Criminal Appeal No

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 8525 OF 2024 (Originating from the decision of the District Court of Newaia at Newaia in Criminal Case No. 38 of2022) DEODATUS DAVID MWAMWALI................................................ APPELLANT

VERSUS THE REPUBLIC........................................................................... RESPONDENT

JUDGMENT 08th May and 18th June 2024. DING'OHI, J. The appellant was arraigned before the District Court of Newaia district at Newaia facing two counts of corrupt transactions contrary to section 15(l)(a) of the Prevention and Combating of Corruption Act [Cap. 329 R.E 2019 Now 2022]. It was alleged that the appellant on divers dates of 04th of March 2022 at Newaia District Hospital within Newaia district in Mtwara region being an employee of Newaia district hospital, did corruptly solicit and obtain the sum Page 1 of 22 of Tshs.7,000/- from JUMA DAUD MNIWASA (PW3), the parent of AISHA HAMISI (PW4), the patient who was suffering from severe toothache, as an inducement to proceed with the tooth extraction treatment to the said Aisha Hamisi, the thing meant to show that was for the service while he knew that it was not true. After hearing the evidence of both sides, in the end, the appellant was found guilty as charged. He was sentenced to serve a custodial sentence of one year and six months or conditionally discharged in that during that period the appellant would keep the peace, and not commit any criminal offense. That was not the end. The appellant was also ordered to write an apology letter to the District Medical officer in charge of Newala District Hospital for behaving against the hospital rules, tarnishing the image of the hospital, and his career as a doctor, and for

disturbances caused by the act. He was further directed to copy the said apology letter to the following; the Resident Magistrate in charge of the Newala district court, the Director of Newala town council, Newala district, and the Mtwara regional TAKUKURU commander. The appellant was further required, to apologize to the public through Newala radio in the presence of the prosecutor, the proof of which had to be made to the trial court. If I have correctly understood the trial Page 2 of 22 magistrate, it was further ordered that sentences for all two counts have to run concurrently. For the avoidance of doubts, the sentencing directives by the trial court are couched in Kiswahili, as follows; "ADHABU ...... Sheria na mambo yote yaliyoainishwa yamezingatiwa, Pamoja na ukweli kwamba huduma ya matibabu ni sua/a mtambuka kwa kuwa Hnagusa afya na uhai wa binadamu, kwa kiia shtaka, mshtakiwa anapewa adhabu ya kutumikia kifungo cha ndani (gerezani) cha mwaka mmoja na miezisita au kutumikia kifungo cha nje cha mwaka mmoja na miezi sita kwa kuiinda amani, kutotenda kosa ioiote ia Jinai na kutekeieza mambo yafuatayo: 1. Mshtakiwa aandike barua kwa Mganga Mfawidhi wa hospital ya Wiiaya ya Newaia kuomba radhi kwa kukiuka taratibu za hospital! na ajira yake, kuchafua taswira ya hospital, kuchafua taaluma ya udaktari na kwa usumbufu wowote uiiojitokeza. Nakata ya barua hiyo iwasilishwe

kwa viongozi wafuatao: > Hakimu mkazi mfawidhi, Mahakama ya Wiiaya ya Newaia > Mkurugenzi wa Haimashauri ya mji wa Newaia > Kamanda wa TAKUKURU, Wiiaya ya Newaia na ngazi ya Mkoa, Mtwara. Page 3 of 22 2. Mshtakiwa aombe msamaha kwa umma kupitia redio Newa/a, akiwepo Mwendesha mashtaka, na uthibitisho uwasiHshwe mahakamani. Mshtakiwa atatumikia kifungo cha ndani kwa mashtaka yote mawiii kwa Pamoja. (imesainiwa)

HAKIMU MKAZIMWANDAMIZI 24/04/2023" The appellant is not happy with the conviction, sentence, and orders as above. Through the services of Mr. Rainery Norbert Songea, the learned advocate, has filed the present appeal raising the following grounds: 1. That, the trial Court erred in Law and fact by convicting and sentencing the appellant while the prosecution failed to prove the case beyond a reasonable doubt.

2. That, the trial Court erred in Law and facts by proceedings with the matter without reading and explaining the memorandum of facts to the appellant.

3. That, the trial Court erred in Law and facts by convicting and sentencing the appellant basing on the list of names of patients which was improperly admitted as Exhibit KM1 as it was generated from Page 4 of 22 electronic system without compliance to the legal requirements on the admissibility of electronic evidence on the authenticity and reliability of the said electronic system.

