the director of public prosecution vs zhiling jiao 2023 tzhc 17929 27 february 2023

IN THE HIGH COURT OF TANZANIA (SHINYANGA DISTRICT REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 74 OF 2022 (Arising from Shinyanga District Court. Criminal Application No. 3 of 202Z Origin Criminal Case No. 27 Of 2022 Shinyanga District Court) THE DIRECTOR OF PUBLIC PROSECUTION APPELLANT VERSUS ZHILING JIAO RESPONDENT JUDGMENT 10/02/2023 s 27/02/2023 S.M. KULITA, J. This is an appeal from Shinyanga District Court. In a nutshell the historical background of the matter is that, through Criminal Case No. 27 of 2022 Shinyanga District Court the appellant herein, THE DIRECTOR OF PUBLIC PROSECUTION (DPP) successfully charged the Respondent herein (ZHILING JIAO) for seven different counts. Upon his plea of guilty, the Respondent who is a Chinese by nationality was convicted and sentenced accordingly. After the judgment in which the Accused (ZHILING JIAO) paid a fine in executing it, the DPP lodged a Criminal Application NO.3 of 2022 under 1 Sections 4(1)(a), 9(1) and 14(1) of the Proceedsof Crime Act [Cap 256 RE 2019] hereinafter referred to as POCA,before the same court seeking for forfeiture to the Government of the United Republic of Tanzania, the subject matters involved in the case. The Application mentioned those properties being 889 donkeys, 487 donkey skin and 12,400 Kg of the donkey meat. The said application was attacked with the Preliminary Objection from the Respondent's Counsel. The said Preliminary Objection sustained, hence, in its ruling delivered on is" August, 2022 the trial court dismissed the application. Aggrieved with the decision of the trial court, hence this appeal in which the Appellant relied on the following three grounds; 1. That, the Learned trial Magistrate grossly misdirected herself by not taking into account that the application was conviction base as per sections 4(1)(a), 9(1) and 14(1) of the Proceeds of Crime Act [Cap 256 RE 2019]. 2. That, the Learned trial Magistrate grossly misdirected herself in interpreting the provision of section 22(1)(a) and (2)(a)(b) and (3) of the Tanzania Investment Act [Cap 38 RE 2015] contending that, the words "business enterprise" have been used to include the business 2 conducted by the Respondent hence dismissed the said application which was properly brought before it. 3. That, the Learned trial Magistrate erred in law and fact for not accepting that all administrative measures that were followed before recourse to the trial court was within the meaning of section 23(1) and (2)(a)(b)(c) of the Tanzania Investment Act [Cap 38 RE 2015]. The Appellant is represented by Mr. Jukael Reuben Jairo, State Attorney from the office of National Prosecution Services (NPS) at Shinyanga while the Respondent is represented by Mr. Pharles Focas Malengo, Advocate from PH Law Advocate of Shinyanga. In his submission in respect of the 1st ground of appeal the State Attorney stated that the trial Magistrate failed to consider that the matter before her was conviction base as per sections 4(1)(a), 9(1) and 14(1) of the Proceeds of Crime Act [Cap 256 RE 2019]. He submitted that sections 4( 1)(a) and 9( 1) provide that upon conviction of the Accused person, the Prosecution side has the right, within one year period, to file the application for forfeiture of the proceeds of crime, that is the accused's properties which are subject to the crime that he has been convicted with. 3 He further submitted that under section 14(1) the court may order such property(s) to be forfeited to the Government. Further submitting on the 1st ground of appeal the State Attorney, Mr. Jairo stated that the application No. 3 of 2022 Shinyanga District Court from which this appeal arises was lodged on 23/03/2022 upon the Respondent's conviction regarding his plea of guilty on 03/03/2022. Hence the application for forfeiture was lawful. Submitting on the 2nd ground of appeal that the trial Magistrate misdirected herself in interpreting the provision of section 22(1)(a) and (2)(a)(b) and (3) of the Tanzania Investment Act [Cap 38 RE 2015] contending that, the words "business enterprise" have been used to include the business conducted by the Respondent while not, Mr. Jairo, State Attorney stated that the trial Magistrate was wrong to dismiss the said application which was properly brought before it. He said that, in her findings the trial Magistrate touched the issue of ''business eoterprise" of which she stated that it is applicable to the matter at hand while in real sense it doesn't apply according to the above cited provisions. 