REPUBLIC v STEPHEN MWEJI & LUGANGIZA NDARO 1983 TLR 195 (HC)

REPUBLIC v STEPHEN MWEJI & LUGANGIZA NDARO 1983 TLR 195 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

9 June, 1984

CRIMINAL REVISION 39 OF 1983

Flynote

Criminal Practice and Procedure - Charge - Defective - Joinder of parties in one count

- B Whether occasioned failure of justice.

Criminal Practice and Procedure - Defective charge - Failure to point out the

relationship between principal and agent - Whether curable - Section 3(2) of the

Prevention of Corruption Act 1971.

Criminal Practice and Procedure - Sentences - Illegal where it is less than what is C

prescribed by statute - Section 3(2) of the Prevention of Corruption Act and section

4(a) and para 9 of the first schedule to the Minimum Sentences Act 1972.

Criminal Practice and Procedure - Sentence - Order of forfeiture of property -

Whether legal. D

-Headnote

The two accuseds were jointly convicted of corruption under section 3(2) of the

Prevention of Corruption Act 1972. The two accuseds, who were principal and agent,

gave an inducement to a public officer so that he could do them a favour of deviating

E from the normal procedures. The charge did not charge them under separate

sequential numbers. Further, the charge did not state the relationship of agent and

principal that existed between them. At the end of the trial, the trial court imposed a

sentence less than that prescribed by statute and ordered forfeiture of the money that

was involved in the corrupt transaction. On revision: F

Held: (i) Where more than one accuseds are jointly charged their names and

addresses should be contained in the charge sheet separately and sequentially

numbered; G

(ii) failure to point out an agent/principal relationship renders the charge

defective under section 3(2) of the Prevention of Corruption Act 1971 but such defect

is not fatal if the omission does not prejudice the accuseds to the extent of miscarriage

of justice;

(iii) where a minimum sentence is prescribed by statute the court has no

discretion to impose a lesser sentence; H

(iv) where a trial magistrate orders forfeiture of property, he must show legal

authority for his actions.

Case Information

Order accordingly. I

1983 TLR p196

KATITI J

Cases referred to: A

1. Mwita v Republic [1971] HCD no. 304

[zJDz]Judgment

Katiti, J.: Before Ukerewe District Court were Magobe Maila & Munyaga Mapesa B

and Stephen s/o Mweji & Lugangiza Ndaro, accused and charged with two counts of

corrupt transactions c/s 3(2) of the Prevention of Corruption Act No. 16 of 1971. The

end of the trial witnessed the 2nd accused being sentenced to 12 months'

imprisonment on each count after conviction, with an order that the sentences run

concurrently.

On scrutiny of the file, several aspects that demand correctional comment have

emerged. C The first aspect that needs comment is the charge itself. Although the

charge shows that Magobe Maila Munyaga Mapesa was the accused person, it is only

the particulars of the offences charged that reveal that Stephen Mweji Lugangiza

Ndaro was another D accused person. It is clear therefore that both accuseds were

each facing the same charges of corrupt transactions c/s 3(2) of the Prevention of

Corruption Act No. 16 of 1971, but not put or placed in the charge sheet in the

consecutive and sequential manner. The procedure as adopted is a wrong one, for it is

the procedure and requirement of the E law that, where more than one accuseds are

jointly charged, their names and addresses should be contained in the charge in clear

form. And where and when such persons join in the commission of an offence, all or

any of them may be jointly charged with it, or even such accused persons may be

charged separately, but where they are F jointly charged, they must be numbered

consecutively and sequentially.

The other aspect that demands or demanded a corrective touch, is the fact that the

charges falling under section 3(2) of the Prevention of Corruption Act of 1971 as they

G do, omitted to aver the principal and agent's business or affairs relationship. It is

the law that where the charge falls under section 3 of the Corruption Act 1971 such

charge should point out the relationship, that the person charged corruptly gave the

money or advantage or consideration to the agent or the agent received the same for

doing or forbearing to do anything in relation to the agent's principal's affairs of

business. The case H of Mwita v Republic [1971] H.C.D. No. 304 is an authority in

this direction. The Magistrate therefore is reminded that he should always check the

charge to see whether the ingredients of such charge are incorporated in the same

charge.

