R. v. Joseph Chapala, Crim. App. 289-D-69, 12/11/69, Mustafa J.

R. v. Joseph Chapala, Crim. App. 289-D-69, 12/11/69, Mustafa J.

The accused was charged with corrupt transaction with an agent contrary to section 3(1) of the Prevention of Corruption Ordinance, Cap. 400 of the Laws. At the close of the prosecution case the trial magistrate held that no prima facie case had been made out against the accused and also that the charge was bad for duplicity and he accordingly acquitted the accused under section 805 of the Criminal Procedure Code. The Republic now appeals. The facts are as follows. The accused was a court interpreter at the Iringa Resident Magistrate’s Court. At the material time the Resident Magistrate was on 0.0 Sholu, a Nigerian. One Iddi Abdallah was charged before the Resident Magistrate’s Court with criminal trespass. His case was being tried by Mr. Sholu and the accused was the court interpreter. Iddi Abdallah was convicted on the 20^th of February 1968 but sentence was deferred to 22^nd February 1968. Agatha, the wife of Iddi, approached the magistrate after conviction for bail but was refused. The same day the accused approached Agatha and told her that if she would pay out a certain sum of money the magistrate would arrange to fine her husband instead of sending him to prison. Agatha then got in touch with her relatives, who in turn informed the police, and a sum of Shs. 1,500/- produced by Agatha was duly handed to a police officer. The serial numbers of the notes were taken down, and Agatha was told to hand over the money o the accused when he came for it. At the same time the police officers arranged to keep a watch on the house of Agatha. Agatha said the magistrate and the accused came to the house on the evening of 21^st February, but she made some excuse and did not pay out the money then. Agatha testified that the Resident Magistrate, through accused, as an interpreter, spoke to her. Accused told her she could pay over the money the following morning, the 22^nd of February 1968, at the court office. Agatha went to the court the following morning and handed over the Shs. 1,500/- in an envelope to the accused, somewhere near the court premises. He was immediately arrested by two police officers who had been keeping watch nearby. It transpired that Iddi Abdallah was that morning sentenced to a fine of Shs. 200/-.

            Held: (1) The trial magistrate held that no prima facie case had been established for the following reasons. The accused was charged with obtaining the sum “for himself or otherwise on account of the Resident Magistrate”. However there is no evidence that the

Accused accepted the money for himself. Moreover, to prove that accused obtained the money on account of the R. M. it would be necessary to show that the accused was actually acting as the agent of the R. M., - but this has not been proven either. So reasoning, the trial magistrate dismissed the case. The High Court held as follows: “In my view, on the facts, it is quite clear that the appellant had corruptly asked for Shs. 1,500/- from Agatha so that Agatha’s husband would not be sentenced to imprisonment by the Resident Magistrate but would be merely fined for the offence of which he was convicted. P.W. 7 Agatha testified the accused had told he wanted the money in order to prevent her husband from being imprisoned. She said that accused had told her the Resident Magistrate would not release her husband unless she did something and that the complainant in the case in which her husband was involved had earlier offered Shs. 3,000/- to the Resident Magistrate would not release her husband unless she did something and that the complainant in the case in which her husband was involved had earlier offered Shs. 3,000/- to the Resident Magistrate as an inducement to imprison her husband, and the accused therefore asked Agatha to give Shs. 4,000/- if she wanted the Resident Magistrate to fine her husband instead of imprisoning him. After some negotiation the accused agreed to accept Shs. 1,500/- for that purpose and asked Agatha to produce the money. Agatha handed over Shs. 1,500/- to the accused, which was accepted by him. On these facts, and keeping in mind the particulars of offence contained in the charge, any reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation were offered by the accused. Clearly a prima facie case has been made out against the accused for him to answer …..” (2) The trial magistrate also held that the charge was invalid for duplicity. He reasoned that corruptly obtaining money for oneself and corruptly obtaining it for another are two distinct offences. Since these two offences are charged in the alternative in one count, the charge is invalid since the accused is not made to understand the exact nature of the alleged offence. With regard to this, the High Court held as follows: “As regards duplicity, learned State Attorney has properly pointed out that the provisions of section 138 (b) (i) of the Criminal Procedure Code would be applicable in this case. The said section reads (in part); “Where an enactment constituting an offence state s the offence to be the doing of r the omission to do any one of any different acts in the alternative ….. the acts ……. Or other matters stated in the alternative in the enactment, may be stated in the alternative in the court charging the offence.” The accused was charged with corruptly obtaining from Agatha Shs. 1,500/- for himself or on account of the Resident Magistrate. The substantial offence is the corruptly obtaining money, and whether it was for himself or on account of the Resident Magistrate is merely the commission of the offence in either capacity. Indeed it can be said to be one indivisible act which involves either person. It is wrong to say hat two distinct offences have been charged in the same count as held by the trial magistrate. I am satisfied accused was left in no doubt from he prosecution evidence what he was charged with and the case he had to meet. With respect, it seems the trial magistrate has failed to understand the principals underlying the decision in Cherere Gukuli v. R. (1965) 22 E.A.C.A. 478.” (3) Appeal allowed, acquittal set aside, and case remitted to trial court for hearings to proceed.