20190211 TZHC Mwanza

~·~t 1-: 't,. .~-: ~r ~ IN THE HiGH COURT Of TANZANIA IN THE DISTRICT REGISTRY AfMWANZA CRIMINAL APPEAL NO. 374 OF 2017 HENRY NTINDA MATATA,. ········································••H••····APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT . JUDGME-NT l l/02/2019 G. J. Mdemu, J; In the Resident Magistrate's Court of Mwanza ,the Appellant who was ihe S~.conq Accused together with Justine Bilindaya Lukaza and Hemed Hamad Hemed ,the then First and . Third Accused persons respectively were jointly and together charged with three counts ,to wit; . abuse of position contrary to section 31 _of the Prevention and Combating of Corruption Act,No. l l of 2007 and conspiracy to commit an offence co_ntrary to section 32 of. the same Act. The latter third count was for all accused persons whereas the first count was for the then First Accused person and the second count was booked for the Appellant and the then Second accused person. At the conclusion of trial, the learned trial Magistrate acquitted the then First and Third Accused. persons. The Appellant was found guilty and accordingly convicted and sentenced to a fine of 200,000/= Tshs. or to nine (9) months imprisonmE;;nt in default thereof for the offence of abuse of position .This was on 181h of August 2017. __J _ According to the charge arid facts as presented , the Appellant being a Mayor of lle·mela Municipal Council did abuse his position by signing and subsequent award of contract to one Abdalah Hassan without . approval of the Tender Board. The contract was for levy collection . . at Buzurugo ·Bus Stand. This act, as stated in the· facts, conferred advantage to the said Abdallah Hasson hence violating the provisions of section 35(1 )(b) of the Public-Procurement Act,No.7 of 2011. To conclusion of trial, in which the prosecution summoned eight (8) witnesses and the defence called 4- witnesses, the Appeliant was found guilty" of the offence of abuse of position and was accordingly convicted and sentenced. He was aggrieved by that decision, hence the present appeal on the following grounds: I. 'That the trial Magistrate erred in law and fact in convicting the Appellant. on the basis of exh. Pl 0, a document wrongly tendered and admitted in-evidence which document was inadmissible. 2. That hod the trial Magistrate properly appreciated the law, would have found that the Appellant in signing exh.P IO at the time he signed, the same was authorized by the law 3. That the conviction of the Appellant on the second co·unt was not proved beyond reasonable doubt. 4. That as a whole, decision of the court is against the evidence on record and law. On the 11 1n of December 2018, when this appeal came for hearing, the Appellant was represented by Masoud Mwanaupanga ,learned 2 \ Advocate whereas the Respondent ··Republic had the · service of· Ms Yasinta Lazaro, learned State Attorney. · Submitting in the four grounds of_ appeal in support of the appeal, Mr. Masoud obsisrved in ground one that_, exhibit P1O,the contract, has two anomalies that, whereas the title refers to the c.ontract for levy collection at Buzuruga Bus Stand, its contents thereof relate to levy collection at Kirumba Mwaloni. To Mr. Masoud, this uncertainties in the contract make it void thus contravening the provisions of sections 29 of the Law of Contract Act, cap.45. He added that, the contract is not initialed or countersigned in every page. In the second ground of appeal, Mr. Masoud submitted that in terms of rule 11 (3) (c) made under section 42( l )of the Local Government (Town Authorities)'Act,cap.288,the Appellant Mayor signed the contract in his official capacity as a Mayor. He added that, i•t was not proper fo"r the Deputy Mayor to sign the contract as his office tenure had already · expired. He was not in office. He observed that the Trial Magistrate therefore erred in holding that, as the Appellant was absent, the Deputy_ Mayor should have signed the contract. With regard to -the third and fourth grounds of appeal, it was (v\r. Masoud's submission that the· offence of abuse of position has not been. proved. He added that, there is nothing like adva_ntage or benefit that· the Appellant accrued in the said transaction. He added further in respect of exhibit P. l O that, PW l was not a proper person to tender the said exhibit. It was his observation fur_ther that the said contract {P. l 0) contravened the provisions of section 47 ( l) of the Stamp Duty Act, 3 \ cap.81 for want of a stamp duiy. Under those premjses, he prayed that this appeal be allowed. Ms. · Yasinta Lazaro, learned State Attorney for the Respondent Republic supported the appeal. It w9s her observation that, th~re are two issues to consider regarding exhibit P. l 0, the signed contract. One is . . admissibility of the contract and two its evidential value. On admissibility, she was of the view that, the said contract was properly tendered and admitted in court by PW8 and not PW 1 as submitted by the Appellant's counsel. On the evidentiaf value, it was her submission that there is uncertainty in the contract on its contents as to whether it is for levy collection at Kirumba Mwaloni or Buzuruga Bus Stand. To her, this affect the weight of the