19730804 TZHC Mwanza3

• IN THE hIGH COURT OF TMhZAI'IA AT MI!AIbZA. APPIATE JURISDICTIOILIT 1-11011 COURT CRIi-iiINAt APURAJ NO. 246 OP 1972 Origina.1 Criminal Case No. 409 of 1971 of the District Court of Shinyanga District at Shinycuga - Before: N.E. Likono Esq., Resident Magistrate; DIRECTOR OP PW3LIC PROSECUTIONS ............. .......... APPLILLMTT (Original Prosecutor) Versus: PAUlOhIAG-UIIGUI/LA ...... •• ................. ........... RESPONDENT (Original Accused). ChiARE: Corruption c/sd 3(1) are. 10 of the Prevention of Corruption Act. JIEJGMENT. JONATHAN, J. This is an appeal by the Republic from an acquittal by the district court of Shinyanga of one Paulo s/o Mamguna on a charge of Corruptii c/ss. 3(1) and 10 of the Prevention of Corruption Act. The particulars of the offc-nce chaxgud that, on or about tie, 16th, August, 1971 the accused, being a clerical officer in thu office .0±' Community Development, Shinyanga, corruptly obtained from one IGaao James a sun of shs • . 50/= as an inducement to the accused to get him employed in Community Development as a carpenter. The evidence as recorded need not here be restated at great length. The accused/respondent was a clerical officer employed by the Department of Community Development, as it than was, whose head aifice was in Dar-es-Salaem4 .I1.e was posted to Shiiiyanga and theie worked under the Logional Community Development - Officer. A--post was advertised of a carpenter and one Isaac Jes then of Shiñyanga applied for it. A reply cie from the head office care of the Regional Office requiring that he should be :iedically exiined and certified as to fitness. I -Ic duly got the cloctorts certificate and handed it to the accused for transaissiom to the head, office. The accused asked Isaac to return home to await rep1yfrom Dar-es-Saleam; -According to Isaac some dayslator he received a letter from the accused. Apparently it Was not-an official correspondence. There the accused informed him that he had :.dono everything- to ensure that he got the job. In that .-onnoction• he asked him to call at the office as soon as possible, cand added- that he shdi2Jid not foit their promise of shs. 50 and ghoo which he should bring .:vth him and that should it be a Sunday when he coiled' or•• after office hours he should ask for him at a place indicated in the letter. Isaac :then went to see him at the offiec. Appently the head office had already sent a letter of appointment to be handed :ever to Isaac*1 The accused-then took him outside and asked if 7he had ±eceived the ltter, which he had, telling 1 -the that there was no. point seeing him at the office if he did not have the money and some ghee • To tlis Isaac promised to see him on Monday - I suppose it was then Saturday. Isaac then reported to the police and a trap was alTanged, qnd when on Midy - Isaac gave -the accused a sum of shs. 50/= the police arrested,te 1atte. .• . * 1090 ThQ accuerJ in his defence admitted receiving the money. He said, however, that, he had, given Isaac she. 534 to buy him some maize and ghee as these were cheap at the vi11ge of Isaac and that, after Isaac had subsequently told him tho prices had gone up of these commodities he had asked hin.not to buy maize Eny more and to return the money, which, according tol-tim, ,explained.the.coteu -b of the letter to Isaac'. The learned resident magistrate in his judien -t did not find it nece- to ssarynake any material finding of Not and proceeded 'to dispose of the Case Th a point of lcwtht is,'thd'iñtdpdtaiiôr'àf 166tion 3 (i) of the Prevention of Corruption Ordinance under which the charge was laid. He posed the question, uDid the accused in accepting the s1a4 50/= from Isaac receive it as an inducement to do some act - nemely to engage Isaac as a field assistant an act in relation to his Principal's affairs? This was undoubtedly a pertinent question to ask'. It scorns however, that the magistrate was there preoccupied specifically with the words; ',......,',., in relation to his principal's affairs. Answering to this specific point he said .'..... It is an essential element of the offoce of corruption that the accused must be a competent agent capable - of doing that netter of transaction which concerned the governnent." In euding this proposition he relied on the.clecision of the lii.1a Court of.Kenya in Ouko V Eftpublic (1966) EA 287. I an in agreement with Lii'. Ntaboye, the state attorney who argued the appeal s that the magistrate completely misunderstood the authority he purported to rely on. In that case the accused was a police officer who had received money from one person on an undertaldng by the accused to see that a relative of that person who was then in prison serving sentence , was released. As a matter of fact, howe7er 1 as a police officer there was nothing the accused could do to get that prisoner released, for the power to do so lay only with the President of Kenya in the exercise of lie prerogative of clemency and the High Court in its appellate Cr revisionary jurisdiction4 however, interpretig the words 'public bodyT contained in S. 3 (i) of the Prevention of Corruption Act which are analogous to, but perhaps narrower in scope than, the corresponding word 'principal contained in •I section 3(1) of the. Prevention of Corruption Act, 1971, the court held, inter alia, and it does appear to us that any servant or officer of the Government of Kenya can be. fixed with liability if he corruptly undertakes to act in respect of a matter in which the G-overnnent of Kenya is concerned, whether the matter is or is not the concern of the officer or servant. It is clear therefore that, far from supporting the view taken by the trial magistrate the decision he cited held completely the opposite ..... view. In niy view that decision, with which I respectfully agree woul&- pply to the facts of the present case. In confirmation Mr. ltabayo:'. .. referred me to the judgnont ol' this Court in Mohaned V Ranaclhani (19'TO) - ...... 