19821020 TZHC Tanga1

jf • IN TIMHIGHC0URT OF -'TANZA9,1A

ATTANGA AppEIATE JURISDICTION • . . . CR1MINAL AppEAL NO, 43. OF 1980 .. ( (original Crinina1 Case No. 355 of 1979 ofthe .. .........................ietCour•t of"Tariga .Distriôt at Tanga. 1 ''.. '•• .H . 0 f MOh1 Esq 'p/flésiden' Magistrate 0AS LUGEMALILA.I. ... .... SAPPELLANT ....: ;. Orig,. accused) , .. . •: ( '• c Versus . ... . .:. . .1 THE * (Orig. prosecutor) .t , ,• ,'.,. . . -. • I , 'i,.';.. CHARGEg Corrupt transaction c/s 3 (1) an (3) (a) o. he Act No 16 of 19'71 id Count,: Corrupt trthisaction C/s 3(1) and ' . .. .. . ..... (3') (a,) othe,revetin of Corptin 'Act No. 16 of 197 .• . '.. . 'JUDG.EMENT 0'. This appe1int •Jba 'Lu'getha1il, and another Who ha's no appealed, were joi,itly crged"witthand 1 convicted of two Counts of Corr4ticia a traiSactio,n contrary to seatiori 3(1)' and 3(a) of the prevention of CCrrupit1o' At.'.No. 16"of 1971, •hey were ea'h Sentenced by the 1earied 'Principal 'Resident Magi trate to three 'years imprsonmenton Count one and' 'to a term of five years imprisonment On Coit two Sentences; to ran concurreñt1y The appellant is n6vr'O.pea1ing to this Court For ease of reference I:. shall continue to call the accused as they appeared at, 'the" 'tri.l in the Court below; 'the appellant bing • .th ' • • the seconi accused It is now common thowledge that both accused wére at' least at the , material time,'Labour Inspectors, Grade 11, and'they

were e 'a:ch.' attadad to to the Laboix'Offjce and'stationed at Tnga'' The duties of the second • e. • • S... - 4. 1W accused were mainly to dea with ::anoJor settle labour disputes that arose between employer andéi1ye-eSWhereas those of the first accused werej primarily-, o.4c .with workxien's compensation Each accusodwsaflocated :i4jp own ofiice:. Room no. 13 or first accused and Roon 7 for second accused. It is, however, in evidence wih was not disputed and vthich the learned Principal Resident Magistrate aeptéd ad whibli'1 ]àoaccept ad true - that both' accused could deal with workmehis compensation or labour disputes.0. This piece oeiwairehbr'fl.LRweyongeza (PW7) who described - . himself asa Senior Labour Inspector, Tanga, and the accusedst immedi ate senior s Evideie was 'led by the Prosecution toth effect that in December, 1978 and February, 1979 two emlyés Of the Tanga Consortium, tppullykrfo*ib* isa ony*4AEOIf - were involved in separate accidehtswhils t ° •ty Indoh oftfh6m sustained some injuries as a result thereof They vre Ramadhani Kilango (pWi) and Shabani Ratdhanj (pW2) 0 It seems both of them were working in the TIQON workshop at the tine the accidents occurred P. was cut around the fingers by an electric razor whercas PW2 1 who slipped on the oi1.. r j - drenched floor of the workshop, ruptured his spleen in afai1. The ( same had to be removed to iravv his

life and now mOves around. without one Ater being discharged from hospital s albeit at -t 4 different times, a process was commenced towards the determinaton f the compensation payable to them by their employer, i.e. TJLNCON On the la -tter's side, i,e. TANCON, this fell in the province of one Àbas Chakj (pW5) its adnnnistrative ofuicer In compliance with the •Enj -procedurePW issued the appropriate forms to PW1 and p2 and directed them to take the same to the 'abour office, Tanga This pVfi and pW2 did but it is not clear on the evidence on record whether tiey did so on the saje day and at the same time. Suffice it to say .. .;..L -- b ' •) 1. .' 2• TocttouT. (uaixtuxed). stt ;o et4UOoJe1 otq vtjq. wj pT( totjqpsnoov pUOOes et Tj O. WEpJoOOV :Jaqqpoaq, pUt Tu €SaXd OXOM peflooV tqO 'ezYço .xnoqtr att -t put ia et ê OcIdt et uo tp OUTMOT1 0 i et UO SUM q.i tq'pçts. T3 'Ap J OtIT outuo tunz pu o puv IL&cI pToZ, Pesnoot .SXT3 OW-- '-9tUl q; Sb -T 9 'sçtq- ;o uotq.uout ou °PM ti posnoot puOoes oq, qttq. pcvs ra pesnoot • s.ZT; ot O. • etq. .xa.o poptItT put e;jo a -noquT aqZ oq •stiLXO; et. tOO. TM put) all 0m13 sTtIq' 0q trtpXOooy ' oOT;jO anoqvrl ot Oqotq owts ax4 a3juT o. ttIOT4 pio . ut'ptXt EMa: f'O'TfSIOUMO OAI3OCISO.X JtOt O. XOi.O PGpq'Ctl UOTIT Ott ttotttM sur.Xo e.tT.zdozdth3 Ot4). UT • TrloTqJt3d Aivssaoau owi-. wç pofl; tpptm ZQ PTIGO èTpaUmtxo uTeq aaqn 'Os op oT !1ITt

