19760407 TZHC Tabora

c\f\ ( , IN THE HIGH COtJ' 0 ?! TANZANIA : • •. :: ': , AT TABOPA • . . ::: :. -. . .

APPELLATE

JURISDICTION (Tabora Registry) '(iic) RIMXNAL APPEAL NO 29L OF 1976 ORIGINAL CRIMINAL CASE NO. lAO O' 1975 OF THE DISTRICT COURT OI' SUMBAANGA DISTRICT AT SUMBAWANGA.. 1 3.efore;B. ?..Mhagama, Esq., DJMagjztrate, IGODWIN 2dTE.JE • . . . . . . .. . . . . 14 . ... . . . . • . . . . . . . APPELLANT . . . ,.. ; . (QrigAccused) ................................................ ver5u8

TH REPUBLIC IESPONDENT trig..na1 Pripr) CHARG .x:treifla1Ction c./ (2) and 3 of the Prelention of Corruption Mt. 16 of 1971. . ....

JUDGMENT SISYA, AG. J llnt as The appea w convicted of corrupt transaction by the District Magistrate, Sumbawanga, and he was sentenced to four' years imprisonment. He is now appealing. Evidence was ld at the trial to show that thei appellant was, at the tine of his conviction a messenger employed by the Judiciary Department and he was stationed t Mtowisa Primary Court. Sometime in July, 1974 the appellant accompanied one ISAACK NANDI (pw.i), a Primary Court Magistrate to Filepa for 1 Court Sessions. On 24/7/74 while Mr. Nandi wa sittLng in Court with two assessors, SHABANI NWAKATUNDU (PW.3) an4 ANDREA ILUMBA (Pw.4) hearing a case the appellant who had remained in the office entered the Court room and handed 1 Over a.chit to him, i.e. Mr. Nandi. Mr. Nandi received the chit on which were written the following words, "Mzee, Jinai. 8 ametoa Shs.60/= iii umfikirie. Amenipa, Mtwewe 24/7/74." Translated into English j:t 1s "Sir, (the accused) in Criminal Case No. 8 has paid Shs 60/= so that you may consider him. He has given it.torne". .Ntwewe is the appellants surname. On reading the note Mr. Nandi asked the appellant in a loud voice to hand over the thoney to him. Mr. Nandi's voice, was loud enough so that both assessors and members of the public who sat in court listening o the proceedings one of whom was SflCNICE MWAK!LEBELA (P1 1.5) heard hm. i ?he appejdant rep,lied that

the money was outsied the court room whereupon ?r. Nanch told the appellant to go and fetch the same, The appellant went out and returned with Shs. 60/= in one Shs.2O/= currency note, two Sbs.l0/= c-urrency notes, three Shs. 51= coins nd five Shsl)'- coins, and handed over the same to Mr. Nandi in Court. Thereafter Mr. Nadiri passed over the money to the two assessors who counted the same and found that there were Shs. . - • . . ... '' i . . ,...i..../ 2 . .. • . . . -2- ; •.. )J :T Mr. Nandi then asked, the,ppe.i1ant who had given him the money whereupon th aipé1iaititdi'thé hearing of PW.3 9 and PW..5 replied that he.as.&v by one Daudi Legeza- - mwendo. It so happened thatthe SaidDaudi 8/0 Legezamwendo was in custody wait-ing for, his •judgement in a case in which he was charged with assauit -usirig eictual bodily harm. Nr. Nandi had pipred tø-..cli\e ;*I14 -i.i soon after compleing the heringin the case which was then before him The rei-à; dj' prccedigs in the 1thCh Daudi Legezamwendo was anaccttsedwas Exh."C", and it shows'that Daudi wa fáIndgi±ity was sentenced to a,jne of Shs. D0/-or foiir months imprisonment in default and he was ordered to pay . Shs. 501= corepnsation to the complai- nant . According to.Mr. Nandi, l& told the trial court that he understood the chit whfch inTdentally, was produced as Exh. and'the money*to ztean that he shouldL either acquft DaUdi

