DPP VS CHASAMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT SHINYANGA SUB- REGISTRY ECONOMIC APPLICATION NO. 24326 OF 2024 CASE REFERENCE NO. 202408262000024326 THE DIRECTOR OF PUBLIC PROSECUTIONS ……….…………………. APPLICANT VERSUS JULIUS MAHANGAIKO CHASAMA ………………….………………….. RESPONDENT RULING 27th August and 2nd September, 2024 KISANYA, J.: This is an ex-parte application filed for the restraining orders against properties seized from the respondent, Julius Mahangaiko Chasama, which the applicant, the Director of Public Prosecutions, asserts are tainted. The application is brought by chamber summons, grounded on section 38(1) of the Proceeds of Crime Act, Cap. 256, R.E. 2022 (POCA), in which the applicant petitions the Court to grant the following orders: 1. A restraining order prohibiting the Respondents, their agents, or any person acting on their behalf from disposing of or interfering with the following properties: 1 a) Tanzanian Shillings One Hundred Million Fifty Hudren (TZS 150,000,000), seized from JULIUS MAHANGAIKO CHASAMA on 1st day of August, 2024. b) A motor vehicle, make Suzuki Vitara, registration number T 234 CAJ, the property of JULIUS MAHANGAIKO CHASAMA. 2. An order directing that the property mentioned in paragraph 1(a) above be deposited into a Special Interim Management Account with number 992115995, maintained at the Bank of Tanzania in the name of NPS RESTRAINED ASSET INTERIM MANAGEMENT A/C, pending the final determination of the Economic Crime Case instituted against the Respondents. 3. An order prohibiting the Commissioner General of the Tanzania Revenue Authority from effecting the disposition or transfer of ownership of the motor vehicle described in paragraph 1(b) above. 4. An order directing the Regional Crimes Officer of Shinyanga Region to keep safe custody of the motor vehicle mentioned in paragraph 1(b) above, pending the determination of the case against the Respondent. 5. Any other order that this Honorable Court may deem fit and just to grant. 2 Substantiating the application is an affidavit sworn by ASP Mfelo Kusula, a senior investigator from the Office of the Director of Criminal Investigations, currently seconded to the National Mining Task Force. The factual background from which this application arises is gleaned from the supporting affidavit and appended documents as follows: On 1st August 2024, the respondent was arrested at Luambano area within Kahama District, Shinyanga, while inside his motor vehicle, a Suzuki Vitara with registration number T234 CAJ. Upon being searched, eleven (11) pieces of gemstones suspected to be gold and cash amounting to Tanzanian Shillings Ninety-Six Million (TZS 96,000,000) were found in the vehicle. These items, along with the motor vehicle, were seized as indicated in the certificate of seizure, appended as Annexure A1 of the supporting affidavit. Furthermore, a search conducted at the respondent’s house in Nyasubi Ward, within Kahama Municipality in Shinyanga Region, led to the seizure of additional cash amounting to Tanzanian Shillings Fifty-Four Million (TZS 54,000,000), bringing the total amount of cash seized from the respondent to Tanzanian Shillings One Hundred and Fifty Million (TZS 150,000,000). According to the report from the Kahama Mining Commission, appended to the affidavit as Annexure A3, the eleven pieces of gemstones were 3 confirmed to be gold, with a value of Tanzanian Shillings (TZS) 121,456,405.36. It is averred in the supporting affidavit that the investigation revealed that the respondent caused a pecuniary loss amounting to TZS 121,456,405 to the Kahama Mining Commission as a result of unlawful trading in minerals. Furthermore, supporting affidavit and Annex A4 thereto show that the respondent caused a pecuniary loss amounting to TZS 8,866,317.59 to the Government of the United Republic as a result of unpaid royalties, service levy fees, and inspection fees. The respondent, along with his associates who are not parties to this application, were arraigned before the District Court of Kahama in Economic Crime Case No. 22759 of 2024 on charges of Leading Organized Crime, Unauthorized Trading of Minerals, Occasioning Loss to a Specified Authority, and Money Laundering, as shown in the charge sheet (Annex A5) appended to the affidavit. According to the deponent, the investigation has revealed that the properties seized from the respondent are tainted on the reasons that, the cash amounting to TZS 150,000,000/= was derived from the respondent’s illegal business of unauthorized trading in minerals, and his motor vehicle with 4 registration number T234 CAJ, a Suzuki Vitara, was used as an instrumentality to transport the eleven (11) pieces of gemstones suspected to be gold, along with the cash amounting to TZS 