.103: £Its000u Stm q.t T ,6tTT XOPTSUOO 'I OP .IOU — etO otj. trç OOtZaPTAO OK!3 Tou pçp 11OAoMOT( '0M'tX'p!Tptttt oto / .• • I 'io.00p C)Fus . MtS wotq ;0 toq 'pu '6L/9/I e'ç vp OtIIt3S OLfl. 120 ztvcdsott oquIo OT Tuam put •EAva 'O'T 'suos.xad oq. aq. trçi t eouepiAo U pe4!1p. put po.iOpueq. ie tlOTttM (TeAp.oedseJ ea a s.tqtttxa) put T 3:0 C-OTTf 88t3 TuaPTOOV Otfl. oq. uTp.i000y '-I • - • E3TJrt_ TmIT -t) posfloot pti000s otj. Utaos potuop 'd: '.1OOOp t O. eUlts OT.. 9ttYI- O T UITtt pT°- put sUi.I0; TVOTP@d mitpv uo asfloot s.rç; e'ç '.zo--t1 et 'pesnoot s.rç; at O .1OLQ UlBtfl POPUt)tt put OOTJJOamoqt'i eT?4. oq. eUlts et .@tj ç q 2tzTeq xe;t g a Oq. 2ulpa6opty •T%4TcsQH (qJxouru..IeAoe) otuoq.t 000p t oq. outs et. att. o. wtj Pto. put Io;.uTtteAt pasnoot .s.t etfl eurcsTtj.peu.xnq.e.x T 4tp trpApTTo et u 'MO4.10Ur ot u.xnei put o oq. MTT4 Pl 0 q. pesnoot UO ptt003s put qs.rçj tjqoq o.;toiatj. ptxt:stlLto; etI . peATeoex JETtrLOt 0tM - U0S.1ed qtjT StM Pesnoot .S.1TJ 8T.1J r'SUOSJOd pesnoot oq. @iqT o. urçt peOe.1Tp UOT4 OtM 400T3:;O .In0qtItctTotrt.I<] allo, 09, rmaoj etq. peWose.xcI aq laoTj.To ±noqtr O 2 tKJ.Iv STtt riO 'TM oq. tZTp.XoQot •.tt I - .'.. •t - -: - / J 4 , as L1ssessedby the doctor was toa, high: Thiwd sdssd oi fixed a 15% The second accused went on to ten hith thit if he were to be compensated at that rate then h, i.e. P, wduld'l-idve topayhim. second.

accused..Shs 48 2 2 000/ or else the medical forms were to be referred to the National. Insuraee Corporatidn If this were done then. he PW1 Would ran the risk.. of facing (Crimin.1) charges in relation thereto - Pn agreed topay the - money; Zhs2,OOO/, where upon the ±orms were £ive; to himwith directions that he should submit the same to his employer, TANCON, who would thei isue a cheque in thonresOntrand'heard whdttranspired between pWl and th, accused.. - ... . Now. to pV12. A,ccording tot. h.iithe first acused told hin that the doctor.had fixed hio incapacityat6O. whith,after conversion into moietary.vüie, ampntedtoSha 24,984/76 Thefirst accused went on to. te3.l him tha-t, however,-ou -t of the SaId 60% only 40% was the proper assessment The remaining 20% was unitwfu1. Itthe percentage remaine at 0%..theNation1Isürce Copbration would querry. and . consequently "they.wu1d. b take±i toa ao-.tt 'of lc.w. PW2 told the C0u1t1fl hisvidnce that the fi±'staccused ended up by, telling him that, however, if he i • e PW2 paid the ccused persons Shs. 8,0001= then he would not be (Orinu.nil1y) cirged md at the ime time lie, PW2, would be paid "Al y (i.e, his) money", Both PW1 nnd PW2 stated in evidence -it the tril thmt eventually they left with their forus together. Howevei before prceeding to TANCON they went to the Police station -irici reported the Inzat ter. It was decided by the

