Ally Abas @ Amani vs Director of Public Prosecution (Criminal Appeal No. 10676 of 2025; DC Criminal Appeal ) [2026] TZHC 3128 (10 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF TABORA AT TABORA CRIMINAL APPEAL NO.10676 OF 2025 (Appeal from Misc. Criminal Application No . 18111 of 2024 District Court of Kaliua, at Kaliua ) ALLY ABAS @ AMANI…………….. …………….………………………………….APPELLANT VERSUS DIRECTOR OF PUBLIC PROSECUTION…….…................................... RESPONDENT JUDGMENT 18 th May & 10 th June , 2026 MPAZE, J.: This appeal originates from the ruling of the District Court of Kaliua at Kaliua in Miscellaneous Criminal Application No. 18111 of 2024. In that application, the appellant sought an order declaring him to be the lawful owner of Mo tor Vehicle Registration No. T 899 CSC, Toyota Noah, which had been declared unclaimed property in Miscellaneous Criminal Application No. 12 of 2024. He further prayed for any other relief that the court deemed fit to grant. 2 Upon hearing the application, the trial court found that the appellant had failed to establish his claim and consequently dismissed the application with costs. Being dissatisfied with that decision, the appellant lodged the present appeal against the whole ruling and order on the foll owing sole ground of appea l ; 1. That, the Resident Magistrate erred in law and fact for holding that there was no proof that the Appellant is the owner of Motor vehicle with Registration No T 899 CSC make Toyota Noah . Pursuant to the directions of the c ourt, the appeal was heard by way of written submissions. The appellant's submissions were drawn and filed by Ms. Stella Nyaki, learned Advocate, while the respondent's submissions were drawn and filed by Ms. Wivina Rwebangira, learned State Attorney. Both parties complied with the filing schedule as directed by the c ourt. In her submissions, learned counsel for the appellant argued that the appellant is the lawful owner of Motor Vehicle Registration No. T 899 CSC, Toyota Noah, having purchased the same from one Yunusa Kassim@ Katigiri on 20 April 2014 for a consideration of Tshs. 13,500,000/=. Counsel relied 3 on the sale agreement and the motor vehicle registration card which had been tendered before the District Court in Miscellaneous Criminal Application No. 18111 of 2024. It was further submitted that , after purchasing t he motor vehicle, the appellant used it for his personal purposes until 2021 , when one Chris requested to use it for transporting clothes to various auction centres upon payment of Tshs. 30,000/= per day. According to counsel, in 2022 the appellant demand ed the return of the vehicle from the said Chris for his personal use, but Chris failed to do so. The appellant allegedly remained unaware of the whereabouts of the vehicle until April 2024 when a police officer identified as Kaini informed him that the motor vehicle was being kept at Kaliua Police Station in connection with a criminal matter and was liable to forfeiture and eventual sale by public auction. Upon becoming aware of those circumstances, the appellant filed Miscellaneou s Criminal Application No. 18111 of 2024 seeking a declaration of ownership. Counsel submitted that the learned trial Magistrate erred in law by concentrating on irrelevant matters, particularly whether Chris had paid 4 the agreed consideration for hiring th e vehicle, instead of determining the central issue of ownership. It was further contended that the trial court misdirected itself by disregarding the documentary evidence tendered before it, namely the sale agreement and the motor vehicle registration car d bearing the name of the alleged seller, Yunusa Kassim Katigiri. Counsel further relied on the decision in Hassan Kibona and Another v. Amanyisye Kamwela (Pc Civl Appeal 17 of 2019) TZHC 2243 (16 February 2021) Utamwa J stated ; ‘ my further view is that, the registration card/certificate of motor vehicle constitutes, in law, good evidence that the registered owner appearing in the card/certificate is the lawful owner of the motor vehicles unless evidence adduced to the Contrary’ It was submitted that , in the present case the appellant produced both the sale agreement and the registration card , and that no evidence was adduced to challenge or rebut those documents. Counsel therefore prayed for the appeal to be allowed and for the appellant to be declare d the lawful owner of the motor vehicle. 5 In response, Ms. Wivina Rwebangira, learned State Attorney, submitted that the appellant failed to prove ownership of the motor vehicle and, consequently, the vehicle properly remained unclaimed property. She argued that the appellant's reliance on a sale agreement alone was insufficient to establish ownership in the absence of a motor vehicle registration card or any official ownership document bearing the appellant's name . The learned State Attorney further submitt ed that , although the appellant alleged that he had been informed by a police officer known as Kaini regarding the whereabouts of the vehicle, no evidence was tendered to establish that such communication had in fact taken place. Similarly, no evidence was adduced to establish that the appellant had entrusted the vehicle to one Chris, that Chris had agreed to pay Tshs. 30,000/= per day, or that any such payments were ever made. It was also submitted that the appellant failed to demonstrate any efforts made to recover the motor vehicle despite allegedly having lost possession of it for approximately two years. According to the respondent, the appellant failed to establish any proprietary interest in the vehicle and, therefore, the vehicle was properly treated unclaimed property. 