19790720 TZHC Arusha

0/c / : IN THE HI GE COURT OF TNZAIJ, / AT SARUSHSA .IPPELLATE JURISDICTION HIGH COURT CRIMINAL SAPPEL 11T 0 148 OF 1978 (Original qrimina1 Case No. 33 of 1978 of the District Court of Mbüiu District at Mbulu) , 5' BEFORE: Masawe Esq0 District Magi;trato Je H e He DAO 000000000000c000000 0 00 00 0 00 0 .APPELLINT c o c0 00 000 (Original Accused) versui: IHE REPUBLIC RESPO1DENT (Original prosecutor) JUDGEMENT MVVE' J. On 6th October 1978 while on High Court Sessions at Bbati I allowed the dpeal of one Josephat Henry Hondi. Dao S and as a result the three convictions which hcc' been planted on him by ,1bulu District Court were quashed, their related sentences set aside, the forfeiture order set aside and V finally it was ordered that he should resume his liberty immediately unless he was going to be further interned for some other known and lawful cause onr since he - rfrts present in court at Babati he enjoyed the fruits of that order for V release almost immediately0 I however, reserved the ren.00;s for the shbve bMer for the reasons I stated at baboti but' no'.i' I feel disposed " V to outline them as this jugernont gets Unfoilod. It all started with a chrrge consiotihg of fou counts against-- Josephat Henry Hondi Dao who vas accused of Being 'in possession of property corruptly acquired contrary to section 9 (1) of the Prevention of Corruption Act No0 16 of 1971 and the subject -' matter involved in that cOunt was a sum of shs,63,027/55. Being in possession of property corruptly acquired contrary to section 9. (1) of the Prevention of Corrup'in Act No. 16 of. 1971 and the subject— niatter involved in that count was a house on Plot No, 40 in Mbulu town allegedly valued at shs.156,0001=0 V Being in possession of property torruptly acquired, contrary to section 9 (1) of the Prevention of Corruption Act No, 16 of 1971and th:5oai. property ' involved in that count was a house on. Plot No 0 153 ' V .-/2 Block B -2 Block B (Nyota Guest House) in Ivibulu town an6 the said house was alleged to be valued at sha.31,0001= (4) Being in possession of property corruptly acquiied contrary to section 9 (1) of the Prcvention of Corruption Act, No.16 of 1971 the sid property involved in that count WEa a hoi;e on plot No.130 Block B, Mbulu toin a1leed1y vtLuad et shs.4,250/=. The accused per or pJJcded no u o il the four counts and the case went into a full . trial at the erd of which the learned trial District Mci istrt Mr. '. A. Masavve found him not guilty on the 1t colinU nJ ouii ted him on that count and he also, found hin not tuilty, as chargedon the second, third and fourth counts but he found him guilty of a difrent..off.ence. of being in possession of property suspected o havin been unlawfully acguired contrary to ection 312(1) of the Penal Code as amended, on those counts, two, three and four purportedly acting under sectioi 9(IA) of Act No. 16 of 1971 as amended by Act No.23 6f 1974. O9QU upon the said convictions Dao was sentenced to one year's iipprisonment on the secoid coi - t six mon th s r iprisonmeit on:the third coun: an three aonths imprisonment on the fourth.count and the three eontoncoa ore ordered to run concurreit1y. In addition to bh ltariIed trial District Magistrate ordo u thc. Co i e ofo riouses with a directive that they be sold bypuLJr. ucti.i and :part of the rocds, to the tu ic of SIlL 3 0r)07 1c rtmitted to the Tanzania Housing Bank jhli t ril ih the title deed of House .on Plot No. 40 on mortH, It wns further directed that the houses which hrd :aoY forfeited had to be disposed of accordinaly after hc ported of appeal had expired if the accused would riot apcel or Ifter the result of the appeal, whichever would bE, earlier. Aggrieved by that entire decision Dao ppoaled, through the services of his learned defence counsel Mr. Ariko who had also defended him before the court below, to this court against the said convictions, their related sentences and the forfeiture order. In this case certain facts were not in dispute eithei' in the trial court or in this court. This includod the fact that the appellant at the material time was an assistaxt accountant grade one earning a. gross monthly. salary of shs.l,035/= which after due deductions romaned at the level of hsr75/4C, Also not disputed we.s the fact that up to ...../3 the time -3- the time of hisarrignment the appellant had worked as: a civil servant for a period of 20 yars'ad at the mteria1 time he was in the office of the D. D0D 0 (District Development irector) !1bulu0 In that capacity of Ass.stant Accountant Grade I his duties. inc1uded paying salaried to employees of the office of the District Development Director Mbulu and collection bfreveniu. He clousedto pay people who rendered services to the office of the District Development Director. He vmms not, according to the evidence of the District Development Director (0w0I), making requisitions or local purchase orders but was flierely making payments to the officers concerned in the District Development Director's office. it may be pointed out her that therehad been no complaint against the appellant. in the mam- er of performing his, duties and nor was he acctised of ay shortages arising from the payments he had often effected. Thus there was no evidence tnat he might have parted with some of those monies and if this had happened the auditors would have reasonably detected. What.prompted this case was an information transmitted by undisclosed person(s) to the ofiice of the anti-corruption squad that the appellant was financialLj aflicnt disproportionate to his known income of sh.675.40 net monfrily sulary as a civil servant. Acting on that information two