96,000,000/=. Claiming further that the money cannot be safely kept in the hands of the seizing officer (deponent), the applicant brought this application seeking the above-stated orders. At the ex-parte hearing of this application, the applicant was represented by Mr. Juma Mahona, learned Senior State Attorney. In his submission, Mr. Mahona reaffirmed and adopted the contents of the chamber summons and the accompanying affidavit. He urged the Court to grant the application, asserting that the properties in question are tainted, as defined by section 3 of the POCA. His argument was based on the fact stated in the supporting affidavit, that the vehicle was used as an instrumentality of crime, having been seized while transporting minerals, with TZS 96,000,000 found inside; and the cash amounting to TZS 150,000,000 was derived from illegal mineral trading. Mr. Mahona further pointed out that the charges of leading organized crime, conducting business unlawfully, money laundering, and causing loss to 5 a specified authority preferred against the accused person before are serious offence under section 3 of the POCA. In view of the foregoing, he argued that section 39(3) of the POCA, which sets forth the conditions for granting an application when a criminal case is pending, as in this case, had been met. To reinforce his argument, he cited this Court’s decision in DPP v. John Mwaseba Mwasikili, Economic Application No. 23511 of 2024 (unreported). In conclusion, the learned Senior State Attorney prayed that the application be granted, arguing that it has been substantiated on the balance of probabilities, in accordance with section 75 of the POCA. I have carefully considered the chamber summons, supporting affidavit, appended documents, and the arguments presented by the learned Senior State Attorney. The sole issue for determination is whether the application should be granted. To address this issue, it is necessary first to consider the provision of section 38(1) of the POCA, which is also cited in the chamber summons. This provision allows the Director of Public Prosecutions (DPP) to file an ex-parte application for a restraint order against the property of a person who is under 6 investigation, charged with, or convicted of a serious offence. The term "serious offence" is defined in section 3 of the POCA as follows: “..an offence against provisions of any law in United Republic or in a foreign state for a conduct which, had it occurred in United Republic would constitute a serious offence the punishment of which is either death or imprisonment for a period of not less than twelve months and any other offence in which property has been used or proceeds generated or benefit derived.” Applying the above cited provisions to the current case, the affidavit and the charge sheet show that the respondent has been charged before the Kahama District Court with the offences of Leading Organized Crime, Contrary to Paragraph 4(1)(a) of the First Schedule to and Sections 57(1)and 6C(2) of the Economic and Organised Crime Control Act, [Cap. 200 R.E. 2022] (the EOCCA), Unauthorized Trading of Minerals contrary to Sections 18(1) (a) and 4 (a) of the Mining Act, Cap 123 [R.E 2019], read together with Paragraph 8 of the Mining (Mineral and Gem Houses) Regulation GN No. 418 of 2019 and paragraph 27 of the First Schedule to and Sections 57(1) and 60 (2) of EOCCA; and Unauthorized Possession of Minerals, Contrary to Section 18(1) and 18(4) of the Mining Act read together with Paragraph 27 of the First Schedule and Section 57(1)and 60(2) of the EOCCA, Occasioning Loss to a 7 Specified Authority contrary to to Paragraph 10(1)of the First Schedule to and Sections 57(1) and 60(2) both of the EOCCA and Money Laundering contrary to section 12(1) (d) and 13(1)(a) of the Anti-Money Laundering Act, [CAP .423R.E 2A22] read together with Paragraph 27 of the First Schedule to and Sections 57(1) and 60(2) of the EOCCA. The above offences carry a minimum penalty of twenty years imprisonment, thus qualifying as serious offences. Considering that some of these charges are within the purview of this Court, I find that the ex-parte application has been correctly brought before the Court. In light of the respondent's lack of conviction, the next point of consideration is whether section 39(3) of the POCA has been complied with. This section stipulates that, if the respondent has not been convicted, a restraining order cannot be issued unless the Court is satisfied with two conditions: first, that there are reasonable grounds to believe the respondent committed the offence; and second, that the property is tainted or that the respondent has benefitted from the offence. Regarding the first condition, the affidavit provides evidence showing that