20141010 TZHC Dar es Salaam

' \ IN TH·E HIGH COURT OF TANZANIA (DAR ESe SALAAM DISTRICT REGISTRY) ', I '

AT DAR ES SALAAM CRIMINAL APPEAL NO 101 OF 2012 (Original Criminal Case No 189/2010 In the Resident Magistrate's . '. _ . .: Court of Dar es Salaam at Kisutu) THE DIRECTOR OF PUBLIC P-ROSECUTION ..... APPELLANT

VERSUS PETER KIBATALA ......................... a••·············RESPONDENT

JUDGMENT Date of Last Order: 12/9/2014 Date of Judgment: 10/10/2014 Bongole,J The abbreviated facts of this appeal are that the Respondent PETER KIBATALA was charged before the RM's Court of Dar es Salaam at Kisutu in Criminal Case No 189/2010. Two counts were preferred against him to wit:- 1st Count: Corrupt Transacti~n Contrary, to S.15(1) of the Prevention .and Combating. of Corruption Act No 11 of 2007. The· particulars were that the respondent between the 22 nd day of August 1 2010 and the 1st day of ~eptember, 2010 at Trust Mark Attorneys Premises located within Ilala Municipal, Dar es Salaam Region being an -Advocate of the High Court of Tanzania and Courts subordinate thereto save for Primary Courts, hence being an officer of the court. . . . . . and also being employed by RAJESH VOHOLA in a contract for employment as an Advocate to defend him (RAJESH VOHOLA) as defendant in a Civil Case Number 33 of 2009 hence the respondent being an agent of the later, did corruptly solicit .the sum of Tanzania Shillings 7,000,000/= (Seven Million Shillings) from one . JOSEPH TALAKA GAMBI as an Inducement. to forebear from raising objections and taking any other legal action to delay the execution of a_ Decree arising from the herein above menti9ned civil case with a creditabJe. . . . . . .· .· amount of Tshs. 24,000,000/= a matter which. is· in relation to. the accused . person

Principal's Affairs:. Second Count: . Corrupt Transaction Con~rary to Section 15(1) · ·. · of the Prevention and Combating of ·corruption Act No 11 of 2007. ·· The particulars were that on the 1st day_ of September 2010 in the same place, holding the same position as stated in the 1st count,- did corruptly obtain the sum· of Tanzania Shillings 3,500,000/ from one Joseph Talaka Gambi as an Inducement to forebear from raising - objections and taking any other legal action to delay the execution of . .' . . a decree arising from Civil Case No 33 of 2009 with the creditable amount of Tshs. 24,000,000/= ·a matter which was in relation to the accused/respondent person Principal Affairs. - 2 4 The prosecution case commenced where 4 witnesses testified where the prosecution closed. their case . .· Subsequently, the trial court ruled out that the evidence adduced in ~upport of _the p~osecution case did not establish a prima facie case -· . against the respondent, and· hen~e the respondent was discharged under S.230 '. .~ of the CPA Cap. 20 R.E 2002. . ' The DPP was aggrieved by the said discharge order hence this app.eaL Before this ·court, the DPP· is armed with (5) five grounds of Appeal to wit:- 1. That the learned trial magistrate erred both in law and fact by holding that the prosecution failed to prove the existence of , Principal - agent relationship as an ingredient of the offence of corruption.

2. That the learned trial Magistrate erred· in law and facts on . holding that the respondent was not instructed to file an application or appeal by PW.3 RAJESH BOHOLA.

3. That the learned trial magistrate erred in law and facts on fqi!ing to consider the evidence in· the respondent's confessional statement in which he confessed to solicit bribery from PW.2 JOSEPH TALAK GAMBI. ~- Thatt~e .learned trial magistrate erred in la~ and facts on failing to find that the· money Tshs. 3.5 million obtained by the respondent from PW.2 JOSEPH TALAKA GAMBI was bribery. 3 5. That the learned tria.1 magistrate_ erred. in _law on holding that the prosecution failed to e.stablish~d a prima facie .case against the respondent. The DPP prays before th.is court . to . quash the " . discharge of..the ., ., • ~ • • I respondent and substitute thereof· with an order for the. case to be heard on merits. In this appeal, Mr. Mutakyawa and Lucy Diganyick State .Atto~neys appeared for the Republi_c and Mr Stevin Urassa learned Advocate appeared for the respondent. With the permission of the court, parties filed written submissions in disposing the appeal. I owe gratitude beyond measure . .. to.the learned State Attorney ,. . ~· and· - ~ Counsel for their submission they 'presented. With due respect to the learned State Attorneys and Counsel, both· overlook~d at the Impugned decision (Ruling) of the trial court arid in particular the last paragraph of the order. For clarity the said paragraph reads. I quote-. '1t is from the above discussion_J'am of the opinion that there

