19881210 TZCA Dar es Salaam2 2

IN THE COURT CF APPEAL OF TAU2.A1HA

AT MWANZA ( CORAM: Nyal_ali. C. J. 2 Makame, J. ,'1.o~...:.Pr., Omar, J. l\.. ) CRIMINAL .Af'H~AL NO. 105 GI' 1988 BETWE}.JN MAGOIGA MNANKA • • • , • • • • • ·• • • • • • 0 •

APPELLANT

A N D THE REPU13LIC . . .. ~ • 0 • . . . . .. .. m.s f'ONDE.N.l' (Appeal from the conviction and. sentence of the F.igh Court of Tanzani;:} at Mwanza) . (Katiti, J.) D-sted tbe 25th day of Jti.ns_,._.1,288 MAKAME, J. A. : The Economic Crimes Court sitting [r0 Musoma, consisting of Kati ti, J. and two lay members,. founa_ ·;;he ar.peillant Ml1GOHM MN/1.NKA gllil ty of Corruptiony contrary to sect ion 3(2) of Act No. 16 of 1971, read together with Section 59(1) and Paragraph 2 of the First Schedule to iict No. 13 of 1984; and convicted him accordingly. He was consequently SRntenced to imprieonrnent for three and a half y,3ar::', This was a majority decision as one lay member dissented and. found the apnellant Not Guilty at all. Before us the appellant was r0pre:sented by Mr., Rw8'J'1qm1mu, 1 learned advocate, while Mr. Mussa, l 0ar11cci. State Ati:orney, anpeared for the res9ondent/Ropublic and oppo 9 Gd ·~h,i appeal • . . .. /2 • l'l , 2 . r The evidence was that at a Cultural. Ehow in Musoma T'lbwnshi p on 24th November, 1985, the o: C. D. , Musoma District, P. W. 1 SSP Hl,ULL spottPd the ;c:ppollant 's father in the crowd. The appellant's father bad. been deported to Tunduru from which place he had irrcg1.1.larly departed • and gone back to Musoma. On receipt o:f:' Police messages from Tunduru to P. W.1, asking him to ur 0e th-:-. 2ppellant 's father to go back to Tundur11,

P.W.l had approacl1_3d the arpellant's father in August 1985 1 11rging him to go back to T11ndur11, and inde.1:d later :1 relative ass11red. P. ';J. l that the avpellant's • father had already gom1 back to Tund11ru. F. ~i. 1 was therefore surprised to s Pe the appellant's f:1ther a·c the Cultural show in Musoma Township so he ordered his .arron-~ 7 to ayait trai,.sportation back to Tunduru. ~ftcr the appellant's fathor had beon so arrested, the appellant kept on pesteri.ne: P. W. l with requests that his father be released on bail. r. H. 1 r0fused. Eventually, and this is common ground, ·1ili,:i arpE>llant and P. W. 1 met 1t P. W. l's house one aftcrn0on, by prior arrang;,ment. There is a divergence of contentions . a;..\ ·'.:o the purpose of this ·' rendezvous. The pros~cution said it wcio so that the appellant might give to P. w. 1 ,Jhe bribe the appollnnt h&d promised to give to P. w. 1, :rnJ for this P. rJ. l l1c1el nrndo pr;,_parations for a police trap. On the other h:ind, ·ch.-i ;:,ppellant said that ' it was merely so as to get P. W. l's r(H~pons0 to the anpellant 's request that he be alJ.owed to furnish hi::: father with -'.3 box containing clothes and medicines; and soma money • . . ••/3 3 The evidence by r. W. l is that aftor ·!;he arpelJant had persisted with his r~quests for his fath~r's release on bail, and P. W. l had repeat,Jdly tu.rind down those requests, on

