criminal decision 2024 12 23 14 56 14

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000015767 OF 2024 SAMWEL ELSON NGAYAMBA .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT RWIZILE, J The appellants were charged before the district court of Buhigwe in criminal case No.118 of 2023, on a total of four counts of having engaged in corrupt transactions. While the 1st appellant was charged with all counts, the 2nd appellant faced three charges. The charges are under section 15 (1)(2) of the Prevention and Combating of Corruption Act [Cap 329 R.E 2022].On the 1st to 3rd counts, it was alleged that on 6th May 2023 at Buhigwe district, the appellants corruptly solicited an advantage of TZS 1,500,000.00 from Sikitu Ahmad Ngugumo, Beatha Joseph Kimanuka and Rose Braiton Kolanya as an inducement to assist them in order to be employed as Personal Secretary at Buhigwe district council. The 4th count that faces the first appellant only is an allegation that he obtained on 9th May 2023 an advantage of TZS 104,500.00 from Joseph Kimanuka Mtiaga as an inducement in order to assist her be employed as a Personal secretary at Buhigwe district council. Upon being arraigned, the appellants denied the charges and the respondent attempted to prove its case by getting in, 9 witnesses. The appellants as well apart from defending themselves called one more witness. The trial court ultimately found them guilty as charged and were sentenced to pay fine of TZS 500,000.00 on each count or serve consecutive sentences of three years imprisonment on each count, in default.

The appellants paid fines but were aggrieved by the decision of the trial court, hence this appeal. Four grounds of appeal were filed, but at some stage, another four supplementary grounds of appeal were added, as the appellants joined forces to remonstrate their innocence together. But upon scrutinizing them at the hearing, the following 4 grounds were argued; 1. That the Honourable Trial Court erred in law and fact when it failed to consider the variance of evidence adduce during the trial and the charge.

2. That the Honourable Trial Court erred in law and fact when failed to appreciate that the contradictions and inconsistences go to the root of the matter. Page. 1 Hon. AUGUSTINE RWIZILE 3. That the Honourable Trial Court erred in law and fact for failure to analyze and attach the required weight of exhibits P2 and P10 respectively.

4. That the Honourable Trial Court erred in law and fact in failure to draw adverse inference against the prosecution none calling of material witness The appellants were represented by Mr. Joseph Mabula and Mr. Sadiki Aliki, learned counsel. The Republic was under the services of Ms. Rehema Mpozemenya, learned state attorney. It should be noted that this appeal was not contested by the Republic. It actually supported it on the following grounds: - First, that charge was not proved beyond reasonable doubt. In all four counts, it was alleged the appellants solicited from Pw1, Pw2 and Pw3 a total sum of TZS 1,500,000.00, but on the 4th count, the 1st appellant is alleged to have obtained TZS 104,500.00 from Pw4 to assist Beatha Kimanuka in her employment process. Ms Rehema added, when other prosecution witnesses said the money was for thanking the elders, Pw4 said it was assisting her daughter in employment process and so making the evidence at variance with the charge. The second reason advanced by the learned state attorney is on conflicting evidence of the prosecution. It was argued that it is alleged they solicited the sum of TZS 600,000.00 according to the evidence of Pw1. But Pw2 and Pw3, said, they solicited the sum of TZS 1,500,000.00. It was further argued that Pw4, said he sent the money through money agent Pw5, the sum of 104,500.00, but said did not know the phone

number of the recipient and did not know the person he was sending money to and had no such evidence in court. But Pw5 who is an agent, said, he sent money in the number he got from Pw4. Upon sending it, he sent the report to Pw4. According to him, the money was sent to Samuel and upon sending the report to Pw4, he deleted the message from his phone. From Vodacom, Ms Rehema added, the evidence tendered conflicted section 18 of the Electronic Evidence Act, his evidence was not clear. It was therefore clear that the case was not proved beyond reasonable doubt. That is why, she said, the appeal be allowed. The appellants’ advocates apart from supporting the position of the learned state attorney, it was added by Mr. Mabula that the charge was not proved beyond reasonable doubt. There was a contradiction between prosecution witnesses on the amount of money solicited, TZS 1,500,000.00 or TZS 600,000.00 which is contrary to the charge sheet. According to him, it conflicts the law as held in the case of John Kimario vs The Republic, Criminal Appeal No. 105 of 2021, that evidence ought to support the charge. The learned advocate further held the view that a witness who contradicts his own evidence ought not to be believed. He added, evidence that contradicts dents the case. In support, he referred me to the cases of Kibwana Salehe vs The Republic [1968] HCD 391 and Evarist Ngongo vs

