20100425 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL No. 70 of 2009 JAMILA ABDULHAMID NZOTA ............................ . APPELLANT

VERSUS THE REPUBLIC ...................................................... RESPONDENT [Appeal originating from the Court of Resident Magistrate of Dar es Salaam, KISUTU, from the Criminal Case No. 1973 of 2007]

JUDGEMENT MUSHI, E. M. E. (J) On 6/12/2007, the Appellant, JAMILA ABDULHAMID NZOTA, a Principal District Magistrate(PDM), 54 years, appeared before the Court of Resident Magistrate, Dar es Salaam, at Kisutu, charged with four ( 4) counts under the provisions of section lS(l)(a) of the Prevention and Combating of corruption Act (PCCB, Act) No. 12 of 2007. Two of the charges were in respect of corruptly soliciting bribe, whereas the other two were those of corruptly receiving an advantage. The Appellant is a Judicial Officer, and amongst her duties included, the hearing and determining of, both Civil and Criminal Cases assigned to her. Between the month of May, 2007 and December, 2007, the Appellant was handling a Civil . ,. . \'~ t:t \~1\ ~~ Case No. 33 of 2007, whose parties were Sital Singh Bhoga (Plaintiff) vs. Amanarth Gupta t/a Amanarth Enterprises (Respondent). It was alleged (through the PCCB) that during the course of hearing of the said Civil Case, the Appellant, on two different occasions, corruptly solicited Tsh 5,000,000 and Tsh 4,000,000/= and corruptly received Tsh. 1,000,000/= and Tsh. 700,000 / =, from one RICHARD ELISAFI MOLLEL, who was representing the Respondent (Amanarth Enterprises). It was said that, Richard Elisafi, was employed by the Respondent as a Branch Manager of the respondent's company, based at Arusha. The PCCB alleged that the Appellant corruptly

solicited and received the said monies as an inducement so that the Appellant could make a number of judicial rulings in favour of the respondent. It was alleged that during the course of the proceedings, on 07/08/2007, the Appellant ordered the Respondent to deposit into court the amount of Tsh. 50,000,000/= by way of security for costs, failure of which the Respondent would be arrested and detained in custody, pending the determination of the matter. It was claimed by the PCCB that, having issued the said order, the Appellant, sometime in August, 2007, corruptly solicited Tsh. 5,000,000/= from the said Richard Elisafi, as a consideration that the appellant would not make an order for the arrest of the respondent. The PCCB claimed that, sometime in 2 August, 2007, the Appellant corruptly received Tsh. 1,000,000/= from Richard Elisafi, being part payment of the solicited amount of Tsh. 5,000,000/=. The record of the Civil Case No. 33/2007 indicates that on 27/8/2007, the Appellant made another ruling, which apparently, again this time, was not in favour of the Respondent. The order was to the effect that the Plaintiff/Applicant was allowed to collect some scrap metal (the subject matter in dispute), which was being generated by TANESCO, at Mwanza depot. Certainly, this ruling displeased the Respondent. The PCCB further alleged that, on 29/11/2007, the Appellant made yet another

soliciting, of Tsh. 4,000,000/=, to the same Richard Elisafi (being a continuation of the previous solicitation of Tsh. 5,000,000/= ). It was claimed that the motive for the amount this time was aimed at inducing the appellant to make an order for setting-aside the ruling made on 27/08/2007. The PCCB further alleged that, the said Richard complained to the PCCB about the Appellant's constant demands; hence a trap was set-up, which led to the arrest of the Appellant, on 04/12/2007, at Slipway Hotel, Dar es Salaam, The Appellant was caught ready-handed, after corruptly receiving Tsh. 700,000/=, from Richard, the amount being part payment of the Tsh. 4,000,000/=, solicited earlier on. After the arrest, PCCB prepared the relevant charges. 3 ,. The appellant pleaded not guilty to all four counts. A total of nine (9) prosecution witness testified against the appellant. The appellant gave a sworn defence, categorically denying any knowledge of the alleged corrupt transactions leveled against her. She denied to have ever known the said Richard Elisafi Molle!, before the alleged Slipway Hotel incident of 4/12/2007. The Appellant claimed not to have solicited any money from Richard; she also denied to have ever received any money from him either. After a full trial, however, the Honorable trial Resident Magistrate was not convinced with the Appellant's defence. He eventually found the

appellant guilty of the four charges, and accordingly convicted her, and sentenced the appellant to an imprisonment terms of three (3) years each (in respect of counts No. 1, 2 and 4), and to a term of two years, for the 3rd count. The imprisonment terms, however, were ordered to run concurrently. The Appellant, certainly, was aggrieved by the decision of the Subordinate Court, and has, therefore, appealed to this court, mainly on six (6) grounds, as summarized hereunder:- (1) That the Hon. trial Resident Magistrate erred, both in law and in fact, in holding that the prosecution proved the case against the appellant beyond reasonable doubt. 4 (2) That the Hon. trial Resident Magistrate erred, in law and in fact, in failing to dismiss the allegations against the Appellant having found that the charges were "hopeless", meaning that, the charge sheet was "incurably defective". (3) That the Hon. trial court Magistrate erred, in law and in fact, in holding that the irregularities in the charge sheet did not occasion any failure of justice. (4) That the trial Resident Magistrate erred, both in law and in fact, in holding that PW.3 gave money (bride) to the appellant and that Appellant was continuously demanding ·for the balance after receiving part payment. (5) · That the trial Magistrate erred, in law and in fact, in holdir:ig that the Appellant corruptly received Tsh.

1,000,000/= (sometime in August, 2007) and Tsh. 700,000/= (on 4/12/2007), for the purpose of favouring the Respondent in Civil Case No. 33/2007, and (6) That the trial Magistrate erred, in law and in fact, in rejecting the appellant's defence. During the hearing of the Appeal, the Appellant was represented by the learned Defence Counsel, one Mr. M. A. Magafu, from the Malegesi Law Chambers, 5 \j who also represented the Appellant in the Subordinate Court. On the other hand, the Republic was represented by the learned State Attorney, Mr. Maugo. Submitting on behalf of the Appellant, Mr. Magafu vehemently raised a number of errors, purporting to have been committed by the Hon. trial Resident Magistrate, which led him to arriving at a wrongful decision, both in convicting and sentencing the Appellant. Submitting on grounds No. 2 and No. 3, with great eager and zeal, briefly Mr. Magafu argued that the charges which the Appellant was required to plead to were "defective" because they did not state "corrupt transaction by agent." Mr. Magafu contended that the fact that the trial Magistrate held that the charge sheet was "hopeless", it implied that the charges were "incurably defective", connoting the fact that the charges could not even be "cured" by the provisions of section 388 of the Criminal Procedure Act (Cap.