officials of the Anti-Corruption Squad, in pUrsunce of soction 8 of the Prevention of Corruption Act No 16 of 1971 as amended by . Act No. 2 of 1974, started investigating the affairs of the appellant. These officials were Adamu Rajabu (P0W.9) and Phi d/o Kiv-ugo (p0w010). They discovered that between 23rd.February 1976 and 21st November 1977 the appellant had deposited with the bank about shs063,000/= in his personal two bank accounts. The appellant was also detoctedto be in possession of three houses asertedly valued at shs.156,00U/=; 31,000/= and 4,250/= respectively, all acquired allegedly within a period of 21 months ranging from February 1976 to November1977. Having so allegedly discovered the officials of the Anti-Corruption Squad served the appellant with a notice pursuant to section 8 of the Act requi-ring him to give an explanation of how he came to be in poasession of those four poperties which included the sum of moiey banked in his personal accounts and the three houses above referred. In response to that notice the appellant gave some explanation which, to • JIL. if '•' which, to Adamü R8 jabu. ,(P..1Tt7.9)1 waa not .s.atiofactory and thus a charge was preferred gp1:13t c'r CJj nt as indicated above and he was then taon ho'ore,.LThulu District Court for. a . . . ... In.the tr.iaLcourt 12 witncssos to ified. They, ., .., included Ibrahim s/o Muna (0w0i), AdeI s/o Sawo. (P0w02), Hmi'i s/o.Lohay (P.w.3). Bocnbo s/o Gwo1o(P0V'04) Mariam Matata Gidaa (P0W-5), Denis s/o Njau (036),.Shaa1rn.s/o Lugeyo (p 0W07),,, Samson s/o .. Madaha (p 0w08), ijadi.s/o. (P.w.9),.Pili d/oKivugo,(P0W.lC), Isack s/o..Mark(Po\o1].). and Gabriel Mwakihaba..(P.W012)0..,,,. .. ., . . From. the eyidence of P.W.8 Mi'o,..Samson;Madaha, the. then Bank Managér..of National Bank of Commerce Mbulu Brarch,, it was established, that at the material time the appellant was qper.ating two personal Bank.Acc.ounts; one current No.4 and.t.he othe.r,.Savings'Nd. MB 257. The.appellant was also a signatory of Nyota Guest House Cpnrent Bank Account. No.135.. Froi the statements of the Bk..,.produced in. Court the learned .trial.District.Magi?t.rate..found. it was a fact, on his calculations, that between 23rd February 1976 and 21st November 1977 a period o.:23mont4s, the appellant had deposited with the. bank a:total of shs.93,274,95. This appeared.:to be at yariance with the figure .indi.cted by, the prosecution oncount one which was put at.shs..63.,027/75 and the learned trial Distric,t Magistrate posed a question.. at that differene in figures. When the trial court tabulated, the figures of deposits as evidenced bY the Bank Manager (P.w.8) on the Savings and Current Accounts he arrived at a totS1 of shs.68,200/45 as the money deposited by the appellant during the period of 21 months in question. The appellant himeelf put the figure at roughly s'hs.63,000/= while the total of his net salary for the sameperiod was 8hs..14,183/40, The house registered as Nrota Guest house was in the.. name of Yohana Ntondo the mother of the appellant Who in • fact supervised its Oonstruction and operated its BankAcouflt as the signatory 0 In his sworn statement among other things, the appellant stated that heperformed his duties satisfactorily in, effecting .paymets to employees of i;hoD.D.D's office and. • collected small revenues on diverse Government fc. , and taxes.. No complaint has been ever made, against, him in thdandling of his official duties right from the time In started working • ../5 with the - 4 -5k- with. the Government way 'ck in 1960 1mncc1-c1y on completion of his stuocs0 As to how he had acqui:Led the 1ropertie the appellant gave his C)lCfl'-' tiOfla J o i ancy he testified that that ivhlCh vas founo in rj h nk accouhts it was deposited by him within the prioo o r 2,1 mooths E'nd he acquired it as loans from frioras, his 1'ionl savings and also h had dealt \th cattle business hach also gave him some income which he deposited with the brtk0 Also he stated that the money ihich es eaincd by his mother in the form of, rents for Nyota Guest H 0use was given to him by the i '-•'•• ' said mother and the appellant deposited it in his personal Bank Accounts. The appellant further testified that he also deposited cheques in the names of some friends who themselves had no bank accounts0 The appol1nt would theh given sich friends some cash in payment of the said cheques which would remain the bank in favour of tne appellan. He got his salary in cash and would deposit some o± it in the bank but he got his night a11owañce in' chebues i' he uid deposit the same in the bank acádunts of his He admitted to have been engaged in buiLing a house He would draw some'moneyf'rbn the bank for buying some building materials but if the same were not avrilable he would go'tb the bank to reepdsit the money 'till he lOarnd that some building materials wee avaiable 0 As to the construction dP No'ta Guest HoUse the appellant gae an explanation Of its back:grouiid He testifiedthat when his f:thèf diOd between 1947 and 14 he' left h'i Widow with some catt1d The mother sent the appellant to school tIll 1959 when he closed his studied Mid in 1960 the appellant took up 'a jbb with the Government He 'further tetifid that by then her mother had many catilei i about 5C in humber0 The mother sOld some cattle and also engaged heise1f in hre*ing and selling local liqour. the sale of the cattle and the sadngs of the subsequentlocal liquor businoss 'she' had sorne savings of about 25,00O/=*h'ich she gave to her son to build for hOr a houae' irvhich : 'later on turned out 'tO be. Nyota 'Guest Hbuse from wh±h the r e.rit áó'criiing was' partly given' by the ui.other to the appellant