order with the cases of Michael R. Kabongo v. R [1989] TLR 81 and Ramadhani Salum Mtei v. R [1989] TLR 223. He criticized the trial court for failing to see that the issue of 10 ownership of the heads of cattle was presumed that since the second and third respondents did not mention that the heads of cattle were not owned by them, it follows that the cattle were owned by the appellants. Mr. Sabuni invoked section 351 of the Criminal Procedure Act (supra) which stipulates that, where heads of cattle have been sold, the proceeds of such sale shall be kept for six months or until the actual owners appear and prove ownership. Upon such proof, the proceeds of sale will be directed to the legitimate owners. In the case at hand, Mr. Sabuni contended that the presiding magistrate erroneously directed that the proceeds of sale be deposited into the account of the Director of Public Prosecutions (DPP) for Chambogo Forest Reserve. He argued that the trial court should have set aside the forfeiture order. The learned counsel also faulted the forfeiture process, suggesting that the same should have been done either after six months or after the owners had appeared to prove their ownership. The same can be done in respect of perishable goods. He pointed out that in this case, the decision was delivered on 08/05/2023. The sale of the heads of cattle was done two days later, on 10/05/2023. It is on record that the proceeds of sale 11 were deposited into the Consolidated Fund on the same day, which was contrary to the order of the court. Moreover, the learned advocate claimed that the process failed to allow time for the rightful owners to appear and prove ownership, which contravened the decision of the Court of Appeal in Kidikilo (supra). Mr. Sabuni submitted further that the forfeiture order must comply with the procedural safeguards outlined in the subsections of section 351 of the Criminal Procedure Act. He asserted that, as shown at page 19 of the judgment of the District Court, the forfeiture process in this case did not conform to statutory law. In addition, Mr. Sabuni stated that there is no evidence on record to prove that the auction was conducted, let alone any transparency regarding the auction process. He continued to submit that the appellants made follow up to the District Commissioner, who informed them that no auction had taken place. Thus, the forfeiture order was affected by the flawed auction process. Furthermore, Mr. Sabuni argued that the appointment of the 4th respondent did not comply with the Auctioneers Act, Cap 227. He noted that there was no publication pursuant to sections 14, 15, 16, and 17 12 of the Act, no notices were issued to the owners, and no transparency was shown in respect of where and how the auction was conducted. Another issue raised by Mr. Sabuni was lack of evidence regarding the auction sale price. He explained that the State Attorney had submitted before the trial court that the livestock were auctioned for TZS 94,000,000/=. However, no receipt was tendered to support the allegation. Moreover, there was no report from the 4th respondent indicating that the livestock were sold for TZS 94,000,000/= or any other amount, nor any evidence of the payment made to the 4th respondent for conducting the auction. The learned counsel emphasized that the trial court should have identified the anomalies and set aside the forfeiture order accordingly. Addressing the third ground of appeal, Mr. Sabuni argued that the trial court erred in finding that the appellants made a mistake in tendering secondary evidence. He asserted that in miscellaneous applications, evidence is primarily based on affidavits from the parties or their advocates. There is no requirement for witnesses to testify or tender exhibits. He further argued that if the court had desired the village 13 chairperson to appear and tender the original introductory letter, it should have expressly ordered so. Mr. Sabuni continued to justify that it was impossible for the advocate defending the case or the applicants to tender evidence that was not prepared by them. Particularly, when they did not possess the original documents. He stressed that the same is the proper procedure under the law. Based on the above submissions, Mr. Sabuni prayed that this appeal be allowed with costs. In reply, Mr. Wambura opposed the appeal and, at the outset, prayed for the dismissal of the four grounds of appeal. Regarding the first ground of appeal, which involved the alleged curtailment of the right to be heard, Mr. Wambura submitted that in Misc. Criminal Application No. 13 of 2023, both appellants were afforded their right to be heard. He referred to page 9 of the trial court's proceedings, where the learned counsel for the appellants adduced reasons praying that the livestock be restored to the appellants. 