Ngutu Laurence Simon

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA CRIMINAL REVISION NO. 000033762 OF 2024 REFERENCE NUMBER 202412022000033762 (Arising from the Judgment of Resident Magistrate Court in Criminal Case No. 51/2021 delivered on 18/5/2023) NGUTU LAURENCE SIMON.............................................................. APPLICANT

VERSUS SIMON JOHN WALIA............................................................. 1st RESPONDENT DIRECTOR OF PUBLIC PROSECUTION..................................2nd RESPONDENT

RULING 24th & 26“ March, 2025 M, L. KOMBA, J.: This is the ruling in respect of the application filed under section 372(1) of the Criminal Procedure Act, Cap 20 R. E.

2022. The applicant, Ngutu Laurence Simon through his advocate is moving this court to call and examine record of criminal case No 51 of 2021 for the purpose of satisfying itself on correctness, legality or propriety of the order passed by the Resident Magistrate Court of Musoma (the trial court) in respect of directing PW3 to hand over the applicant's motor vehicle make Toyota WISH with registration Number T. 691 DSS (the vehicle) to the 1st Page 1 of 8 respondent. Further to order PW3 to hand over the said motor vehicle to which was tendered as exhibit PIV together with registration card PVI to the applicant. The application is accompanied by an affidavit deponed by the applicant, both respondents filed counter affidavit. Briefly, applicant bought the said motor vehicle from a person by the name of Suzana Charles Waryoba on 12/03/2021 as per sale agreement annexed to affidavit of the applicant. He registered his ownership by changing the vehicle card and enjoyed the ride till 23rd April 2021 when the motor vehicle and sale agreement were seized by police with force number E. 1574 D Ssgt Stephano (appeared during trial as PW3) for investigation purposes on allegation that it was proceed of crime suspected to have been committed by the 1st respondent. The charge against 1st respondent was not proved and he was acquitted. When acquitting the 1st respondent, the trial court

ordered PW3 to hand over the vehicle to 1st respondent. When the matter was scheduled for hearing, applicant had legal service of Mr. Paulo Mng'arwe, advocate while 1st respondent appeared in person without representation and Republic, the 2nd respondent was represented by Ms. Natujwa Bakari, State Attorney. Page 2 of 8 Mr. Mng'arwe submitted that the applicant was not part to the criminal case but was deprive his ownership of his vehicle that why he filed this application as was decide in Nondo T/a NJ Petroleum SPRL and Another vs Broadgas Petrolieum Tz Limited and 3 Others, Consolidated Civil Application 165/16 and 518/16 of 2019. He went on submitting that the applicant is lawful owner of the vehicle as he purchased from Suzana Waryoba and changed the ownership to his own. However, he went on submitting that the vehicle was seized and it was associated with criminal case (exhibit PIV) while registration card was tendered as exhibit PVI. When the criminal case was over, the vehicle was not handled over to applicant who is the owner but the trial court ordered the vehicle to be returned to 1st respondent. That order deprived applicant his right to property as he legally purchased the said vehicle and applicant was not party to the Criminal Case No. 51 of 2021 and was not heard before his property was ordered to be taken by another person. To him the order was wrongly issued.

On the affidavit of the 1st respondent, counsel submitted that 1st respondent claimed he was the one who bought the said vehicle and registered in the name of his fiance but he did not attach any document to prove the vehicle was bought in his name and therefore the only evidence to be relied upon is registration card. He insisted that the Page 3 of 8 trial court decision on the disposition of the vehicle in question was not right and prayed his prayers to be granted. The first respondent complaint of the failure to attach affidavit of the seller of the vehicle as she was mentioned in applicant affidavit. He insisted that failure to attach the affidavit make the application incompetent. However, he submitted that he is the owner of the vehicle submission which is supported by his affidavit in which at the 3rd paragraph, he deponed he purchased the said vehicle in one show room in Mwanza Region and decided to register it by the name of Suzana Charles Waryoba who was his fiance. In a different note, he acknowledges that applicant was not party of the criminal case but he prayed the prayers by the applicant not to be granted. Ms. Natujwa for second respondent resisted the application and submitted that the application originates from the criminal case No 51 of 2023 where 2nd respondent sued the 1st respondent who was accused of receiving money which was used to buy the vehicle in