to ass'i him in'oonstruct±ng his own house 0 The sLid mother 'h'Ony one son' who i.e the ael1ant and has only one eri whd'has 'got" marrIed to someone, The said Guost house was operat±ôhai from April19760 Since the appellant 'wi' first investigated by Pj -6-- Investigated by the Anti-corruption Squad of:icinls in November 1977 it would appear, if my, calcuirtions arc correct, that the said1Gues.t hoase 'r;o gainfully o -oerrti ;nl for a period of 20 months before the aapol1;ntwo :trraignud on suspicion of being financially or rther economic Ily efluent. The appellant, before the lower c orot analysed the Income and, the expenses of runr:.:Lng thot Guóst houe over which had full maidate on behalf of his mthe r, Briefly he testified that the sold Guest House os inany guests some of whom are Government officials for whom th Government pays the bills, Fromthe receipt books and vouchers ti'iat Guest House had.earped::atote.l of shs,75210/ from April 1976to May 1978 and expenesfor running It for the samecriod came; to shs.27,165/ thereby leaving the profit of shs.48,045/ and his mother gave him permission to spend somë bf that money which he spent for constructing his house, He spent slis.35,000/= out of it for his purposc. As to the house on Plot No.130 Block B ,1oh is the subject matter of the fourth con -it the rg lJnt testified that he bought it from 000 Thbiea 1k o ( icr shs.4,250/= and since 3/6/76 the oppc11nt moec rom c Gocrnment quarter for which he had )n poyj1r ie c of l of his monthly sa1ary. and got into o. I hour:: -rn thrb move resulted In ceasing paying houoe rent. i,:O d :nt lonically that since then he receive more net eel :y oj A his srlary which should be shs,(675,4i +103.5U) 77/90 per: month, He also testified that ii1 buying the.t hcuso he di not pay in a lump sum ut he: first paidrshs.2,000/ end the balance was paid by shs.200/ monthly instalments from his savings. Continuing with his evidence the appellant stated before the trial court that during the niiieteen sixties, after office hours, he engaged himself in some cattle business which involved buying some cattle and selling them, probably, at a profit as he said that increased his income. In that job he was assisted by a friend of his called John. In 1976 he had his own cattle apart from those of his mother. He kept some with his mother and other were in the custody of a friend of his. As regards the house onpiot No.40 in Mbulu town which forms the subject ihatter of the second count the appellant tetified that it is his property. Tn Oetober 1976 he got the plot and in March 1977 he stsrted the contuetion of a house on it • He entered into a oontract with on!e Isack Marck to do the said construction at thezest of shs,40,000/= inclusive of labourers' wae:es but the appollait woe to prçvide all the /7 building materials -. L - building materials required, .Frm the sale of his cattle and sayings from his salary he bd shs030 2 000/ left after head used some money on plot No,130 0 From a'frendç' hIs calledDaraho ho got a loan of thhs20 9 000/.0 From the ..... prodoeds af Nyota Gues.t house his mother authorized him to spend shs035,000/ on this construction 0 From a friend of his r11ed Joel Getaguo he got a loan of shs04,000/ while Lohay loaned him shs.5,000/ and damu Sawa gave him a loan o±' shs.4 1 000/= From the Tanzania Housing Bank (niB) the appellant testifIed-that he got, a loan of shs.35,000/= the first insta1mnt of which was shs,9,300/= and in February 197 he got the balance of shs 0 25 1 700/ which came rather late but nevertheless the construction still continued for the contractor spend his own loan from Tanzania Housing Bank for paying the labi.rers Qn the appellant'a construction on the agreed terms that when the appellant's money arrived due payrñerits wouid be traracted to the said c:ontractori. Up to the time the appellant was testifying incouthe had. not yet paid back the loan Bank with which he had ehtered a mortgage. areement and he 4.cd not also paid b.ackthe loans. he had got from his iriend. . . . . When he was questioned, by. the ;n.ti-Corruijti on Squad officials the house on Plo N040 wa 6 stil under construction and when the. said oficials loft in the same months of November 197 the ppl'l'nt continued with the cons.tructibn4 It was in Jnuari 1978, wnen a valuer came to value the SOlO house0 He came to the opinion that the house on Plot I'o040 Block A along Mag - ra Road in Mbulu was of the value of about shs.156,000/= and he tendered his report as 'bit P.5w He also valued N3Tota Guest House which he opined was worth about sh03l,OOO/= an he tendered his report as "hibit." On behalf of the appeUant it was contended by Mr0 Ariko learned Advocate as he the was (Now H1on 0 Minister of Justice and Attorney-General of Uganda) that in an earlier case of Henry Okulo v, P. Court of Appeal for East Africa, Appeal No. 120 of 1976 (unreported) the accused person :got. into trouble for failing to use his bank account- whereas in th'rstant', case the accused person got it.o.troub10 for having Qverused his account and cautioned the courts to approach such cases with considerable caution or else citizens will be in a dillema, On the - 8 On the first ground of oppeel the ?e - rriod appellant's counsel pointed out that the prosocution evidence did not lay down the foundation to sustain a i:on Pie suspicion of unlawful acquisition of the property invoied while agreeing, with the triol court?s fivitip' that there was no evidence of circumstans to raise roaeou.nbie suspicion that the property was corruptly acquired. He posed a question whethi' a reasonable suspicion tkt. the property was unlawfully acqu'ii'éd can be sustained