Soli Leleshi Njimili Soli Leleshi vs Director of Public Prosecution

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA CRIMINAL REVISION NO. 40510 OF 2024 (Originating from Criminal Application No. 41016 of 2023 ofTanganyika District Court) SOLI LELESHI NJIMILI @ SOLI LELESHI.................................... APPLICANT VERSUS DIRECTOR OF PUBLIC PROSECUTION..................................... RESPONDENT JUDGMENT T. M. MWENEMPAZI, J. This application for revision is made under Section 372, 373(1)(b), Section 373(2) and Section 388 of the Criminal Procedure Act Cap 20 R. E. 2022 through Chamber Summons the applicant moves this court asking the following; i. That, this Honorable Court be pleased to call and examine the records in respect of decision in Criminal Application No. 41016/2023 between the Director of Public Prosecution and unknown at District Court of Tanganyika at Tanganyika for the purpose of satisfying itself as to the correctness, legality and as to the regularity ofproceedings. 1 ii. That, upon finding that there was any illegality or irregularity, this Honourable court be pleased to revise the order issued in the said application and consequently order that the proceeds of sale emanating from the said proceedings and order which were deposited in the Account No. 6601011511 NMB (FORFEITED ASSETS AND REVENUE COLL ACCOUNT) be refunded to the applicant iii. Any other relief this Honourable Court deems ft and proper to grant It is important to look back at the background facts giving rise to this interesting application before this court. That, on the 5th day October, 2023 the office of Prevention and Combating of Corruption Bureau (the office) received information alleging that the applicant has committed corrupt offences. Therefore, on the same date, Mr. KICHERE CHACHA MWITA the investigator, initiated investigation against the applicant with investigation file No. PCCB/KTV/TNG/RB/07/2023. On the course of his investigation, he discovered that the applicant owns a herd of cattle that is related to the criminal investigation he conducts. On, the 21st day of October 2023, being accompanied by other officers they seized the 74 herd of cattle from the applicant which were allegedly related to the investigation of the criminal offence and signed a certificate 2 of seizure. However, the 74 herd were temporarily kept under the applicant’s custody by a formal hand over document signed by the applicant and independent witness. However, on the 05th day of December 2023, they were tipped that the 74 herd cattle were about to be sold by the applicant without the approval of the office. Therefore, efforts were made and they headed to Kawanzige village as they were tipped that the 74 herd of cattle are there, but the unfortunately, they were already moved to Busongola village. That, on the 21st day of December, 2023 they traced the same at Busongola village and managed to seize sixty-six (66) herd of cattle which were about to be sold by the applicant. Now, from the 21st day of December, 2023 the seized cattle were under the custody of the office, and that the Government has incurred unnecessary costs of keeping and treating the impounded 66 herd of cattle, the exercise which is detrimental and expensive. Therefore, the office applied for restraining orders against 66 herd of Cattle the property of the applicant to wit an order for disposal of the seized 66 herd of cattle and that the trial court be pleased to appoint a court broker to conduct the sale of the 66 cattle by way of public auction and that, the proceeds from sell of the same, be deposited in the interim Account to wit; National Microfinance Bank Account No. 6601011511 in the name of 3 FORFEITED ASSETS AND REVENUE COLL ACCOUNT (NMB BANK). The trial did grant the application, hence this application for revision to this court. As the matter was dated for hearing, the applicant was represented by Lawrence John learned advocate while the respondent was represented by Mr. Abdon Bundala learned State Attorney. Both sides settled on disposing this application by way of written submissions, and this court gladly scheduled the filing of the respective submissions in which both sides adhered to. As scheduled, Mr. Lawrence filed first and, in his submission, he stated that his client is the owner of 74 herd of cattle and 75 sacks of paddy seized by the office. He was instructed by the applicant to sue the office for the said injustice act against him and attempt to recover his properties. He proceeded that, it is clear when the application to forfeit 66 herd of cattle was filed at the trial court on 28th December ,2023 (Per Judiciary System of Case Registration) the applicant was in custody, even the respondent themselves knew where the applicant was as they sent a summon to sign while in custody. This was a clear infringement of the applicant’s right to be heard while it was undisputed that the seized properties belonged to him. 4 The learned counsel proceeded that, the right to be heard is a constitutional right enshrined under the Constitution of United Republic of Tanzania, 1977 at Article 13(6)(a) which has also received judicial interpretations in various remarkable cases, and he referred this court to the case of Mbeya Rukwa Auto parts Ltd vs Festina George Mwakyoma [2003] T.L.R 251(CA) where it was held; "In this country, natural justice is not merely a principle of the common law, it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard amongst the attributes of equality before the law, and declares in part - (a).. wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu..... .... We hold that a decision reached