BEN ZUBERI MWAMBA v REPUBLIC 1984 TLR 172 (HC)

BEN ZUBERI MWAMBA v REPUBLIC 1984 TLR 172 (HC)

Court High Court of Tanzania - Dodoma

Judge D'Souza Ag J

September 5, 1984

CRIMINAL APPEAL 21 OF 1984 E

Flynote

Criminal Practice and Procedure - Burden of proof - Corruption offences - Burden

lies on prosecution to show reasonable suspicion of corruption or unlawful acquisition

- Section 9(1) of the Prevention of F Corruption Act 1971.

Evidence - Hostile witness - Meaning of - Prevention of Corruption Act 1971 -

Interpretation - Meaning of "may reasonably be suspected of having corruptly

acquired" under section 9(1) of the Prevention of Corruption Act 1971. G

-Headnote

The appellant was charged with various offences of obtaining advantage for

inadequate consideration contrary to section 6 and knowingly giving a false account

in relation to property contrary to section 8 of the Prevention of Corruption Act

1971. It was alleged that the appellant who H was the Marketing Manager with the

Singida Regional Trading Company, a public corporation, acquired various properties

by using his position as a public officer. The trial magistrate held that he had

acquired the property corruptly because he could give no satisfactory account of how

he had acquired the properties. The conviction was quashed on appeal. I

1984 TLR p173

D'SOUZA Ag J

A Held: (i) To prove corruption it is not enough simply to show that the property

was acquired illegally or through discreditable means because such property may not

necessarily be corruptly acquired;

B (ii) failure by the accused to explain how he acquired property will not in itself

justify an inference that it was corruptly acquired;

(iii) an official found in possession of property apparently disproportionate to

his means may have acquired it by corruption, or in some way which is illegal or

discreditable;

C (iv) before the burden of proof shifts to the defence in offences involving

being in possession of property corruptly acquired there must be reasonable suspicion

of corruption or unlawful acquisition;

(v) it is not every witness that gives unfavourable evidence that can be

declared hostile; for a D witness to become hostile it must be shown that he

prevaricates or suppresses the truth.

Case Information

Appeal allowed.

E Cases referred to:

1. Teddy Lucas v R. [1977] LRT 33

2. D.P.P. v Felician Tibilikirwa [1973] E.A. 440

3. John Kichuri v R. [1978] L.R.T. n.27.

F G. Alimwike for the appellant

Mwambe for the respondent

[zJDz]Judgment

D'Souza, Ag. J.: The appellant in this case Ben Zuberi Mwamba was charged with

seven counts G under the Prevention of Corruption Act 1971. He was convicted on

five of these counts. He was acquitted on the fourth and sixth counts.

The particulars of the first count allege that on 19.9.81 he solicited a loan of

Shs.100,000/= from one Seleman Abubakar, a person whom he knew or had reason to

know was likely to be concerned in a H matter with himself as a public officer, for a

consideration he knew or had reason to believe to be inadequate, contrary to s.6 of

the corruption Act. On the second count he was alleged to have obtained a loan of

Shs.15,000/= from the same Selemani Abubakar for a consideration which he knew I

or had reason to believe to be inadequate. In the third count the particulars allege the

obtaining a loan of Shs.60,000/= from one Amir Said contrary

1984 TLR p174

D'SOUZA Ag J

to the same section of the Corruption Act. On the fifth count he was alleged to have

obtained a loan A of Shs.85,000/= from one Selemani Abubakar contrary to the

provisions of s.6 of the Corruption Act. The last count alleged that he was found in

possession of property reasonably suspected of having been corruptly or unlawfully

acquired (contrary to s.9 (1) of the Corruption Act. The B particulars on the last

count stated that he "was found to have constructed a house on plot 239 Makole in

Dodoma valued at Shs.306,000/= of which value Shs.273,000/= is reasonably or

otherwise unlawfully acquired."

Before coming to the findings and conclusions of the trial magistrate I propose to

briefly summarise C the evidence produced by both sides in this case.

