Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MISC. CRIMINAL APPLICATION NO. 32870 OF 2024 DIRECTOR OF PUBLIC PROSECUTIONS..................................... APPLICANT VERSUS ATHUMAN MOHAMED NYAMVI @ISMAIL ADAMU...................RESPONDENT RULING 2&" February & 2Ffh March, 2025 MPAZE, J.: By way of a chamber summons supported by the affidavit of Juma Mahona Ngassa, State Attorney, the applicant moved this court under section 9(l)(a) and (5) of the Proceeds of Crime Act [Cap. 256 R.E 2022] (the POCA), seeking an extension of time to file an application for forfeiture against the following tainted properties, namely; 1. House No. 24 situated at Ngoji Hamlet, Mchinga II village within Lindi District in Lindi Region. 2. A house situated on Plot No. 439, Block "A"Mikocheni area within Kinondoni Municipality in Dar es Salaam Region. 3. Three mobile Phones make Nokia, One Mobile Phone Make i­ phone and One Mobile Phone Make Blackberry. i 4. Currency 50 South African Rands and USD 12,000. 5. Fiberglass boat named as MV WALIDI together with its two outboard engines YAMAHA 85 AET with serial number 688 L 1021775 and YAMAHA 85 AET with serial number 688 L 1012372. In opposition, the respondent, through learned senior counsel Mr. Majura Magafu, filed a counter-affidavit challenging the application. During the hearing, the applicant was represented by senior State Attorneys Mr. Robert Kidandu and Ms. Neema Haule, while Mr. Magafu appeared for the respondent. From the affidavit, counter-affidavit, and submissions of the parties, it is evident that this application stems from Criminal Session No. 25 of 2019 before this court, wherein the respondent and another person (who is not a party to the present application) were convicted and sentenced to 20 years' imprisonment on 29th November, 2021 for two counts of trafficking in narcotic drugs. It is undisputed that the respondent was aggrieved by the conviction and sentence, prompting him to lodge an appeal before the Court of Appeal via Criminal Appeal No. 624 of 2021. However, his appeal was dismissed in its entirety on 11th June, 2024. 2 Following the dismissal of the appeal, the applicant filed the present application, advancing two main grounds as set out in the supporting affidavit. First, the delay in filing the forfeiture application was attributed to the pendency of the respondent's appeal. Second, after the Court of Appeal's decision, the applicant allegedly discovered new evidence concerning transactions related to a house on Plot No. 439, Block A, Mikocheni, Dar es Salaam, which was purportedly at risk of disposal. In support of the application, Mr. Robert commenced by highlighting that the applicant was seeking an extension of time under section 9(5) of the POCA. He further contended that the delay was occasioned by the respondent's appeal against the High Court's decision delivered on 29th November, 2021 with the Court of Appeal's judgment being rendered on 11th June, 2024. Additionally, Mr. Robert contended that new evidence emerged regarding one of the properties in question, necessitating further investigation, which was completed on 12th November, 2024. The applicant argued that these reasons constituted good cause for the delay and cited the case of Alliance Insurance Corporation v. Arusha Art Limited, (Civil Application No. 33 of 2015)[2017] TZCA 141 3 (3 March 2017) to support the argument that courts have discretion to extend time where sufficient reasons are provided. In response, the respondent's counsel, Mr. Magafu, opposed the application, arguing that the reasons advanced were insufficient. He pointed out that the delay from 29th November, 2021 to 19th November, 2024 was excessive and unexplained. He asserted that the pending appeal did not prevent the applicant from filing the forfeiture application within the required 12 months while citing Rule 11(2) of the Court of Appeal Rules. To strengthen his argument, he referred to the case of Peter Mabimbi v. Minister for Labour and Youth Development and Others [2002] Vol. 1 of Court of Appeal Labour Cases, Page 558, which sets out the factors the court must consider when determining whether to grant or deny an application for an extension of time. Furthermore, he challenged the claim of ongoing investigations, stating that the property in question had already been the subject of the criminal trial. He also insisted that the applicant had failed to justify the delay on a day-to-day basis, citing the case of Philemon Simwandete Mbanqa v. The Permanent Secretary, Ministry of Defence, Civil Application No. 168/01 of 2018 Vol. 1, 2022 CAT Labour Cases Report, 4 Page 583, which underscores the strict requirement of justifying delays on a day-to-day basis. In rejoinder, the State Attorneys argued that sufficient reasons had been provided and emphasized that each case should be determined based on its own merits. Ms. Haule contended that section 11 of the Court of Appeal Rules, as cited by the respondent's counsel, was inapplicable in this context, as the matter did not involve an execution case requiring a stay of execution. Mr. Robert further argued that the pending appeal justified the delay and maintained that all relevant period had been properly accounted for. From the submissions of both parties and the cited cases, it is apparent that they both agree that in the application of this nature the court has the discretion to either grant or deny an application. However, this discretion must be exercised judiciously. Both parties also acknowledge the established principles and factors that the court considers when determining whether to grant an extension of time or not, which have remained unchanged over the years. In the well-known case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), 5 the Court elaborated on the factors to be considered when determining applications for an extension of time. The Court stated that; ' The applicant must account for all the period of delay, the delay should not be inordinate, the applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action he intends to take and if the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as illegality of the decision sought to be challenged.' These factors have been reaffirmed in cases such as The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R. 387 and ZET Construction Company Limited v. Kalokora Bwesha & Cecilia Boniface Shiyo, Civil