africa.law — Free African Legal Information

Judgment

o· rn THE HIGH cou-m OF TANZANIA AT MBEYA .,, krsc~ CRIMINAL REVISION NO. 3/2000 (From Original Mpanda District Court Criminal Case No. 182/2000). PUTO LAMECK MBILINYI ............................ APPLICANT VERSUS ·1 •• THE REPUBLIC.. o .... • :.~ •.•- •·• • •·• • • •••• •·•., ••• ..,., •.• RESPONDE:I'IT RU J,>I.N G,. \ WAMBURl s:"9 AO No pn,1 ( E~J O ) Tli:Ui ili. ar/~~pplic~~tion Jor,:revisi6n 'or'the order o_f ,Mpanda District Court .·' _,:::. _:,'" .;, _,.1: .. .,. .. /". ,,;ii1 dl'-n(i':applicants advocate, Mr. Mwangble ,argued that sin.Ce-, the appl±•ant u. . ,,' ... v{§lf,l .formaly charged then discharged of the qffence of being in possession of property -suspected to be unlaw!~;p,y acquired' in Cr. c. 152/2ooc. t' ien it was .. wrong:·to' b.r.J:td ttV«- the said car to one 11wasigwa simply because one Kahwa admitted . •. . .. ,committing the offonce 81',d was accordingly convicted and sentenced. The applicant was ~~ggrived by the order of returning the sa1d motor vehicle to one Mwasigwa .ii:. as he alleged he is the lawful OJ,,Jll~~r of the said motor vehicle :p.av,ing bought it from one .Sam.so• Mwaitega on 3/4/2000,. The sale agreement and registration :•ard of the said car were tendered, ;:Ul.d-8.W!litted as exhibits 'P1' ang,::t82;1. respectively. . . · .. :-··.

. . . It was Mr. Mwanrol.e'~ ?ray er: the said order was improper /:q._ .that even the polic _ .. - . . 'it . . . thE:mselves did notj;ask .for such an order and the fact that it was issued. while • th,e ,applicant was not heard was contrary to natural justiee as he was •ondemned ·"' •k••' unheard. Mr. Mwagole therefore prayed that the order be revised and the appli,ant be given his car and that anyone: whq, feels q.ggri'aved should file a civil suit more because- th'e applicant was discharged in the criminal suit. He quoted the cas of Sll.N:E.'RY MKANGA.il V R\FAEL ALBERI'O ( 1992) TLR 110 where it was held that a criminal court is not a right coram to entertain a civil suit emphasizing hi:!!

•

2 care prayer that the -- h,:, ~~~-turned to the applicant. Mr. Boface appearing for the Republic wap__ in total agreement with Mr., Mwangole's submissions asking this • court;to look into the issue accordingly., Now it is not in dispute that. tp.e;-apI_Jlicant and later one Kahwa were . · .. .; ~ . :·fl,, ...... charged of the ~~fr°en"ce· ·o·f -being in possessi9n of property suspected to be unlawfully acquired. The applicant was later discharged but the said property ,_,··•··~~-., .. ~ which he was arrestecl.' ;,11th·, that j.s: the. JJ1.otoI'. vehicle was not r0turned to him. Kahwa though was c~~:,Tcfecl-and sentenced upon his own plea of guilty to the char of stealing by agent c/s 233(b) of the Penal Code., It was thus that an order was made to retur, the said motor vehicle to the alleged lawful owner. ,. It is again . not in dispute . tfuit· ·tfie- awlican,t:_J)gght the said car but not fr.om K.9.hwa but_ from one s'amson Mwaitege as evidenced from the sale agreement . ·and the car'.s registration card which alsc\ ~~. the name of Ed.ward Sospeter as the owner before ownership. passed hands: to S~~ClP; Mwatege. Th_e issue 0n dispute here. is as to: w.ho, is. the \fwf,~~l ewner of the said .. motonehicle. In the p{oceed~~gs of.' the lower .court ownersJP .,._ras granted to •. • • one E •. Sos peter while in this: a:pplication the applicant is also claiming owrershipo This issue was not decided in the lower court. And as it was held in. the case of SILVERY MKANGAA V Rid¥,ti:L,c,Af,BERI'O, cited above; that a criminal court is not the proper coram to entertain a tjvil-suit, by entertaining this .;.; tt ~ ...... application and issui..,g the order prayed for bl the applicant, I will be going against this decisiono Since all partiep have to be heard to prove ownership . of the same, I will be eritertiining -=i. ·-civil application instead of a criminal <·· ", ,· ..... one. i"l' ' :1' I thw. rule that ns a''civil suit will have be filed in court to prove QWeX1Ship.1.t of the said car, the said motor vbhi:cl'.b should remain in the • custody of the court until the lawful owner of the said car is known • ·'-· .. •·. It is so ruled. S.A.N. W.ANBURA PRINCIPAL RES1-Dfili!T MAGISTRJ.TE (E.J •. ) 6/9/2000 . .. ,j

