CRIMINAL APPEAL NO 260 OF 2022 NOVATUS ANSELIMI MOSHY VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA ( CORAM: KWARIKO. 3.A.. GALEBA, 3.A. And MASOUP. J.A.1 CRIMINAL APPEAL NO. 260 OF 2022 NOVATUS ANSELIMI M O S H Y .............................................. ........ APPELLANT VERSUS THE R EPU B LIC..................................... .....................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Kigoma) (Mlacha. : n dated the 13th day of May, 2022 in ( P n Criminal Appeal No. 31 of 2021 JUDGMENT OF THE COURT 29th April & 28th June 2024 KWARIKO. J.A.: The appellant, Novatus Anselimi Moshy, filed this appeal against the decision of the High Court of Tanzania at Kigoma (the High Court) in (DC) Criminal Appeal No. 31 of 2021. The impugned decision dismissed his appeal which he had preferred against the decision of the District Court of Kigoma at Kigoma in Miscellaneous Criminal Application No. 1 of 2021. We find it apposite at this juncture to state the background to the matter leading to this appeal as follows: Sometimes on 16th March, 2019, one Abel James, a bees officer received information that a motor vehicle with registration No. T 731 CVA make Fuso (the motor vehicle) was carrying 38 logs without any permit. Thereafter, he reported the matter to Uvinza Police Station. As a result, police officers waited at a police barrier and upon its arrival, the motor vehicle which was driven by one Geofrey Emmanuel was stopped and upon inspecting it, the alleged 38 logs of warburgia stuhlmannii ( 'm pffipili) tree were found but there was no any written permit from the director of Tanzania Forest Service (TFS). The driver was arrested and ordered to drive the motor vehicle to TFS offices situated at Uvinza. Subsequently, the police arrested one Silvester Zacharia who had admitted to be owner of the said logs. Thereafter, Silvester Zacharia was formally charged at the District Court of Kigoma at Kigoma (the trial court) in Economic Case No. 2 of 2020 with two counts, namely; unlawful possession of forest products without licence or written authority contrary to section 88 and unlawful transportation of forest products without licence or written authority contrary to section 89 (b), both of the Forest Act No. 14 of 2002 as amended by sections 28 and 29 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 read together with paragraph 33 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [CAP 200 R.E. 2019] and section 97 (1) (b) of the Forest Act No 14 of 2002. The accused pleaded guilty to the charge, was convicted and sentenced to pay a fine of TZS. 250,000.00 and TZS. 1,000,000.00 for the first and 2 second counts or in default to serve six months and two years' imprisonment respectively. The custodial sentences were ordered to run concurrently. Moreover, the motor vehicle and the logs were ordered to be confiscated by the Government of the United Republic of Tanzania pursuant to section 351 (1) (a) and (b) of the Criminal Procedure Act [CAP 20 R.E. 2019] (henceforth "the CPA"). That was on 23rd December, 2020. Following that decision, on 3rd February, 2021, the appellant, Novatus Anselim Moshy filed Misc. Criminal Application No. 1 of 2021 before the trial court against the Republic and Silvester Zacharia. The application was made under sections 351 (2) and 392 A (2) of the CPA requesting the court to investigate as to who is the real owner of the motor vehicle and to vacate its confiscation order in Economic Case No. 2 of 2020. At the preliminary stage the appellant was confronted with a preliminary objection from the Republic to the effect that the application was incompetent. Having heard the parties, the court sustained the objection and dismissed the application for being brought under wrong provisions of the law and also for the reason that the court was functus officio to determine it as it had already decided the original case. Unsatisfied, the appellant appealed to the High Court. His appeal was dismissed for lacking merit. In dismissing the appeal, that court stated thus: "... the court having made the confiscation order and directed the lo rry to pass to the Governm ent under the confiscation order on account o f it being involved in facilitating the com mission o f the crim e, it had no pow er to vacate the order because it was already functus officio , the remedy, in m y view, was not to return to the d istrict court and file the application, but to come to th is court by way o f revision, if the applicant had reason to believe that there was an ille g a lity in the m atter. But he should also dear him self that he d id not send the driver fo r he who com es to equity m ust come with dean hands. The driver m ust also come and participate in the proceedings to allow the court to arrive a t a fa ir hearing." In the present appeal, the appellant has filed the following four grounds appeal. 1. That, the tria l and appellate court erred in law and fact by deciding that the D istrict Court had no ju risd iction to vacate forfeiture and confiscation order while the law gives jurisdiction. 2. That, the tria l and appellate court erred in law and fact by declaring the m atter to be functus officio while knowing that the doctrine does not apply fo r the cases on recovery o f properties which have been ordered fo r forfeiture and confiscation. 3. That, the tria l and appellate court erred in law and fact by ordering forfeiture and confiscation w ithout follow ing procedures fo r sale o f the property o f a person who was not involved in com m ission o f the offence. 