Application No. 314/01 of 2022 [2024] (19 March 2024) where the courts have consistently emphasized the need for applicants to provide a satisfactory explanation for any delay and to establish sufficient grounds warranting an extension of time. The principle that an applicant must account for each day of delay was further emphasized in Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported). In this case, the Court of Appeal underscored the strict requirement for justifying delays, stating; 6 '...Delay of even a single day has to be accounted for; otherwise, there would be no point in having rules prescribing periods within which certain steps have to be taken.' A careful reading of the cited authorities reveals that for a party to succeed in an application for an extension of time, he must demonstrate sufficient or good cause. While there is no statutory definition of what constitutes good cause, case law has established guiding principles. As emphasized in the cases cited above, courts have identified key factors to be considered when determining whether good cause exists. These factors, as set out in Lyamuya Construction Company Ltd {supra} and reaffirmed in subsequent decisions, serve as the benchmark for assessing whether an applicant has met the required threshold. In the present case, the applicant has put forward two main reasons to justify the delay; first, the existence of a pending appeal, and second, the discovery of new evidence concerning transactions involving a house on Plot No. 439, Block A, Mikocheni, Dar es Salaam, which was allegedly at risk of being disposed of. Based on the reasons advanced by the applicant, the central issue for determination is whether these grounds amount to sufficient cause or good cause to justify the extension of time sought. 7 I am aware of the provisions of section 9(l)(a) of the POCA, under which this court has been moved. The section stipulates that where a person is convicted of a serious offence, the Director of Public Prosecutions may, subject to subsection (2), apply to the convicting court or any other appropriate court within twelve months from the date of conviction for a forfeiture order against any property deemed to be tainted in connection with the offence. If the Director of Public Prosecutions fails to file the application within the prescribed twelve-month period, section 9(5) of the Act provides an avenue for an extension of time. The provision states; 'The period provided for making an application in subsection (1) may be extended by the court when there is good cause for such extension.' Section 9(2) of the POCA provides circumstances under which the Director of Public Prosecutions (DPP) is barred from making an application for forfeiture. The section states; 9(2) The Director of Public Prosecutions shall not, except with the leave of the court, make an application in terms of subsection (1), for a forfeiture order or a pecuniary penalty order (a) if an application has previously been made under that subsection or in terms of any other enactment; and (b) if the application has been finally determined on the merits'. 8 Thus, applying this provision, it is clear that the only circumstances that would bar the DPP from bringing such an application are; One, where a similar application has previously been made under section 9(1) or any other relevant law; and Two, where the previous application has been conclusively determined on its merits. This means that unless a forfeiture application has already been adjudicated upon and finally decided, or unless leave of the court is sought and granted, the DPP retains the right to file such an application within the prescribed time. This being the established legal position, it is plain that the reasons advanced by the applicant in support of the extension of time do not fall within the scope of section 9(2) of POCA, which sets out the circumstances that would bar the DPP from making a forfeiture application. Consequently, the applicant's justification for seeking an extension must be assessed solely on the basis of whether it constitutes good cause as required under section 9(5) of POCA. My brother, Kisanya J, when confronted with a similar situation in Director of Public Prosecutions v. Rem my Gerlard Sipuka, Economic Application No. 24872 of 2024, had this to say; '...The pendency of the appeal and review application, or the question of whether the accused has exhausted all local 9 remedies, are not listed among the factors that preclude the filing of a forfeiture application. Additionally, as the respondent correctly pointed out, if the appeal had been successful, the Court could have discharged the forfeiture order in accordance with section 17 of the POCA. In this context, I hold the view that the existence of the appeal and subsequent review, which is the sole ground raised by the applicant, did not constitute sufficient reason to justify the delay in filing the forfeiture application. [Emphasis added] Similarly, in the present case, the applicant submitted that one of the reasons for the delay in filing this application was the existence of a pending appeal. There is no dispute on this fact, as it is true that the respondent, being dissatisfied with the decision of this court, lodged an appeal before the Court of Appeal. The crucial question, however, is whether the mere existence of a pending appeal constitutes sufficient cause for the delay in filing the application. I find that the pending appeal was neither a legal impediment nor a legal obligation that precluded the applicant from filing the application within the prescribed period. The POCA does not impose any requirement that an application for forfeiture must await the determination of an appeal. In the absence of any statutory provision mandating the applicant to delay filing an 10 application for forfeiture pending the outcome of the appeal, it was incumbent upon them to act within the prescribed time. I concur with Mr. Magafu that the existence of an appeal was not a barrier preventing the applicant from filing the forfeiture application. However, I disagree with his reliance on Rule 11 of the Court of Appeal Rules to support his argument, as the rule is inapplicable in the present circumstances. As submitted by Ms. Haule, the cited provision does not govern this matter. Rule 11 primarily governs applications for a stay of execution pending