19800506 TZHC Dar es Salaam

, 4 IN THE. HIGH COtThT OF TANZAJIA AT DAR ES.SALAJ APPELLATE J[JRISDICT ION HIGH COURT GRflLAL APPEAL Nfl7. OF 1979 ORIGflAL CRTh1DL CASE NO. 616 OF 1978 OF THE DISTRICT COURT OF MGRQGORQ .LTIOT

AT MOROGORO Before M.A.UPAGA sq; DISTRICT MAGISTRATE,. MOHAIYLED ALLY • . •.. •. . . • 00 , . . s , • . • e• i . AEPEjNT versus THE REPUBLIC..... S •,•••••'. ••••.. •.RESI)NJi1NT CHARGE.: Corrupt transacbion coitrar.y to Seot.ion.' 3(2)(3)(a) of the Prove atlon. of Corx4tio1 Act 16 of 1971. .. p

JUDGMT MAPIGANO, J. - MOHAMED ALLY is appea.ling against his conviction for corrupt trarjsaction .hy the district owt 6f Morogoro at Morogoro on 12/10/78. He was sente need to imprisoimeni for three years, the minimum for the Offence under the provisions of the Minimum Sentences Act, 1972. The allegation was that on Saturday,. the 1/7/78, at about 4 p.m. at Tununguo in the district and region of Morogoro the appellant gave a sum of shs.201— to Corporal A Raymond so that the Corporal might issue a permit to his son to travel from Tununguo to Dar es Salaam. The appellant admitted that he gave the money to the corporal but denied the rest of the aflegation... • Corpora]. Raymond was at that time the officer commanding a police post at Tununguo. He told the court that following an .outbreak of eltor cholera in that area a quarantine had been imposed and the police had been charged with the duty of effecting an measures that had been prescribed in that connection, which included the issuing of travel permits in 2/0000 -2 - cases of necessity. The witness went on and told the court that in the morning of that Saturday the appellant approached him and aáked for a travel permit f& his son who wanted to proceed to Dar es Salaam , s kccording to the witness, he told the appellant to come and see him on the following Monday. The appellant left only to come back in the afternoon of the

some day. He found him conversing with his fellow policemen, Constables Edward and .Augustino. The appellant sat next to him and shortly after the appellant drew out a shs.201— note and gave it to him, saying at. the same time that his son badly vaned the permit. He remonstrated with the appellant and put it to him that he was offering him a bribe. He called the village chairman, Gerald Fideii, who happened to be nearby and recounted to him what had transpired. Fidelis turned to the appellant to hear whahe had to say about the aflegation. The appellant responded by aaying that the money was meant to be 'chakuia cha watoto" (i.e. food for the children).- In his short unsworn statement, the appellant denied that he had asked for a permit. He a.leged that it was sheer hospi- tality which had driven him to offer the money to the corporals In his judnent the distrIct magistrata found that the appellant had in fact requested for a permit. He rejected the appellant's contention that his giving of the money was an act of hospitality, because, he said, offer of the money had almoGt coincided with the request for the permit. He found that the money was, right from the very beginning, meant to induce the corporal to exercise his off±ial power to grant his son the permit. He held that the giving of the mon.ey was culpable and a corrupt transaction within the letter and spirit of

section 3(2) of the Prev'ention of Corruption Act. In consequence, he found him guilty of the offencei In substance, the appellant has based his petition on two grounds. First, as I understand him, he argues that the chare was misconceived in that the corporal did not possess any povvex to issue a travel permit to a person who wanted to travel outside the IVlorogoro Region. He says: "PWl was not empowered to issue travel permits for travelling outside the Region. These were issued by Region Police Officer on recommendation Of 0.•t the Medical Officer. It is therefore eyident that even if I had requested. for such permit PW1 could not have • issued. it since his power in 'relation' " to the qurantine did not extend beyon1. T uriunguo . ...,.... -. Two observations should be made. First, there is 4o edextio. basis for the appellant's asseztjon that the corporal, did '°t.. possess such power, Seäondly, at aiy rate, the appellitd.oe 1. not at all tell us whether he himself.was aware 9 at the.rnatc'ja, time, that the corporal did not possess such power. The answer which Mrs. Su.leiman, counsel for the aepubli, made to the appellant's argument was to say that it mattered not whether the corporal enjoyed such power. I would agree with her. I think the decision of this court in Korba FiraJi (1967 HOD fle92 is apposite here and should be applied. As I tuider.- stand it, the ratio

decidendi of that case was that it counts for nothing that the, jeraon to .w1n :a bribe is, giv,en does not actually have power to do th partioular act intended by th' giver., provided it is an act in respect Qf a matter which his pi—' ncipal is concerned., .1 would only .ad that bpth good sense and the practical requirement of public, justice make •desirab..e that it should be so. The 'othex,grouLldof appeal ..raisedby te basc,aiy a criticism,, in respact .of, the learneda.giatrt';a.; finding as. to the. aredibil.#y of the . witnesses,. 'It, 'is,thitjted that the learned..magi.strate erred accepting the-I gip of .tke - police officers that the appellant, had at- the material time asked for a permit for his son. The learned state attorney has re.spanded by .expressing.the view that on. the mate.aA, z'acord there is xo go:od reason which can lad this tcort t ,f.4,t the, magistrate's decis,ionin that rQspet. j, Again, .Irspcfully think right.... For why shou.ld the police officers. who,. pa... reLi.y ver,e strangers, in the area .consi±e 'tp, me.nu.factue &false and serious case against, the appellant? That is ,a point abt which eve he, the appeU.pnt, has ,enied the .pou tai pgption, • -. •. ' - • .' . '' . .,: 4/,• •?' I'. .' ' '. . '. . ' '"• , 4, 4 I think that on the whole and in principle I am unable to say that the finding of the learned magistrate on that issue was wrong

or unsafe. Finally I should say that I entirely agree with the opinion of the trial magistrate that the fact that the offer of the money almost coincided with the request for the permit irresistibly established that the offer of the money was deBigned. to induce the corporal to accede to the request for the permit. Like Korba Farah!s, *tha act of the appellant was "putrid., vitiated and tainted". There is, there.f, no merit in the appeal, which is is dismissed. Delivered. Dar es Salaam Mr. Safari for the Republic. 6th May,1980. Appellant absent. (D .P.MAPIGANO) J1JDGE.