Chacha Elias vs Republic (Criminal Appeal No. 30 of 1982) [1982] TZHC 362 (28 October 1982)

.. ~ IN THE HIGH COURT OF TANZJ1.NIA AT DODOMA APPELI,ATE J1JRISDICT ION CRIMIN7.Ji'.1i:PPEAL No.30 OF 1982 , ' "-.: .. ( (.)r i;:· inal Criminal Case N o';-2 · ;f 1 98 2 of the District Court -:· :' 1 1wapwa District at Mpwapwa - Before ·N aH .B:i.deberi; Esq.• : . nior District :r-t1.gistrate) , ( .... '::,.,. ,-, . · 'fh. i 'LIAS ... , 1 "'" ,j [L,_.J -• J:) • 0 • ,,;• •· • Appe_llant (Original Accused) versus THE REPUBLIC • • • e , Respondent (Original Prosecutor) CH!ill.GE: Corrupt Transect ion c/s .3 ( 1) (3) (a) of the ·Prevention of corruption / .. ct No, 16 of 1971. J U D G E M E N T MAiliJA 2 J: Chacha Elias was 2. Detective Constable '1tationed at Kongwa Police Station. He was convicted by the Mpwapwa District Court of corrupt transaction with agent contrary to section 3 ( 1) (3) (a) of the Prevention of Corrupticn .Act, No.16 of 1971 and he was sentenced to fcur years imprisonment. HG is appealing against the ccnviction and sentence. .. There was evid,ence given by PW .3 Yahaya Saidi that on 2,1 .1982 he was arrested by the appellant on allegation that Ywiaya was a rogue and vagabond. The appellant sent Yahaya to the Police Station Yahaya explained that he had gone to Kongwa to buy maize and ·that in fact he he.d his money Shs-.350/= kept by the proprietor of Nguji Bar and Guest Hr:use, PW .6 .i~bdi Kandola. The appellant allegedly ordered Yahaya to remc.vra shnes, socks and a cap. Howev0r, 2.ccording to Yahay:-i. 9 the appellant released him with instructions t, bring the money Shs.350/= to the Police Station. Yahaya left behind his shoes 9 socks, cap and cash Shs. 79/=. PW .,5 Yona Wilson saw the appellant and PW •. 3 Yahaya when th0y arrived :"'.t the Police Statirn as Yona had also been arrested. Y"\na said he alsc saw when Yahaya was ordared by the appellant to remove tho shoos, socks and cap which remained at the Police Station as Yahaya left. In the evening, PW .3 Yahaya was at the guest house when tho appellant went there and returned Yahaya's shoes, socks

.,. • i . •· . r T ' I : T 2- l'.''J.c ?..i,i: ..J.....Lant; howver, insised that Yahaya shnuld report at the' P_olice Stat ion the fallowing day. When Yahaya reported at the Police Station on 3.1.1982, thG appellant pressed for -i•he money and threatened to prcsecute Yahaya unless thG :.11..>ney was paid. · So PW .3 Yaho.ya obte..ined the money f,rom Abdi <'Ed Police were informed and a trap we.s arranged. Yahaya :::.:,...1. the appellant ha!'l agreed to meet at the guest house at 2 p ,rJ.. When the officer commanding stati,m, PW.1 Ins:p. Abdu Kasanga, received the report, he passed over the information to Detective Sergeant Mo..j or Paμl "Uinado 2.nd other detectives P and a trap was arranged. As PW .3 Yah:::1.ya S",id he was to give . . Shs80/= to the appellant:-;:).4~•- serial nucibers of· the curre- .. . ncy notes were recorded by the ·Police rmd the mone.y was returned to PW .3 Yah2-y0 . -~~:·3:l. J,l!'?eoed to the Bar and Guest H(,use. Tho Po1i'c~~~ 1 # a, rr,0m. '""'As soon as :'le appz,llant arrived,. there was a brief conversation with ·· '.J- ·· - -c11c;;:..1 gave the money to the 9.ppel 1.nt. Yahaya -.-:..... PW .6 Abdi gave a pre-arranged signal and the Police went to :tl1e scene. Tho 2.p:Jullant was sec.rched and the trap oney wasfound j_n his pocket. He was arrested. Tho appellant's defence was that he never arrested PW •. 3 Y.1.h;:ra. He alleged that Yahaya reported to the Police Station that .1: 1 :r.6 Abdi hac:. refuse.:. to return Yahaya's money and that -:_,,:Lr.i,ya i'.'equestod the appellant to reconcile themo The appellant s8.id. he sent Yahaya to go an':l call Abdi an.cl both went to the Police Staticn where Abdi promised to repay I • • ~ Yahaya's money on 4.1082. But Yahaya refused as he apparently wapted the money kinodiately. According to the appellant, Yahaya became abusive and so the appellant ordered Yahaya to reove his shoes, socks and a cp. Yahaya, according to the appellant,- was detained at the Police Station bef0re he was released.· L.s regards the trap noney fou;,pd on him, • I . . the 8.ppellant s3.id th-.,_t 0n 2. ·1 .82 he had bought one bottle f beer :1-t; P\•!.6 ;.b~~i 1 s bar and he paid Shs.100/= but Abdi :-:::: .t his barmaid DVJ 06 Dorothea had no change. So on 3 .1 .82 the appe 1ian t went t (, tho bar :ind asked for his che..nge • The appellant s.".id that PvJ .6 fbdi took Shs .80/= from 8. private i,:·c-om, gave tho :i.oney to .PW .3 Yahaya whc handed it to the ,·,.p;'3llant. 3.11.,1 the Police Officers arrested the appellant i ·1,····..:.:.-1.iately thereafter. 'J',,\ ..