PW.1 John Shila, an accountant with the Evangelical Lutheran Church of Tanzania,

testified that his organisation sold the appellant a motor vehicle and the appellant

paid a total of Shs. 160,000/= for it between 16.2.82 and 22.3.82. PW.2 Amri Saidi

testified that he was a transporter at Singida and that D the appellant was his

relative. He stated that he knew that the appellant was the marketing manager of

Singida Regional Trading Company. His buses got diesel from various petrol stations

including the Agip petrol station that was run by the Singida Regional Trading

Company. He stated E that he gave the appellant a loan of Shs.60,000/=. When

probed further on cross-examination by counsel for the appellant, he stated that

under the arrangements made by him and the appellant for repayment of the loan he

was to be paid an extra Shs.10,000/= which could be his benefit from the transaction.

He stated that he could not have begged for fuel oil from the appellant as permits

were F issued by the Regional Office.

PW.3 Seleman Abubakar, a transporter at Singida, testified that in August 1981 the

appellant who was by then the Marketing Manager of RTC Singida, came to him for a

loan of Shs.100,000/=. He G said he gave the appellant a loan of Shs.85,000/= in

September 1981 and a further loan of Shs.15,000/= on 22nd March 1982. After that

the proceedings read as follows:

Pros: I apply to treat the witness as hostile under s.164 of the Evidence Act. H

Court: I have seen the statement of the witness he made on 9.8.82. In the

statement the witness admitted lending the accused Shs.15,000/= only out of the

proposed loan of Shs.100,000/=. In court the witness says he I gave the accused

1984 TLR p175

D'SOUZA Ag J

A Shs.85,000/= in 1981. This is a material departure from his earlier statement.

The prosecution are granted leave to treat the witness as hostile and are hereby

allowed to cross-examine him.

B Thereafter this witness told the court that on one occasion the appellant gave him

a permit to get petrol. He agreed that the Shs.85,000/= were not mentioned in his

statement but he said, he told the investigator of this amount. He said the

investigator was apparently not satisified with his story C regarding the Shs.85,000/=

because he could not produce a written record for that amount. At the end of the

prosecution and defence cases the court, exercising its discretion under s.151 of the

Criminal Procedure Code or s.147 (4) of the Evidence Act, and with the consent of

both the prosecution and the defence, recalled PW.3 Selemani Abubakar. He testified

that he had agreed with D the appellant to an interest payment of Shs.10,000/= on

the loan. He stated that when there was an unusual delay in repayment he started

accepting repayment in the form of bags of maize which he sold at a profit and some

of which he used for himself and his family.

E PW.4 Hamidu Shabani Kimasharo testified that he was an employee of the Agip

petrol station at Singida. He produced two chits written by the appellant and

authorising sale of fuel to PW.2 and PW.3. The fuel was supplied and PW.2 and

PW.3 paid in cash. PW.4 said they used to borrow fuel F from PW.2 and PW.3.

The first chit, produced as exhibit K1 had this endorsement "Tunadaiwa lakini walipe

ili baadaye tujuwane." The second chit instructed the petrol station to sell PW.2 fuel

as his bus was stranded some 100 miles away without fuel.

PW.5 Alfred John Mwale, the General Manager of Singida R.T.C. testified, among

other things, as to G the appellant's duties as Marketing Manager. He stated that

when there was a fuel shortage the appellant and the transport officer in the Regional

Development Director's office were empowered to issue permits on the basis of

certain priorities that were not elaborated. He gave the appellant's H salary at

Shs.60,700/= per annum. He admitted that the appellant's wife worked but he did not

give further details.

PW.6 Melkiad Swela, an officer of the Anti Corruption Squad, testified on a number

of aspects of the case. First that the appellant purchased a land rover from the central

synod for Shs.160,000/=. That I PW.2 admitted giving a loan of Shs.60,000/= to the

appellant. That PW.3 admitted giving a lona of Shs.15,000/=. The witness

1984 TLR p176

D'SOUZA Ag J

produced PW.3's statement as exhibit 'O'. His investigations revealed that PW.2 and

PW.3 were A given permits by the appellant to enable them to obtain fuel. That he

found out that the appellant had built a house on plot 239 Makole and that at his

request the Regional Land Officer valued the house. The value was Shs.306,000/=.