14 The learned State Attorney acknowledged the well-established legal principle that the right to be heard is mandatory in the criminal justice system, as affirmed in DPP v. Jane Charles, Criminal Appeal No. 380 of 2019 (CAT). He argued that the honourable trial magistrate had indeed ensured that the appellants were accorded their right to be heard. Therefore, the appellants' assertion that they were denied right to be heard was incorrect. Mr. Wambura prayed that the first ground of appeal be dismissed for lack of merit. In response to the fourth ground of appeal, which challenged the forfeiture order, Mr. Wambura submitted that the order was valid and complied with all the principles outlined in section 351(1), (2), (3), and (4) of the Criminal Procedure Act (supra). He emphasized that subsection (4) of the said section provides exceptions in which the court may order forfeiture without adhering to subsections (1) to (3) of the Act. In this instance, the learned State Attorney was of the view that six- months waiting period was not required. In reply to the appellants' argument that the auction did not comply with section 14 of the Auctioneers Act (supra); the learned State Attorney contended that the notice requirement applies only in ex-parte 15 applications. He argued that the second and third respondents did not object to the forfeiture order, thereby implying their acceptance of the actions taken. As such, Mr. Wambura submitted that the fourth ground of appeal was without merit. Opposing the third ground of appeal, in which the appellants challenged the trial court’s handling of secondary evidence, Mr. Wambura argued that the trial magistrate did not err in disregarding secondary evidence. He explained that the law prescribes clear rules for the admissibility of such evidence, as set out in sections 65, 67, and 68 of the Evidence Act. According to these provisions, tendering of secondary evidence in this case was improper. Specifically, section 68 of the Act, which deals with the "rules as to notice to produce," provides that if a party intends to rely on secondary evidence, he must issue notice both to the court and the adverse party. Mr. Wambura emphasized that this requirement was not met during the hearing. Regarding failure to comply with the statutory requirement of issuing notice, Mr. Wambura submitted that the trial magistrate was correct in disregarding the secondary evidence, as the court cannot rely on an 16 exhibit that has not been properly proven. He concluded that the third ground of appeal lacked merit and should therefore be dismissed. On the second ground of appeal, which concerns ownership of the disputed heads of cattle, Mr. Wambura submitted that Section 351(1) (5) of the Criminal Procedure Act (supra) does not prescribe verification of ownership in cases where the property has been involved in the commission of a crime. He argued that the law provides that such property is subject to forfeiture, irrespective of ownership. Thus, the question of ownership is irrelevant where the property has been linked to a criminal act. In response to the appellants' claim that the forfeited cattle had been acquired through probate, Mr. Wambura contended that if this was true, probate forms should have been presented as evidence to substantiate the claim of inheritance. In the absence of such documentation, the learned State Attorney considered the assertion as speculative and unsupported by evidence. He further cited section 110(1) of the Evidence Act, which casts the burden of proof on the party making the allegation. Thus, if the appellants claimed to be the rightful owners of the cattle, they bore the legal responsibility to prove ownership. Mr. Wambura 17 cited the case of Ziad Mohamed Rasool General Trading Co. L.L.C vs Janet Joachim Mushi, Civil Case No. 21 of 2020 (HC), to illustrate the principle that the party who asserts ownership must provide evidence. He explained that the appellants failed to discharge this burden, and as such, the trial court was correct in disregarding their prayer. Replying the argument that the appellants should have been charged under the Environmental Management Act, Mr. Wambura argued that section 193 of the Act stipulates that for charges to be brought under the Act, the same must be in accordance with both the Act and its regulations. He contended that this requirement was not applicable to the appellants’ case. Based on the aforementioned submission, Mr. Wambura concluded that all the grounds of appeal are devoid of merit. He therefore prayed that the appeal be dismissed in its entirety and that the decision of Same District Court be upheld. The second respondent submitted that he was a shepherd of the second appellant. He elaborated that together with the third respondent they were arrested along with the heads of cattle, but at no point they were asked to disclose the owner of the cattle. He explained that they were 18 taken to the police station without any inquiry regarding the ownership of the cattle. Subsequently, he was convicted and sentenced to ten years’ imprisonment. He stated that after his conviction, he was not aware of what transpired or where the cattle were taken. The third respondent, briefly submitted that he was employed by Ramadhani, the first appellant. He clarified that he was the one who was arrested within the National Park and punished without being inquired about the owner of the heads of cattle. For the fourth