Mwita v. R. Crim. App. 275-M-70; 21/10/70; Kisanga, Ag. J.

 

Mwita  v.  R.  Crim.  App.  275-M-70; 21/10/70;   Kisanga, Ag. J.

Appellant was convicted of the offence of corrupt transactions with agent’s c/s 3(2) of the Prevention of Corruption Ordinance.  The particulars as set out in the charge sheet alleged: - “That Mwita s/o Jiheja is charged on the 6^th day of March, 1970 at about 11.00 hrs. at Iborogero Village, Ziba Division, Nzega District, Tabora Region, did corruptly give cash Shs.20= to Elias Kishiwa a member of the    TANU Youth League as an inducement a reward to the said Elias Kishiwa  not to prosecute him for the offence of buying cattle outside the public auction.”  It was contended on behalf of the appellant first, that the charge was bad since the relationship of agency was not pleaded, and second, that Elias could not be regarded as an agent for the Government to prosecute the appellant [citing  Isanga v. Republic (1968) E.A. 140].

Held:  (1) “Section 3(2) under which the charge was based provides:-  [The learned judge then set out the provisions of the section and continued].  Upon reading this sub-section, it is clear   that the relationship of principal and agent is an essential ingredient to the offence created thereunder.  It therefore follows that a charge laid under that sub-section ought to set out that relationship by alleging that the offender corruptly gave the money so that another             person should forbear doing some act in relation to that other’s principal’s affairs or business. In the present charge it is not alleged that Elias Kishiwa should forbear to do any act in relation to his        principal’s affairs or business and on account of that omission the charge must be considered to be defective.”  (2) “It is clear that the   facts of Isange v. Republic [1968] E.A.140 were not identical with     those of the present case but I think the principles laid down are applicable. It is common knowledge that TANU Youth League is a section of TANU because it is provided under article 5 of the Interim Constitution of Tanzania. It follows that Elias Kishiwa, being a member of that section, was necessarily a member of TANU and therefore, as the Chief Justice said, he was an agent of TANU and his duties would be in relation to TANU. He was entitled to report the offence to the police or to bring a private prosecution against the appellant. But in so doing he cannot be said to be acting in relation to TANU’s affairs or business any more that would be any other citizen so acting because reporting an offence to the police or instituting a private prosecution are duties and rights which are accorded to everyone in the society be he a member of TANU or  not. Thus the money which was offered to Elias Kishiwa so that he should not prosecute the appellant could not be regarded as an inducement to him to forbear doing an act in relation to his principal’s (i.e. TANU’s) affairs or business because as stated earlier the right to prosecute or the duty to report an offence are rights and obligations which everyone in the community has in relation to the society as a whole.” (3)  Appeal allowed.