Lugakingira, J.: I found this case rather difficult, and took time considering the judgment, on account of a number of mysteries.
The appellants Mohamed Katindi and Lucas Mazengo were convicted of corrupt transaction with an agent and sentenced to five years' imprisonment each. It was alleged that on 14/8/82 the two corruptly gave shs. 6,000/= to the F Dodoma Regional Crime Officer, one SSP Fridolin Mdendemi Julius, as an inducement to forbear further investigations against Lucas Mazengo who was suspected of being in unlawful possession of Government trophy. I will refer to SSP Julius simply as the Regional Crime Officer. Following conviction and sentence the appellants appealed here through G learned counsel Mr. Alimwike who had also represented them at the trial. Mohamed Katindi was at the trial the first accused and Lucas Mazengo was the second accused. I will where necessary retain those designations in this judgment. H
There were five witnesses for the prosecution at the trial but, in the final analysis, the appellants were convicted solely on the evidence of the Regional Crime Officer. It is therefore necessary to review that evidence and that of the appellants and to highlight the mysteries I have just alluded to. I
The Regional Crime Officer was between 30/6/82 and 18/7/82
A at Ilangali village pursuant to reports of illegal hunting in the area. While there he received information that the "second accused" was such an illegal hunter but he could not find him. He later gathered that the "second accused" was at Iringa. On 22/7/82, after returning to Dodoma he dispatched PC. Nicolaus (PW4) to Iringa to look for the "second accused". B We now meet the first mystery. PW4 testified that he was dispatched to look for one Charles Mazengo and not Lucas Mazengo. He was also not told the reason why this Charles Mazengo was required. Be that as it may, his mission was unsuccessful.
C The first accused was on his part a frequent visitor to the Office of the Regional Crime Officer. For reasons we do not know his cattle had been rounded up on the orders of the RCO and used to see the Regional Crime Officer in that connection. On 12/8/82 he thus went to see the Regional Crime Officer. On this occasion he also had another message. D He told the Regional Crime Officer that he knew the whereabouts of the second accused and offered to produce him. And therein lies the second mystery: Firstly, the Regional Crime Officer had not previously spoken to the first accused E about the second accused. Secondly, the Regional Crime Officer declined the offer and said it was up to the second accused to deliver up himself or not. Still, and I think to the Regional Crime Officer's surprise, the first accused turned up the following day, accompanied by the second accused. In the words of the Regional Crime Officer, "The first accused F then informed me that the person in his company was Lucas Mazengo the man he (sic) was being looked after (sic) by the police. By then I did not know the second accused....". The first accused then allegedly asked the Regional Crime Officer to forgive the second accused. The Regional Crime Officer asked the first accused to leave, which the latter did.
G Thus left alone, the Regional Crime Officer began to interrogate the second accused. In the course of the interrogation, the second accused allegedly admitted to be in possession of a gun and to have killed eight elephants and sold their tusks at Iringa. Hearing this the Regional Crime Officer directed one Insp. Ntobi to take a statement from the H second accused. This was done and the statement was handed over to the Regional Crime Officer. Then another mystery: In spite of the second accused's alleged admission and in spite of the alleged search for him, the Regional Crime Officer told him he could go home and return the following day. But as if liberty meant nothing to him, the second I accused did not leave. He allegedly hung on, begging for forgiveness, and offered to give
A "something".The Regional Crime Officer resisted but the second accused allegedly insisted and in the end they settled for sh. 6,000/=. The Regional Crime Officer told the second accused to bring the money the following day.
