20161102 TZCA Dar es Salaam

~ . -IN THE COURT Q.F APPEAL OF TANZANIA . ·

AT DAR ES SALAAM (CORAM: MBAROUK, J.A.., MJASIRI.J°.A;, And KAIJAGE, J.A.) CONSOLIDATED CRIMINAL APPEALS NOS ..·261& 264 OF 2013 _EX.F 7153D/C _DICKSON MUGANYIZI .'"'.·······";_,;,,. APPELLANT/RESPONDENT ..

VERSUS THE REPUBLIC (DPP) .. ~-..... ;, ...... ,.... ~ ...................... 'RESPONDENT/ APPELLANT · .. (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) · (Utamwa, J.) Dated the 16th day ·of April, 2013 In Criminal Appeal No. 55 of 2010

JUDGMENT - . . OF THE COURT ' . 15th April& 8th November, 2016 ' In the Resident Magistrate's Court at Kisutu, Dar es Salaam Region, .. . i the appellant ExF. 7153 D/C Dickson Muganyizi and two others · (D/C Waryuba Nyahura and Steven, Gerald Sipuka) who are not parties in this .ill)_Qe_gJ vy~r~.~har,ged with_ five.:(Sf9ounts. Ir, the fjr_$._t.count 9JI the ~s:cusgd__ ·. _ persons were charged with the offence of conspiracy to commit a felony of · store breaking contrary to section 384 of the Penal Code, [Cap 16, R,E. 1 2002], the· P~nal Code. It wasthe prosecution· case that on an unknown: date, time and place within_ Dar. es Salaam did unlawfully conspire to break· -_ into the Anti-Drug Unit store and to steal a total of 8441. ST grams of. : heroin, cocaine,and cannabis sativa worth· Tanzania Shs; bne Hundred· Seventy Six Million Four Hundred Twenty Four Thousand Nine Hundred and . seventy (176, 424, 970/=). In the second count the appellant- and Waryuba were charged with breaking into a· store and .committing a felony of stealing contrary to section 296 of the Penal Code: It was alleged by the prosecution that between May 29, 2005 and June 6, 2006 at midnight did unlawfully break into a store and stole therein a total of 844 l.87 grams of cocaine, heroin·· and cannabis sativa valued at Shs. 176,424,Q70/= In the third count the appellant, D/C Waryuba Nyahura and others . . .

. .i . . . . were jointly charged of unlawful sale of Narcotic Drugs and Psychotropic Substances contrary to section 12(d) of the Drugs and Prevention of I_llicit- .· - Drugs Act No. 9 of 1995 as amended by Act No. 9 of 1997 [Cap 95 R.E. 2002] [Cap 95]. It was the prosecution· case that the: appellant and D/C Waryuba d_id unlawfully sell cocaine and heroin amounting to a total of -8431.37 grams valued at Shs. 176, 423,920 to Steven Sipuka. Count No. 4 2 did not involve the appellant,- this involved Sipuka -alone who ·was charged . _with unlawful purchase of Narc:otic_ and Psych_otropic substance contrary to _ · section 12 (d) of Cap 95> In--.t6unt No·~ 5 the appellant was charged of_: being in unlawful .possession . of Narcotic Drugs and Psychotropic. substances contrary to section 12 ( d) of the Drugs and Prevention of Illicit· Drugs Act No. 9 of i 995 as amended by Act N~. 9 of 1997 .It was the _ prosecution case that on the 13 th day of June 2006 at about 14:30 hours at_· · · the Kilwa. Road Police Barrack, the appellant's residence was searched by Assistant Inspector Kombo and he was. found in unlawful possession of. - 10.5 grams of cannabis sativa valued at Shs. 1050/= . . The appellant and the two others. all pleaded not guilty and tqtally denied the charges. The trial court held that the prosecution failed to prove all the four counts (1 st, 2nd , 4th and 5th counts)