without regard to the principles of natural justice and or in contravention of the Constitution is void and of no effect" The learned counsel then urged this court to consider his point by referring several cases which had similar holding. He urged this court to see the cases of Ex-B.8356 S/Sgt Sylivester S. Nyanda vs The Inspector 5 General of Police & the Attorney General [2004] T.L.R 234 in which it was held that; “In this Country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13(6) (a) includes a right to be heard among the attributes of equality before the law” He again referred the case of Mary Mchome Mbwambo & Another (Administrators of the estate of the late Gilliad Mbwambo) vs Mbeya Cement Company Ltd [2017] TLR 277 whereas it was held that; "The applicant's allegation of having been condemned without being heard was an allegation of a serious illegality which violated the principle of natural justice that no party should be condemned unheard. ” He submitted that, basing on the above position of the law and a bunch of precedents cited therein, fair justice would have been seen to be done if the applicant was made a party to the proceedings before the trial court putting into account that his whereabouts were known, not only that but also in the cases of forfeiture of this nature it has been the stance of this Honourable court that applicants be given a chance to be heard other wise the whole forfeiture procedure is vitiated. 6 In underlining his point, Mr. Lawrence then cited the case of Itwe Lugwisha Njeniwa vs Director of Public Prosecutions, Criminal Revision No. 07/2022 HC (T) Mbeya (Unreported) but available via tanzlii.org at page 15,16,17, 18 and 19. He also another case of similar observations in Oloomu & 2 Others vs Director of Public Prosecution & Another, Criminal Revision No.8/2023 HC (T) Mbeya [Unreported] at page 10,11,12,13,14 and 15, in which it went even further by stating that to constitute unclaimed property there has to be notice to the general public to state that the property is unclaimed before any procedure of forfeiture is effected. Relating to the case at hand, he said, those attributes are lacking in this case which has the effect of nullifying the entire procedure of forfeiture of 66 cattle herd done by the respondent in the trial court. Mr. Lawrence now submitted on the application itself at the trial court in which he believes by itself to be misleading and incompetent for containing omnibus prayers which were essentially unrelated, this in itself made the application incompetent before the trial court. That, the respondent prayed for Restraint order of the seized cattle and also prayed for Order for disposal of the seized herd of cattle. These orders were two distinct orders and essentially not related anyhow hence it was fatal to join the same in one application because restraint order is the injunctive order 7 which is granted pending determination of the main application, while disposal order(sale) is granted upon determination of the main application on merits. In pinning down his point, Mr. Lawrence referred this court to the case of Kija Redio vs Tanzania Telecommunication Company Limited, Civil Application No. 17/13 of 2022 CAT IRINGA [Unreported] where it was held that; "The effect oflodging an application in an omnibus form renders that application incurably defective." He added that, a similar position was also stated in the case of Mohamed Salimin vs Jumanne Omary Mapesa [2014] T.L.R 510 (CA) which stated that; "The application is omnibus for combining two or more unrelated applications. As this court held for time(s) without number an omnibus application renders the application incompetent and is liable to be struck out." As he signed out, Mr. Lawrence submitted that on the strength of the submission he had made and the authorities pegged in, his side is of the settled view that, the application at the trial court ought to be stricken-out because it was incompetent before the eyes of the law to seek for two unrelated prayers, and that for the interest of justice, he prayed for his 8 client to be refunded the proceeds of an void auction which are deposited in the Account No. 6601011511 NMB [Forfeited Assets & Recovery Coll. Account] and be given back the 75 sacks of paddy seized from him. In response to what has been submitted, the learned State Attorney stated that the respondent was the applicant in criminal Application No. 41016 of 2023 at the trial court where the application was for restraining orders premised under Section 38 (1)(2) of The Proceeds of Crime Act [Cap 256 R.E 2022] henceforth the POCA, and the order was granted by the presiding court accordingly. That, the provisions of Section 38(1 )(a) of POCA allows the Director of Public Prosecutions (DPP) to file an ex- parte application for a restraint order against a property of a person who is under investigation, charged with, or convicted of a serious offence. Additionally, Sections 38(1) (a) and 39(1) of POCA empowers the court to make such an order against the property of any person not yet charged but has an interest in the property alleged to be tainted. That is exactly what happened before the District Court of Tanganyika in Criminal Application NO. 41016 of 2023. The learned State Attorney proceeded that, the applicant in his affidavit and submission does not dispute that he was under investigation by the Prevention and Combating of Corruption Bureau (PCCB). Further, he does not dispute his ownership to the herds of cattle which were involved in the 9 allegations against him so investigated. The applicant does not dispute the legality of the seizure