20121121 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA (APPELLATE JURISDICTION) . (DC) CRIMINAL APPEAL NO. 102 OF 2011 (Original Criminal Case No. 43 of 2009 of the District Court of lramba District at Kiomboi) D.P.P ................................................................·•... APPELLANT {Original Prosecutor)

VERSUS FANUEL MKUMBO .................................................. RESPONDENT (Original Accused)

JUDGMENT 17/9/2012 & 21/11/2012. KWARIKO, J: ,• The facts ¥of tt1is case which led to this appeal can be summarized as hereunder. Sometimes in April 2009 one .OMARY s/o ALLY, PWl ~reported to the Village Executive Officer, VEO the respondent herein at Milade in Iramba about theft of his cattle. He also reported to the police. Four suspects were arrested on 20/4/2009. These were ABDUL s/o OMARY, PW2 who was PWl's son, SELEMANI s/o RAJABU, RAJABU s/o I~RAHIM, PW4 and HAMISI s/o MOHAMED. However, on 21/4/2009 the parties agreed to sett!E:tth·e matter at home· and the suspects were released. It was revealed that when the suspects were going home in the company of PWl, ATHUMAN -s/o ALUTE, PWS and ABDALLAH s/o OMARY, PV\/8 they met the respondent herein. The 1 respondent solicited for a bribe of shs. 600,000/= from the suspects so that nq any further legal actions would be taken by the police against them. After -bargain, the respondent settled to be given shs. 400;000/=. That, shortly afterwards shs. 200,000/= had b~en paid by PWl for ABDUL s/o OMARY and shs. 200,000/= was paid by ABDALLAH OMARY for HAMISI MOHAMED in the presence of the suspects and PWS . . After two days this incident was reported to the offic,e of Prevention and Combating of Corrupt:on Bureau (PCCB) in Singida and the respondent was booked. After arr-est the respondent was interrogated where he denied the

allegations. His caution ·statement was recorded and the same was admitted in court as exhibit Pl . ., Thus, the respond~nt was sent to court with three counts of Corrupt Transaction C/5 15 (1) (a) and (b) of the Prevention and Combating of Corruption Act No. 11 of 2007 . . In his defence the respondent raised a defence of alibi 1M that on the alleged material date he was on safari to Dodoma. His defence was supported by one STEPHEN s/o ELISHA, DW2 who said had travelled in the same car, a lorry with the respondent on the material day. At the jnd of the trial the court found that the prosecution did not prove the allegations against the respondent. It was essentially found- .that the cattle theft t:· suspects had been released by the police and thus the respondent was not in the position to solicit bribe as he was not responsible with that whole affair. And that it was not proved that there was any communication between the respondent and the police concerning the suspects. Also, if the respondent had sol.icited bribe the suspects ought to have revealed the same to the police or report to the PCCB office where a trap could have been set against him. Thus, the respondent was found not guilty and accordingly acquitted. 2 . On being dissatisfied with the trial court's decision, the Republic filed this appeal upon the following two grounds of appeal: 1. THAT, the learned Principal

District Magistrat.e erred in law and fact in holding that the ca_utioned statement 1tt:asn 't correctly recorded 2. THAT; the learned Principal District Magistrate erred in law and in fact in according we~qht on improper Alibi defence (sic), During the hearing of the appeal Mr. Katuli learned State Attorney appeared and argued the same on behalf of the appellant, the Director of Public Prosecutions, (the OPP). In relation to the first ground of appeal Mr. Katuli contended that the trial court erred to hold that the respondent's caution statement was taken in terms of section 58 of the Criminal Procedure Act Cap. 20 R.E.- 2002, the CPA i.e in a questions and answers mode. He said that in fact the caution statement was taken in terms of ·sections 54 and 57 of the CPA. In section 57 (1) & (2) of the CPA it is allowed for a suspect to answer questions from the interviewing officer. Thus, since the respondent did not . object to this st'atement, the trial court ought to have considered the same part of the . evidence to corivict him, Mr. Katu!i contended. As for the second ground of appeal Mr. Katuli submitted that the respondent did not comply with the provisions of section 194 ( 4) & (5) of the CPA when he relied on a defence of alibi. In that the trial court ought to have rejected the defence and should not have accorded tl1e same any weight and more so since the same

