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Salehe s/o Mohamed v. R., Crim. App. 99-DSM-72, 2/6/72, Onyiuke, J.



 Salehe s/o Mohamed v. R., Crim. App. 99-DSM-72, 2/6/72, Onyiuke, J.

The appellant was charged on 3 counts with minor offences against the Traffic Ordinance and Rules made there under. In the 4th Count he was charged with an offence c/s 3(2) of the Prevention of Corruption Act (No. 16 of 1971). The particulars of the offence in this 4th Count were as follows: - “Salehe s/o Mohamed charged on the 3rd day of January 1972 at about 07.30 p.m. along Morogoro Road did corruptly give Shs. 29/30 to No. B. 1008 P.C. John as an inducement in order that the said Police constable could excuse him in Traffic Offences he was being charged.” The appellant pleaded guilty on all the counts but the subject of this appeal concerns Count 4. To the charged in Count 4 the appellant was recorded as saying as follows; - “It is true I gave Shs. 29/30 as a bribe.” The Public Prosecutor then narrated the facts of the case as follows:- “Facts:- The accused is a driver employed M/S Murjia & Sons Co. Ltd. On 3/1/72 at about 7.30 a.m. accused was driving d/v no. TDS 725 make Fiat with a Trailer No. TDU 393 along the Morogoro Road. As he was driving along this road, a police vehicle was following him from behind. In it was some Traffic policemen’s to wit, B 1008 P.C. John. When they reached at one garage, the policemen asked the accused to take his vehicle to a garage for a repair because it was making too much noise and smoke was coming out heavily. After giving these instructions the policemen took off. But just as they these instructions the policemen took off. But just as they were pulling away from him, the accused followed them. 

He stopped them and entered into their van. The accused took Shs. 29/30 and handed the same to P.C. John as to induce John not to prosecute him for the offences he had committed. John accepted the money and subsequently charged him. The money is now lying at the Police Station. Arrangements are being made to bring it.”

            Held: (1) “Learned Counsel for the appellant relied on two grounds of appeal, namely, (i) ‘That the plea was equivocal and/or not voluntary’ (ii) ‘That the facts as laid by the Prosecution do not disclose an offence and’ or do not disclose that the receiver of the alleged bribe was at the material time acting in the principal’s affairs.’ In developing the submission on ground (iii) Mr. Raithatha referred to Section 3(2) and stated that the essentials of the offence under that subsection were as follows;- The person charged must be shown that (a) he corruptly gave or offered to give (b) an advantage (c) to any person(d) as an inducement to or reward for or otherwise on account of (e) doing or forbearing to do or having done or fore borne to do (f) anything  (g) in relation to his principal’s  affairs or business. The particulars of offence showed that the basis of the case of the prosecution was that the bribe was given or offered as an inducement in order that the said police constable ‘could excuse him in the traffic offence he was being charged.’ This charge was not borne out by the facts as stated by the prosecution. The facts as stated indicated that the appellant was merely asked to take his vehicle for repairs as it was emitting too much smoke and making too much noise. It was an admonition and nothing more. This was the end of the matter as far as the police constable was concerned. The appellant was not charged with giving the bribe on account the police constable’s having forborne to charge the appellant, (and the facts could not even support such a charge), but with giving a bribe so that the police constable may forebear to prosecute. On the facts as stated the constituents (e) (f) and (g) of the offence were lacking. There was nothing pending in relation to the principal’s affairs or business in respect of which a bribe was given or could be given. This, in substance, was the learned Counsel’s submission.” (2) in substance, was the learned Counsel’s submission.” (2) “It appears to me that either the facts were mis-stated or the charge was not properly framed. Section 203(1) of the Criminal Procedure Code dealing with an accused person’s plea requires that “the substance of the charge shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge.” It was stated by the Court of Appeal for  Eastern Africa in Kato v. R., (1971) E.A. 542 at 543 that it is only if it can be clearly shown that an accused person has admitted all the ingredients which constitute the offence charged that a court can properly enter a plea of guilty. The Court of Appeal in that case cited with approval the following passages in Rv. Ynasani Egalu (1942) 9 E.A. C.A. 65 at 67: “In any case in which a conviction is likely to proceed on a plea of guilty (in other words, when an admission by the accused is to be allowed to take the place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but hat he should be required to admit or deny every constituent and that what he says should be recorded in a form which will satisfy an appeal Court that he fully understood the charge and pleaded guilty to every element

of it unequivocally.” In Simon Joseph s/o Magangira v. R., (1968) H.C.D. No. 466 the accused was charged with corrupt solicitation of money c/s 3(1) of the Prevention of Corruption Ordinance, cap. 400, and on his pleading guilty to the charge the prosecution out-lined the facts which the accused admitted. He was convicted on his own plea. On appeal against conviction the High Court (Seaton, J) found that the statement of facts ‘was either meaningless or indicates a set of circumstances that do not support the charge.’ He held that although such a statement of facts was not a statutory requirement it had become an ‘invariable’ practice. The learned Judge allowed the appeal and stated that “because of the confusion in the statement of facts the accused could not with comprehension have pleaded guilty to them.” (3) “The principles that emerge from these cases are that a trial Court should not record a plea of guilty on which to base a conviction unless it is satisfied – a condition which can be objectively demonstrated by the facts appearing on the record – that the accused intended to plead guilty and to admit facts which constitute the offence charged. The great merit in this practice of requiring the prosecution to give a statement of facts which an accused person is required to admit or deny is to remove any doubt that may attach to the accused’s plea of guilty and ensure that he intends to admit facts which constitute the offence as charged. A real responsibility rests on the prosecution to state facts which it would have relied upon were the case to proceed for trial. A plea of guilty relieves the prosecution of the burden of calling witnesses to prove the charge but it does not, in my view relieve it of the duty to state the facts correctly and enough to support the offence as laid in the charge. If an accused person pleads guilty to a charge and the facts which the prosecution narrates in support of the charge do not constitute the offence the quality of the accused’s plea is there by impacted and the plea itself is rendered nugatory because he can not be taken to intend to plead guilty to a non-existent offence.” (4) Appeal allowed and conviction for a corrupt transaction set aside. Order that case be tried on its merits.

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