… an appeal by the Director of Public Prosecutions to the High Court
THE Director of Public Prosecutions (DPP) has filed an application before the High Court, seeking orders to forfeit to the government all properties owned by the Development Entrepreneurship for Community Initiative (DECI), including 14bn/- deposited in three bank accounts.
He filed the application in compliance with the decision given by the Court of Appeal in 2018 in terms of sections 9 (1) (a) and 16 (1) of the Proceeds of Crime Act, as amended. Judge Steven Magoiga is set to hear the application in question on March 18, 2019.
The respondents in the application are Jackson Sifael Mtares, Dominick Kigendi, Timotheo Saigaran ole Loitginye and Samwel Sifael Mtares, who were convicted of operating a pyramid scheme by the Kisutu Resident Magistrate’s Court in Dar es Salaam on August 19, 2013.
Resident Magistrate Stuart Sanga sentenced them to pay a 21m/- fine each or go to jail for six years in default of paying the fine. All the convicts paid the fine to escape the jail term.
Among properties under which the DPP is requesting the High Court to order for their forfeiture include cash money in a bank account held at National Microfinance Bank (NMB), Msasani Branch amounting to 12,503,068,647/89.
There is cash money in a bank account held at DCB Bank Uhuru Branch, amounting to 1,457,700,462/49 and other cash money in a bank account held at Kenya Commercial Bank (KCB), Samora Brach amounting to 57,933,404/10.
Other properties include houses and plots, notably three houses, one located at Mwembe Madafu, Ukonga, another at Manzese and the other in Kinondoni Municipality, all in Dar es Salaam and one house situated at Rufiji Street in Mwanza.
There is Plot No. 651 Block M located at Forest area in Mbeya, landed property on Plot No. 2/283/2 Block E at Mabibo, Kinondoni and unsurveyed land at Manyinga Village in Mvomero, Morogoro and Plot No. 467 Block H located at Tegeta area in Dar es Salaam.
Other properties include11 motor vehicles of different make, notably Toyota Land Cruiser, Nissan Terrano, Mitsubishis Pajero, Toyota Mark II, Toyota Ipsum, Subaru Legacy, Toyota RAV4 and Toyota Premio.
In its judgment, the Court of Appeal saved the Bank of Tanzania (BoT) from paying over 92bn/- to about 400,000 customers of the DECI, who allegedly involved in an illegal pyramid scheme of depositing and receiving money.
This followed a decision of Justices Batuel Mmilla, Sivangilwa Mwangesi and Gerald Ndika to allow the appeal lodged by the DPP, opposing the judgment of High Court and that of the Kisutu Resident Magistrate’s Court in Dar es Salaam over the matter.
“We appreciate the fact that the BoT had nothing to do with that case because it was neither a party nor was it entrusted the task to keep the property seized from DECI (T) Limited,” they said in the judgment dated September 7, 2018.
Unfortunately, the justices went on, both lower courts did not throw light or give justification why, despite the obvious fact that the Central Bank was not in any way involved in that case, such courts below gave the Bank that task.
“Besides, given that the PCA (Proceeds of Crime Act) had prescribed the procedure on how to deal with tainted property, that duty was wrongly placed on that Bank. In conclusion, we allow the appeal and quash the orders of the first appellate court,” they declared.
In its judgment, the Kisutu Court had directed the money, the subject of the pyramid scheme, to be refunded to DECI (Tanzania) Limited members and that the BoT should make arrangements for such refund to the members who had deposited funds, but had not collected any proceeds.
When upholding such findings, High Court Judge Richard Kibela said that such money should be restored to the ignorant innocent owners of the said money using the registers where each of the customers was so registered at that company, DECI (T) Limited.
The judge had ordered the confiscation of properties such as motor vehicles, plots, houses and money for shareholders of DECI Company, who were convicted of the offences of operating the scheme by receiving deposits and providing returns to people without licence.
Judge Kibela had also pointed out that owners of the money, who are members or customers of DECI Company were ignorant innocent owners, who were not charged, convicted and sentenced at all and thus their money could not be confiscated without being heard.
According to him, the same have been ignorant of the commission of the offence, with which the respondent were charged and convicted. Therefore, the judge said, they ought to be availed with a defence of ignorant innocent owner of the said money deposited at DECI (T) Limited.
“Since the DECI (T) LTD customers were not charged and convicted with any offence, it would be improper and unfair for their properties to be forfeited without being given a right to be heard,” the High Court judge had ruled.
During hearing the appeal before the Court of Appeal, however, the DPP had contended that none of the members of DECI was required to benefit from the illegal game because during operation of the pyramid scheme, both operators and members were committing offences.