v.ithuut the prosecution evidence laying fouhistion for it and he sbmittedtiiT t there must be foundation on the prosecution evidence in order to answer the question Hunlàwfül.y how?" He then read out section 312; of the Penal Code to see whether in the instant case there were circumstances constituting unlawfulness of the acquisition of the said property and submitted that there were no circumstances constituting un1awfu1nesrevealey the evidence in this case. Quoting the case of Pate? V. Queen (1955)22 EOfOCOAO at page 392 which assertedly invoved a very similar offence the learred counsel poinLed. cut that in that case the court of appeal held tht the b:d . of reasonable suspicion that the property was unlawfully Ptic.cd muat be there at the time of arrest as well as at tiac ct trial. In the instirit case, the lero ... aceilart's counsel further contended that thelearned tr.'d. bistrict Magistrate's reasoning seems to have been that eeL: cc the accused was... world.ng in accounts section and since the property seemed to. be greater in value than his salary therefore he must ... have got the money unlawfully. This the learned counsel for the appellEnt &ontended, went counter to the learned trial D1stiict Magistrate's holding, as appearing at the. bottom of page six to top of page seven of his judgement, that the appellant's duties lacked the powers, opportunities and the facilities for coxruption and concludedthet the sme was true for squandering away any money. He further argued that as the appellant was paying salaries which were already computerized any payments he made had already been approved by other people and argued that generally speaking just working in accounts section cannot ground a suspicion that he must be getting unlawful money Referring to the other proposition of the learned tt'ial District Magistrate that the property was too much ....../9 compiired to -9- compared to his salary the learned appellant's counsel pointed out that the principle in the cro of DOOPO vs. Fel ician (1973) E0A044C applis hro also0 Elabora.ting this argument he stated that that case i.rlVOlVed an offence of corruption whi1 is one involves unlawful possossion but he further coptñdea that both of these offences rre based upon re'sonab1e suspicion and saij thot in the case of Felician the court of appeal held, among other things, that possession of pt'pe±'ty disproportionated to the appellant's earnings per e 1 doeS not amount to a reaon'b1e suspicision of Corruption0 Parallel to that the le;rned Counsel for the appellant submitted that it does not also per Se raise a reasonable suspicion of unlawful acquisiuion without the basis beinga11eged by the prosecution. On the burden or, proof as. required by section 312 of the Penal Code the .leaThed counsel for the appellant poihtéd out that it.d.oe.s not ahift on to the accused but the accued is only eolled upon to give an explanation which is enough if it might. .e .possibly true and to support that view he cited the case of eya v. Uganda (1E2 In the instant case the lened councel for the apel.è.nt submitted that instead of a. rasonbJ.c ep1nnation the learned trial District iviagiatrato waa atr strict proof from the accused persons wh±c.h he ccntcod a wrong approach. It was also contended that the rcquir -.meats placed by the tril court on the appe-11 r.nt to require him to have . 1 called corroborative evidence to support .s various assertions was wrong in law. This involved assertions by thd appellant that he had engaged himself in cattle buying and selling buineas assisted by a friend; that his mother had given him. some ctt1e to. sell in order to raise money to build Nyota Gest House and that his mothei had given him money fDom earnilgs of Nyota Guest House and of business of local brew (liquor). On the loans and borrowings from friends the learned counsel also attacked the learned trial District Magistrate for requiring the appellant to strictly prove them by documentary evidence or oral evidence of people othexl than the lenders themselves to prove the said. transactions0 a This, the learned counsel for the apDollr.nt ariied, was double corroboration which was uncalled for tho apicilnnt to Successfully exonerate himself0 It was in his opinion a serious misdirection in considcrin the appellant's explanatiMn and pointed V ) a iri and pointed out that the learned trial District Magistrate confused between credibility and corioPcrati an which according to the COC of Musa alimOti cflV RoJ1969) E0C.D. No. 91 should not be confused0 It was also pointed out -a 1 if . yied trial District Magistrate stron iLy felt r0v some extra witnesses he should have callea thee ued.,r sac ion 105 of the Criminal Procedure Code and was hall Th the case of Faustin 'V Manoni v0 R (19 6H 00 0D29 As to the valuation of the houses it was done in January 1978 whereas the charge—shoot referred to the values of the said house as in N 0 vomber 1977 while the house involved in count 2 continued to be under construction steadly from N0 vember 1977 when the appellant was raided or confronted by the anti—corruption squad s The learned counsel for the appellant submitted thrit such amounts of the values of the' houss, particularly. of that which was still underonstruction, had to be-clearly and accurately valued and pro'ved and not casuall teatedas'contended1y done by P. W07, AlsO r'efe''erice was made to circumstnces androbb11ities V which were, 'acáording to the learned couñsbl for the appellant, consistent with the appellant's innoco•nce- One o f:sich circumstances is the fact that the apollant was bnking.freely all the time and even after The was raided by the anti—corruption squad he continued