Judgment dcpl for tanzlii 06 12 2024

Page 1 of 19 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 29948 OF 2024 (Arising from Criminal Case No. 30 of 2023 in the District Court of Nyang’hwale) G.2584 CPL MATHEW MICHEL LUSANGIJA ………………….……..APPELLANT VS REPUBLIC …………………………………………………………………RESPONDENT JUDGMENT Date of last order: 14/11/2024 Date of Judgment: 06/12/2024 MWAKAPEJE, J.: The appellant, G. 2584 CPL Matthew Michael Lusangia, a police officer, was charged with the offence of corrupt transactions contrary to section 15 (1)(a) and (2) of the Prevention and Combating of Corruption Act, Cap. 329 R.E.2019, in the District Court of Nyang’hwale. The trial court convicted and sentenced the appellant to pay a fine of Tshs. 500,000/= or serve three years imprisonment. Discontented by the decision, he lodged the present appeal. The prosecution paraded seven witnesses to prove the charge that the appellant, at an unknown date, received intelligence that an individual named Burugu Shirumi Malingila (PW2) was harbouring illegal immigrants and was allegedly practising sorcery. While carrying out his official duties, Page 2 of 19 on 14 April 2023, the appellant approached PW2, apprised him of the purported offences, and requested a sum of TZS 800,000/= to refrain from pursuing any legal action in relation to these accusations. Subsequently, on 07 September 2023, the appellant was charged and, consequently, was found guilty and duly sentenced. The testimonies of the prosecution witnesses were to the effect that PW1, Stanley Wambura, an investigative officer with the PCCB in Nyang’hwale District, recounted an incident on 20 April 2023, where Bulugu Shilumi Malingila (PW2), accused the appellant, a police officer, of coercing him to surrender Tshs. 800,000. The appellant had summoned PW2 to the Bulangale Village Executive Office, falsely accusing him of harbouring illegal immigrants and practising sorcery, demanding Tshs. 1,000,000/=, but PW2 could only pay Tshs. 800,000/=. PW1 collected statements from the complainant, PW5 (who loaned the money to PW2), and the person who delivered the funds to the appellant. PW2, Bulugu Shilumi Malingila, a traditional healer, testified that on 14 April 2023, he was summoned by the Village Executive Officer (VEO), Hepness, to meet the appellant. At the VEO’s office, the appellant, along with a local militia member, accused him of harbouring illegal immigrants and practising sorcery without a permit. The appellant demanded Tshs. Page 3 of 19 800,000/= to avoid fabricating criminal charges. Despite PW2's offer to allow a search of his premises, which revealed no evidence, the appellant insisted on the payment. Under pressure, PW2 arranged for a loan of Tshs. 800,000/= from Richard John Mhena (PW5), which was delivered by Juma Sinya Msenyere (PW4). On their way back to the VEO’s office, the appellant stopped their motorcycle and demanded and obtained the money. PW2 emphasised that witnesses, including Rashid, Juma, and Hepness, observed the search and the money exchange, and he later reported the incident to higher authorities, including the PCCB. PW3, Madu Mpina Zacharia, a militia member with registration No. MG 621311 testified that he accompanied the appellant to Bulangale Village on 14 April 2023. There, they convened with the VEO and deliberated on the accusations against PW2. PW3 affirmed that the accused solicited a Tshs. 1,000,000 bribe, which was subsequently negotiated down to Tshs. 800,000. PW3 also observed the search of PW’2 premises and the eventual transfer of money during their return trip. Three days later, PW3's superior informed him that the incident had been reported as a corrupt transaction, leading to his summons by the PCCB. PW4, Juma Sinya Msenyele, a motorcycle rider, testified that on the specified day, he was beckoned to transport the appellant, the VEO, and Page 4 of 19 PW2. Subsequently, he was tasked with procuring Tshs. 800,000/= from PW5 and disbursed the funds to PW2 in the presence of the appellant and the militia. PW5, Richard John Mhena, attested that on 14 April 2023, he received a communication from PW2 requesting a loan of Tshs. 800,000/= to resolve the allegations against him. He was apprised that PW2 stood accused of harbouring illegal immigrants. PW5 arranged for the motorcycle operator, Juma Sinya, to retrieve the funds. PW6, Hepness Joshua Shimbo, the VEO of Bulangale Village, recounted that she relayed a message from the appellant to PW2 to present himself at her office on 14 April 2023. Upon his arrival, the appellant interrogated PW2 concerning the purported illegal immigrants and sorcery practices. After a while, the duo went outside her office and returned, just to hear that PW2 had to be searched at his premises. She confirmed witnessing a portion of the search and attested