20161215 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO 274 OF 2016 (Originating from Resident Magistrates Court of Morogoro at · Morogoro Criminal Case No. 30 of 2016} DANI ANDREA@ CHILONGOLA ................ 1 st APPELLANT ANOLD ELIABI MWIGUMILA .................... 2 nd APPELLANT VERSUS THE REPUBLIC .......................................... RESPONDENT Date of Order .. 21/11/2016 Date of Judgment · 15/12/2016 JUDGMENT KITUSI, J. Dani Andrea Chilongola and Anold Eliabi Mwigumila @ Komandoo, the first and second appellants respectively stood as the first and second accused in Criminal Case No. 29 of 2016 before Morogoro Resident Magistrates' Court, where they were charged with Corrupt Transaction contrary to Section lS(l)(a) of the Prevention and Combating of Corruption Act, No 11 of 2007. It was alleged that the two appellants on 18th December, 2015 in Mnyunhe village, Kibedya Ward, Gairo District within Morogoro Region, being the Village Executive Officer and Militia man of Kibedya Ward respectively, hence 1 agents within the meaning of Section 3 of the Prevention and Combating of Corruption Act No 11 of 2007 did corruptly solicit the sum of Tanzanian shillings three hundred thousand (300,000/) for themselves from one Daglas Manzo Mshimu as an inducement so that they would not arrest him for clearing his shamba without obtaining permit from the proper authority, an act which was in relation to their principal's affairs. In the alternative, the appellants were charged with Corrupt transaction under the same provision, but the particulars alleged that they obtained shillings 120,000/ for themselves from Wabhuha Manzo Mshimu as an inducement to forebear and prevent the appellants from apprehending Dagalas Manzo Mshimu for clearing his shamba without obtaining a permit from the proper authority, an act which is in relation to their principal's affairs The accused pleaded not guilty to the charges. The case for the prosecution was that on 20th day of December, 2015 when Daglas Mshimu (PW2) was at his home at Lusi nyingi village, he was visited by the appellants who arrived in the company of one Nelson Mshimbi (PW4) the Sub-village Chairman. The appellants had already obtained an arrest warrant and showed it to Daglas Balisidya Mnyenhe (PWS), the village Chairman, to be executed against PW2 for allegedly endangering the environment. On arrival at PW2's residence they accused him of endangering the environment for the alleged fact that he had fell trees to clear a bush and cultivated it. Then they proceeded to demand from him money to the tune of shillings 300,000/ so that they could forebear arresting and taking him to the Ward office. As PW2 did not have the money he negotiated for them to accept a lesser amount to which the appellants allegedly agreed. They accepted shillings 2 120,000/ which PW2 borrowed from one Mkegumbo, and handed it to the second appellant through his (PW2's) brother and neighbour Wambua Mauzo Mshimu (PW3). The appellants promised to collect the balance of shillings 180,000/ after three days, but this they never did. PW2 decided to report the incident at the office of the Prevention and Combating of Corruption Bureau, hereafter referred to by its acronym, PCCB. According to one Fredrick Samwel (PW1) an investigation officer of the PCCB at Gairo District, the report of the alleged transaction was lodged on 16th February, 2016. PW1 recorded the statements of the suspects which were tendered in court as Exhibit Pl and P2 respectively. In these statements the appellants denied soliciting any money or receiving some from PW2. PW2's version as to what transpired on 20th December, 2015 was supported by PW3, PW4 and PW5. In defence the first appellant stated that he was arrested rd on 3 March, 2016 for allegations of being involved in a corrupt transaction. He denied the allegation and the fact that he and Daglas Mshimu met on the day as alleged. The second appellant's defence was similar to the first appellant's as regards the date of the arrest. The second appellant denied knowing PW2, and said he never left his residence on the material date because he was sick. This fact about the second appellant's illness was supported by