CRIMINAL APPEAL OLOOUM KURSAS

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL 00006907 OF 2024 REFERENCE NO. 202403142000006907 (Arising from the Criminal Application No. 10 of2023 of the Resident Magistrate court ofMusoma at Musoma) THE REPUBLIC/ DIRECTOR OF PUBLIC PROSECUTION................. APPELLANT VERSUS OLOOMU KURSAS.......................................................................................... 1stRESPONDEN SINJORE MATIKA.......................................................................................... 2ndRESPONDEN NDAGUSA KOROS........................................................................................... 3rdRESPONDEN JUDGMENT OS01 September & IS01 October, 2024 M, L, KOMBA. J.; This is the decision against an appeal by the appellant who was dissatisfied by the decision of the Resident Magistrate Court of Musoma (the trial court) in Criminal Application No. 10 of 2023. Briefly, on 26/10/2023 in Serengenti National Park, Rangers while in normal patrol at Long'osa area found eight hundred and six (806) heads of Page 1 of 18 cattle, four hundred and twenty (420) sheep and one hundred (100) goats (domestic animals) who were unlawfully introduced into Serengeti National Park (the Park) and were seized and kept in Lobo ranger's post within the Park as a temporary solution while waiting for the owner. Upon failure to locate the owner, and on the basis of protecting Serengeti eco-System, appellant herein filed an ex-parte chamber summons on 31/10/2023 in trial court (Criminal Application No. 10 of 2023) applying for forfeiture of the domestic animals, the prayer was granted on the same day. However, it was revised by this court via Revision No. 08 of 2023 on account that law and procedures were not adhered. The trial court was ordered to entertain the matter interparty. Parties were heard inter party as ordered and the trial court found, among others, auction was not conducted as per law and ordered respondents to be reimbursed TZS 169,264,200/ which was deposited in Forfeited Assets Revenue Collection Account being the amount generated after the sale of their livestock forfeited. Appellant was aggrieved by the decision of the trial court and come forward with ten (10) grounds of appeal as follows; Page 2 of 18 1. That, the trial Magistrate misapplied the principle of overriding objection to cure improper Joining of the Director of Public Prosecution who was not a part to the application. 2. That, the trial magistrate erred in law to consider the Director of Public Prosecution (DPP) and the Republic are the same and refer to the same person in law. 3. That, the trial magistrate erred in law to overrule the preliminary points of objections white the same were neither opposed nor contested by the respondents. 4. That, the trial Magistrate erred in fads for failure to understand the meaning application and procedure of GPS coordinates in Serengeti National Park. 5. That, the trial Magistrate erred in law and fads for making findings that the livestock were seized unlawfully. 6. That the trial magistrate erred in law and facts for including on extraneous and irrelevant matter in reaching her decision. 7. That, the trial Magistrate erred in law for dismissing the application withoutjustification. 8. That, the trial Magistrate erred in law for failure to hold that the argument and conclusions found in some parts of the respondents' counter affidavit were major and not covered by the principle of overriding objective. 9. That, the trial Magistrate misdireded herself in applying the principle of right to be heard as outlined in the constitution of the Page 3 of 18 United Republic of Tanzania, 1977, as amended to allow strangers to be heard on an expart application. 10. That the trial Magistrate misdirected herself to apply section 47 of the Police Force and Auxiliary Service Act, Cap 322 RE 2022 in the application thereby leading to an injustice decision. When the appeal was scheduled for hearing, Mr. Tawabu Yahya (SSA) and Isihaka Ibrahim (SA) represented the appellant while Mr. John Lairumbe and Mr. Joseph Melau Alais appeared for respondents, both learned advocates. Mr. Isihaka dropped the 1st, 2nd and 3rd grounds of appeal and combined the rest basing on the 7th ground of appeal and pray this court to find the appeal has merit because the trial Magistrate errored in her decision. He started by submitting on the use of GPS coordinates which were used in the Serengeti National Park. It was his submission that trial court creates doubt on taking the coordinates and making of the Map. He clarified that, in GPS there is three segments; one, is space segment which show boundaries; two, user segment which involve the equipment used and 3, is control segment which is the place where the coordinates are used. It was his submission that witness explained coordinates were take on Page 4 of 18 26/10/2023 and production of map is done out of the national park on any day contrary to what was analysed by the trial Magistrate that coordinates were taken 27/10/2024 after the event. That was the date where map was prepared, he clarified. About certificate of seizure and map, Mr. Isihaka complained that trial Magistrate errored by finding that the seizure was mere allegation as the court had no record. It was his submission that when the matter heard ex- parte, (applicant) State Attorney who appeared prayed chamber summons and affidavit