4 The counsel further asserted that the Respondent was charged and convicted on criminal matters, hence the statute of Tanzania Investment Act [Cap 38 RE 2015] does not apply. He said that the said statute applies for the civil matters only. Mr. Jairo further submitted that, this being a criminal issue, the Appellant was right to proceed with the application for the forfeiture of the proceeds of crime under POCA. As for the 3rd ground that the trial Magistrate did not accept that all administrative measures that were followed before recourse to the trial court was within the meaning of section 23(1) and (2)(a)(b)(c) of the Tanzania Investment Act [Cap 38 RE 2015], the State Attorney submitted that in so doing the trial Magistrate erred in law. The counsel stated that prior to the institution of the criminal charges against him, the Respondent had been given the instructions by the Government, Ministry of Livestock and Fisheries to be followed for his project, but the Respondent neglected to perform. Subsequently, the Republic, through the DPP decided to lodge the criminal case No. 27 of 2022 which was followed by the said application No. 3 of 2022 for forfeiture of proceeds of crime. Mr. Jairo concluded that, they had to go to 5 the criminal actions against the Respondent after the administrative measures having proved failure. The Appellant's Counsel concluded by praying for the appeal to be allowed by this court quashing the decision of the District Court and accordingly set it aside. In reply thereto, Advocate for the Respondent, Mr. Pharles Focas Malengo submitted in respect of the 1st ground of appeal which states that, the appellant's argument that this matter was rightly filed at the District Court as a criminal application for forfeiture of proceeds of crime for the reason that it arises from the conviction base, is a misconception. He said that, as for the nature of the case, instead of dealing with the Proceeds of Crime Act, the prosecution were supposed to rely on the provisions of the Tanzania Investment Act [Cap 38 RE 2015J in dissolving this conflict which was between the Government and the Investor (Respondent). He said that, sections 22 and 23 of the said Act provide for the forum for resolving disputes between the Government and the Investor. Mr. Malengo averred that that said mode had never been adopted by the Appellant's clients (Government). 6 Mr. Malengo added that, by instituting this case, the Appellant violated section 23 of the Written Laws Miscellaneous Amendment Act No. 1 of 2022 which amended section 4 of the Criminal Procedure Act by adding subsection (3). That added provision requires all remedies available in administrative or civil domain to be attended first before invoking the criminal processes. Mr. Malengo stated that section 78 of POCAprovides that the said statute does not limit or restrict the application of the other laws to be applied in dealing with the matter. He said that, basing on the nature of the case, the trial Magistrate was right to comment that the Tanzania Investment Act was the proper statute to be applied in the matter. He was thus of the views that, the Respondent's conviction on the criminal case, did not preclude the Appellant to take further actions against the Respondent via the Tanzania Investment Act. The Counsel further argued that section 33 of the Tanzania Investment Act shows the modes in which the disputes between the TIC (Government) and the Investor should be resolved. The suggested modes include amicable settlement like Arbitration, Mediation and Bilateral agreements. 7 Further submitting on this ground Mr. Malengo stated that, it is a principle that where the law provides extra-judicial machinery for settlement (resolving) a particular cause, the extra-judicial machinery should apply before the judicial process taking place. He cited the cases of JOSHUA SAMWEL NASSARI V. THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA & ATTORNEY GENERAL, Misc. Civil Cause No. 22 of 2019, High Court at Dodoma (unreported) and BAHATI MATIMBA NGOWI V. THOMAS MBWATE & ANOTHER, Civil Appeal No. 15 of 2019, High Court at Iringa (unreported) to support his argument. Mr. Malengo argued that in this matter the conflict is between the Government and the Investor, hence the Tanzania Investment Act statute should be adopted before filing of the application to forfeit the Respondent's properties. He added that before instituting this matter the Appellant was supposed to regard that the Government itself is the one which provided the incentives to the Respondent through the certificate No. 042908 which is a guarantee for his business in the country, hence his business properties should be protected. 