The appellant told him that he built the house from the salary B of himself and his

wife and a Housing bank loan of Shs.80,000/=. He collected details of the appellant's

earnings since he left school in 1971. These show that the appellant earned

Shs.97,935.75 between 1971 and 1981 both years inclusive. He found out that in fact

the appellant got a loan of Shs.33,000/= and not Shs.80,000/=. He found the appellant

with furniture valued C Shs.27,377/=. Cross-examined by counsel for the appellant

the witness said that the appellant did tell him that he had a chicken project in Dar es

Salaam.

On the loan of Shs. 85,000/= from Amiri Saidi he said: D

I followed up on whether the Shs.85,000/= was advanced or not. I was not

satisfied that the money was advanced. This was because the accused told me he sent

the money to Amiri Saidi and then withdrew the E money in small amounts while

Amiri Saidi said the accused took the money in one lump sum. I therefore

entertained doubt whether the Shs.85,000/= was loaned or not.

He established a connection between the appellant and the witnesses PW.2 and PW.3

in so far as F purchase of petrol was concerned. He finally said that he did not

include Shs.85,000/= in the statement recorded from Seleman Abubakar.

The next witness for the prosecution PW.7 Crhistostom Kuyenza, a valuer with the

Ministry of G Lands at Dodoma valued the appellant's house at Makole. He found

that the title deed was issued in 1975. He valued the house at 1982 construction and

market costs. According to their procedures the date of completion was the relevant

date for valuation. He did not question the appellant on any aspect before completing

his report. He made comparative valuations of two other houses in H Dodoma.

The appellant gave sworn evidence. He denied all the charges against him. He

agreed having received the loans from PW.2 and PW.3. He stated however that they

were his close relatives and implied that the loans were given partly because of close

family ties but not because of any I connection with his employment as marketing

1984 TLR p177

D'SOUZA Ag J

A manager of R.T.C. at Singida. He stated that despite all these factors the loans

were not interest free as he had agreed with PW.2 and PW.3 that he would return the

loan with interest. PW.3 was to get about 10% interest and PW.2 about 13% on the

loans.

He went on to say that fuel in the Region was allocated by the Regional Scarce

Commodities B Allocation Committee. Even the R.T.C. had to apply to this

Committee. They used to borrow fuel from parastatals and private persons. In such

circumstances when R.T.C. got fuel they used to give C priority to those people from

whom fuel was borrowed. PW.2 and PW.3 were two such people who used to lend

fuel to R.T.C. to enable it to make essential transport trips. Aside from the income

from lawful side activities, he hired the Land Rover he bought to the Capital

Development Authority who paid him Shs. 25,000/= by cheque on 13.2.84 and

Shs.30,921/= on 1.3.84. He produced a receipt D issued by the Regional Agricultural

Officer for Shs.3,750/= for ploughing charges and another delivery note for 30 empty

gunny bags purchased from Gapex. These documents were in support of his

statement that he was producing maize on his shamba. He was also a poultry keeper.

In 1979 E and 1980 he made a profit of 7,000/= to 8,000/= per month from keeping

broilers. He produced an order form and a receipt for payment for 200 broilers in

support of his assertions.

In respect of the house at Makole in Dodoma, the appellant stated that he started

construction of the same in 1973. He built the out house with his own earnings and

the main house with a T.H.B. F loan. He produced a building plan dated 8.111.77 as

Exhibit 9. The plan is in respect of Plot 239 Makole and has been approved by the

Building Control Officer of the Capital Development Authority. The plan shows an

existing building shaded in red and an unshaded proposed extension. G The

appellant stated that the shaded portion was already constructed by 1975. He

produced a number of receipts for building materials he bought between 1973 and

1977 to support his statement that building materials were very cheap during that

period. The cost of the construction completed before 1975 he put at Shs.20,000/=

and the second part he put at Shs.50,000/=. He said that the H valuation officer

(PW.7) never came to him for any information regarding construction cost and date

of completion of various parts of the house. Cross-examined by the prosecution, he

said that his poultry project in Dar es Salaam processed about 200 chicken per month.

His shamba on which he I grew maize was 25 acres in area. He admitted that in the

written loan agreement with Selemani Abubakar (PW.3) no mention was made of any

interest

1984 TLR p178

D'SOUZA Ag J

element. Asked about his written reply to a notice from the Anti Corruption Squad

he said that he A was given only 24 hours to answer 62 questions and this may

explain any discrepancies in the statement. The agreement with PW.2 and PW.3, he

insisted, were agreements with his clan relatives.