the iwentual material ·.'hy -;;)l;i appeJ.lant accosted P. W. l and told him "Mzee nisaid.ie mimi nina mzigo wakz, 11 and when the appellant :iisclosod that the 'mzigo' was shs. 30 7 000/- so th:it P. d. J. :::hould release thA a-pp0llant 's father and han-d him ovor to the arpellant, for the latter to tako to Kiagata 1nd -th1roafter · to Tunduru, P. W. l invited the appc1lant to take tl!:o money to his house at 4.1,,0 p.m. that day. F. W. l decided -·~o trap the appellant. True to his word, tm appellant we.nt .·i:.o P.W.l's house at 4.30 p.m. Wai ting for the appellant to transact' 1..;:i:th L W. 1 were hiding in a bPdroom by prior arrangement with ~~l, the Regional Police Staff Officer., M<1ra Region, P. W. 2 SSP KJ\LmrnoLA and another police officer, Deputy RCO, Slip-~. SHEKJIL/\G:E. who did not tf!stify 3t tne tri31. The an.pellant w:~s caught red~handed giving shs. 30·, 000/- to P. ·w.1. This m::l·· criaJ part of the Prosecution evidence 1•1as supported b,y P. '.·I. 2 who 1lso repeated P. W. l's assertion th~1t when P. 'tJ, 2 3skc,J. tho ar-pelhnt wh::it the monfY w::is for, the appell:lnt :J:1id that it was so that his f1 ther might be rele-1sed. The appellant doni0d the above vorr.J:i.on. As aforesaid, h.fl said that his mission was to find .o~-~ F. W. 1 1 s reaction to his request regarding clothes etc. for his l',:rthor. Immediately after the appellant ha1 sat down,

thtH'G Jnrnrged three people "from no where." and arrested him. "Bu-~ on the coach there was a bag,,:9ge of money (fnrushi la ela - sin)• .. ,, 9 for what purpose, I did not know". .. .• /4 4 The trial court considered the ovic'Lcnce for and against ~ a-ol)E! 11an t · and , t n~ by a maJ·ority, decided that the prosecution 111i~te-S8~S we~ credible. The court w2,f1 ~iatiefied th=:it the appellant had really given the money tc, P, '.·i. l as alleged, :and .J that his intention was so that his. fathc:,r might be released. Mr. Rweyemamu fil0d seven grounds of. nrreal. He did not arg~e them in the s amo sequence as· they appear, we su_prose mainly because most of them are intel'--r8l1:1·;;od. We summarise them thus: P. W. l's action of ordering the appollant's .f~ther's .3rrest was not proved to be legal, and for hiG princip1l, in the first · place. In connection with this Mr. Rwoy::,r,\amu advanced the further aIPgu.ment that the -:11leged detention iis,Jlf had not •een estarlished ' to be legal. From this Mr. Rweyemamu ar~ed that· P,JJ. 1 was not acting in relation to his princi~nl 1 n affairs, in any event. Lven if the .aopellc1nt gave him money, tJn1'efore, he w,;is not Mr. Rweyemamu also cast doubt on . d,.:::. . veracity of P. W. l's and P. w: 2' s evidence.· 1 He s:~id th;1t P. ;-!, 1 himself was an interested. p<¼rty, having ordered the' :1rrest of the 3P?ellant 's fathAr.

P. W. 2 and Shek.,lac.;o did not first search P. W.1 to exclude the possibilLy of his having some other money on or about him. _Fu.rther 1 -;,ll8_re is a discrepancy between P. W. l · and P, W. 2 as to what exadJ_y was said between . P. W. 1' and the aPpe11ant when P. W. 2 anc. h.i.s colleague were hiding; and as to precisely which lo~ of money was in whos~ h~nds. · At the end of the day, however, Ile. Rweyemamu conceded that it all »oiled down to the issue of cradibility. Of course the. trial court addressed itself to this particular issue and was s~tisfied that the appellant's version uaz a lie • . . . . . /5 5 In supportinr-; the trial court's r]_scision Mr. Mussa submitted th3t in th-) first rlace th:: rl::;portation was not in issue. The appellant's fatht>r had ·Doon deported and, on th\') f,:1cts, P. W. 1 had at least osten:-:iblo authority to h9ve P. W. l's father arrested -:1nd held. P. J, l ':raB tht1refore acting in relation to his principal 1 s nf'-;';.,irs. Mr. Mussa also submitted tha ~ the background f::ictc wore .t1o't. 1ter:i.01:i..."lly disputed by the defonce that the ::inpof1c:.n-G's father was in custody and th-:1t the 2,ppellant had beoYl tr-Jing to have him relegsed. Mr. Mussa further urged 11s tc i~ustain the trial court's finding t h1t tho Frosecut ion wi·~1h1s::-os were worthy of belief. As to wh::it was -said durin~•; tho .·trans;:iction and what was

