19800726 TZHC Dar es Salaam

IN THE HIGH COURT OP TANZANIA PELLA -JURISDiC TIO1 LI HIdH CO1JR CRIM±NAL APPE.LL NO. 134 OF 1979 ORIGIN.L CRflVIIIA1 CASB NO. 24 OP 1979 OP TEE DISTRICT COURT OF ILA.LA DISTRICT AT ICIVUKONI Befr e: L. Be MCHOJY Es-q., RESIDT MAGISTRATE REPUBLIC • • • • • • S • ,• • • • • • ,. ,• . • • . .. APPBLLAiT vetsu SPEtHENA. K. MAHtJTWA .....JPONDEN1 MAPIGANO, J. - The Director of Public Prosêcition5 is dissatisfied with the acquitti of the respondent Stephen Nahutwa, on the second count, which charged that on or about the 4th August,1977, in Dar es Salaam, he, the respondent, was found in possession of a Standard Timer Lmpiifior with accessories valued at shs.7000/-, reasonably suspected to have been corruptly acquired, contrary to section. 9(1) of the Prevention of COrru- ption Act,1971 (herein after "the Act"). The D.P.-P.. has appealed and Mr. Mwipopo, lrned senior state 1. attorney, appeared on his behalf. At the material time the respondent was, by definitibn, a public officer, in that he was employed by the Bank Of Tanzania w1- re he held the humble position of a second Assistant in the Import Licensing Depmnt He had been with the Bank for a conside- rable lông peribd HO was charged with the dut3j of 2/.. -- ', -2-- scrutinising applications for import licences, but he had no final say in. the granting of such licences. . On 6/10/77 hIs hôuse was searched. by, inter alios, a

senior investigator of the Anti -Corruption Squth who found an amplifier with. acOessories in there. On suspicionthat'the respondent had acquired the property corruptly the senior investigator seized it. Apparently the respondent hadpurchased. the set from one K.B.Muge for 8hs.7000/- two months back. On the following day he was required to give a trttac.punt of how he acquired the property., imdei sect iofl,. 8( i) of • . the Act. On that very day he brought his written'accpuxit and that was tendered by the prosecution and marked exhibit F. In that.. document he explained .hw he came :to meet the price of the property. He stated, that the sun of she. 7000/- which he paid for the property comprised of two loans, one of shs.20001- from one Lubumbo who had since died and the other of shs.4000/- from one Babla who worked with N/s Asher Automobiles, and his saving. The An€i-Corruption Squad was not satisfied with his account, hence his being brought to court. The prosecution called one Yashvant(PW3) who told the court that he was a director of.M/S Asher Automobiles who operated a motor vehicle spare parts shop at thefr premise situate at Independence Avenue in Dar es .Salaan, He also stated that sometimes the firm applied to t} Bank of Tanzania for licèncés for importing the goods it dealt with and that one AbdalJ.ah Nwangila, a shop hand, normally destched such applications and

collected licences from the Bank, He further. told the court that P-Pre -3 - he did not know the respondent and that to the best of his knowledge no. cash loan had ever bee'h given by the firm to any body, let alone the respondent. But the prosecution did not call Babla from whom, according to exhibit F, the respondent had raised a sum of shs.40001-. That., was about the only materáal evidence in support of the charge. At the close of the prose- cution case Mr. Nuccadam, learned advocate, who defended the respondent and who also represented him on this appeal, madea submission that the case had not been made out sufficiently to put the respondent on his defence. In considering that submission the lea±ned magistrate sees . to have directed himself in terms of Bhat V R (1957).4 332, namely whether a reasonable trIbunal, properly directing its mind to the law and the evidence could convict if no expin- tion were 'offered by the 4efence, which is the eneraIly accepted test for: a: prima fade case. His answer was no. His reason: the account of the respondent as to how he had raised the sum of shs.7000/- had not been seriously challenged and was plausible, especially in view of the factrthat the prosecution had failed to bring Babla to the witness box to rebut the respo ndent's contention that he, Babla, had advanced him a sum of shs.4000/_. The learned magistrate added. that' there