against the appellant and Waryuba. The appellant and Waryuba were acquitted on the first, second; . :=::~ ;. ._ ~ -~ .... third and fifth count. After· Sipuka was acquitted on the 4th count, the 5th count was referred to as the 4th count, by ~he trial magistrate. The trial court four1eFthat the pr6sec:ution---evidence was nofsufficient to ground· ~ a ---- conviction on the said counts. However, the appellant and Waryuba were convicted on the alternative charge of being in possession of property 3 .,,I ..... suspected of having been :stolen and/or unlawfully obtained contrary to - section 312 (1) (b) of the .Penal-Code. They were each sentenced to three (3} years imprisonment. · • •• ! The Cou1t also ordered various properties including the houses purchased by the -1st . accused be. confiscated by . the government. The properties were to be sold and the proceeds of which were to be paid to. the Treasury. The bhang found .with the.appellant was to be destroyed. Being aggrieved :.by the decision of the trial court the appellant filed an appeal· to the High·· Court. His·-appeal was successful. However, the first appellate court (High Court) did not - make-any order - against the . confiscation of the appellant1s property, on the ground that the appellant· .. only appealed against conviction and sentence and not against the· confiscation order. The appellant filed a one-point

memorandum of appeal which stated that:- 1. Having· found the alternative conviction was erroneously entered hence quashed the conviction and set ·aside the sentence. . The Honourable Judge erred in law and fact by 4 . refusing to order the return ,to the appellant of his. .confiscated . properties which ' . was ' the .. out~orne· of his conviction and sentence. =· ... . '! The Republic also appealed against the decision of the High Court. Tne. · following ground of appeal was .presented.

1. The Honourable Judge erred in fact .and law .. ·- . when he declined the appellant's prayer to assess the· evidence ·on record and make findings . thereof by convicting and sentencing · the respondent on the gh count for possession· of narcotic. drugs; . . . . . , . . . : . . ···• . . •.. . ' . t:;.. The two appeals (Criminal Appeal No. 261 of 2013 and Criminal Appeal NO;. 264 of 2013) were consolidated .. At the hearing of .the appeal, the appellant appeared in- person a~d ; I fended for himself. He was previously represented by Mr. Wilson Ogunde, · learned advocate, who could not be in Court during the hearing. The · respondent Republic had the services of Mr: Edwin Kakolaki, learned Principal State Attorney who was assisted by Mr. Nassoro Katuga, learned 'Senior State Attorney and Mr. Ramadhani .Kalinga, learned State Attorney. :s j. ·Mr. Muganyizi being without legal counsel opted to let the Senior State Attorney'address the Court first. Mr. Katuga sought leave of the Court to raise a point of law under Rule 4 (2) (a) of the Tanzania Court of Appeal Rules, 2009 (the Court · Rules) leave of which was granted. Mr. Katuga made refere·nce to Section· 362 (1) and (2) of the Criminal Procedure Act. He submitted that an appe·a1. in the High Co_urt shall .be _by way of petition. According to him, the appellant presented three groµnds -of appeal in the High Court, at page 164

.. of the. record: ·However· the ·· appellant did not appeal against the . . confiscation and/or forfeiture ord~r. The appeal filed -in the High Court was · · against conviction and sentence_ only. Even though the confiscation arose: _._ from the conviction of the appellant, no compla_int was presented to the , High Court in respect of the said order. The court deals with what was _· presented before it. The forfeiture order was made under Section 351 of the CPA. It is not enough for the appellant to appeal against the conviction and sentence alone .. It does not cover the forfeiture order. He made· ..relerence fr> section 35T ofJn·e Criminal Procedure Act, TCal:>20 R-.-E~2U0-2J · (the CPA) which empowers the court to order confiscation and/or forfeiture. 6 :_ Mr. Muganyizi~ on his .part submitted .that the appeal had merit. The. basis of the appeal is the conviction.and sentence .. The ·confiscation·order is- linked to the sentence~· Once the conviction is quashed· and the sentence set aside the order of forfeiture cannot stand· on its own. He complained . that his properties are stiil ·confiscated .by the gov~rnment. He should . · therefore be allowed to apply .to the court for the release of the properties. He urged the Court to allow his appeal. · On the appeal filed· by the Republic, the major complaint was the ,. failure by the High Court Judge t~ assess the evidence on

record and to : · convict and sentence the respondent on the 5th count for possession of. 10.5 grams of cannabis sativa: Mr. Kakolaki conceded that there W?iS a need for the Republic to file a: cross appeal against the decision of the trial magistrate. This issue was only raised in the respondent's written , _ c-,_-.--,--,. submissions. 4[. - ~-<.C-~· Mr. Kakolaki made reference to page 191 of the record. According to Exhibit P10, ~_hich shows that __yvhen. 9 search was condw:tep in th_e _____ _ appellant's premises 21 pellets were found. No finding was made on the · fifth count by _the trial magistrate. He submitted that they were challenging 7 the decision of the first appellate Court for refusing to re-assess such evidence. He asked the Court .to; step. into the shoes of the High Court. He · relied on the case of George Maili Kemboge versus Republic, Criminal · >. Appeal No. 85 of 2012 CAT (unreported). Mr. Muganyizi on his part relied on the findings of the first appellate cdurt at page 209 of the record that as ·· long as the Republic did not formerly appeal in the High Court on that issue·. it cannot do it through_ the backdoor; We on our· part after carefully going through the record and . submissions-·by both .the appellant and the learned Principal and Senior· State Attorneys, would like to state that we are of the considered view that • . the··.main issues:- for·