that on 15 April 2023, she subsequently received grievances from local leaders regarding the bribery allegation, which she reported to her superiors. PW7, Yamola Sifaeli Kisinja, an Assistant Inspector of Police, testified that he had tasked the appellant with investigating reports of illegal immigrants in Bukwimba Ward. Nevertheless, the appellant did not Page 5 of 19 report any substantial findings to him. He was later made aware of the corruption allegations. On the other hand, the appellant, G. 2584 CPL Matthew Michael Lusangia, then accused, testifying as DW1, acknowledged that he was in Bulangale Village on the relevant date to probe the unnatural demise of a child. He contended that PW2 was implicated in purifying the deceased's body and that during his investigation, he ascertained Pw2's occupation as a traditional healer. The accused refuted the bribery accusations, asserting that they were part of a premeditated scheme to obstruct his inquiry into the death. This evidence made the trial court conclude that the prosecution successfully established the case beyond a reasonable doubt, leading to the appellant's conviction. Following his dissatisfaction with the finding, he has lodged the following grounds for appeal in this Court that: 1. The prosecution case was not proved to the standard required in criminal cases. 2. The trial magistrate erred in law and facts by failure to evaluate the evidence adduced. 3. The trial magistrate erred in law and facts by failure to consider the defence evidence. When the appeal was called for a hearing, the appellant was represented by Merss Erick Lutehanga and Emmanuel Marandi, learned Page 6 of 19 advocates, while the respondent, the Republic, was represented by Mr Njiliku Mabula, a learned State Attorney. In addressing the grounds of appeal, Mr. Lutehanga argued the first and second grounds collectively, focusing on the trial magistrate's alleged failure to properly evaluate the evidence. He highlighted some inconsistencies, starting with PW2's delay in reporting the bribery incident, noting a six-day gap between 14 and 20 April 2023. Furthermore, while PW2 claimed to have reported the bribery to the Village Executive Officer (PW6), PW6 testified that she learned about the matter from local leaders, not directly from PW2. Mr. Lutehanga emphasised that PW2’s testimony about the appellant soliciting a bribe at PW6’s office was contradicted by PW6, who, as a justice of the peace, observed the interrogation and denied witnessing any solicitation. These discrepancies, he argued, undermined PW2’s credibility. He also pointed to conflicting testimonies between PW2 and PW3 regarding whether the appellant grabbed the money from PW2’s pocket. Additionally, he noted PW6’s silence on any bargaining or solicitation, which further cast doubt on the prosecution's case. Citing cases such as Martin Jacob @ Mlila vs Republic (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 (11 June 2024) and Leonard Mwanashoka vs Page 7 of 19 Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 February 2015), Mr Lutehanga contended that the trial court’s inadequate evaluation of evidence infringed on the appellant's rights. He concluded by praying for the appellate court to reassess the evidence, overturn the trial court’s decision, and acquit the appellant. Mr. Marandi, on the trial court’s failure to properly evaluate the evidence presented, maintained that the appellant’s version of events during the interrogation, corroborated by eyewitness PW6, was credible. PW6 confirmed that PW2 was discharged after the interrogation and was present throughout. Mr. Marandi criticised the court for giving undue weight to the testimony of PW3, a motorcycle rider, without adequately balancing it against PW6’s account. He asserted that this approach violated established legal standards, referencing Mkulima Mabagala vs Republic (Criminal Appeal 267 of 2006) [2011] TZCA 181 (24 February 2011). Additionally, he highlighted inconsistencies in the prosecution's evidence and suggested that the corruption allegations were fabricated, linked to a death investigation involving PW2's family. He urged the appellate court to re-evaluate the evidence, overturn the trial court’s decision, and acquit the appellant. Page 8 of 19 On the other hand, Mr. Mabula opposed the appeal, submitting that the appellant’s conviction and sentence were justified. He argued that the prosecution had proven its case beyond a reasonable doubt and that the evidence was credible and reliable. He stated that while there was no dispute regarding the investigation into a child’s death, the appellant had used his position as a police officer to solicit a bribe from PW2. He submitted that PW2 and PW3 corroborated this allegation. He explained that although PW6 claimed to have been present