Issa Athumani Mduyah v Republic 1983 TLR 336 (HC)

ISSA ATHUMANI MDUYAH v REPUBLIC 1983 TLR 336 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

October 18, 1984

CRIMINAL APPEAL 53 OF 1983 H

Flynote

Criminal Practice and Procedure - Charges - Whether soliciting and receiving a bride

can be charged as distinct offences.

-Headnote

The appellant was charged with and convicted of three counts of corrupt transaction by agent. The first count alleged that on 13.8.82 the appellant corruptly solicited Shs. 500.00 from one person as an inducement to forbear from instituting criminal proceedings against that person for making pombe business in unlicensed premises. In the second count he was alleged on the same occasion to have received Shs. 200.00 from the same person, in the same connection; and the third count accused him of further receiving in the same connection Shs. 100.00 from the same person. On appeal:

Held: 

(i) It is improper to charge the accused both with soliciting and receiving as distinct offences, when they arise from the same facts;

(ii) where the facts disclose both soliciting and receiving, the proper charge would be that of receiving only;

(iii) where the prosecution in some instances is not certain whether receiving as such can be established, the proper practice is to charge both soliciting and receiving as alternative offences leaving the court to enter a conviction on whatever of the two offences is proved;

(iv) where there is an allegation of corrupt transaction by agent, the charge should mention the fact that the accused was acting in relation to his principal's affairs, the omission of which is serious as the relationship is an ingredient of the offence.

Case Information

Appeal dismissed.

Case referred to:

1. Amir Nathoo v R. [1970] H.C.D. n. 51

[zJDz]Judgment

Lugakingira, J.: The appellant was a ward secretary at Chamwino in Dodoma. He is presently in prison following conviction of three counts of corrupt transaction by agent. I do not at this stage have to comment specifically on the manner the charges were framed, it being sufficient to state the substance thereof. In the first count it was alleged that on 13.8.82 the appellant corruptly solicited Shs. 500.00 from Sofia Sanga as an inducement to forbear from taking criminal proceedings against her for running a pombe business in unlicensed premises. The second count alleged that on the same occasion he corruptly received Shs. 200.00 from the same person in the same connection; and the third count alleged that on the following day he corruptly received a further Shs. 100.00 H from the same person, again in the same connection. Following conviction he was sentenced to three years' imprisonment on each count, the sentences running concurrently. He then appealed in a lengthy memorandum containing a great deal of nonsense and added more nonsense at the hearing of the appeal.

The facts of the case were simple. On the morning of 13.8.82 the appellant and two militiamen set out in search of illegal pombe dealers. After going here and there they arrived at the home of Sofia Sanga and found her selling a kangara brew. The appellant demanded to know why she was selling pombe at unauthorised hours and without a permit. Sofia begged for forgiveness. He ordered her to carry her liquor and follow him "to the station". She complied. After walking a distance he told her to give him Shs. 500.00 and go free. She had no money. He told her to raise it from friends. They were then near the house of Scolastica Lungwa (PW3), a friend of Sofia. Sofia entered the house accompanied by Bertha Katande (PW2) who had also heard the solicitation. Sofia related her plight and PW3 gave her Shs. 200.00. They came out and found the appellant waiting. Then he, Sofia and PW 3 entered an old abandoned house, leaving the appellant's companions outside, and there the appellant was given the money. He received it grumbling, saying that he would settle for at least Shs. 300.00. Sofia begged for time to find Shs. 100.00. He told her to take it to him at his office. Next morning Sofia called at the Police Station and related her story. She was given a currency note for Shs. 100.00 whose numbers were noted and three policemen in plain clothes accompanied her. When they arrived at the appellant's office Sofia entered and gave him the note. As she left, the three policemen and the E CCM branch chairman who had arrived there entered the appellant's office and confronted him for receiving a bribe. He denied it and said that Sofia had paid a debt. He was still holding the note which he then dropped. It was picked up and he was taken away and charged accordingly.

The appellant's defence, like his memorandum of appeal, was a lengthy story, mostly of irrelevancies. I will extract the relevant parts only. He related that indeed on 13.8.82 he was engaged in looking for illegal pombe sellers. He eventually arrived at Sofia's home and found her selling Kangara. He demanded to know why she was selling pombe before authorised hours and without a permit. She told him she was about to take her pombe to the pombe shop. He then ordered her to do so and left. Next day Sofia called at his office but when she saw that he was with one Juma Hassani she went out. He decided to follow her to know what her problem was, but when he reached the door he was confronted by three men and the branch chairman.

One of the men then tried to push his hand into the appellant's pocket but failed. He was told he had received a bribe but denied it. He was then shown a note on the floor and forced at gunpoint to say "I have received it". He was pressed further and said Sofia was paying a debt. He was then arrested and charged. Before this Court he stated that he had nothing to add to his memorandum but had a message for me. He informed me that the whole affair I was conspiracy between Sofia and senior police officers for whom she brewed pombe. He also instructed me, literally so, to study the evidence. I have duly studied the evidence and I would say at once that the convictions were merited. The learned trial magistrate believed Sofia and Bertha on the soliciting. I similarly do not see why these women should have lied. The appellant and his witnesses were therefore rightly adjudged liars. The trial magistrate again believed Sofia and Scolastica on the receipt of Shs. 200.00. I again find no reason to differ. The same applies on the receipt of Shs. 100.00. There was absolutely no reason for the various prosecution witnesses to testify falsely and the appellant suggested no reason at the trial. The aspect of conspiracy which the appellant raised merely for my information deserves C no consideration.

There are only two matters of practice and procedure which call for comment. First of all, as already noted, the appellant was charged with both soliciting and receiving as distinct offences. I think that this was improper. Whereas soliciting and receiving are indeed separate offences, I think it is superfluous to charge both distinctly when they arise from the same facts. I believe that where the facts disclose both soliciting and receiving the proper charge would be that of receiving only. There may be instances where the prosecution is not certain whether receiving as such can be established. In such a case it would be proper to charge both soliciting and receiving but as alternative E rather than independent offences.

Secondly, it is noted that the charges invariably alleged corrupt transaction "with agent" and made no mention of the fact that the appellant was acting in relation to his principal's F affairs. The charges should of course have alleged corrupt transaction "by agent". Nevertheless, I think too that this grammatical error was harmless as there was no doubt that the appellant was the agent. On the other hand, the omission to state the relationship of principal and agent was a serious one, that relationship being an ingredient of the offences. I have pondered over the effect of this but I again think that the omission gave rise to no injustice. The appellant was well aware of the nature of the charges and was not embarrassed in his defence. In the first place the charges otherwise mentioned that he did what was alleged of him as "Katibu Kata" and, secondly, in his own defence, he stated that he was carrying out the orders of the Divisional Secretary. H He therefore knew, and the charges implied, that he was acting as an official of the Government. I am therefore satisfied that the omission occasioned no failure of justice and in this view I am strengthened by the decision in Amir Nathoo v R. [1970] HCD n. 51 where the same question arose under the repealed Cap. 400. 

In the end, I set aside the conviction and sentence in count one which was superfluous, A but I sustain the convictions and sentences in counts two and three.

To that extent the appeal stands dismissed.

Appeal dismissed.

1983 TLR p340