RICHARD MPAGAMA AND ANOTHER V REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA tabora sub-Registry

AT TABQRA CRIMINAL APPEAL NO. 19110 OF 2024 (Arising from the Decision of Kaliua District Court in Criminal Case No. 71 of2023) RICHARD MAGANGA MPAGAMA ....................................... ... 1st APPELLANT LAURENT ISAYA SANDU .......... ......... .......... . 2nd APPELLANT

VERSUS THE REPUBLIC........ ...... RESPONDENT

JUDGMENT Date ofLast Order: 30/09/2024 Date ofJudgment: 28/10/2024 KADILU, J. In the District Court of Kaliua, the appellants were charged with corruption contrary to Section 15 (1) and (2) of the Prevention and Combating of Corruption Act (PCCA) [Cap. 329 R.E.- 2022], It was alleged that on 21/04/2023, at Kaliua District in Tabora Region, the appellants jointly being a Village Executive Officer (VEO) for Imagi Village and a Ward Executive Officer (WEO) for Nhwande Ward respectively, and as agents within the meaning of the PCCA did corruptly obtain an advantage of the sum of TZS, 3,000,000/- for themselves from Ndilana Budeba as an inducement not to take legal actions, the matter which is related to the accused persons' principal affairs. When the charge was read over and explained to the appellants, both pleaded not guilty. After a full trial, the court convicted them as charged and sentenced each to pay a fine of TZS. 1,000,000/= or serve an imprisonment i for a term of 3 years in default. They were also ordered to return to the victim a sum of TZS. 2,300,000/= after the completion of their sentences. They paid fines instead of imprisonment Dissatisfied by the conviction and sentence, the appellants preferred the instant appeal on the following grounds: 1. That, the trial court erred in law and facts to convict the appellants while the prosecution failed to prove their case beyond reasonable doubt. Specifically, the prosecution side did not prove the existence of the principal-agent relationship.

2. That, the court erred in law and facts to rely on a false allegation from the prosecution side as neither the PCCB Officer nor prosecution witnesses saw the appellants receiving a bribe rather than relying on hearsay that the 2nd appellant communicated with the 1st appellant through mobile phone but no electronic evidence was produced before the court.

3. That, the learned Magistrate erred in law and facts to convict and sentence the appellants on the contention that they received a bribe from NdHana Budeba as an inducement not to take legal actions while legal action was taken against the suspect.

4. That, the court erred in Jaw and facts because the prosecution witnesses gave serious contradicting and ambiguous evidence.

5. That, the trial Magistrate erred in Jaw and facts to convict the appellants based on the number of witnesses brought by the prosecution contrary to the law of evidence. Based on the above grounds, the appellants urged this court to quash the conviction, set aside the sentences, and order the refund of the money they had paid as fines. On the hearing date, the appellants were represented by Ms. Salome Malimbita, Advocate whereas Ms. Tunosye Luketa and Ms. Aziza Mfinanga, State Attorneys represented the respondent. 2 Supporting the appeal, Ms. Salome submitted that the prosecution did not prove the case against the appellants beyond reasonable doubt because the trial court's decision was based on hearsay evidence. According to Salome, the victim (PW1) told the trial court that the 1st appellant solicited TZS. 3,000,000/= as a bribe but there was no proof that the money was given to him. Also, the prosecution failed to establish a principal-agency relationship between the victim and the appellants as held in the case of Director of Public Prosecutions v. Peter Kibatala, Civil Appeal No, 4 of 2015 [2019] TZCA 157. Concerning the 2rf- ground, the learned Advocate averred that the prosecution did not prove that the appellants received TZS. 3,000,000/= from the victim since there was neither direct nor documentary evidence to show that the appellants received the alleged money. The

victim only told the court that they were communicating with the appellants by phone but no SMS or conversation print-out to establish the said communication. About the 3rd ground of appeal, Ms. Salome submitted that legal action was taken against the victim's son-in-law who was suspected of theft so, there is no way the appellants could be said to have taken a bribe to refrain from taking legal action against the victim's son-in-law. On the 4th ground, Salome contended that the trial court relied on contradictory and ambiguous evidence from the prosecution witnesses. For example, PW1 informed the court that he was required to give TZS. 3,000,000/= so that he would not be arrested and joined with his son-in-law in a theft case. All other witnesses testified that the purpose of that money was to prevent the victim's son-in-law from being arrested. Also, PW1 stated 3 that he handed TZS. 1,000,000/= to the 1st appellant on the 1st day and on the 2nd day, he gave him TZS. 2,000,000/=. PW3 testified that PW7 gave the 1st appellant TZS. 3,000,000/=. PW7 on his part, testified that he gave the 1st appellant TZS. 2,000,000/=. This is a serious contradiction and the trial court was not supposed to rely on that evidence. Ms. Salome asserted on the 5th ground of appeal that the trial court decided the case by relying on the number of witnesses rather than the weight and credibility of the