appeal and is intended to prevent the enforcement of a judgment or order while an appeal is being determined. In contrast, the present application concerns an extension of time to file a forfeiture application, which is a distinct legal process governed by the POCA. Therefore, I find that the reliance on Rule 11 in this context is misplaced, and Mr. Magafu's argument regarding its applicability to this case lacks legal merit. I do not overlook the fact that the existence of a pending appeal can sometimes serve as a ground for an extension of time and is often regarded as a technical delay. It is important to note that a technical delay arises when a party is unable to meet a procedural requirement due to a technical or ii administrative reason rather than negligence or a deliberate disregard of the law. The case of Fortunatus Masha v. William Shija [1997] T.L.R. 154 laid the foundation for the concept of technical delay and provided clarity on its meaning. The Court stated; 'I am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one, which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal, for one reason or another, has been found to be incompetent, and a fresh appeal has to be instituted. [Emphasis added] From this reasoning, for a delay to be classified as technical, there must be an original matter directly related to the one for which an extension of time is sought. This principle was further emphasized in Philemon Simwandete Mbanga {supra), where the Court clarified that; '...what is referred to as technical delay constitutes an excusable delay warranting the court's discretion to grant an extension of time. It applies when an applicant seeks an extension after an application or appeal, for which an extension of time is sought, was struck out by a court of law.' 12 Applying these principles to the current case, a technical delay would have been established if the forfeiture application had been filed within the prescribed time but was subsequently struck out due to procedural defects, necessitating a fresh application, which was then found to be time-barred. In such a scenario, the applicant's request for an extension of time could be justified on the ground of technical delay. However, the circumstances before this court are materially different. No forfeiture application was filed within the prescribed period, nor was any such application dismissed due to procedural defects. Even if the pending appeal were to be considered as a potential technical delay, it does not meet the threshold established in Fortunatus Masha (supra). K technical delay typically arises where the original matter was filed on time but was later struck out due to procedural shortcomings, necessitating a fresh application. In this case, the delay is not attributable to any procedural impediments but rather to the applicant's inaction. Therefore, I find that the first ground namely, the existence of the pending appeal does not constitute sufficient cause to warrant an extension of time. After determining that the existence of a pending appeal does not amount to sufficient cause, I proceeded to examine the second ground, 13 which concerns the discovery of new evidence regarding transactions involving a house on Plot No. 439, Block A, Mikocheni, Dar es Salaam, that was allegedly at risk of being disposed of. Upon reviewing the second ground advanced by the applicant, which is the discovery of new evidence regarding transactions involving a house on Plot No. 439, Block A, Mikocheni, Dar es Salaam, which was allegedly at risk of being disposed of, I find it necessary to assess the credibility and sufficiency of this reason. Mr. Robert urged that following the decision of the Court of Appeal delivered on 11th June, 2024 it was discovered that certain transactions concerning the property were still ongoing. Consequently, further investigations were conducted to confirm the ownership of the property. In paragraph 10 of the affidavit sworn by Juma Mahona Ngassa, the State Attorney stated; ' That the investigation regarding tracing of that information was complex and took a considerable time after determination of the appeal until 12th November, 2024 due to the fact in the Land Register maintained with the Registrar of Titles for Dar es Salaam no any changes have been made on that property, thus required tracing information from persons who were likely to be privy or having knowledge of the property.' 14 However, as pointed out by Mr. Magafu, apart from the affidavit's assertions, there is no tangible evidence to support the claim that the investigation was actively ongoing or that any substantial progress had been made regarding the house in question. The mere statement that the investigation took time without proper documentation or proof does not, in my view, suffice as a compelling justification for the delay. The applicant has not provided adequate proof of the nature or extent of the investigation, nor has it been shown that such delays were unavoidable or the result of genuine efforts to discover new evidence. Without substantial evidence to substantiate the investigation claims, it is difficult to accept this as a sufficient cause for the delay. In light of the above, I conclude that the second ground, involving the discovery of new evidence, also fails to provide a satisfactory explanation for the delay in filing the forfeiture application. It is vital, as reiterated in various decisions, that each day of delay must be accounted for. Without a clear and convincing explanation supported by evidence, the applicant cannot justify the delay on the basis of the discovery of new evidence. In conclusion, having considered both grounds put forward by the applicant, neither the pending appeal nor the alleged discovery of new evidence amounts to sufficient cause to warrant the extension of time. 15 The applicant's failure to account for each day of delay adequately leaves this court with no compelling reason to grant the extension. Based on the above discussion, I find that the application lacks merit. Consequently, it is hereby dismissed. It is so ordered. Dated at MtwarS this. 28th March, 2025. /> ■ /O ' \ v X M.B Mpaze • / zi Judge Court: Ruling has been delivered today in the presence of Ms. Atuganile Nsajigwa State Attorney for the applicant, Mr. Majura Magafu advocate for the respondent and respondent. 7 M.B Mpaze Judge V) 28/3/2025 16