Meanwhile the Regional Crime Officer arranged a trap. On 14/8/82 a civilian, one Barnabas Tendeka (PW2), was planted behind a shelf somewhere in the Regional Crime Officer's Office. Inspt. Ntobi (who did not testify) and D/Sgt B Semunyu (PW3) were planted in an adjoining room. Shortly both appellants entered the Regional Crime Officer's Office. The Regional Crime Officer inquired whether he could be of any help. The first accused put on a jacket and C carried the money. He took it out stating: "Tumekuja kwa shughuli zetu za jana". At the request of the Regional Crime Officer the first accused started to count the money. The Regional Crime Officer gave the signal whereupon PW3, PW3 and Insp. Ntobi entered. Insp. Ntobi asked the appellants what business they had there. The first accused replied: D"Tumemletea fedha Mzee kwa sababu ya matatizo ya kijana huyu" and, in another mystery, he continued counting the money, quite unperturbed. The other details are unnecessary. The appellants were there and then arrested and charged as aforesaid. E
Both appellants gave unsworn statements. The first accused said that on 12/8/83 the second accused, a relative, called at his house. The first accused took that opportunity to inform him that the police were looking for him. The second accused replied that he had already heard of that and intended to see the Regional Crime Officer the next day to know F what it was all about. He asked the first accused to give him company. The latter agreed. It can safely be said that it was after this meeting that the first accused went off to inform the Regional Crime Officer that he could produce the second accused. Hence on 13th August 1982 both appellants called at the Regional Crime Officer's Office. The first G accused introduced the second accused and was asked to leave. He left, going home straight. Next day, the second accused called at his house again and told him that he was off to see the Regional Crime Officer again. Since the first accused similarly desired to see the Regional Crime Officer in connection with his own problems, they set off together. H On the way, the second accused told him that the Regional Crime Officer had demanded payment of shs. 6,000/=, the expenses incurred in looking for him, and he was taking the money. He asked the first accused to hold the money for the I latter had a jacket. The first accused obliged. When they entered the Regional Crime
A Officer's Office the first accused asked the Regional Crime Officer whether it was true he had required the second accused to refund expenses. The Regional crime Officer agreed. He then produced the money which he was asked to count. The rest of what transpired is again unnecessary.
B The statement of the second accused was substantially the same. The additional part of it was that when they were left alone with the RCO on 13th, the RCO told him that he had been looked for illegal hunting. The second accused denied being an illegal hunter. An argument ensued in which the RCO told him that he had been named by his colleagues at Ilangali and threatened that he would be beaten like them if he persisted in his denial. Indeed we gather from the C evidence of the RCO that he had made several arrests at Ilangali and that it was from some of those arrested that he had gathered information against the "second accused." The second accused still denied but he was forced to sign a D statement. The RCO then told him that the police had looked for him extensively and had incurred shs. 6,000/= which he had to refund. He took the money the following day accompanied by the first accused. The rest is again the same.
E In a reasoned judgment the learned trial Magistrate came down with a number of findings. Most pertinently, he found that the second accused was being looked for by the police; that he had delivered himself at the Police Station; and that both appellants gave shs.6,000/= to the R.C.O. However, he held to be false the story about the money being a refund of F expenses. His reasons were that the story was not put to the RCO in cross-examination; that if it were true no trap would have been laid; and that the RCO was a witness of truth. But he also observed that the RCO was an accomplice and therefore required corroboration. He observed that the conversation which ensued during the actual transaction did G not suggest that the money was a bribe. There was in particular an incriminating statement which was attributed to the first accused but he held it inadmissible since it was made to a police sergeant. I will come to that statement presently. In the end, after duly warning himself on the danger of convicting on uncorroborated accomplice evidence, he believed the H RCO that the money was given as a bribe. He therefore proceeded to convict.
I will conveniently start with the statement attributed to the first accused in answer to a question by PW3, a Police I sergeant. PW3 testified that when he entered the RCO's Office he asked the first accused: "Fedha hizi ni za nini? The first accused allegedly
A replied: "Fedha hizo nimepewa na mshitakiwa wa pili ili ambembeleze RCO ikiwa ni chai ili amsamehe mshitakiwa wa pili katika kesi ya meno ya tembo ambayo alikuwa anaishughulikia RCO". He went on to claim that the second accused then confirmed that statement. The trial Magistrate was of the view that it was a confession. I B agree; if that statement were ever made it amounted to a confession. The problem is that the magistrate then disallowed it for having been made to a police officer. I am of the view that he misdirected himself in disallowing it on that ground. A confession made to a police Officer of or above the rank of corporal, as PW3 was, is admissible against the maker if it is C made voluntarily, the onus being on the prosecution to prove its voluntariness. In this connection the attention of the learned magistrate is drawn to s. 27 of the Evidence Act as repealed and replaced by Act No. 19 of 1980. If therefore the statement was ever made, and although there were in attendance three Officers, all of whom ranked above corporal, it was admissible if it was voluntarily made. D
However, I am on my part inclined to disallow the statement on a different ground. It is difficult to believe that the statement was made. Looking at it, it sounds like a quotation from a charge sheet, complete with the usual and necessary E ingredients of corruption. I am not prepared to believe that the first accused, a man appearing on the record as a 51-year old peasant, could have made such a professional statement. I think, with respect, that it was an ambitious contribution by the police officer who must have been not a little anxious to assist the prosecution. I reject it on that F ground. Moreover, there were other statements attributed to the appellants, and similarly incriminating, which the trial magistrate rejected for being contradictory and incredible. Most outstanding was this: "Mnaelewa kuwa hii ni rushwa?" "Ndio, tunaelewa." This came from PW2, the civilian, but it never featured in the evidence of PW3 to G whom PW2 attributed the leading question. Mr. Lyimo the Senior State Attorney who appeared for the Republic, conceded that what was alleged by the prosecution witnesses to have transpired at the giving could not be relied upon. I accept that concession. In so doing, I consider justifiable the finding by the learned trial Magistrate that what transpired H at the giving did not disclose a corrupt transaction.