The appellant called five witnesses in his defence. B

DW.2 Haruna Shabani, the appellant's brother in law testified that he was a resident

of Dar es Salaam. He stated that appellant first started rearing chickens at his house in

two lots of 100 each. Then the appellant moved the project to his own house where

he built a three roomed chicked banda. C

DW.3 Thomas Nyaulingo, a small time builder, testified that between 1973 and 1975

he built for the appellant the part of appellant's house shaded in red on Exhibit 9. He

stated that by 1983 prices of building materials had gone up 300% compared to the

prices in 1972 - 1975. He had used another building plan and not Exh.9. D

DW.4 Abdalla Saidi Mkoma witnessed the written agreement between PW.3 and the

appellant for the loan of Shs.100,000/=. He was not present when the two negotiated

terms but was only called to sign the agreement as a witness. E

DW.5 Tiba Mwamba was the appellant's wife. She testified that she worked with the

NBC from 1972. She started work with a salary of Shs.350/= p.m., increasing six

months later to Shs.410/= per month and in 1977 to 570/= per month. In 1978 her

salary went up to 1,650/= p.m. She testified that one 1st F phase of their house they

built between 1973 - 1975. Part of the labour work was done by herself and her

husband. She testified in support of her husband on the poultry project at Dar es

Salaam which she said was profitable. Every month they marketed 200 broilers.

DW.6 Omari Saidi Mkoma, the appellant's cousin and neighbour testified that

between 1978 and G early 1981 the appellant had a poultry project at Dar es Salaam.

The project had a three roomed 'banda'.

Before I conclude this review of the defence evidence, I must note that before closing

the defence case, Mr. Alimwike, Counsel for the appellant, applied that the court

invoke its powers under s.151 H of the Criminal Procedure Code or s.147 (4) of the

Evidence Act to have PW.3 recalled for clarification of parts of his evidence. The

court granted the application without indicating which provision it relied on. In so

far as the application was for recall of PW.3, and not an application to call PW.3 as a

defence witness, I would find that PW.3 was wrongly put down as DW.7. Whether I

the court

1984 TLR p179

D'SOUZA Ag J

A granted counsel's application under s.151 of the Criminal Procedure Code or s.147

(4) of the Evidence Act it is clear that the court was in fact recalling a witness for

further examination, as the sections quoted do not relate to calling of defence

witnesses.

B The trial court's approach in treating courts 1, 2, 3 and 5 together cannot be

faulted as the evidential requirements are more or less the same for all these counts,

notwithstanding that count one was for soliciting and the other counts were for

obtaining advantage without consideration or for a consideration that the appellant

knew or had reason to know was inadequate.

C The trial court found that the loans involved in counts 1, 2, 3 and 5 were solicited

and received. There cannot be much dispute about this as even the defence admitted

soliciting and receiving the loans.

D The main issue was whether the loans were made for valuable and adequate

consideration. On this issue the court said, "In his defence however the accused

person showed that there was an interest of 1 per cent on the loans, and that the

interest was in the form of bags of maize to be sold at a profit. Even the givers of the

loans mentioned the "bags of maize" element of the loans, and each E claimed he

received forty (40) bags of maize from the accused person. The accused is shown to

have "paid" eighty bags of maize to the two loan givers. The court went on to note

paragraph 10 of the appellant's reply to the notice served on him by the Anti

Corruption Squad, in which paragraph F the appellant stated that he had a 25 acre

farm that he jointly cultivated with 3 other people. The court also noted a receipt

showing that the appellant had on 6.5.82 bought maize from National Milling

Corporation. The court said it did not believe that the maize was bought for members

of the G R.T.C. staff working with the appellant but gave no reasons for this finding.

Commenting on the receipt that the appellant produced to show that he bought 30

empty gunny bags from Gapex the court said that this was not sufficient to prove that

appellant in fact harvested maize. The court then made the crucial finding that the

maize story was a cover up story to hide the fact that the loans were H without

consideration.

Learned counsel for the appellant argued that the evidence of PW.3 Selemani

Abubakar was wrongly discarded by the trial court as he was wrongly treated as a

hostile witness. I find merit in this argument. PW.3 was declared hostile when he

stated that he gave the appellant a loan of I Shs.15,000/= and a loan of Shs.85,000/=.

