19760922 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA AT ARUHA

APPELLATE JURISDICTION HIGH COURT CRIMINAL Jd'P}EAL NO0 82 OF 1976 ORIGINAL CRIMINAL CASE NO0 86 OF 1975

OF THE DISTRICT COURT OF KOROGWE DISTRICT AT KOROGWE ------------------- - -Resident Magistra Before W.R. Nramba ESq.,-

THE REPUBLIC APPELLANT (Original Prosecutor) • versus OMARI KUSAGA ------------ -- ---------- RESPON.oENrr (Original Accused) • •.. -

JUDGMENT Jonathan, •.. • Before the District Court there was a charge of six cOunts , of orruption c/s 3(i) and 3 (3)(8) of the Prevention of Corruption Act, i971L In the first two counts' the accused was one LAUDUNUS FRANCIS WERONGO who was aw assistant fbres'terin the ±ñisteçy - Of.Natural Resources' an.who In thet' charge sheet appeared as the- second. accused.;. All the other four counts related tcr OMARI KUS\GA the resjDondent to this appeal, who at the relevant time was a primary court magistrate at Maramba in the district of Muheza. The 1 arnd resiJent magistrate in his judgmcnt considered the evidence insufficient to convit± WERONGO and duly accpiitted him of both the charges against him0 Inth e case respecting KUSAGA on the other hand he found there was amle evidence to show he had both corruptly solicitcd and obtaind the sum of shs 400/- and a bag of cement valued at shs 24/50. The learned trial magis&ate was however not satisfIed that these findings of factdid constitute the offences chargdd, this in as :IT1J.1ch'aS thore had riot infact been opened a criminal case in the court where KUSAGA w9rkd. in which the complainant in the present case was the accus'd''o'thát.reason ..... he acquitted.himas well.: Forh'KUSAGAtS acquittal the Republic has appealed to this courts . - . •" --: KUSAGA through Mr. Miramho,:his counsel has strongly resisted the appeal, the. learned

advocate not only arguing in support of. the lowe. court's view of the law iying rise to the acquittal buta10 castigating the court's findings of fact as unmaintonable. Citing', a number of authorities he has asked that this court should itself examine the evidence and if necdssary :":: arrive at'a decision of its own. I agree that this being 'a first appeal it is in the nàtiire of a. rehearing thereby entitling - th:*(s cdurt to have its view of the evidence ' and r bearing' in mind that it does not hav 'the advantage which the court of first instance had, of seeing aridh - ari the witnesses thereby derl#ing the full fe'61the1r evidence, to daw- its ownconclusions, if necessary. - :. , ... •" Dealing first with the factual aspet of the case, it so--ts that on June 4,. 1975 a crimin1- complajnt:'was lodged with the priinar-y'dourt where KUSAGA was the presiding magis:trate 'agáirist two peopl', Dätiel' and Luka, for unlawfully s,wing timber in a Govetninent Forest. The timber so allegedly sawn was reported tohave been kept at the house o" MBEGA and in consequence KUSAGA on the same:dày the complaint: was lodged appears to have signed an order to seize the timberand 'to have it brought before the court while the cas'ew .'ás' pending. The record Of thd. primary court does not however show who lodged the cornplaiit.and.. the point is left to presumption that the complainant was an

dfficcr of Forestry. On the same day, the re'cord.further shows., KUSAGA sIgned,. a:'order apparently prepared by his cic.rkrequiring MBEGA to appear'befôre the Court on June 10 to answer to a charge of 'buying timber which 'had been sawn in a Goverrunent. Forest. • . . :• S 0 0 • • • . /2 . -2- 0 According to PW 4, one DAVID RICHARD, acousin of and staying with NBEGA WERENGO on June 7/come to thehouse àndrnarkd the timber he found there. The iiithess sedms to havc. comrnunicatd this to MJ3EGA . upon his arivaI back an1 on the next oy he call d on WERENGO. The complainant says WERENGO told him hm had been taken by the magistrate, but uponhis telling him that h ~ had boüht the timber WRENGO promised he to • ecTthe agi;-ta-to. to. communicate that information to him and to let him know what he would say. Later that day WERENGO called at the complainant's house and reported that the magistrate hadconsidered the clar.oe.-to serious one but that b Was prepared to drop it and to had the complainant'S posëiondf• the .timber legalised upon. receiving shs. 600/- and two bags of cement. For his services WERENGO would demand a furth e sum of. shs 200/-. He gave the impression that he would accept t'dIrid meet th demand. On June 9how4e. the compjainant reported the demand to the police. off icr iricharge of criminal investigations in the region who dily planned a trap. To be surL howovLr