20) R.E.

2002. Mr. Magafu lamented that, that being the position, the Hon. trial Magistrate should have dismissed the charges and accordingly acquitted the appellant. To support his assertions, Mr. Magafu refered to this court the decision in the case of Ahmed Musa Tanker v. R. (1998) T.L.R.

268. Responding to Mr. Magafu's submission on these grounds, Mr. Maugo, the learned State Attorney, argued that the errors appearing on the charge sheet were simply technical ones, which could easily be cured under the provisions of 6 Sect. 388 of criminal procedure act as found so by the trial magistrate himself. Mr. Maugo further asserted that failure to state "corrupt transaction by an agent", did not occasion any injustice to the Appellant, since both the Appellant and her learned defence counsel, all along, were aware of the nature of charges facing the Appellant. Submitting an grounds No. 4 and No. S, Mr. Magafu, passionately, claimed that the prosecution did not produce adequate evidence to establish the fact that the appellant corruptly solicited and received the alleged advantage, beyond the reasonable doubt. Mr. Magafu contended that, apart from the oral evidence given the said Richard Elisafi (PW.3), the evidence given the PCCB Officers was based on "hearsay" and should not have been admitted by the subordinate court. Still on grounds No. 4 and No. 5, Mr. Magafu asserted that no evidence was produced to substantiate the fact that the Appellant ever corruptly solicited Tsh. 5,000,000 and received Tsh. 1,000,000/= (as part payment) from PW.3; neither was it proved that the Appellant corruptly solicited Tsh. 4,000,000/= and received Tsh. 700,000/= (as part payment) on

04/12/2007, at the Slipway Hotel. Still on grounds No. 4 and No. 5, Mr. Magafu contended that the alleged Tsh. 700,000/= was not in fact found in the "handbag" of the Appellant, as testified 7 to by PW.4, PW.5, PW.6, PW.7 and PW.8; otherwise, the PCCB officers would have recorded the amount in the Certificate of Seizure (Exhibit P:1), like the other items found in the handbag of the Appellant after the search. Mr. Magafu supported his contention by referring to this court the decision in the case of Ben Zuberi Mwamba V. R. (1984) T.L.R.

172. Still on grounds No. 4 and No. 5, Mr. Magafu reiterated that the accusations that the Appellant demanded and received money, were madeup by PW.3 to the PCCB. PW.3, insisted Mr. Magafu, was not a party to the Civil Case No. 33 of 2007, and yet the PCCB used PW.3 as a key witness to their case. Mr. Magafu demanded that, PW.3 should have been charged with the offence of corrupting a public official, (sect.16(1) or 17(1) of the PCCB, act) since he admitted to having commited the offence. In the alternative, Mr. Magafu persisted, the subordinate court should have treated PW.3 as an accomplice, thus requiring his evidence to be corroborated. Reacting to Mr. Magafu's submissions on grounds No. 4 and No. 5, Mr. Maugo, the learned State Attorney, argued that the prosecution produced a substantial amount of evidence, both documentary and oral, which established the case against the Appellant beyond the reasonable doubt. He maintained that the evidence of PW.3, PW.5, PW.6 and PW.9; as well as that of the PCCB Officers (PW.1, PW.7 and PW.8), was direct oral evidence, and therefore, it cannot be held to be "hearsay" evidence. 8 Mr. Maugo asserted that, PW.3 was the complainant in this matter that is why he reported the conduct of the Appellant to the PCCB. The PCCB used PW.3 as an "informer", therefore, in that capacity he could not be charged with the offence of corrupt transaction.

Neither, added Mr. Maugo, could PW.3 be treated as an "accomplice", since he was the principal witness to the prosecution, therefore, PW.3's evidence required no corroboration. Mr. Maugo further claimed that, the prosecution produced adequate evidence to prove that the appellant did, in fact, corruptly solicited and received the alleged advantage, and that, when the Appellant was apprehended, the "bait money" was found in her actual possession, in the appellants' handbag, as testified to by PW.1, PW.3, PW.7 and PW.9. Mr. Maugo referred to this court the decision of the Court of Appeal, in the case of Jamil Nassor Abdi V. R. S.M.2 (Criminal Appeal No. 100 of 2205), Zanzibar Registry (Unreported). On Mr. Magafu's assertion that no evidence was adduced by the prosecution to .;:,_\, prove that the Appellant, sometime in August, 2007, corruptly solicited Tsh. 5,000,000/= from PW.3, only to receive Tsh. 1,000,000/= as part payment, Mr. Maugo contended that the testimony of PW.3 was quite explicit on the point. Besides, Mr. Maugo argued, the Hon. trial Magistrate was satisfied that, PW.3, as well as the other prosecution witnesses, were witnesses of truth. Mr. Maugo prayed this court not to fault the findings of the trial magistrate regarding the credibility of the prosecution witnesses. Mr. Maugo referred to this court, yet to 9 another decision of the Court of Appeal, in the case of

Rashid Kaniki V. R. (Criminal Appeal No. 116 of 1993), Arusha Registry (Unreported). Submitting on grounds No. 6 and No.1 Mr. Magafu stated that there was no evidence produced to establish the fact that the Appellant was constantly demanding some more money (bribe) after receiving part payments. Mr. Magafu reiterated that PW.3 was not a party to the proceedings in Civil Case No. 33/2007, and that there is no evidence in the record of the Civil Case No. 33 of 2007, indicating that PW.3 ever appeared on behalf of the Respondent. Mr. Magafu insisted that prior to the incident at the Slipway Hotel, on 04/12/2007, the Appellant did not meet PW.3, neither were they in any communication, otherwise, Mr. Magafu demanded, the PCCB would have produced as exhibits, the Appellant's mobile phone SMS/Calls printouts, as they had so indicated during the preliminary hearing. Still on grounds No. 6 and No. 1, Mr. Magafu emphatically asserted that the whole case (the charges and the evidence) against the appellant was maliciously and deliberately fabricated by PW.3 and the Respondent, together with the PCCB officers, for reasons best known to themselves, in order (in Mr. Magafu's own language) to "fix" the Appellant. Otherwise, again reiterated Mr. Magafu, the prosecution's case was not proved beyond the reasonable doubt. 10 . \t •~ I J .,. In reply to Mr. Magafu's assertions on grounds no. 6 and