8 Mr. Malengo also challenged that in the Application the Appellant sought for forfeiture of 889 donkeys while in the original case, Criminal Case No. 27 of 2022 Shinyanga District Court the number of donkeys was proved to be 802. Thus, the fact that the Appellant claims for 87 more donkeys, the concept of conviction basis claim does not stand. As for the 2nd ground of appeal, Mr. Malengo submitted that it is misconception for the Appellant's Counsel to argue that the Tanzania Investment Act does not apply in the matter at hand. He said that the trial court, clearly defined the meaning of ''Business Enterprises//at page 9 of its judgment by citing it from section 3 of the Tanzania Investment Act. He said that the same covers the Respondent's business as well. Hence its Certificate of Intensive should be protected. He said that protection includes not to confiscate the Investor's capital. Replying the 3rd ground of appeal that there were administrative measures which had been taken prior to the institution of the criminal case against the Respondent, Mr. Malengo stated that that issue is silent in the lower court's proceedings, the same applied to the appeal pleadings. He also averred that section 23 of the Tanzania Investment Act [Cap 38 RE 2015J provides for the amicable settlement through negotiations and arbitration 9 in case of dispute between the Government and the Investor, however the pleadings and the records are silent if the said administrative measures were taken. The Respondent's counsel concluded by praying for the appeal to be dismissed with costs, as the Appellant never complied with the requirements of section 23(1) and (2)(a)(b)(c) of the Tanzania Investment Act, 2015 which has been amended by section 33 of Act No. 10 of 2022, read together with section 4 of the Criminal Procedure Act. Mr. Malengo also prayed for the return of the Respondent's 200 herds of donkey which had been taken by the Appellant regarding the ex-parte judgment of the predecessor trial Magistrate in the Criminal Application No. 3 of 2022 Shinyanga District Court dated 6th April, 2022. In rejoinder the State Attorney submitted that the Respondent's Counsel does not dispute that the application at the trial court was conviction base in nature, hence, under the Proceeds of Crime Act, it was correct for the DPP to lodge the application for forfeiture of donkeys, donkey skins and donkey meat to the Government. The Counsel also stated that the precedents cited by the Respondent's counsel are civil cases while the matter at hand is criminal by nature, hence distinguishable. He also said 10 that the Respondent was rightly charged in criminal case as the violation falls on criminal litigation. He added that the Respondent being the investor does not bar him from being charged. Distinguishing the case of JOSHUA NASSARY (supra) Mr. Jairo, State Attorney stated that Judiciary Machinery does not prohibit criminal actions to be taken against the Investor if he has committed crime. He added that the application at the trial court was not for confiscation of the Respondent's capital, but to execute the legal requirements as per the Proceedsof Crime Act. The Appellant's Counsel concluded by praying for the appeal to be allowed. From the rival submissions of the counsels, the issue to be determined is whether the appeal is meritorious. Starting with the 1st ground of appeal which states that the trial Magistrate misdirected herself by not taking into account that the application was conviction base as per sections 4(1)(a), 9(1) and 14(1) of the Proceedsof Crime Act [Cap 256 RE 2019], I have this to say; sections 4(1)(a) and 9(1) of the Act provide that, upon conviction of the Accused person, the Prosecution side has the right, within one year period, to file the application for forfeiture of the proceeds of crime, that is, 11 the accused's properties which are subject to the crime that he has been convicted with. Further, under section 14(1) the court may order such property(s) to be forfeited to the Government. The question that triggers my mind is that, was it mandatory for the application to be lodged? Section 9(1) of the Proceeds of Crime Act [Cap 256 RE 2019] deals with the application for confiscation order. The said provision states; "Where a person is convicted of a serious offence, the Director of Public Prosecutions may, subject to subsection (2), apply to the convicting court, or to any other appropriate court, not later than twelve months after the conviction of the person, for- (a) a forfeiture order against any property that is tainted property in respect of the offence; or (b) forfeiture order against any property of corresponding value; or (c) a pecuniary penalty order against the person in respect of any benefit derived by the person from the commission of the offence // (emphasis is mine). 