his wife Mary William Mashasha, DW3. The trial court concluded that the prosecution had proved its case beyond reasonable doubt and proceeded to find the appellants guilty and convicted them under Section 15 (1) (a) of the PCCB Act for obtaining money for themselves so as to forebear to arrest the appellants. The appellants were 3 " . sentenced to a fine of shillings 500,000/ each or to three (3) years imprisonment in default. The appellant felt that they were victims of robbery of justice, so they have come to this court on appeal that jointly raises four grounds. I have gone through the grounds of appeal and I am satisfied that they raise one issue in substance that the offence was not proved against them. The appellants have raised an issue of violation of procedures in the trial but they have referred to none specific. At the hearing of the appeal the appellants were unrepresented and being lay on legal matters, they did not have much to say in their submissions. The respondent Republic was represented by Ms Imelda Mushi, learned State Attorney, who hastened to declare her support of the appeal. The learned State attorney had two grounds for the support of the appeal. The first is that the charge against the appellants was defective for failure to cite Sub Section (2) of Section 15 of the PCCB Act. The learned State Attorney submitted that this omission denied the appellants the right to a fair hearing because they were not made to prepare their case adequately. She cited the case of Musa Mwaikunda V. R. [2006] T.L.R 387, to support he position, and that Section 388 of the Criminal Procedure Act, Cap. 20 cannot cure the defect. Secondly, the learned State Attorney submitted, the case was not proved beyond reasonable doubt because the prosecution did not call an important witness, one Mkegumbo, the person from whom PW2 is said to have borrowed the money which he gave to the appellants. 4 With respect I agree with the learned State Attorney that the charge that was laid against the appellants was irredeemably defective. The duty of those involved in admission of charge sheets to scrutinize their validity has been stated in many court decisions. The injustice caused by the failure to discharge that duty is without measure because it has caused many a guilty persons to walk scot-free. This court, through . Feleshi, J. has previously stated; " These officers should therefore, endeavour to satisfy 'the four W principle~ which is mostly followed in drafting particulars of offence. When a triable statement of offence is chosen, the second component in the document should at least, particularize the offence by disclosing - who is the accused?, when did he do the unlawful act or omission? Where did he do that? How did he do it; and to who? In my considered opinion, the failure by admitting and trial magistrates to vet the competence of charge sheets, as it happened in the instant case and other cases dealt with by the Court of Appeal above, always result into abuse of court processes and miscarriage of justice to parties." (emphasis mine) [Lucas VicentL wiza Versus The Republic, Criminal Appeal No 13 of 2015, HC, DSM District Registry (Unreported)] 5 • • .' \,I Since this point sufficiently disposes of this appeal, I have no reason to. pronounce myself on the other ground submitted to by the learned State Attorney. Consequently, I allow the appeal, quash the conviction based on the defective charge, and set aside the sentence. If the appellants paid the fine, the same should be returned to them, or they should be immediately set free if they were serving the alternative custodial sententel___ r:_ --__ --- . , /0 /·~ ., :;;: ! M / --; ·c ,;:> ,J ,.,~;i:,•:. 6'(-:C'1)\\·~:-~\ )!.r· :,. _. . . \. 1t;:<·' <1..-> t,' j /\~~:u ' ·..-, ":'\ ~~.. '\ ;, ., .:]l p -------- ~T- ~"' . SI ~. r-: _·,. :·.· ' ' . :.~ :~ ~■ • ~ 1 ,fJ,J~ 1 ;z::~;:,.__ :j:""'·-- ·.:~irrL~ --~~:-.. ----- ,f JUDGE -----·--·---~,; ·-~~~~~ 15 / 12/ 2016 15/12/2016 Coram I.P.Kitusi, J. For the 1st Appellant: Present For the 2nd Appellant: Present For the Respondent: Jackline Werema, SA CC: Masasi COURT: Judgment delivered in court this 15th day of December, 2016. I.P.KITUSI JUDGE 15/12/2016 6