No. 1, Mr. Maugo, the learned State Attorney, briefly submitted that there was the evidence of Richard Elisafi (PW.3), that he was acting on behalf of the Respondents in Civil Case No. 33 of 2007, in his capacity as the Respondents' Branch Manager, based at Arusha, and that PW.3's association with the Appellant began sometime in August, 2007. On the claim that the PCCB failed to produce the Appellant's mobile phone SMS/Calls printouts to establish correspondence between the Appellant and PW.3, Mr. Maugo replied that, the production of the mobile printouts into evidence was not necessary in the presence of the direct oral testimony of the prosecution (PCCB) witnesses, who were constantly monitoring the correspondences between PW.3 and the Appellant. On Mr. Magafu's claims that the charges and the evidence against the Appellant were fabricated, Mr. Maugo, simply stated that, the accusations and evidence leveled at the Appellant were neither concocted nor made up, but rather, all the allegations made by PW.3 were true and real, and that the prosecution managed to produce enough proof to establish the case against the Appellant, beyond the reasonable doubt. 11 , . Lastly, Mr. Magafu bitterly complained about the type of sentence imposed on .i':~ •. the Appellant, that of an imprisonment rather than a fine. Mr. Magafu held that the provisions of section 15(2) of the PCCB, Act,

provide for a sentence of fine, as the principal mode of punishment, and not imprisonment. Mr. Magafu protested that the Hon. trial Resident Magistrate erred, in law and in fact, in not considering the issuing of the first option of a fine sentence, or at least, added Mr. Magafu, the Hon. trial Magistrate should have assigned reasons for the imposition of the imprisonment sentence. In response to Mr. Magafu's grievances regarding the type of sentence awarded to the Appellant, Mr. Maugo, submitted that, in assessing the type of sentence and punishment to be inflicted to the Appellant, the Hon. trial Magistrate, was of the view that the offence of corrupt transaction is a very serious one, therefore, it required an appropriate deterrent type of sentence, which is, usually, imprisonment. There are three main issues for determination, including the following:- 1. Whether or not the Appellant in fact corruptly solicited and received advantage (bribe) from the complainant (PW.3).

2. Whether or not the charge sheet is incurrably defective, and 3. Whether or not the sentence issued by the Subordinate Court is a proper one. 12 I will discuss the issues in that order. It is not in dispute that the Appellant is a judicial officer (PDM), hence, a "public official" and an "agent", within the meaning of the PCCB, Act. In the discharge of her judicial duties, it is a fact that one of the Civil Cases the appellant was dealing with, between May, 2007 and December, 2007, was Civil Case No. 33 of 2007. As it has been indicated earlier on, the Appellant made two rulings, whose orders seemed to be adverse (antagonistic) to the interests or expectations of the Respondent. It is quite obvious that the two rulings were the ones which incited the allegations against the Appellant. These accusations were made and reported to the PCCB by one Richard Elisafi Mollel, who testified as PW.3. The PCCB Officer, who was in charge of the investigations, one EMILY HAKIM MWASYOGE (PW.8), testified that on 03/12/2007, PW.3 lodged a complaint against the Appellant to the effect that the Appellant was, and has being demanding money from him in order to assist him in getting a favourable decision in a Civil Case which was before her. PW.8 further testified that PW.3 introduced himself as an employee of the Respondent's Company (M/S Amanarth Enterprises Ltd), which was based in Mombasa

Kenya; with a Branch in Arusha, whereby he (PW.3) was stationed as a Branch Manager. 13 PW.8 also informed the court that having compiled all the necessary details from PW.3, he initiated the necessary action and procedures which eventually led to the arrest of the Appellant. The appropriate charges were prepared and the Appellant was made to appear in court to answer the accusations. In her defence, on oath, both the appellant and her learned counsel, Mr. Magafu, vehemently claimed that that PW.3 was not a party to the civil proceedings in Case No. 33 of 2007, and that PW.3 did not make even a single appearance before her. The appellant stated that the parties in the civil proceedings appeared through their respective learned counsels, one Mr. Mandela appearing for the Plaintiff/Applicant, while Mr. Makunja, represented the Respondent Company. However, added the Appellant, the Respondent, one Mr. Gupta, sometimes used to appear in person. The appellant categorically denied to have known, even meet PW.3 before the incident at the Slipway Hotel, on 04/12/2007. According to the record of the proceedings of the Civil Case No. 33 of 2007, it is a fact the parties were represented by their counsels. It is also a fact that there is no record to the effect that PW.3 ever appeared before the Appellant. Further still, the record indicates that the Respondent, Mr. Gupta, sometimes

appeared in person. Mr. Gupta made such personal appearances on 29/06/2007 and 31/07/2007 and 07/08/2007, when the first ruling against the Respondent (for 14 the deposit of Tsh. 50,000,000/=), was made by the Appellant. After this date, however, the Respondent never made any more personal appearances. In the ruling made on 27/08/2007 (also in disfavour of the Respondent), the Respondent in the civil case was represented by his counsel, Mr. Makunja. It is vital to note that the hearing of the application which resulted into the ruling of 27/08/2007, was made on 24/08/2007. Having said that we may now look into the main grounds of appeal, beginning with the appellants grounds No. 4 and No.

5. First, we need to decide whether or not the Appellant, in fact, corruptly solicited from PW.3, Tsh. 5,000,000/ = (sometime in August, 2007), and then we shall also have to . "''~· decide whether not, in fact, the Appellant corruptly received Tsh. 1,000,000/= from the PW.3 (sometime in august, 2007). Submitting on grounds No. 4 and No.r 5, Mr. Magafu passionately argued that, apart from the testimony of PW.3 (whom was not known to the Appellant before 04/12/2007), the prosecution did not produce any other cogent evidence to substantiate that sometime in August, 2007, the appellant corruptly solicited Tsh. 5,000,000/= from PW.3. As stated earlier, Mr. Magafu contended that the testimony of the PCCB Officers on this allegations, ariiounted to being hearsay evidence, which the subordinate court should not have admitted it. 15 Before I embark upon discussing the issues raised in grounds No. 4 and No. 5, first I have to decide whether or not the Appellant and PW .3 knew each other before the incident of 04/12/2007, at the Slipway Hotel. In her defence (29/01/2009), the Appellant denied to have ever seen or associated with PW.3 prior to the Slipway Hotel incident, 04/12/2007. However, in his testimony (17/11/2009), PW.3 stated that his association with the Appellant commenced on 26/08/2007, when the Appellant first made the first corrupt solicitation of Tsh. 5,000,000/==. PW.3