12 The fact that the term "may" has been used in the said provision which moves the DPPto institute the application for forfeiture against the convict of crime, it was not mandatory for him (DPP) to lodge the said application. Under that situation he was to weigh nature of the matter before instituting the said application. Under section 14(1) the court may grant the application if it finds it appropriate which means that the court has to weigh on the gravity of the submission made before it before it decides as to whether it is appropriate to grant the application. Though the Respondent had been charged and convicted in criminal case, I can agree with Mr. Malengo, Advocate for the Respondent that the Respondent being the Investor, it could be proper for the Appellant to deal with him through the provisions of the Tanzania Investment Act, instead of the Proceedsof Crime Act. Having noted that, it is not a good procedure, the Parliament of the United Republic of Tanzania amended the provision of section 4 of the Criminal Procedure Act (CPA) by adding subsection (3). In the said amendment which was done through the Written Laws Miscellaneous (Amendment Act) (No.1) of 2022 published on 8/3/2022 it was insisted that, disputes falling under the Investment Act should be settled amicably, through mediation, arbitration, etc. Section 4 of 13 the CPA which provides for the procedure to be adopted for trial of offences states; 1'(1) All offences under the Penal Code shall be inquired into/ tried and otherwise dealt with according to the provisions of this Act. (2) All offences under any other law shall be inquired into/ tried and otherwise dealt with according to the provisions of this Act except where that other law provides differently for the regulation of the manner or place of investigation into/ trial or dealing in any other way with those offences. (3) Notwithstanding subsection (2J where a matter is of a civi~ administrative or criminal nature, as the case may be, exhaustion of the remedies in civil or administrative domains shall be mandatory prior to the invocation of the criminal process in accordance with this Act" (emphasis is mine) Sub-section (3) requires exhaustion of remedies in civil or administrative domains prior to the invocation of the criminal processes. In JOSHUA SAMWEL NASSARI V. THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA & ATTORNEY GENERAL, 14 Misc. Civil Cause No. 22 of 2019, High Court at Dodoma (unreported) Hon. Mansoor, while citing the case of PARIN A. A. JAFFER & ANOTHER V. ABDULARASUL AHMED JAFFER & 2 OTHERS[1996] TLR 110 at page 116 stated; "where the law provides extra-judicial machinery alongside a judicial one for resolving a certain cause, the exta-judicial machinery should, in general be exhausted before recourse is made to the judicial process" This was also held in BAHATI MATIMBA NGOWI V. THOMAS MBWATE & ANOTHER, Civil Appeal No. 15 of 2019, High Court at Iringa (unreported) in which Hon. Kalunde, J. stated; "where a particular piece of legislation provides for a special or specific forum, it is ought to be pursued first, instead of approaching the court" Regarding the aforesaid policy, it is also in my mind that, by the time the Criminal Case No. 27 of 2022 was fully determined on the 03/03/2022 by the District Court of Shinyanga, the said Mise. Amendment Act No. 1 of 2022 had not yet been enacted. That being the case, we can take into 15 account that the Appellant had the reason to lodge the said criminal case against the Respondent herein. However, my comment is, why did the Appellant on the 28/03/2022 lodged and proceeded to prosecute the Criminal Application NO.3 of 2022 which is the application for forfeiture of the Respondent's properties, while the mode of dealing with the matter had already been changed as per the Mise. Amendment Act No. 1 of 2022 which had come into operation since 08/03/20227 To me, it doesn't make sense for the Appellant COPP)to lodge the said Criminal Application No. 3 of 2022 after having noticed the said changes on section 4 of the CPA. Even if the Prosecutor was unaware of it, as the one who had lodged the application, still had a chance to withdraw it after noticing the same on the subsequent days. Continuing to prosecute it while it was optional, not mandatory for them to do so as I have narrated above, and the fact that the application was filed while the law had already been amended to encourage exhaustion of the remedies in civil or administrative domains prior to the invocation of the criminal process, makes me to agree with the trial court's findings that it was wrong for this matter to be lodged in court. 16 According to the Appellant's Counsel, the Government had prior warned the Respondent before the institution of the criminal case at the District Court against him, but he continued to breach the law. However, my findings on that is that, the procedure in respect of those allegations was not formal. In the pleadings for the Criminal Application No. 03 of 2022 Shinyanga District Court, I don't see any document having been annexed to show that there was a civil or administrative measures that had taken place in respect of the matter before the institution of the criminal case No. 27 of 2022 nor the application No. 03 of 2022 at the District Court. This leads to a conclusion that there was no proof of the civil or administrative measures that had been taken prior to the institution of the said cases, including Criminal Case No. 27 of 2022 against the Respondent. Another thing to be considered from the provision of Section 9(1) of POCA is whether the offences