Police to 1ya 4 tap and ä'pprehend the accued in flagrante delicto, and p3 and pT4 were duly commissioned by the then DistricC.I.D. Officer, ASP Temu, who did not testify at the til to act accordingly and deal with the matter There&fter P71 and .15 3. .1 PW2 returned to PANCON whre1 upon presentation of their respective medical forms cheques were j8sued :1 On /6/79: PWI and p72 acconipanied by PW5 took thqirheques to the Labour office for moro .foiinaiities The e first acdused, amongst other things, made an endorenient on the cbeques The second accused too was present According toPWi both accused then toidhim and pW2 that they would follow them to the bank to colect.thir ehare The accused told the witnesses that they wpul&.have to.do Ej 0 lest they i.e. P171 and PW2,'ran aI?ay" with all the...moey, . PW2 confirmed what PW). stated on this apec of the case Eventually PWj, W2 and PW5 left for the bank with the. cheqüèa for encashmentcu P73 accompanied P11 an& dr.pu.rposes of dentffying them as the true own. ers of th..ehaua to the bank- officials # Meanwhile PV?3 and pW4 who a incidtaUy, had been alerted had already moved to the Nati.ona. Bank of Comnerce MarketS :treet Brancht where pWi and. .PW2 were to cash their. cheques They s&t at a . table and pretended to be fih1.ign some forms.f or deposit aeccunt When the trios i.e PWi, p12 and W5, oite2edthe bank the two. che'1eS were

presented at the countr While the cheques we'e being processed the first aôcused entered the bankand sat close to ere.:PW3, PW4 and pW5 also sat ak . ...... .. The first to be paid uas PW1 He was paid cash Shs 5,268/75 According to bim on receipt of.the money the fit accused approacbed him and told him to pay him there and then; and not outsd .PWi then took out Shs 1,400/, al:L in currency notes and paid it all to him The tirst accused received the money and put itin.his trousers pocket There were therf many people in the bank and pW2, PW3, P4 aud ?W, among others, saw all this The second accused had then not yet arrived: Later PW2 too was paid His was a larget sum s Shs. 24,984/70; 1) . .... r I / 0. PW5 keid the money for PW2 Round about the same time the second accused tQo entered the bank pW2 asked.. PW5 to count out Shsow 7,0001= and give it to him This PW5 did whereupon PW2 received the money and handed it over to.the fjrst accused: The first accued received it A0001'ding to P., PW2, PV3 and pW4. the first accused -then passed over the money to the second accused who received it and pu-t it in his own trouser's pocket. According to PW5 the first accused, however, split the money into halves: He retained one half which he put in his own pocket and passed. over the other half to the second accused who put the same into his orni pocket As the two aocused prepared

toleave..the bank PW3 2•'who inciden.. tally3 was armed with.a istol, and PW4roee.from where they hitherto sat, nearby, and cbalieuged..the acused After ,.o. commotion Which was sbort..1jvea PW3 managed to get hold, of first accused thereas PW4 held the second accused Nevertheless ..both:aocused managed to put • their hands in thelr respective trousers 1 pockats and y as it were, rele*ve themelvea of their monetary 1ode J it turned outihowever, they were seen do so by pW PW2, pT3, PW4 andpW5 and the money was not thrown any farther than the bank flqoi where they then stood: On a request by pW3• one Clement yala (PW6), who happened to have been in the same bank at t:e time, picked up the.money A total of Bbs. 8,400/= au in She,, 100/2 currency notes, were recovered there by. There was an extra Shs 30/= which was also recovered from. the floor, This was traced back to the first accused PW3 -then returned the sante to the first accused. It is not immediately clear to me why he te P31 did so; particularly when be was not' the pêraøn Wilo was to determine the cse As an investigating officer one .woul&ha'Ve expected .im.to retain the money and tender it as an exhibit a -t:.thetriil, just as he didwh the She 8 2 400/ (Exhibit PJ 1, however,:do not I 7 i,*on4 to say at2ythihg lore on this point. Th cused were eventually, :. brouGht to utice . In his uneworn ètatérnnt.jn hjs own defence

at the t±ial the 'eoöud' accused denjed that he ever dealt with PWI and P2, or any other corn iistin matter at a1l Acoo±d±ng to him. he wa dealing • only with conitilaints in connection with pay s *ertithe and vorking J. cGnditions, The second iccu5ed recalled that, on the morning of 6/6/7'he reported on thi. -ty fifteen minutes before the normal govern ment hottr and Soon thereafter. be proceeded to Gofu area at'the premises of Ws U.K. Sin;h cohtractors Where he ettled a trade dispte: Thereafter he proôeeded to the premises of Tanga Welding Oompany and Katibe, Co±pany At :11.15 arn, he rode his motor cycle to Chunibageni Area Where he met one M;wa Sajehe (DW3) The said. Me.lehe is a Salesmn of Amboni Plas tics Ltd and he chad asked hii im to re a laet1O pail or h im63 !hen he arrived D.W Was t preáring to go to thsk }t second acised,. :then gave :, him aiit to the Market Street branch of the Naional Bank of Comnieroe Pora,o which e cond acàused did not explain and. h e-lected to give an unsworn statèmen it was not possi.ble'to quetion hin on the same he followed DW3 into the build ing, While th went on to state thése6ond accused,lie sac the first accused. and hé (seoond accused) told D%V3 that he was goin,.o., to gréethim,i.e.fi.rst acused Lt is pehaps covenieht atthi..stage to.let the second accused continue to ilarraté his ownstory Ie i.e, scpnd accused, went on to say,