is no prima facie case established against the accused person and so the ,. accused person has no case to answ~r and so he is hereby discharged . . under section 230 of the Cr(minal Proced£Jre Act (Cap. 201~-~E 200~/ Sign. R.G. ~arimo SRM 20/10/2011" '4 . Tb.sayth.at"botti parti.es ov_eriooked tnetrial court decision, it will \- '"• be plain when· one ~llances on the law i.e S.230 of the Criminal Procedure Act (Supra). It provides:- ''If at the close of the evidence in support of the charge; it appears . '.. . to the court that a case is not ,. made out against the accused person _sufficiently · to ·require him to make a _defence; either in relation· to any other offence of which under the provisions of S.300 to 309 of this Act; he is liable to ·be convicted the court shall dismiss the charge and acquit the accused person" As · it appears above; the trial court discharged the r~spondent/Accused insteady of dism.issing the c·harge and acquitting him. I find it as a matter of procedural law to invite the learned State Attorney and Counsel to address the court on the effect of the "discharge" order. I did so to be in line with the ancient maxim that ~io~s ·;'he~~ ·hi~ fiist ~nd hang him !alter as opposed to hand him first a~d neai-)1im lait~f" . - .: ., -<, It · is the argument by . the State Attorneys that in our - . ~ jurisprudence, discharge of an· accused person has been

construed to mean release of the accused from Criminal liability but such release does not oper~te as bar f~r subsequent arrest and or prosecution of . . . the said ·accused on the same offence (s). With exception of section 5 ,'•,. 38 of the Penal code Cap. 16 R.E 2002, and normally, a discharge . . order is given where a case is not concluded on merit. Reference is made to sections 222 as amended by Act No 3 of 2011 . and S.225 (5) . of th~ Criminal Procedure_ Act. They·. ~ited the case of R.Vs. TWALIB . . UMBWA (2005) TLR 420 in support of the prepositions. They added that the impugned . . .. order. was . made .. . under section · 230 of the Criminal Procedure Act · That the trial magistrate pr_operly cited the provision on finding_ that there was no prima _facie _case established against the accused person. That by citing S.230 of the CPA, the magistrate intended to acquit the accused not to discharge · him as it appears in the order. They went on arguing that the use of the ,phrase ''he is hereby discharged" in the order of the trial magistrate is an error which did not occasion failure of justice and it is curable under S.388 of the CPA. They invited this court at this stage to resort to equity principles by treating the discharge order as if it was an acquittal. Ceme_nti~g their argument, they took me tq the case of MUSA MOHAMED VS. REPUBLIC Criminal Appeal. ·No 86. of

2005 CAT at Mtwara (unreported) where th~ CAT had this_.to say "This court being the final . . court ofjustice of the land, apart from rendering justice according to law also administer justice according to equity" . "Equity treats as done that which ought to have done" That what the trial magistrate· intended_ 1n his order was to acquit the accused anc;j not to discharge him. 6 Responding to this court order on the point raised, it was the . . . . Respondent's argument that the· error that app~_ars in the trial court's ruling is an error of description rather ·than one t>f substance. That it is·· so because the p~oceedings thal culminated in the said ruling can . . . . . . ' be placed under tlie ambits of section 230 of tlie Criminal Procedure ·Act; save for the c~urt's 'employin'g for the phrase "discharge' instead of ~'A~q~itta/ 0 • · That the· said ruling of the court is clear in that it ~ma~at~s from ·a finding of ~ No case to answe~. within the provisions ·of Sectic~m 230· of the CPA, which provision was duly cited . . ,,. He added that the error of description contained in the use of the term "discharge' as opposed to "acquit' is remediable under the . . ... . . . ' provisions of Section 366( 1) (c) when read together with section 2~(1} (a) and ·(c) of the Magistrate's Court Act. That this court may t . amend the legal phrase "discharge" used erroneously by the

tria:I ·court and replace it with the proper phrase "Acquit' and proceed· to · determine ... - the appeaL ., ~ ~ . ., "' . ·1 .... thankful! ~ . ain th~t . both parties appreciate that t~e trial court . . ~ ,.. erred . . . in employing the legal phrase "discharge' and the order made was 'not "with.in the ambits ·and concomitant with the provisions of ' ~ . . . . S.230 of the Criminal Procedure ·Act Cap. 20 R.E 2002. .,.. . ~ My regret of correcting· the error made by the trial court by ordering a re-trial is however temp.ered by the fact that both parties in this appeal are in consensor that the said error is remediable by . ~- .. ' amending it/substituting it to connotes its legal effect as per the 7 requirements of S.230 of the Criminal Procedure Act. I do not have any reas,on(s) to decline from conceeding to their observation. Under the circumstances I would invoke Equity and treat as ought to have been done by deleting the phrase "discharge' as it appears i_n the tri~I . ' court ruling and substitute it with a phrase "acquittal'. Wherefore, the order should read ... " the charge is dismissed and the accused is _acquitted under S.230 of the Criminal Procedure Act Cap. 20 R.E 2002'~ . '. As the appeal stands, it would ._require labourers from Sysphous . . - . to· persued me to agree with Mr ~utakyawa S.A that the evidence that was before the trial ·court established· a prima

