19760628 TZHC Tabora

! I IN THE HIGH COURT OF. TANZANIA ,AT.TABORA., - . . ... APPELLATE JURISDICTION COURT CRIMINItL M?EAL NO0 36 OF 1976 HLGH (Original Criminal Case No033. of 1575-- of the District Co -irt of Smbawanga District at Sumbawanga - before Be M0 Mhagarna, D.M.) RAPHAEL MUKWANA . . • • .. ....... APPELLANT versus THE REPUBLIC 0 0 • 0 0 -. , . . ....... , RESPONDENT CHARGE Official Corruption c/s 3 (2) and (3) of the Prevention of Corrt.ption Act. No.16/71. JUDGEMEN.T. - MAPIG1NO, J. This is an appeal fma conviction for corii tEansaction under section 3 (2) and () of the reveriti6n of torruption Act, 171 and a sentence of four years imprisohnient. The particu,lars of the charge recited that- "Raphae' /o Mukwama charged on 14/10/75 at about 21.30 hours at Mazwi within Sumbawanga district Rukwa Re16n, did corruptly give cash sis.20/= to one Clatus sb Fataki in order that he del-ives it to No.5629 D/Cpl. Juana t for the benefit of himself Raphael i s1& Mukwarna as an inducement to forebear to do anything in relation to his princ ipaL! s : affairs to wit, not t . arre 14m, for the offeh of trading ten bags of paddy..rice-withoit a .1-icenc or permi-t." Certainly, the charge was couched in a1angiae whih is not qüit plain an&to a certain extent süfferèd - rom superfluity. {owever, there can be no doubt that the ape1-I'ant understood that he- was facing a charge of having bribe'd - a: police - detective through a third party, thesaid Clatus Fataki in order -thab the detective should- fobe-ar from arretin him - for the off ente mentioned in the 'charge -. No wonder that the appellant -had'- not sought to criticise the charge or complain aout. it in.;his petitionof appeal. -. ..../2 The - 3 - Needless to say, the crucial evidence in that regard was that of the ten cell leader. His evidence strongly suggested that the money was given to him personally so that he could use his authority to induce the 'corporal to let the appellant off, Jtated the witness:- "In fact accused paid the money to me not to further pay to the policeman but that I should keep, the money and talk with the policeman to let the accused free with his bags6 I took the accused with the money to the policeman and reported that the accused had paid me shs.20/= as corrupti6n. Thepolice took the money from me and arrested the accused." It seems therefore, and the Republic agrees, that the money was for the ten cell leader's own gratification and that the - appellant did not want it to be passed over to the corporal. as held by the trial magistrate. As far as he was concerned, the ten cell leader simply let him down. If it was so the question which comes up is whether this was an offence under the law. The Republic has expressed 'the view that it was not and I am disposed to share that viewd The business of conducting investigations against •the appellant in respect of the same was, strictly, outside the competence of the ten cell leader's principal t. TANU: see Isango v. R. (1968) EA 140. Not that it was proper for the appellant to offer the money to the ten cell leader in the prevailing circumstances. His conduct and intention were evidently evil. t o The point is that the person to whom he gave the money and who he tempted was not an agent within the meaning of the section creating the offence. Therefore, as a matter of law, it cannot be said that his conduct amounted to the offence charged. What I have said above is, I think, in line with the principles laid down in Isango's case (supra). I would draw the learned magistrate's attention to that instructive decision. • In the result, I allow the appeal and quash the conviction. The sentence .is set aside and the appellant is to be set free unless he is otherwise lawfully held. TABORA. D. P. MAPIGZN0, 28th June, 1976 JUDGE.