kayo donyo shangalima vs director of public prosecutions 2023 tzhc 21861 17 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL REVISION NO.4 OF 2023 (Originating from Misc. Criminal Application No. 4 of 2023 in KisaraweDistrict Court at Kisarawe) KAYO DONYO SHANGALIMA ~~\"; '....•.. , APPLICANT -, Vs DIRECTOR OF PUBLIC PROSECUTIONS ....:~••••••••••:,••••.•~.':~,;~:~;".RESPONDENT , '.' . l \ '\ Date of last Order: 6-9-2023 Date of Ruling: 17-10-2023 i i \ . B.K.PHILLIP ,l . " This application .i~ made under. Sectlon '372(1) of the Criminal Procedure Act and Sectio·~··A~(l).(~)~'9f. th~~.NfagistratesCourt's Act. The applicant's ... , \ " prayers ,are-reprQalJc~~ verbatim- below: "r. '''' "'\,."" ~ ,.'. ,'" -~."., .. <, v., ~ I ;' --, -_''''', , ". '. .. '-.' ... -",~/ J)i, T,natthis -Honorso/e court be pleased to call for and examine the records of \KlsaraweDisf'tict Co(j~}n Misc. CriminalApplication No.9 of 2023 for the purpose oi" '~ati~fying ;ts~/f as to the correctness, legality, or propriety of the finding thereif1":'a~d:_ ~rders recorded or passed and as to the regularity of all such proceedings therein, and thereby i) Set aside the order of forfeiture to the Government of the United Republic of Tanzania 299 of heads of cattle .ii) That the proceeds of sale of the 299 heads of cattle amounting to Tshs.74, 750,000/= be paid to the applicant herein as and being the owner of the cattle wrongfully seized and sold 1 2) Any other orders deems fit andjust The application is supported by two affidavits. The first one is sworn by the applicant, whereas the second' one is sworn by one Yoria Donyo Shangalima, the applicant's son. The learned State Attorney, Clarence Josemary Mhoja, .appeared for the respondent and swore a counter affidavit in opposition to the application. The appllcant.was , , represented by ">..... ""''\ the learned Advocate, Denis Msafiri. r>: \ "', ""'>"", " \ '\" .., .... "<, "\ "", I' ......... "\ ~. " 1') The application was heard ex-parte aqainst tlie"--re~PQ[1derit"iJnte the .\~'\-, ....., '\ \\. ). .... <, "',.),v learned State Attorney defaulted in enteril1'g",appe~'rah.ee·"-in~~~ourt on the ...-." \'. \ \ J hearing date, despite being aw~r~ ~f~~~~~,~~q?!~~,~at~;\~hiChwas fixed in his presence. <_~\\"»"""\',~:_"~>,,,, -~~~~~~_.~~/ \,/ /. __.- a ~, \. ','-')" r /" ','" ",.\" Mr. Msafiri started his sUDmisSiol1_"by"~dopting~ \ \ r >. ',', -, the contents of the two affidavits in supportof th'~\qppH~a5bQ'>,~nd~:went on to submit as follows: "-,' " 'J '\ ' On April 6, 202-3,-""the'" pi$trict;"'Court ,of/Kisarawe (henceforth "the lower ,/ ", '\.", '\, '.. .......... ~ .... "W-, .... / / /j "./;1.".'-.,.' .. "'\ -V"<"l»\\, ~''<,:._ ;., '/ . Court'') order,e~",!he'\f~ctioh ,p,f,.~99'-he'adsof cattle, which belonged to the '" '\_ applicc~At;--Fucthecm<?re,,~t,,>qrde_?ed ~--- the deposit of the proceeds of the ... I' " ,.~"""_"'__,-,~ <, "~.._ "''\,\',,'' ...\ <, < '" ,.":: auction' in thaEorfelted Assets and Revenue Collection account No. \\ -,\ \ """\,, , , - 52010101511 at NMB "\ \ ., \ Bahk and issued a notice that if the owner of the said 299\-h'~ad,sot)c~ttle ... ..