that KUSAGA had inf act made the demand and it had not merely been kflkecll up by WERENG' the of fic r , asked the complainant to see KUJiGA himself. On the day MEGA went back and accompanied by p,W 3 FRJiNK MJ<NGE he procLJdd to KUSAGA'S house. They found himpresent and in thk3 course of the complainant telling him how he had come to possess the timber the acctxed told him he was in i-xeed of some cement. This he promisc1 to give him as he had some. Their talJç revealed ho had infect sent W.,RLNGO and after the complainant pleading to have the sum reducd KUSGA in the end reduced tt to shs. 4007- -is his own consideration, pointing out however that the offence attracted a sentenc of svLn yars' imprisonment, duly showing him sdtion 311 of the Penal Code. Mh'ANGE in his cidence fully supports thiS tart of the cernplainrrt account. The complainant reportd back to the police this cqnfirietion and handed to them four notes of shs. 100/- each and P W 2 Inspector JOEL KETO took down their serial numbers. p 2 12adinga team of fonr othr policc.men accompanied the complainant to Maramba tocrry out.a trap on KUSiGA. The complainant was to give the money to h m and as soon as that was done he was to signal in the policem who 1147buld havc b en posted at strategic positions. When back to Mararnba th rirst thing the complainant sems to have done was to Send his cousin DitVID to the house of

KUSJLGAt to Se f he was present so that the cement could be delivered. DAVID says he found him present and upon telling th accused he had been sent to deliver two bags of cement the latt r askedhim to have them taken to his house. He says h found h.in with the local h.alth assistant. In du. course that evening of June 10 he took a bag of cement there. The accused was not present and he left it with the"children. At about 6.00 p.m. M3EGit say4s KUSIGA cane to his house it the company of that health' assistant0: Leaving the latter at t1 - . verandah he topic the accused Thto the room and there he gave him the money. The accu ed iCCLivd it and put the four notes in the pocic t of the shirt to the "IKaunda" suit he was wearing. He thn left with the health assistrt and th complainant ave the agreed Signal to the police meA. ThLy sprang from their hide-out and, apparently, taking the accused compiLtely by surprise, held his arms seemingly to ensure that he did not throw away, the money. Inspector JOEL KETO seems to have been some distance away but all the other policemen sayhatupon searching the accused he was found to have the vry four notes they, had handLd back to the complainant after tak&ng down their numb-rs. P.W 5, one CHARLES SEMKIWA and P.W 6 PETRO M.HIMBO testify in agreement that upon ither hering a scuffle or seeing people running they came on.the scene..to fnd KUSAGA

being held and searched and some notes of shs. 100/- being found on him. . . . . . /3 4-J 3 Admittedly SEMKIWA was the brother of the complainant and like DAVID lived in his house. MAHIN30 on the other hand when asked if he had any relationship, with the coJflpllTht' andnin tiu1a .'if.O&ied co his sister he categorically denied. However when the complainant was recalled specifically on,the point he said MAHIMBO was infat married tóhis sister. Nowt soon after KUSAGA'was search-d and then arrested WERENGO happened to pass by and the policemen arrostd him as well. KUSAGAIrl his evidence compl2tely denies :soiicitinq or receiving .anything'from thecomplainant or DAVID. He dGiés also that he was searched and found to have shs. 400/- on him; the money was planted on him. As regards the cement' which was found at his house by the police after he was àrrested,he says he does not know who brought it there. • He has then p#7eqsed tie point that the relevant criminal case file, No' 151/75, sho'wed*-the accused as Daniel Mowanyi and Luke Wongera. The complainant wa not ah accused in that case0 He remembers however to have sLgned wh'at he - thought to be a witness summons £ or him to appear on June 10 to give evidece. He knew he was not adcüsed in that case /the and evidently court cle had erred when he prepared the document /was in the • terms th;at the compLainant/required tb thwer to th

charge. On this he is supported by'.:the clerk whom:'he caiflOd"who says that the 'accused. had asked him to wrjtB-o- wj'tneS uMmohs to the complainant. /he' The. accused/says did no-t ask him to prepare"" the do'ciimunt as a sumriions • to an accused person. WErENG0 in his unsworn stternent says he ws -' " that" 4 the accused in Criminal CaseNo. 151/75 had ,inlawful1.y cbained:.: s some timber and sold it to and infect found some timber there which he duly stamped He thë caused that case to be opened and ske, the court clark to have MBEGA . .summoned for the"hearing"day th"sayow he had come by the timber :He ''enies KUS,AGA aproachediim and they arranged.'a4eal.-.On June 10 the case could 'n6t be hoard beceOser. he,had 'to take those two accused to the forest f or furthr ±nestiçtions and for that -reason he asked the magistrate to have the hearing adjourned. The lower court on its own motion had the haalassistant, one .SHEMBILU,' called. When examIned he denied seeing, KUS,AGJ'\ and NBEGA. entering the'latter's house and the form.r, being subsequently: searched and found with hs. '400/-. ' He had however given a statement to the police which is greatly at varierice'with his testimc>ny and'the learned resident • magistrate, in my viw quite properly, disregarded his ovicioncèa, noting he was. totallj en'Un'el'iaale witness. ... The trial court- correctly observed that this