The question now is whether this omission prejudiced the accuseds to the extent of I

miscarriage of justice. I have a mind to

1983 TLR p197

KATITI J

answer this question in the negative. I have the following reasons. It is clear that the

A accuseds knew that they were corruptly giving money to P.W.1, a person

employed in public service. They clearly knew that this money was meant to be an

inducement to P.W.1, to deviate from known normal procedure, to allow them to

pass through a short-cut. It does therefore appear to me that all along the accuseds

had no mistaken B ideas as to what they were doing, and I am therefore satisfied that

they were telling P.W.1 through corruption to perform his duty contrary to

established office norms. I therefore hold the view that the omission of averment of

principal-agent relationship in the particulars of the offence, did not prejudice the

accuseds, as the accuseds knew that C the business or affairs that they were urging

P.W.1 to perform with infidelity as a result of corruption was actually Government

Business, the government being the Principal of P.W.1. I therefore fail to see how

they could feel prejudiced.

The other aspect that attracted our attention is the sentence that the trial magistrate

D imposed upon the 2nd accused person. The 1st Accused died before the trial ended.

As I earlier pointed out, the 2nd accused was sentenced to twelve months'

imprisonment on each count, for offences that fall under section 3(2) of the

Prevention of Corruption Act No.16 of 1971. With due respect, I think the trial

magistrate went contrary to the law, E for under section 4 (a) and para 9 of the first

Schedule to the Minimum Sentences Act 1972, the offence of taking part in a corrupt

transaction contrary to section 3 of the Prevention of Corruption Act 1971, attracts

the statutory minimum sentence for the F same offences, of three years'

imprisonment. Under the Minimum Sentences Act, under no circumstances should an

accused person convicted under section 3 and 6 of the Prevention of Corruption Act,

be awarded an imprisonment sentence of less than three years. It is therefore clear

that the sentence of 12 months' imprisonment that the trial G magistrate imposed is

an illegal one. I therefore set aside this illegal sentence, and impose three years'

imprisonment. It is therefore ordered that the legal process be initiated to have the

accused serve the sentence imposed according to law.

And finally there is an aspect of forfeiture. The trial magistrate ordered that Shs.

100/=, H that was involved in the two offences be forfeited to the Republic. It is a

requirement of case law in this country, that where a trial magistrate orders forfeiture

of property, he must show the legal authority under which he is acting. In this case

the magistrate did not I show under what statute he was ordering the forfeiture of

100/=. I shall therefore try and see what law the

1983 TLR p198

magistrate was applying, if any. I have gone through the Minimum Sentences Act

1972, A and I am satisfied that though the same statute provides for compensation,

it makes no mention of forfeiture. Coming to the Prevention of Corruption Act No.

16 of 1971, section 3(3) of the same Act seems to be relevant. It provides that where a

person convicted is an agent, the court may, in addition to sentence, order him to pay

his principal the amount or value of an advantage received by him, and whether such

B convicted person is an agent or not, the court may order that the amount, or value

of advantage received by him, or any part thereof be forfeited. But it is not provided

that the money, or consideration, or property corruptly given, but not corruptly

received by a C person convicted of an offence under section 3 be forfeited. In this

case the person convicted did not corruptly receive the amount in question. It is

therefore clear that the forfeiture order that was made by the trial magistrate in this

case had no basis in law. The D above is said not without an impeccable moral

impression that refunding corruption money to the corrupter is like giving back the

murder weapons to the murderer. I should have imagined that it would be consistent

with the obvious severity of the Prevention of Corruption Act. 1971, to order

forfeiture of any money, advantage or consideration E involved in a corrupt

transaction, without regard as to whether the person convicted is the receiver or not.

All the same, the forfeiture order is hereby set aside.

Order accordingly.

1983 TLR p198

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