respondent, Mr. Mathias Chuwa, a Court Broker informed the court that on 9th May 2023, he received a court order from Same District Court requiring him to expeditiously auction 235 heads of cattle. He explained that they complied with all necessary procedures for conducting the auction, including posting announcements in various locations within Same District and on the court’s notice boards. In addition, he made public announcements using a motor vehicle. Given that the auction was to be conducted under a certificate of urgency, it took place on 10th May 2023. He asserted that, individuals from different districts in the region attended the auction, which was conducted publicly 19 and resulted in the successful sale of the heads of cattle for TZS 95,000,000/=. Furthermore, Mr. Chuwa informed the court that due to the fact that the auction was concluded at late hours, the proceeds of the auction were deposited at the Prosecution Office. He reported the results of the auction to the court on 11th May 2023. He refuted the claims that the auction was not public, stating that it was attended by many people from different places. In rejoinder, Mr. Msacky reiterated his submission in chief. Regarding the issue of the right to be heard, he insisted that the appellants were not afforded a proper opportunity to be heard. He referred to the case of DPP vs Jane Charles (supra), specifically pages 10 and 11, where the High Court emphasized that, in order to ensure the right to be heard is fully exercised, there must be a free and fair trial. He maintained that the appellants were denied their right to be heard, as enshrined under Article 13(6)(a) of the Constitution. On the issue of forfeiture order, Mr. Msacky reiterated his submission in chief and added that the accused persons were charged under the provisions of sections 188(c), 66, 67, 68, 193(1)(a)(b), (2), (4), 20 and (5) of the of the Environmental Management Act No. 20 of 2004. Given the nature of the offence, which was directly related to environmental law, the forfeiture order violated the principles of the law. He argued further that subsection (4) of Section 351 of the Criminal Procedure Act (supra) was not cited by the prosecution in the charge sheet. Mr. Msacky cited the case of DPP v. Kishinadiri Degeshi (supra) and noted that at page 20, the Court held that a forfeiture order is not automatic under subsection (4). He explained that even where the court exercises its discretion to order the sale of property, the proceeds must be deposited in a designated account until the expiry of six-months period, during which appeals or claims of ownership may be made. The learned counsel pointed out that the appellants had filed an application to notify the court that they were the rightful owners of the heads of cattle. However, the proceeds of sale were deposited into a different account, not the one directed by the court. Furthermore, during the hearing of the application, the whereabout of the fund was not disclosed. That, to date, there has been no evidence presented to prove that the auction actually took place. Since the six-months period has elapsed, Mr. Msacky argued that the proceeds should have been deposited into the Consolidated Fund to be used for repairing the 21 environmental damage caused by the cattle. He commented that, the forfeiture order did not comply with the required legal procedures. He prayed that the appeal be allowed. On the issue of secondary evidence, the learned counsel reiterated that the trial court misdirected itself by prematurely requiring a notice to produce during the hearing. Rejoining on the issue of inheritance of the cattle, Mr. Msacky submitted that there was no need to tender documentary evidence, as inheritance is not always documented. He contended that the court’s requirement for the appellants to produce an original introductory letter and letters of administration deprived them of their lawful ownership. In his rejoinder, Mr. Sabuni, while addressing the issue of forfeiture, conceded that the law provides for forfeiture regardless of ownership. However, he was of the opinion that the same law affords an opportunity to prove ownership after the forfeiture order, as provided under subsection (4). He added that this does not negate the requirement to wait for six months following the forfeiture, or for owners to come forward and establish ownership. This applies both to livestock and perishable goods. 