be adopted and form part of their submission. He went on saying in affidavit applicant deponed to attach some documents and court granted the prayer that means records were in court file. He insisted that the court could gnot accept the prayer of adoption of pleading if there were no attachments. About proving the point where domestic animal were seized, it was his submission that the 1st paragraph of affidavit provides description of the deponent and respondent noted the name title and his occupation. He went on clarifying that Section 3(b) provide authorized officer is any person employed by TANAPA and section 106 provide for duties of the authorized officer. To him that introduction is adequate proof. Page 5 of 18 About IR number, State Attorney find the affidavit mentioned IR number and that was enough. He went on submitting that counting of animals which started at 17:45 hrs was not a matter in dispute as respondents did not complain on that. However, it was his concern that trial Magistrate did not say what was the correct time to count domestic animals and the record is silent on the duration of counting. He went on complained that in the counter affidavit respondents show were ready to pay fine that means they were not innocent because fine is a punishment. It was his submission that respondents counter affidavit supports the application by the DPP that cows were seized within National Park. State Attorney complained of extraneous matter includes the time involved in counting the livestock and the distance from the place where the cattle were seized to the place where they were stored, to him these are minor issue and could serves nothing. About the auction, he submitted that the trial court errored on relying on section 47 of Police Force and Auxiliary Act, Cap 322 because the case originated from the National Parks Act and arresting officers were from Tanzania National Parks Authority (TANAPA). He complained of the use of Cap 322 to be incorrect as the Act targeted the police. However, Mr. Page 6 of 18 Isihaka accepts that applicant mentioned that law in his application but it does not mean that court must act blind to correct it as the duty of court is to interpret the law. He prayed me to find appeal has merit and grant it. Mr. Lairumbe for respondents noted the dropped grounds and prayed to argue each of the remaining grounds separately. Starting with ground no. 4 he submitted that parties are bound by their own pleadings and the court too. He submitted that the GPS and maps were not party of application as were not attached. An affidavit is like oral evidence, he said in case appellant wish court to believe on it, they ought to have been attached on affidavit. He urges this court to consider whether the departure or contradiction in evidence of the appellant's affidavit to support criminal application is fatal. He went on submitting that position of the trial Magistrate that appellant never attached map in application to justify the allegation, does not mean Magistrate failed to understand the meaning to the GPS and Map of Serengeti. Respondents insisted there was no attachment that's why trial court failed to consider. Basing on Agatha Mshote vs Edson Emmanuel Civil Appeal No 121 of 2020 CAT, he submitted that parties are bound by pleadings and are not allowed to change their pleadings. Appellant took the Page 7 of 18 other party in surprise during trial and prayed this court to find the ground has no merit. Counsel then combined the 5th, 7th and 10th grounds which are issues of procedures. It was his submission that it was proper for the trial Magistrate to rule out the procedure of seizure and attachment of the livestock were not adhered and they support that finding on the ground that the public auction which was conducted was questionable and that the procedure of sale of unclaimed property was not correct as emanated from Misc Application No. 10 of 2023. He went on submitting that generally, there are number of laws which regulates forfeiture of unclaimed property and among them is Police Force and Auxiliary Act, Cap 322, Civil Procedure Code, Cap 20, The Proceed of Crime Act, Cap 256 and Wildlife Conservation Act of 2009. He said procedurally, the law gives the power of all police of any force to protect citizens' properties in this country and to comply with procedure, that is per section 47 of Cap 322. He went on submitting that under the law, police were supposed to announce in six month and the mode was provided including making valuation of the property. He lamented that the preliminary procedures were not adhered before the said auction was Page 8 of 18 conducted because respondent took effort to introduce themselves as owners of domestic animals but appellant proceed with the case ex-parte. Still on combined grounds Mr. Lairumbe raised an issue to be considered as to whether it is proper for the trial Magistrate to hear an application ex- parte and order the forfeiture of domestic animals; in simple way, whether forfeiture complied with the law. He submitted that Proceed of Crime Act, Cap 256 gives the general procedure for forfeiture of the property whether unclaimed or claimed and among the procedure is that there must be a conviction of a person who claim the court has issued an order against him. After the order of forfeiture and nobody claim the property, he said it is when the court may order sale of the said property and