Legøzamwendo or give him a ligWt sentence. Daudi who happened to be - sittingii.coixrtawai't'ixti'!i jthgment then was ordered to stand up and'aske'd.if he had given the money to theappeal3ant but Daudidniec The said DaudiLegeza- mwerdd," however, was ript c,illed as witness atth tri'al. 4 4Z4L' ......................... NNaki'j rë 1-th eriJ.- 'riumbexs of the cur'ency notes and the denoiá.at.jons of, tins on the same chit, Exh. "A". Evriontually, thi1a"ttet s reiorted to the Police who then arrested the .appo.iJrntand subseq uent1yarg ch him. -. jj.i* • t - ;;.2 .L.Z_-. • ,..4AH) The appellant who, gave a swoin : 5 tatennt. 1j }j.s defence told the trial Court that pn the inaterial day about 8.30 a.m. while he was in the office eTh5idi Legezamwendo approached him and told him that he hadtbrought some money. The said Daudi went on to tell the appel].nt that on the . prviousyay he had paid Shs. 300= to the Magistrate, Mr. he iprought n extra Shs.6O/=. The appollant .. whereupon Iiaudi replied that h9, 4 appellant, wu1d1never know t. because it was only between himsclf, i.c. Daudi and the Magistrate, Mr. Nandi. On hearing: this the appe:lia1t'tQl& ...Dai to wait for the Magistrate :'anc over .th joney.to( - hivrin person. audi'theh becariW. nWiolent, to him. Ncvrthcless, he i.e.' appellant ask' Daud to tell him what for was the money. This time Daudi rplied that th Magistrate 1

would knew about Criminal Casc two. 8 of 1974a t that stage he, appel)ant, t wrotc down Exh. "-" aid signed in 4 his own name bcause Daudi is illiteratc. Daudi. produced the money and the appellant tock it with him in '..cour.t and, handed,over. 1 the,c.hit,.to the. Magistrate......I.ftér., reading 1the. chit,,the,I.agistrateasked.hiflWhe,re.themOfly was -he produced nt.. , The'Mazistrat,e then - ,asked him 'ht the. mqny/wasfor.whereuppI the appellant ,replied that, he..dicl not - knowS exceptthat Daudihad to:Ld.hirn that it. was, he., ; the, Magist-rate who sent .him,-',Daudi, to.,him,. r i.e.. appellant. .i'. . •_ . . i - -_ • .•. .; r. L : , ,The appe11ant1sq dicldd to ; .thc 4 Magistat' what Dadi had allegedly told him ,about,:t he Shs. 309/ Padd the . Magistrate on .the, previous..evening, all the ,Nistitc_ knew about: CriminaL Case, No.. 8/74..., Adcording to the appellant ,he explained everything to he Magistrate in Court. There-, a,fter,t the Magistrate aked hini 'where' Daudi was and hc pointed 1 him out in court. The 1.I1agistrate became angry with him, appe11nt, and th€n hc asked Daudi i 'f it 'were true that he had given the n'ney to the appellant Daui did not reply. Finally, when Daudi wa& asked a third 1 tijnc ne'twd. The ,Court Assessors asked the appellant why 1he,b'vought th thoney in Court and he replied ?tht it was for fear that Daudi may later allege that.

he ha'd iv'en i.rh' Sh. 6'oo/' Eventually 4•• -..3- he was arrested and charged. n 2O/]2/74 Prosecution was withdrawn against him and he was discharged. Howevr, on 2/6/75 he was rearrested and recharged. In cross-examination theappellant said that he and the Magistrate, Mr Nandi, were not in good terms. He was one year old in service when this incident took place. In answer , to questions put to him by the tri]. Nagistrate the appellant sLd that he knew that the Magistrate would have received a bribe'whàn Daudi told him that he had paid Shs. 300/= to him on the prev1 1 us day. He, appellant, alsoaid that he knew that the Shs. 60/= which he was taking to the ragitrate was a bribe It could not have been a fine because judgment in Daud2's case had not been delivered then. YThe..appëllant exprsed a desire to.q1l. aTwitness. The said witness was served with process but he failed to turn up. Subsequently a warrant for his arrest was issued but to no avail Eventually, after seven adjournments the appellant Closed his case. The learned trial ?'agistrate' in a reasoned judgment was satisfied that the appellant was fully aware what thenoney was for, i.e. for corrupt purposes, and by taking the money to the Ivagistrate the appellant took part in the commission of the offence. He, therefore, found the appellant guilty as charged and convicted him accordingly. In haspetition of appeal the

appellant admits that he handed Over the money to Ir. Nandi but contends that the money ws a fine in Criminal Case No. 8 of 1974. He also contends that the money could not have been a bribe because the case in which Daudi. Legezcmwendo was involved was Criminal Case No. 10 of 1974 and not No. 8 of 1974. Finally, the appellant complains that he had asked the trail Court to sumion Daudi Legezamwendo who would confirm that the hs. 60/= Was the balthice of a fine in Criminal Case No. 8/74 after Shs. 3 001= had already been paid but the trial Magistrate ignored his request. There is overwhelming evidence to show that the appellant did hand; er ; themoney;Shs..60/=, tp.Nr.. Nandi. This was testified bY.PW.1, PW.3,. pW.4 and PW.5 and the appeiiant himself. The question that arises is what was the money f or!. In his defence at the trial the ppellant clearly admitted thart he knew that the money was meant to be a bribe to Mr. Nandi (P1t.l). The appellant now, however,appears to be chan'ging his story. In his pet 5ition of appeal he co n nteds that the money was the balance of a fine in Criminal case . 8 of 1974. Unfortunately, the re cord of proeedin,s c in the said Criminal Case No. 8 of 1974 was iYt produced at the trial. This woula have helped to show whether the çccused art that case was also Daudi Legezamweno. However, on the evidehce on r( ecord I do not think that failure to