facie case . .. against . . the : . accused/the respondent. My position and finding is absoletely backed by the testimony of "PW..1' RAJ-ESH BOHORA which I find to be "the. _solvent of the whole saga. For avoidance of doubt, I find it pertinent to reproduce it hereunder:- "PW.3 - XD by Pross~' My name is Rajesh Bohora. I have been in Tanzania for a long .. 9 time. I was born in Nairobi Kenya and schooled in London. My parents however, stay in Tanzania we have a residential house at Masaki Dar es Salaam. I knew the accused person before this court. I came to know him in the year 2009. I know him when I was in legal dispute with another person. I have a lawyer in Arusha but since this matter was in Dar es Salaam· I was' introduced to Dr. , Lamwai· ' ,•: (Advocate) who then introduced me to the a·ccused person, I do riot 8 · khow why Dr. Lamwai decided to introduce me to the accused person: I discussed with Mr. Kibatala (the accused) the possibility of having .f the case start afresh as the other lawyer had consented to things I did riot ·agree and the matter was finalized against me. I just wanted to ... ..... ' . see· if anything could. be done. to ·help me get my right. It was instit~te~ in Ilala ·orsfrict Court· but I ·can not re-call the exact number • • , fl.., •.• •-"'· • • • <; of'the· case. I ·was the· defenda~t in this case. Having discussed with the accused he said he

will try to make an ap·plication to the same 1 ·co~rf or· appeal to the High Court and I paid him the money for it. I ca~ not remem.ber the ~oney but I think it was 3,000,000/=. I first .pciid.~him 2,000,000/= and later, 1~000,000/= Tshs. This matter has - now ·been settled and I have already paid the plaintiff. Up to April or ., . May last year I had contact with M,r Kibatala. - Later in Septemoer, I saw the matter in a newspaper and ·Mr: Kibatala (the accused) told me that when we meet he shall tell me. , The matter has been settled six months age. I can not re-call well but it is between 5-6 months ago. It is my family· which got involved in .• . . the matter as I am always on safari. I remember sometimes last years Mr. Gambi called me and said that he has a summons to serve. I received the call when I was in Mtwara I told him to serve the summons to Kibatala (the accused) I never called the accused or spoke to him. I was ne·gligent as I: was supp·osed to communicate with the accused after - I .had directed Gambi to give him the summons. The accused also did not inform of any summons. 9 . -t ... - , We were . always in co_mmunication . with Mr. Gambi. My faniily has been doing these payments and so I can not recall when was _the last payment done. That all. XXD by the accused: . . .• The court had entered a consent judgment · against my knowledge and so I wanted you to help

me to apply for a review. Our • contract was on appeal or application only. That is what I instructed you. We however had conve~sation with Mr .. Gambi regularly. The flat at Masaki has been bought this year and so before I· had been sle~ping in hotels. I did r:iot have a fixed abode herein Dar es Salaam and that .is why I told Garn bi to. bring the sum_mons to you. ·There was another l_awyer before I engaged you. You were supposed to talk- to me and· discuss and agree on fees to han_dle the new summons. I did not call you to instruct you to handle this summons. It was Mr Gambi brother who called- and informed me abo.ut th~ .sum_mons. It is not Gambi personally who called me.· I was not aware of the matter and I came to know it when it was seen in the news paper,. The Advocate who entered consent Judgment against my wishes is Ambrose ·Malamsha. It was not you who entered the consent judgment you do not work . . with 'Mr. Malamsha in your office. I do not remember to have got information that the application has been dismissed. I am very busy and my recollection Js not that good and so possibly you have had 10 . . , -~•-~~:~<·~-,~-~•~::::·~. ·:·h .~~~---~~"=--~,:-,,"i :,•·;• '• informed me about it. I did ·not have any problem with you at the . . time of conductin·g my case. I have been making payments but I can . . . not re.call what payments_ were done when you were still

under my instruction. A consent judgment meant that I had agreed and so I had to pay. I preferred an appe~I because Mr. Malamsha had gone against my wishes. That is all The revelation from this peace of evidence is that the respondent had no any instruction from "P.3" to handle the new ·summons. Wherefore the allegation that there was principal - agent relationship is and ·was defeated. The trial court under the ~ . '""· .... . :. ., . . _ Circumstance was justified to hold that the prosecution_ failed to prove the existence of principal - agent relationship as an Ingredient of the . . offence of corruption. The finding of facts that no prima facie case . ' had been established was therefore obvious as no court worth of the . ' name could hold otherwise. · As the prosecution failed to estaolish principal agent relationship ... : • t between the respondent and "PW.3" the rest of the allegations levelled against the respondent were mere sweeping statements. \ . That been said and done, I find this appeal to be unmeritorious which deserves ... a dismissal order as I hereby do . , . This appeal is dismissed for.want of merit. , S.B. Bongole

JUDGE 3/10/2014 10/10/2014 Coram: Bongole,J For the Appellant: Mr. Mutakyawa S.A .For th~. Respondent: In person C.C Evelina Mr Mutakyawa: My lord the appeal comes for judgment and we are ready to receive the same. Court: Judgment delivered. S. B. Bongole

JUDGE 10/10/2014 Right of a·ppeal explained. S.B.· Bongole

JUDGE ·10/10/2014 12 ·. , f" I ,,"