4. That, the trial Court erred in Law and facts by convicting and sentencing the appellant basing on the patient registration book (Exhibit MK2) which was improperly admitted.

5. That, the trial Court erred in Law and facts by convicting and sentencing the appellant basing on Form ya Mtego wa Rushwa, Note tatu za shiling 2000 na Note moja ya shiling 1,000 (Exhibit P5 collectively) which were improperly obtained and admitted.

6. That, the trial court erred in Law and facts by convicting and sentencing the appellant basing on a caution statement (Exhibit P6) which was improperly obtained and admitted as it was taken beyond the prescribed time and no rights were given to the appellant during the interview. The above six (6) grounds of appeal essentially boil to one major issue as to whether the prosecution side had proved the charge against the appellant beyond a reasonable doubt. Page 5 of 22 At the hearing of this appeal, the appellant was represented by Mr. Ahyadu Nannyohe, learned Advocate. The respondent was represented by Mr. Stephen Kondoro, learned State Attorney. By consent, the learned lawyers for parties agreed that the submissions by the republic should lead the way. At the outset, the learned State Attorney supported the appeal. He conceded that the evidence by the prosecution side did not prove the charge against the appellant beyond reasonable doubt. He contended that the evidence of PW3 who is the father of the victim, shows on page 13 of the trial court typed proceedings, that on 4/3/2022, he took his daughter to Newala Hospital. That, the daughter (victim) was suffering from teeth. After the hospital gate area, the PW3 proceeded to the shop to buy an exercise book for writing the patient's records. It is where and when he came across the present appellant who is working with the

hospital. By then the face and the cheek of the appellant's daughter was seen swollen. According to the learned state attorney, it is alleged the appellant demanded the sum of TZS. 7000/= from the father of the sick child for the hospital service. The appellant was given that amount. The learned state attorney contends that from the above argument, it is only evident that there was a violation of the hospital procedures as far as Page 6 of 22 the registration of patients is concerned, but the money that was given to the appellant was used as costs for the treatment. It is the learned state attorney's submission that though the appellant received the money, there is no direct evidence from the proceedings that shows that he did solicit the money. Not only that, the learned state attorney submitted, even PW5, the doctor in charge of Newala district hospital on pages 22, 21, and 23 of the typed proceedings, in cross-examination, stated that there is no way the appellant would be involved in receiving corruption. That notwithstanding on page 22 of the typed proceedings, the PW3 admitted that they got the treatment service though they were not given a receipt after paying for that. It is evident that the PW5 directed the appellant to return the money through the payment system of the hospital, and he later called the TAKUKURU officer to interrogate the appellant. The learned state

attorney went on to submit that though there is evidence that the PW5 told the appellant to return the money, still it is not proof that the appellant corruptly received the money. According to the learned state attorney, it was an injustice to charge the appellant with corruption on the money received after the service was already given using the money paid. Page 7 of 22 The learned state attorney further submitted that what is evident is that the appellant did not observe the hospital procedures in serving the patient and that does not amount to corruption. It is the learned state attorney's submission that the money that was found in the appellant's pocket after a search by Takukuru officers, (three banknotes of TZS. 2000/= and one banknote of TZS. 1000/=), as per page 23 of the trial court typed proceedings, should not be taken to be corruptly obtained to find the conviction of the appellant. He submitted that, on pages 32 and 33 of the trial court's typed proceedings, the appellant admitted that he received money from PW3, but since there was no anesthetic in the hospital, he required PW3 to give him money for purchasing the required medicine. He stated, that it was a matter of emergency because the sick child was complaining of tooth pain. Other customers were waiting for him thus as he was busy serving many customers he failed to follow the required procedures for the

payment of hospital charges. On receiving the said money, the learned state attorney submitted that the appellant did not mean it was for corruption. He conceded to the grounds of appeal and stated that it is true some exhibits were tendered without following the procedures required by the law. Page 8 of 22 In totality, the learned state attorney agreed that there was no ample evidence to prove the charges faced by the appellant in the trial court. He argued for the court to find the appellant free. On his side, Mr. Ahyadu Nannyohe, for the appellant had few but focused submissions for supporting this appeal. He submitted that since the Republic in their submissions has highlighted several shortfalls found in the prosecution case at the trial, he would only cement what the learned state attorney has submitted. It was his submission that it is true, as submitted by the learned state attorney that, the exhibits were improperly admitted in the trial court. For example, the learned advocate contended, that exhibit KM1, (the list of patients who were registered in the hospital) was generated through a computer system but the procedure as to how to deal with that evidence as per Section 18 (1) (2) (a) to (d) and (3) of the Electronic Transaction Act, CAP. 442 was not complied with. He contended, that for electronic evidence to be admitted, it must be tested for its reliability. That,