and I. quote from the record ;f proceedings:.. . . "1 found the first .iccused 4ounting money with some rSonS I greeted hith. I asked him whether he had oney. lie told me he was entru . ting some moiey to those .eople 1 told him I had come with Iisa Soon a Po1icema with a,pistol game and told US to put our hai4s up. A conotion occurred4 I only recoiisd the first acáused. ±..irnew the appearance of pW5; Vhen I was tafljn with the fir ddused the money was on the tabie When th côthotion oQoured I saw money on the floor. Thefirst accused had money but he told me it belonged to those peop1e. The first accused wanted •5554•. / " ' I 1 1 - .; ;• ; to give me money It was the money he as countii '1e stre. tched his iand but before I received te.mony the Poiioeman intèrvéned. The moneywas counted in my presence and,cash $hs, 8,430/= was tound I,.hAi c.r seen FW1 and PW2" tThe second tc bsetlled the manWhb. . presen1.ed ri/S .U. K. Singh Cdñt'ctora'at the, ].abur dispute which-he settled as a.wjtness on '1 his 'side a -tthe trial He is .one. Jag ji7t'; Singh (DW2.)' .. Ja.jit. confirmed that from 8430 am. to ibout forty minutes late.r,th,second, accused was at his', 7 i.e.'DW2, office.s'ettling a:d.iepute between h.m-and one o his employees' one Niohael - who did not testify in he cse As'oejntjted iusa'Za1ehe (DW3,)was caiied as awitness and he'gavè'evidence on the 8iae of the second

appollant.- -.-He, testified an aent'f W'Ab'bni.nastics ' t4 And his jthe I is nèar"thë New i.venue Bar and HOte1. He recalled -tiat on 6/6/79 'the' ecnd accued approached him in his.. office' at.bout fl'am. and arIae'a pail which.he had orderd. He,'W3, iOWé, 'Went on td st.te that he was, preparing,o g:tohbank at the"tm 'the eeoxid cusedarrived He,.,theref ore, asked..:the second cuseafor lif t"and promised to deliver the pa.l to him later. The two f 'them then tode toe Market $trBrnoh of the National - aYf Cöerce At he 'bank DW3. to1, the seond ccused to wait:fe) him 2r ,.:ile' "I:thé bank D\3 saw him .ta to-a certain his ss1o, the ba.i3che DW3, told the seócrnd 'cs'ed"Wh&, ppctr-ently, was tiLl, 'talking to the other person that he would find' 'him au.tside While he wa outS.de he heard noises of a commotion: isid He reentered, and the second accused under' preh'Srrrte ?olice. • . ,I;' •.''.1' '.,'- - In hi reaned and wel3 lxlnced judgemeiit the learned Principal Resident thagistrateeviewed all the ev1derce a4uced n the case He was s4tisfied'tha& the complicity of both accused 'on both Counts was i £ I He1.thrf.oe, ;prceeded to I • / • - 9 .m convct both ,accupe.d as.eharged. In his petition of 'j- pea1 (misen-titled memorandum 'Taf appeal) whiCh was drawn on his bevalf by learned Counsel, ishta 4ie send accud advances five resons of appeal, that is to iay (i) The learned ri1

Magistrate erred in law and in fact in holding tliat Im appellant had also solicited the alleged rewards foxn pJi and pW2, the original complainants in the caS . •.. The ieirned trial Magistrate erred iz law and. 1X iGt .fl believing th? vidence of pWl and pW2 that they had seen the appellant at th Labür office on 6/6/79 Whew ther Was ample &jdce (e.g.' that o pW7) that at the material tIme the 3pØllant WAS nt in the off ice .............. ' Because the ierned trial Magistrate made the fo'egoing error s he failed to oppreciate the fact that there was*a distinct possibility, indeed a'proiabulity.that PW ,l an&2 never intact saw th€ 3ppellant prior to their meeting at the bank and that thex fore, the Story about their having met him Labour ofice,. prior to 6/6/79 Was a contrived one -' aimed at fuIy ixioIving the appellant inthë commission of he.offences ' The learned tajal Magistrate erred in law and in fact in not believingáppcilant.'& defence that his being' at the bnk at the matri.l time was entirely fortuftóus, this being articularly cl in the light of the avi .41enpe . of DW3 wiich cl 4: (.Ovtd81oe was, nct at all challenged by the prOecutiofl (-5,) The learned trial J.iiagistrate erred in law and in fact in holding in effect tha -€'t1'i.appellnnt received the money from the ,. ':i.t accused khowing the same to be for corpt purp osest the . th-ap,peal the second acàused

