19770305 TZHC Dar es Salaam

¶ \ NTF?EHIGCJRT OF TANZANIA AT TANGA \SUB-RGISTRY -J JtPPELLATEJURISDICTION NO0 10 OF 1976 104 of 1976 of the District GErnga District at Tanga BEFORE; J. H. MSOFFE, Esq0, Resident Magistrate JUMA MALETA : : : : : : : : : : : : : : : : : : : : : APPELLANT (Original Accused) versus THE REPUBLIC : : : .; : : : : : : : : : : : : .: : RESPONDENT (Original Prosecutor) CHARGE: Corrupt Transaction - contrary to section 3(2) of the Prevention of Corruption Act No0 16/71 JUDGMENT/ORDER BIRON, J0 The appellant was convicted of corruption and he was sentenced to imprisonment for three years0 He is now appealing0 The proceedings are confusing in the extjeme! It would appear that the investigation by the police was casual, that.;the presentation of the case by the prosecution was inept and the magistrate in his judgment appears confused as well 0 The particuulars of the charge as laid in the charge sheet. allege that:- "The person charged on the 20th day of February, 1976 9 at about 09.00 hrs at Labour Off ice, within the. District and Region of Tanga, corruptly solicited and accepted from one MAZHAR G. YAMANI cash ths...00t- note No0 A.771679 as an inducement or reward for doinçj anything in relation to their (sic) principal affairs, to wit forgive the said Nazhar G. Yamani to pay shs. 35,767/-..as.a provident fund to his servant Musa Mohamed 0 t' However, in the correspondence with the employer of Musa Mohamed named in the charge sheet, there is not the sl)g1test mention of any • provident fund, but the complaint against toe nnPloyer was in respect of overtime and failure to give the employee a iiy.off per week as required. Yet, according to the prosecutor and the defence counsel,

OF TANZANIA AT TANGA \SUB-REGISTRY 0'\tPPELLATE JURISDICTION 10 OF 1976 104 of 1976 of the District GQ&Tanga Pistrict at Tanga BEFORE: J. H. MSOFFE, Esq0, Resident Maqistrate JUMA MALETA : : : : : : : : : : APPELLANT (Original Accused) versus THE REPUBLIC : : : : : : : : : : : : : .RESPONDENT (Original Prosecutor) CHARGE: Corrupt Transaction - contrary to section 3(2) of the Prevention of Corruption Act No0 16/71 JUDGMENT/ORDER BIRON, J. - The appellant was convicted of corruption and he was sentenced to imprisonment for three years0 He is now appealing0 The proceedings are confusing in the extreme!. It would appear that the investigation by the police was casual, that., the presentation of the case by the prosecution was inept and the magistrate in his judgment appears confused as well 0 The particilars of the charge as laid in the charge sheet allege that:- "The person charged on the 20th day of February, 1976, at about 0900 hrs at Labour Off ice,'within the. District and Region of Tanga, corruptly'solicited and accepted from one MAZI-IAR G. YAMANI cash shs000/- note No0 A0771679 as an inducement or reward for doing anythng.in relation to their (sic) principal affairs # to wit forgive the said Nazhar G. Yamani to pay shs 0 35,767/-.as.a provident fund to his servant Musa Mohamed 0 " However, in the correspondence with the nçloyer of Musa Mohamed named in the charge sheet,

there is not the sl.g1test mention of any provident fund, but the cOmplaint against Ite amVloyer was in respect of overtime and failure to give the employee a dy-.off per week as required. Yet, according to the prosecutor and the defence counsel, the matter would appear to be concerned with payment in respect of the National Prvident Fund0 And the letter from the Labour OffIce conveying the complaint is baffling in the extremel As it is impossible to understand how the employer could be liable in the sum of shs. 35 9 767/-a However, what emerges with more than sufficient clarity from these confusing proceedings, is that the employer Nazhar G 0 Yamani' (P0W01) received a letter from the Labour Office in Tanga alleging that he was in default in the sum of shs0 35,767/- in respect of payment due for overtime in connection with his servant Musa Mohamed,' According to his evidence he Was called to the Labour Office, and when he went, there he saw two men, one of whom was the appellant, who is a Labour Inspector in Tanga0 And the two men told him that if he gave them a hundred shillings the case against him would be dropped0 Yamani reported the matter to the police who decided'to set a trap0 It was arranged that Yámani was to go to the Labour Office' and hand a hundred-shilling note, the serial number of which was noted down by the police, to the appellant, and on his emerging from

the Labour Office he was to take off his spectacles as a signal to the police officers who were outside the building, that e had handed over the money to the appellant0 Yamani further testified that he went into an office where he saw the appellant and handed him the hundred-shilling note 0 When he left the building he took off his spectacles thus signifyirig that he had handed the money to the appellant, ' Thereupon several police officers, under the command of Detective Sergeant Badi, who had stationed themselves around the building, movet in0 The appellant, however, had by then left the building and when he was walking outside the building he was apprehended by Detective Sergeant Badi, who told him that he we was arresting him for havInç received a hundred shillings bribe 0 .1, - . 3- The appellant denied the charge and threw away a note which when picked up, was found to be the hundred-shilling not.e the serial number of which had been noted down by the police.- The appellant in his defence denied having even known Yámani let alone having solicited and obtained from him a hundred shillings as a bribe. He asserted that on the material day when he went outside the Labour Office to answer a call of nature, he was followed by the police who arrested and charged him for having received a bribe of a hundred shillings. In fine, the appellant's case is that he has been, to use a

colloquial expression, 'framed' by Yamani and the police witnesses 0 However, he could vouchsafe no reason why they should have done so. The issue before the learned magistrate was purely one of. fact, as to whether the prosecution witnesses should be believed or not.. The learned magistrate directed himself very fully on the evidence and also on the law, correctly stating that whether or not the appellant had the power to have the case against Yamani dropped, was irrelevant, as the bribe if solicited and taken by the appellant was in the language of the section under which the appellant was charged, paraphrased, 'for doing or forbearing to do .,.,,.,..,,... anything in relation to his principals affairs or busIness,'. In his petition of appeal drawn up by counsel, it is alleged that there was no corroboration of the evidence of Yamanj. With all due respect, thisis absolute nonsense, as Yamani cannot by any stretch, be regarded as an accomplice. As remarked earlier, the real issue was one of fact. The learned uiagistrate who saw and heard the witnesses and the appellant, accepted the evidence of the prosecution witnesses, in my view quite rightly, and he convicted the appellant as charged. Foe, as a4mitted by the at appellant himself, there is no reason/ill why ny of the 0 0 0 0 0/4 _4... prosecution wiEnesses should have lied and perjured themelves in order to 'frame'

him0 With regard to the sentence, it is the minimum prescribed by law, as laid down in the Minimum Sentences Act, 1972 In the result, the appeal is dismissed0 The learned magistrate is requested to write more legibly; as not only has the copy typist in the High Coürt.failed to decipher his handwriting, I, likewise, have repeatedly corsu1ted the manuscript, as some passages in the proceedings ae not only incomprehensible, but do not even make English0 Delivered, in Court at Dar es Salaám this fifth day of March, 1977 . f- ' (PHILIP BIRON)

JUDGE