there must have been evidence as to how the document was generated, stored, or communicated. It also requires the evidence to be authenticated for it to be admitted. All these have to be observed before the document is tendered Page 9 of 22 before the court. In the case at hand, the procedures for admitting the electronic evidence were not met. Under the circumstances, according to the learned advocate, the evidence was not supposed to be admitted and acted upon by the court to find a conviction. To cement his argument, the learned advocate cited the case of Aman Yohana Mwandemile vs Republic (Criminal Appeal 22 of 2021) [2022] TZHC 9520 on page 12. On further submissions, the learned advocate had the view that in admitting exhibits KM2, P5, and P6 collectively, the law was not followed before those exhibits were admitted. He contended that when exhibit KM2 was admitted the witness (PW2) who tendered it did not state on the foundation laid down for it to be identified before it was tendered. Likewise, according to the learned advocate, the trap corruption form (Exhibit P5) with a banknotes of TZS. 2000/= and TZS. 1000/= were admitted without following the procedure of being identified. That, it is only the trap form that was identified. Further to that the witness did not identify the said bank notes in terms of serial numbers. On those shortfalls, the exhibits were

not supposed to be admitted and to be based on the decision of the trial court to convict the appellant. The learned advocate cited the case of Director of Page 10 of 22 Public Prosecution vs Sharif s/o Mohamed @ Athumani & Others (Criminal Appeal 74 of 2016) [2016] TZCA 635, to support his arguments. Regarding Exhibit P6 (the cautioned statement), the learned advocate contended that it was admitted contrary to the law as it was made out of time, contrary to the provisions of section 50 (1) (a) of the Criminal Procedure Act, Cap. 20 R.E 2022. He elaborated that the cautioned statement was made out of time because the incident took place on 04.03.2022, PW5 called PW6, Takukuru officer on the same date but the statement was recorded on 07.03.2022. It is the learned advocate's case that the appellant does not dispute the act of receiving money which was the base of the trial court in conviction, but that does not mean that the appellant has admitted to having received the money corruptly. In furtherance, the learned advocate submitted that the trial court conviction was based on the exhibits that were improperly admitted though the appellant did not object to its admissibility. To bolster his argument, the learned advocate cited the case of Precision Air Services PLC vs Masoko Agencies T. Limited (Civil Appeal No. 60 of 2021) [2024] TZCA 266 on page 23 in the proposition that

though the appellant did not object to the admissibility, those documents would not be Page 11 of 22 used in finding the appellant guilty because they did not meet the requirements of the law. The learned advocate prayed that this appeal be allowed, and the appellant be set free. I have dutifully gone through rival submissions by both sides. I am alive however that this being the first appellate court, its duty is in the form of rehearing, reappraising the evidence on record, and where possible, coming out with its findings. This position has been highlighted in several cases including the case of Menroof January Haule vs. Republic (Criminal Appeal No. 121 of 2022) [2024] TZCA 69 where Justices of the Court of Appeal had the following to say; "We wish to start by stating that, this being a first appeal it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact." See also the decisions in the cases of Kaimu Said vs. Republic (Criminal Appeal No. 391 of 2019) [2021] TZCA 273, Siza Patrice vs. Republic, Criminal Appeal No. 19 of 2010, and Noah Sajilo & Another Page 12 of 22 vs. Republic (Criminal Appeal No. 478 of 2021) [2024] TZCA, to mention but few. It is a cardinal principle of the law that in all

criminal trials, the burden of proof rests solely on the prosecution side to prove the charge against the accused person. The standard of proof is beyond reasonable doubt. That burden never shifts to the accused person even when his defense is tenuous and improbable as a conviction cannot result from the weakness of the accused's defense but, from the strength of the prosecution's case. See the case of Director of Public Prosecutions vs. Hassan Abdalla Mitawi & Another (Criminal Appeal No. 82 o 2023) [2024] TZCA 286. The main issue for determination is whether the trial court properly convicted the appellant for the charged offense of a Corrupt transaction contrary to section 15 (1) (a) of the Prevention and Combating of Corruption Act, Cap 329 R.E 2019. That provision of the law states that; " (1) Any person who corruptly by himself or in conjunction with any other person: (a) Solicits, accepts or obtains, or attempts to obtains, from any person for himself or any other person, any advantage as an inducement to, or reward for, or otherwise on account of, any agent, whether or not such agent is the same person as such first Page 13 of 22 mentioned person and whether the agent has or has no authority to do, or forbearing to do, or having done or forborne to do, anything in relation to his principal's affairs or business, commits an offence of corruption." Guided by the