beinga pclico trp, the 'dec,oy.NBE.GA was not an accompliceand in law his evidence did not require corroboration. The cOurt then ctr'cctly cLns1d.red howevcr that, M3EGA beig a withess who may Well have had an intar,est Of his own to serve, it was not safe to convict on his evidence alone without there being corroboration. The court not being satisfied that • there was corroboration of. the"evidence of MBEGA in ol Ction to WERENGO, acquitted 'him. : . . ' • Coming to KUSAGA on the other hand the lower court found amiple eVidence to support that of MBEGA. As corroborative evidence it had regard to the evidence of all the six prosecutin witnesses who said that they sew the respondent being searcherl and cuid to have the four nOtes on him. It also took into account the evidence of DAVID that he - talked with KUSAGA on the matter of cement and he later took one bag of cemeht to KUSAGA'S house where it was inf act found. The learned trial magistrate did bear in mind that there were sl4gbt variations in the accounts of the witnesses and that as for MAHIMBO he had told a bold lie when he said he had no relationship with the complainant. Notwistanding such shortfalls he was satisfied those accnunts furnished sufficient corrobroative evidence. He seems to have overlooked I think that there was supporting evidence also from FRANK MAKANGE who said he accompanied C- -4— MBEGA to..the hcuse

of the accused and h.ard what tranapir.a1there. The ccurt acccrdingly came t the c nclusi 11 tht RUS1GA h th I .11ci:edu-i &btindthesurn cf shs. 40O/ and the cne bag cf cement. The tespónden€ had the henefit cf a fair triol in which the learned magistrate was ably assisted by learned ccunsel (fl oah side, and the benfit also of a very full and careful judgment, with which I cannot, with respect, feel justified to disagee, at any rate ;s. regards the cc;riclusions of .fact. The learned adv'cat for the resp.ndent takes the pin€ however that sri cf the witnesses were kinsmen if th complainant and their accounts could not be said to be corroborative evidence. I am however not persuaded I. would fr that eas.n'b entitled t fault th low r c urt's cnclusicn on the facts, especially as tnro wore thr accounts t the scne effect, including th se f the fivo prlicemen and MAKANGE who w ld n:Gt appear :t: be a relative of MBEWc. o The Ianed :résident magistr - ta oh the facts:wes however of the view 'that :in as 'much°as°'th ' Criminal Case N . 15.1/75 f that primary court did not showthat MB GA was an accu I tho btiaos c rruatly solicited and received were nct ir relatan tcu th t case and £ r that reas n n t in relati in to the d'faLrs of KU iGA'S principal, he culd not be c.niiced und-r Secticn 3 of the Act Acccrdinglyh.. acquitted him. Granted the fec' rd does not'shc KUSAGA a

heing..aniong those charged, the' summons makes it clear however that he was to answer t a charge of receiving'. the timber. ,3c th the complainant and MAIZ. .i'JE' hve then said the res f indent sh'- wed them secti n 311 of the Pnal Code pointang cut that that offence attracted .7 years'imprisnraent.. Thd b.ib3s then were f r seeing either that the charge f Lbtaining ws mt preferr'd him, and I wuld say ho lay pen t such ch rg, cr thin the event of proceeding against him on such charee th dose was dctrriünod in his favour. H was not an accused in that case,. but he was closely ccnnedted with it and clearly the bribes were irelati . to th't.case and sc in relation t the affairs cf his principal, the Judiciary. Be that as it may, wh'2thr or'not M3EGA featured in that case, the respondent, as the;pwer coprt rightly ohs ervd, was' rop±osenting to, the complainant that there was a criminal. case.No. 151/75 in which he was accusd f receiv1ng and tht he weld h7.ve an his fvcur if he gave him the Imney and the cement. He was in ffct f r reward {rndertaking t di smethang in relation t his maçjistj1 duUe 1beit for a charga which had not infct be laid against the crnplainint. In sc representing and s.liciting and obtainih those things ho was in my view acting in relation tc; the aff airs of his principal. Sacti'. fl 3 of the Act casts a wide net to cothbat corrupt practices . and it off.

.r Is no /to say defence for a persn accusecund:r it/that the suhjdqt matter ferwhich the bribe was obtained had hdt existed. It seemsclear to me then thot the resp'.nden,t was wrongly acquitted. Accordingly, the orders of dquittal -are set aside and the case is remitted ck to the lower court with a dircticn that it should cc.nvict.-s chargcI in each case and then t' proceed to' sentencc In the meantime yu will be in custody. Delivered in the (pen court this 22xd lay of Septthber, .1976. P.M. JONATHAN, - . JUDGE e