R. v. Sebastiano s/o Mkwe, E.A.C.A. Crim. App. 84-DSM-72, 24/10/72.

R. v. Sebastiano s/o Mkwe, E.A.C.A. Crim. App. 84-DSM-72, 24/10/72.

Held:   (1) Where an accused acts as a go-between to induce a magistrate to accept a bribe from another party who delivers the bribe shortly afterwards, the accused is himself guilty of a corrupt transaction c/s 3(2), Prevention of Corruption Act, 1971.

            (2) Where the accused chooses to testify, the court may take his evidence into consideration in coming to the conclusion that his guilt has been proved beyond reasonable doubt, and need not confine itself to the evidence of prosecution witnesses.

SPRY, AG. P. – The respondent was charged under section 3 of the Prevention of Corruption Act, 1971, with on Innyasi s/o Lehona, with the offence of corruptly giving a bribe to a resident magistrate named Edgar Diones Maokola Majogo,k so as to influence his decision in a case before him. Both accused were convicted. On appeal to the High Court, the conviction of Inyasi was sustained but that of the respondent was quashed. The Republic now appeals against the quashing of the respondent’s conviction.

                        The relevant facts, as established by the prosecution, were as follows. The respondent, who keeps a bar, approached Majogo in his chambers and said that he wished to discuss something with him but would prefer to do so at his bar. Majogo agreed, but said that he would take with him a fellow magistrate, Harold Elais Sisya. On his way home Majogo met Inyasi who referred to the fact that respondent and Majogo were to meet and said that  he, Inyasi, after going to his bank, would see Majogo on the following day. The two magistrates later went to the respondent’s bar. The respondent wanted to speak to Majogo alone but the latter wisely refused. Eventually, a conversation took place in Sisya’s car between the respondent and Majogo, with Sisya present. The gist of the conversation was that the respondent had a friend who was prepared to pay Shs. 1,000 for help in connection with a certain case.

            Majogo and Sisya consulted the police and a trap was laid. The outcome was that on the following day, Inyasi went to Majogo’s house and handed over Shs. 800 to him for his help in connection with the case. This was in the sight and hearing of two police officers, who were in an adjoining room.

            The learned judge, who allowed the respondent’s appeal, based his decision on two considerations. First, there were discrepancies in the evidence and, secondly, he thought that as the respondent took no part in the handing over of the money on the second day, the case against him had not been proved reasonable doubt.

            The discrepancy on which the learned judge mainly relied, and which he regarded as very serious, concerned what was said in Sisya’s car. Majogo said that the respondent had said he had the Shs. 1,000 ‘in his pocket in that very car.” Sisya, on the other hand, said “I cannot recollect whether it was I or Mr. Majogo but one of us asked where the money was and 2^nd accused said the money could be produced shortly thereafter.” With respect, we cannot see that this discrepancy is of any real significance. Indeed, it is not by any means certain that there is any contradiction, especially as Sisy’s account continues “I told the 2^nd accused to give back the money to that man.” Substantial, the evidence of these witnesses is consistent and the trial magistrate found them to be witnesses of truth. It may be that on this particular detail, the memory of one of hem was a little confused. Neither was asked in cross-examination any question on this particular matter and was are not persuaded that it is any ground for doubting their evidence

            As regards the second point, the learned judge said that because of this contradiction it was doubtful if the respondent mentioned money at all. He went on:” All he said that there was someone who had a case about a Kihamba before Mr. Majogo and that Majogo should try to help that man and no more. No name was mentioned, nor was the case number or whether it was a civil or criminal case nor was any money mentioned. What took place next day was strictly between P.W. 1 (that is, Majogo) and first appellant and 2^nd appellant did not give any money to PW.1 to seek his favour in criminal case No. 430/71, and as an inducement. For all its worth PW.1 need not have seen 1^st appellant if he so desired the following day and that would have been the end of everything …….”

            With respect, that is a serious misdirection. If the evidence of the two magistrates was truthful, and there is no reason to doubt it, it is clear that the various events which occurred in less than thirty-six hours all formed part of a single transaction first, there was the respondent’s approach to Majogo. Then, soon afterwards, the chance conversation between Inyasi and Majogo, when the former referred to the respondent by name and said he would see Majogo after he had been to his bank. Then there was the conversation in the car. Finally, the next morning, Inyasi paid over the Shs. 800 for help in his case. It is immaterial that the respondent was not present when the money was handed over. It is quite clear that he was a principal offender, acting as a go-between on behalf of Inyasi, who preferred to make his corrupt approach to Majogo indirectly. We think his guilt was amply proved and that this appeal must succeed.

            There is also another serious misdirection in the judgment appealed from. The learned judge criticized the trial magistrate, saying that he “should look only to evidence of prosecution witnesses to see that the case is proved beyond all reasonable doubts and not try to fish for something from defence.”

            Once an accused person has been called on to make his defence, any evidence he gives or calls is evidence in the trial and it is the duty of the court to consider the evidence as a whole. [The court discussed the application of the Minimum Sentences Act, 1971 and continued]. Accordingly, we allow the appeal set aside the judgment of the High Court and restore the conviction and sentence passed on the respondent by the trial magistrate.