said evidence in contravention of Section 143 of the Evidence Act. For the stated reasons, she urged the court to allow the appeal, quash the judgment of the trial court, and set aside its sentence. She also prayed for the court to order a refund of TZS. 2,000,000/= paid by the appellants as a fine. Responding to the submissions by the Advocate for the appellants, Ms. Tunosye prayed to argue the 1st, 3rd, and 5th grounds of appeal jointly and then, the 2nd and 4th grounds separately. She replied that the prosecution was not supposed to prove the principal-agency relationship because the 1st appellant received the TZS. 3,000,000/= personally without engaging an agent. The complaint that the prosecution evidence was hearsay is baseless because PW1 who was the victim gave direct oral evidence about how he gave the money to the 1st appellant. PW4 was arrested by the police and PW1 had to bribe the appellants to avoid being joined with PW4 in a theft case. There is nothing on record to show that PW4 was arrested so, he gave the requested bribe. There is also nothing on record to suggest that the trial court's judgment was based on the number of witnesses rather than the recognized legal requirements. 4 On the 2nd ground, the learned State Attorney conceded that the appellants communicated through phone about the incident but no electronic evidence was presented to the trial court to

prove it. According to her, the absence of that evidence makes the connection between the 1st and 2nd appellants in this case missing hence, the conviction of the 2nd appellant is shaking. She also conceded that the prosecution evidence had several contradictions as outlined by the appellants' Counsel. PW3 and PW7 gave contradictory evidence regarding the amount of bribe given to the 1st appellant while PW2 testified inconsistently about who gave the bribe to the 1st appellant. She, nevertheless, argued that the evidence proved that the 1st appellant received TZS. 3,000,000/= as a bribe regardless of who gave it to him in what installment. Therefore, Ms. Tunosye urged the court to dismiss the appeal for lack of merit. After having set out the facts of the case and submissions by the learned minds, the task before me is to determine whether the appeal is meritorious or not. It is undisputed that the appellants were charged with the offence of corruptly soliciting and receiving TZS. 3,000,000/= as an inducement to forebear joining the victim in a cattle theft case, the act which was related to the appellants' principal's affairs. Section 15 (1) of the PCCA [Cap. 329 R.E. 2022] creates the offence as follows: Tfoy person who corruptly by himself or in conjunction with any other person- (a) solicits, accepts, obtains, or attempts to obtain, from any person for himself or any other

person, any advantage as an inducement to, or reward for, or otherwise on account of, any agent, whether or not such agent is the same person as such first-mentioned person and whether the agent has or has no authority to do, or for bearing to do, or having done or forborne 5 to do, anything in relation to his principal's affairs or business, or (b) gives, promises or offers any advantage to any person, whether for the benefit of that person or of another person, as an inducement to, or reward for, or otherwise on account of, any agent whether or not such agent is the person to Whom such advantage is given, promised or offered and whether the agent has or has no authority to do, doing, or forbearing to do, or having done or forborne to do, anything in relation to his principal’s affairs or business, commits an offence of corruption." Applying the above provisions of the law to the facts of the case at hand, it is clear that, to sufficiently establish the offence of corruptly soliciting and receiving any advantage under the aforesaid Section, one of the crucial ingredients of the offence which the prosecution was supposed to prove is the existence of the principal-agent relationship. In the case at hand, the record reveals that the 1st and 2nd appellants were VEO and WEO respectively. They complained that the prosecution side did not prove the existence of the principal-agent