above-quoted provisions of law, in the case subject to this appeal, at the trial, the prosecution side had a duty to prove that the appellant solicited or received or that he solicited and received an advantage, in this case, TZS. 7,000/= as an inducement to do or forbear to do. Throughout the trial court record, there is nowhere that PW3 stated that the appellant solicited any amount from him. What PW3 told the trial court is that he was told by the appellant to go and buy a medical syringe. He was also asked to pay TZS. 7,000/= for the service he needed for his daughter. That was in the presence of two other people in the dentist's room. PW5 testified that on the incident day, he met with PW3 and his daughter and asked him if he got treatment at the dentist's room, PW3 told him that they got the service but after checking exhibit KM5 he realized that no painkiller medicine was written for her. When asked by PW5 why he did not prescribe the painkiller medicine to the sick child the appellant replied that he did forget. The PW3 told the PW5 that he paid the Page 14 of 22 appellant the sum of Tshs. 7,000/= but no receipt was issued. The appellant admitted to having taken the money to buy numbing medicine. PW5 told the appellant that it was not a procedure to take the money the way it was done. The appellant was then directed to take the said money for the payment in the hospital

system. The evidence by the PW6 was to the effect that he had been called by PW5. When responded, the PW5 told him that the appellant had received corruption to treat someone. On search, the appellant was found in possession of a banknote of TZS. 2,000/= three of them and another banknote of TZS. 1,000/=. thereafter he recorded them in the trap form (exhibit P6). He further testified that he interrogated the appellant on 07.03.2022. In this matter, there's no doubt that in the trial court, the prosecution's key witnesses were the patient's father (PW3) and the patient herself (PW4). Apart from the evidence of those two witnesses, the evidence of other witnesses (PW1), (PW2), (PW5), and (PW6) do not conclusively suggest that the appellant took the money as a bribe. It was not seriously disputed that the appellant took the sum of Tshs. 7,000/= from PW3, to buy the numbing medicine to help the sick child (PW4). For ease of reference, the appellant told the trial court as follows; Page 15 of 22 "nikamuambia kwa kuwa dawa ya ganzi kulikuwa amna, kulikuwa na kiasi kidogo sana, nikamwambia atoe kiasi hicho Hi tununue dawa hizo za mipira, Hi akibaki na pesa kidogo akanunuiie dawa ya mtoto...." In his evidence, PW5 (a doctor in charge of Newaia Hospital) testified that in receiving the money paid by the PW3 for medical services the appellant went against the hospital rules as he was not

mandated to buy medicines for the patients. On the question of soliciting, he said nowhere in evidence did the said PW5 and/or the PW3 testify that the appellant solicited and obtained any advantage from PW3. Based on the above shred of evidence, the trial court found the appellant guilty on the ground that he ought to have sent the patient to the payment room after treatment, and for that failure, the appellant might have solicited the advantage. I have carefully considered that. I am not convinced that failure by the appellant to follow the required procedure of payment is a criminal act. Under the circumstances of this case, It was wrong therefore to convict the appellant for a charge of corrupt transaction because the credential ingredients of the charge were not proved by the prosecution witnesses. Page 16 of 22 Apart from the foregoing observation, I have also noted that in an attempt to prove the instant case, the prosecution through the testimony of PW6 tendered a caution statement which was admitted as Exhibit P6 without objection. Upon careful perusal of the said Exhibit P6, the appellant admitted having received money from PW3 not as a bribe, but for treatment costs. For ease of reference, the appellant was recorded stating as follows; "NHichukua fedha hiyo kwa ajili ya kununua dawa za kutibia wagonjwa kwani hakukuwa na dawa" As I understand the law once the

cautioned statement of the accused person is admitted on the request of the prosecution side it becomes the evidence of that side against the accused person. To find conviction, that evidence therefore is not expected to conflict with other evidence by the same side. In the instant case, the appellant's story in Exhibit P6 does not lend credence to the prosecution's story because what was recorded in the caution statement does not support the charge. In the cautioned statement (exhibit P6) the appellant did not admit or state that he received the money as a bribe but for the treatment costs. That is the stance of the appellant even before this court in this appeal. The charge has a statement naming Page 17 of 22 the received money as a corruption. That is not the end, as rightly argued by both counsels the caution statement itself was recorded out of a stipulated period of four hours contrary to the provisions of section 50 (1) (a) of the CPA. That is evident from the trial court's typed proceedings on pages 25 and 27 where the PW6 who recorded the said cautioned statement of the appellant stated in his evidence that; "Tarehe 4/3/2022, ni/ipokea taarifa ya kufanyika kitendo cha rushwa katika hospital! ya mji Newala. Taarifa Hinifikia kwa njia ya simu. Baada ya kupokea taarifa nilikwenda kwenye hospital! ya mji Newala.......NUirekodi fedha hizo katika fom zetu za mtego wa