i.sing his bank account. It" was 'thu aort.ended that if he was all along acquiring the money unlawfully it is improbable that he would conttnue using his bank so freely. He also -:.ent on building 'the house involved in count 2 steadily even after the squdd had terrorized him It was contended for the appellant that if be was not using innocent money he would IIOVO suftered a hoc'nd that would have prompted him to stot building the house 0 The learned counsel for the appellant referred to the case of Selle v0 Associated Motor Boat Co. (1968) EOAO123 in support if a contention that in all cases the court should tako into occount particular ircumstances and probabilities when evaluating evidence and failure to do so even warrants a second appellate court to interfere with the trial couit',s findings of facts0 Referring to the eighth ground of the memorandum of appeal the learned, counsel for the aprollarLt pointed out that it was a serious misdirection on the pert of the trial court to call the appellant's aworn dotonce tare assertions when some of them on esaenti.al mattas 'acre sup -ported by both the dot nc e and 11 - defence and prosecutiofl It was further coritenc4ed for the appellant thr.t by branding the appc ll 2n tts assetions es bare assertions the learned trial District MagistrateOeric-usly misdirected himself and portrayed his frame of mind for downgrading the evidence of the accuec por&oft and that was failure to consider the evidence of the acused person seriôuy as reuir.ed by decided authoritis such as Mbpch The learned lounsel ror the 'appellant cited nbther case of n support of ài argument that it Is undesirsbe to make adverse remarlth agaii'ist an accused person cspeiaUy Oo when the same are ios±tent with the evidence0 With regard to the BentcncQ it ws contcred for the ppe1lant that that of one year's impisonthont without an 6ptiori for a firth was exceséite for a mere suspicion a bentence bf a fine would have been Alost approriato. In this app • Mwa18, loirted Stntc Attorney appeared tör th Reondoht (opublic) and he supported the conviction ia' by the ourt below and naturally he submitted equally r nt more, in support of the decision of the trial eourt both in conviction an the rosul\tarlt sentence. .mbng other things thc loarne'.. Ctatc ;ttcriey submitted tctt if the court is :tjfi c d tht • - re reasonable grounds for suspecting' tn the acous'ca corruptly acquired U. the property the court mpy etillconvict under sçction 312 df the. Penal Code if it is satisfied that there .er.e reasonable grounds that the acused acquired the prcorty unlawfully. Then ho posed a question and that was 'how should the court arrive at that conclusiOn? 1 He suggested that the ahswer to the above question can be found In Henry Oukulo's caie which his learned friend had quoted in the course of his sübrniseon. Elaborting on that case the learned State Attorney stated that in that case it was held among other things that In order to determinè'whethor there are cicumstaes wh±ch raise a reasonable suspicion that the property in qiieston was un1wully acquired all the evidence must be considered together of the prosecution as well as that of the defence0 Referring to the instant case the learned State Attorney contended that the learned trial District Maistrete having considered all the evidence together was satisfied that there were' cirmstw.oe thet raised a reasonable suspicion that the property In question was unlawfully acqui.±ed for thereasons he had gIven. 0/12 He further , p 12 He further submitted that sometime in 1977 P0W09 and P.W.10 who were membersof the anti-corruption squad investigated and searched the appellant 9 vho as a public officer. designated as Accounts Assistant Grade I in the District DevelQpment.Director's office Mbulu, in accordance withAct No.r16 of 1971 and was found to have deposited in his bank accounts.etween 23/2/76 and 21/11/77 a fairly large sumof moneydisproportionate to his salary. He was also foundinpossessionof three houses of a fairly 1rge value dspropprtonate to his income. The learned State Attorney poed:a.guestion: "Where did the appellant get all that property, in the form.of money..and houses? In answer .to'tat questinafter discussing the law and the evidence of the case thb 1eared State Attorney submitted that the prosecution had sufficen1y dicharged its onus andthat.as the reason Why the 1ear1e.d trial Magistra.e, cov1ed1e ppeliant under .newOction. With sentenchsiibrnitted that the section provides for maxi!flum set&xace.qff:ive'years imprisonmeflt and thus he further, submitte that the sentence passcd in the mat nt case was fairly lenient. To ne it seesthat the dot crminattet of case in the court below an-d. indaed evenin.tl4SadartLrevolves on a number of questioiisof].d linf'r tidn against the background of the factu'al situç iOir dfthe c nse, There is no doubt that the Pori of 21 months rangingfrom 23/2/76 to 21/11/77 the arpoliant had banked at different stages a totrl sthdf ähs.63,000/= and no doubt there had also been s&the ithd.raws. Also during the same ptiOd5f 21 month it also established that the appe1lOxt aOquired three housOs one of which, Nyota Guest HouOe Was registered in the name of his mother but the appellant remained the signatory of the bank account of that Guest house and virtually remained the ope:rator of that account witi the approv , 1 of his mother for theiconvincing reason tha. he was the only son to his mother. As regard the a1ues of the three houses as testified by the valuer and as disputed by the icrnod counsel for the defence this court finds thrt there as no much substance to raise dispute over the s id valuca. Substantially put at rough estimates the houses 9 or the evidence of the prosecution and on substairLial admission of the appellant were of the values as indicated on the reeective courts. /13 The question a '1 •_) . ( ' , '" • . . . . . - .; -.. .. : 4 . J. . '- ' P;t_LL1 ' 1:3 [ L , I e ischared its buM d pro &f:th iode - Y1J21rp ; eid $ 45i ! tra t eth e _,, .'11i iIt fj &uired , t?l j ) A_.J , • , T •, Jr .. .;'q"L the orr.itr ndin tecse of D V Fel.Lc 18 19'73)EA4O is e1eVDt ... 