19710810 TZHC Mwanza

eft '--. - IN TEE HIGH COURT OF TANZANIA AT MANZA. Appellate Jurisdiction. CRIMINAL APPEAL NO0 534 OF 1970. iginal Criminal Case No.176 of 1970 of the District Court of Geita District at Geita Before C. H. Msamati E501, District ilagistrate. ASANJA MANDAGO. . . .. . . APPELLANT(Orig. ACCUSCd) vs. THE REPUBLIC. . , ,RESPONDE1I\T11 (Orig.Prosec.) CHARGE: 1st Count - Unlawful manufacture of local liciuor without licence c/s 65(1) and 91 of Act 8/68. 2nd Count - Corrupt transaction with agents c/s 3(2) of the Prevention of Qcrruption Ord.Cap.400 of the laws. JUDGMENT0 MAKA1V, J. The appellant was charged with unlawful manufacture of local liauor, and with corruption. Unless the record is other than faithful, in answer to the first charge the appellant said I never sold or manufactured the pombe. I have no licence.0 or reasons beyond comprehension this was entered as a plea of guilty. This was a plea of Not Guilty which could scarcely be clearer. The iaagistrate heard evidence on both counts and one would have thought that if the rnagistate really believed that there was a plea of guilty on first count, he would have invited facts from the prositor and dealt with that count accordingly. In an unconvincing and conspicuously hasty judgment, which he wrote on the same day he finished hearing evidence, the trial magistrate found the appellant guilty on both counts. He sentenced him to shs.50/- or one month on the 1st count, and. 2 years without strokes on the count of corruption. The appellant alleged that he was 56 years old and the magistrate made no find- ing as to age as he should have done. I shall start with the corruption charge. I respectfulTy agree with the learned State Attorney.that the allegation that the appellant corruptly offered shs.20/- to 7.1 was not established beyond reasonable doubt.. According to semakwe1i, the cell-leader, the appellant went into his house, came out with shs.20"- and gave it to Shabani who relayed it to Msern.akre1i and Nsemakweli in turn gave it to the police officer. Accord ing to the cell-leader, Shabani told him that he should give the money to the police officer so that the latter might forgive the appellant.. Accding to Shabani it was the anpellant who said this., and because Shabani and Msemakweli were just outside the same house, semakweli could not have' Tailed to hear the alleged conversation between the appellant 0 , 4 r . •• a:. - - - ._..a- '''_ -. .-_. . .JL -2- and Shabani, had there bien such a conversation. On their own versions both these witnesses would be accomplices and they are not corroborated by P..l the police officer, the only other person who testified. .According to P..l it would appear that there was no conversation between the appellant and any of the witnesses. Instead, it was the cell leader who gave the money as 'Uga ii', a clear euphemism for bribery 9 so that he might excuse the appellant. Because of this unsatisfactory evidence it would be unsafe to uphold the conviction which I accordingly civash, and the sentence of 2 years I set aside. On the first count, there was evidence, and. the appellant admitted, that there was pombe in his house. He also said when P.VT,l arrived people were beginning to disperse, but all this does not amount to proof of selling liquor, let alone manufacturing it. There was only a bare assertion that the pombe was fcr sale, without the slightest effort to establish that the appellant was selling it. None of the other people allegedto have been found there, for example, was called to give evidence that the appellant in fact was selling pombe. Section 65(1) of the Intoxicating Linuors Act, 1968 under which the appellant was charged does not make it an offence to have local liouor at hane without a licence. It is only an offence if a person sells, exposes, offers or keeps for sale any intoxicating liciuor or manufactures any local liquor except under the authority of a licence or otherwise than in accordance with the provisions of this Act,..., Although the appellant had no licence it was not roved that he was committing any offence under section 65. Admittedly under section 65(2) an accused person has an onus. That onus is of proving that an offence under sub-section (1) of section 65 committed on premises of which he is the occupier was committed without his privity or consent. This onus of course pre-supposes proof that the offe ce has been committed i.e. it has been proved to have been committed, and it does not mean a general onus of proving that an offence of selling, exposing, offering or keeping for sale was2Ommitted at all. On the first count., I am not satisfied that the conviction which I now quash, was justified. I also set aside the sentence. If the appellant is still interned he should forthwith be released 8nd. set at liberty unless he is otherwise lawfully held on account of some other matter. If he has paid the fine it should be refunded to him. As no one claims the shs.,.20/- as his it should he treated as found property. . IN COURT thislO/8/71..