testified as follows:- ". .. I know the accused in the dock (pointing at the accused). She is one J. Nzota ... came to know her since 26/08/2007. I came to know her .... She was trying a Civil case No. 33 of 2007 ... " On 05/12/2007, the Appellant made a Cautioned Statement to the PCCB. The statement was recorded by the PCCB Officer, PW.8. The Appellant's Cautioned Statement was tendered in court, and was admitted into evidence, and marked Exhibit P.4. In her cautioned statement, the Appellant conceded to have first seen PW.3 prior to the incident of 04/12/2007, at the Slipway Hotel. At page 3 of the statement, it is recorded as follows:- 16 " .... Tarehe 22/11/2007, niliripoti kazini. Kabla sijaenda likizo niliamuru kwamba Mdaiwa aweke "deposit" ya n. Milioni Hamsini iii apate Mamlaka - "locus standi" ya kusikilizwa kwa kuwa Mdaiwa ni "foreigner" wa Mombasa, Kenya .... Niliporejea tarehe 26/11/2007, siku ya kesi, alifika kijana ambaye sio "Kalasinga" na kujitambulisha kuwa amekuja kufuatilia kesi ya 33/2007 ya madai ...... Nilimtuma aende kumuona Karani NKUBA, iii amtafutie hilo faili na alete mbele yangu iii nisikilize malalamiko yake ... Na sikumuona tena hadi jana tarehe 04/12/2007, majira ya saa mbili na nusu asubuhi ... " From what has been demonstrated in the foregoing paragraphs, it is my finding that the Appellant and PW.3 knew each other, prior to the incident

of 04/12/2007, at the Slipway Hotel. The Appellant knew that PW.3 was acting on behalf of the Respondent. The Appellant conceded this fact in her defence, during the cross-examination, when she testified that:- " ... PW.3 was not a party, but he was an agent of the defendant.... " 17 lj " ti The finding, whether or not the Appellant and PW.3 knew each other before the incident of 04/12/2007, at the Slipway Hotel is quite fundamental, since the determination of the subsequent issues depend much on it, as it will be demonstrated in due course. Coming back to Mr. Magafu"s submission on the issue, I am inclined to agree with the learned State Attorney's rebuttal. First, it is not correct to state that the testimony of the PCCB Officers is "hearsay", since the officers were testifying directly to what PW.3 had told them about the complaint against the Appellant. Their testimony was "direct oral evidence". In terms of the provisions of Section 3 of The Evidence Act (Cap. 6 R.E. 2002), Oral Evidence means all statements given by a witnesses in court in relation to matters of a fact under inquiry. Whereas direct evidence refers to evidence of a fact actually in issue, that is to say, evidence of a fact actually perceived by a witness with his own senses. In other words, direct evidence, is that evidence which is testified orally or otherwise, of what a witness saw, heard, felt or

perceived by any of the senses as to the fact he is testifying to. In deed, the provisions of Section 61 of the Evidence Act, provide that, " ... all facts, except the contents of documents, may be proved by oral ev1"d ence ... ,, 18 And Section 62 (1) of the Evidence Act, requires that, " .... Oral evidence must, in all cases whatever, be direct; that is to say:- (a) ··················· {b)If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it..... To put it simply, sections 61 and 62 of the Evidence Act require that, all facts, except the contents of documents, may be proved by oral evidence, and oral evidence isrequired to be direct in all cases. In the case at hand, the PCCB Officers and especially, PW.8, directly testified to what was reported to them by PW.3. That is not hearsay evidence! In other words, their testimony was not based on gossip or rumours. Hearsay evidence, as I know it, simply stated, it is that evidence of a fact not actually perceived by a witness with his own senses, but proved by him as to having been stated by another person. In other words, it is that evidence that a witness repeats what another person heard or perceived by that other persons senses. It is sometime called "second hand information", and it is generally not admissible, unless under the 19 provisions of sections 34 (a) (b) and (c ) of the

Evidence Act (i.e. Statements of person who cannot be called as witnesses). Certainly, with respect to Mr. Magafu, the testimony of the PCCB Officers does not fall into the foregoing category of hearsay evidence. Take the testimony of PW.8, for instance. The record states as follows:- " ... I recall on 03/12/2007, there came a complainant on Richard. He complained that the accused was demanding some money from him so that the accused would assist him in a case before the accused person ... " This type of testimony is not hearsay evidence, but rather, it is direct oral evidence. PW.8 simply testified to what PW.3 told him. It is my finding that the testimony of the PCCB officers is not hearsay evidence, and accordingly it was properly admitted by the subordinate court. The ·complaint by Mr. Magafu that PW.3 should have been treated as an accomplice, is not entirely correct. Who is an accomplice? An accomplice is an accessory to a crime. An accomplice is a person who participates in the commission of a crime, or one who knowingly and voluntarily co-operates 20 with, and helps others in the commission of a crime. In a simple layman's language, an accomplice is an "ally" or an "associate", or a "partner" to the commission of a crime. In the case at hand, PW.3 was not an "associate" or a "partner" of the Appellant to the commission of the crime of corruptly soliciting and

accepting bribe, but rather, the PCCB officers used PW.3 as an "Informer", in order to entrap the Appellant. The PCCB Act, allows the "Bureau", to use some people as "informers" or "whistle blowers". The PCCB Act, 2007, defines (Section 3) an "informer, as the" ... person who in good faith reports the commission of an offence to the Bureau ... " A person who, in good faith, reports the commission of a crime to the PCCB or the Police, cannot be an accomplice. That is how PCCB and the Police operate. They always· make use of these "informers" (otherwise known as "decoys"). Once the trap laid has materialized, normally the informers are not charged with any offence, instead, they are subsequently used as witnesses for the prosecution. In the present case, PW.3 was used as a PCCB informer, and, therefore, he could not have been charged with the offence of "corrupting a public official" (under Section 16(1) or 17(1) of the PCCB Act, 2007), the way Mr. Magafu would have liked, for the reasons stated in the foregoing paragraphs. 21 Likewise, PW.3, being not an accomplice, his testimony, therefore, required no collaboration what so ever. It is a fact that the conviction of the Appellant in respect of Count No. 1 and No. 2 was wholly based on the testimony of PW.3, alone. Mr. Magafu, again asserted that the testimony of the single witness (PW.3) in respective of charges in count No. 1 and count No. 2, was not conclusive, or at least, Mr. Magafu insisted, the evidence of PW.3 should have been corroborated. The learned State Attorney, Mr. Maugo, contended that the testimony of PW.3, alone was conclusive, enough to prove the allegations in count No. 1 and No.