··~w_......' shows up, they can be refunded the proceeds of I <, " the auction. ~;rr:-'-,rv1safiri contended that the above-mentioned orders were made in the absence of the applicant. The applicant became aware of this on August 8, 2023. The 299 heads of cattle were auctioned for Tshs 74,750,000/= only. The application filed at the lower court stated that the 299 heads of cattle were found in Nyerere National Park, and the owner 2 I ·1 I I was unknown. The respondent moved the lower court under Section 47(1) _ of the Police Force and Auxiliary Services Act and Section 2S(1)(d) of the National Parks Act, read together with Regulation 7(i) and 12 of the National Parks Regulations GN. No. 50 of 2002, to issue the aforesaid orders. Moreover, it was Mr. Msafiri's contention that the &~q~Vits in support of <, \\, this application show that the 299 heads' qf-'c~ttle vvete, seized in the '\ "-' :'\ . \ '>', ".. -, ", /''''. presence of Yona Donyo Shangalima, who was\'taki1~g,care<ottl\ehl. He' :.r"", '. \ ""'" ~ ......... '\', ,," was arrested by the Park Rangers and' p~~,,,,unde(tysto(;hi.-f~,r<fhewhole • " .• 1>,. • I' '-_,' night. The applicant made a follow(iJP:of.-_hiS"~tattle.\Hewent to the place ''""''''_ ~<. ", ~' ..<, •.. , ....... _ <:': ..'...,' \-\~~'~:\ where they were kept. He introduced 'hfmself"tcJ,tne Park Rangers as the .r: ,...- -c , • -, ....... "",-..\'\. • "" ",\ . .""" ........ '_ .•••• _': owner of the 299 heads-of- ! /. catnex.and ',~.... '- ift"r:esponse, '\, " the Park Rangers directed him to leave th~f(~rea 9ri'a",J~ld·:~hi.[l1\lZtHat he would be informed ('" , \\, ' \.. ~'". r ...... '.. '\.\.. '\."" "\'-" ") when he could buy-bade \\h~ ctittle~·"M~. Msafiri was emphatic that the affidavit in' s~PPO(t-"of"'t~\\~~~lltatien~,fi)ed at the lower court contained " '\ \~ < :<J "'\_-'\~" .......... _~~_~."'/ -._~ wrong informatron, an,d the '.application was filed with ill intent to deprive .. r~ '~"' ....... , ";~",."'\',.,,~ _~'~'''''''_'''' .... ,...' ..... ,':~ . the applicant of his,cattl~"b¥'sellihg them clandestinely. I,· ,,:/ -; '<.. "h\.. -.-', '., <: , \ :~':\ ,:..,..:.\ \ "'''. -, Referri,f1Qto this":cbprt't~) Section 47(1) of the Police Force and Auxiliary -, \. , ) Services'Act, Mr. I'1safiri argued that the Police officer has powers to seize <, ""~'""'~.~"'/ ./. . unclaimed rnovablE{ properties and furnish an inventory or description . thereof to a Magistrate, whereas Section 47(2) of the same Act provides that if the property is not easily perishable, then the Magistrate is supposed to issue an order that the said property be kept, and a notice in respect of the existence of the seized property be affixed in conspicuous places, including at the Court and Police Station within the court's jurisdiction. The 3 notice has to specify the property and call upon anybody claiming to be the ________owner of the property in question to appear in court within six months from the date of the notice. If the property exceeds Tshs 50/ =, then the Magistrate is supposed to order that the notice in respect of the property in question be published in the Government Gazette. Pursuant to Section 47(3) of the same Act, after the expiry of six (6) months, ., the court can '. "'\, .. \~ order either the auction or destruction of the property ln.questlon. \~:~~"-..- "'" :> -, .r. It was Mr. Msafiri's argument that the 299 heads\~f.,~~tt,le wereoapable of •.r.~~~ \ \_ ".... - -, ~ ~", __ _of" being kept for six months while awaiting"the ow'h~r tEl,sh~w-..,~)1;and the . ..;."