19780622 TZHC Dodoma2

'l/I/L Affli/ IN THE HIGH 'COURT OF TANZjNIA ...: , ApQPOMA : ':' •. ' Ai:'FLLLATE JURISDICTION CRIMINt.APEALo..7 'of 1978' (ORIGINAL CRI?IN1\L CASE No.,251 bF 1917 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA) ELIEZA MUYOWELWA • o •,. :- o APPELLANT versus THE REPUBLIC .'. . RESPONDENT CHARGE: lst't: Atempted to obtain goods by false pr,tencs c/s 381 of the Penal Code - 2nd ct: Corrupt tranaton c/s 3(2)'& 3(a)(III) of the Preventationof corruption Act 16/71 J U D G M E N T' CHflLTA, J. Bef ore Dodurna District Court the a)1).1laflt wa scharged with arid convicted of 'the o.:fences of atterrtptinq to obtain goods... by false 'pretences c/s's 302 and 381 of the P,ea1 Code, arid corrup,t transaction with an gent c/s 3(2) of the Prevention of Corruption Act, 1971. He •was'sdñten'êd to twelve (12) months imprisonment in respct of the •first count, and to three (3) years imprisonment :. in respect of the second count,, which sentences were ordered to run concurrently0 Be'hbw appeals0 In brief, the proecution's evidence was that sometima1 in March, 1977, one tliasenya Eliakwni d/o Nkya (Pw.4) used to run some business in her c .. name usually shortened to read, "E.E.Nkya. . On' 25th March, 1977, a hrother'of w04, one William s/o Pandaeli went'.to the sales office bf Dodoma Regional Trading Company, hereinafter referred to by: its acronym R. T. C. . LU uuy a oag or sugar on nenajr or 't'w'i. PwA paid shs. 231/50, the pric€ of a bag of sugar, to R.T.C. As was the procedure, the ROTOC. 5 -sai's office issued 'a 'cash sale recei1t for that amount and handed i to. Pw.3, f of Pw.3 to take it to ROTOCO 's food go-down where, on presentation of that cash sale receipt, Pw.3 would be given a bag of ,sugar That cash sale receipt was in the name of E.E.Nkya. Instead of going to collect the bag of sugar himself, pw.3 instructed one IflDaruku (Pw.5) who'owns a cart to go to the go-down and collect the sugar for Pw,3. Pw.3 then handedt] i*,ca; h 'a 1 e receipt to Pw.5 on the strength of which Pw.S was tb-.' gven"the bag of sugar. ..: -• . . . .0 . 00 on his way to the go-down, however, Pw05 lost the receipt, and so could not collect th sugar0 : 0flsth" the loss of the cash sale receipt, Pw05. reported the matter to Pw.3, and the two of them reported the-matterto employees of R.T.C. at tb', go-down who were one Daniel (Pw.2) and one Hassani (Pw.1). Pw.1 and Pw.2 recorded the numb •r of the ca5h sale receipt. 2 - * 4" Between 10000 a.m, and 11.00 a.m. the fbllwig day, the ael1ant went to th ROTOC, 'S food o-down with the cash sale receipt in question0 On arrWvalt.hre,, he produced that cash sale receipt to Pw.1 in the presence of Pw.2 and said that h hxi corne to collect his hag of sugar for which h5 , h -id. paid the prwious clay 0 ?w.1 and Pw02ident.fied the cash sale reced4itas the one, woich had been r ported 1ot by Pw 3 th prLvous day When Pw.1 -'id Pw.2 interrget d him, th ippellant said that the ch sell rceipt was his, that he was E.E. Nkya, and that hP wañ -Eed to collect his bag of sugar0 When pressed further to tell them the truth, the apellant insist.d that No was.sinçere. Thereafter Pw.1 told the:: :appeLlant to wait and then rang U the police0 While Pw.1 and Pw.2 were waitnq for thcP 'Police to arrive, the af pellant b carnL ap rehensive and start-'d trembling. He had by th ri, no doubt, h corn wise. , to t 1 j fact that his scheie had fpullLn through. He then gave to Pw.1 shs. 10/- and pihaded that they should let him go. Pw.1 received th mony, and when the polic- arrived, h2 çja,e that moneyto the police.... The appeIlantwatr;.arreste-d and was charged with the offences set out above 0 The 1 earned tria1 . qsident..magistrate carefully analysed the evidence and found as a fact that the aelant did in fact ulter the cash sale receipt to Pw.1 and Pw.2; that he representec1, himself to those witn S5( s to be the peron named in th cash sell rc-' 1t. i.t.. E.E Nkya, and that h d'manded to bc , given h i s ba of ugar on th strongth of that cash sal-' rcei 1 't. The learned rcsident magistrate further found as a tact that th appel1nt gave shs. 10/- to Pw.,1 so that th- latter could allow him to 9 o0 The 1 arned m3gistratc had:no dirficultyin rj cting the ia lant's defance which was that th cash sale r ccipt was givri to him by some children and that hO went to the go.