The Republic, (CAT) Criminal appeal no. 72 of 2010. Submitting on the 3rd ground, on exhibit P2 to P10, that electronic evidence was not analyzed and given weight. The said exhibits were not proper generated, communicated and stored. He added, even the author of the same did not tender them in court. This evidence, he said, ought to be admitted under section 34 D of Evidence Act. His evidence ought to be expunged as held in the case of Fikiri Karamji and another vs R, Cr. Appeal No. 163 of 2021 CA. It was his argument that on the ruling dated 28.11.2023 the trial court admitted the same evidence but Page. 2 Hon. AUGUSTINE RWIZILE reserved the reasons for so admitting them. He argued, there is no reason advanced in the judgement. Mr. Mabula further argued, the trial court attached weight on that evidence of Pw8 which is not proper as held in the case of Hassan Kausa Rajani vs R, Criminal Appeal No. 670 of 2020. On the 4th ground, the learned counsel argued that, exhibits P2 to P12 were tendered by witnesses who did not generate them. Non-compliance, it was argued is contrary to the decision in the case of Mgambo Saanane and another vs The Republic, Criminal Appeal No. 255 of 2021, and therefore exhibits P2 to p12 ought to be expunged. On his party, Mr. Sadiki added that the elements of the offence must all be proved. Citing the case of R vs Judith Hans Kibona, Cr. Appeal No. 71

of 2021, he said, elements of the offence of corrupt transactions were not proved. Based on the charged sheet, the particulars of the offence, it was soliciting corruption in order to assist Pw1, Pw2 and Pw3 be employed. According to the learned counsel other evidence did not prove the charge because the said, were already employed. The appellant did not get enough chance to defend their case as per section 132 of the CPA. There was variance between the evidence and the charge. The trial court referred to the case of Good lack Kyando(supra) but, it is clear the contradictions were not minor. This case as well is an exception, in the case of Jadili Muhumbi vs R, Cr. Appeal no. 229 of 2021, there is an exception to the principle of the case the trial court referred to. The evidence of the prosecution did not match and there was therefore a conflict on the said evidence. It is not clear as to whether the 2nd appellant mentioned the amount of corruption solicited. The court had to consider the fact that Pw2 conflicted with Pw1 and therefore the court has to believe that the 2nd appellant did not commit the offence. Submitting further, Sadiki commented, that there is no circumstantial evidence as the trial court held. This was not proper as held in the case of R v K Cameroon [2003] TLR 84, the evidence in this case is capable of more than one meaning. The 2nd appellant went there to

charge his mobile phone and upon doing so, he left. His evidence was clear, and it was not his duty to prove his innocence as held in the case of Marando Suleiman v SMZ, [1998] TLR 375. The reasonable defence was raised by the 2nd appellant. He should have been acquitted. Mr Sadiki still insisted, the trial court did not in specific terms show how the offences were proved against each appellant. The trial court did it generally against the appellants. This court was therefore asked to allow this appeal. Having heard the uncontested appeal, I think I have to deal with it generally. To begin with, the charge that faced the appellants was preferred under section 15(1)(a) and (2) of the Prevention and Combating of corruption Act [CAP 329 R.E.2022] which states as hereunder: - 1. “Any person who corruptly by himself or in conjunction with any other person; - (a) solicits, accepts or 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 to do, anything in relation to his principal's affairs or business,... “ Page. 3 Hon. AUGUSTINE RWIZILE It can be learnt from the law that elements of the

offence include, soliciting, accepting, obtaining or attempting to obtain any advantage as an inducement for any reward which of course must be in relation to the affairs of the employer. There is no doubt in this case, the appellants were employees of the Buhigwe district council. Generally, the prosecution on the 1st,2nd and 3rd counts, ought to prove that the appellants solicited the said funds from Pw1, Pw2 and Pw3, being the key witnesses. It is on record that Pw2 and Pw3 testified that they were asked by the 1st appellant to give him some money in order to be employed. They said, it was at his home. It is said, he phoned them and called them to his house, which the appellant partly admits in that he called them in order to get their certificates. It must be collected that the appellants were not under the law required to prove that they did not commit the offence. It was the duty of the prosecution to prove its case beyond reasonable doubt. Having gone through the submissions of the parties. Since this appeal is not contested, I find it clear that based on the contradictions stated by the learned state attorney and the appellants’ advocates, the contradictions stated are material and therefore the charge was not proved. I therefore allow this appeal, quash the conviction and set aside the sentence. Dated at KIGOMA this 10th of December 2024 . A. K RWIZILE

JUDGE OF THE HIGH COURT Page. 4 Hon. AUGUSTINE RWIZILE