The court granted the prosecution leave to treat PW.3 as hostile

1984 TLR p180

D'SOUZA Ag J

because in the statement PW.6 recorded from this witness, the witness said there was

a loan of A Shs.15,000/= and there was no mention of a loan of Shs.85,000/=. It was

held in Teddy Lucas v R. [1977] LRT 33 that not every witness that gives

unfavourable evidence is hostile, for a witness may only be found to be hostile if he

prevaricates or suppresses the truth in an endeavour to destroy or B damage the case

of the party that called him. The same proposition is supported by Sarkar on

Evidence, 11th edition, at p. 1317. In this case count five alleged that the appellant

obtained a loan of Shs.85,000/= from PW.3. If then PW.3 came to court and said the

same thing in that he gave a loan of Shs.85,000/= to the appellant, was PW.3

destroying the prosecution's case or building it up? C

In addition to this very basic irregularity this court finds that despite PW.6's ardent

denials, PW.3 must have told him of the Shs.85,000/= loan. If he did not, what was

the basis for including count No.5 in the charge sheet? D

From all this, this court finds that the court misdirected itself in declaring PW.3 as

hostile and in discarding his evidence.

Both PW.2 and PW.3 testified for the prosecution. They were presented as witnesses

of truth and in so far as PW.3 was wrongly declared hostile, he was also presented as a

witness of truth by the E prosecution. In making its finding of fact that the loans

were without valuable and adequate consideration the trial court treated the evidence

of these witnesses as if it were part of the defence case. The Court was aware of the

problem when it commented that, "Even the givers of the loans F mentioned the bag

of maize elements of the loans." This court finds that this was an erroneous approach

to the evidence as a whole as there was no basis for treating PW.2's and PW.3's

evidence as if it were defence evidence. In view of the evidence of these two

witnesses the finding that the loans were for a consideration that was inadequate or

which the appellant had reason to believe to G be inadequate, cannot be supported.

On the 7th count the trial court found the charge proved. The particulars on this

count read:

Ben Zuberi Mwamba, being a public officer, on or about the 9th day of

August, 1982 in consequence of H investigations carried on pursuant to s.8 (1) of the

Prevention of Corruption Act, 1971, was found to have constructed a house on plot

239 Makole in Dodoma valued at Shs.306,000/= of which value Shs. 273,000/= is

reasonably suspected to have been corruptly or otherwise unlawfully acquired. I

1984 TLR p181

D'SOUZA Ag J

A The findings of the trial court relating to this count can be noted before they are

scrutinised. The court first noted that the amount of Shs.273,000/= charged in the

seventh count was the difference between the value of the house as per PW.7's

valuation report and the T.H.B. loan of Shs.33,000/= B which the appellant obtained

for building the house. The court then noted that PW.7 based his report from the

year shown in the title deed - i.e. 1975 and went on to say, "Then he valued the

whole house after valuing comparable properties in Dodoma town whose reports he

produced as Exhibits V.1 and V.23. The accused person disputed the valuation report

and says that he started C building the house in 1973. The accused produced a

building plan dated 8/11/77 which showed that in 1977 the area shaded in red in the

plan, which is about three quarters of the whole house was complete. The accused

also produced receipts to show the relative cheapness of building materials D in

1977. The accused went on to show how he kept poultry while in Dar es Salaam.

This poultry business is the source of extra income on the accused's part as he himself

maintains.

The accused says he started building the house in 1973 but the valuer says the title

deed to the E house is dated 1975. The accused did not dispute this allegation. Since

the house is situated in a surveyed area the accused could not build without getting

title to the plot. The accused did not say that he started construction before the plot

was allocated to him, so the logical conclusion is that the accused started construction

after getting title to the plot. The valuer was therefore right in using F 1975 as the

base year on which his report is based. I discount the accused's allegation and that of

his witnesses that he started building a house in a surveyed area two years before he

got title to the land. The operative year must be the year of the title deed 1975. This

is why even the plan G produced by the accused himself is dated 1977, two years

after the title was issued to him. The accused could not produce any document like a

building permit to show that he started construction in 1973. This is strange in this

case where the land is surveyed. Since the basic year is 1975 the H valuation report

reflects the correct value of the property. The court accepts the valuation report as