From here we can go to what transpired on 13/8/82 between the RCO and the second accused. The RCO claimed that the second accused offered a bribe, but the latter claimed that the RCO ordered him to refund Police expenses. The trial I Magistrate found the RCO
A truthful but not before observing that he was an accomplice for "taking part in the offence of corruption." The Magistrate therefore felt obliged to look for corroboration before falling back to the RCO's word. I think it is desirable B to clear up this issue first. Was the RCO an accomplice? Mr. Lyimo was reluctant to support the assessment of the RCO by the trial magistrate and submitted that he was merely a decoy whose evidence did not require corroboration. He supported his argument with R. v Heziron Magori [1970] HCD n. 148 in which Georges, C.J. said:
C "It is my view also that even in cases where it could be said that a Police agent has instigated an offence by being responsible for the suggestion that it be committed this agent could not be described as an accomplice, in the ordinary sense of the term, whose evidence needs corroboration. This is so because ... the complicity goes only to the actus reus. There is never any intention on D the part of the agent to commit an offence ..."
I agree. If therefore the RCO is to be believed, as the learned trial magistrate did, and considering the trap he went E ahead and laid, it is then apparent that he was merely a decoy without any intention on his part to commit an offence. In that case he was not an accomplice in the strict sense and his evidence did not, as a matter of law require corroboration.
F The problem in this case is whether it was safe to believe the RCO regardless of whether he was an accomplice or not. In matters of credibility the trial court is undoubtedly the best judge and there is a host of decisions to that effect. An appellate court will only reassess the credibility of witnesses if there are circumstances of an unusual nature which appear G in the record. From my view of the evidence in this case I think there are circumstances which warrant the reassessment of the RCO's credibility. Firstly, if the second accused is to be believed it would mean that the RCO acted in bad faith. He deceived the former intending to trap him in a bribery charge. A person of such dishonesty would H require corroboration. Secondly, I agree with Mr. Alimwike that the RCO was not a disinterested witness. He had camped in a village for over two weeks and had even sent an envoy to Iringa. He therefore had cause to see his efforts rewarded. It was held in Peter Kasembe v. R [1967] HCD n. 338 that a police decoy, even though not an accomplice, I is not a disinterested witness and his evidence must be examined
A closely. The court said: "Though corroboration would not be required as a matter of law, it would hardly ever be safe in practice to convict unless there was corroboration." Thirdly, we have those mysteries which I have highlighted and to which the learned trial Magistrate made no reference at all. In these circumstances, there is every justification to B reexamine the RCO's credibility and the only way is to look for corroboration. I will do so as I now proceed to consider the case of each appellant in turn.