was doubtful as the defence witnesses' evidence contradicted. Thus, the trial court should have believed the prosecution evidence which was not cross-examined by the respondent. 3 . . . In response to the foregoing submission Mr. Ng\vigult.i learned adv0cat~ appeared on and argued the appeal on behalf Gf the respondent He contended that it was right for the trial court to hold that the respondent's caution statement was taken in terms of section 58 ·of the CPA. This is so because the respondent submitted himself to the PCC::B'~ office and agreed to give his statement voluntarily. Thus, the cau.tion statement ought to have been taken in terms of section 58 of the CPA and not section 54 and 57 of the CPA as was the case. That, these provisions are invoked when a suspect is not ready to give his statement. A Court of Appeal of Tanzania case of RAMADHANI SALUM VR Criminal Appeal No. 5 of 2004 a_t Mwanza· (unreported) was cited in respect of the interpretation of sectioms 57 and 58 of the CPA. In relation to the second ground of appeal it was submitted by Mr. Ng'wigul.u that it is true that the respondent did not comply with the provisions of section 194 of : . the CPA when he relied on the defence of alibi. Though, Mr. Ng'wigulu contended that l? ~. the trial court rightly exercised its discretion to accord weight to that defence as it is provided under section 194 (6) of the CPA.

And that the respondent who is a layman could not know the usage and technicality of section 194 of the CPA. Further, he sa1d the prosecution did not rebut the respondent's alibi and the • contradiction injthe evidence by defence witnesses did not eliminate the fact that the respondent and DW2 together had travelled to Dodoma. It was Mr. Ng'wigulu's contention however that what the court is supposed to do in a defence of alibi is to consider whether the same raises a re_asonable doubt in the prosecution case. A case of RASHID ALLY VR [1987] T.LR 97 was cited in that respect. Thus, Mr. Ng'wigulu contended that even if the respondent was at the scene he was not in a position to recerve bribe in order to release the said suspects. In that his authority was at a village level and since the suspects had been taken to the police 4 he no longer had any say over them. And there was. no evidence to show that the respondent had conspired 1.Nith the police to ,jeITTand and receive bribe. Therefore, at most the respondent ought to have been charged with the offence of Receiving Money by False Pretence. In his- rejoinder Mr. Katuli iearned State Attorney submitted that it was not in dispute that the respondent prese,nted himself to the PCCB's Office. However; there is no evidence. to show that the respondent willingly volunteered to give his statement in 1,·· order,•for it to be taken in

terms of section 58 of the CPA. Henc2 it was rigblt that the statement was takeri .in terms of section 57 of the CPA. And finaHy that any person can commit the offence under section 15 of Act No. 11 of 2007 regardless of his/h-er status in relation to the complainant. Now, following the contending submissions from the counsel for the parties, the issue to be decided is whether this appeal is meritorious . .• -~ First of all I would like to bring to the attention of the parties' counsel that the trial court though discussed the respondent's caution statement the same did not have . any bearing in the case against the respondent. This is so because the respondent did not confess to the allegations against him. Actually, the caution statement did not contain the respondent's confession in respect of the allegations: leveled against him. In fact the respondent never admitted the allegations, not 1n the caution statement or in his defence in court. Thus, by the trial court's discussion of the respondent's caution statement was just an academic exercise. And this court, for the sake of knowledge to the parties will discuss the said caution staterr:ent. 5 It is my considered opinion that since the responclent's caution statement yvas in questions and answers mode it was taken in terms of section 57 of the CPA as rightly submitted: by _Mr. Katuli learned State Attorney. Though the