the correct statement of the correct value of the house and not the fictitious values

which had been pushed back two years before the grant of the title. The report

shows that the value of the house is Shs.306,000/=. Deducting the loan from T.H.B. to

the accused Shs.33,000/= this leaves Shs.273,000/= I unaccounted for. The valuer

said the house had two parts: an out building which was complete and the main house

which

1984 TLR p182

D'SOUZA Ag J

was not complete at the time of valuation. the accused and his wife said that they

used their salaries A to build the house between 1973 and 1976. I have discounted

this story because in 1973 there was no title to the plot so they could not have started

building in 1973. If anything they should have started in 1975 after the grant of title

to them. The court went on to calculate the appellant's total B earnings from his

salary from 1971 to 1981 and concluded these would amount to Shs.97,935/75."

Thereafter the court went on:

Even if the accused spent the whole of his salary on the house it would not

have been sufficient to build even C half the house he built. Let alone the

insufficiency of the salary, the notice served on the accused showed that in 1981 and

1982 the accused had an expenditure of Shs.311,299/90. This is an average

expenditure of about Shs.13,000/= per month for the period. The highest salary the

accused got was Shs.5,065/= per month D before deductions, yet he spent more than

twice his gross pay at certain periods!

This expenditure was over and above the amounts put in the construction of

his house in Dodoma whose E visible resources were a loan of Shs.33,000/= only.

The other source given by the accused is poultry keeping but in the reply to the

notice the accused did not mention poultry keeping. He only mentioned his salary

and that of his wife as well as a T.H.B. loan of Shs.33,000/=. The story of poultry

keeping in Ilala mentioned F during the defence is an afterthought which I find not

credible and hereby dismiss.

I find it proved that no satisfactory account has been given on the source of funds of

building the house situated on plot 239 Makole area in Dodoma town. I find the 7th

count proved and I convict G the accused as charged."

This court has endeavoured to reproduce in detail the findings and arguments of the

trial court. The trial court found that the valuation report was based on 1975 as the

base year. However I have been H unable to find any such statement in the

evidence of PW.2. In fact what he said was, "The current market costs of

construction I took as a factor in my valuation is the value as at September 1982." In

Exhibit 'V' - the valuation report - the same thing appears. The report is dated 3.9.81.

In the report PW.7 says, "My opinion of value is based on evidence availalble of

similar properties built I

1984 TLR p183

D'SOUZA Ag J

A recently in the locality." In the next paragraph he says that the "current market

cost of construction" of the house was Shs.306,000/=. There is nothing in the

evidence to support the trial court's findings that the valuation was based on 1975 as

the 'base' year.

B The next finding was to the effect that since the title deed was issued in 1975 then

no construction could have taken place before 1975. In his initial reply to the Anticorruption

Squad the appellant stated that he started construction in 1973. The squad

made a very thorough investigation in this case. I find it difficult to believe that they

failed to check on the history of the C plot and the house. The trial court said that

the appellant could not produce any document like a building plan, letter of offer or

building permit to show that he started construction in 1973. The trial court totally

failed to consider the evidence of DW.3 on this issue. DW.3 Thomas Nyaulingo

stated that he built a substantial section of the house from 1973 to 1975.

D The next finding of the second court is its rejection of the appellant's story that he

had a poultry keeping project. The court's reasoning on this was that because the

appellant did not mention anything about poultry keeping in his reply to the notice

form to Anti Corruption Squad, then the E whole story of poultry keeping

mentioned in the defence was an afterthought. In paragraph 18 of Exhibit 'N' the

appellant stated, "Nilikuwa nikifuga kuku kwa wastani wa kuku 600 hadi 800 kwa

mwezi - banda ilikuwa nyuma ya nyumba niliyokuwa nikiishi Ilala ...." Again in

paragraph 31 the appellant made the same statement and even suggested the names of

two people in Dar es Salaam F who could confirm the existence of the poultry

project. The basis for the court's reasoning on this issue would appear to be

erroneous.

The whole case for the prosecution on count 7 was based on the valuation report.

The valuer did G not take the time factor and inflation in the prices of building

materials into account. To that extent I find that the valuation report, based as it is on

1982 prices, was worthless. I find that, even without taking into account the other

misdirections on the evidence set out above, this destroys the very basis of the

prosecution's case on count 7.

