MWASIKILI RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION MOROGORO SUB-REGISTRY AT MOROGORO ECONOMIC APPLICATION NO. 23511 OF 2024 CASE REFERENCE NO. 202408202000023511 DIRECTOR OF PUBLIC PROSECUTIONS ……….………….……………. APPLICANT VERSUS JOHN MWASEBA MWASIKILI ………..…………..…………………….. RESPONDENT RULING 21st and 21st August, 2024 KISANYA, J.: The applicant, through a chamber summons filed under section 38(1) of the Proceeds of Crime Act, Cap. 256. R.E. 2022 (the POCA), has brought forth this ex-parte application, requesting the following reliefs: 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 house No. 180 located at Saranga area within Ubungo District in Dar es Salaam Region. 1 (b) Un-surveyed land measuring 18 metres North, 20 metres South, 10 metres East and 12 metres West located at Saranga area within Ubungo District in Dar es Salaam Region. 2. Any other order (s) the honorable Court may deem fit and just to grant. In support of the application is an affidavit sworn by Ms. Mary John Lundu, a Senior State Attorney with the National Prosecutions Service, based in Morogoro. In brief, on 15th March 2024, this Court, sitting at the Morogoro Sub- registry in Economic Case No. 3 of 2023, found the respondent, John Mwaseba Mwasikili, guilty of trafficking narcotic drugs and sentenced him to twenty-five (25) years in prison. The offence was said to have occurred on 26th February 2022 at Doma Area in Mikumi National Park, within Kilosa District in Morogoro. Dissatisfied with the decision of this Court, the respondent has lodged a notice to appeal to the Court of Appeal. According to the supporting affidavit, at the time of the offence which he was convicted of, the respondent had acquired House No. 180 and an un- surveyed plot of land, both situated in the Saranga area within Ubungo District, Dar es Salaam Region, on 15th January 2017 and 15th September 2019, respectively. As these properties are considered tainted, the applicant 2 has filed the present application seeking a restraining order. The ground for this application there is a risk that the properties in question may be dissipated before the appeal is determined. When this matter was called for an ex-parte hearing today, the applicant, the Director of Public Prosecutions, was represented by Ms. Mary Lundu, Senior State Attorney. Supporting the application, Ms. Lundu requested the Court to adopt the chamber summons and the accompanying affidavit as part of her submission. The learned Senior State Attorney argued that the properties for which the restraining order is sought are owned by the respondent and are tainted, being connected to the offence of trafficking in narcotic drugs for which he was convicted and sentenced to 25 years. She further contended that section 38(1) of the POCA permits the prosecution to file this ex-parte application for a restraining order. Asserting that the properties listed in the chamber summons are tainted, she maintained that the application for a restraining order is justified. She added that since the respondent was convicted of drug trafficking, section 39(4)(a) and (b) of POCA requires the court to issue a restraining order once it is satisfied that the conviction was for a serious offense and that the properties 3 were acquired through criminal activity. To support her argument, she cited the case of Samo Ally Issack & Others vs Republic, Criminal Appeal No. 136 of 2021 [2021] TZCA 649 (4 November 2021) which held that the conditions under sections 38(1) (a) and 39(4) of the POCA must be met for a restraining order to be issued. With respect to the present case, Ms. Lundu argued that trafficking in narcotic drugs is termed as a serious offense under section 3 of POCA. She also pointed out that section 49(4) of the Drug Control and Enforcement Act, [Cap. 95, R.E. 2019] (the DCEA) presumes that any property acquired by an accused person within ten (10) years prior to being charged with an offense is the proceeds of crime. Given that the properties in question were acquired in 2017 and 2019, she argued that the court is within its power to issue a restraining order. Finally, the learned Senior State Attorney asserted that granting the restraining order would not prejudice any party, as both parties are awaiting the outcome of the respondent's appeal. In conclusion, she requested that the court grant the application. In evaluating the merits of this application, the Court observes that section 38(1)(a) of the POCA empowers the Director of Public Prosecutions to 4 seek an ex-parte restraining order against the property of an person convicted of a serious offence. As rightly argued by Ms. Lundu, the offence of trafficking in narcotic drugs, for which the respondent was convicted and sentenced to twenty-five years, qualifies as a serious offence according to the definition provided in section 3 of the POCA. Moreover, section 39(4) of the POCA provides that the conditions for issuing a restraining order against a convicted person, as in the instant case require the court to be satisfied that the respondent has been convicted of a serious offence and that the respondent directly or indirectly benefited from the commission of that offence. [See also the precedent stated in of Samo Ally Issac and Others (supra)]. In relation to the first condition, the Court has determined that the respondent was convicted of trafficking in narcotic drugs, which is termed a serious offence, under section 3 of the POCA. For the second condition, the supporting affidavit reveals that the properties were acquired in 2017 and 2019. Considering that the acquisition occurred within ten years before the respondent was charged with trafficking in narcotic drugs, it is evidence these properties are eligible for forfeiture under sections 49(1) and (4) of the DCEA. 5 Therefore, the Court is in agreement with the learned Senior State Attorney the application meets both necessary conditions for the restraining order. Given the risk that the properties may be dissipated before the appeal is concluded, the Court finds it necessary to grant the restraining order as requested. To ensure that the properties are not sold, transferred, or otherwise disposed of, the Court also finds it appropriate to order the Registrar of Titles, the Commissioner for Lands, the Executive Director of Kinondoni Municipal Council, and the local government officials of Saranga area to refrain from authorizing any sale, transfer, or disposition of the properties in question. In summary, the application is granted, and the Court orders as follows: 1. The respondent, his agent(s), or any person(s) acting on his behalf are restrained from disposing of or interfering with the following properties until determination of his appeal by the Court of Appeal: a) House No. 180 located at Saranga area within Ubungo District in Dar es Salaam Region. b) Un-surveyed land measuring 18 metres North, 20 metres South, 10 metres East, and 12 metres West located at Saranga area within Ubungo District in Dar es Salaam Region. 6 2. The Registrar of Titles, the Commissioner for Lands, the Executive Director of Ubungo Municipal Council, and the local government leaders of Saranga area are directed to refrain from authorizing any sale, transfer, or disposition of the properties listed in the first order. It is so ordered. Dated this 21st day of August, 2024. S.E. KISANYA JUDGE 21/08/2024 7