the agreed sign::il for l?. ~v. 2 and Shekalage to come out of thr:: bedroom, therA w-as, no real discrepcincy, except only in matters of small detaiJ. We 3re gnteftil for the careful c1rg1.1mcnts by both learned Counsel. We pro poso -co be.gin with wh;y~ in ou.r vieu is the st3.rting point in tho matter before u::i 1 11J.1ich is whether, on the evidence, the appellant did :;ivs:, to r. W. l the shs. 30, ftOO/- intending it to be n bribe .,so as to :::,,cure his f.:1ther's -release. Only -'3fte.r determining this j_:.:,,,a~, may it become necessary to consider the legal ar,'!,umon-~s marshalled by . either side. As Mr. Rweyemamu agreed, aDd wo also of the sc1me view, the mcdter hinges on the, qth,;;tion of the credibility of the Prosecution witnessos r.1nd that of the ( appellant. We are positively imnr-=issod. "-'Y the Frosecution evidence which s qows that right from tho bGginning the apoel lant was bold and rash in trying to securo hi,:, father's r_ele3.se • ...../~ 6 We h-1ve evaluated tho Gvidence on this ~ f:i.rst ar-pP-al and we h"lve come to the conclusion that I j_-~ is true that the , ar:ipellant did repe::ited.ly request P. fl. l ·;;o reiense the clCCGrlO apl'.'ellant' s father, ancl_ that P. W. l did r . ~raatedly refuse to to such requests. In ·i;he same vein \ of •b,,lcin12.ss the· appellant fearlessly offere.d to give P. W. l the m~.'.1cy. · It is often said that

it is rare for a corrupt in-~c,r:.:tion to be exr:-ressed in the. clearest of words. We are S:\t:i.r:fiz1d that this is one such rjre occasion - that the aPPellarr~ did offer to bribe P. W. l and told him so in so many wordG. We hsve no reason to fa ult the t rbl court's finding t h-1·~ P. W. 1 and P. W. 2 told the truth 3bout what happened in P. ~,i.l's house. The aopellant went to the house loaded Hi°Gh the money for the exriress intention of bribing P. W. 1 .in-:i() ;r:eleasing the appella•t's' father. Precise words used, the exact juncture when and which portion of money was whnr.:i 1 and other minutiae, are not of consequenc0 and cannot detr,.:o-'v from th0 casio finding by the trial court th,1.t the mo1:.c;;" nrrived with the appellant and was given to P. ii. 1 as a bribe. Th~ appellant bt~ndJ.e · of money did not dispute the pr1:,sence of tha 1 there, ~nd if, as he said, he was surpri:'~:Jct. to find it theri:>, he would h.'::lve found it and got surprised b0fore P. W. 2 pounced on him. The appellant is. tho :C'.rn.10 character who assured the trial court that ho did not know trh;y his fat her was) arrested, and that he did not care to ask. Yet h:: is the same pP.rson who -~took the trouble to want to mako sure that his father had clothes, medicinos and money 11 on lriD way to Tunduru". The trial court would have needed to b0 very gullible to believe him. •••• I