consideration and determination arising from the .. · · consolidated appeal can.be stated as follows:- (1) Whether or not the appellant is entitled to his confiscated/forfeited . properties once his conviction was quashed and the sentence set aside. (2) Whether . or· not the. request· by the prosecution· to rev1ewathe lfial-ci:iurt's record Vl-'.'as tel]able given_ the. fact that no cross - appeal was filed against the decision of the tria_! Couit in relation to the fifth count 8 . . · In relation to issue No. 1, we are of the firm view that a confiscation / . ~ .,, ~ and/or forfeiture order is made after ·conviction in order to deprive the defendant of the financial benefit he or she has obtained from crime. Section -15 of the Proceeds .. ~ . . .. . 256 R.E. 2002] (Cap of Crime .Act,. . [Cap ... . 256) · provides as foll_ows:- "15 (1) Subject tQ subsection. (2/ where a court-makes. a. forfeiture order against property, the property shall vest in the ·United Republic. · (2) Where a forfeiture order is made. against property . subjectto the registration . in :the Registry of. Title~ . . any rights in the prope1ty shall lie with the United Republic until the registration is effected. . . ~ (3) The Treasury Registrar shall be registered as owner ••• - ~':'."!""""' of any property subject to a forfeiture ord_er and the= · Minister shall do or authorize to be do_ne,

anything necessary or convenient to obtain the r:egfstration of the Treasury Registrar as owner, including the · execution to be executed by a person -tr_a_ns_ferring an-interest inproperlrofthat natu~~~-~~-:~·---.··· · ······ Section 17 of Cap 256, provides ~s follqws:~: -· ·.,• 9 i · "17· (1) ·(1) A forfeiture order against property· shall ·be .i·- ' discharged fn _the quashing of.the conviction I ' upon which the forfeiture is based. (2) Where a. forfeiture .. order against property is discha1ged in terms of subsection (1) on appeal against making . the •order ·the Attorney General shall:- (a) as soon·aspracticable :after t.he discharge of the order give written notice of the discharge of the order to any:person who he hasreason to believf! ~·.had an interest in the · property . Jrnmediatelybefore making the order✓ or (b) if required by the court publish in the Gazette a notice of discharge of the order in such .n1anner·· and within ·such time as the court consider appropriate. ' I (3) A notice referred to in subsection (2) shall specif½ i in accordance with subsection (4J .the manner in which any person who claims an interest in the. . .. . . . . . . property s_hal{_qpp/y for the _transfer__ of the interest to such a person. [Emphasis provided]. '10 In Aidan Mwalutenga •v-. ~epublic, -,Criminal .. Appeal .No. 207 :bf • ' . • . * : i 2006,· CAT (unreported) the appellant was

charged··of mu'rder contrary to .• .. . . ; . section 196 of the Penal Code· and sentenced to" death. Upon ·conviction his shot gun was forfeited. On appeal h"is conviction was quashed and the ·- death sentenced -set-aside. The forfeiture order was ~lso quashed and s~t ·_. · . .. .. . . .· .· aside. The Court stated th.us:- "The trial court upon · conyiction of the. appellant. also forfeited his shotgun- with" seria!No. ,?1_3442L which was admitted in Court as Exhibit PJ. Since the appeal has been allowed, the forfeitur:e order is equally qua_shecland set aside; •The $/1otgun should be restored t; the appellaht ;/ : . In R v Menocal (1980) AC 598~ ·the English case on forfeiture of proceeds of drug related crimes, the Court of Appeal held ..that:- .i' . "the power of forfeiture contained in section 27 of the Misuse of Drugs Act 1971 was·not in the ·nature of a sentence and was therefore 'not subject to the restriction contained in_ section i 1(2) of the Courts Aet-1971/ that-a-sentenc-e- imposed,·--or other---(-Jrder made by the Crown Court when dealing with an offender, if it was to be varied or -rescinded· within 28 days of passing the original sentence. // 1 "On appeal·· the flou.se of Lords pronounced that a "forfeiture N including arr order made under section 27 of the Misuse ofDrug:s Act 1971/ being in the nature of a penalty, was a sentence for the · purpose of section

