19730212 TZHC Mwanza

V . IN THE HIGfl COUiT OF T,N.: 1 NIA &T M'2J\T';A, ppT.Lj , JURDICTION S CRIMIN7L iPPE&L NO,. 270 OF 1972 Qrigna1 Criminal Case No. 39 of 1972 of the District Court of Karagve District at Karagwe - Before F.N. Bu'oorwa sq.', District Lagistrate. Ka"bendechi s/o igon'go .. ... ......... . . ippellant versus The Republic . . . . . . Respondent. JUDGEkLNT K.B2NDECHI s/o IOTO was charged with 'd convicted, of corrupt ransaction with agents contrary to sections 3(2) of the Prevention of Corruption kct No. 16 of 1971, and h6 was sentenced to the mrnr"mi tern' of imprisonment of three years as provided for in the I ininiuri Sentences -ct, 1972, being ct No. 1 of 1972. I' was ordered that the Shs. 20/— teb e foreited to the G-overmcj-it" e appealed agaiast conncthon, sentence andorder. The appellant wps -'het at t a hcaranr of is -apea1, as e indicated that he did not wish to attend, but his grounds m for appeal were taken into account, iThe respondent 'eub1ic as represented .by th,d learned 'State Attorney Nassawe. The appellant lived in this Igyabionza'.Divisionin Icaragwe District. i'ustaôe s/o Ciaveri (1-.7.1) was the Divisibna1ebrery for the, area. On the 19th day of November,1971, at about 10.30 a.m., Claveri received oral' donrplainant from the inhabitants of Chakafuko village,.: which was within his jurisdiction. They complained to him that there was, a certain person who was

ttbewitchingtt the rains. It coincided that there were no raises, at all, at that time in that Division. He took up the matter. He'alled a meetig and the appellant attended it. During that meeting, the appellant claimed that he was capable of.rnaking rain and that he 'was not doing it because there was a group of. people who opposed 'him. Following the llcged adrission, tae pc ol', who were at that meeting, resolved that. the appellant should be removed frbi their village. However, Claveri' thought that it was not a reasonable, course of action to take 'against the appellant. 'fherefore, in on effort to appease the group and to calm their tempers, he took the. epp'ellnt into his office. He said that he actually wanboa to check the legal position - whether there ias any legal provision to deal with the appcllants allega- tions He said that ity,,Tas part of his duty, as a Divisional Secretary for the area, to deal with public complaints appellant fo11o' ed Claveri into the office and, as they enter'ed, the office, appellant asked haii to forgive him so that he was not expalled je begd him to do all he can to dissuade the public not to send him away is he would suffet serious loss, in terms of property, and he offerred him ,ihs.20/—, in the firm of two currency notes, ashis ±'eward fo disuadin'g the public from taking the course they' resolvcd to take. Claveri told the appellant

that he was not interested in the money, and that he was only interested in the Iusticc, 01 .. csc, bu appeai ,ed not to understand his explanation. 7e talked to him in Ki.a.weliii and then he changed to Kinyo.rrbo when he realised, that 'thc appellant was not understanding him. /. - 2 - The appellant was a 75inza but he appeared to be familiar with the local language of the people4 Claveri called in his messenger, Julius s/c Gaspar P1T 2), and asked him to help him to explain to the appellant his stand in the situation and Caspar did so, again in the local vernacular. The appellant was still holding the money in his hand. But the appellant insisted that, nevertheless, Claveri should receive the reward for his efforts. Claveri recived"the money, in the presence of his ussenger, and he proceeded, forthaith, to arrest the appellant, for giving him a bib nd.t.obk his, to the Frimery , Court,.and. .subseçuently the Police took- over the charge. of he case . -ahich was filed in t1he'District Court of Karagwe. ' in his aorn, &efenpe, the appellant admittc d that there was a meeting, and that the villagers blamed him for withholding the rain, but he said that it was not true that he was doing so. Nevertheless, he said, the villagers resolved that he should be removed from the village. Ho seid that tha Divisiona'l - 'Tecretary took him to:his office and then relesod him. However, he