procedures. Hence the herd of cattle was seized legally as tainted property subject to investigation. He then clarified that, for fear of losing the seized herds of cattle by diseases and lack of proper facilities to keep them safe until completion of investigation, the respondent took necessary legal steps which led to the restraint and preservation orders by the subordinate court. That, the application was for the benefits of both parties, the applicant and the respondent. It was the learned State Attorney’s submission that, the court after weighing the benefits of restraining the cattle to the applicant and the respondent it ordered the cattle to be restrained. However, considering the cumbersome environment and cost of keeping the herds of cattle by the respondent, the court ordered the sale so as to transform the same into the form of money pending investigation mounted by PCCB and trial if the said investigation may warrant. The order is just temporary and the applicant will be given the right to be heard during trial involving the restrained property. If no case is instituted, then the property will be returned to the owner. He added that, the order for disposal as per the order is in accordance with Section 38(7)(a)(b) of POCA which reads that; 10 "In addition to the order granted under subsection (2), the court may order: - (a) Disposal of any property under restraint which is subject to natural decay, wear and tear, depreciation or whose maintenance may cause substantial expenses; (b) Proceeds of the sale of the property disposed be kept in a special interim management account until forfeiture application in respect of that Oproperty is concluded or the court orders otherwise. ”' He then submitted that, the provisions of the above section allow the court to make restraint and others orders relating thereto, depending on the subject matter. This is the matter of court’s discretion in relation to the application. The court may grant or refuse to grant the prayers by the applicant. It is without doubt that the court exercised its discretion judiciously in order to maintain the status of the seized herds of cattle in a non-costly preserved form. The learned State Attorney pointed out that, the Court appointed a registered court broker MARK XAVIEL MSILU T/A DOLSOUTH COMPANY LIMITED. That the name of the said court broker is reflected in the annexture E (s/n 91) of the applicant's annexture to his affidavit. This shows that the appointed court broker is registered and recognized by the 11 judiciary hence was allowed to conduct the duties of a broker in the disposal of the herds of cattle. He proceeded to explain that, the application for restraint orders must meet the preconditions set out in section 38(1) and (2) of the POCA in order for the court to exercise its discretion. At this juncture it is prudent to say that the application for restraint order was preferred within the confines of the law and the application was granted in exercise of the discretion of the District Court. That, it is a settled principle of law, when exercising discretion, the courts are enjoined to act judiciously and once that is done, the superior courts will be reluctant to interfere with the lower courts exercise of their discretion. In bolding his point, the learned State Attorney referred this court to the case of Mbogo & another vs Shah [1968] E.A. 93 and the same was reiterated in the case of Samo Ally Issack & 4 Others vs Republic, Criminal Appeal No. 136 of 2021, CAT at Dodoma (Unreported) which cited the case of Credo Siwale vs Republic, Criminal Appeal No. 417 of 2013 at Mbeya (Unreported). That, the case of SAMO ALLY ISSACK (supra) insisted that; “It is now settled ...that, an appellate court can only interfere with the discretion of the inferior court or tribunal fit: is satisfied that that such court or tribunal has acted in any of the following 12 circumstances; one, if the inferior court misdirected itself, or; two, if it has acted on matters on which it should not have acted or; three, it has failed to take into consideration matters which it should have taken into consideration, thereby arriving at a wrong conclusion.” The learned State Attorney was not reluctant to point out that the applicant herein has raised the ground of the right to be heard. That, it is true that the article of the constitution enshrines such right. However, the applicant herein has not depicted circumstances and stages where such right is applicable. The application for restraint order was made at the stage of investigation. That is why the POCA has allowed the DPP to apply for restraint orders and the court to entertain an ex-parte application as it was rightly done in the Application No. 41016 of 2023. That this has also been explained in the case of The Director of Public Prosecutions vs Julius Mahangaiko Chasama, Economic Application No. 24326 of 2024, HCT at Shinyanga (Unreported). That, the case laws mentioned and attached in the applicant’s written submission are quite distinguishable to the situation at hand. The situation in those case laws involve determination of the right to property. In such situations involvement of the person with interest to the property is vital. On the other hand, the situation at hand has neither involved 13 determination of ownership of the property nor forfeiture of the property. During trial if one could be, the applicant will be availed such right to be heard when determination over ownership over the property and others matters which may arise. For this reason, his side humbly submits that the fit case law to rely on is, Criminal Appeal No. 136 of 2021 SAMO Ally Issack (Supra). In conclusion, the State Attorney submitted that, for the aforementioned reasons and submissions, he humbly prays that the application be dismissed in its entirety for want of good cause and merits. In his rejoinder, Mr. Lawrence submitted that, as the respondent has claimed that the provisions of Section 38 (1)(a) of Proceeds of Crime Act Cap 256 allows the exparte application, on his view that scenario depicted in the said section and the scenario at hand are different, whereas in this case, in the application that was filed before the trial court it showed that there is already a suit in the court, so there is no any investigation that was pending. That, a close look in the impugned ruling of the trial court at the last page, the court made the following order; “(b)...66 seized herd of cattle be disposed by way of public auction pending determination of the main suit” Regarding the cited cases by the respondent, Mr. Lawrence submitted that all the cases cited are distinguishable to this case at hand and that they 14 should not be considered by this court. However, he mostly reiterated what he had submitted in chief incisively on the fact that the application was omnibus and it was bad in law as it had combined two unrelated prayers, and that the respondent has not responded on the same for he knows that he has made an uncurable application before the trial court. After I have gone through the submissions of both sides and as well the records of the trial court in its entirety. Upon doing so, I should remind the litigants that the power of this Court to call for and examine records of any criminal proceedings before subordinate courts is provided for under section 372 of the Criminal Procedure Act, Cap. 20: "The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, Legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. ”' Looking at the prayers in the application at the trial court, I concur with Mr. Lawrence learned counsel for the applicant that they are not related. Its procedure for determining the same is not similar. The law allows omnibus application on related prayers. The law is settled that the prayers 15 qualify to be combined in one application if they are not opposed to each other or made under different laws. This stance was taken by my learned brother Hon. Ismail, J in the case Rutunda Masole vs Makufuli Motors Limited, Misc. Labour Application No. 79 of 2019, HCT at Mwanza (unreported) when he stated that: "The condition precedent for applicability, of this rule is that the application should not be diametrically opposed to each other or preferred under different laws, complete with different timelines and distinct considerations in their determination. ”' I associate myself to the above position, the prayers to be lumped in the same applications must be related. In this revision, the prayers outlined in the application at the trial court were not related, firstly it was the prayer of restraining the properties seized from the applicant and, secondly it was the prayer for disposal of the same. These two prayers are not related and it has been rightly submitted by Mr. Lawrence learned counsel that such kind of application is bad in law. The Court of Appeal has insisted repeatedly that combining two or more unrelated applications renders the application incompetent. This was well stated by the Court of Appeal in the case of Mohamed Salimini vs Jumanne Omary Mapesa, (supra) 16 “There is one other difficulty relating to this application. As it is, the application is omnibus for combining two or more unrelated applications. As this Court has held for time(s) without number an omnibus application renders the application incompetent and is liable to be struck out - See, Bibie Hamad Khalid vs Mohamed Enterprises (T) Ltd; J.A. Kandonga and Hamis Khalid Othman, Civil Application No. 6 of2011 (unreported)." However, the order for disposal of seized properties mostly has a pending suit in which in the application at the trial court there was no any suit pending contrary to what the court has granted. As again rightly submitted by Mr. Lawrence, the impugned ruling has its wordings that the seized herd of carrel be disposed by of public auction pending the determination of the main suit, to wit there was no any pending suit but rather an investigation which was claimed by the respondent it was ongoing. But before signing off, I should remark that I found it unpleasant and out of place that the learned State Attorney for the respondent has not submitted on the fact that his side has made an omnibus application before the trial court, and also failed to reveal the main suit that awaits its determination on merit for the disposal of the seized herd of cattle to be legal. In its absence, I hold that the application was bad in law for 17 containing two distinct prayers and also the disposal of the seized herd of cattle was unjust as there was and still there is no any pending main suit against the applicant. For the foregoing reasons, that I do find merit in this application and proceed to allow it, and upon revising the order issued by the trial court, I am of the firm holding that it is tainted with irregularities and illegality. The application at the trial court is stricken out and the order thereto is quashed. Consequently, I order that the proceeds of sale emanating from the said proceedings and order which were deposited in the Account No. 6601011511 NMB (FORFEITED ASSETS AND REVENUE COLL. ACCOUNT) be refunded to the applicant, and the paddy sacks remitted to him. It is so ordered. Dated and delivered this 23rd day of December, 2024. T. M. MWENEMPAZI JUDGE 18