The first accused was not present when the RCO was interrogating the second accused. What transpired between the two was therefore unknown to him. Further, no one else, but the appellants alone, knows what transpired between them C on the morning of 14th. The RCO conceded both factors and said: "The conversation between myself and the second accused was never witnessed by any other person. It is difficult for me to know what the first (sic) accused told the second (sic) accused outside." I believe he meant to say, and could have said, that it was difficult for him, to know what D the second accused had told the first accused outside. That being the case, the story of the appellants remains unchallenged, namely, that the second accused told the first accused that he had been ordered to refund Police expenses. E The first accused could therefore not have associated the money with bribery. It was argued by Mr. Lyimo that the first accused knew the money to be a bribe and suggested two reasons. First, he pointed out that on 13th the first accused allegedly asked the RCO to forgive the second accused. Secondly, that the appellants were together at the taking of the F money. On my part, I find it difficult to infer guilty knowledge from any of those factors and I think, too, that the first factor is doubtful. In the first place, the first accused never admitted asking the RCO to forgive the second accused. On the other hand, it is doubtful whether he could in seriousness have done so. What transpires is that the first accused had G an interest in the apprehension of the second accused. It occurs to me, and I think I am correct in saying, that he was a treacherous character who was desirous of exchanging the second accused as ransom for his impounded beasts. That explains why on 12th he went off fast and triumphantly to tell the RCO that he would produce the second accused after H learning of the latter's intention to see the RCO. It is unlikely that a man of that attitude and ambition could honestly, if at all, ask the RCO to forgive the second accused. On the other hand, I think the act of going together on 14th can be differently explained. The first accused had his own problems for which he had become a frequent I
1986 TLr p142
LUGAKINGIRA J
A visitor to the office of the RCO. Indeed he stated that, "I also told Lucas that I was also going to the same place as I had some matters with the RCO." Since the existence of these "matters" was not a tale but a fact featuring in the prosecution case, the first accused was entitled to the benefit of the doubt. All in all, I am unable to find corroboration in B the factors suggested by Mr. Lyimo.
There was then a factor which went some way to suggest innocence on the part of the first accused. It was one of those mysteries. Even after the police officers had entered on signal, and while hostile questions were being shot from every direction, the first accused continued counting the money without worry. The first accused is an old peasant, true, but he C certainly knows what is a bribe, and that is why he denied the charge. I think that this conduct was inconsistent with guilty knowledge and puts one to inquiry. It is significant that the trial magistrate never referred even to this incident. Had D he done so, and generally directed himself as I have endeavoured to do, I cannot be certain that his decision must in reason have been the same.
Regarding the second accused, Mr. Lyimo argued that corroboration could be found in the following factors: that the E second accused was a wanted person and knew it; that he therefore surrendered himself to buy his freedom; and that money was given in fact. I think, with respect, that these arguments beg the question as they presuppose the existence of facts, themselves requiring demonstration. We can begin with the question whether the second accused was the wanted person. That question appears highly debatable. It was an undisputed fact that the RCO did not know the person he F wanted. Secondly, those who named that person to him did not appear to confirm that it was the second accused. They were named persons so there was no secret about it. Finally, the wanted person was Charles Mazengo and not Lucas Mazengo. It is not unlikely that some enthusiasts or sympathizers, wrongly but in good faith, decided to tip the second G accused. The possibility of this is inferable from the conduct of the RCO. After he had seen and interrogated the second accused he still allowed him to go home. I think that this belittles his allegation that the second accused admitted being an H illegal hunter. It borders on the incredible, and I am not persuaded to believe, that a person so much sought after, a person who fortunately admitted the offence, a total stranger to the RCO, could still be allowed to go home - and where? - without further ceremony. It could well be true, as claimed by the second accused, that he did not admit the offence I and the RCO might have
A realised that he had the wrong man on his hands. I am unable to interpret his conduct more reasonably and, therefore, I feel bound to distance myself from the finding of the trial magistrate.
