19780202 TZHC Dodoma2

IN THE HIGH COURT OF TANZANIA AT DODOI{t;. APPELLATE JURISDICTION CRIMINA.L APPELL No. 198 OF 1977 (ORIGINli.L CRIMIN!:..L CASE No. 460 OF 1976 OF THE DISTRICT COURT OF SINGIDA- DISTRICT AT. SINGIDA) RAii.LDHANI @ SIUJI S/0 l\'UJGHOO • • .... versus THE REPUBLIC • • • • • • . • . • . RESPONDENT \ · CHARGE: Corrupt transaction with agent, c/s 3(2) and (3) (a) of the Prevention·Co~rupt Act No. 16/71 JUDGMENT CHIPETl.. , J. . The appellant, Rarac".dhani @ Siuji Mughoo, was charged before Si:ngida·district court of t..~e offence of corrupt transaction with an agent c/s 3(2)(3)(a) of the Preventjon of Corruption Act 197?, but was convicted of atter:1pting to cormnit that offence, and was.sentenced to three years inprmsonnent. He.now appeals • . The prosecution's evidence was that before Sizleida Priraary court at Merya 'one Siuj i Bwa,ya (Dw. 2) who is a brother of the ap~ellant, had been charged with the'offence of c~ttle theft in respect of criminal case No. 94/76; and at the material tiL1e the case was still pending in that court. During the nateria.l period one Wilson l}'.fauoa (Pw .1) was a prir.uµ-y court nagistrate statione~ at M~rya. On 8th October,, 1976; at about 9~00 a.m. the api)ellan-'G entered Pw .1 1 s office and told hin that the ( the appellant) ' had a brother who was facing a ch.21.rg0. of cattle theft in that court. He went on to say that he had a 11 cigarette 11 which he wanted to c:ive to Pw .1 so t~.--. t tho latter could discharge the . appellant's brother. When Pw.1 asked him what 11 cigarette 11 it was, the ap·:,ellant said that the 11 cigarette 11 was in the forn of money' •. Pw .1 then told the appellMt to go out while he (Pw .1) considered the request. · ' After the appellant had. gone out of the office., Pw.1 started makinc: arrangenents to trap tho appc1lan t. He then called in two of his assessors (Pw.3 and Pw.4) ru1d n police officer (Pw •. 5) The four of then then laid a trap. It was agreed between them that Pw.1 would receive the money from the appellant in the office; Pw. 5 would be s·Gationed in the court-room near the door leading into thG 1:.nt;istrate•s office; and Pw.3 and Pw.4 would be outside the office 1180.r another door 1sa.dj.ng .into the. nagistrate's office. It was further agreed that at an appropriate noment Pw .1 would bang his table as a signal.. :When each of thew. had t8.l:en his position, Pw .1 called· the a:;_:ipellant into the office. The appellant entered th_e office, md before Pw.1 had said anything, , the appellant asked: "What ":bout. our natter? 11 ; to which Pvr .1 replied that he would receive the "cigarette.U. which they had talked about. • •••• 2 2 Thereupon the ap·pellan:t took out a bundle of bank notes fron his shirt :pocket, and Pw.1 told h:i.n to count the 6-oney. The a:Jpe llant then put on the tc,ble, one after another,· two . one hundred-shilli:n_c notes. As he nade to place a third . note on the table, Pw.1 banged the table as an agreed sig-nal~ Thereupon Pw.5 opened th0 d,rnr 211.d. entered the office. The appearance of Pw.5 in the office apparently :oa.cle the appellant ,;.,ise to what he had fallen into. Just as Pw.5 entered the office, the appellant era:)bod tho noney which he had pl.Good on the table and dashed out of thE3 office through the other door. As he nade it to the do or-way ho inadvertently dropp E~d a few notes in th(:j office. Pw.5 tried to arrest the 8.ViJelL0 nt, but he was :prevented fro:ra doiric so by a table which was between hio and the appellant. As the appellant ran in eari~est for his freedoof Pw.1 raLged an alarm saying: "Catch hir1! He ·we,s trying to bribe·net 11 or words to that effect. Th1:~reupon Pw.1 Pw.3, Pw.4 and other people pursued th8 a~:;:pellant. Sorae 57 paces from tho court building, one Sina (Pw.2) who is a relative of the a:,:.;:ellant, blocked th0 a~rpellant's escape route and aDprehended h~~. After Pw.2 had caught hin; the appellant spat two notes of 011ehundred shillings each into his left hand and clenched it. He was then led back to the nag:Lstrate 1 s office. Near the doorway .were found ba1llc5 notes o..D.ounting to shs. 32/- and under a cupboard were found two twenty-shillinc notes. After that noney had been picked up; Pw.2 told the police officer that the a2;pellant had sane other noney in his left hand. Pw. 5 then told tlie appellant to open his hand. When the a)pelln.nt did as bade, it was to reveal two one