......" '<\:"...'1\>. \\ \," //' '''. ,._// notice in respect of those cattle (~qS,"SMPPQs~,dtQ\be published in a ..... ~, ... ~", -"'_' .. - '_"':;-"'" '\'''' ,.:\ Government Gazette because th~"\(~I~e:'·oT"299:J,.~ads\df cattle was more r'~.-"""--"" '\'-" -. ~"'" "1. -. ,- ..... ~.- ............ ~ than Tshs. 50/=. He contended that-the appli<;ation for the auction of the . j " "',\ -, "- cattle was filed on April ~,(2022f,/aflq hearrq, ,."'\. \. \ <" _;,"", "". -, -'\ and determined on the same. day. No notice was \is~u,ed'\to"the" publ.(C"antJ the order for the auction of the cattle wa~/:i~s~d, ·~~fo.l\~"~h~';eXJ:>i4)of six months as required by the ,.' (" \.\~, '\.. \'~<,~ -, -,-,~.,... ......... ..." law. "''':'') L_ "'~'\""" / ...... /- -.~-.-. ". '''-'>/,' ------:~: ... '<, "'<> Commentlnq'on-the.Counter-Atfldavlt sworn by the learned State Attorney \ \ "" '\. ".', in OPP~$!tionto lh:~s,.,ap'pll€ation,Mr. Msafiri submitted that the same is full of gen~'r~:t··~enial~~)thus it did not shake the applicant's affidavits. In "'~ '-. ,~-,-~ .. " _,/ - addition, Mr.-"Msafiri argued that the fact that there is no counter affidavit sworn by Mr. Nchambi Nguza Sema, the one who seized the 299 heads of cattle, is fatal. Mr. Msafiri was of the view that the 299 heads of cattle were sold at a throwaway price of about Tshs. 25,000/= per head of cattle at a flat rate, 4 _whereas 130,000 heads of cattle were big enough to be sold for Tshs. 800,000/= each, and the remaining 169 heads of cattle were big enough to be sold at the price of Tshs. 450,000/ each. He' contended that the lowest purchase' price for all 299 heads of cattle was Tshs. 180,050,0000/=. Therefore, there was a loss of Tshs. 106,700,000/= compared to the proper value of 299 heads of cattle. r"> , '. ... "'. , -. ' ..... \, "'., \\." " In conclusion of his submission, Mr. Msafiri implored this"~Q~rt to set aside \" ~.>..~ -............. '''..." " ~['. the lower court's order for the forfeiture of the' .299 -heads of cattle and . <H"> ....,\\. \ '."._ .. -, ..... ")~'''"'~>~, -''-',,''''''',,:::0;,/.1 order that the applicant be paid the proceedsof .... tn~\~~ct;ion,'.~wrichis ., Tshs. \,.... " ...... r=«; \\. _'. \ .: .J 74,750,000/=. Moreover, he w~;, Of<~~t~~~~:Q~~~\,th~~\\PPlicantcan claim the difference between the alleg~qly 'proper-valeeof-the 299 heads of »: _,...~_ '" \, '1,,\ ", " .>, <,.. ,J cattle and the proceeds /6f/th'e auc;;~iqnC'1lsb,s.106,700,00/=) from the respondent in a separate ~J.it. : .I /-'." ", '" "1, .;..,. "<,'>:, ,,~ " \ \ \ . <.; / '\ '~. \, ". \ \, -",./. '''-,- .. ' _ . Having analyzed _t!le su'p!1Jiss(bn, made ~bylthe learned Advocate Msafiri and perused the ~~a~~,"filed"~~, ..~he;~ppfi'~a~tin support of th'is application, as ",', " \ ...., '. well as the_lo~e~'c:oJrt's...r:ec~'rdS~) let me proceed to determine the merit of ""/',.- .' ............... '''l. '{ v ."."'- <, -"""::"'~,.~,.;'~" "..,.;~ this ~Rpii(:a-ti0Q';'",The ·tpsk·'·'of)this court is to determine. the correctness ! '\ "\ "\." . "', and/6'I\.'propriet:Y\9f the.proceedlnqs of the lower court and the orders \ I " '\ '\ • made therein. As )cprrectly submitted by Mr. Msafiri, the lower court's -, <, /J'"': records reveal-t'8afthe 299 heads of cattle were ordered to be auctioned following the application made by the Republic/respondent herein under Section 47(1) of the Police Force and Auxiliary Services Act (Cap 322 RE. 2002), Section 25(1)(d) of the National