H Aside from this, this court finds that the trial court did not make any attempt to

analyse the ingredients of the offence with which the appellant was charged on count

7. The crucial and final finding of the trial court was:

I I find it proved that no satisfactory account has been given of the source of

funds of building the house situated on plot 239

1984 TLR p184

D'SOUZA Ag J

Makole area in Dodoma town. I find the 7th count proved ... A

The question that arises is whether s.9 (1) of the Prevention of Corruption Act 1971

creates an offence of failing to give a satisfactory account of sources of funds used to

build a house or of one's wealth generally. B

The charge on the 7th count appears to be mixing up together in one count the

ingredients of the offences created by s.9 (1) and s.9 (1) A of the Prevention of

Corruption Act 1971, as amended by Act 23 of 1973. C

Considering that under s.9 (1)A the court can enter a conviction when the

proceedings are commenced and concluded under s.9 (1),

I find that no prejudice was occasioned to the appellant in warning him of the twopronged

nature of the charge against him.

The provisions of s.9(1) were discussed at length in the case of D.P.P. vs. Felician

Tibilikirwa [1973] E.A. 440 (C.A.). At page 442 of the report the Court of Appeal had

this to say: D

An official found in possession of property apparently disproportionate to his

means may have acquired it by corruption, or in some way which is illegal but not

corrupt, or possibly in a way which, although not illegal, E might be regarded as

discreditable. There must be something in the circumstances that raises a reasonable

suspicion of corruption.

In the case of John Kichuri v R. [1978] L.R.T. n.27 Lugakingira Ag. Judge as he then

was held that F before the burden of proof shifts to the defence in offences involving

being in possession of property corruptly acquired contrary to section 9(1) of the

Prevention of Corruption Act, two stages must be covered:

(a) There must be reasonable suspicion that the accused corruptly acquired

or received the property found G in his possession

(b) The prosecution must adduce evidence showing that the property was

acquired in circumstance suspicious of corruption. H

The same court held further that to prove the charge it is not enough to show that the

property was acquired illegally or through discreditable means because such property

may not necessarily be I corruptly acquired, and that failure by the accused to

explain how

1984 TLR p185

D'SOUZA Ag J

A he acquired the property will not in itself justify an inference that it was corruptly

acquired.

Section 9 (1) comes into effect where a public officer "may reasonably be suspected of

having corruptly acquired" property and comes into effect where "the circumstances

were such as to give B rise to a reasonable suspicion that the accused may have

otherwise unlawfully acquired the property." There is slight difference in wording

but the effect of the wording appears to throw the initial burden on the prosecution

to produce evidence that the property was acquired in C circumstances that raise

reasonable suspicions of corruption or unlawful acquisition.

As was envisaged in the Tibilikirwa and Kichuri cases quoted above there could be

circumstances whereby the accused acquired the property by discreditable means but

not necessarily corruptly or unlawfully.

D Considering the circumstances of this case the prosecution's case, taken at its best,

only proved that the appellant did not give a good account of how he got some of the

money he used for building his house. There was no evidence to raise suspicion of

corrupt acquisition or unlawful E acquisition of the property. The prosecution's

evidence amounted to saying that the appellant built a house and its value was

Shs.346,000/=, assuming that that was the correct value. Since the issue was the

source of the money used to build the house, this court finds that the prosecution had

to lead sufficient evidence to show that there was a reason to raise a reasonable

suspicion that the F same was corruptly or unlawfully acquired. No attempt was

made to lead such evidence. Had PW.2 and PW.3 not testified that the loans bore

interest at 10% or more, it is quite possible that the evidence of the loans could have

satisfied this requirement. However as this court has found that G the loans were,

on the evidence led by the prosecution, made for valuable and adequate consideration

these transactions cannot be taken to raise a reasonable suspicion under s.9 (1) and s.9

(1)A. For this additional reason and because this court has found that the prosecution

had failed to establish the true construction cost of the building, I find that the

appellant is entitled to an H acquittal on the 7th count as well.

In the event this appeal is allowed in its entirety and the convictions, which are not

supported by the Republic, are quashed and the sentences are set aside. The appellant

is to be released from I prison forthwith unless otherwise lawfully held.

Appeal allowed.

1984 TLR p186

A