the respondent was found in possession of gemstones, which were subsequently confirmed to be minerals identified as minerals. It is my considered opinion that if the respondent was indeed involved in the illegal 8 trading of minerals and failed to declare this activity to the Mining Commission, as alleged, this may constitute an offence that the prosecution must prove along with other offences. Therefore, I find that the first condition has been met. Turning to the second condition, when it comes to serious offences, "tainted property" is defined in section 3 of the POCA as any property used in, or in connection with, the commission of the offence; any proceeds of crime; or any property in the United Republic that is the proceeds of a foreign serious offence for which an order may be registered under Part VI of the Mutual Assistance in Criminal Matters Act [Cap. 254, R.E. 2022]. In this case, the facts indicating that the properties in question are tainted are detailed in paragraph 12 of the supporting affidavit, which states: “12. That, the investigation has shown that, the properties mentioned in Paragraphs 5 and 6 which are: a. Total of Tanzanian Shilings One hundred Million Fifty Hundred Thousands only (TZS 150,000,000/=) were derived it by the Respondent from the illegal business of unauthorized Trading of Minerals and there is no safe custody of the Money to remain in my hand. 9 b. A motor vehicle with registration No. T. 234 CAJ make Suzuki Vitara owned by the respondent is an instrumentality which was seized after been found carried eleven (11)pieces of gemstones suspected to be gold in the Motor vehicle and cash money to wit; Tanzanian Shilings Ninety Six million (TZS. 96,000,000).” Based on the facts deposed in the above paragraph, I concur with Mr. Mahona's assessment that the applicant has demonstrated, on the balance of probabilities, that the properties subject to this application are tainted. These properties are not only pertinent to the pending case but also subject to potential forfeiture under the law. In light of this, I am satisfied that the conditions outlined in section 39(3) of the POCA have been met. The final consideration is the nature of the orders to be issued by the Court. Under section 38(2) of the POCA, the Court is empowered to direct that the property specified in the application shall not be disposed of or otherwise handled by any person, except as stipulated in the order. Further to this, the Court may, after considering the circumstances of the case, appoint a trustee to take custody and control of the property or any part of it. In 10 addition, the Court has the discretion to order the disposal of any property under restraint if it is subject to natural decay, wear and tear, depreciation, or if its maintenance incurs substantial costs as per section 38(7)(a) of the POCA. Based on the foregoing, it is evident that the Court has the authority to grant the orders requested, including the preservation of funds in a specific account due to storage issues outlined in the affidavit of the investigation officer. Considering the circumstances, I am persuaded to grant the application, and I thus order as follows: 1. The Respondent, his agents, or any person acting on his behalf is prohibited from disposing of or interfering with the following properties: (a) Tanzanian Shillings One Hundred and Fifty Million (TZS 150,000,000), seized from Julius Mahangaiko Chasama on August 1, 2024. (b) A motor vehicle, make Suzuki Vitara with registration number T 234 CAJ, the property of Julius Mahangaiko Chasama. 11 2. The property [Tanzanian Shillings One and Hundred Fifty Million (TZS 150,000,000)] mentioned in paragraph 1(a) above be deposited into a Special Interim Management Account with number 992115995, maintained at the Bank of Tanzania in the name of NPS RESTRAINED ASSET INTERIM MANAGEMENT A/C, pending the determination of the case instituted against the Respondent. 3. The Commissioner General of the Tanzania Revenue Authority is prohibited from authorizing or approving the transfer or change of ownership of the Suzuki Vitara motor vehicle with registration number T 234 CAJ, as described in paragraph 1(b) above. 4. The Regional Crimes Officer of Shinyanga Region is directed to maintain safe custody of the Suzuki Vitara motor vehicle with registration number T 234 CAJ, as mentioned in paragraph 1(b) above, until the resolution of the case against the Respondent. It is so ordered. Dated this 2nd day of September, 2024. S.E. KISANYA JUDGE 02/09/2024 12 Ruling delivered through virtual court system on this 2nd day of September, 2024 in the presence of Mr. Juma Mahona, learned Senior State Attorney for the applicant and in the absence of the respondent. S.E. KISANYA JUDGE 02/09/2024 13