respondent presented himself willingly to the PCCB's Office it does· not signify and in fact there is no evidence to show that. he_ had initiated to write his statement and this is what required under section 58 of the CPA. It says; . ''5. 58 - (1) where a person under restraint informs a :police officer that he wish_e"S to 'write out a statement, the police officer- (a) shall cause hiin to be furnished with any writing materials he requires for writing out the statement, and (b)shall ask hirnr if he had been cautioned as required by paragraph (c) of the section 53/ to se~ out at the commencen;ent of the statement the terms of the caution given to him, so far as _he recalls them. " In the cited case of RAMADHANI SALUM VR (supra) the Court of Appeal said that a caution statement can also be taken under section 57 of the CPA and further • that caution staf.ements are not made exclusively under section 58 of the CPA. Thus, caution statements can be taken under section· 57 of the CPA as a result of answers to questions asked by the investigating officer. Whereas the statement under section 58 is a result of a wholly volunteered and unsolicited statement by the suspect. It follows therefore, that; . although the respondent. presented himself to the PCCB's Office it does not mean that he had volunteered to give his statement for it to have been taken under section 58 of the CPA as it

has been the contention by Mr. Ng'wigulu. 6 Thus, although the trial court erred to hold that the caution statement was not correctly recorded but it does not follow that the- same could have been used to convict the respondent as the learnf;d .State _Attorney contended. · This is so because the respondent did not confess the allegations and his caution statement does not contain any confession to that effect. The first ground of appeal thus succeeds. In the second ground of appeal the; court agrees with the respondent's counsel that the trial court did not err-to accord weight to the respondenf's defence of alibi. To accora weight means to cons.lder the defence although the same did not c@rnply with the law under sect_;on 194 {4) & (5) of the CPA. And in this case the court considered the respondent's defence of aiibi in its discretion as provided under subsection (6) of section 194 of the CPA. However, it was found that the alibi was doubtful. And as rightly submitted by. Mr. Ng'wigulu advocate the import of the defence of alibi is to raise reasonable doubt in the prosecution case. In this case although the alibi was found doubtful but this alone could not ·have strengt~ened the prosecution case. Since the conviction should not be based on the weakness of the defence but on · the strength of an affirmative prosecution ;case (Also see HABIB VR [1971] H.C.D No. 71). '\ . i ~ In

the case at hand therefore the prosecution tjid not prove that the respondent had solicited and received _bribe f~om the complainants. This is so because it was not "· proved that the respondent was an agent of the police who had booked the cattle theft suspects. There is no any evidence to show that the respondent had any link with the police so that he could have anything to say as far as the suspects case was concerned. The respondent was not at the police station when the suspects were booked or when they were released. 1\nd ir the police had released the suspects to go home for settlement of the matter, how did they agree to be cornered by the respondent who was not a police officer? And why didn't the complainant's retu'.n :~o complain to the 7 . r, police after the respondent solicited bribe fr9m them. Or why didn't they report to .the PCCB's Office that the respondent had solicited· bribe from them so that he could be trapped? And· they had time to do so since they said the respondent had given them . . . time to look for the money. All these questions create doubt on the prosecution case which was rightly resolved in favour of t~e respondent. And the respondent sufficiently cross-examine,d the complainants contrary to what Mr. Katuli had contended. I~ fact the complainants could as well been suspe~ts for giving bribe as provided under section 15 (1) {b) of Act 11/2007.

It is surprising that the PCC~iOfficials decided to pursue the respondent alone and left the complainants free. !' -Jhe law recognize the solicitor or giver of bribe to be offenders. In this case the two parties ought to have qeen charged with the offence under section 15 (1) (a) & (b) of Act No. 11/2007 since the complainants filed a complaint afterwards, it was an · afterthought which after all was not proved. Finally, though the appellant has succeeded in the first ground of appeal in relation to the mode the caution statement was taken, but he has failed to show that the prosecution tase had been proved ag;ainst the res,pondent. The appeal thus is partly allowed. IJ.• is ordered accordingly.

JUDGE 21/11/2012 8 Court: Right of Appeal fully explained. c ..·~:.:]flK~)

JUDGE 21/11/2012 Judgment delivere~:f 1in court today in the presence of Ms. Seif Learned State Attorney for the appellant. The respondent and his Advocate Mr. Nkhangaa Learned Counsel for Mr. Ng'wigulu learned_ Counsel° also pre~ent. Ms. Komba court clerk present . .• I 9 r .I