-11 {2} of Courts· Act 1971.[Em-~ha;is provided]." Therefore, if a_ Court ~~kes a confiscation and / or forfeiture order as part of the sentence or -orders ·imposed .oil a person convicted and the conviction is .subsequently ·quashed, the· quashing of the conviction -- ... discharges the instrumeh~ of :t~~·Jorfeiture order. The confiscation and/or - __ ,_;- :.. forfeiture order is linked to the conviction· and sentence. In the instant case; the High· Court having ~quashed •·· the conviction against the appellant;· -. . the forfeiture order was thereby discharged. This is a common practice in all the commonwealth countries and the· 1egal position is similar to that in -~'--~;;;;;~~~ Tanzania under the Crime-Proceeqs-Act, (supra),.: - : On the sole ground . . . of appeal filed . by the Republic complaining that . ' . . . . . . th~-!~_!al court failed to re..:assessthe ~vid_enc~_ -~_nd_ to make a finding on the 5th count for possession of n·arcotic drugs, the position is as follows. Upon a careful perusal of the record, we find that the ·issue raised in the Republic's 12- ground· of appeal was never raised. as.. . a ground . of: , appeal in the .first ~ . appellate court. Following··fHe· cbnvictlorrofth'e· a°i>pellant on th·e alternative ground, in relation to count .. ·· .\ ·. .;,: · ·. ~P· 3 an·d · ~cquittal ~f the ·ap_peliant and the ·I ,: . r other accused persons.r

the-prosecution did . not file . . a cross appeal to the : . . . . ·:-.·' '. High Court. Mr. Kakolaki;{learned· Principal State Attorney for.the Republic). only raised the issue in his written submissions. The issue cannot therefore·... - ., . be raised at this stage ..The.first appeilate court therefore rightly refused to consider the said issue. The law· is settled .. The._. procedure. for appeals by the_ Director. of • • • •• •✓ : ••••• ' • , Public Prosecutions (DPP) . ip .clearly .,.. . provided ,• . . .· ..under . sections 377, -381 of · ,_ . '-,,. ' the CPA. We hereby -r~produ~e_. t~e :: relevant . provisions for ease of. -~ reference. Section 377 pr~v.ides.as follows_:"-: .. ''In the following. section of this _Part un~ess --the= context otherwise requires:- ''Director of Public Prosecutions// includes an/· officer· subordinate t;· him acting in accordance! with his general or speciql -instructions; ''respondent// ineans the person who -was- -the· accused _in .the~proceedlngs-te -whiet-J-c:the _._ appeal under-section 378relates and who-may be affected /Jy any order of the High Court on such appeal. 13 I 378 (1) Where the Director of Public ·Prosecutions· is t_ dissatisfied with an acquittal. finding sentence. or order made J/pass~d by a subord/n;te court, other • • t • • •• • • • •. . • ; •• ·: •• : • .•. ~ • • than. a subordinate court exercising . its extended powers

by virtue of an 'order 'fnade undet section i. 173 ofthis Act,.)7~ may appeal to the High Court (2) An appeal fo . th~ /ilgh Co~rt uncjer_ this section may be in a matter of fact as well as in a matter of law. 379 {1} Subject to subsectiod-(2) no appeal under section 378 shall be entertained unless the Director of Pliblic Prosecutions~.· (a)· has given·notice··or his intention to appeal to the subordinate court w,ithin thirty days _of the .. . . . ·. . acquittal' . finding;' sentence' . . . or. order against which. he . : wishes : .. ·-. to appeal· and ' {b) has lodged his petition of appeal within forty - five days the time requisite for obtaining a copy of the proceedings in the case shall be excluded. (2) The. High CoLJrt ma½ for good cause/ admit an appeal~netviiit:f-lstand!ng tha(the per-ietis of limitat-ien-- presctibed in this section have elapsed. . 380 (1) Eve1y appeal L!nder section 378 shall be made in the fo1m of •a petition in writing presented by the Director ,.. . of : .· Public.Prosecution~ .. . . . and-shall, . . . unless the High . Courtqtherwise direct~ be accompanied by a . . :. .. : . :'.::·.. . . . . .'. .. . •· copy. of the proc~edingsr judgment. or order appealedagainsf (2) The petition sh~/(contain particulars of the matters of law or. fact iri:regards to· whic:h_·the subordinate court . appealed . : .. from _,.. is alieged . . . •. . to have erred. .