hu..."1.dred-shilling notes which had holes and were wet with salivr-::. ~ The 2.p:;:,1ellant was then qharged as ?er :the qharge sheet. In an unsworn sta tenent, the aE)ellAAt denied to h2.ve given or attempted to eive a bribe to Pw.1. His version of the incident is that on the day in que:>stion he left his hone with shs. 560/- to co and buy sorghum. On his way he passed by the prinary court at Merya where he saw two persons (Dw. 3 and Dw. 4·) who were renand prisoners there. At the request of the two renand prisoners the appellant gave then tobacco~ Pw.1 _oc.1rthis and so called the aprellant into his office and asked hin why he had civen tobacco to re:1and prisoners. He then ordered the appellant to produce the rest of the tobacco. When the a::;ipell8llt refused to do so, Pw.1 becane angry and tried to arrest hin. The appellant ran· out of the o:i:fice. Pw .1 then _ caught the appellant by the shirt, ancl as he did so the shirt got torn and the noney which the a ,~:,ellant had kept in his shir.,G · pocket dropped on the floor without the appellant's knowlea.ce. The appellant went on to say that while he was runnini:; 2-way; he· thr~w c.1,my the reIJainil".16 tobacco. But wh_en he heard Pw. 1 shout: _ "Catch him! He was civinc ne a bribe!· .. he stopped. He then took out two one hundred-shillinc notes fron his shirt pocket and held then in his hand. He was then arrested by a police officer and token to the office. 3 After carefully evaluatinG the evidence, the learned district r.ngis trate found as a fact th.at the a:_:,:pellant had approached Pw.1 and indicated tbat he wanted to give Pw.1 sor.1e noney so that Pw.1 could. r,.::loo.se the a::;,pellant's brothsr; that the a:;;ipellant·had placed sone of the money on Pw.1's table for the purpose aforesaid; that on sr~eing Pw. 5 the appellant helter--Ckclt0r grabbed the noney ond took to his hr=;els; that sone of the r.1oney droj1ped in the office; and that when apprehended the appellant vrn.s found to have unsu.cessfully tried to chew (and possibly swallow) the two one hundred-shillinG · notes. In short, the learned nacistrate accepted the proseGution's story and rejected that of the defence. On the basis of these findings of fact, the learned . mc;istrate held that the a',pell(,n-t had intended to give the noney to Pw. 1 as a bribe. He held, however, that the off enc~ charged had not been proved, but that the evidence b.B.d disclosed the offence of an attenpt to give noney corruptly. He accordingly convicted the appellc.'lJ-1.t of that offence as aforesaid. Mr. Ivlwailunga, learned counsel for· the appellant, submitted that the learned Dagistrate erred. in believing the prosecution 1 s evidence and rejecting the defe~~c story. He suboitted further that even if the prosecution's evid~nce were to be believed, tru.:i. t evidence did not establish the offence because the facts fell short of sh owing an overt act that would nnount to an a ttenpt in law. I will first deal with the question as to whether or not the learned macistrate nisdirocted hir:iself on the evidence. In this connection it is trite to observe that a first appellate court is entitled to review the evidence e1id. cm.1e to its own conclusions thereon. However, an appellate court ,;,Jill not often fault a trial court's findil'l[::s of fact. It will only do so ,1here it is clear th.at the trial court's findincs of fact are plainly wrong as beinG at variance with the evidence or sone other reason. This is as it should be for the . obvious reason that a trial court has had the advantac;e of scoi11g and hearing the witnesses as they gave evidence, an advantace that an ap_L·ellate court rarely has. In the instant case, it is an lindisputed fact that a brother of the :J,ppellant had bt:en charc;ed with 2. serious . offence before that prinary court. It is equally undisputed that the ar)pelJ.ant came out of the nagistrate's office rurm.ing., 'liro lesser a witness than a relative of the a])l)Gllant; i.e. Pw.2, testified that he a~:::,:;rahendecl the'appellant and s2..w the appellant spit notes into his left ha:'ld, and. that the appellant still had the noney in his hand 2.t the ti!"').e. he was t:Jken back to the na(;istrate' s office. No reason was sug{~ested, nor does one sue:c.est itself, as to wh3r this witness or any of the prosecution witnesses would wish to_ frr-ne the ~~~,1;ellant. On ny mm view of the evidence, therr-:fore, I an satisfied that the findinr,s of fact by tho learned district nagistrate cannot be faulted. The final questiqn is whether the facts as found by the learned tricu nagistrate constituted the offence of a·H;empted corrupt transaction with an agent. The terrri "atterapt" is defined by section 380 of the Penal Code. • •••• 4 4 The naterial pert of that se~tion state~: 11 380., .When a person; intending to coDEJ.it an offence~ begins to put his intention into execution by n0a11S adapted to its fulfilnent,' 811d nanifests his i::1tention by soP, overt act, but does not fulfil his intGntion to such an extent as to conn.it the offence, he is deemed to atter:.1pt to conr1i t the offence. 