2. We have already made a finding that the testimony of PW.3 required no corroboration. The question to be asked here is, can a "fact in issue" be proved by the testimony of a single witness? In other words, can the testimony of a single witness be regarded as conclusive? Going by the provision of section 3(2) of the Evidence Act, the answer to the foregoing question is in the affirmative. In the first place, according to section 3(2) of the Evidence Act, a fact is said to be proved when:- 22 "(a) ..... in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists ... " Section 143 of the Evidence Act provides:- " ... subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact. .. " This statutory provisions, of the Evidence Act on the issue, have been upheld by a number of court decisions; both the Court of Appeal and this court, as well. For instance, in the case of Abdallah s/o Wenda V.R, the Court of Appeal observed that, "a fact may be proved by the testimony of a single witness." And in the case of Thairu V. R (supra), the same court reiterated its decision, stating that.. .. "To convict an accused person relying on the testimony of a single witness is dangerous, but a conviction so

based, cannot, in law, be regarded as invalid." Well, the practice in this country, is that, whereas the number of witnesses in proving a fact is immaterial, however, courts do consider a number of factors before reaching a conviction, these include, the consideration of the seriousness of the offence facing the accused person, the availability of · 23 witnesses who ought to have been summoned to testify in the natural course of events and most importantly, the credibility or veracity of the witness. Talking about the credibility of PW.3, the learned State Attorney, Mr. Maugo submitted that the trial Resident Magistrate was satisfied that PW.3, indeed, as well as the other prosecution witnesses, were witnesses of truth. Mr. Maugo reminded this court that, being an appellate court, it should not fault the finding of the subordinate court (the court of first instance). Admittedly, in convicting the appellant, the trial magistrate attached a lot of weight on the credibility of PW.3. He totally believed that PW.3 was telling the truth. In his judgement, the Hon. trial magistrate stated that:- " In respect to the first issues, I am aware that the important witness for the prosecution is PW.3. I have considered most of his evidence, together with other I . prosecution witnesses. Assessing its worth, I have noted that the evidence implicates the accused person with the commission of

the crime ... He (PW.3) said that in August, 2007 the accused received Tsh. One million shillings, and on 4/12/2007, sh«;! received Tsh. 700,000/= .... Whereas in august, 2007, he (PW.3) contends that the accused 24 solicited five million shillings, and on 03/12/2007, she solicited four million shillings from him, so that she could adjudicate the Civil case No. 33 of 2007, in his four of the defendant, ...... " The Hon. trial Magistrate went on saying:- " .... I have seen PW.3 and other prosecution witnesses and I find them all to be substantially truthful...... I have approached their evidence with great caution .... " As stated earlier on, the Hon. trial Magistrate was very much impressed by the credibility of PW.3 and the other prosecution witnesses. The trial magistrate, without any reservation, believed that PW.3 was an "honest" witness, and he .;<>;. was testifying nothing but the truth. No wonder then, Mr. Maugo, the learned State Attorney, prayed this court not to fault the finding of the subordinate court regarding the credibility of PW.3 and the other prosecution witnesses. Mr. Maugo referred to us to the decision of the Court of Appeal on this issue, in the case of Rashid Kaniki V. R. (Criminal Appeal No. 116 of 1993) Arusha Registry (Unreported). 25 In the said case, the Court of Appeal observed that, normally, on matters of credibility of witnesses, appellate

courts should not readily interfere with the findings of subordainate court:- " ... This being an appellate court, matters of credibility of witnesses are the domain of the trial court which has the advantage of assessing the demeanour of the witnesses and evaluating the credibility of such evidence. This court will not readily interfere with the decision of the trial court on such an issue .... " Indeed, even this court (the High Court), earlier on, had made the same observation in the case of Pia Joseph V. R. (1984) T.L.R. 161, whereby, the late Hon. Lugakingira, held that:- " .... an appellate court will not lightly interfere in the trial courts finding on credibility unless the evidence reveals fundamental factors of witness vitiating nature to which the trial court did not address itself or address itself ,, proper Iy ... 26 I have asked myself what is it that made the trail magistrate to be so impressed with the demeanour of PW.3. Then I referred to mr. Maugo's submission, to the effect that, PW.3's testimony was quite explicit to the fact in issue. Admittedly, on the perusal of PW.3's testimony, one gets the impression that, that kind of evidence can only come from the spirit of a very sincere person. In his testimony, PW.3, in very low spirit, described, first, how he met the Appellant (24/08/2007). Then PW.3 stated how the ruling for the deposit in court of

Tsh. 50,000,000/= (Failure of which the Respondent would be arrested and thrown into lock-up), had affected the Respondent (who had almost collapsed in court). PW.3 then went on stating how the appellant had approached him with the proposition that, if they wanted to secure a favourable decision, or for that matter, if they wanted the Respondent not be apprehended, then they should "produce" Tsh. 5,000,000/=. Further still, PW.3 described, quite vividly, how the payment of Tsh. 1,000,000/= was "delivered" to the Appellant. PW.3 stated that the Tsh. 1,000,000/= was paid, partly in Tshs. (600,000/=) and the deficit of Tsh. 400,000/= was topped up by the equivalent of Kenya shillings, about 22,000. The testimony of PW.3 is quite emphatic and distinct. Just listen to the tone of his testimony, so that you may judge for yourself:- " ... on 26/08/2007, I attended the court before the accused... when we arrived at 9.00 a.m. the hearing 27 resumed .... Then I heard the accused saying - "simtambui mdaiwa kwa sababu ni mgeni kwahiyo Mahakama haiwezi kumsikiliza. mpaka atakapoweka security ya milioni 5, asipofanya hivyo akae ndani wakati kesi inaendelea ••.• Soon after she had said so, my employer, who came from Mombasa ..• fell down and collapsed •.•. Then cameback to normal.... Then the case did not proceed.... The accused told us ..• "mkitaka kesi yenu au nisimkamate huyu mzee na kesi