-down,in ord€r to allect sugar on7 the strength of it. The learned magistrate then convicted him as cnargcd After carefully prusin the vidence on recqrd,.:I am firthiy of the view,thet the l'arned resident magistrate's findiOgs of fa&t cannot be. impugned. They were fully supported by the vdence be,f ore him6 Th qustions 1 ft for consideration are qu stions ef 1aw0 Thafist question to he determined is whether the facts as foüjd by the learn-'d r sident meqist. ate <-'stb1ished th of ence of atLemL1nJ to obtain goods by fa s prct ncCS Now, the off ncc. of attempt is committed when a person intending to commit an offence begins to put his ntentipn, into execution by means adapted to the fulfilment •9f that intention, and manifests his intention bysome overt act, but does not fulfil his intention to such an :Xteflt as to commit the full...offence. (see section 380 of the Penal Codc). So in order to establish the ofence of attempt., the prosecution must prove; intention by.thU. accused to commit the prticuIar ofOnce; ..... manifestation of that intention by embarking . up,on it by me an s adapted to its fu if i 1 men t ... ..:by way of a overt ct; Ond proof of the overt act. (See Andrew .vrity v. Republic, (1973) L.R.T. n. 92) 3 . In the J hsntase, the, intention of t,he: aellant was demonstrably' cear:,'he'intende.d to obtain the, bag: of sugar on.' the strength of the cah s1e redeipt. As a manifest ation Of his intention, the a. pellant uttered the ca5h sale receipt to.. Pw.1 and Pw.2 and explicitly told the two witnesses that h wanted to collect his bg c sblgar for which he h d paid the previous day. The teans he 'adapted' .fbi the fulfilment of his' intention w re equally clearly proved. He took the cash sale receipt to the jo-down when he knew that that cash sale receipt WCS not his own and then 'derhandd't6'be given the hag of sugar 'on the sttth of a desh sale which he kneW w'at his, and proceeded to utter it to Pw.,1 and w,2. The overt acts of th a P€ ilarit are to be found in his entir,L, conduct.' His takinj the cash sale receipt to 'the go-down his claitn that th cash sale receipt was his, his cluim that he was E.E.Nkya and t iat h had paid f or th h -iq of sugar th prvious e 'r1d his ''xp1icit dem and for the b q of sugar were all overt ..ectdated to thefu1filth,rt of his intention to obtain the bag of sügrby falsd:prètences'. he In the circumstances, thr4fOre,s in he sarr position as if'he had forged thc cash sale 'rece'it and then presented it to Pw.1 and Pw,2 for the two wi€nesss to give him the bag of sugar on th. strength of it. AS was held by this C9ur,t in the 1 c;sa of Alley A11i nd 'Mother v. Republic (1973)L.R.n. 43, where a p':rson presents ford invoics to the 'officer responsible for issuing goods on' th. strngth o invoices 'presented', that amounts to an attempt. to obta,ih goods by false pretenc(s nd not mere preparation to do so. For th forgoing rasons, I m satisfied that there is no merit in the appeal ,:äinst"the 6ohViction in respect bf the first coUnt. I will now turn to the second count. In a chage of corrupt transaction, with an agent, the prosecution must prove: (1) that th' accused orruptly gave, promised to give or offeredi' advarjtae"to an agent and;:. (2) that the giving or promisd or offer of the 4.anta w an inducement to the agent for doing or forbearing to do, or for having borhorne to do, ;anything in relation to the -tOnt's principal's affairs or businss In the intant.case, there is no doubt that the app'eIlant gave an' advantacje to Pw.1 ..