22 Concerning the forfeiture order, without prejudice to the submissions made by the learned State Attorney, Mr. Sabuni contended that other procedures outlined under Section 351(2) must also be followed. In response to the submission made by the fourth respondent, Mr. Sabuni argued that the respondent had not indicated the place where the auction was conducted. He explained that specific details such as the location of the auction, the time it commenced, and when it was concluded were not provided. He insisted that the forfeiture procedures were not followed. As such, he prayed that the appeal be allowed. In considering the submissions made for and against this appeal, the main issue for determination is whether the appeal has merit. On the first ground of appeal, Mr. Msacky contended that one of the prayers made in Misc. Criminal Application No. 13 of 2023 was the right to be heard, which he averred that was denied at pages 10 and 11 of the trial court's decision. On the other hand, Mr. Wambura submitted that the appellants were, in fact, accorded the right to be heard. He asserted that in Misc. Criminal Application No. 13 of 2023, the appellants were given an opportunity to be heard. He referred to page 9 of the trial court's proceedings, where the learned counsel for the appellants presented 23 reasons for seeking the restoration of the forfeited livestock to the appellants. Upon careful examination of the entire record, I wish to outline briefly the process of forfeiture from its initial stage to conclusion, as well as the right of claiming ownership of the forfeited property. The forfeiture process begins with the conviction of the accused person. Once convicted, the court may forfeit any property involved in the criminal act, pursuant to section 351(1) of the Criminal Procedure Act. After the confiscation, the court must direct that the confiscated property either be kept or sold, as the court directs until someone establishes, to the court’s satisfaction, a right of ownership and show cause why forfeiture order should not be sustained. The limitation period for establishing ownership is six months. The same was also observed in the case of Republic v. Juma Seleman & Another (HC) Criminal Revision (1976) LRT at page 74 of 149 where it was held that: “To order forfeiture of the property used in commission of an offence it is necessary for the Court to establish first 24 whether the accused is the owner of the property concerned and second to provide the owner with an opportunity to show cause as to why forfeiture should not be ordered.” Emphasis added In this case, the appellants exercised their right to institute an application for establishing ownership of the confiscated cattle within the prescribed period of six months. The application was registered as Misc. Criminal Application No. 13 of 2023. It was heard inter partes. The appellants were afforded the right to be heard during the proceedings. Therefore, the argument that the appellants were denied the right to be heard in relation to establishing ownership of the cattle is frivolous. Consequently, the first ground of appeal is dismissed for lack of merit. The next issue for determination is whether the appellants sufficiently proved their right to ownership of the confiscated cattle. This issue pertains directly to the second and third grounds of appeal, where the appellants challenged the trial court's decision that they were not the rightful owners of the confiscated cattle. The learned Counsel for the appellants, Mr. Msacky, argued that they had presented sufficient evidence to substantiate their claim to ownership. He contended that the 25 appellants had inherited the cattle from their grandfather, with the 2nd and 3rd respondents as shepherds. In advancing the third ground of appeal, Mr. Msacky submitted that the trial magistrate erred in her application of the law regarding the admissibility of secondary evidence during the hearing when arguing that the appellants were denied the opportunity to present witness testimony and exhibits. Mr. Wambura, for the 1st respondent, opposed the averment. He argued that tendering of secondary evidence was contrary to sections 65, 67, and 68 of the Evidence Act (supra). Regarding ownership, Mr. Wambura argued further that the inheritance claim remained unsubstantiated, as no probate proof of inheritance had been produced to confirm the appellants' acquisition of the cattle through inheritance. Upon scrutiny of the lower court's records, it has been noted that in their joint affidavit, the appellants did not annex anything to prove ownership of the disputed cattle until in their joint rejoinder to the respondents' counter-affidavit. At paragraph 3 of their rejoinder, the appellants attached a letter from the Village Chairman, purporting to substantiate their claim as rightful owners of the cattle, referred to as annexure "RMM 2. The trial magistrate, at page 6 of the ruling, stated that the 26 annexed letter constituted secondary evidence, thereby undermining its reliability. At page 8, the trial magistrate further found that there was no credible evidence proving that the cattle had been inherited by the appellants. Finally, at page 9, the learned magistrate concluded that the appellants had failed to establish their ownership rights over the forfeited cattle. This court concurs with the trial magistrate’s findings. The right to ownership of confiscated or forfeited property cannot be established merely by asserting ownership. If such an approach was to be accepted, it would lead to the restoration of confiscated property to individuals who may not, in real sense, be the rightful owners. In the present case, the appellants' claim that they inherited the cattle in question is not supported by evidence in the affidavit. I agree with the learned counsel for the appellants