rushwa, baada ya hapo, zoezi katika chumba cha Daktari ikawa Hmeisha, tutaendelea kuchukua maeiezo ya mashahidi na vielelezo vingine............ NUichukua maeiezo ya tahadhari kutoka kwa mtuhumiwa tarehe 7/3/2022. ” As the appellant was arrested on 04/03/2024 and cautioned statement of the appellant recorded on 7/3/2022 means that it was recorded three days after the arrest of the appellant. I will agree with the complaint by the appellant that the cautioned statement was taken beyond the prescribed period of four hours and thus unlawful as it is contrary to section 50 (1) (a) of the CPA that provides as follows; Page 18 of 22 "50.-(1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence.." The Court of Appeal of Tanzania in Daniel s/o Milinga vs. Republic (Criminal Appeal No. 296 of 2020) [2024] TZCA 181, had the following to say concerning the time required for taking the cautioned statement; "In the instant appeal, it is dear that though in his testimony PW2 did not mention the exact time when the appellant was arrested, there is undisputed evidence to the effect that he was arrested on 04.08.2019

during night hours. It is also evident from PW1 that the cautioned statement was recorded by him on 05.08.2019. Further, according to the cautioned statement (Exhibit PI), it was at 13:00 hours when it was recorded. That being the case, it is thus without doubts that, the cautioned statement in question was recorded beyond the prescribed period of four (4) hours in contravention of section 50 (1) (a) of the CPA....... it is trite law that a cautioned statement recorded not within the prescribed period of four (4) hours is liable for expunction from the record." Before I come to decide on the merit or otherwise of this appeal, I find it apt, in passing, to say something on the validity of the sentence imposed by the trial court to the appellant, assuming that the charge would have been Page 19 of 22 proved. It is trite law that the accused person is to be sentenced as the law provides. The court is not expected to exaggerate or go against the sentences provided by the law and as directed under the Judiciary Sentencing Guidelines. Section 15 (2) of the Prevention and Combating of Corruption Act, Cap. 329 R.E 2019 provides for the sentence to a person convicted of the charge of corrupt transactions as follows; "A person who is convicted of an offence under this section shall be Hable to a fme of not less than five hundred thousand shillings but not more than one million shillings

or to imprisonment for a term of not less than three years but not more than five years or to both." In this case, after conviction, the trial court gave the appellant optional sentences of custody or conditional discharge plus other orders/directives that the law as cited above does not provide. The trial court magistrate did not even cite any law that mandated him to pass the sentences he directed to be complied with by the appellant. For instance, the 'sentence' given to be complied with by the appellant including reporting to other authorities is nowhere provided in the law. They should not be left to prevail because the record is silent on the reason given by the trial court in passing the sentences styled as above quoted. The sentencing is a very sensitive area in which courts should properly observe the good principles per the law. In the case Page 20 of 22 of Ramadhan Omary vs. Republic (Criminal Appeal No. 83 of 2018) [2019] TZCA 283, the Court of Appeal had the following to remind us of the principles governing sentencing; "Fora start, we would wish to re-state the principle governing sentencing that, it is in the domain of the trial court. The appellate Court can alter or interfere with the sentence imposed by the trial court where there are good grounds for so doing. Among such good grounds were named in the case of Swalehe NdugajUunga vs. Republic (2005) TLR 94

to include, one, where the sentence is manifestly excessive; two, where the sentence is manifestly adequate; three, where the sentence is based upon a wrong principle of sentencing; four, where the trial court overlook a material factor, and five, where the sentence is plainly illegal." Back to our present case, I would find that the prosecution side had not proven the charge in both counts beyond a reasonable doubt. The appellant's appeal is therefore allowed in its entirety. The conviction, sentences, and accompanying orders/directives by the trial court are hereby quashed and set aside. The appellant is declared a free person as to the counts he faced. Order accordingly. Page 21 of 22 Dated at Mtwara this 18th June 2024 Court: Judgement delivered this 18th day of June 2024 in the presence of Mr. Mwapili, the learned State attorney for the Republic, and Mr. Ahyadu Nannyohe, the learned advocate for the appellant. . R. DING'OHI

JUDGE 18/06/2024 Page 22 of 22