19750801 TZHC Tanga

(/ 171 IN THE HIGH COURT OF TANZANIA (IN THE DISThICT fl.EG-ISTRY) AT TANG-A TANG-A CRIMINAL APPEAL NO. 7 OF 1974 (FROM THE DECISION OF THE DISTRICT COURT OF H[THEZA DISTRICT AT MtJIIEZA IN CRIMINAL CASE NO. 229/74) BEFORE: P. A. YWITA g , Ditrit Magistrate ALL( SiIDI . . . . . . . . . . . . . . . . . . . . . . . . . . ..I'PEI[J1NT (Original Accused) versus THE REPUBLIC RESPOIflJENT (inal Prosecubor) JUDGMENT JONATHLN J - The appellant was convicted of selling goods above the maximum price and of corruption, respectively contrary to section 10(1) .of.th Price Control Ordinariceand Section 2) of the Prevention of Cbrrh tion Act 1971. There has been no appeal from the cQnvict±on iLuider the aore.said Ordinance,- but I may not.o in passing that the charge should not have bebh laid under this legis1ation this becauc :1. it had been repealed and replaced as at the time of coinission of 'the act constituting the offence. The repealing nd.roplaeing Act is the Regi*Thtion of PriCes Ao't. 1973 a The Charge should therefdre have been framed under section 20 'of this Act. The seCtion is: virtually a vord-for-word reproduction of Section 10(1) of. the Ordinance and the convictionis to be Is doemod based on Section 20 of the Act. .. As r garde the corruotioia count it was the orosecubion case that one HATIBU mALWI (r.W.2.) found the appellant, a retail-business man,- selling sugar above the maximum, price and tht subscuently the appcl±anb offered iun the sun of s.151 s an induceueiit to forbear to rert the contravention of 'the Rciilation of.?rices Act to the police. - It is a ground of appeal that .th4eaiionship of principal and agent.did not exist so ' as , to cnstre. the offer of the money, as corruption within 'thp, meaning of the Act. RTIBU was a Couiicillor - of the Kichoba Vfard in the District of Muheza, and it vioitld apoar that ho was for that reason, a member Qi. the District Dovelopmnt Council as ostablished.by the. Decentralization of Government Adminieuration (Interim Prey Act 1972. The leorned trial nu;gistrate held, correctly in iay view, that HATIBU as a member of tho Council is a public officer within the definition of section 2 of the Prevention of Corruption Act. One of the definition-s of a oublic officer under the Act is ' -bhe Chairman or a member of a local authority's as established undOr the Local Government Ordinance (Cap.333). Following the Cnactmont of tho,Docentralizdtion of Government Administration Act, loCal authorities have been superseded by District Development Councils, and the duties and ñmctions of these authorities now appear to have been taken over by the District Development Councils replacing' them. HATIBU as a nembor of one of such Cpuncils eos therefore a public officer. .......... . . .,/2 I. / It is hovever arjus. b Lr. D'Souza, t he learned advocate for th. ap9ollaiit, that it is not the fuaction of Distr.ict Develbjpient unoi,s to arrest and prosecute those who cOrtrene thé Reilation of Prices Act and therof'oie, that the apoll:nt did. not f'fcr th. nonoy to HATIBU to induce him to forbear to do anythin' in relation to his principal's • affai±'s. There is eonsideab10 fce in this submission. As Kisana, J. held in hTta R. (1971 H C.D. 34) • it-is essential in e. case t as this to establish the relation- ship of incial and a-:ent. l'.7ithoui such relationship 1ein . shown it is not ib ossib1c to conviciu2ader 8edtion 3 of the Act. In ths case the Principal of HJTIBU was the huheza District Deve1opicnt Council.. It..was however none of the functions of this Coincil to arosG ±d proeecue shop-kec.pers who sell ,00ds above hL iaixiium cicc It fol1os th a t IL.TIBU could not possi7clnhv bee-n of.2orecl the noner to forbear to do anythin:ih lation to.. thE- dffairs of the Council. Like Kisan c, J t am reo wc t f ally in Egroc2e.Lit iith ­ the lucid decision of' Chief Justico G-oor cc in IsanLa V. R . jAi.l4O That was b. c.ce of e icu-houso cell leader Zalso olieitiii a hribc, bit bho frnc1plc tnore-in Set out spliosL to he proseii case Tnc Ci ie±' Justice obscros, inter alia, ".... takinpcopie is not pi.of ate-n-house cell leader's busince in ccl tioc o h±s principal, T A FU. As I h ye soi n-L GO 1ndicd'tc ihon he aces i sti.ch roc h ace acted. nrcly as a zealous nid j]ie-sirii,cd cition 1hich all - . tehouse coll.icadora ou1it tobe. ...... " Ec1ually, in this c-.eso takin:, lcfal adhon adainet contraveners. of' tre- Rulateen of' 2rics .&ct was not par - of' inc busi 'ss of I-hTL3TJ by virti, c oil n s beii a ..c bor oil' the Iuhoza District Dovolopncrt Council. It is a right.ad duty that every-one had of reportiii. to the relevant oriti cs .thoo who BOlL g o o d s above Ghc aaxinun price or action to be taken •aainst them. •IL'ddiBU had the rifhb and duty. to take action ainst inc apJciJ1c not becrnye of oin, a counciUo or a mc bar o cn Ditrict Dcvelop.eont Council, ut he hac such rh and OblJ L 101 S C private )erson in the crforcenon o± tao Th This uff'ices to cL1pOse of h epel and I do not proosc to consider h o1icr roinds of acl Accordinlv, tin. co'- vcion iC3 s ot.as -*L~ c toctiior 1ith .'.. in, sentence. The appcil-lit seould b fo2hita set ct liberty . (p 1 ::. JOT_iTT • • • . • • JUDdE. De1ivcr4 in open Coit. this 1st day of Aust 1975. • . (P • M. JOEAEHIiIT) • . JUDJE.