relationship. In my view, since the appellants were Government employees and the complained act was committed in the course of carrying out the employer's business, there was a principal-agent relationship within the meaning of the PCCA. The Act defines a principal to include an employer and, in relation to a public official, the authority or body of persons in which the public office is held. It also defines an agent to include a public official or any person in the employment, whether under a contract of service, a contract for services or otherwise, whether permanent or temporary, whether paid Or unpaid, and whether full-time or part-time and whether such person is a natural person or body of persons or acting for another. 6 Thus, being public officials in Government employment, the appellants were directly the agents acting for, and on behalf of their principal (Government) in their daily duties including community policing. The case of Director of Public Prosecutions r, Peter Kibatala (supra), cited by the Advocate for the appellants is distinguishable because it involved the Advocate and client as opposed to the facts of the present case where the appellants were Government employees. For these reasons, this court finds the 1st ground of appeal devoid of merit and dismisses it. Concerning the 2nd ground of appeal on which the appellants lament that there was no electronic

evidence presented in the trial court to prove the communication between them, I find the complaint weak because direct evidence of all prosecution witnesses showed the role played by each appellant in soliciting and obtaining a bribe. For example, it was shown that PW1 offered to give the 1st appellant TZS. 2,000,000/= but when the 2nd appellant was informed about it, he insisted that it should be TZS. 3,000,000/=. This piece of evidence was corroborated by PW3, PW6, and PW10. The record reveals more that the 1st appellant had put his phone in loudspeaker mode during the negotiation with the 2nd appellant about the amount of the bribe that they would accept. Therefore, the people around him heard the conversation between them. I am mindful that electronic evidence including phone conversation may be admissible in evidence, but it is not always mandatory to tender it especially where there is sufficient direct evidence to prove the case. As such, the 2nd ground of appeal is also devoid of merit. 7 The other complaint by the appellants is that they were wrongly convicted and sentenced on the allegation that they received a bribe as an inducement not to take legal action while legal action was taken against the suspect. With due respect, whether or not the appellants heeded what they promised the victim cannot take away the truth that they corruptly solicited and obtained bribe.

The fulfillment of the promise is not among the ingredients of the offence which the appellants were charged with. So, the 3rd ground of appeal is dismissed for lack of a legal base. On the 4th ground, the appellants contended that the trial court relied on contradictory and ambiguous evidence from the prosecution witnesses regarding the amount of the alleged bribe and the purpose thereof. They argue that some prosecution witnesses testified that the amount was TZS. 1,000,000/=, others TZS. 2,000,000/=, and others TZS. 3,000,000/=. Whereas Other witnesses stated that the purpose of the bribe was to save the victim's son-in-law from being arrested, others testified that it was for abstaining from joining the victim in a cattle theft case. I am aware that where there are contradictions in any of the testimonies, the court has to determine whether the contradictions are material going to the root of the case or just minor discrepancies which may be disregarded. The Court of Appeal emphasized this position in the case of Marando Slaa Hofu and 3 Others v. R.t Criminal Appeal No. 246 of 2011. In the case at hand, I consider the contradictions as minor because whatever the amount of bribe was received and for whichever purpose, would not exonerate the appellants from liability. 8 As long as the appellants corruptly solicited, accepted, and obtained an advantage for themselves contrary

to the affairs of their principal, they committed the charged offence. In Metwii Pusindawa Lasilasi r. R., Criminal Appeal No. 431 of 2020, Court of Appeal at Arusha, it was held that: "The general rule is that contradictions by any particular witness or among witnesses cannot be escaped or avoided in any particular case and are healthy as they show that the witnesses were not rehearsed before testifying." Lastly, the appellants lament that they were convicted and sentenced based on the number of witnesses rather than the weight of evidence. I am unable to agree with this allegation because the evidence on record displays that the victim did not have the requested bribe so, he had to sell his twelve herds of cattle to one Shiwa Kulwa. None of the appellants had contradicted this evidence in any way. Further, the record reveals that the 1st appellant promised to return TZS. 1,500,000/= to the victim but he only managed to refund TZS. 700,000/= through PW10. Likewise, the 1st appellant never contradicted this piece of testimony anywhere on the record. In the circumstances, it is the finding of this court that the prosecution proved the charge against the appellants beyond reasonable doubt and there is nothing to fault the finding of the trial court. Consequently, I dismiss the appeal in its entirety for lack of merits. The right of appeal is fully explained. Order accordingly. Judgment delivered in chamber on the 28th day of October, 2024 in the presence of Ms. Salome Malimbita, Advocate for the appellants, and Ms. Joyce Nkwabi assisted by Ms. Upendo Florian, State Attorneys for the respondent. KADILU, MJ.

JUDGE 28/10/2024 io