4. That, the tria l and appellate court erred in law and facts by ordering the forfeiture and confiscation o f the appellant's property w ithout giving the appellant rig h t to be heard. At the hearing of the appeal, the appellant was represented by Mr. Michael Mwangati, learned advocate while the respondent Republic had the services of Mr. Shabani Juma Masanja, learned Senior State Attorney together with Ms. Naomi Joseph Mollel, learned State Attorney. When he took the stage, Mr. Mwangati argued the first and second grounds together. He submitted that; the centre of controversy is the interpretation of section 351 (1) (2) of the CPA which provides for a procedure on how to challenge the forfeiture order. He added that the provision gives powers to the trial court to vacate the forfeiture order. He thus contended that the High Court misinterpreted this provision by stating that the trial court was functus officio to entertain the appellant's application. The learned counsel argued further that, evidence was needed to prove whether the forfeited property had already been delivered to the Government. In that way, the appellant who was not part to the original proceedings had a right to be heard. He went on to contend that sections 9 and 16 of the Proceeds of Crime Act which provide for the procedure on handling forfeited property was not followed by the trial court. In response, Mr. Masanja argued that the appellant wrongly invoked section 351 (2) of the CPA, which can only come into play where subsection (1) thereof has not been complied with. He submitted further that the trial court which issued the forfeiture order could not reverse it as it was functus officio. He also argued that the claim that the trial court did not direct on who ought to receive the forfeited property is a completely different matter. Tine learned Senior State Attorney further contended that sections 9 and 16 of the Proceeds of Crime Act are not applicable in this respect as they require an application to be preferred before the forfeiture order is made. He finally argued that, the charge at the trial court quoted section 97 (1) (b) of the Forest Act which provides for the forfeited property to be taken to the forest reserve manager who shall dispose it of in a manner he thinks fit. We have considered the rival submissions and find that the crux of this complaint revolves around interpretation of section 351 (1) and (2) of the CPA which provides that: "351. -(1) Where a person is convicted o f an offence and the court which passes sentence is satisfied that any property which was in h is possession or under h is control a t the tim e o f his apprehension- (a) has been used fo r the purpose of com m itting or facilitating the com m ission o f any offence; or (b) was intended by him to be used fo r that purpose, that property sh a ll be liab le to forfeiture and confiscation and any property so forfeited under this section sh a ll be disposed o f as the court may direct. (2) Where the court orders the forfeiture or confiscation o f any property as provided in subsection (1) o f this section but does not make an order fo r its destruction or fo r its delivery to any person ; the court m ay direct that the property sh a ll be kept or sold and that the property or, if sold, the proceeds thereof sh a ll be held as it directs u n til some person establishes to the court's satisfaction a rig h t thereto; but if no person establishes such a rig h t w ithin six m onths from the date o f forfeiture or confiscation, the property or the proceeds thereof sh a ll be p aid into and form p a rt o f the Consolidated Fund." According to this provision, the court has powers to make forfeiture or confiscation order of any property used in committing or facilitating commission of an offence and also may direct for its disposal. However, where no order is made for its destruction or for its delivery to any person, the court may direct that the property shall be kept or sold. If it is sold, the proceeds shall be held as the court will direct until someone within six months establishes his right thereto. But if no one does so, the property or the proceeds thereof shall be paid into and form part of the Consolidated Fund. In the instant case, whereas the trial court made an order of confiscation of the property involved in the commission of the offence, it did not direct for its disposal and no any application was made by anyone to that effect. It is thus our considered view that, the appellant who claims interest in the forfeited motor vehicle, did not err to apply to the trial court to investigate as to who is its rightful owner. Accordingly, the two courts below erred to hold that the trial court was functus officio to entertain the applicant's application. We find support in this view from our earlier decision in the case of Director of Public Prosecutions v. Kilo Kidang'ai Two Others, Criminal Appeal No. 340 of 2018 (unreported). In that case, the respondents' livestock were forfeited to the Government in terms of section 193 (1) the Environmental Management Act No. 20 of 2004. The Court was thus faced with the question on how the forfeited livestock ought to have been disposed of. It stated as follows: "In conclusion and with a ll due respect, the above discussion points to the direction that there is nothing in both sections 193 (1) o f EMA and 351 o f the CPA suggestive o r out o f which it can be inferred that the Governm ent can directly proceed to carry out the forfeiture order made by the court b y disposing o f the forfeited property be it by way o f destroying, keeping or detaining, selling or delivering the same to anybody found to be entitled to it w ithout a court direction as Mr. Rwegira seem ed to suggest." See also: the Director of Public Prosecutions v. Nikula Mandungu, Criminal Appeal No. 47 of 1989 (unreported). On the strength of this decision, we do not agree with Mr. Masanja on his contention that the forfeited property ought to have been taken to the forest reserve manager as per section 97 (1) (b) of the Forest Act without any application and an order made by the trial court to that effect. This ground has merit and since it disposes of the appeal, we find no pressing need to deliberate of the remaining grounds. Conclusively, we are settled in our mind that the trial court had jurisdiction to entertain the appellant's application to investigate the ownership of the motor vehicle. We thus allow the appeal, quash the ruling of the trial court and the resultant judgment of the High Court on an appeal and set aside all orders made thereto. We make a direction that, the original record be remitted to the trial court for hearing and determination on merit of Miscellaneous Criminal Application No. 1 of 2021 by another magistrate of competent jurisdiction. DATED at DAR ES SALAAM this 26th day of June, 2024. M. A. KWARIKO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 28th day of June, 2024 in the presence of Ms. Edna Makala, learned State Attorney holding brief for Mr. Michael Mwangati, learned Counsel for the Appellant, also appeared for the Respondent/Republic, is hereby certified as a true copy of the original. 10