-s an inducement t'c'Pw.i to fQr'ber 4ktaih1ng him, and I am satisfied that in giving the 'mQney to . PW.1 the appellant acted corruptly in the sense that, h': wanted to pervert Pw.l's fidelity in the discharge of Pw'.i's duty. The shs.'lO/- th.':reforE?, was an Odvantago corruptly given to Pw.1. ''h qu.stion that: raises 'some difficulty,. however,', :5 whether Pw.1 was an '!'agent" wthin the maning of, that term in the Prevention of Corruption zYt'. 'Agent" defined in section 2 of th Prevention of Corruption Act as including"any p'rson in the e.mp1omn't of, or acting 'for, 'another, ...." In his capacity as a clerk of R.T.C. pw,1 wasan agent of R.T.C. AS auc' agent he had the duty' of prbtectin the rests of employer and thos:of his erñployers customers. 1 had discharg€d that duty wh n he rfused to issue thL bag sugar to th akp. 11 ant. (' - 4 - 'ft Howver, PW.1'S subsequent action,-namely, detaining the aallant and rineinc up the police, was not, strictly speaking in discharge of his dutiis as an agent of R.T.C. In doing so, in my view, Pw01 was mare1y.actingas a ze. 1 lous and piLiblc-spirited' citizen Now, is it rasonah1 to say , that by rging up the police th witn-ss had thr-by bcorn€. iin agent of th- policwithin the meaning of that term in the Act?. That reasoning. sojnds attractive, but I am 'not persuaded that it would he within the langu'age of the Act to hold sb. I am relnforcLd in th1s?vew by two decisions of this court In the case of Isango vR. (1968)E.A. 140 1 ' the appellant whoas a ten-cell leader, war charged under section (1) of th relic 1ed Pr€ vention of Corruption Ordin inca, which is in pari materia with section 3(1) of the •Prvention of Corruption Act He..wath. convicted of corruption for having taken a bribe "for forbearing to arrest" th- complainant ona charge of cattle theft On appeal, Georges, C.J. (as he then was) allowed the appeal hplding that the duties of a ten-house cell lc ader were in relation to th Party and that in co-op rating with th policE, he would b doing that which any other good citizen would do. His Lordhip addd, at pige 141: "Further, as a good,citizen andParty leader, he will cd-operate withthepolice in ensuring that law and order are maintained and that offenders are apprehended and charged before the courts He will m'ake avai'i'jble such inform.ition as he has so that proper evidence can b€ forth-coming to secure a conviction whtre possible0. In th performanc of these responsibiliti_s, he is no morac-t.inq in relation to his principal's business than woi4d be any other citizen so adting, for it is th duty of every citizen.to co-operate with the foces of law .and order ... Where 'a sitution arises, which requires the detention of a person, he can do..no more than,, any citizen could do pending the arrival of the police.." His Lordship cc rdingly hld that the appellant had not acted in relation to his principal's businss when he thr€aten d to ann st the complainan.. In the asc of Mwit3 V. R. (1971) H.C.D. n.34 the appellant was convicted Of the offence of corrupt transactions wjth agents c/sw 3(2) of the repealed Prevention of Corruption Ordinance, whicn is 'ineni nitor1a with section 3(2) of the Prevention of Corruption Act. The 'facts: were that the appellant gave shs. 20/- to 'the complainant, one ElLis. Kishiwa, Who was a merber of the TANU Youth League, as an inducement to the .Said ElLis Kishiwa'to forbear prosecuting the a pelIant fo'"theoffence of buying cattle outside a public..auction 0 On appeal, Kisanga, Ag.J.