this application, the vehicle which was considered to be proceed of crime. She went on submitting that the second respondent was not satisfied by the decision of the trial court, they filed an appeal which was not determined and currently they have Page 4 of 8 filed an application for extension of time to appeal out of time. In her affidavit, State Attorney deponed that the pending application has reference number 202503142000006485 and that there is likely hood to succeed in their appeal which they intend to dispute orders of the trial court. State Attorney further prayed this application not to be granted as it will prejudice the 2nd respondent bearing in mind there is pending application on correctness or legality of the order. Further, she attacks the application that this court cannot give right to any party in revision in which three parties are claiming for the ownership of the said vehicle. In revision this court is only analyse correctness or otherwise of the orders, she insisted. When given time for rejoinder, Mr. Mng'arwe clarified that they indicated in their affidavit that Suzana responded the call and denied to swear affidavit, he prayed to be noted that Suzana has love relationship with 1st respondent so they might collude in one's favor. However, he submitted that first respondent did not prove that he bought the vehicle for his fiancee he did not attach receipt

neither affidavit of his fiance. About the pending extension of time filed by the second respondent he posed that, stay of the matter may be applicable only when the matter is at the Court Page 5 of 8 of Appeal. He insisted that the remedy for applicant is correction of the trial court order about vehicle so that the applicant may file civil suit to claim his vehicle if the order will be issued otherwise. In the light of the submissions by parties, the issue for determination is whether application has merit. There is no dispute that applicant was not party to Criminal Case No. 51 of 2023 in which his motor vehicle was involved. Neither has there been any complained of the contract for sale between the applicant and the vendor as can be traced at paragraph 3 of the applicant affidavit and paragraph 3 of counter affidavit of the first respondent. All parties are aware of the order of the trial court that the vehicle has to be returned to the first respondent. To narrow the analysis I shall start by answering the question who is the owner of the car. It is the Road traffic Act, Cap 168 R.E 2002 which guide the registration of motor vehicles and make it mandatory to print names of owner(s) of the vehicle in the registration card. Section 11(3) provides; S. 11(3) Where a motor vehicle or trailer is owned by two or more persons, the registration shall be effected in the name of all

the owners; and in no circumstances shall registration of a motor vehicle or trailer be effected under a business name (whether registered or unregistered) or under the name of any unincorporated body: Page 6 of 8 Provided that where the owner is a society registered under the Societies Act 3, the society may be registered as such owner. Reading the attachment of paragraph 4 which is vehicle registration card, I find the vehicle was owned by Suzana Charles Waryoba and then ownership was transferred to Ngutu Laurence Simon. That means, as deponed by the applicant, vendor owned a vehicle and she sold to purchaser and the latter changed ownership of the vehicle. By the time the vehicle was seized it was owned by the applicant and seizure was done at the applicant premises. What make the trial court to issue an order that the vehicle to be handled to first respondent is not submitted by parties rather, second respondent submitted that the vehicle is claimed by three parties. If all parties did not dispute of the existence of the order and what was deponed at paragraph 4 is that the vehicle was seized from the applicant the fact which was not denied by the second respondent, then, the trial court erred to make such an order that the first respondent is the owner of the vehicle. However, under section 11(3) of Cap. 168 the owner of the vehicle is identified via the vehicle

registration card. In the absence of any other court order, the trial court order complained of is not proper because at page 27 the trial Magistrate writes; Page 7 of 8 'the accused person properties which we (sic) I saw and tendered and received before this court as exhibits after being seized by PW3 and PW9 to be returned and handled over accordingly to the accused person, and those properties of the accused person are as follows;-' From the excerpt, what was intended to be returned to accused were his properties. The vehicle which is subject to this application is not the property of the first respondent according to section 11(3) of Cap. 168 and therefore was not supposed to be returned to accused (first respondent). In the end, I find the order of the trial court specifically at paragraph 1 (iii) which is found at page 27 and 28 of the Judgment issued on 18/05/2023 about vehicle with registration Number T 691 DSS TOYOTA WISH was not proper, I quash it and set aside. I further order the trial court to correct its order reflecting the records indicating the owner as per attachment 'NLS 2' in paragraph 4 of the applicant affidavit. It is so ordered. DATED at MUSOMA this 26th day of March, 2025. K M. L. KOMBA Judge Page 8 of 8