. 381 (1) Where a petition. of appr3al is. ..lodged . with the High ' Court in accordance . with the provisions . . . of section . ·. · 380 the High Court shall cause notice to b(3_·given to the respondent or to his advocater and evety such notice s"ha/1 .stat~. the time and piace at which the appeal will be heard and shall be -accompanied by a copy of the. petitton of appeal and a copy of the proceedingsr judgment or order appealed against. (2) Where noticeof timer place and hearing cannot be served on .the re.spondent because -he cannot be found through the addres$ obtained by the court under· section 228 and 275 the notice shall be brought to hi~ attention through public_at/on · in. a newsgaper th[ee tf.mc;£...:a_(Jd at 'the end of thilt . . . -~ . . : .. _,,, ' ~ . service the court . shall . . proceed '. . ". with ... ... the.. ..appeal ; -.. . . . '. in ~ . . ~ the absence of the respondent. :15 . The procedure outlined herein-above was not foliowed. It :is evident from the record that this was not done. - ,• .. ' In Samwel Sawe. v Repubiic, Criminal Appeai No. 135 of 2004 CAT (unreported), the Court_~tated thus::- . '~s a second .appellc1te.. . court, ~· we cannot .. . adjudicate .. · on a matter. _which was ~ ' . . not raised . . as a ground . of appeal in the first appellate court. The record of appeal a{pages 21to23, shows that thisi1round of appeaL_.hy· the.

appellant was not· among the appellants,.·ten ·grodnds :of appeal which he filed in the High ·court " . In the. case of·Abdi1I.Athuman v Republic (2004), TLR 151 the issue on whether or not the Court of· Appeal may decide on a matter not raised and decided by the High . . Cowrt.was . . considered. ' ., It was held by the ·---~~~~ Court that the Court of Appeal had no such jurisdiction. The Court then ' I ,.= j f} ~-~ . struck out the ground of 'appear'. This is the legal position taken by the . ·- - - - . Court and we therefore subscribe to the view expressed in Samwel Saw.e v Republic (supra). '""' 16 Jn .line with tt]e· printip!es· -~:>f· 1fafr trial, the procedural requirements have been clearly oJfli-ned ··.•1n ;order: t~ ¢~eate a" Jull, ·awareness. to the respond~nt as to what_ i~ a.t .?take'. This is done in order to ensure the · respondent gets a fair h~ar_ing. . ·. qy bei~g .. . given a right to be heard by a non- . ' biased tribunal and not to- be.taken .by surprise in the course of hearing the appeal. We are in agreement .with the first ·appellate Judge that it was not ' proper for the Republic'to lodge a -·complaint that no finding was made o.n the 5th count' when the. issue was. not raised by. way of an appeal or: . cross- appeal. . . It is also evident ; . from.. . . the r~~ord _. .. . .as .pointed ~ .. out by the fir-st·.·:· . . ' appellate Judge that the trial··

magistrate U'poh the acquittal of Sipuka on... the basis of no case to ans~er, on the ·fourth cou.nt, re.:organized and re-: . numbered the counts in respect of the charges, and th.e ?.~h coun~ was then considered as the 4th count. It can therefor_e be safely_ condudetj t~at the· .· .· · · • •· • • J 5th · count, re-numbered 4th count was duly consider_ep . by. the triaJ. · · '; · magistrate and the respondent was therefore acquitt;e.d. on J~e said count. : ,, · . . . . , See~ lu·ma ·Man]ario v Republic, Criminal AppealNo:·-2.11. of 2009 CAT · · .>=. (unreported). ,• .'· 17 Consequently, we hereby strike out the ground of appe21l filed by tl'W1 ·..: · . Republic in Criminal Appeal No. 261 of 2013, ·we further lierGby,. fof tl1e ·.:. foregoing reasons allow Criminal Appeal No. 26l of 2013. Order· accordingly.· DATED at DAR. ES SALAAM this 2nd day November, 201.6 . .· M. S. MBAROUK JUSTICE OF APPEAL · : _ _ ,.·_,...0 :··,."·. _. ···:::'• :s·. C. M' J'A·s· ... IRI" - · ,. .·:. ·; JUSTICE OF APPEAL ~ ~~ -_·•· ---••. 18