Two. defence witnesses, Peter (DW.3) and Alphonce (DW.4) said that they were present at the bar on 2.1.82 when the appellant paid Shs .100/= for one bottle 6f beer and the bar- ..1. maid failed to give hir.1 change for the money. here was also J_ eviden6e by DW.5 Charles that he was at the Police Station when PW.3 Yahaya complained to the appellant about the money which PW .6 Abdi owed the said Yahaya. 'I'he first ground of appeal is that the learned trial :.:-.agistrate erred in holding that the appellant received the· ·--..-:-.i?J corruptly and· not as change which was due to the appe- llant. There is no dispute that the appellant and PW.3 Yahaya .i.: met on 2.1 .82. The question is whether Yahaya was arrested by the appellant or v1hether Yahaya went to the Police Station on his own free will. Yahaya's evidence that he was arrested by the appellant was supported by FvJ .6 Abdi Kandoro to whom Yaha;1a reported the arr8st and in his evidence "Pvi .6 Abdi 3aj_d that he pleaded with the appellant to release Yahaya on baj_i. but the appellant refused. It was when Abdi was away tbt appellant insisted the.t Yahaya should pay noney so as not to be prosecuted. There is more evidence to whow that Yahaya was v.nder arrest• The evidence of PW. 5 Yona supported Yahaya in that respect because when appellant and Yahaya arrived together at the Police Station, the appellant ordered Yahaya to renove his shoes, socks and cap. That proves tr£ .. t appellant had sent Yahaya to the Police Station under errcst. It is not true that Yahaya went to -tho Police St:::ttion a.vi :1is fre~ will to report· about money -:: 0 -Lc'·. :-?···J, 1~bdi owed. I can see no reason for PW.3 Yahaya, ?W.5 Yon.a and PW.6 ilbdi to tell lies ageinst the appellant. The appellant did not suggest reasons why Abdi and Yona should conspire to tell lies in this regard. I now turn to consider whether the appellant received the money corruptly or whether it was a change which PW.6 .!.bc:i owed. I have h8ld, for reasons which I have given, that Pi} .3 Yahaya was arrested by the appellant. The appellant solicited money from Yahaya so that Yahaya would not be prosecuted. The appellant was required to record the arrest but from the evidence no record was made in the Police register about Yahaya's arrest. As the appellant was on duty he should have made the record of arrest which he made him self. He declined to do that because he t...new that the arrest was illegal and his intention was to get money out of

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• 4 - --·.-:.·,,:1aya •. The money found in his pocket at his arrest was the trap money whose serial numbers were recorded by the Police -in advance. H 0 w, the a1Jpellant claims it was change which ·,·gs due to him from PW .6 Abdi. But that money was returned to PW 3 :lahaya by the Police who recorded the serial numbers. Uo :'vJ.3 Yahaya had the money all the time. The defence ·-'· 1 . 1 .c,:::c:s that PW .6 Abdi took the money from a private room; llnnded it over to PW .3 Yahaya who then gave it to the appellant. , But if PW.'t:, Abdi owed the appellant Shs.80/= there was asolutely no reason for Abdi to pass the money to ya1,·aya instead bf giving it directly to the appllant. Furthermore, the serial numbers had been recorded by the Police who returned 'the money to Yahaya. ;_rhere was no reason for Yahaya to give the money to Abdi and then Abdi to lock it in a room. f,.s I have said, there wns no evidence of eny grudges between .. ' - Yahaya and the appellant or between Abdi and the appellant,e The prosecution evidence showed clearly that aftr the Police hri,d gi,rcm tho money to Yahaya, it remain·ed in Yahaya's r•:::ss ..... •ssion until he handed it to the appellant. The trial court properly evalu!:lted the evidence and rejected ·:;he appelJ.2..nt 's defcmce. The defence that the appellant had T•.:ceivcd the money 8-s change due to him _was an afterthought F:. .ch 'the trial court properly. rejected, From the evidence :);-;. r.- cord, there can be no doubt that the appellant received t::.2 money corruptJ.y. He was properly ,convicted. The --- )O'l 2.gainst conviction is dismissed-. The second. ground of appeal is th::,t th$ sentence imp-osed was excessive. The minimum sentence prescrt'ped for the offence is three years· imprisonment-. In imposing a sentence in excess of the minimum, the trial magistrate considered the fact that the app0llant was Police Officer who should have shown a good example to the public-. That mau be so, but it should also be taken into account t}1at tie appellant was a first offender and tho amount involved w Shs.80/= which is a smn.11 amount,. It should also be pointEjd out that Parliament in its wisdom S8.W it fit to pres.¢:ribe a ·minimum -sentence for such offences and so the cour~ should impose the minimum ssntence prescribed except where there are grave c:ircumst8Jlces,. As the appellant was a firstt; offender .nd . . ttc aiii•ount involved was small, the court shμld have imposed the minimum sentence,. ... ~ •• ···•""•··•15·.

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• 5 - cc-)rd~ 6 :7.y 9 the sentence of tho· trinl· court is set aside and ,::::r3 is substituted. for it a sentence of three years -~ :Lsonment. :?o,v-e as ind1cated above 9 this 2.ppoal is dismissed. i .l ,, ·11 DODOM".t;. 28 Ociober 9 1982 \ j\ . ·°'I\ . ..__r: . . \i vi~ J .M:Ul'JA JUDGE J'IIr rcfbezi 9 Counsel fer -the. c1,ppcl1ant. . .• R n, 1 f'lf Lyimo 9 State .i.ttorney for the .. -epublic. ~ '. i~ ~ .. , .