Parks Act (Cap 282 R.E. 2002) as amended, read together with Regulation 7(i) and 20, both of the National Parks Regulations as amended, praying for orders that the unclaimed 5 property, namely 299 heads of cattle found in an area within Nyerere National Park and seized by Park Rangers, be forfeited to the Government and be disposed of by way of public auction. The learned State Attorney who appeared at the lower court tendered in court a map showing the area where the 299 heads of cattle were seized, that is, within Nyerere National Park (Exhibit P3), the certificate of seizure (Exhibit P2J, '. and a copy of the '\_. ~\. '>, notice on the seizure of the 299 heads of cattle (ExhilJit,P4). In addition, .. . . (""'.......... the lower court visited the kraal where the 29Q ...., of G~tt'~ ~.er~ kept ,,~e,~o~, -: \, \ ...... v. "'},,,.~- ..•• \ ..... ~ ~ ,/' and said 299 heads of cattle were admitted-as Exhfb,it Pt, ·coll.ectiV~IY. \\:,,"<:/"'" /'" <:>,. <, .: :> Back to the merits of this applicatiori~~"'inorder: to'xaddress Mr. Msafiri's .<, ""< .:~-<""""".",~""''"'$'''' -, "" '. \\ .~\ arguments that the lower court Cli~"Qofa'pi~e-bY1he"pro-ceduresprovided in -.~.-. -""" \, '\.", '-...... , .. '"....<, , ;; Section 47 of the Police For~e·ahd Au~ili~rY'S~'Yices Act due to its failure to f r ','\ . "', "\ . issue a six-month notice ~t{or \ \ the"qrder.·fQr th~auction of the 299 heads to ,,,'. ' \ of cattle, I need to ~t~r::t 8y"lookih~'\~t':the""p~ovisions of Section 47 of the '.', ", ) / Police Force/a~a::f\4xi\fi~tv"., 's~ryiCe$:·/~(:t under which the lower Court "".t' \, \. "\." \, ....... c,.;_.,,:.,__ ....... ," . ordered the c3-u:?tion o(the 29~'·reads of cattle in question. For clarity and ...- - .,-..- ....._ '>, . \,," .' "-._"-',............ '\..) ease of /unde,rstand,ing the .... ~ornihg discussion, let me reproduce the whole f. ( .,"<:::' ~'' ' ' ....,,,", ~.\... . -......."\.,._,/ . of Section 47 of the Pollee Force and Auxiliary Act below: . \ \ v. \ "" ''\ . \, \\ \ ',.... ' "~7~(1)...!tsha/~':b~the duty of every police officer to take charge of all unclaimed movable prOPftFfY·ahd to furnish an inventory or description thereof to a magistrate. (2) If such property is neither money nor property subject to speedy and natural decay nor property the immediate sale of which woutd. in his opinion, be for the benefit of the owner, the magistrate shall detain or give orders for the detention of any such property and shall cause a notice to be posted in a conspicuous place at his court and at the police stations within his jurisdiction specifying such property 6 and calling upon any person who may have a claim thereto to appear and establish ' his claim within six months from the date of such notice. If the magistrate is of the opinion that the value of the property is clearly in excess of fifty shillings, he shall also cause a similar notice to be published in the Gazette/ the date by which any person is to establish' his claim to such property being the same date as is prescribed by the magistrate in the notice which he causes to be published locally. r- f "'. (3) Such property, if no person shall within six mont/js,Jrom the date of the '--<if ~"'\ notice aforesaid establish his claim thereto/ may b,~~sQ!dor; if'~~e"magistrate thinks \ c , ......