appeared in -,"perso;l4s advocqtp, Mr. Bishota, having since left the coulitry for he js 6aid to 'be' West Africa where gainfully employed by an internationü org'nisation. In his address to this Ccurt the secoad accused stated that he did not kn.' grounds. a of appeal Mr.' Bishota had written in the petition of appeal He went on tD state that he did not want Mr. Bishota to continue'.deaJ$ng rith is matter because he was the one who 40poiltft •"..bis':c,e and., apparently, as a result of which he found himself in -JaJ-1 and further tbahe..e second accused wrote to the trial Court and asked for a copy of, judgement but none was sent to him . ./io I _ 10 By a letter reference no.., : BC/CR`Q/4 dated 23rd March, 1980, Ws Bishota and Co Advocates gare formal notice of appeal for and on behalf of the .econd accused The learned, advocate also as1ed for • copies of judgement and proceedings to enable, him to prepare the intended a.peal. The sai' letter was copied to the second accused, care of Maweni Prison, T.nga where he was. incarcerated. By a Saving Telegram no 112/P /1/X.1/259 dated 24380. the Officer in charge of 'Maweni Prison wrote to the Djsrict Court and aske.d for a coies of judgement in order to enable the two accused to prepare their appe1s The.rincipa1.Residet Magistrate, per his 'ang Telegram no CRo 355/79 dated 174/80, sent one copy of , udgement to the officer in

charge,.Maweni Priso:i for the fist acuèed o1y' As regards the second accttsed it was itimated :ua the same saving te1gram that his copy of udement had teen "forwarded to his advocate, Mr. Bishota". No further communiaticn followed thereafter I disclosed these details to the second 'accused and read over the petition of appeaL to him. He opted to a4opt the petition and with leave of. the Court,-. I'c procee.ed to address the Court on appea1 Tk ..seeo nd, accused denied that he cbispire'A with the first accused to deind a bribe from.Wl and he said,. he did - not, imow anyway He reiterated the fourth grou. in the petition of appeal, namely that he went. to the bank.:on the relevant day and at. the matezial time merely.toescorDW3 and not tomeet anyone His being in the bank I simultaneously With fir.accuse4 was' 'purely ooincidontalHe, never theless,,. greeted him At the same time besaw first accused take out 'Shs 500/= which he ther paid out to him, i.e. Second accused. He second 'accused received the money because it was within his knowledge that 'first accued was indebted to him to that extent The second accused stated that he di,.not drop' any monèy'' He,Was, however, only tn • •orderbdat gun.p1nt to produce the money which was not as much 7 - S ..,.. . / * s.s 1 RO •. Li. as what the Police alleged' According to the second accused PWI and PW2 were taught what to say in Court

and both the prosecuted in the case and the learned trial Principal Resident Magistrate were bent on putting him into troubler I-te, howeiir,s did not qMggefts let 'alone establish the.reason(s)'why these two adminis.tatOre of justice according to law should do so: - The learned State Attorney, Mr. Akiro, wao came out in full stpport of the conviction Stated that apart from the story of Shs 500/, which he said 16 new and in obvious after thought on -the part of the second accused, the petition of .ppea1 rçti-ses nothing new worth any seraQu st cou 41 6eri t,ion by this Court, Mr. Akaro contended turther that alogh the evidence clearly shows that tl -ie"first and second accused clidnot1 go to the bank bgether there 1 is su'ficient evidence to show '7 f .5 ) th't these two accused persons shared common intention, and they were pursuing a comnon desin, This appeal raised purely factuil .sSues which rest Squarely on C' w l I the question' of credibi1ty Of 'the vitnepes whO testified inie case, This is so because if we were to assume for a moment, and without prejudice to the ultimate result of'this appeal, that the 'prosecution witnesses spoke the truth then there is no doubt 0 nor can there be any that the accused persons engaged themselves in Corrupt transaction, Judgtng from their position ±9a—vis that of pW3. and pW2 the transaction.between 'them could inaeed qualify to

no other epithet -than corrupts' There can be no doubt whats th ov er'that the star weeses in the case are PW1 and pW2, These are the persons who as I thik 16 clearly .Qnrated in the synopsis of the evidence hereinabove, were asked to pay the money if they were to receive their respective compensation in Lull arid, in the, full view of 1 among other per6n5 1 PW3 •pW4 and PW5 41 they paid out the money. An argment was put fo'Ward by Mr, Biehota who, as aforeectid, riaprbsentLAO the second accused at the trial in the Court beloW that, if believed, then Al and PW2 were no better than accomplices inthe case becaus'e they were the givers of the bribe: Their evidence, therefore argued Mr. Bishota, required corroboration as a matt6r 1 of praotie, This argument was, however, not repeated when this appeal came up for hearing before me Neveztheless, in dealing with this point the learned Px'incipal Resident Magistrate directed himself in the following terms and I quote from his judgement:. Ifur B1shbta has submitted that both PW1 and PW2 are accomplices in the offence wboe evidence reqt4res corrboration in material par-ticular With :"éspect I do not share the view that pW. and pW2 are accomploe, An accomplice is a person Whd -- has to a ]arer or lesser dg'ee participated in a crime and his evidence IS therefore auspe.t However, it will be noted that PW. and PW2 p±ômptl reported the