the law give the timeframe for the court to issue an order for forfeiture. It was the counsel submission that records are clear in the case at hand that the alleged livestock were seized on 26/10/2023 and prosecution filed application for forfeiture on 31/10/2023 and the same day an order for forfeiture was issued while the respondents were in court corrido to rescue their properties. It was his further submission that after forfeiture order, the court has to appoint broker who can proceed with the auction as per section 12(2) and Page 9 of 18 (3) of the Auctioneer Act, Cap 227. In the case at hand, he submitted that there is no proof to justify the procedures were adhered as there is no 14 days' notice issued to public/ owners and he concluded that it was right for the trial Magistrate to rule that the sale was unjustifiable in law. He argues this court to read Registered Trustee African Inland Church of Tanzania vs CRDB Bank PLC and two others, Commercial case No. 7 of 2017 where the court explained the mandatory requirement of section 12 of Auctioneer Act. He also supplied me with the decision in Novatus Anselemi Moshy vs Republic, Criminal Appeal No. 260 of 2022 where the court gives the procedure to be complied in forfeiture of property and the court directed itself to section 351 of the CPA. Basing on his submission, he maintained that the application on trial court was fallacious. Submitting for the 8th ground he paused an issued whether overriding objective can be applied in criminal matters. He cited the case of Charles Bode vs Republic, CAT at DSM Criminal Appeal No. 46 of 2016 at page 12 where the court considered interest of justice rather than procedures although the CPA was not amended to incorporate overriding objective. To him the principle is applicable and the trial Magistrate was correct to apply the principle of Overriding Objective. Page 10 of 18 On ground No. 9 counsel Lairumbe submitted that the order was expunged by the High Court and this court cannot rule on that as it was ordered by this court that parties has been heard in lower court. He prayed this court to dismiss the appeal and the respondent be served with costs in this appeal. In rejoinder Mr. Isihaka insisted that Cap 322 was not supposed to be applicable because the livestock was seized by TANAPA rangers. About application of the other laws, he clarified that section 351 of the CPA is applicable when a person is convicted but in the case at hand there was no conviction further, he said the Proceed of Crime Act was not supposed to be applicable as there was no crime resulted to those livestock but livestock were found on unauthorized area. State Attorney disputed the application of the Auctioneers Act, Cap 227, specifically section 12 claiming that is applicable if the property is land but the matter at hand was livestock. He distinguished that case of Registered Trustee African Inland Church of Tanzania vs CRDB Bank PLC and two others (supra) and Novatus Anselemi Moshy vs Republic (supra) as the case was about forest product and the court used section 351 of the CPA because Novatus was charged under the Forest Act. Page 11 of 18 He further distinguished The DPP vs Maregeret Kobelo Konsaga (supra) on the ground that some were convicted but in the case at hand there was forfeiture and ex-parte then interparty was ordered. He prayed me to find the appeal has merit and allow it. I am subjected to find if this appeal has merit or otherwise. I noted the three grounds were dropped and appellant argue the appeal rounding the rest of the remaining ground on number seven (7) that application was dismissed without justification. Among the issues complained by appellant is non consideration of the attachment which were the certificate of seizure and geographical map on the ground that were not attached to affidavit. It was Mr. Isihaka's assertion that so far as applicant deponed in affidavit and Magistrate adopted affidavit that means attachment were part of affidavit were admitted. The trial Magistrate found no attachment in support of facts in affidavit and interpreted what was deponed under paragraph 5 of affidavit that geographical map dated 27/10/2023. Respondent submitted that appellant was supposed to produce evidence during hearing to complement facts otherwise appellants are bound by their pleadings. Page 12 of 18 I had time to read court records. I failed to locate certificate of seizure neither geographical map although paragraph 5 of affidavit imitate that documents were filed. None is found and is not proved that map was made on 26/10/2023 rather pleading state the map was made on 27/10/2023. There is no magic trial Magistrate could do in accepting seizure and the location where domestic animals were found. It was submission of the appellant that respondent admitted their cattle were found in the National Park via introduction letter. That is admission on both sides. How, let us see. During trial applicant complained that domestic animals were unclaimed and prayed for forfeiture and disposition. Respondents consulted their village leaders so that they can introduce them that their animals were missing. So far as introduction letter were introduced by appellant while arguing this appeal, I had time to read the said letters. For instance, the letter which introduced the 1st respondent convey a massage that cattle were seized at Oleng'osa outside of the National Park. (See