-. -, '\ r it expedient may be destroyed by order of the magis}:(at~/'alJd ori·,t_he,cOl}lpletion of \ .., <, -. """'>,. __• ,~\ ,,,~ ... t! /' the sale or destruction the right,to take legalprpceedings fo/:iHeir.recolte/y of 'such' . -, ",. '"\"'-\ -\. 1\ .:,/":>""';/"' <, ~••''''•..,.'' =, property or the proceeds of such sale fhal(,:ease:">,, '-..,'// .J \,~, , ........... ........ ~ ,,'-. , ,\" "''- '. \,\ \:\ Provided that if such propertY)s a 'fiF~~rm:?JI:""~'m;r/UnitiQ"the magistrate may . • '\\.\'\.",,\ " 'v., ", .....~. ""~ ,,"-,:... .., ~ ..~ order that it shall be dsoosedot' ii7<~uph tnsnner as'-the Inspector-General may ,,/ ~ . ......... ~- ", "'. \" .. "'''\ direct { .' . ">, ';,', i~i .:, .( ;tI";"''\, -, ':', '-, '\_:"\I \ " 'I: \.' <,' /"~"'.>, " ." (4) The proceeds-or th,e, sale, of St{cl? property shall be apportioned in the '\., .', "', -,\ " '" ... ", 1 ) following msnner-. <;. ". .• ",. '<, "'" ./ I / (//,;/"'-'"~'~(\ ""'<>\ -',,:~]C~:··;; ,/ ., .. -, -c, _.,." (a) oi7~~h{!lfsh,a/Ibe paicfJf(, the credit of the Police Rewards Fund; / .....'_----,_, ""'<\'v/' /_~~~',~>"-" <, '>"<.'> " (b) ~"'-s£ii::hpj-opbrtioij",·'O"'the remaining one-half as the magistrate may direct f "r "~'\'~' <. \~, " '_ ' ', , ""-.~,,, shal/\be paid t01he fiiui/:r,of the property; and \ \. \ ~,"'" \__ \~ ,-, '\ "\ ' ....,<#'I t .... \ •. (i)<:~~he Balaf2y shall be paid to the general revenue of the United Republic. <, . -,,",,...~ ..... ~ -c, ~'?-""_.'~// (5) If the::l11agistrateis of the opinion that such property is subject to speedy or natural decay or that its immediate sale would be .for the benefit of the owner the magistrate shall'detain or give orders for its detention and mal' at any time direct it to be sold without having caused the notice prescribed in subsection(2) to be given prior to the sale or, if he thinks it advisable to do so/ he may order it to be destroyed On completion of a sale 7 • or destruction under this subsection the right to take legal proceedings for the recovery of the property sold or destroyed shall cease. [ss. (5A)J (6) The proceeds of such sale shall remain in such custody as the magistrate may direct and the magistrate shall immediately after such sale cause a notice of such sale to be posted in the manner prescribed in subsection (2) specifying the property sold and calling upon any person who may ha ve~i!ny claim to the proceeds { , of such sale to appear and establish his claim within sif(' montns . from the date of " '\" ~''\ such notice. [ss. (58)J r>: ",., "'" \, ~," <. ",. ." \ '. ~,~ '~., ','", '>. ,/.r -,, (7) The proceeds of such sale shall be p?Jid to 't:4e., pei:~on ..who.:~staQlishes his ("', "'\, \, '\ ."':'} -"''''.''''_' ",~" }tJ' claim thereto. On the expiration of six monthsttom ...... th?\date .ot: such notice, if no '_ • f.' • I' person shall establish his claim theret(;;'~l:lzeIigh?'i~'take''jeg~/ proce~dings from the /~ ',--,\,',".>,".. ........... -, "~" ........,,- '\ . '"'" ' \, \ \\ \ recovery of such proceeds shall (c~a.~e,·'aijd.,suclt:pt9.fe~ds,:§hall be dealt with in - ". ;,.'\ '-". -". ~.. -. accordance with the provisions of subs?6(ion (4);:-.[ss. (5G)J/ /~ $ _,..~ _.j \ ..... ~.:' '~'\ '1:." ,- ' \., (' 1/"" "', -, ,,"", '\;. >, -, (8) When the unclaimecAmovableproper(Y \ -_. i / '- ,consists of money the same shall '\ \.. . be dealt with in all resp~c~ a}.(f'it w;;~e"th~"I:r.pc}e8s of a sale ordered by virtue of the .. -. \" "" ) ! provisions of s.ubse~tionsjZ) anf:l(B.). [ss./ojf' ./ >/'~~"-'<'\\."