matter at the Police station with the result that .themachinary to trap the accuse4s wds 'set in motion: This ,: after eaing the labour office and bef öre their cheques were even written and issued by PW5 To my mind, y romptly eortirg •the matter to the Police s they absolved themselves from any evil intention or mensrea in connection with the part they later played in the matter. They rathez became Police decoys in thç trap whose qomplicity only..went to the actus reus and there ' was never any intention on their part to commit n offence # On that accowit I would agree with,InspectorMgandila that PW1 and .''PW2iare not ccomples,whose evidence, as a matter of practice, requires oorr9.bpration" . With this I most respectfully, agree In all the circumstances of the case PW1 and .PW? cannot; under any etretch properly be regarded aeacc9mpiiçes. .Aea matter of fact, if anything,' PW1 and pW2 who were ecribed as simple and 'ordinary labo-urrs, mist be commended ti' their prpmpt decision to report the flatter to the appg1te authorities The.secnd accused both at the ttial and bef öre me on first appeal, denied any knowledge of PW]. and PW2 prior to the day of his apprehension. He added that he and the first iôcused used to sit,in separate offices Both pW1 and pW2 asserted that'*kien they returned to theLabour office withtheir foima duifilled in by - - •-•1': - :• -..: 3.3 Dr.

'undikira they met bth accdsed. PWI, in fact, said on this aspect of the case and I tluote roh the roord Of proceedings:.. "At the Labour off icc I sW both acouseds and I. handd over the form to first accused Who' uimoned the second aoused *'The,fist : accused told me that I bhbtid return .('qn) the following. , FWl went on to say: • "On the following 6ay I, saw the first accused wbo.su1T1mçned::€ the second;-accused The bec6 l nd accused t6ld me that the" percentage wastoó big. .that.if -I.wanted.to 5get3Iyei'e toay him Skis. 2OOO/ otherwise tieywould refer be'fbs:. to Insurance'aj,d lotér .àkiard (sie:)., ,...I m-or. Shabani imdiani (ie ?2) We used to woi'k together at TA?CON He had Same prob1em I found him in the Labour oice, He had • h.sfors as well and be Ws present when the second âccued demndéd the oney from me ......Shabani'-waa 'told .tp, pay Shs' 8000/= 1 : - • PW2 had this to s this apect of the case:- I "1 took the medic 1 forms ba- ck. to (the) Labour office and saw the first accused, He told me to come another 'day for the forms I went back--and f±rst accused told me he had calculated that :1 woult be. paid' She. 24,984/7O He was wi-tb . second accused: I know He was present He had his claiin8 !e took our • : forms to- Labour ()ffjce,) 'together Both accuseds told.me that of the 6O- only 4t wad laWul and . 20% was not iau3. They contjnuedthat 1±' it -rdmains at

60% theInsurtnce would guerry and we could' be t3ken . - o a Court of law They told me. tu give the STis 0' 8OOO/= :Lf I were not 'to be - charged' If,I paid them-- Sh8 8 1 OOO/ I' woud then be paid all my rnbney. P. was asked- to -giye Skis. 1,400/' for the same pulpose" It mast -be conceded that ?Wi -and °pW2 djf'ered on the amount P. Was -- told to pay'. Both of.thom are agreed, .howe - er, that this second accused was not - only pre3ent and together-with the:'frSt.Accped but - ' - he also t6ok part in rnakLng the demands:for money. -:... ... - AS aloresaid in par:-. 2 of the Petition of appeal It ,is. 7-,erred . that the leared- Prinipc.l Resident Magistrate erred -in believing PW1 and PW2 that they had E.en the second aàoused at the. Zbqur,.r.øfice on 6/6/7.9 when there vt "ample evidence" :(e.'g that of PWT) that the aecond accused was not in the office at the material timeo With the greatest reSpect to- the learned Counsel.who..drew the peitio. of Appeal there Is not even a grain of conclusive evidence, - let alone "ample evidence", to show that the second accused was not even at the - - •' • - - - - . •4 :i. p*. I - I L labour office at the same time as PW1 and PW2 In his defence the second accused did try to give an account of his movements on the nAter:iaI day from 715 a.m. when hereported on duty and left immediately thereafter for Gofu.ée. up to the time-he was