yenu iendelee mnipatie shilingi milioni tano •••. We had Tsh. 600,000/= in our pocket and Sh. 22,000 Kenyan money. Hence the total sum was Tsh. One million ... she told us to wait for her near a hotel close to a burial place ... while we waited for her, for about half (1/ 2 ) an hour, then she came while she drove her motor vehicle. She called us. Then we embarked her motor vehicle and she drove up to her home place at Msasani area. We dissembarked and then she parked her motor vehicle. She demanded for the money. We then handed it to her. It was me who did so. We told her that we shall bring her the balance .••. " 28 From the tone and the explicit nature of PW.3's testimony, I am sure that the Hon. trial magistrate was quite moved by and influenced by the frankness of PW.3's testimony. Eventually, the Hon trial magistrate arrived at the conclusion that PW.3 was telling the truth, hence, he found the appellant guilty of the charges in count No. 1 and No. 2, and he accordingly convicted the Appellant of those counts. The learned State Attorney prayed this court not to disturb the finding of the subordinate court. Well, after going through the testimony of PW.3, as demonstrated in the foregoing paragraphs, I must admit that the testimony of Pw.3 was powerful and convincing. The minute details described by PW.3 regarding the manner the money was delivered to the Appellant, the

fact that the payment of Tsh. 1,000,000/= was partly paid in Tanzanian shillings and partly in Kenyan currency, those details could only come from a person who actually delivered the money to the appellant, and· that is PW.3. Well, I am satisfied that the Hon. trial magistrate was quite justified in concluding that the PW.3 was honestly telling nothing but the truth, and therefore, I am not inclined to interfere with that finding. Accordingly, I hold that the testimony of PW.3 was conclusive, and therefore, that testimony was sufficient to prove that the Appellant, sometime in August, 2007, did corruptly solicit Tsh. 5,000,000/=, and further, the testimony established that sometime in August, 2007, the Appellant did corruptly receive Tsh. 1,000,000/= from PW.3. The object of the said 29 advantage was to induce the accused to adjudicate in favour of the Respondent in the Civil case No. 3 of 2007. In his submission. Mr. Magafu also desputed that, there was no conclusive evidence to substantiate the allegations that, on 03/12/2007, the Appellant corruptly solicited Tsh. 4,000,000/= from PW.3; neither was it established that the Appellant, in fact, on 04/12/2007, corruptly received Tsh. 700,000/= from PW.3, at the Slipway Hotel. Mr. Magafu, as we have seen vigorously contended ..- that the said "bait money" (Exhibit P.3) was not found in possession of the Appellant. In advancing

this argument, I take it, Mr. Magafu was insinuating that the Appellant was "Set-up", that is to say, the "bait money" was "planted" in the Appellnat's handbag by either PW.3 or the PCCB officers. Mr. Magafu, earnestly asserted that none of the prosecution witnesses saw the money "coming" out of appellant's handbag, when she was searched. In discussing these issues, we must bear in mind two things; first, we have already made a ruling to the effect that the Appellant knew and used to associate with PW.3, before the incident at the Slipway Hotel, on 04/12/2007, second, we have already found that the both PW.3, and indeed, the whole of prosecution witness were witnesses of truth. 30 In his testimony, PW.3 testified that on 03/12/2007, the Appellant "demanded" for the payment of the balance of Tsh. 4,000,000/=. That is when PW.3 decided to report the matter to the PCCB. PW.8 testified that having received PW.3's complaint, he (PW.8) arranged for a "trap." He gave PW.3 a total of Tsh. 700,000/=, all in the donomination of Tsh. 10,000/= notes. The serial number for each note was recorded in a piece of paper (Exhibit P.2). According to the testimony of both PW.3 and PW.8, the money was to be delivered to the Appellant on 04/12/2007, at the Hotel slipway, at 3 p.m. !•!'\. - . ' -..!"1'·. PW.8 further testified that he instructed his six collegue officers, including PW.1, (BRIGITA

ALOYCE LUMOI) . and EMACULATA GOTI (PW.2) and PW.7 (ELLY ANTHONY MWAKIPESILE), to accompany him to the Slipway Hotel. At the Slipway Hotel, the PCCB officers strategically positioned themselves at different areas, including the restaurant. The testimony of both PW.3 and PW.8, and the others, was to the effect that they had to wait for the arrival of the Appellant, from 3.00 p.m. up to 10.30 p.m, when the Appellant made the arrival. Between 3.00 p.m until the arrival, it was the testimony of PW.3, PW.7 and PW.8, to the effect that there was constant monitoring of the correspondence between PW.3 and the Appellant by way of their mobile phones. PW.3 further testified that when the Appellant arrived at the hotel, she went straight to the table he was seated. In the course of eating, PW.3 handed the 31 appellant the "bait money", which was put in an envelope. The Appellant received it and placed it her porch(handbag). After a while, PW.3 signaled the PCCB Officer (PW.7), seated at a table just about five meters from his, thereupon, the Appellant was arrested, she was searched and the "bait money" found in her handbag. The first issue to resolve is, whether the Appellant was aware of the fact that on the night of 04/12/2007, she was going to meet PW.3 at the slipway hotel. The answer is in the affirmative. The Appellant admitted that fact in her cautioned statement (exhibit P.4). In

that statement (recorded on 05/12/2007), the appellant conceded that she had communicated with PW.3, on 03/12/2007, and in the morning of 04/12/2007. The appellant conceded that she had instructed PW.3 to meet her at the Slipway Hotel (on 04/12/2007), and that PW.3 should bring along with him Chamber Summons, together with the Affidavit, which contained the Respondent' application for setting- aside the dismissal order, issued on 26/11/2007. The Appellant conceded that she had been corresponding with PW.3 on and off, on 04/12/2007. The Appellant admitted that she had gone to the Slipway to meet PW.3, in order to inspect whether the Chamber Application forms were in order. The record states that:- " ... lengo la kwenda Slipway Hotel. .... lilikuwa kumkagulia nyaraka zake kama alivyokuwa amenishawishi tangu mchana ..... " 32 When the Appellant was searched, the Chamber Application forms and the Affidavit in respect with the Civil Case No. 33 of 2007 were found in her handbag. The forms were produced as exhibit and entered into evidence and marked (exhibit P.4). The next issue to decide is whether or not PW.3 gave the Tsh. 700,000/= to the appellant. PW.3 testified that, after the arrival of the Appellant to the Hotel, she went straight to his (PW.3) table. The Appellant first, demanded to see the application forms (Exhb. P.4). Having perused them, then the appellant demanded for