1 7 Mz-.. M~~ ~e- right, and t,h,;;t i1J cleiJrly also our own ~z.iew, that the fact th·~t the ~?~e.ll~nt r~ father had ·bP..en deported was not in issue. It was not die; puted either. In the given circumstances of this caso tho OCD was :1cting in rf11::liion to his princip,:1l's ,.~ffc1irs to have the aop~ll,:1nt 'a -~hther got and transportocl. rrht! OCD least os\ensible authority to do so a:.1d it is the exe.rcise · of that duthority to do so, which authori<~y the OCD had exercilf'"ld, that the appellant sought -to overcome l\v what he believed to be tho stupendous powor o:l' mon~. F. w. 1 waJt not• over-come by it. ife are satisfied that the anpellan-:; was qui tEI rrope rly con~j4Yted and that his appeial ag::iinst oouviction has the:.efore We now turn to two lE>gal matters ·,,llich we. are called \llt~. to decide.. Thn first matter is 'bhc1 legnl i ty or otherwise of the. sentence of throe and a halt yonrr, imprisonment imposed. The BP-cond _one is tho absence of 'l.11 orr~vr forfeiting the shs. 31, 000/- the aopollant ga~ to P. /l. J. ,1s a bribe whether or not a forfoi ture order shou.J.,.~. h'?.ve been m1de, because none was made. 11s re~ards to sontence, Mr. Mus;:;::,. ;JIJ.bmitted that the appelbnt should no-t h1ve been given loo~ than the five yesrs mini-mum prescribed for corruption undor .I., u 110 Minimum Sentences Act, 1972, so that the sentence of to.r;:J 1.)

r.nd a half ye::irs in the instant c1s p is illegal.. Mr. Rwoyomc1mu was of 9 different view. He urged th~t the re.lev':tnt law for thE! purpose is •..• /8 . ,. ",. ') \ ..... .... 8 SP.ction 59(1) of the JEconomic and Org.-lnized Crime Control Act, 1984, which supercodes Section 5(d) of the Minimlllll SentencP.s Act, 1972. We h,ve' cqrefully considered thio i;1nttero The Statement of Offence· -~in the' instant case allog.:ir: ar. offence under the Prevention of Corruption Act, 1971, Suction 3, which does E.Q1 itself provide, a statutory minimum. It m~reiy prescribes the maximum jail term of tc.1n years. 11e tb;r(d'ore hgve to f,11 back_ to the Economic and Organized Cric:u Control Act, Section 59. Subsf!ction 3 of the s :iii". cacti on me rely enjoins the imposition of "a son-tence that is roaf:ionably deterrent, 11 statute~ maximum of fifteen y~~rs. r:t1 h0 position is different, for example, from :111 offence under S(,c·don 67 pf the ;'lildlife ConsP.rvation Act, 1974, which seo~ion At~~~!! prP.scribes statutory the minima of two and three years, as ·i1K.l ca:::e may be. To imriort the Minimum Sentences Act, 1972, in our present situ~tion would be to call in aid a ponnl moasure offensive to section 5,. (1) which sp0lls out permissiblo penal me.asures "but not any other". We think that the 1i.3gislature, in its wisdom, wanted it th:1t way, porh3ps so as to mi·~ig::ito the

harshness of the. Economic and Organized Crime Con·:,rc•l lictv .. :..•-.with its wide ranging mixsd-grill of crimes. '.fo ::re satisfied th,t the jail term imposed by the court cf trial was not illegal. ~fa finally turn to the ques-tion c,:i:' :forfeiture, and we shall be very brief on this. Mr. Rweyem:1mu :ccfri'tined from responding . to Mr. Mussa' s contention that there f:hould have been an order forfeiting the money. Mr. Mussa is cL:;:1:-:-ly right. Under Section 23(3) of the Economic and Organized Crime Corrtrol /,ct, 1984, such order is m~ndatory. The omission by the court bolow must have been a .... /9 - 9 - mere oversight. ile accordingly ord.er tho shs~ 30, 000/- forfei ted to the Government. In the ev~nt, tho appeal f=1iis in i·~s entirety. We accordingly dismiss it. DATED at MWANZA this 10th day of Docember, 1988. , J' / j . ~ L. NY.ALA.LI CR!Zl!"' ,,...__ ...,,__ ..,,,.,.... JU$ TIIH.; .- · i Lo M. Mi,KAME ,.,.. __,_....,.,.. . ~,_, OF MTEAL .JU5TIC1;. !-.. M. A. OM!iR ~£.1.(iL' OF 11 T F:E.;\L c3 true copy o:f the original. ~(i· ( J. & MSOFFE ) ·.•,. I j