<~""\"""<~.:~:=:>/ (Emphasis is edded) \ \ -, "\ "', 'c, j i "'",'.... ", // -"---''''",",>,,/ ".-=-'~.»:... "<> Section/47(S).'of the-Poflce.Force and Auxiliary Act confers discretionary ( ( ""''>, "...... ".,' -, ' •. ' • powers. to the c0ud, to.Issue an order for the sale of unclaimed property \ \ \, '. '{/ . > • \ ', withoue·,giv,ing the' notice prescribed in Section 47(2) of the Police Force and AUxiliah;.::~g::~'si~cases where the court finds that the property in question is of speedy decay or where it is of the view that the immediate disposal of the property will be of benefit to the owner. In this case, the proceedings reveal that the learned State Attorney who appeared at the lower court informed the trial Magistrate that the 299 heads of cattle were kept in an area where there was no grazing area; thus, they were subject 8 • to starving if kept there for a longer period. The affidavits in support of this application reveal that the 299 heads of cattle were seized on April 2, 2023, and auctioned on April 8, 2023. Therefore, they stayed for more than five days without proper grazing. I have noted that in his submission, Mr. Msafiri did not address the issue of the availability of grazing areas and water in the area where the 299 cattle were kept. and, how it was possible to keep them for six (6) months. With the undisputed facts explained ", """ (~~-- ""'~"", . \ ""'\ '.. -, . above on the challenges of keeping the said\~\9~···b~ads·,~f"ca~le) for a '," ~ . '-. ; -',.J ~ longer period, I am of the settled opinion~t~at bY~i~Su~~~tar:t_'6~der' for the , ':-", " ' \, ,.'1 ,;,! ••'''...... v, ....\ auction of the 299 heads of CCl ttl e, the:",J..owe~"'" .eourt 'exercised its . \ .\:~.. ~''''''-,-..... -- -, ....... '_'\'. \_ \ discretionary powers jUdiciOUSly;,,:'~~her~i~,e::!~Et.,,€O,~S\~9Uld have starved and died. With due respectto-.Mr>Msafirii,)"a~·"·hotjnclined ',!' _. ._ ...t '\, ... _' .. '. "\ ~'\",: to agree with him that the cows were c~!(;ble O!/~~in9"k~pf:~f.er, a longer period since it is obvious that 299 covys~n~~~,a la"rger\· ..gr~zin!~j')areawith canyons and/or big ..., \.'" ~, -, >) ,\ :/ ponds for drinking""Yate~;'" \,.<:-.<, ,/,/<'/~---".,.>\ ..._'<'"'.:,./ . ."",:."'" ". ....._ From the for~gpiog, }.1'[_. Ms~firj!$ concern about the speedy disposal of the .""'----.......: .~"'-t~~~\ .,,"/' ~...~. -....'~,...... ""'. ~): applic;a·gOfl'-,.i.~i""ln·"',rnY opinIon., "misconceived because the delay in the ! :' '" ~ ", '"~ -,. ----.. ....... J ""_' ,- ., f • • \" ,{ .''\ .~\ determlnetlon Qf.Jhe application would be to the detriment of the owner of \ \ -, '\ ''"'' the 2991~eads of ~a~le, ~~ they could have died of hunger. In addition, the ',""'" ) / . lower court's.records show that the application 'was filed under a certificate '--.~-~~_...~_' of urgency, so it was quite proper to have it disposed of expeditiously. I ' I have also noted that relying on the contents of the affidavit in support of this application, Mr. Msafiri challenged the contents of the affidavit sworn by the Park Rangers, claiming that it contains false information, namely, that the 299 heads of cattle were seized in Nyerere National Park. My 9 • stance on this argument is that the affidavit sworn by the applicant cannot be treated as a counter affidavit to the affidavit sworn by the Park Rangers in support of the application that was filed at the lower court, and, in fact, it did not counter all the facts deponed by the Park Rangers in his affidavit, which includes the map (Exhibit P3) showing the location where the cows were seized from, namely, in Nyerere National Par:K",.2.8kilometers from ~ .. '\,._ the boundary. '" (,..,...