3. H.C.D. case No. 50 in which Georges, 0.3. adopted the Kenyan authority and followed also a decision on this point of the High Court of Uganda in iIji 1'IolecUna V R(1960) EA 678 where the relevant facts . wore similar totbis case. Here the accused was in the mip1oy of the Government. The Govennient does engage employees and if, as the osecution alleged, the accused corruptly solicited and received an inducanent to got Isaac a job, in the Government, he received such inciucenent in relation to his principal 1 s aifairs. I am satisfied that the magistrate was wrong in acquitting the accused merely because it was not his duty nor within his power to appoint Isaac and, accorciingJy, the appeal is allowed and the acquittal set aside. Lir. Ntaboyo urged that in the event of the appeal being allowed this court should itself convict notwithstanding that the trial court made no findings, on the facts that were materially in dispute. In particular, the magistrate did not decide whether, as the prosecution alleged, the accused received the money as an inducement to get Isaac appointed or whether, as he claimed, Isaac was 'returning money he had given him to buy hire maize and ghee'. The learned state attorney asked. that this couTt should itself consider the evidence and recoil a decision as it has tho power to do. It is doubtful and certainly I on not aware that, in its appellate jurisdiction this court has such power, in a situation as here where no finding was made by the trial Court Ofl a substantive matter. Powers of this court in appeals by the Director of Public Prosecutiohs.e'e'contained in sectiai 338 of the Criminal ocedure Code. There, however, no provisions are discernible at : least to rae as specifically empowering this court to make a finding on an issue which was before but was not determined by, the trial court. Irrespective of whether or not such power exists there is a decision of this court s sitting as a Bench of three judges, thatis inappropriate for this court to determine an issue on which no finding was reached by the trial court That is in Jaffer Gulonhussein and Another V H. (1963) EA 232. Its background was a case stated under the case stating and replacement provisions of' tile Criminal Procedure Code before their rePealLbut I think the decision in that zppeal would apply equally to the replacing provisions for appeal by the Republic under which the present appeal has been brought. There had been a case stated at the instance of the Republic following the accused 1 s acquittal by the trial court. A judge of this court had found that the lower court had wrongly regarded the vidence of one witness as that of an accaeplice, but for which misdire- ction the jud:e considered the trial court would have convicted The court then remitted the 'case back to 11- 11e lower court with a direction to convict The order was carried out. That was followed by an appeal from the conviction by the magistrate to this court. The court in their decision ,however ' •. 'that in view of certain remarks by the trial magistrate found . from which it would appear he had regarded as unreliable the evidence • of the prosecution witnesses, it was not certain that the court óu1d have •__-,._4 ,•••. . convicted had it not wronglyconsiiered the ono..wi±ness tobe an accomplice., Allowing the appeal before then and referring to the pro- ceeding dQcisign•in the case stated, the-court noted, inter;:clia, It is. unfortunate that the proceedings in the cso stated-were not returned to the lower court with zwdircction by the- trial eiagitrato. to reconsider his judent rather than with a direction to. convict In our view,.a.lower court should not be directed to convictunless its findings aa embodied in its judaent are such that a conviction is inevitable...0.., it does not-necessarily follow that the trial L1astrate must have convicted ,.,... Applying these obserat1ons to the present case it is clear, as already noted, that, the trial court did not make a finding whether the accused received the money corruptly, and as I cannot say whether he would have so found had ho considered the evidence I cannot properly enter a - conviction. The case will have to be remitted back to the trial court. I was informed at the hearing of this appeal that the trial raagLstate is ) currently on a course overseas so that it would be inpracticable to direct that lie should make a finding on the evidcnceo Accordingly $ the appeal is allowed and the acquittal set aside together with the proce- edings in the lower court, which is hereby ordered to try the Case - afresh. M\7A1IZA: (p. lvi. J01TATI-1MT) JIJDGE. 4/8/73. 0.