19830829 TZHC Mbeya1 1

(. * IN THE HIGH COURT OF TZ4NIA AT kBiiY. APPELLATE JURISDICTION (Iv1YA RLGI STY) .CRI1INAL APPUAL. NO.. 51 OF 1983 ORIGINAL CRIEINAL CSE.NO. 175 OP 1981 OP THE DISTRICT COURT OP 1k, E1YA DISTRICT AT MBEYA Befere: W.N.B. Kapaya, Esq., Resident 1ag.Lstra1pe GODFREY AUGUSTINO IVLATEMA ... ...............APPMLLANT (Original Accused) S Versus S J THE REPUBLIC ... RESPONJ)ENT - . (Original Piosecutor) CHARGE: 1 - 4th Counts: Being in possession of property corruptly acquired c/s. 9 (I) ,f the Prevention of Ooiptio..Act 1971. 5th Count : Giving a false acc6unt, c/s. 8 (2) of the Prevention ...... of corruption Act No.16 of 1971. JUDG- M-.ENT .IVIUNYERA,J. The appellant was charged with five counts undr the :Prevention of COrruptlbri Act; fbiir.under S. 9 (1) and one under Section 8 (2). It was stated that he .was a Controller witI the .R.T.0 Mbeya, That on or about 9/9/80 he was found with a Peugeot .403 car valued Shs.35,000/= suspected to have been corruptly obtained. On or about 10/9/80 he was found wish cash Shs.Lt5,728/50in his aócount, on the same day he was found with Shs.40,000/= in his account and between the months of March and June hewàs in possession of s43,O00J=Jn his account. All these were suspectec. to have been coriuptly obtained. In last count it was charged that he gave a false account as how he came by Shs.40,000/=. In his defence he gave a lengthy expanation how he got the property in despute. Finally the trial magistrate found the appellant iot guilty as charged. Instead heconvicted liimof being in possession of property suspected c/s. 312 of the Penal Code. He sentenced him to concurrent jail terms, the highest being two years in the second count. He acquitted him of the 5th count altogether. The appellant apealed. There is only One important ground of appeaL. That the trial magistrate erred in law, hai'ing acquitted the appellant of the offences charged, could not have convicted him of the alternative offence under 8.312 agnat which he had no opportunity to ?ffer a defence.. Re referred this coxrt to a demtptori Ir (2) in DOSA v. H., Mbeya Cr.hpp. No.55/1980, in which Mroso, J., held that it was impossible to apply alternative verdict nile and convict under S..312 of Penal Code where the original charge was laid under the Prevention of Corruption Act. That the accused had to be warned that he could be convicted under that section. As he was not warned the learned Judge held that the accused had no opportunity to defend himself against that alternative offence. He al1wed the appeal. In this case the appellant was charged under Prevention of Corruption Act and oonvicted under S.312 of the Penal Code, The Counsel argued, according to the decision quoted above, the alternative conviction was improper. I have no intention ..to go into this argument. The appeal is to succeed on other grounds. The learned trial magistrate specifically found that the prosecution had failed to establish that the appellant corruptly acquired the property charged in the four counts and acquitted him of those charges, he found that there was evidence that the appellant acquired those same property unlawfully and convicted him under S,312. This section has two limbs. In the first limb it is where the accused is found with proper.J suspected to have been stolen and the second lImb where is found wi±'i property suspected of having been unlawfully acquired. The appellant wi.not convicted of the first limb but the second. That he was in possessin of property aspeote.d of having been unlawfully adquired. Now subsection'(2) of Section 312 provides "For the purpose of this section 'unlawfully acquired' means acquired in the circumstances which constitute a criminal offence under any written lavr ........,..' The trial magistrate did not make a finding what wribten law the appellant was suspected to have contravened in acquiring the Froperty. Theè' 'could no evidence in that respect. I allow the appeal, quash the appellant's conviction which the republic did not support, set çide the sentence and order his release. Order of forfeiture is set aside, At Mbeya, F. A. MDNYiRA, 29th August, 1983 JUDGE. I certify that this is a true, copy of the orignal. DIRICT RGISiRAB, 1 '•"