~ . -.<, . .,.,.\-. In his affidavit, the applicant deponed that \o},:""Ap-riL8, "202~./rJ;e was ,.~. ,,~'\ "<, :'~''''''... \,,'_ (,' informed about the auction of the 299 h~~'~s,of ~attle/bY/·hi$···r0aa~aifriend J"'''"'~'''''' ""'\'\'''''_ '\. • "l/ '''-'-''''/' called Simango who llvesln Kitonga'I~,~~t~~g~,'\aQ,d,.uP9A\close follow-up, he /r \'" \"'" "._" -"_""_~' -, "\.., \ \ managed to find the' person Whp·."bought,the.)aid ..,299 heads of cattle. . ,.-.•...- -"", <~\\<,.\..~~\ -, ""'-.'\_"\. '-. ",) However, the applicant did _.not fi'le'\'qny"'\,'<affidavlt sworn his friend t: ,( ',. ". ',"" Simango to sUbstantiateV~\is a~~e~!q.~···"ato\~ \stated. In my opinion, the failure to file the affidavit \s~qr~""6y Sin,ang"d is fatal in substantiating his / .."':""..... """\. >,\\, ,"'"'''' l ,/ assertion that.he. was nof'aware-oF·-tne/ auction of the said 299 heads of ./ ./ "., \ "\.~: " ""'_" c. _ ..... ~' \ ~.i' \., , '\, '.... " . __ 4'" cattle, whereas.>.pe~ngY" tha(trey were seized by the Park Rangers, as ....-.-' __ ~ '''\'', ~/ f .~._._. ....,), . deponed-In.hts affidilVitISee ...the case of Airtel Tanzania Limited Vs (r I "'-'... . '>..•." '"\ '" • -, ~ """"" • _,/.) Mist~~I.ight \"'~I~ct'ri~aJInstallation Co. Limited and Arnord \ \ " \ "J Mulashan,i, Civil \Application No. 37/01 of 2020 (unreported)]. It is " -. '<. ) , .; also worth"nQtin~;~(that ...... _-_ ....,. the application for the auction of the 299 heads of cattle was made under the proper provisions of the law, so the lower court was properly moved. In conclusion, the applicant's prayer for an order that the 299 heads of cattle were unlawfully seized and auctioned is dismissed. With regard to the value of the 299 heads of cattle, the applicant has not substantiated his assertion that the said 299 heads of cattle were worth 10 ... _ ~ --- -- -- -- ------ -------------- • Tshs. 180,050,000, not Tshs. 74,750,000, bearing in mind that in an auction, the price is determined by the current market value of the auctioned property at the time of the auction, and the highest bidder is the one who buys the property in question. After all, the applicant was not at the auction, and there is no evidence regarding the market trend and prices of cattle at the time the auction in question took place. On the applicant's prayer for payment of the sum of Tshs. 74;750,000, being the ( . proceeds of the auction, I am in agreement, with ,Mr. Msafiri that the applicant deserves to receive the proceeds of the auction' because the law provides for it, [see Section 47(7) of the Police Force 'and Auxiliary Act]. ""t " ~ - ..~ '. \ Since the lower court ordered that in 'case the-owner of , the heads of cattle ", ,.,,' ./ in question shows up, the proceedsof the sale can be refunded to him/her, what the applicant is supposed to do is -to cornplv with the lower court's , " order. c J'" In the upshot/'thf$, application .succeeds to the extent explained above. I • r .", i ' , .- give no order' as to costs. 11 ~,-- --- ---------