Judgment

. . . It was Mr. Mwanrol.e'~ ?ray er: the said order was improper /:q._ .that even the polic _ .. - . . 'it . . . thE:mselves did notj;ask .for such an order and the fact that it was issued. while • th,e ,applicant was not heard was contrary to natural justiee as he was •ondemned ·"' •k••' unheard. Mr. Mwagole therefore prayed that the order be revised and the appli,ant be given his car and that anyone: whq, feels q.ggri'aved should file a civil suit more because- th'e applicant was discharged in the criminal suit. He quoted the cas of Sll.N:E.'RY MKANGA.il V R\FAEL ALBERI'O ( 1992) TLR 110 where it was held that a criminal court is not a right coram to entertain a civil suit emphasizing hi:!!

•

2 care prayer that the -- h,:, ~~~-turned to the applicant. Mr. Boface appearing for the Republic wap__ in total agreement with Mr., Mwangole's submissions asking this • court;to look into the issue accordingly., Now it is not in dispute that. tp.e;-apI_Jlicant and later one Kahwa were . · .. .; ~ . :·fl,, ...... charged of the ~~fr°en"ce· ·o·f -being in possessi9n of property suspected to be unlawfully acquired. The applicant was later discharged but the said property ,_,··•··~~-., .. ~ which he was arrestecl.' ;,11th·, that j.s: the. JJ1.otoI'. vehicle was not r0turned to him. Kahwa though was c~~:,Tcfecl-and sentenced upon his own plea of guilty to the char of stealing by agent c/s 233(b) of the Penal Code., It was thus that an order was made to retur, the said motor vehicle to the alleged lawful owner. ,. It is again . not in dispute . tfuit· ·tfie- awlican,t:_J)gght the said car but not fr.om K.9.hwa but_ from one s'amson Mwaitege as evidenced from the sale agreement . ·and the car'.s registration card which alsc\ ~~. the name of Ed.ward Sospeter as the owner before ownership. passed hands: to S~~ClP; Mwatege. Th_e issue 0n dispute here. is as to: w.ho, is. the \fwf,~~l ewner of the said .. motonehicle. In the p{oceed~~gs of.' the lower .court ownersJP .,._ras granted to •. • • one E •. Sos peter while in this: a:pplication the applicant is also claiming owrershipo This issue was not decided in the lower court. And as it was held in. the case of SILVERY MKANGAA V Rid¥,ti:L,c,Af,BERI'O, cited above; that a criminal court is not the proper coram to entertain a tjvil-suit, by entertaining this .;.; tt ~ ...... application and issui..,g the order prayed for bl the applicant, I will be going against this decisiono Since all partiep have to be heard to prove ownership . of the same, I will be eritertiining -=i. ·-civil application instead of a criminal <·· ", ,· ..... one. i"l' ' :1' I thw. rule that ns a''civil suit will have be filed in court to prove QWeX1Ship.1.t of the said car, the said motor vbhi:cl'.b should remain in the • custody of the court until the lawful owner of the said car is known • ·'-· .. •·. It is so ruled. S.A.N. W.ANBURA PRINCIPAL RES1-Dfili!T MAGISTRJ.TE (E.J •. ) 6/9/2000 . .. ,j

Puto Lameck Mbilinyi vs Republic (Misc. Criminal Revision No. 3 of 2000) [2000] TZHC 535 (6 September 2000)

Judgment

Discussion

Puto Lameck Mbilinyi vs Republic (Misc. Criminal Revision No. 3 of 2000) [2000] TZHC 535 (6 September 2000)

Judgment

Discussion