Mr. Lyimo's other suggestion was that the second accused surrendered himself to buy his freedom. That is of course interesting - a free person surrendering to buy his freedom! I think it accords more with reason to say that the conduct of B the second accused was consistent with innocence. He might have wanted to see the RCO, and so he said, to protect his innocence, and went ahead without invitation. He therefore does not appear to have had a motive to offer or give a bribe. In Alli Kassam v. R. [1972] HCD n. 186, to which Mr. Lyimo referred, Onyiuke, J. characterised motive as C "something that animates an intentional act - the ulterior intention with which an intentional act is done." In that case there was this ulterior intention - something that animated Kassam's intentional act of giving money. He was desirous of D travelling abroad and wanted a certificate of good character. The certificate did not attract a fee. Yet Kassam gave money to a police Officer to be issued with one. It was argued by his counsel that he acted out of ignorance and out of fear of the police. In Onyiuke, J's view if Kassam did not know that he was entitled to the certificate, his motive was to E buy it - to get the Police Officer to give him one for a bribe. If he acted out of fear, his motive was to worm himself into Police confidence by buying their loyalty. The learned Judge held that the transaction was corrupt because, either way, Kassam gave the money to compromise the Police Officer in the honest and impartial discharge of his official duties. F There are cases indeed where the briber's motive may not be apparent. It was therefore held in Rashid v. R. [1971] HCD n. 33 that in a charge of corruption it is not necessary to prove an offence on the part of the briber. It is nevertheless evident that even in that case Rashidi had a motive. For reasons best known to himself, he was toying with G his conscience. When he saw a Police vehicle he suddenly reversed his own vehicle and sped off like a madman. That alerted the Police who gave chase. He was only caught because his vehicle was disabled after colliding into a gatepost. H He then anxiously offered shs.20/= praying to be let off. There was therefore something that animated his intentional act of offering the money. Motive is thus an essential ingredient and a charge of corruption which is devoid of motive appears to be academic. For without motive an intention to corrupt can hardly arise. As stated by the Court of Appeal in Mandia v.R. [1966] E.A. 315, 318: I
A "... the appellant's state of mind, which in our view included motive and intention, seems to us to be an essential and material factor in determining whether, in making the payment, he was acting corruptly or not. This had always been the approach adopted by the courts in East Africa, and in our opinion it is the correct approach..." B
The Court further said (at p. 319):
We consider that the motive prompting the giving of a bribe is a relevant consideration in deciding whether or not the bribe was C given corruptly.
The court was then considering s. 3(2) of the Kenya Prevention of Corruption Act (Cap.65) which is in pari materia with s. 3(2) of the Prevention of Corruption Act, 1971 of this country. In that case the appellant, who was a Magistrate, D had in fact given a bribe to a Police Constable, his motive being to test the constable as he had "heard of these things and wanted to know if it was real." He was convicted by the trial judge who held that it was not necessary to prove a corrupt motive but merely an intention to corrupt. The Court of Appeal reversed that decision and acquitted the E appellant holding as set out in the passages quoted above.
In the case before me, I have not found it conclusively established that the second accused was the wanted person. I have also held, on a reasonable interpretation of his conduct, that he might have delivered himself to the RCO to F demonstrate his innocence. There is therefore no definite evidence that he had a motive to offer or give a bribe. As found by the trial Magistrate, and now demonstrated, the evidence of the RCO is thus bereft of corroboration. While in G no way alluding to the integrity of the RCO, but having in view the principles of the Criminal Law, I am thus bound to give the second accused the benefit of the doubt on what transpired between him and the RCO. It then becomes unsafe to sustain the conviction. And that in my view is sufficient to dispose of the Appeal but there is one other matter which H demands the attention of the court.
The omission by the defence counsel to put the appellants' prospective defence to the RCO during cross-examination was a decisive factor in the decision of the learned trial Magistrate. He expressed himself in relatively strong terms on this I matter and I consider it desirable to cite the pertinent part of his judgment:
A I have observed that ample opportunity was offered to the defence to cross-examine the PW1 but never at any moment was the PW1 asked a question about having told the second accused to pay the Police expenses. This would have been one of the most crucial questions to ask the PW1. No accused in his full senses would have fortune to ask this question, let alone an experienced and qualified counsel as in this case. B
I agree that the omission was a disturbing one. It is the obligation of a defence counsel, both in duty to his client and as an Officer of the court, to indicate in cross-examination the theme of his client's defence so as to give the prosecution an C opportunity to deal with that theme. For to withhold the position of the defence and thereby take the prosecution and the court by surprise, does to my mind, portray a poor appreciation of the meaning and purpose of any trial. I have no reason to suspect that the omission was deliberate in this case and I accept Mr. Alimwike's explanation that it was D oversight on his part. It would certainly be deplorable if such omission were to be identified as a deliberate mischief. There also appears to be a price for it, whether it be deliberate or accidental. In the case of Browne v Dunn (1894) 6 E R. 67, the House of Lords held that the witnesses had not been cross-examined on a material matter the jury could not afterwards be asked to disbelieve their testimony on that matter. That decision, as well as a similar decision in R. v Hart (1932) 23 Cr. App. R. 202, were followed by the High Court in England in O' Connell v Adams (1973) Crim. L.R. F 113 where it was held that if it is part of the client's case to challenge a witness as not speaking the truth at a trial on an indictment, the professional advocate has to put the matter fully and fairly to the witness and, if that is not done and the advocate in his speech tries to rely on the falsity of the witness's evidence, the court should check him at once. In G R. v. Hart (above) the Court of Criminal Appeal similarly said:
In our opinion, if, on a crucial point in the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that witness should be challenged in the witness box, or at any rate, that it should be made plain, while the H witness is in the box, that his evidence is not accepted.