her money, which PW.3 gave it to her, even if, the Appellant complained that the amount was not what they had agreed upon. The record states as follows, in respect of the testimony of PW.3 on this issue:- ".... At about 10.30 p.m. the accused person arrived ... she then went straight to the place I sat ... . we greeted and she told me "pole kwa kusubiri ... " we called an attendant. We supplied her the food we had ordered for her also soft drinks, cocacola ... in the course of eating, she then demanded for the documents ... I handed over the documents to her .... They are affidavit and Chamber summons... having handed over the documents, while she was in possession of the same, I handed over the envelope 33 containing the money ... she received and she placed the same in her handbag ... I told her the sum was Tsh. 700,000/= .... She demanded where was the rest. I said I have Kenyan money, about 1,500 equivalent to Sh. 2,600,000/= ... Then she said the previous one was less by 60,000 / =. Kenyan money .... She said I should take it to her tomorrow before 10.00 a.m." Certainly, going by the graphic testimony of PW.3, there is no doubt that the appellant received the said "bait money" from PW.3. And yet, the Appellant, together with her learned defence alleged that the "bait money" was "planted" into her handbag. In her defence the Appellant had this to say, in respect to their

talk with PW.3, on the ruling of the civil case:- " I then insisted to him that because he was {the respondent, Gupta), a foreigner, the payment of· the security was mandaroty .... However, I told him that the decision I made must stand. I would not cooperate with him .... Then I saw him standing and placed an envelope into my bag and he left... I called him to come back, only to be arrested by the authorities {PCCB) ... " 34 But it is not true that the "bait money" was "planted" into the Appellant's handbag. The testimony of PW.7 is quite clear to the point. PW.7 (a PCCB officer) was seated quite near to the table where PW.3 and the Appellant sat. PW.7 witnessed PW.3 handing over the envelope containing the money to the appellant. His testimony is recorded as follows:- " .... At about 10.00 p.m. the Appellant arrived (in a red motor vehicle) ... she went directly to the place where Richard was seated alone. I saw them talking ... while the Appellant took soft drink and chips ... it took then about 45 minutes and the Richard and rose up and left ..... but before Richard left, I saw him handing over a brown small envelope to the accused ... it was put on the table, and the accused picked it up and placed it in a porch {handbag) ... " Mr. Magafu, despite of the indisputable evidence, still asserted that when the Appellant was searched, the said "bait money" was not found in the

appellant's handbag. But, Mr. Magafu's contention is not valid. PW.8 testified that after the apprehension of the Appellant, she was searched by a Civilian witness (meaning that the witness was not a PCCB officer), one Matilda Robino (Pw.9), who was an employee at the Slipway Hotel, as a cashier. Besides, the search was also witnessed by several employees of the Slipway Hotel, including one Adam 35 Abdallah Hassan (Pw.5) and PW.6 (Peter Richard). Of course, the search was supervised by PCCB Officers, including PW.1 (Brigita aloyce), and PW.7. PW.9 (Matilda Robino) testified to the effect that when she emptied the contents of the appellant's handbag, one of the items which fell out of it was a brown envelope which contained the "bait money" Tsh. 700,000/=. The record of her testimony goes like this:- " .... I was called by PW.S, in order to witness an incident... he told me ... "kuna mwanamke ana matatizo naomba utusaidie, sisi wanaume hatuwezi kumfanyia search inabidi .i:'?\•. uifanye wewe msichana .. :" PW.9 further testified that:- " ... when I reached the place of incident I was approached by the PCCB officers who asked me to search the woman ... I searched the accused in the body and the handbag .... In the course of searching the accused, I recovered some money in the envelope, ... the wallet also contained some money and other items ... " That the "bait money", was found

in the appellant's bag, it is indisputable. Even PW.5 testified as follows:- 36 " I witnessed the accused being searched.... In the possession of the accused, was a huge porch (handbag), and there from was recovered an envelope which contained money ... also I saw documents, accompanied to the money.... " Indeed, the same fact was testified to by PW.6, who stated that:- " the ones who conducted the search were two women ... they off-loaded the (handbag) of the accused ... there came out of it, an envelope, papers and documents and a mobile phone... money was seen out of the envelope ... some other money was also found in the bag .... About Tsh. 399,000/= .... " And yet, despite of the devastating testimony of PW.9, PW.5, PW.6 and PW.1, yet Mr. Magafu, with respect, still contended that the appellant was not, in fact, found in possession of the "bait money", Tsh. 700,000/=. Mr. Magafu argued that, the PCCB Officer, PW.7 should have recorded in the Certificate of Seizure (Exhibit P.1), that Tsh. 700,000/=, was one of the items found in the Appellant's handbag. But surely, even if PW.7 failed to record that aspect, in the certificate (exh P.1), does it really matter in the light of the evidence on record? 37 I am of the finding that failure to record that item in the certificate of seizure (Exh P.1) did not affect the potency of the testimony of PW.9 and the others. Well, without

dwelling too much on this issue, I am satisfied that the appellant . corruptly solicited Tsh. 4,000,000/= from PW.5 (on 03/12/2007) and I am also convinced that on 04/12/2007, at the Slipway Hotel, the appellant corruptly received an advantage of Tsh. 700,000/= from PW.3. the Appellant received that advantage as an inducement in order the Appellant may reach a favourable decision for the Respondent, in the civil case No. 33 of 2007. There is no doubt about that! We devoted a considerable amount of time in the preceeding dreary paragraphs with the object of establishing the issue, whether or not the appellant, in fact, corruptly solicited and subsequently received advantage (bribe) from the complainant, PW.3, as alleged. The answer to that question has been answered in the affirmative, as demonstrated. The next main issue to determines is whether or not the charge sheet is defective. This takes us to the Appellants grounds of appeal No. 2 and No.

3. We have also heard Mr. Magafu's submission, to the effect that since the trial magistrate held that the charges was "hopeless", it meant that the charges were incurably defective, under the provisions of Section 388 of the Criminal Procedure Act. 38 Admittedly, the charges against the Appellant should have stated "corrupt transaction by agen~", as correctly pointed out by the Hon. trial Resident Magistrate, for obvious reasons. It has been established that PW.3 was an "agent" of the Respondent (Mr. Gupta). PW.3 was acting as an intermediary (ago-between), between the Respondent and the Appellant. And indeed, the Appellant was aware of this fact. The question is whether failure to include in the charge sheet -the term "by agent", was incurably defective", taking into consideration the findings that the Appellant corruptly solicited and received bribe. The learned State Attorney claimed that, the omission was simply a technical one, which could be easily cured by the provisions of section 388 of Criminal Procedure Act. The provisions of Section 388 of the Criminal Procedure Act (Cap. 20 R.E 2002) provide that:- " ... subject to the provisions of section 387, no finding, sentence, or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission, or irregularity in the complaint, summons, warrant,