produce 0rimitial 'Cash Nc. 8/74 in any way affects the decision in the " I.deed the Criminal Case in which Daudi Legezamweric.o was an accused on a charge of assault causing actual bocily harm is Nc. .0 of 1974 and not No. 8 of 1974. Nevertheless, the chit, which the appellant himself admits to have written tells the lie of his contention that the Shs. 60/= was part ofafine. The chit does not make an'y mention of a'Ciñe. In8ted it talks about the Magistrate considering Daucii by which, in all the circumstànces,Iunderstand to mean th'.t the Magistrate should do Daudi, a fvour. Indeed the chit makes no mention of Daudi Legezamwendo but at the sametime. it is in evidence that it is the appellant who mentioned the name when 'he was questioned by Mr. Nandi. -4. During cross-examination by the learned Public Prosecutor the appellant is recorded'to have said and I quote:- "I wrote criminal Case No. 8 because he told me that his case was No. 8 but in fact his case was No. 10/74' ....." In view of this it is 'surprising that the appellant shoi1d now contend that the Shs. 601= was part' of a fine in Criminal Case No. '& of 1974.' I must say that I do' not find this sort, of conduct on the part of the appellant impressive. . It certainly does not reflect well on his bona fides. In the event it is not surprising that the learned trialagistrate rejected the appellant's defenèe in toto. I

for bne would not blame him, i.e. the trial T'iagistrate for that. As for the 'appellant's complaint that his(Jbfence witness, Daudi Legezamwendo, was n5t summoned I think I have sufficienti), demonstrated earlier in this judgment as to what'became. of the de4'ence witness. It is true Daudi cid not give evidence in the case. At the ,s,ametime 'there is abundant .'ei'd'eñce, that of th appellant him'e1f•inciuded, that when Daudi' was' asked about the money he.,categorico11y'dexied ever giving it to the appellant. This was testified by P'.l, PW.3,'.PW.k;and PW.5 and, as aforesaid by,appellant,hirnself. In the 'circ'uunstances I fail to conceive how Daudi would have changed his ihind and admit at the trial to giving the money to the appellant. On my evaluati9n ofr the evidence, like the learned trial Magistrate, I am satisfied thatthere' is abundant "credible evidence to show that the appellant did hand over the 4 money to the Magistrate, Mr. Nandi, and that he, appellant knew very well; that the money was.rneant 'to be a bribe to 'tièeid Magistrate in order 4 to d,o some favours to Daudi Legezmwendd ,.thowasan •accused person before his court. 'In 'so cthing the ap,llant's.conduct Was putrid, tainted and xiitia ted.""And ,aVtho.ugh the favours sought would, not have peIsonaily benefitted • ,.the appellant but for the part he'played and it terms of "section 22 of the Penal Code,

the appellant.•was, ccrrec't'ly deemed a principal offender. Accordingly I am satisfied that the..coxwiction was proper and soundand.I uphold it. Turning to. .sentence, although the an'ount involved is'' Shs. .601= .(less.than Shs. 100). and the'"appellant'was a first of,fend.er the learned: 'trial Magistrate was cl'early of the view that the circumstance:s oI 'the case were. such, that it 'woi'id" not be just and equitable'to 'impose a sentence lesser than tI' • miirnumas 'presc.rihecl'under'the Minimum 'Sentences.4ct, 1972. ,.Inded, cox'ruption.is a:very.bad thing; it is an evil. The courts will certain1ybe failing.in their duty if they ar'e' not in the forefront in the war against any f6rm of corrupt practices. Itis extremely.distressjng 'that of all people the, appellant, as an employee of the Judiciary should have permitted himself to sink, so' low and engage himself in such sordLd activities. Such instances are detrimental to the rp.u,tation of the .Judiciary.in the eyes of lawabiding citizens and can bring the whole department into disrepute .if"not checked intime and, if, I may be excused.for saying' so, ruthles].y. It is my considered opinion that the saitence of fouryears imprisonment, though harsh,' js. well earned and'will, serve .as a'warniflg to others. 4 . -6- In the fihal result this appeal fails and I dismiss it in its entirety4 The sentence of four years imprisonment which needs confi rmation byi this court is hereby confirmed. Delivered in open court at Tabora this 7th April, 1976. Tabora, H. E. D. S1SYA, 7th April, 1976 AG. JUDGE. Mr. Teemha for Republic. Appel1nt - absent and unrepresented. I certify that this is the true copy of the original. '-- DISTRICT REGISTRAR

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