that proof of inheritance is not necessarily established through probate documents. The same may be proved through oral evidence. In our case, I have examined the attached copy of the letter, with due respect to the appellants, it appears that the said document was attached as an afterthought. I am of the opinion that since the application was filed 27 for the sake of proving ownership, the purported letter should have been pleaded and attached to the supporting affidavit. Moreover, even the wording of the letter does not suffice to prove ownership of the cattle. The wording suggests hearsay which is inadmissible in evidence. Not only that, but also, the authenticity of the letter is questionable. The forfeiture was ordered on 08/05/2023 and the application subject of this appeal was filed on 02/11/2023, while the said letter is dated 28/04/2024. Furthermore, during the issuance of the confiscation order, the 2nd and 3rd respondents, who were the accused persons before the trial court, made statements that contradict the appellants' claim. At page 18 of the trial court proceedings, the 2nd respondent implored the court not to forfeit his cattle, asserting that he depends on them for school fees and other necessities. It is surprising that, at this stage, the appellants are claiming ownership of the cattle, which the 2nd respondent had already claimed during the trial. This aligns with the 2nd and 3rd respondents' submissions that they were not asked who was the lawful owner of the cattle. With due respect, their assertions are frivolous. I once presided over an appeal similar to the instant one. In the said case a motor vehicle registered for tourism activities was used to transport 28 illegal immigrants. However, in the said case the accused persons had stated from the beginning that the seized motor vehicle was hired from the appellant. Lease agreement of the forfeited motor vehicle was produced before the court to that effect. The lease agreement was not disputed by the Director of Public Prosecution and the appellant did not participate in the commission of the offence. With that evidence on record, I allowed the appeal of the owner of the motor vehicle. See the case of Mapande and Tours Limited v. Director of Public Prosecutions, Criminal Appeal No. 56 of 2020, High Court, Moshi Sub Registry [2021] (13 August 2021). Back to the case at hand, I support the findings of the trial court that the appellants failed to substantiate their ownership of the forfeited cattle. On the fourth ground of appeal, Mr. Sabuni faulted the forfeiture process on several grounds. First, he argued that the 2nd and 3rd respondents were not asked who was the lawful owner of the cattle. Second, he contended that the rightful owners should have been accorded the right to be heard under section 351(2) of the Criminal Procedure Act. Third, he claimed that the forfeiture should have occurred within six months, whereas in the present case, it was completed within two days, 29 with the proceeds deposited into the Consolidated Fund. Lastly, Mr. Sabuni argued that there was no evidence that the auction took place, alleging that the auction process lacked transparency and that the appointment of the 4th respondent did not comply with the Auctioneers Act (supra). In reply, Mr. Wambura contested the allegations. He stated that the 2nd and 3rd respondents did not object to the forfeiture order and emphasized that the order was lawful and correct. I have carefully gone through the entire record of the proceedings of the trial court. The argument that the process lacked transparency is without merit, as the appellants' affidavit contradicts the claim. At paragraph 2 of their joint affidavit, the appellants stated that they were notified about the confiscation of cattle on 8th May 2023. Therefore, the assertion that no notice was issued has no basis. Moreover, the allegation that the appointment of the 4th respondent is not on record is unfounded. At page 19 of the trial court proceedings, the trial magistrate (Hon. M.A. Hamza-SRM) appointed the 4th respondent as the auctioneer, to conduct public auction immediately. This court is settled that the trial magistrate complied with the law by ordering the proceeds of the sale to be deposited into the Director of 30 Public Prosecutions' account. However, the only anomaly I have noted is that the trial magistrate ordered the proceeds of auction to be allocated towards the reparation of the Chambongo Forest Reserve. The trial magistrate misdirected himself, as the issue of reparation was to take place after the expiration of the six-month period, upon satisfaction that no person had successfully claimed ownership of the forfeited cattle and shown cause as to why the seized cattle should not be forfeited. In conclusion, it is the finding of this court that the grounds of appeal raised by the appellants are devoid of merit. Save for the order for reparation of Chambogo Forest Reserve, which I hereby nullify, the appeal is dismissed in its entirety. It is so ordered. Dated and delivered at Moshi this 25th day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 25/10/2024 31 32