7-1 77 , In:thai case the' respónderit.(lJefórthëcduitof appeal) vJ I ' : ; -•-rç r\ •. : r was ôedty • tii policc: e:riuui'i into his wealth it wçs .est&-ihod. th•t hehad accured'assets ç )) y4 J j 1 ) J valued at ovrrthre ticjhis brrgfr the period Ôh e'iriea .E 1fj ..4!............ ..;. th dcqire1t1it hO'It?.ft i'e'àsonably be LLJ flH.J 1.'! Jj . s J suspect: vng orup,y He was i ni : ')[ / AJC .JI1L4 IV&) was while ps.idi.ig ovei 'Shinya1g Dj.s tric tç 1 Court 'bu t the r ' •'tJ '4 -, 'ônvi6tion CSwãsguashed by theH1h Curt ofTnzthia (KTharigà, p 3.,) orthe ground.thit, 1t);wEspOsS1b'1e bflt :'he had acquired S 'L. p -, 4'. the corruptioñ. '. The Re'.public was not 4hc1y'Th1th tbtdr ecisiorf and being d1ssatisfied with it1_ cipperld to -tnL Court ofAppeal ( C.. J'{ '.. . • ,1 .., .-'.,., . for East Dismissing the sc'idp.peelthrt CjUr held "(i)Phero.must'be réSonabie"suspicio'n that the, officer has 60rruptl1 cquircd pro.ory, (iIf 'her 6 ch usp1cioitne of2cor musty show on the belancc of 4 procc'iitics / I £ that io dd not acQuirethc property corrupt1y On tIe Thctspxovod, "flo 1resonLlor SUSp1C]OI - xf co'rru.tibn.hd:'bee'n hbwIh'hoYb,urd&n . 4 ,shifted to the respondont) In tho instont'cc'se th'ep ~ cllc'rh wrsch'rged undrdec1ion 9(l)ofYthe Pre'ention ofCoruptionAct No, 16of 1971 in ,1:: állth'e''iircotthts.- . '': ..• . 4', I- -.,., -'' 'j •' r' r - '' .' ' . .'. -, Sectioh'9(1-)',of the Act'r.eads s- follows: 11 9(1) W re''in corisequene ofanyinvestigti'on mddè r'su'. an' .,-.to section 8 or of a search conducted pursunt;to section l3orof an i'nvôstigation' of-a bank abcountpui'suant .... to section 12 'or of "an, ine'stigztibn carried oütb or under. the direct-ions of the: Direátor of piibiic: Prosecutions, any public offiber 'is found'to.or. to have been 'in 'possesion Of any propety, or found to h a vei received t1.e benefit'of any ser'ico,...,which,, he may reasonably be suspected' of havin corrutl acquired or'rebeivèd'whon"he - hc'1d a public offiáè,'' such public officer may be cbirod viith having, or having had ixhis possession pr-rty resoneb].y ../14 susprcted of •' -% . '., .. , . - .4'" Z 'I' / - 14 - uspected of having been corruptly acquired. or, as t4p case, may be, with having recoived the benefit of services rer.scn - Lly suspected of'haixig been corruptly receivcd, ndif such ipabiic offiäer f ails to iy hccour t that he did not corruptly acquire tic 'rLra8 the case mdy be, that het; r ec e I Vetb oneof servicesheshn1l be liable onconvict1on to irnridnnient for a term not exceedi.ng fiie years,:.i.nd in.ii tion thereto the coVrt ziay ordor that tho property acguired by , him be forf e it.d o tt - (NO3. underscoring providedbyrne foremphasis) As held by the court of AppeE'1 and indeed as i4ttia1ly properly apprehndé by hierrna tiiiátriäMgistrate in this case, thisCouxt rspectfu1lyc'greos that onmi true legislative construction, the above subsection means-that before a charge can be brought there must be a reasonable suspicion that a rublic officer has, while In officeb corruptly acquired property or the benefit of sa'vipes... If that condition is. shown to vem sat isfi1e theonus of...proof. a.se ,s to the accused p'eox'td stb]ih,Y ñ 'a piobabi1ity, Lt fltj t. k 1 -r th t he autred. OtyP t l. bea9fit .O4 the TJ pqrvices in a woy tb aJrdt I, hvr ho basis or hc did n't c, r'mt.k' eU i' 'y t,r as the chargis n hw to ec1$teç., 1 the onus verpasses and therei1x 't. ;ir' -' The Ø)ct ti9n sw'th re reasBrsble grounds I'or suspec tin Ua h' beh dr)ruptl. aouir. •••t1 1m •& 1 Accordiri to the Chief Resident h'th a'hé .nb 'h sit 'tin as follows: if3 hi 1t L 8 idfl1fly a statut'ory .b den caSe,i1et"..LiV propr J,q9efi 1Jirg on]y ;tO qç: in th: r ) tjLc.U5eC : ,) ublirc of cer ri truc 1 • 4 , was 'found to. be or to have been t 1 4 O7U.L ( 4, r. . possøssion of property- and 4. }, 4' e i ehrrc he hty b' roaeonably SUOCtWi 1C tit r •u1.t Vingpr qi, property, i0e0 that the said pDopery p'oric.rt/ ')t L' . wd pxoth4'iohate to his .kflb'.L'. i; SPUrpO' the 'had donehis, as it had succeeded CCUCd -' 'td do Jixith& ik-istbflt cksi, the '' tbbi1iy th't . ri . .hifts accud.j, showon the balance of probabiliti.es y 1Jh tthb'thd n corruptly ioquired th.. v'r' - ?Tis •: • ' 're'thains for the eourt' to .j sat 1sf id nc1 t doubt as to ivhether Thc- • aáuscd is guilty on the vjice, 'wholeJ - •j6 oo. o/1 LCC,T.,iflt ......- . ' ' . .