during the interrogation, she was sent outside when the appellant solicited the bribe. Mr. Mabula contended that the alignment of PW2’s and PW3’s testimonies on bribery reinforced the charge against the appellant. He further submitted that any minor discrepancies in the evidence did not undermine its credibility, as held in Elia Bariki vs Republic (Criminal Appeal No. 321 of 2016) [2019] TZCA 40 (12 April 2019). He prayed for the court to dismiss the appeal. In rejoinder, Mr Lutehanga refuted Mr Mabula's submissions, arguing that no evidence showed PW2 handed money to the appellant. He pointed out that PW3’s claim that the appellant grabbed the money was uncorroborated by PW2’s testimony. He also noted that the investigation was incomplete, as reflected in the proceedings. Highlighting Page 9 of 19 gaps in the prosecution’s case, he prayed for the court to allow the appeal and overturn the trial court’s decision. Having considered the submissions by the learned counsels, I will determine whether the prosecution case was proved beyond reasonable doubt. To do so, I will consider the grounds of appeal as argued by the parties, starting with the first, which was collectively argued with the second. As correctly submitted by Merss Lutehanga and Marandi, learned advocates for the appellant, as the first appellate Court, it is incumbent upon me to thoroughly evaluate, analyse, and dissect all the evidence presented in the trial court and render my determinations. See the cases of Vuyo Jack vs Director of Public Prosecutions (Criminal Appeal 334 of 2016) [2018] TZCA 322 (12 December 2018), Leonard Mwanashoka vs Republic (supra). In Vuyo Jack vs Director of Public Prosecutions, it was stated that: “…we are aware of a salutary principle of law that a first appeal is in the form of a re-hearing. Therefore, the first appellate court has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to critical scrutiny and, if warranted, arrive at its own conclusions of fact” [Emphasis supplied] Page 10 of 19 Failure to evaluate evidence has been considered to lead to wrong and/or biased conclusions, as stated in Leonard Mwanashoka vs. Republic (supra). In this case, Mr Lutehanga contended that PW2’s credibility was lacking as he did not promptly report the appellant's bribe and that his testimony was contradicted by PW6, who, during the interrogation, did not witness the appellant soliciting a bribe. He further submitted that there were contradictions regarding what was stated by PW2 and PW3 regarding whether the monies were handed to or grabbed by the appellant from PW2. In considering the credibility of witnesses, normally, the court assesses the coherence of his testimony and when his testimony is considered in relation to the testimony of the other witnesses and that of the accused person. See the cases of Vuyo Jack vs DPP (supra) and Goodluck Kyando s Republic, [2006J TLR 363. Now, concerning PW2’s reporting of the incident, this court visited the records of the trial court and found that, indeed, PW1 stated that it was reported to him by PW2 on 20/04/2023, while the incident is alleged to have occasioned on 14/04/2023. However, looking at the testimony of PW2, he stated on page 14 of the typed proceedings that after he went back home, he started to track down by informing the VEO (PW6) that he Page 11 of 19 was blackmailed by a police officer and then to the PCCB. Reading the testimony of PW6 on page 26 of the proceedings, on 15/04/2023, she was approached by a Ward Chairperson of CCM and another person who informed her that PW2 complained to them about the bribe issue that transpired on 14/04/2023. She later reported the same to the Ward Executive Officer. It is trite law that the delay in reporting casts doubt on a witness's credibility. It has been established that for a witness's testimony to be considered reliable, the suspect has to be named as soon as possible. See the cases of Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39, Swalehe Kalonga & Another v. Republic, Criminal Appeal No. 45 of 2001 (unreported), and Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019). In the latter case, it was stated that: “The ability of PW1 to mention and describe the second appellant at the earliest possible moment is an assurance of her reliability.” Guided by the above authorities, in this instance, however, it is not true that the matter was reported on 20/04/2023 when PW1 received the narration from PW2 of bribing the Appellant lest he fabricated a case against him. As seen in the testimony of PW6, it seems to me the incident was reported between 14 and 15/04/2023. To me, this period is Page 12 of 19 reasonable, and since PW6 is the public officer in the said locality and received the information from the leaders of the CCM party in the said locality, the