charge, proclamation, order, judgement or any inquiry or other proceedings 39 under this Act; save that whereon appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order or re-trial or make such other order as it many consider just and equitable ... " It was argued by Mr. Maugo, that the omission complained of by Mr. Magafu, did not occasion any injustice to the Appellant, since the Appellant, as well her learned counsel, all along were aware of the nature of the charges facing the Appellant. Well, I am inclined to agree with the learned State Attorney's argument. It is evident that, the nature of accusations the appellant was facing, were pretty obvious to her. The omission to state "by agent" cannot be said to "occasion a failure of justice". Indeed, the Court of Appeal, as well as this court, has emphasized that these "grammatical errors" are usually harmsless, therefore . they should not "deter" the courts in the administration of justice. In the case of R. V. Hassani Said (1984) T.L.R. 226, this court observed that (Mapigano, J.) " ... where a substantial miscarriage of just has not flown from the defect, the provisions of section 346 (now section 388) of the Criminal Procedure Act, can be brought into play and conviction be sustained.... In this case the accused understood the

substance of the case he was meeting as such the defect did not lead to a substantial 40 .. miscarriage of justice, thus curable under section 346 (now section 388) of the Criminal procedure Act." As a matter of fact, the provisions of sect 388 of the Criminal Procedure Act, provide a forum for the courts of law to implement the notion of justice enshrined in Article 107(c) of the Constitution of the United Republic of Tanzania, 1997. The said Article calls upon the courts of law, that in the discharge of their primary functions of administrations of both civil and criminal justice, the courts should endeavour to dispense substantial justice, without being inhibited too much by undue technicalities and procedures. Therefore, in cases, such as the one at hand, where the presence of these technical errors · i?;,. · have not occasioned any miscarriage of justice, the courts of law are enjoined to ignore such technicalities and to proceed with administering and enforcing real and genuine justice. The issue at hand falls squarely within the ambit of the foregoing court decisions and the Constitutional requirements. Well, I am satisfied that the failure to state in the charge sheet, "corrupt transaction by agent", did not occasion any miscarriage of justice, hence the omission was cured by the provisions of section 388 of the Criminal Procedure Act. Accordingly, I hereby find that

the Appellant was properly charged, as aforesaid. 41 p' Submitting on grounds No. 1 and No. 6 Mr. Magafu contended that the prosecution did not adduce enough evidence to establish their case beyond the shadow of doubt. For example, asserted Mr. Magafu, the prosecution failed to produce the as exhibit, the Appellant's mobile SMS/ calls print outs, to prove that the PCCB Officers were monitoring the communication between the Appellant and PW.3. Now, again with respect to Mr. Magafu, in the light of the evidence on record did it really matter whether the mobile phone printouts were produced as exhibits or not? What is sufficient is that there was the direct oral evidence of PW.3, PW.8, PW.7 and the others, who testified that, soon after the lodging of the complaint by PW.3, the PCCB officers were "constantly monitoring" the correspondences between the Appellant and PW.3. Thaf evidence is indisputable. Well, be it as it may, I am satisfied that the prosecution' evidence on record, did prove the accusations against the appellant beyond the reasonable doubt. Therefore I hold that The Appellant was properly found guilty, and accordingly convicted. Lastly, let us, briefly look at Mr. Magafu's complaint (which was not included in the memorandum of appeal), that the sentence of imprisonment imposed on the Appellant was wrongful. Mr. Magafu, argued that the trial magistrate should have

imposed, first, the sentence of fine, as it is provided by the 42 provisions of section 15(2) of the PCCB Act, 2007, and if in default of payment " of the fine, then the sentence of imprisonment would apply as an alternative. Admittedly, the provisions of section 15(2) provide that:- " ... a person who is convicted of an offence under this section, shall be liable to suffer a fine of not less than five hundred shillings but not more than one million or to an imprisonment for a term of not less than three years but not more than five years, or both ... " Normally, the task of assessing the appropriate type of sentence to be imposed on an accused person after conviction is left to the sentencing court. In assessing sentence, the court is expected to take into account a number of factors. This court has, on a number of occasions, listed such factors to be taken into considerations by the courts .. One of the leading High Court decisions on this asp~ct, is the case of TABU FIKWA V. R. (1988) T.L.R. 48, whereby Hon Samatta, J. (as he then was), quite eloquently pointed out these conciderations. In brief, such factors include the considerations of such questions as, is the accused a first offender?; Or, Will the sentence deter the accused from committing similar or other crimes?; Or, what lesson will the sentence carry to 43 the society so as to be a deterrence and create a feeling

that justice has been done to both the accused, the victim and the society, at large!? Other questions for considerations include, how rampant is the crime in question (i.e. the magnitate of the crime), Or, is it so frequent?; Or, Are there any aggravating or extenuating circumstances, in so far as the crime is concerned? Of course, the list for such considerations is quite long. In sentencing the Appellant, the Hon. trial Magistrate, I believe, took into Q' account the above mentioned considerations, and other factors too, as they are indicated in the cases he referred, the case of Simon Mande V. R. (1962) T.L.R 5 and that of R. V. Angasisye Mwaikungu (1968) H.C.D.

325. Most importantly, I have gathered, the trial magistrate considered the fact that the offences (of corrupt transactions) are quite serious, and countries all over the world, including Tanzania, are grappling with the strategies of how best to not only to combat the offences, but also how to prevent them. In deciding the type of sentence to impose, the Hon. trial Magistrate must have decided that the best option was to impose a deterrent sentence, and usually the appropriate one is an imprisonment, rather than a fine. The trial magistrate also took into consideration that, the Appellant as a judicial officer, who was entrusted with high responsibilities in the administration of justice, for which "noble task" she betrayed. That factor alone made the circumstance in the commission of the crime, very aggravating. In soliciting and accepting bribe, 44 the Appellant fell into the trap that "justice is for sale", for those with money. That, with respect, is not what justice is for! Justice is to be given freely, as a matter of right, for those who deserve it. The provisions of Section 15(2) of the PCCB Act, 2007, provide a fine sentence or an imprisonment one, or both. In the case at hand, the Hon. trial Magistrate opted for an imprisonment, for the reasons given above. I am inclined to agree with the Hon trial Magistrate's choice of sentence. Accordingly, I will not disturb it. In the final analysis, therefore, I must say that, with deep sorrow, this appeal is dismissed. It is so ordered.

JUDGE 25/04/2010 Judgement delivered this 30 th day of April, 2010, in the presence of counsels. Rights of appeal explained.

JUDGE 25/04/2010 45