(as he then was) followed the principle laid- downin .Isango's case (supra) and said:- "It follows that Eli K*.i'iwa, b ing a rn rnbcr of that section (TANU Youth League), was mccssanily a. imber'of TANU and therefore, as the Chidf Justice said, he' waB an agent of TANU and his dutis would be.in relation to TANU. . Hewas entitled to report the off-,nce to the folice or to bring a privat pros cuLion against the apptllant But in so doing he ca -inot bE said to b acting in rlaton to TA1tJ's affairs or business any more than would be anyothoriti so acting because repo±tinq an offence to' the poli or instituting a private prosecution are duties an 4 - 5, - 40 "right which are accorded to everyone in the society he hea mrrbP of TANUor not. , Thus the money which was ofered' toElias Kishiwa so that he should not prosecute the e.peIl.at could not be regarded as. an inducement to him to forb-'ar doing an act in relation to his principals (TANU'S) affairs or bisinss b cause as stated earlier that right toprosecué or th' duty to report an offence are rights and obligations which everyone in the."community has in relation to the society as a whole- " I fully, and .e.spectfully) subscribe to that Principle and reasoning. It may possibl' sturtl'e th' iynan and ph.ap.s raise the eye—brows of commohsense that a man may corruptly 'offer an advantage to another and yet not b2 guilty of the offence of corruption merely because the reationship of agent and principal does not exist. . But that is the statutory law, and penal statutes must be construed strictly. ... On the facts of the present case, and in line with decisions of this coUrt .1 hold, as stated.earlir,, that in detaining the appellant and ringing up the police, PJ.I Was not acting in.- i.., relation to his principal's (R.T.C.'s) affairs or husin.?ss but imrely as a zealous and public—spirited citize, an obligation and duty which every citizen has in relation to the society. For the foregoing rea;ons,.thconyiction in respect of the second count cannot he sustained. .,'•. - In the result the appeal against the conviction in respect of the first count is hereby dismissed; bit that in respect of the second count is allowed. The conviction on the second count is accordingly quash:.-d and the sentence of three years imprisonment in resp ct th'reto is set aside. Finaly, I turn to the question of sentence in respect of the first count. The offence of obtaining money by false pretenceS c/s 302 of the Penal Code where the person from whom the goods are obtained is a specified authority or where the goods so obtained are the property of a specified authority is a scheduled offence uncer the First Schddul t' the Minimum Sentences Act, 1972. As the offence of attempt to commit any of the offences shown in the First Schedule is itself a scheduled offence, it follows that if in the instant case the property which the appellant attempted to obtain was the property of a specified authority, then it must follow that the appellant committed a scheduled offence. The question for consideration, therefore, is whether Dodoma Regional Trading Company is a "specified authority" within the meaning of that expression in the Minimum Sentences Act, 1972. I have no difficulty in holding that Dodoma Regional Trading Company is a "specified authority"..Dodoma Regional Trading Company was dreated by the Board of Internal Trade (Amendment of Specified Companies Schedule) Order, 1974(See G.N.80 of 1974), made under section 2 of the Board of Internal Trade Act, 1973. By the provisions of the Board of Internal Trade Act, 1973, all Regional Trading Compani-s (including Dodoma Regional Trading Company) are wholly owned by the Governnent. Ipso facto, Dodoma Regional Trading Company is a "specified, authority" within the meaning expression in the Minimum Sentences Act, 1972. hat being so, and with respect to the learned resident te, the sentence of twelve months imprisonment WCS illegal fended the provisions of the Minimum Sentences Act, 1972.