charged against the accused (Respondent) in the Criminal Case No. 27 of 2022 were serious. It is one of the conditions that the DPP had to consider before instituting the criminal proceedings on forfeiture of the proceeds of crime against the accused's (Respondent's) properties. To me they were not, that's why the Respondent was penalized to the lenient penalties of paying fine of Tsh. 17 300,000/= (three hundred thousand shillings) or to serve the imprisonment of 6 (six) months, for three counts. This was the maximum penalty in the seven counts that the Respondent had been convicted with and sentenced accordingly. The Appellant was also penalized to pay a lenient fine at the tune of Tsh. 50,000/= (fifty thousand shillings) or to serve the .imprisonment of 1 (one) month on two counts. As for the remaining two counts the Respondent was sentenced to a Conditional Discharge for 6 (six) months. Therefore, for all 7 (seven) counts that he had been charged and accordingly convicted, the Respondent paid a total fine amounting Tsh. 1,000,000/= (One million shillings) only. The fact that the DPP never appealed against the said penalties, it means that he was satisfied that they were proper and in fact that is a position of the law. That being the case, we cannot regard the offences committed serious, hence, its subject matters should not be incorporated into the forfeiture of the Respondent's properties under POCA. Therefore, the trial Magistrate was not wrong to rely on the Tanzania Investment Act in determining this matter. I find this ground of appeal with no legal weight, hence dismissed. 18 As for the 2nd ground of appeal, it is misconception for the Appellant's Counsel to argue that the Tanzania Investment Act does not apply in the matter at hand. The trial court, clearly defined the meaning of "Business Enterprises" at page 9 of the judgment by citing it from section 2(3) of the Tanzania Investment Act [Cap 38 RE 2015]. The same covers the Respondent's business as well. Contrary to what the State Attorney has submitted, the issues of minerals and gas are the exceptions, that they are matters which are not applicable in the said statute. Therefore, as the Respondent's company is a Business Enterprise, in case of litigation involving her, the Tanzania Investment Act is applicable. Thus, the application of the statute extends to the Respondent's business as well. Thus, the 2nd ground of appeal has no legal weight, hence dismissed as well. Now, the analysis on the 3rd Ground of appeal; the Appellant's counsel alleged in his submission that there were administrative measures which were taken prior to the institution of the criminal case against the Respondent. However, the Respondent continued to violate the laws. That led the Appellant to institute criminal charges against him. Actually, position of the law in the Tanzania Investment Act [Cap 38 RE 2015] 19 at section 23 provides for preference on the settlements of disputes between the Foreign Investor and the Government to be amicable through negotiations, or arbitration if negotiation fails. That principle was also incorporated in the Criminal Procedure Act through the Written Laws Miscellaneous (Amendment Act) (No.1) of 2022 whereby the provision of section 4 of the CPA has been amended by adding subsection (3) which provides for exhaustion of the remedies in civil or administrative domains prior to the invocation of the criminal process. But, as I have said while analyzing the 1st ground of appeal that, the records are silent if the said administrative measures were actually taken by the Government before taking criminal measures against the Respondent. I can just see the words in the affidavit for the Criminal Application No. 03 of 2022 Shinyanga District Court at paragraph 6-9 in which the deponent alleged that the Respondent was ordered through a letter to stop doing anything in respect of donkeys, but he proceeded with the said stopped activities. However, the said pleadings have not been annexed with any copy of document which reflects the amicable settlement by the parties before the institution of the criminal case (No. 27 of 2022) against the Respondent. This leads to a conclusion that there was no proof of the civil 20 or administrative measures that had been taken prior to the institution of the Criminal Case No. 27 of 2022 against the Respondent. The fact that all those two laws which are of both nature, civil and criminal, provide for the preference to settle such matters amicably, it means that is a current policy of the country in respect of disputes involving the foreign investments of which the Government (Respondent) never complied with. Hence, I find this 3rd ground of appeal meritless as well. From the foregone analysis, I find the appeal with no merit, hence dismissed. The properties that had been confiscated to be returned to the respective owner, Respondent. No order as to costs. S.M. KULITA JUDGE 27/02/2023 21