6 The learned State Attorney further argued that ownership of a motor vehicle is ordinarily proved through a registration card or other official documentation issued by the Tanzania Revenue Authority (TRA). In support of that proposition, she relied on the decision in I nara I nvestment and 2 O thers v A ndrew H ermas M assawe , CIVIL APPEAL NO. 83 OF 2019, wherein the court observed ; ‘No proof to that effect through registration cards or any document from TRA exhibit the ownership’ Counsel submitted that the appellant did not produce any registration card or official document bearing his name. She further referred to the authority relied upon by the appellant, namely Hassan Kibona and Another v. Amanyisye Kamwela ( supra ), and argued that the presumption of ownership arising from a registration card operates in favour of the person whose name appears on the registration document. Since the registration card produced by the appellant bore the name of Yunusa Kassim Katigiri and not that of the appellant, counsel maintained that the appellant had failed to establish ownership. She therefore prayed that the appeal be dismissed. 7 In re joinder , learned counsel for the appellant maintained that the appellant had sufficiently proved ownership t hrough the sale agreement and the motor vehicle registration card. Counsel argued that no evidence had been adduced to rebut the appellant's documentary evidence. She further submitted that the learned trial Magistrate failed to properly evaluate the evid ence relating to ownership and instead focused on extraneous matters. Counsel further relied on section 107(1) of the Evidence Act, Cap. 6 [R.E. 202 3 ], and submitted that documentary evidence plays a significant role in establishing proprietary interests. According to counsel, the sale agreement demonstrated the transfer of ownership from the seller to the appellant, while the registration card corroborated the existence and identity of the motor vehicle in question. It was therefore argued that the trial court misdirected itself by disregarding such documentary evidence in favour of speculative considerations. Counsel accordingly prayed that the appeal be allowed I have duly considered the submissions of both parties, the record of the trial court, and the authorities cited. 8 In determining this appeal, I find it necessary to begin with the legal framework governing claims by third parties over property that is subject to forfeiture proceedings. Section 19(1) of the Proceeds of Crime Act, Cap. 256 [R.E. 202 3 ], grants any person claiming an interest in property that is the subject of forfeiture proceedings the right to apply to the court for recognition and protection of such interest. Th e said section provides that ; ‘ (1) Where an application for a forfeiture order is made against property, any person who has an interest in the property may, before the forfeiture order is made, apply to the court for an order under subsection (6). Further , s ection 19(6) of the Act further empowers the court, where it is satis fied that the applicant has a legitimate interest in the property and was not involved in the commission of the offence giving rise to the forfeiture proceedings, to order the transfer of the property or payment equivalent to the value of such interest. T he burden therefore rested squarely upon the appellant to establish, on a balance of probabilities, that he was the lawful owner of Motor Vehicle Registration No. T 899 CSC, Toyota Noah. 9 I have also considered the appellant's reliance on section 107(1) of the TEA , which provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The appellant's argument was that he discharged that burden b y producing the sale agreement and the motor vehicle registration card. While I agree that documentary evidence is an important mode of proof and may, in appropriate circumstances, establish ownership, the mere production of documents does not automaticall y discharge the burden imposed by section 107(1) of the TEA . The court must still evaluate the credibility, authenticity, and probative value of such documents in light of the entirety of the evidence before it. It is therefore necessary to examine whether the documents relied upon by the appellant were sufficient to establish, on a balance of probabilities, that ownership of the motor vehicle had passed to him. The record reveals that the appellant's claim of ownership was principally founded on a s ale agreement allegedly executed between himself and one Yunusa Kassim @ Katigiri on 20 April 2014, together with a motor 10 vehicle registration card bearing the name of the said Yunusa Kassim Katigiri. The appellant further relied on the averments contained in his affidavit in support of the application. In particular, paragraphs 2, 3 and 5 thereof stated as follow s; 1. That, sometime in 20 th A pril 2014 the applicant herein purchases a Motor Vehicle with registration No T 899make Toyota Noah from YUNUSA KASIM@KATEGIRI in consideration of Tanzania shillings 13,500,000/= /=. A copy of sale agreement and Motor vehicle Registration Card is attached herein to form part of the Applicant claim. 