arrested at the bank while engaged in a process 0± collecting his loot. He was supported y DW2 who stated that he found the second accused waiting to him Th his, i.e. DW2, office at G-ofu on 6/6/79 at 8.30 a.m,According to DW2 the second accused remained there for about forty minutes. If to then the second accused must have left at 9:10 a,m. The second a cused, who stated that he was riding a motor bike on that day, went cn to state that thereafter he visited the pre. mises of ianga Weld:i g and Katiba Bta, also in the caine Gofu area7 The eeond tccused, howc er, did not say Whdf exactly he went to do at those two p'aces and ho' long he stayed at each place. All he said was that ke completed h3 fild work at about ll.l a.in. when apparently, without return1ng to tho Labour office first II mde to the office of -- . DW3 and then to the whée be was -subseuénti ap$hénded PV7 R~6nyongezaf Who is s a id tc hive'ivén soméof the- - -"ampleevidence' to show t-t the second accu.sèd-*as absent f±o the labour office state c Cgoicll' tht he 8ebnd - aceused came into: hia, 1.;: PT, office at il00-a.rn. Xt:J - trté t say that---WenyongeZa -denied seeing tc seond aecused at the .T2aboux office before tht time His evidence however, by±arnót -ocaciusive that the eeond accused was not at the I.br óffioe'Iat thè'- -5iiterial tine 4 From RwenyongeZ& S own Word of mon-tb he and -second 'accud were::

not sitting in the sane office and although, tidmittedjy, ; ,IiE snior in office Rwenyongeza,apparetitly, had . o reason to lookfor the seoond accused during, the morning in que6tion....... . . " .-- . If I mar digress a little, RwenyongeZa testified, -inter- alia, that. both aceused were dealing with Labour disputes and workmen's compensation: 60/15 91/' " tt pet TM A& 9 J t .nq aq.Onb Oj '4uemptlC sTt. wr JeflJte UOA , 04ttt I qOTtiM 9 OU8pTAG al1q, ;o cXOtL&s 3IJ. trç fj.rO q.tnOq ueaq £pterv M?tj sauO PUTaU1.2 qsOtu 911,1 i apTs U0!4flOesOJa OTUO seTOUvtosip put suo o -cptxq..uoo wo eietq. pepoouOo eq snUt .I pesfloot puOoes eT. qqvoTTdMT oq. 310as put 9TI 'LTeq.tJeqóp OoZ e oextduo piflOt.s 'I PUt jM TI ZTA 'sseUT esetq. lit iVttM MOtIS O. ;lesç .Ot JUt PTP XOU pesTTq4se StM DUTT4 q.OU 'MCTA SM UT poA.xesqO AioaL':Oo eçflb tSTtw .UOp TU tCdTOUT.X1 POU.ItOt aqq. S V UITtI !.sUTtt peT UOTq.noasoaa et .xo SCSSOUTM aseqq. lit ulqz eotie;ep S T'q Ut 3qT3S pesflootpuOoes 9T put iM 'C&cl ;o 1.tTI. Vq 'IttnoT!Itd Tt - zo,tux UT 'peqt.xoqo.ioo. • SUM Z Ad put T&cl ;o COUCPTAC at. ttfl. paiesqO a t Itdouc.xa pCUltel etjqMutq atq v eottd oo q.tt - 'sot; at eset. pu; seflbetIO JO qJxeurqstoue epeoacr seTuuTurtieid aqq. eeicIwoo o. Put TMa O eUrfl. 3Al2 Ol- .iapxo UT çjrj jo eçj;o GIN, o. 9 uTPTa o.xo;eq I& i JO COTJJO Ot. UT peflto ett uett eiirç. eq rntm ee p rçtuioi OAtt. 'pesnoot

'puOoes °H ; lI- sa n b atlo qeT.T. eJeq. OSV 0.1CM e&d put i,a CWT eqq. q.noqt st q.tt put 'utt o6 Sq eo;;o .xnOqv et, oq, pIT4e.x aA.ttI fI.sflUI pesfloo.t pU039s ett - , pUTUr JVUL UT qqncp eqtuOsto.x 1ctxv osTt.I .Ou seOp 6L/9/9 T o D uluaom et. UO SUCUIOAOW sTtl oq. st GAUD pasflD3t pUOOGs aTfl. tOTtjM ZUT100ou 0T.j. pUT; oSt I 9 etç9 UaPTS011 ttd'uT.1a: pouaval etfl. etTl 'oouepTAQ etq JO UOTvflltAe 4cT:1I UO eqanoo uedo UT POTI " a.IOJE)aaLlq. pesnoov pu030s otq. uotsuedwoo s l uouDlaOAk t TMt9p of;. peen OO et vt.q ~ DuTguap 41cJ uçod sT1. UO pe(çUIcXe—ssO.IO ZOU StM jAd 11 spesfloot toq Aq eUOp DuTaq sum 3laom sTtj !X0tIOW JO sULI3 UT OWvs 3t e!1.tTflDTt 0 UCTJ. CM JVJflCUT qq. jo UeWssçst ?t. 9AT830.I CM COUO 7pessesst eq Sum £xnCut etq. r,,tl I. os .io.00 u 09 .tetqtd et.q. Xe;CI , , put ext; t uedo e eo-t;o Moqtr O. sUO. s1uiq uet ejj '5111.10; 9 çç 1a11 $IITJ ,io1duIe 0t pe.flUp ST oa&otthne ut —'.x&j4tW OtI Jo !IOCdSt Sttp. uo PTtS 1d 4, I I • 16 :. the second accused told him to pay Sis. 2 1 000/=jf he wante,d to be paid hi compensation in fll"whera,.according to PW2 1 the accused demanded only 3hs. 1,400/= from him i.e. PW11 according to PW1 the first accused approachect him innediately after being paid at the bank and d.emnded his .s1xe PW3 however, said that it was P ill who approach.d the :first acused and paid Shs 1 2 400/= out to him; acco rding to PW1, PW2