report was made promptly. Further, we see PW6 informing the WEO, and ultimately, she was visited by the PCCB in that respect. Therefore, seeing PW2 reporting on 20/06/2023 to the PCCB officer was the continuation of what he already did at the earliest possible moment to those he sent the information of being blackmailed by the appellant. Given that PW2 reported to his trusted people, who informed the village authority immediately after the incident, failure to report the same to the PCCB cannot be considered a failure to report promptly. The same cannot render his testimony unreliable. Next is the issue of inconsistencies in the testimonies by PW2 and PW3 regarding whether the appellant grabbed the money from PW2's pocket or handed it to the appellant and whether PW6, who was in the interrogation room at all the material times, witnessed the solicitation. Starting with the testimony of PW6, she saw the interrogation, and after a while, PW2 and the appellant went outside and came back into the office, informing her of the need to search PW2’s house. She witnessed a search at the premises of PW2, and after that, they returned to the office. While PW2 and PW3 contented that on their way back to the VEO’s Office, Page 13 of 19 he, PW3, and the appellant rode on the same motorcycle while PW6 and the other motorcycle were in front. PW2 stated that on their way back to the VEO’s Office, the appellant demanded money after forcing PW3 to stop the motorcycle. In his testimony, PW3 stated that the appellant demanded the money, and he took it out of PW2’s pocket. Therefore, from these facts, PW6 could not have seen the exchange of cash from PW2 to the appellant, as the same did not occur in the office during the interrogation of PW2 by the appellant. This also responds to Mr Marandi's argument. However, I do not see the inconsistencies between the evidence of PW2 and that of PW3. Both contended that the appellant, while the trio were using one motorcycle heading to the VEO’s Office, ordered PW3 to stop the motorcycle on the way, and the appellant demanded the money. It is an established principle of law that when inconsistencies occur in a case, those that do not go to the root of the case are considered minor and cannot cause the case to collapse, but only those that go to the root can adversely affect the case. See the cases of Said. Ally Vs Republic, Criminal Appeal No. 249 of 2008, Chukwudi Denis Okechukwu & Others vs Republic (Criminal Appeal No. 507 of 2015) [2018] TZCA 255 (17 September 2018) and Deus Josias Kilala @ Deo Page 14 of 19 vs Republic (Criminal Appeal No. 191 of 2018) [2020] TZCA 1809 (8 October 2020). In Chukwudi Denis Okechukwu & Others vs Republic (supra), it was stated that “It has been the practice of the Court when considering the question of discrepancies and inconsistencies of evidence, to look at serious discrepancies and consider them in wholesome. The court does not pick out some few sentences and consider them in isolation from the rest of the evidence.” Further, in the case of Dickson Elia Nsamba Shapwata and Another Vs Republic, Criminal Appeal No. 92 of 2007 (unreported), it was stated that: “Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so” [Emphasis supplied]. It is apparent from the evidence on the record that PW2 stated to have handed the money to the appellant on their way back to the VEO’s office while PW3 said he grabbed it from the pocket of PW2. To me, since it was alleged that the said money exchanged hands, the fact that the Page 15 of 19 appellant grabbed the money from the pocket of PW2 or was handed the same by PW2 does not refute the fact that the money was forcefully transferred to the appellant, so long as there were demands of it from the appellant. The same, however, did not go to the root of the case as it did not undermine the credibility of PW2 and PW3, as stated by Mr Mabula. The third ground of appeal was that the trial magistrate did not consider the defence evidence and infringed upon the appellant's rights, as Mr Lutehanga contended. Consideration of defence evidence by the court reflects adherence to principles of fairness, justice, and the presumption of innocence. In the case of Hussein Idd and Another v Republic 1986 TLR 166 (CA), it was held that: “ It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence” [Emphasis supplied] In the instant case, the learned trial magistrate, after he had summarised the evidence, at his conclusion in dealing with the defence evidence, stated as follows, as I reproduce hereunder: “With all due respect, I do not buy the story by the accused person that this case is a product of fabrication simply because he succumbed to the complainant for being involved in the saga of unnatural death, which by his words implicated PW2.” Page 16 of 19 In light of this