was, in his view, no solid evidence that the respondent had had any official dealing with the said Babla "to make the loan have elements of corruption". He sustained the defence submission and, in consequence, dismissed the charge and recorded an acquittal; under sect ion 205 of the Criminal Procedure Code. -4- The D.P.P. is challenging that decision, contending that the evidence led by the prosecu- tion had established a prima fade case agairt the res.pondent in other wods that reasonable suspicion of corruption with respect to the property was establi- shed. Mr. Nzipopo branded the learned gistrate's assessment of the evidence as superficial. In parti- cular, the learned counsel argued that the testimony of PW3 Yashvant should have led a reasonable tribunal to seriously doubt the respondent's allegation that Babla had lent any money to him and upon that to shift the burden onto 'the respondent to. prove that the prope- rty was not corrupt].y acquired by him. The learned counsel has also' criticied the ingistrate's finding that the respondent had had no offic ial dealing with Babla. Pointing out that Babla was a person who was in all likelihood interested in.the affairs of N/S Asher Automobiles, who needed licences from the respo- ndent's employer for importing their good, the learned counsel invited this court to accept the proposition that the respondentwas in a place •w1re

he could pcssi- bly, be approached by Babla and asked to do the firm the favour of speeding up the processing of its applications for the import licences, and, therefe, that the respondent could possibly solicit an advantage from Babla or from usher Automobiles in that respect. Nr. Muccadarn resisted the arguments advanced by the appellant and as expected he supported the decision of the learned magistrate. He pointed out that under section 9(2)(a) of the Act the prosecution carrisd the burden to prove the reasonableness of the suápicion and submitted that the evidence adduàed in support of the' charge dId not raise a reasonble suspicion that -"I • •• . 5. , - the property in question was corruptly acqui±ed, especially,, he said ) in the absenccof any word from Babla. The;, lerned advocate also resisted the asse- rtión that the respodent had had any offièial dealing with Babla. He referred this cotirt to the evidence of PW3 to the effect that the man to whom N/S. Asher Automobiles had assigned the duty of procu- r±ng the impart licences from the Bank was one Mwangila and not Babla, In my considered opinion, there should be no illusion abbut the respondent having been in a pition which epbsed him to bribery I think that eien h h i s limIted station it was possible for him to solicit or obtain advantages f or himself from such persons as MIS Asher Automobiles who applied ior

impo±tlicences9 as an inducement or reward for according disatch and preference to the processing of their applications The vital question here is whether reasonable suspicion of corruption was established. As Mr. Muccadarn rightly pointed out, in a case of this nature the prosecution must adduce evidence which raises a reasonable suspicion that the property in question was corruptly obtained•before the burden is cast onto the person accused to establish, on a balance of probabili. ties, that the propertj was not corruptly. adquired. If I understood him correctly, Mr. Mwipopo was , 1oldly contending that. 'the acunt given by the respondent vide exhibit F i.e. that he had borrowed shs.4000/- from Bablá, was unstisfact.ory and that it had been 'given the lie by the tetioy of'P3. But as I. read and comprehend exhibit F, the respondent's assortion scorns S • ':. . . . . . _• 6 - to be tI. -t ho had ottaicd the money from Babla ai1 not from B ablats employers - M/S Asher J.utomo- ba.les, So the whole evidence of PW3 that Asher Autbmobiles hd the respondent any m oner was, strictly, irrelevant. In my view Babia was, in the cir6i= 8 tancet of this case, a material wtnes. . He should have been called by the prosecution to refute or confirm the respondent 's account. 1 am of the op14o..n that the non-e.alling o f Ba b la - wb;b fatal to the. prosecution case and tiat the learned rnagistrate was peiectly justified to dismiss the charge. In the event, this appeal is dismissed. Pronounced in Court Mr. Adarnjee for Nuc adam for Ippellant Mr. Uronu fo the Republic. ' j Dares alaarn 26th July,190 . .

JJDGE . ~ GANO)