• , Differing with the above analysis of the case andthe question as to 'what are reasone.ble roundo for suspecting that a property has been corruptly acquired and agreeing with Icisanga, ' the Court of ApóEl he]:d that there were two......... mis'diretions in law in the passage quoted above0 The fIrst one,is that mere possession of property of disproportionhte value is not enough by itsoif, as indicatod in the said passage, to raise the suspicion of corruption for an official found in possession of property Dpparently disproportionate to his means may have acquired. it by means other than orruptibn though possibly by other unlawful means or dicre- ditable means0 As reasonable suspicion of corruption may be founded on a fact that the accused person was in 6 pbition where he would be able to solicit or would be likely to be tempted by bribes or other corrupt rewards and in that context evIdence as to his known assodia't±ons may also be relevant. The second misdirection; their Lordships thought was that the fin&l sentence of the passage quoted abLove was incorrect for if the onus shifts there is no residuIl onus on the prosecution. The accused person onco the onus shifts to him or her must show that the probability tht he aduired the property otherwise than corruptly, is grerter even if only very slightly, greater, than the prObability that 'it was acqu.ired corruptly. If he fails to disch-rgo th"t onus he mUt ba donvic ted0 This dourt respectfuily'aroes with the analysis of the law as propounded by the court:pf appeal and to that extent I must sy the learned trial District Magistrate correctly applied the authority of the case of Felician, as decided by the High Court and as upheld by the Court of Appeals 011 Second appeal, tO. the instant case. Like in that case, in the instant case the appellant was not in a position where he wOuld be able to solicit or would be likely to be tempted by bribes or other corrupt rewards; In other words the appellant was not in a position of any consequence that might prompt incJ.j.ctjons to any members of the public to give him a bribe or for him to Solicit for one. On the position of the appellant in relation to his affairs in connection with his office the learned trial istrict Magistrate correctly addressed his mind as follows (page 5-6)(of the typed judgement): "It b.s - 16 - "It has bc..en stated by own prosecution witness and for that. matter is the District Manpower Development Officer (w.I) that the accused ha.s no iowers in his duties to give the people favo:ere that could lead them to bribe him0 He said that the accused does not assess any tixes he does net negotiate with Govcrnmott Contractors or suppliers .ortransporters He dceo not approvè'payment vouchers himself He does not issue L.P00 2 s. His main duty is to pdy salarida to the employees of the as 1r! D0D.D's ofiice, s.a1aies alreey compu.erized. He. also paysothr people who :jve services to the-Government or supply goods to the Government0 This is only when their claims have been epproved for peymen by other authorized officers in the D.D 0D's office. s He côlléc:ts revenues which have been a1read apprcved. It has not been established by any evidence vho would bribe the dac,uséd and what for Mr. Mwale also subnit,ted that th accused was dealing with pritEte. businessmen such as vThulu Trading Conipany. Mbu1ü..Trading Company mainly deals with transportation o1 goods and passengers0 Of cOurse ;it.must: have some dealings with theoffice of. the D.D.D's Mbulu such as trnsport±ng goods or some of the amployes of the D.D0D's office. But the fac,t.still remains that it is, not the accused who negotiates with this trnnsp.ortc.r, it. .13 not the accused who prepared and au.thorized payments for this trthlsport clam The accused according toP0d0I, only pays when such claims have been prcT:arod and authcrized for payment by other appropriate. oft Ic Oils of the D.D.W8 office0 :Milb Mwale aJ..eo submitted that the accused was used to den1;ith Darabe, D0W.2, in that he negotiated foil his beans to be sold to Ilboru Seconc"ry School0 There is no evidence to support this proposition that the accused negotiated for the beans of DW02 to be sold to Ilboru Secdno,ry S c hool. There is no evidence to show th: t 'hen Ilboru Secondary School is in need qf goods, such goods are o'dered by the D0D.D's office. After all IJThoru Secondary School is not a Government school, it is a private school and therefore I do not think that it has a.. anything to do with the D.D0D's officeJ Having so correctly addressed himself as to the position of the appellant in relation to his affaire in coxmection with his official duties, as quoted above, the learned trial District Magistrate camO to the right conclusion when he ruled and I quote: "Having carefully considered the submissions made by both learned counsel for the defence and prosecution and the evidence before me 4I —17- • before me, I am --not stisfiod th t the prosecution. has dischargod its onus of proof- that the: facts and circu;istancos as established. in the prcsocution c cc aie sufficient to raise a roacn'h1.c ipicion of corruption aainct the acusedtJ •tjpoh the above analysis of the avid once of the cae the learned trial District Magistrate found the appellant not guilty on all counts and acquitted him of the cffonce of bing in possession of property orruptiy acquired involved in alIthbse four counts. That Oonclusion, this court rspcctfully argees with, was properly arrived at but the storj did no. end there hence this appeal by the appellant and I now turn to what happaned thcreafte in the course of that judgement0 Acting upon subsection (IA) of section 9 of the Prevention ofcorruption Act No0 16 o± 1971 as amended, by adding immediately below subsection (1), by Act No 0 23 of 1973 (written Laws Miscellaneous Amenuments Act 1973) the 1 learned trial District Magistrate found the appellant guilty of being in possessionof property suspectodof havingben unlawftlly acquired contrary to section 312(1) of the penal Code as amended by Act No. 26 of 1971 section 5. • Subsection (IA) of soot,On 9of the Prevention of corruption Act referred abovO reeds: "(IA) where 1n any pCoceedin,s undor subsection • (1) the court.is s - tiCfied that thcre were no reasonable g1'buMs for suspecting that the accused corruptly acquired the property. but tha t the circumotanccwore such as to give. rise to a reasonrblo sUsoicion that the nccuscd rnv hive rOd the rroner court may, ir t cUsed tails to satisry trie court that he did not ac quire thery unlawfully, donvict the accused of the Offence under sectiofl. 