ADAMU MWAIBABILE v REPUBLIC 1997 TLR 96 (HC) F

ADAMU MWAIBABILE v REPUBLIC 1997 TLR 96 (HC) F

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J

MISCELLANEOUS CRIMINAL APPLICATION 1 of 1997 G

20 March 1997 - Dar es Salaam

Flynote

Criminal law - Security offences - Receiving a document in contravention of s 4(3) of

National Security Act of 1970 - Requirements of offence - Document communicated

against wish of accused. H

-Headnote

The applicant was charged and convicted of a contravention of s 4(3) of the National

Security Act of 1970 (receiving a secret document) and sentenced to 12 months'

imprisonment. The evidence indicated that the document in question, namely a copy

of a letter from the Regional Local Government Officer to the Songea Town Director

that the applicant not be granted a business licence for the year 1995/1996, had been

I

1997 TLR p97

MAPIGANO J

slipped into his office through the space at the bottom of his door by a person he A

did not know or see. The applicant brought an application to be released on bail

pending the hearing of his appeal and the court had to consider the prospects of

success on appeal.

Held:

(i) That s 4(3) required that where an accused person proved that a

document was communicated to him against his wish he had to be B released from

the charge. All that the accused had to do in this regard was to prove a prima facie

case. The appellant's account was a reasonable one;

(ii) The prosecution had to prove that at the time the document was

received the accused knew or had reasonable grounds for knowing that the

communication to him contravened the provisions of the Act. This was lacking in the

present case; C

(iii) The record was completely silent as to why the document in question

was not tendered in evidence. This was a material defect. D

Case Information

Application granted

No cases referred to

Shaidi for the respondent.

[zJDz]Judgment

Mapigano, J

On January 17, 1996, the applicant Adamu Mwaibabile was brought before the E

district court at Songea charged with receiving a document knowing that the same

was communicated to him in contravention of the National Security Act, 1970,

contrary to s 4(3) of that Act. He denied the charge and it is to be observed that there

was a written sanction by the Director of Public Prosecutions that he should be so

prosecuted, as required under s 16 the Act. F

The matter arose in this way: By a curious letter dated April 27, 1995, one Mrs

Mangwehe, a regional local government officer, directed the Songea Town Director

to ensure that the applicant was not granted any business licence for the year

1995/1996. Mrs Mangwehe made it absolutely clear that this directive G emanated

from the Songea Regional Commissioner of the day, one Nicodemas M Banduka. On

the following day the applicant came by a document which carried the same message,

what was described at the trial as a photocopy of the copy of the letter addressed to

the Town Director. It disturbed him and he took it to the Town Council Chairman

and left it with him. Days later the applicant was H summoned at the police station

and interrogated, resulting into the prosecution.

The applicant was convicted of the offence and the trial magis- I

1997 TLR p98

MAPIGANO J

A trate handed down a twelve month jail sentence. He is aggrieved by the trial

judgment and has brought it to appeal. A number of grounds are taken in the petition

of appeal.

What is now before me is an application that appears has overwhelming prospects of

succeeding. Mr Shaidi, Principal State Attorney, has expressed the same view.

Properly so, I think. Some of the grounds raised in the petition appear substantial and

probably irresistible. B

The first of these grounds related to the failure on the part of the prosecution to

produce the document which was the subject-matter of the charge. The record is

completely silent as to why the document could not be tendered in evidence. Mr C

Shaidi has observed that this was a material lacuna and I entirely agree with him.

The second ground relates to the circumstances under which the document in

question came into the applicant's possession. It is quite clear from s 4(3) of the Act

that where an accused person proves that such document was D communicated to

him against his wish he must be released from the charge. And the court has to bear

in mind that the onus of proof thrown on the accused person in that respect is not the

beyond reasonable doubt threshold. It is sufficient if he E succeeds in proving a

prima facia case. From the very beginning, and throughout the trial, the applicant's

account was that the document was slipped into his office through the space at the

bottom of his door by a person he did not see or know. This was the only account

given as to how the applicant came by the document. Mr Shaidi accepts the view that

it was a reasonable account and I am inclined to associate myself with that view. F

The third ground relates to the mental element ie the applicant's awareness at the

time when he came into possession of the document. In order to find him guilty of

the offence it was inter alia necessary for the prosecution to prove, and for the

magistrate to be satisfied beyond reasonable doubt, that at the time he received G

the document he knew or had reasonable grounds to believe that the same was

communicated to him in contravention of the provisions of the Act. There was hardly

any such proof.

In the circumstances this application should be granted. H

Accordingly, the applicant is to be released on bail pending the hearing of his appeal

and his release is to be effected without any surety. I

1997 TLR p99