11 This definition appears to be quite sinple. All that the r)rosecution has to do to prove 2n attempt is to prove the following: (1) an intention on the part of the accused to comr.1it the full offence; (2) a r::ianifestation of that intention by embarking upon it oy ~oans adapted to its fu.lfiln.ent by way of an overt act; and (3) tho overt act (s)., ,, The sir::1.plici ty of th.e definition ::'... ~hGtf~n.dine;,, the application of it to 6 iven facts is sonethin.s which has been a subject of judicial controversy. Without in any way trying to ju.op into the arena of th2t controversy, suffice it to S8Y that there 2.re c2,ses of attenpt which are so clear that they ad.nit little argw1ent, 8nd for,~easons which I will presently attenpt to give, I thinlr that the prcscJ?,t case is one such cnse. The problen, it seer-:s ·i:;o ne; has not been in identifying the overt acts a.s such; rather it h0,s been in·tryi.ng to decide whet.11.er, in the circunstanccs of o. 0;iven case, the accused had the intention to cor.1Di t o, iXtrticular offence, o.nd whether tho s steps he took or the acts he clid nanifested that intention; and vihether those steps and those acts amounted to what the law calls a sufficient overt act to conft.~.tute an attenpt to cor1nit the particular full offenceQ In the instant case~ there was an:ple evidence as to -the intention of the appellant~ he expreosly t::>ld Pw.1 that he wanted to give hin noney so' -'chat Pwo '1 'could release the ~- · -- . appellant t s brotb.e r. Cl Garly; th er~Jf ore:- there was evidence that the a~)pellai"lt intended to corruptly give an advantage to an agent so that the latter could for1J8ar to do sor.1'.1thinc in J rel.a ti on to his :pr inc i paJ t :~! affairs. Now, what did he do to nanifest that in·'·ention, o.nd whnt ncans did he adapt towards tho fulfilBen t of that :i.J;l.tention? To start with, the a·, ellant ·went to the nn.gistrnte s office nnd; as it were, put'his cards on th0 table~ he nade the request and the off Gp• Next, he took out noney which he said he wanted to cive to w .. 1 o Finally, end at tho request of Pw .1, h0 counted out r::1.oney Md put sor:i.e of it on the:: table. To conplete the full offence all that ret1ained to ·"-,, done was for Pw .1 to pick up th.e noney, or for th~ aijpel lrmt to hand it to Pw .1 • . In ny view, ~he acts of the arpellant araountsd to·overt acts. He he,d embarked upon his intention to bribe Pw.1, e.nd had put into execution the means adapted to the fulfilment of that intention. To hold otht:rwise would be throuinc reason out of the window. Indeed, on ny ovm view of the r3vidence the apiJellant could properly have been ch8rged w:d;h and convicted of the offence of corruptly offering an advantace to an agent. On these grounds, I would respectfully agree with the learJiod state attorney that the offence of attented corrupt transc-;ction with an agent h2.d b0en satisfactorily proved • • • • •5 5 The conviction, therefore, w2s fu~ly justified. With regard to th,::> sentence, I note that it was tb.e .·statutory minim.UB under the provisions of the Mininu:o Sen.tences Act. There being no roason to warrant e:ri.hancenent, tho sentence will also reuain undisturbed. As to the order of forfeiture, the provisions of section 3(3) (b) (iii) of the Prevention of Corruption Act, 1971, confer a judicial discretion on the court. The trial court exercised that discretion in favour of forfoi~re, Qnd I can see~ nothing w-ronc with t:he order which, incidentally, was not a subject of adverse cor.11Jents dru.. . irv:r arguncnts in this c\Jp,:;al. In fine, this appeG:.l fails and is accordingly disnissed in its entirety. /.,,·, -- ,i/ ',f; j .., 1-J·· ·. £)/:/;// ((( en ' '!;// B. D ~ CHIPETL. JUDGE . . (' I( . <' DODOMA 2nd February, 1978