312 of the Penal Coda, and the fact that the accused was not fOund conveying the property Of in possession of the property by any Police Officer or a Police Officer of any particular rank shall not afioct such conviction if the accused was found tO be or to have been in possession of the property in consequence of any investigation or search carried out'under this Act" (N030 Underscoring is provided by me for emphasis). On a true legislative contruction, I think that the Wbove subsection means that where the prosoctulon establishes circumstances such as to raise a reasonable suspicion that the accused may have acquired the property not necessarily corruptly eo /l8 but by 4 - l - but by some other means whicI e unlawful or could be un1awul then the onus shifts to the accuod poroon to satisfy the court that he di[ iot adquire the: e•id pooperty unlawfully, and should be fail to so satisfy the court then the court may convict the accused of the ofoncc. uror section 312 of the Penal Code as amended by jct No0 26 of 1971 section 5 In the. instant case the burion had shiiiod to the appellant to establish or prove on the balance of probabilities that he had acquired the said p±'operties not unlar'fully or by some other means which could be unlawful. The appellant consistently mainteihod in the trial Court and indeed before this court that he had his own savings to the tune of shs..30,000/=.afld had taken loans from friends to the tuneof....shs.33,000/= and had gotoarnings from Nyota Guest House belonging to .his mother but virtually he was th control1er of those earnings as he was the only son of his mother. . .. This court is of a view that the large deposits areconsistent with a man of business concerns and gets proceeds from business, . He had done buying and selling of cattle forsa number of years before he emhackcd on constructions of the disputed houses. Cattle iDusiness boir lucrarive as it is, if on e was born. under lucky stars, could easily fetch one such large sums of money at short interv:le, if properly managed. Also talld.ng the. language of politics of this country, if anything forshoeracadomic exorcise, the appellant at the material time was not a lehor as to ho under the purview of the restraints of the Arusha Dec ln.rc tion ehih produced the leadership code because his gross salary per months was only shs.1 9 035/= whereas for one to be a leader under the leadership code his gross monthly salary was to be shs.1,066/=. Then he is caught up by the arm of the leadership code and in that event he is not, at least p1itically, allowed to conduct business for getting extra incomes. The appellant was perfectly in order to engage in cattle business and his mother was also permitted in law to engage . in preparing and selling local brew which in nost parts of this country is a very lucrative type of business. People have been known to have built good and impressive houses out of earnings from local brow Also the appellant proved that he had also applied for a loan from the Tanzania H 0using Bank (THB)O am of I am of a considered opinion that while agreeing with the trial court that the prosecutionhad discharged their burden tht under the circumstances the appellant could have acquired those properties unlawfully and that the burden had shifted to the appellant to rebut that contention on the balance of probabilities, I do not agree with the trial court that the appellant failed to discharge that burden of proof unless the learned trial Distrit Magistrate insisted on proof beyond all reasonable doubtg. Being the defence burden the law requires such proof to be estblished on•the balanc of probabilities only. Had: the learned trial District Magitrate dlrectd his mind to this aspect of the law and had he applIed it to the defence bxplanctldn of the appellant as indicatedabove he would not have failed to notice that the appellant had èufficiently dscharged the burden and that he should have acquitted him on all counts in that case. Before I conclude I would like to comment on the manrér this case was handled by the Antiorruption Squad. From the record, to me it sems that the case was investigated with peculiar overzealousness hence the hurry in handling it which resulted in a lot of mishandling of pcoplc and the case as a whole0 However, taking into account the fact that the Antiorruption squad is a young organization in this country, they are trying the best and one would like to hope that passage of time the unit will reach maturity and performance of the investigations will be conducted with the acceptable zealousness and not overzealousness which may be very detrimental not only to the individuals concerned but the same might result into decline of economic development which this country badly needs especially now when we all ought to reconstruct our development after the war effects eventuated by our lIwful course to punish Nduli Aminb Going back to the case, it is for the foregoing reasons that I allowed the appeal of the appellant as indicated above and ordered the return of all the properties to him and it is iuy hope that by now the authorities concerned have complied the order of this Court pronounced on 6th October,1978. Delivered in open Court at Arusha this 20th day of July,l979 E. A. 1\MESIUMO - MTS O 1GE For Appellant: t4 —20- For App]lant: Mr. W. A. L. Miranfoo, Advoctc, holding brief of Mr. Musei Advocate vho in turn was expected to hold 1riof of Mr. S. A. xiko, Advocete and currently lso Hon. Attorney General and.Ministdr for Justice in Uganda. For ResDondent: Mr. Ikanga, Stete Attorney QQQ 09/ /.