19740327 TZCA Dar es Salaam

..... . • . .... .• '. . ' I IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM, HIGH COURCT" CRIMINAL APPEAL'" NOS. 317 OF :;_973 AND 17 O? ~L974 (Original Criminal Case No. 1573 of 1973 of the District Court of Dar es.Salaam District at Dar es Salaam• Before: E.D.M. Maj6go~~Esq., Resident Magistrate.) NDEGWA MASIKU (Cr. l~ppeal 317/1973)) IBRAHIM ALLI (Cr. App~al 17/1974) )o•••••••••o ■■ o• ■ oo APPELLANr£'.£'. versus THE REPUBLIC ooooooo ■ oooooo~oooo ■ oo ■ oDoooo ■ oooooooooo ■ RESPONDENT CHARGE: 1st Count~ Unlawful poss1::ssion of native liquo,~ ~ ' commonly known as Moshi c/s 30, Act Noo62 of 1966,_..,,r,.;:ir~ 2nd Count: Corrupt transact.ion with agent c/ s ,')"': J(l), Act No. 16 of 19Jl6- ... JUDGMENT SAIDI, C.J. The two appellants, Ibrahim Alli and Ndegw~·, Masiku, were charged.in'the District Court of Da= es Salaam on two counts: unlawful posser~io~ of Moshi co trary to section 0 • 30 of 11.ct ·No. 62 of 1966-:.·and. con:'Upt -;:l"an:;action with agent contrary to section 3(1) of ~ct No. 16 of 1971. In the first count the particulars of the. offence al~eged that the persons charged on 31st July, 1973, at about 14.55 hours at Libya Street, within the Ci.ty 0£ Da.r es Salaam, were found in possess:i..::.:.: ~- of one bott~e of Moshi. In fhe second count the particulars of' the offence alleged that the persons charged on the 31st day of July, 1973 at J.4.55 hou:cs at. Libya Street 1 within the· City of Dar es Salaam, jointly and together corruptly gave cash Shs.20/- to P.Co 2dward as an inducement.for the saicl PoCo Edward not to arrest and charge them with the offence of being in possession of Moshio The evidence led by the Prosecutiob was'to the effect that in the afternoon of 3ls·i: ,July 7 1973 1 P.C. Edward and P.Cc Tenson found Ibrahim AJli sitting along Libya Street with a Ko.nyagi bottle. They said that on seeing them approaching, Ibrahim Alli poured the Moshi on the groundo They questionec. -him and he admitted that he had Moshi in the.bottle. They arrested him there and theQ. A few minutes later Ndegwa Masiku arrived on the sc2ne and requested the police to release Ibrahim Allid The two policemen stated that Ndegwa Masiku claimed that he had a·licence to manufacture Moshi and added tha~ he had sent out Ibrahim Alli wj_th the Moshi for testingo On hearing this the two policemen arrestea Ndegwa Masiku as well. At this stage Ndegwa Masiku asked the p~li~e to pardon them and then told Ibrahim Alli: "Wape chai hao". Ibrahim Alli took out a Shs.20/- note from his pocket and handed it over to P.C. Tenson. The note was-received and the two appellant:; were taken to the police station. Al though this evider:ce was led at the trial 1 bo-'.:h app~llants· elected to say nothing. They are raising their I --·--·--- ----------· .. d\fences for the first time at the hearing of this appeal. \ \ \ It was contended by Mr. Cobb, who rep;:esented Ndegwa, tha\ the conviction of his client was unjustified because he was liienced to manufacture Moshio Mr. Cobb complained that although N~egwa had disclosed this fact at the time of his arrest and this .~as also mentioned to the learned Resident Magistrate at the time 'of the trial, no effort was taken by the learned trial magistrate to have the licence produced in court. Mr. Cobb produced the .. _.licence at the hearing of this appeal and this was accepted as a genuine licence by the learned State Attorney representing the Republic~· I think it has been held by this Court in the case of Georqe s/o Leri vso Rexr I T~L.R,. 366 and Mwihambi s/o Chinyele and Msafili s/o Mgata 1 II ToL.R. 128, that where an accused person has before trial given a reasonable explanation to account for his possession, e.g. of stolen property or possession of Moshi, this expli9ati6n should be investigated and not rejected at the trial, unless the prosecution ~roves that it is untrue. In the instance case, the two police officers who arrested the appellants were duty bound to investigate the allegation of Ndegwa that he had a licence to m;=inufr-1r:t11re Moshi. As it is now clear that Ndegwa was licenced to manufacture Moshi and he had alleged that he had sent out Ibrahim with Moshi for testing, the charge of unlawful possession of Moshi cannot stand. Of course, one could question the behaviour of Ibrahim in trying to dispose of the_ Moshi when he saw the police officers approaching him., This could be taken as a foolish act on his part because he had the Moshi lawfully and he could have explained to the police that he had got it from Ndegwa, and if the police· wanted to verify this, they.would have taken him to Ndegwa who·had a licence to marn1-fr-1rh1n~ the M0,,,hi _ 'T'hi,;, woul.d have been the end of the matter. The appeal aJainst the convic~ion un count one is allowed; the conviction of both the appellants is quashed; the fine imposed on Ibrahim is set aside and the discharge order made against Nd~gwa is also set asideo With regard to second count of offering a bribe to the police officers, it was contended by Mro Cobb that this charge was misconceived as the appellants did not act with an evil mind in offering money for tea to the two policemeno He argued that there was absence of motive on the part of the appellants, as Ndegwa having been licenced to manufa d:ure Moshi was in fact in lawful possession of the Moshi found with Ibrahimo He relied on the decision of Onyiuke J. in Ally Kassam v. Republic· (Dar es Salaai Criminal Appeal No. 97 of 1972, r~ported in 1972 H.C.D. No.186). In that case Ally Kassam had approached the Regional C.I.D. Officer, Mtwara, and offered him Shs.100/- so that he may issue a certificate of good character to enable him to get a clearance pass to travel to America. Ally Kassam had a list of eleven other persons for whom he also pleaded for similar certificates of good character for the same purpose, and offered to