This passage was cited with approval by the Court of Appeal for Eastern Africa in Rex v Shija Mkina (1945), 12 I EACA 64, at p. 66.
A It is evident, however, that this apparently strict rule has since received clarification, and impliedly criticized, as revealed by the views expressed in O'Connell v Adams (above). It also transpires that case is distinguishable from the case before me. The court there went on to observe that in Magistrates' courts frequently one party was represented by B a person who was not a highly qualified professional advocate and was insufficiently skilled to appreciate the necessity of putting crucial matters to a witness for the other side. The court stated that it could not be said, as a matter of law, that justices must accept a witness's evidence merely because it was not challenged. In a commentary on the case - see C O'Connell v Adams [1973] Crim. L.R. pp.114 - 15 - the editors suggest that the rule in Browne v Dunn(above):
bars the party who has omitted to cross-examine from asking the jury to disbelieve the witness. Clearly it cannot bar the jury from D disbelieving him; and presumably it would be wrong for the judge to tell the jury that they must believe the witness; though he could of course point out that the witness's evidence was un-challenged. Though the Magistrates largely fulfil the role of the judge as well as the jury, it seems right that they, similarly, should be untrammelled by rules as to what they must or must not believe. E On the other hand, it is obviously desirable that it should be brought to the notice of any witness, before he leaves the witness box, that his evidence is doubted in some respect, since it is possible that he may be able to resolve the doubt. F
With these observations and comments, I am in agreement. While not attempting to lay down a general rule, therefore, I G think it can still be said that although it is undesirable to permit a party to canvass a point not raised in cross-examination, the court should not thereby be precluded from disbelieving a witness on a particular point merely because he was not cross-examined on that point. This proposition appears to accord with the realities of our own H environment where, in Magistrate's courts most accused persons do not have access to professional representation nor do they have the skill to conduct their cases. Not infrequently cases come up where there has been no cross-examination, at all, or, there has been poor and irrelevant cross-examination, but then the accused comes up with a I defence which could possibly be true. Injustice could therefore be occasioned if the court were to believe a prosecution
A witness on a particular matter merely because he had not been cross-examined on that matter.
I have also said that O'Connell v Adams is distinguishable. In that case the witnesses had not been cross-examined at all, but in the instant case that RCO was in fact cross-examined and it was brought to his notice that his evidence was B doubted in some respect. Learned defence counsel raised the question of identity -whether the second accused was the wanted person; he also raised the question of motive - whether the second accused had reason to give a bribe. I think that on a fair and judicious appreciation of this line of questioning, the defence was entitled to expect the court to construe the evidence of the RCO as not accepted. C
I think, finally, that this matter may be concluded by stating that it all boiled down to the onus of proof. The onus is, unless otherwise stated, on the prosecution to prove the guilt of the accused beyond reasonable doubt. An accused D person may not be convicted on the weakness of the defence - which would include the omission to cross-examine on a crucial matter - but can only be convicted on the strength of the prosecution case. Not even lies proceeding from the mouth of the accused would absolve the trial court from ascertaining from the whole evidence whether the offence has E been proved beyond reasonable doubt: Longinus Komba v. R. [1973] LRT n. 39. In his judgment the learned trial magistrate stated that he had "no reason whatsoever to disbelieve the testimony of the PW1." I have already shown that there were not one but a number of reasons for doubting the RCO and it is unnecessary to repeat them. It follows in my F view that the appellants' guilt had not been established beyond reasonable doubt.
I allow the appeal, quash the convictions and sentences and order the appellants' immediate release from custody.