said, when he went back to his house, he found many people had gathered at his house. Ho said that he took the alleged money,. and handed it over to ti Divisional secretary as fees for suing those people who were at his house and who kept on blaing him for the non falling' of rain. He sa._-id that he talkedto the Divisional Secretary in Kinyajnbo and he thought that the said officer did not understand ham, s he was no'ç certain rhether he vras a inyenbo as rell e- sid that he did noc understand. Kisahili well and that thats tha l-agu ge Lh. Divsioal bcreary u 3poke in The Divisional Secretary said that he was a nyeabo and that he understood his father tongue very well. and, in cross exanatio, he said that it as not true that the appellant told him that the money was Sebs for opening a civil suit.. The learned trial: 'magistrate, after taking into cons iderat ion all the points raised ty the px'osecution and the . defence case, held that the correct and the true version was as explained, by Claveri. He said that Claveris 'versiOn .as substantially sup'ortcd by that nf Gaspar. Ho rejected the def' - nce explanation, He found that the money as given s a reward intended to induce Claveri to act in his favb-tir arid the±ef ore it amounted to corrupt transaction, and, thre- fore, thb appellant was guilty of the charge.: In his petition of appJal, he coon -tended that the trial

magistrate errd in' aocepting the avid,nce of Giaver.i and G-:.spar. Ho said, that the evidence ves false aha fabricated.. Te 'said. 'th.. t it was part of .Claveri's malicious plan whOn he took him into his Office so that he el' could. have the oPportunity of framing up allegation of corruption when he paid that money as fees for a oivil suit. He said that Claveri hated.him. These matters, which the appellant ràisd an appeal, were not raised. at the'trIal. ThOre was no allegation of conspiracy between C1veri and G-aspar; and there was no 'allegation - not oven a mention of it - that Claveri hated him. In all probability the appellant is juàt fishing for excuses, in an effort to discredit Claveri and G-aspar. The ii' cidence, as narrated above, was given fairly. If they, or any of them, hated him, it would' have been quite.'convenient for them to accept the resolution of the villagers immediately and .proced, in their administrative capacity,whether legalor'bth.nvise, to remove him from the village, as resolved, but' they did' not do so.. Secondly, the amount of effort, Claveri and.Gaspari, spent in explaining to the appellant thL' position of Glaveri in th aituation', in.otal disregard ,of what the '' arpellarit intOnded to do, showed cloarly that they had no personal grudge, or hatred, or malice, of any kind towards the appellant. If they had, they would early have accepted

the money without further delay, and proceede.d to proecute him for corruption. . .... . 3 - Thirdly, I am satisfied, like the learned trial magistrate, that there was no misunderstanding. Claveri and the appellant uaderstod Kinyambo which was the lenguage used, after Claveri had realised, that the appellant did not understand Kiseahili very well. In all circumstances, I am satisfied that the learned trial magistrate was entitled to accept the evidence of Claveri cuj V2spar, and to :.ct on it. The essential point, in this case, was whether the money was given with corrupt intent. Claveri was an official incharge of the Division. ':hether he had the power to remove him or not is not material (see KORB'. sic FdR v.R 1967 HCD No. .92) ,, as long as the money was way. In his official capacity, he could have had effect, one way or the other, on the resolution of the villagers. This the appellant understood very well. Hence, the .ffer of the money, in the form of a reward, was intended to influence Claveri to act in his favour and to do so, in my view, is to corrupt him, whether he could or could not remove him legally. As it was held, in the case of ALLY KdStM v. R (1972) HCD No.186, it is wrong to compromise a public officer, such as Claveri in this case, in his honest and impartial discharge of his official duty. In this case, Claveri was athempting to deal with the delicate

situation in an impartial way.. It was unfair and wrong for the appellant to try to influence his mind, in the manner he did. I find, thprefore, the learned trial magistrate was right in finding the appellant guilty of the charge.. The sentence imposed was one of three years. The amount offered was Shs.20/1 , but the evil effect of orruption is great, whether the amount offered is negligible or huge. He was a first offender. However, in terms of Section 6(3) of the Minimum Sentences ect,1972, et No..l of 1972, special circumstances did not apply in this case. The trial tourt ordered that the money, which the appellant gave, be forfeited to the Covernment. The trial Court did not indicate under that provision of lee: this order was made, however, it was possible to mak: sach an order under the p ovisions of iection 3(3) (c) of the Prevention of Corruption ict 1971, but those provisions - refer to the accused rho received bribe. In this case, the appellant was the giver of bribe. It was not, therefore, applicable to him. The positions discussed in the cases of KORBA F:R'±I v R (196) H.C.D. No. 92 and R v NC-OBILI s/c IVPULILA 11968) H.C.D7o. 231 is still valid. In the circumstances, the trial court had no legal power to make the order. It is acording1y set aside. ORDER: Otherwise this appeal is dismissed. Delivered in Court at Bukoba on the 12th day of February,1973.. :'' 12th February, 1973 Z.N. dL—Kindy JUDC-E Appellant - absent Mr.P.Ntabaye, State .dttorney for the Republic. ,_. . .