observation, I concur with the appellant that the defence testimony was not adequately considered. The referenced paragraph illustrates a rejection of the accused’s testimony without proper analysis, including failing to weigh it against the prosecution’s evidence and providing clear, reasoned grounds for its rejection. As the first appellate court, I now must address this oversight by thoroughly evaluating the defence testimony and ensuring it is given due consideration, as the trial court did not fulfil this obligation. In his defence, the appellant admitted being in Bulangale Village on the material date to investigate the unnatural death of a child. He stated that during his inquiry, PW2 was implicated in a ritual to purify the deceased’s body and identified PW2’s occupation as that of a traditional healer. However, the appellant denied the allegations of soliciting a bribe, asserting that the accusations were part of a premeditated scheme to obstruct his investigation into the death. By claiming that the charges were fabricated, the appellant introduced a potential motive behind the allegations against him. This testimony provides context for the appellant's presence at the scene and his purported role in investigating illegal immigrants and sorcery practices involving PW2. The evidence of PW6, the Village Page 17 of 19 Executive Officer, corroborated parts of the appellant's account, particularly regarding facilitating communication between the appellant and PW2 and observing parts of the search. PW6 also testified that complaints about bribery were raised afterwards. On the other hand, PW7, the appellant's supervisor, confirmed that the appellant had been tasked with investigating illegal immigrants in the area but noted that he never received any report from the appellant about such investigations. To me, the absence of any findings on illegal immigrants at PW2’s premises and the appellant’s failure to report back to PW7 undermine the credibility of his claims about conducting a legitimate investigation. This creates a context in which the bribery allegations become plausible, suggesting that the appellant was pursuing unrelated matters for personal gain. Regarding the appellant's denial of the corruption allegations, his claim of fabrication lacks evidentiary support and appears reactive rather than substantiated. The testimonies of PW2, PW3, PW4, and PW5 are consistent and mutually corroborative, particularly concerning the demand for money, the amount involved, and the eventual payment. PW3, a militia, testified that he escorted the appellant during his investigation and witnessed the appellant soliciting Tshs 1,000,000/=, which was later reduced to Tshs 800,000/=. PW4 confirmed that he went Page 18 of 19 to collect the money, which PW5 testified had been lent to PW2. Furthermore, the appellant's interception of PW2 and PW3 on a motorcycle to collect the funds suggests premeditation and intent to exploit his position for personal interest. Additionally, the evidence presented by PW2 and PW3, considering PW3 was unrelated to PW2, establishes that the appellant used his authority to extract money from PW2 for his advantage. Summoning PW2 and persisting in the demand for money despite the lack of incriminating evidence further demonstrates an abuse of official authority. The appellant’s claim that the corruption allegations were fabricated is unconvincing, as it is unsupported by evidence and appears to be an afterthought. Turning to whether the prosecution proved its case beyond a reasonable doubt, as required under section 3(2)(a) of the Evidence Act, Cap. 6 R.E. 2022, the testimonies of PW2 and PW3 establish that the appellant demanded and obtained money from PW2. The accounts of PW4 and PW5 further substantiate that the money was lent to PW2 and subsequently handed over to the appellant en route to PW6's office, the fact of which was not disputed. Additionally, PW7’s evidence that the appellant failed to report any findings on illegal immigrants supports the conclusion that the appellant’s investigation deviated from its legitimate purpose. Therefore, the defence offered by the appellant does not Page 19 of 19 displace the weight of the prosecution's evidence. The evidence demonstrates that the appellant obtained money from PW2 under the pretext of avoiding fabricated charges against him. In light of the preceding, I am satisfied that the prosecution proved its case beyond a reasonable doubt, and the appellant’s defence does not hold. The issue is, therefore, answered in the affirmative. Consequently, I affirm the conviction and sentence issued by the trial court, deem the appeal devoid of merit, and hereby dismiss it in its entirety. It is so ordered. Right to appeal explained. DATED at GEITA this 06th day of December 2024. G.V. MWAKAPEJE JUDGE