contract by making it uncertain and therefore void. Regarding ground two of the appeal, Ms Yasinta submitted that the Appellant is held responsible on his official ·capacity by signing the contract. She however observed that, the Appellant signed following advice from the ·technical personnel after the latter had signed and endorsed it. Under the circumstances, she could not observe any element of abuse of position. On the third and fourth grounds of appeal, Ms Yasinta made an observation that PW8 did advice the Appellant Mayor and endorsed the contract before the latter signed it. She added ·that, there is no evidence on record as to what loss got occasioned a.nd how the office or position for that matter got abused. She concluded that the offence of abuse of position has not ~een proved. On those premises, she co_uld not supp.ort the conviction and prayed the appeal be allowed. j ...,__4 ------ ~ \\ In the present appeal, it is- not disputed that the Appellant be.ing a"· Mayor to llemela Municipal Council, signed a contract (exhibit P. l Q) by virtue of his position· and that the contract was for levy collection. It is equally not disputed that exhibit P.10 is uncertain as to whether the· contract · was for levy collection · at Nya_kato s·us Stand or Kirumba · Mwaloni.. It is further not· in question thctt there is· no evidence from the prosecution that the tenure of office for the Deputy Mayor (PW3) was still existing for him to sign the contract in the position of the Appellant. The issue at hand is whether by signir1g that contract, the ·Appellant· abused his position. It is important to determine first as to what constitutes abuse of position as constituted in section 31 of the Prevention and Combating of Corruption Act,2007 .It is provided in the section as follows; Any· person who intentionally abuses his · position in the performance of failure to perform on act in violation of the law, in the discharge of: his functions or use of position for the purpose of obtaining an undue advantage for himself or for another person or entity commits an offence and shall be liable on conviction to a fine not exceeding five million shillings or to ·imprisonment not exceeding three years or to both. In the controversy', looking at the laid down legal principles, an understanding as to· what amounts to abuse is relevant. In Black's Law Dictionary,8 th edition at page 29,abuse is defined as a departure from legal or reasonable use. What therefore calls for determination in proving the offence of abuse of position is whether the Appellant Mayor departeq from any legal or reasonable use of his position as stipulated in the Act. Taking from the disputed facts,· and also as submitted by the parties, the 5 Appeiidnt /V1ayor signed the contract. in his capacity as a Mayor. The prose_cution and the trial court, going by their .conceived understanding, the fact that physical presence of the Appellant was not secured and as the contract signing got delayed, then these constitutes abuse of position. More so, the thinking revolved around presence -of a Deputy· Mayor (PW . 3) who was to sign the contract instead. In this latter; the two Counsels· had an observation, which I agree, that the Deputy Mayor (PW3) could not have signed the contract as his presence in office legally has not been established by the prosecution evidence. As observed by the two counsels, the signi.ng was preceded by technical analysis, evoluation and advise from the technical personnel before the contract got submitted to the Appellant for signing. Under such premises, I do not see any intentional act or failure to disc~arge his function as coached in section 31 of the Prevention and Combating of Corruption Act, 2007. I further do not see, as defined in the Black's Law Dictionary (supra) what act of the Appellant constitutes departure from the laid down legal principles. The evidence on record has not established so. A!I through, t~e Appellant acte_d on advice of the technical personnel .ln this, the trial Magistrate at page 11 of his judgment made the following observation: The evidence of PW6, the handwriting expert Mr. Christians Kilendala that, the signatures on the document exhibit P. l 0, are of the First and Second accused, and PW8 testified that he signed on exhibit P. 10. According to the First Accused person, he first called the PMU Unit including .PWB Municipal Solicitor 6 ond_he was a·d.vised to sign on.the.document, and_he actually signed on the dqcument. (:.....:.. \. The learned trial Magistrate, having observed so, he would not-have proceeded to hold the Appellant resp~msible for abuse of positi~m. In a . . nutshell°,. ing_redients of the offence of abuse of position as established_ in · the charging section has not been proved to exist. There is no evid_ence to the effect that in signing the contract, the Appellant Mayor departed from any legal principle and more so ,it is not recorded that he performed his function in violation of any law. l_t ·is on these premises that the present appeal is hereby allowed. Conviction and sentence as met by the trial court is accordingly set aside. It is so ordered. ~-- G. J. Mdemu Judge 11/02/2019 Dated at Mwanza this 11 51 day of February, 2019. 7