pay Shs.100/- for each one of these personso Ally Kassam was convicted on his own plea on a charge of corrupt transaction with agent contrary to section 3(2) of the Prevention of Corruption Act No. 16 of 1971. He was sentenced to two years' imprisonment and 24 strokes corporal punishment. Onyiuke J., dismissed the appeal of Ally Kassam holding that the offer of the money to the police officer was for corrupt purpose and not otherwise as contended by Mr. Lakha, who-argued the appeal of Ally Kassam. Mr. Lakha h~d referred to the case of Mandia v. Republic, (1966) E.A. 315. In that case a magistrate was charged and convicted of giving a bribe to a police constable as an inducement to forbear from taiing any proceedings on a number of driving offences which had allegedly been committed by the driver of the motor vehicle in which the appellant was travPllin<J. The appellant admitted giving the money, his motive being to test the constable as he "heard all these things and wanted to know if it was real"o In convicting the appellant the learned trial judge relied on the reasoning in Ro Vo Smith, (1960) 2 QoBo 423, holding that it was not necessary for the prosecution to prove a corrupt motive but merely an intention to corrupt the person to whom the offer was made. On appeal the Court of Appeal held: (1) A corrupt motive was an essential ingredient of the offence; (2) The appellant's state of mind, which included the motive and intention, was an essential and material factor in determining whether he was acting corruptly or not; (3) The appellant's motive was innocent. Another decision M.. Lakha relied on was that of Hamlyn J. in Makubi v. Republic, (1968) EoAo 667. In that case the appellant offered Shs.20/- to a Village, Executive Officer to induce him to abstain from counting other peoples cattle which were in his boma as his own for purposes of• taxo He was convicted on his own plea by the district court and awarded the minimum sentence. On appeal Hamlyn Jo held: (ii) it was a necessary ingredient of the offence of corruption that the act should be done corruptly, i.eo with an evil mind; and (iii) It was clear that there was no evil mind on the part of the appellanto While dealing with the appeal of Ally Kassam Onyiuke Jo does not appear to have agreed with the conclusions in the cases of Mandia and Makubi. I think in both cases it had been submitted that the appellant had acted out of ignorance and out of fear of the police. In the case of Ally Kassam it was contended by Mr. Lakha that the appeilant did not know that he was legally entitled to a certificate of good character from the police; his• motive then was to buy it. As to fear, the position appeared to be that Ally Kassam intended to warm himself into the police confidence by buying their loyalty. Onyiuke J. thought that either way the motive was anything but honest. I agree with him. In the present case the same conclusion reached by Onyiuke J. applies. Although Ndegwa Masiku had a licence to brew Moshi and he had sent out Ibrahim Alli to have the Moshi tested, the quewtion of their giving the police officers Shs.20/- for tea cannot be anything but a corrupt act, as they have, by doing so, tried to interfere with the police officers' execution of duty. Another argument raised by Mr. Cobb is that the second count was brought under a wrong subsection of the lawo The appellants were charged with corrupt transaction with agent contrary to section 3(1) of Act No. 16 of 1971. It iR 0hvirn1s that the charge laid should have been brought under section 3(2) of Act 16 of 1971. Subsection (1) deals with soliciting, accepting or obtaining a bribe. Subsection (2) deals with the giving, offering ,or ~romising a bribe. In the present case the appellants offered Shs.20/-- as a bribe, as such the charge should have been brought under section 3(2)o The point here is whether this defect is fatal to the charge. The particulars of the charge already cited above cover an offence of giving or offering a bribe under section 3(2). If the court is satisfied that the appellants understood the charge from the particulars given and they were in a position to defend themselves properly then the defect would be one that is curable under section 346 of the Criminal Procedure Code. This section reads as follow:- 11 346. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order made or passed by a court of competent jurisdiction shall reversed or altered on an appeal or revision on account of any error 9 omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Code: Provided that where on an appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable a (2) in determining whether any error, omission or irregularity has occasioned a failure of justice, the court shall have regard to the question whether an objection could and should have been raised at ~ an earlier stage in the proceedingso"o From the provisions of this section it would appear that the defect in 9 charge would not invalidate a conviction unless such defect has in fact occasioned the failure of justiceo A . similar issue arose in the case of Abdulrasul Go Sabur Vo R.,. 1958 EoAo 126, where a wrong section of the ordinance was·cited in the chargeo It was held: (1) Since the particulars of the offence were adequate to inform the appellant the offence with which he was charged there has been no failure of justice and the defect was curable under section 347 of Uganda Criminal Procedure Codec I am therefore satisfied that the defect in the second count is not one that could have occasioned a failure of justice, as the particulars of the offence fully gave the appellants the exact nature of the chargeo The appeals on the conviction on count two, as well as the sentence passed thereon, stand d:i,smis·sedo Delivered in Court at Dar es Salaam this 27th day of March, 19740 o~~·k- ---------;-; - ,,,- (Ao SAIDI) CHIEF JUSTICE