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'0 S 5 0 L HV1I'ItdtV lI/?I 'bsa '13.&tC13Sfl113MI "1 , 2 O.100Q 13.U13ittTtIS .12 oi.isçct 13?T1sRttTttS ;o 4.IflOQ 401.IqsTa 0tI1 10 ILGi .2O rl7t? Oj[ OS13Q I13 UTUT.1O T13UTT.1O L6T oH rraav vni:mio anoo HDIll O 6Lt' VZHVLJJ'I IV VIffVZh7 O f1OO ILL: [.L II He further held that since the relationship of principal and agent and an allegation that the respondent received the money in relation to his principal's affairs Was not averred in the particulars of the charo 2 o charge was defective. He however correctly held that the defect was curable as the respondent was not prejudiced by it and also because no :)bjcct±on to the defocts was raised by the learned Counsel for the cspondent at his trial. Mter reviewing the evidence before him the loaniod resident gistrate acquitted the respondent on the ground. that the facts proved ifferod with the particulars in the charge sheet. Since it is this ciFjion that the Republic is appealing against I shall reproduce the relevant portion of the judaent in order to bring out clearly the :1iStrate'S reasons. The relevant portion of the judgaent reads:- "The 2nd point is who thor the accused received the L1o1.ey as an inducement to do something for the complainant. This is an intricate question. The charge sheet before no states the accused received the money so that he could give a favourable decision in the case which is No. 2/1971. Counsel for the accused Mr. Kuldip Singh rightly pointed out that the prosecution have failed to prove what they had set out in the charge sheet. One prosecution witness A.S.P. Haule (P.W.l) told the Court that he was told by the complainant that accused wanted money so that he could favour the complainant,' a uncle • However the complainant told the court that accused wanted the money so that the case could be speedily dealth with and finalised. And in the state ment which the complainant gave to the police and which was accepted in court as Exhibit "C" Defence, the com- plainant stated that the accused wanted the money so that he could speedily finalise the case. Admittedly there is a major discrepancy between what the prosecut - ion sot out to ircvc and what they have proved. On the evidence I accepted the word of the complainant that accused had demanded the money so that lie could speedily deal with the case. In the circtstances the variation between the particulars of the charge and the facts provod is apparent. By any stretch of imagination I cannot agree that giving a favourable decision is tanta- mount to speedily finalising the case. Those are two distinct things. All the complainant was interested with, is his case being heard as soon as possible what- ever the outcome of the decision. Now, what is the position where the facts proved differ with the particulars in the charge sheet?" M'tor referring to the decision in Lanock s/o Bundala v. R. (1968) H.CD No. 55, Edward Opiyo s/o Anguro v. i. (1968) H.C.D. n. 55 and Uganda_r. E. araga (1954) Y.A. 366JiE probod to holT6Dows:- "By parity of reasoning, this case cannot stand. The prosecution had not set out to prove that the bribe was for giving a favourable decision on the case of the complainant. However what they have Proved is that the bribe was for the accused to spoedily finalise the com- plainant's case. In the absence of an amendment the conviction cannot be had, although I have reached this conclusion with much regret." Indeed the loaniod resident magistrate had reason to fool much ingret for the decision ho reached which resulted in his acquitting the respondent bocause he clearly felt that the respondent's guilt on the offence of corruption was proved beyond reasonable doubt but that the authorities he consulted were against his entering a conviction. To no, the magistratets predicament was of his own making. He made two errors. In the first place he interpreted the meaning of the word favourtI only to mean advantage. Clearly this interpretation was too b• narrow and restrictive. Had he checked on the definition of the word favour in section 2 of the Prevention of Corruption Act, 1971 he woul have found that the definition given there is so wide as to cover the situation which he was confronted with. In that section the word "favoi±r" is defined to include, among other things,"any aid or pretend iid, any promise or procureient of or the holding out of any expecta-• ion of"etc. Thus though it is correct to say that giving a favourabl decision in a case is not tantamount to speedily finalising a case, it is also correct to say that doing either, or both, of the two is doing favour. Since the allegation in the particulars of the charge was that the respondent accepted or obtained the money corruptly as an inducement to show favour, and as the trial magistrate came to a finding that it was proved by evidence that the respondent received the money to speedily finalise the complainant's case, there was no basis for his finding that there was variance between the particulars of the charge and the facts proved. Having found all the ingredients of the offence c barged proved he should have proceeded to c onvic t the respondent, as the variance between the particulars of the charge and the facts proved was non-existent. The charge ofcorruption against the respondent was proved beyond reasonable doubt. The other error he made was •to hold that the three cases he quoted applied to this case. As I have pointed out there was no variance between the particulars of the charge and the facts proved in this case thus the principle laid in those cases was not applicable in the case he was dealing with. At the hearing of this appeal LTr. Rugarabamu for the reepondent requested the court to review the evidence in the whole case. He conceded that the magistrate took a very restricted view of the law and was under a misconception as to what had to be proved but su1itto: that the magistrate did this in an attempt to justify the wrongful finding he had earlier on in his judgmentas to the proof of the facts i.e. that the respondent received the Shs. 200/=. Having carefully gone through the record I am left in no doubt at all that all the findings of fact made by the magistrate were fully supported by the evidence. He carefully reviewed the evidence and rightly dismissed the respomdentca defence that the money was planted on him as words of a drowning man. He was fully justified to do so as he believed the evidence of the two independent eye witnesses who deposed that they saw the money being produced from the respondents pocket. There is therefore nothing in the record which can induce this Court to review the evidence or could lCacT to reversal of the findings of fact made by the trial magistrate. For the reasons stated in this judgment the appeal is allowed and the order of acquittal made by the trial court is set aside. In its place a conviction on the offence charged is entered. Delivered this 16th day of May 1975. R.B.MAJA 16th May, 1975. AG. JDGE Mwanyika for the Republic. Matemba for Rugarabamu for the Respondent. COURT: This case was finalised in the District Court in 1972 and the trial magistrate has already been transferred to another station. The respondent who was represented has not appeared at the de1iveij of this judgment. The offence with which he was charged and has been convicted of falls under the Minimum Sentences Act and there ar no factors which the Court can consider to make it impose a sentence less than the minimum Drovided by law. This Court has there to pass sentence on the rapdnden in his absence. 4 - SENTEI'TCE: The appellant is sentenced. to 3 years imprisonment. R. B. MPC- TGA' 16th May, 1975. AG. JUDGE ORDER: Warrant of arrest to issue against the respondent immediately. He 1a11 be committed to prison to begin serving his sentence as soon as he is arrested. The sentence shall run from the time of his committal to prison. q. ç R. B. IIAGAGA 16th May, 1975. AG. JUDGE 26/5/75 Co ram: R..B. Maganga, Ag. J. c/a states: Respondent has been brought under arrest as was ordered. COURT: As ordered on 16/5/75 when. judnent was delivered, he ioud be committed to prison £orthith to serve the sentence imposed.. R R. B. MGAGA AG. JUDGE ii