1 PW3 and PW4 after receiving the Bus. 7,000/= from the hand of PW2 the-firrt accused passed it all to the second accused who put the spein hiE own trouserti pocket * PW5 1 however, stated that the..frt accused split the bundle of currency notes into two: He,.first..accused, reLind a portion thereof which he then put in hiown trq?r's poc1t .ad only handed over the other to the secnd , :: CO1 Wh too t put he same his trouser's pocket etc However,, as this COurt has oten reiterated contradictions and dis orepancies in the evieice of witnesses are not necessarily indicative of, the falsity of such evidence Honest witnesses trying to tell as truthfully as possible what they experienced or witnessed are much more forn, each others evidence afl -their evidence depends so many factor including ±hei powers of obseiationj recollection s expres1on than would be a well rehearsed fabricated story Purther it may not be irnpertnent to.bserve that .in fact the absence of aiscrepacies in the evilence of a nber of witnesses is more ca1lated to make such evidence Sspect than credib1e The learned Prinoip Resident Magistrate who had the advantage of seeing, hearing and asessing the witnesscs in this case accepted PVL, PW2,. P73, 2W4 and PW, as honest and truthful witnesses There is np-mteriai before me from which 1 can e properly, conclude that in so doiig the learned Principal Resident Magistrate

palpably abused that greatadvantage Like him I, therefore, also accept the sum total of the evidence of these witnesses for the Prosecution as a true I * 17 a _ fa and correct statement of facts In doing this I should not be taken as not to have consIdered the evidence of the witnesses called by the accueed Fàrom it I have considered it as conscientiously . W as I could 04 They both, no doubt, sound oredible'wieS5eS However, in the light of the evidence adduced by the Prosecution in this case • the evidence of DW2 and D3 hardly raises any reasonable doubt in mymind • During eross.examtaatian by Mr,3Bishota f or the second accused PW3 is recorded to have said inter alia:- "I was attentive as t was on specific duty The second accused asked first accused whether he had (a1xeady) received money from PWj. and he re1ied that hit money was small and they would wait for the one for P\2 (sjc)" From this and the fact that these two accused persons were together at the Labour office and y jointl,demanded the payments fromP. • and pW2 and also the fact that the second accused was seen reaeiving part of the payment by PW1 and pW2 from the first accused I am satiS fled, as was the learrd Principal Reident Lllagistrate, beyoda • peradvénture that this second accused and the first accused Wée sharing a commOn intention to solicit and receive bribes from P. • and P:W2i The two of theni were

acting in concert pursuing a common and ari unlawful design Having said this and on my evaluation of the evidence it is now 6pen to this Court to declare, which I do, that there is no a:e merit in the appal against conviction which is hereby upheld Turning to sentence, there is no material which could lead this Court to consider that the sentnce of five years imprisonment, which is the substantive term to be served by the accused persons in this case s ought to be reduced as the said tern of imprisonment is the bare minimum under the law, i.e. the Minimum Sentences, 1972 If anything I would not hesitate to point out that, In fact, it errs on the lenient side. This is not only because of the flagrant way the Io I / offences were coittd but also because of the flagitiousnesS of the whole affar, The oney, it will be recalled, was received in broad day light and in as open a place as .a baxik -!thout prejud1ce I am yet to be convice that a person whoiS.ngaging hiniseif, for the first time s in such an activity as did these two accused persons in this case which. per se IS puti±d, intëd and vitiated, would have the :v nerve to do it. So openly and shameleSsly Purther the second accused was in a poSitionof respoibilitywbich he has, deliberately opted to abuse As a labour Inspector, Grade 11 he nevertheless did not find it revolting, so to speak, to feed on the sweat blood s •f these

two poor labourers whose injuries will definitely affect them for the rest of their. lives I have seriously considered: on this account s the poosibility of enhancing the sentence of course after giving the second accused the opportunity (f being heard In the event I have desisted from so doing maixLy because of the accused'syou -thZul age; he is. now in his mid twexities,coup1ed With the fact that he did not benefit from the bribe at all and all the money received by him was recovered instant1y, More importantly I feel a tenu of five years imprisonment is tufficient to meet the justice of the case In the finalresult this appeal fails and it.is djsssed in its entirety • A. Delivered in open Court at Tanga this 20th October, 1982 //I( • (H.E.D Si' a). Judge -