2. That, ever since the applicant purchases the above said Motor Vehicle he has been using for his own gain until 2021 when a nearby person called Chris requested to use for the purpose of transporting clothes to different auction in consideration he will be paying the applicant Tshs 30,000/= per day. 5. That, April ,2024 the Applicant got informed by one of the police officer by the name of Kaini that his Motor Vehicle has been detained at Kaliua Police station with the fine of Tshs 60,000/= and if he is willing t o claim it he was supposed to go to Court. The These averments constituted the factual foundation of the appellant's claim before the trial court and remain the basis upon which the present appeal is anchored. 11 The appellant contends that the sale agreement and motor vehicle registration card sufficiently established his ownership and that the trial court misdirected itself by considering surrounding circumstances relating to Chris and the recovery of the motor vehicle. I have carefully considered that conte ntion but find myself unable to agree with it. A careful reading of the affidavit demonstrates that the appellant's claim depended substantially upon facts attributed to three individuals, namely Yunusa Kassim @ Katigiri, the alleged seller; Chris, the per son to whom the motor vehicle was allegedly entrusted; and Kaini, the police officer who allegedly informed the appellant of the whereabouts of the vehicle. However, none of those persons swore an affidavit in support of the appellant's assertions. Of part icular significance is the alleged sale transaction between the appellant and Yunusa Kassim @ Katigiri. Since ownership was the central issue before the trial court, evidence from the alleged seller was material and necessary to corroborate the appellant's claim that ownership of the motor vehicle had passed to him. The Court of Appeal in Benedict Kimwaga v . Principal Secretary,Ministry of Finance ( Civil Application No.13 of 12 2000)[2000]TZCA 85(1 January 2000) observed that where an affidavit contains materi al information originating from another person, an affidavit from that person may be necessary to avoid the evidence being treated as hearsay. The Court stated ; ‘ If an affidavit mentions another person, then that other person has to swear an affidavit Howe ver, I wou l d add that that is so where the information of that other person is material evidence because without the other affidavit it wou l d be hearsay. Where the information is unnecessary, as is the case here, or where it can be expunged, then there is no need to have the other affidavit or affidavits. ’ In the present matter, the alleged sale transaction constituted the very basis upon which ownership was asserted. Yet, no affidavit from the alleged seller was tendered before the court. The omission depr ived the appellant's claim of independent corroboration from the very person who allegedly transferred ownership of the motor vehicle to him. Furthermore, the motor vehicle registration card produced by the appellant did not bear his name. Instead, it refl ected Yunusa Kassim Katigiri as the registered owner. The authority relied upon by the appellant, Hassan Kibona and Another v. Amanyisye Kamwela ( supra ), states that a motor 13 vehicle registration card constitutes good evidence that the person whose name app ears therein is the lawful owner unless evidence to the contrary is adduced. Far from advancing the appellant's case, that authority tends to support the position that the registered owner remained Yunusa Kassim Katigiri. Although the appellant produced a sale agreement, no evidence was adduced to demonstrate that the ownership particulars of the motor vehicle were ever transferred to his name or that any official record subsequently recognised him as the owner. The sale agreement therefore remained the sol e document linking the appellant to the vehicle. Standing alone, and in the absence of supporting evidence from the alleged seller, it falls short of conclusively establishing ownership. I have also considered the appellant's complaint that the trial court placed undue emphasis on the alleged arrangement between the appellant and Chris. While I agree that proof of such arrangement was not the central issue for determination, the trial cour t was nevertheless entitled to consider the surrounding circumstances when assessing the credibility and weight of the appellant's claim. Those circumstances included the absence of 14 supporting evidence from the alleged seller and the fact that the registra tion card remained in the name of another person. At this juncture, it is important to reiterate that the burden of proving ownership rested entirely upon the appellant. The respondent was under no obligation to rebut the claim unless and until the appella nt had established a prima facie case. Upon evaluating the evidence placed before the trial court and this Court, I am not satisfied that the appellant discharged that burden. Accordingly, I find no fault in the conclusion reached by the learned trial Magi strate that the appellant failed to establish, by credible and sufficient evidence, that he was the lawful owner of Motor Vehicle Registration No. T 899 CSC, Toyota Noah. Consequently, the sole ground of appeal fails. In the event, this appeal is hereby di smissed in its entirety. The ruling and order of the District Court of Kaliua in Miscellaneous Criminal Application No. 18111 of 2024 are hereby affirmed. It is so ordered. 15 Dated at Mtwara this 10 th Day of June, 2026. M.B Mpaze Judge Court : Judgment delivered this 10 th day of June, 2026 in the presence of Ms. Stella Nyaki, Learned Advocate for the appellant and Mr. Steven Mnzava Learned State Attorney for the Republic/ Respondent. M.B.Mpaze Judge 10/6/2025 16