DPP VS MOHAMED ISSA SIMON s

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

CORRUPTION AND ECONOMIC CRIMES DIVISION

AT DAR ES SALAAM CRIMINAL APPLICATION NO. 000021676 OF 2024 CASE REFERENCE NO. 202408012000021676 DIRECTOR OF PUBLIC PROSECUTIONS ……….………….……………. APPLICANT

VERSUS MOHAMED ISSA SIMON …………………………..…………………….. RESPONDENT

RULING 07th and 12th August, 2024 KISANYA, J.: This application is brought ex parte by way of chamber summons under section 38(1) of the Proceeds of Crime Act, Cap.

256. R.E. 2022 (the PCA). The applicant seeks a restraining order for a house located at Kilangalanga area, Mlandizi within Kibaha District in Coast Region. The application is supported by an affidavit affirmed by Selemani Mbwambo, a police officer with the Drugs Control and Enforcement Authority (DCEA) in Dar es Salaam. To appreciate the essence of this application, it is pertinent to narrate the brief background facts as discerned from the supporting affidavit. On 1 July 22, 2019, while on night patrol in the Mlandizi area of Kibaha District, police officers conducted a search of the respondent's house. During the search, which was conducted in the presence of an independent witness, several documents were seized. The respondent then led the police to a store at the Kigilagila area of Dar es Salaam, where 23 boxes containing dried leaves, suspected to be narcotic drugs, were seized the following day. Additionally, on July 23, 2019, the respondent guided the police to the Posta Azikiwe offices, where 10 boxes that he had received from Ethiopia were seized. These boxes were submitted to the Government Chemist Laboratory Authority (GCLA), where analysis confirmed that they contained narcotic drugs, specifically khat (mirungi), weighing 285.89 kilograms. Based on the foregoing, the respondent was charged with the offence of trafficking in narcotic drugs, contrary to section

15(1)(a) of the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] (the DCE Act) read together with paragraph 23 of the First Schedule to and sections 57(1) and 6(2) of the Economic and Organized Crime Control Act, [Cap. 200, R.E. 2002] (the EOCCA). The case is currently pending before the Court of Resident Magistrate of Dar es Salaam at Kisutu, awaiting the committal of the respondent to this Court. 2 It is further stated that between 2015 and 2019, the respondent acquired and used the proceeds of the predicate offence to develop a house located at Kilangalanga area, within Kibaha District in the Coast Region. Believing that the said house is tainted property, the prosecution filed this application for the aforementioned order. The hearing of this matter was held orally, with the Applicant being represented by Ms. Blandina Mnung’a and Ms. Marietha Maguta, learned State Attorneys. In her submissions in support of the application, Ms. Mnung’a prayed to adopt the chamber summons and the facts deposed in the supporting affidavit as part of her submissions. She argued that the house for which the restraining order is sought is classified as tainted property, constituting proceeds of crime as defined under section 3 of the PCA. Further, she contended that the offence alleged against the respondent is a serious offense under section 3 of the PCA. Therefore, the learned State

Attorney urged the Court to grant the application and issue a restraining order to prevent the disposal or sale of the house in question until the case is determined. 3 Having considered the chamber summons, the supporting affidavit, and the submissions of the learned State Attorney, the key issue for determination is whether the application has merit. According to section 38(1)(a) of the Proceeds of Crime Act (PCA), an ex-parte application for a restraining order may be sought against the property of a person who is under investigation, charged with, or convicted of a serious offence. As indicated herein, the respondent is under investigation and has been charged with trafficking in narcotic drugs. As aptly argued by the learned State Attorney, offence of trafficking in narcotic drugs is classified as a serious offence under section 3 of the PCA. Furthermore, in terms of sections 2 of the DCE Act read together with section 3(3) (b) and paragraph 23 of the First Schedule to the EOCCA, jurisdiction over the offence of trafficking in narcotic drugs committed under section 15(1) of the DCEA Act alleged to have been committed by the respondent is vested in the Corruption and Economic Crimes Division of the High Court. On that account, I am convinced that the matter is properly before the Court. 4 However, it should be noted that the respondent has not yet been convicted. Therefore,

section 39(3) of the PCA requires that a restraining order against him or his property be issued when there are substantial grounds to believe he committed the offence and that the property in question is either tainted or derived from the commission of the said offense. The affidavit in support of the application suggests that the respondent was found in possession of boxes containing dried leaves, which were confirmed by the Government Chemist to be narcotic drugs, namely Catha edulis, commonly known as mirungi. Considering further that the certificates of seizure and Government Chemist Analyst Report were appended to the supporting affidavit, I am of the view that such facts are sufficient for this Court to find that an offence has been committed. It was also deposed that the respondent used the proceeds of crime to purchase the house that is the subject of the restraining order sought in this application. This fact suggests that the house in question constitutes proceeds of crime and, therefore, qualifies as tainted property within the meaning of section 3 of the PCA. 5 For the reasons provided, I conclude that the application is meritorious and satisfies the criteria specified in sections 38(1) and 39(3) of the PCA. Accordingly, I grant the application and issue the following restraining orders: 1. The respondent is hereby prohibited from disposing of, transferring ownership, renting, or mortgaging the house located at Kilangalanga area, Mlandizi, Kibaha District, within the Coast Region.

2. The Registrar of Titles, Commissioner for Lands, Executive Director of Kibaha District Council, and Executive Officer of Kilangalanga area are hereby ordered not to approve any sale, disposition, or transfer of the house located at Kilangalanga area, Mlandizi, Kibaha District, within the Coast Region. It is so ordered. DATED at DAR ES SALAAM this 12th day of August, 2024. S.E. KISANYA

JUDGE 12/08/2024 6