annexture 2 of the 1st respondent counter affidavit). The 2nd respondent was introduced that his cattle were seized at Oleng'osa the side of Pololeti and not within the Serengeti National Park. (See Annexture 2 of the 2nd respondent counter affidavit). In the absence of Page 13 of 18 coordinates, it is not possible to confirm that domestic animals were within the National Park. Another issue complained by appellant is time spend in counting seized domestic animal. The said domestic animals were seized at 17:45 hours. Magistrate doubt on the accuracy of calculation bearing in mind it was very evening and the number of domestic animals were huge. As submitted by state Attorney, I find this issue to be minor. Now I turn to applicability or otherwise of the Police Force and Auxiliary Act, Cap 322. Mr. Isihaka submitted that that law was not supposed to be applicable because it deals with police while the officers who seized domestic animals were from TANAPA and insisted trial court ought to know that. Counsel for respondent insisted that section 47 of Cap 322 is applicable and it stipulates procedure to be followed. I had time to read chamber summons which initiated Criminal Application No. 10 of 2023 which was filed on 30/10/2023 and I find the trial court was moved under section 392 of CPA, section 9 of Cap 430, Section 47 of Cap 322, section 29 of Cap 282 and Regulation 7 of GN 50 of 2002. During oral submission, appellant (then applicant) did not specify under which law he prayed the seized domestic animal be disposed by public auction. It is not possible at Page 14 of 18 this stage to claim that Cap 322 is inapplicable while the said section was introduced by appellant. Respondent herein submitted that parties are bound by their own pleadings, I do agree and I stress that even this court is bound by parties' pleadings. See Saulo Malima vs Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436 (11th June 2024). I cannot buy the idea of the appellant that Cap 322 is for police and not Game rangers. What is in section 47 is the procedure to be followed and paragraph 10 of the affidavit indicate police were involved. It is position of this court that the procedures as stipulated by the law, Cap 322 were not adhered. As per record and submission, the seized domestic animals were sold by auction. Respondent claim there was no 14 days' notice as per section 12(2) of Cap 227. Mr. Isihaka (SA) submitted that the condition of notice was on landed property and to him the procedures on auction were adhered. What was the order made in ex-parte application, I find vigorous this to be known. While appointing court broker, on 31/10/2023 Magistrate insisted the auction to be conducted by adhering to all procedures and rules of public auction. Page 15 of 18 What does Cap 227 provide with regard to public auction; 12(l)Every licensed auctioneer shall, on the requisition of the owner thereof, accept the sate of all property which he is not prohibited by law from selling, which may be offered to him for sale in the town or at the place where he carries on his ordinary business as an auctioneer, and shall sell the property witiiin such time as the owner may require, or as soon thereafter as is possible, having regard to the sate of other property with which he has been entrusted, but he shall not be bound to sell any property sooner than seven days after he shall have accepted the sale thereof. Further, the Court Brokers and Process Servers (Appointment, Remuneration And Disciplinary) Rules, 2017 provides that; 10 .- (1) Every court broker and process server shall adhere to the Code of Conduct prescribed in die Second Schedule and Third Schedule to these Rules respectively. (2 ) A court broker shall, when executing an order of the court:- (a) abide by these Rules, Code of Conduct for Court Brokers, orders of the executing or superior court and such other directives as maybe issued by the ChiefJustice or the Committee; and (b) maintain property an account for proceeds ofsale. In the August, 2019 Honorable Chief Justice Published GUIDELINES FOR COURT BROKERS AND COURT PROCESS SERVERS to be applied by all Page 16 of 18 court brokers while performing their duties. At paragraph 9.6 (1-4) the guideline provides for procedures when court order sale of a property. Among the procedure is announcement and notice. Record shows the order of sale by public auction was issued on 31/10/2023. Record further shows public announcement in four districts were done on the same day which is 31/10/2023 and; the following day, that was 01/11/2023 auction was conducted. The law provides that if court •• , ’ i xk broker accepted the sale, the sale has to been done after expiration of seven days, rules and guidelines requires announcement and notice to be issued. The complained auction, a reasonable person can say, was done within 24 hours from application, order, appointment of court broker and sale. Why that rash? As submitted by counsel for respondents, the application was fallacious and find the trial Magistrate was right in her ruling. In the upshot I find the appeal lacks merit and is hereby dismissed. DATED at MUSOMA this 15th day of October 2024. k M. L. KOMBA JUDGE Page 17 of 18 Judgment delivered in open court in presence of Ms. Agma Haule & Mr. Tawabu Yahya, State Attorneys for the appellant and in presence of the 1st and 2nd respondents. M. L. KO MBA Judge 15th October, 2024 Page 18 of 18