NA TZCA Dar es Salaam13

r , .,. ita o; cuojO us samoceq V J° UO4O$i t$4 Wtt [UQ iç 9 UOp,00E3 tt Q2OJ. ?O onbp Txc4I am IT aT aouojjo ou -'n j *uoauddv ewcoeqat piOv$ ot* o uooXd ?t ;o r I'd u 120 seausealeaso [AICWJUU 012 SpiL 'E O- W40U O)UJJO SUS OSOTOsTP O .€itthi i4UflOO qtOq U ØOUOJJO 30 Ixawa ul •I0$ UTtJJO qOnu jO eoizct o uo ao,nbtt toxow etuuiuoo o uis J0 4jtU3 q o s.z0quziux ut q,,o ouosaod OJ4 AoTpa PIP UUTt Ere1tqea aç; JO iwo ft 'od pue 'e.?p OtO. uo UetIOtd:e cqq °' attq JO sq 9961 ov I0flbIT c oIxor atil. ao t6 P It uo)a o t.quoo ae jo erçwe.id uo .toubq ouç tmuo ot, oXoi uç.&oiy () p12v tS.XflOt( peZ1 an o pq JO14 JO LswEjqoq Ouu -ql TIOU PTP OaO iD 0 u00 !T—;J 0 JO JU'tQ OUt quioC ur 'eio epeq Inot oo rioqv ve oL61 twao jo Jt qo toqe 10 120 'U 1odT aq. 0U0JJO Wt JO ')94t v °T Jo t6 ?U t SIO 0J 04, J11A0Q sanoil peZTxoq4nvun 4,V xonbçi &U ujte (t) sLes o. eq. ;suc'e steo °tt°; Gq4 PTVI uo '4UflO0 qq so 413 120 OUTJ ?Sed 01 pOUØ Oy) 996t 4 0 V SaOnbll ! OR 0 (96t 3° 2oui aqj 4opavi eoe3Jo 0.*. jo tJ 4 0 T4.6 rto Gquoj eq4. ;o et ueJe patueddu 'peep q oj. pa4aOdOa sç ot& 'I-UVT T edda $ — ' 'ov ocvxvr4 tNTaUafir 96t 40Y otibp u 'ocxo -I 30 ptxa TI 03/0 gxnoq pa totteu 4a muoo o4. aldoid JtflMofly :Ufl00 PU I. 9961 °V 0IOTIbt1 I3I 30 TjJ pU% 8T 8310 saraq P 3 Tti;L 11 ___________ ci zortbt U 0X0UI uctti TT5 *ow.to (c4rLoeo.zj tI3Po e4 (Ucv tuJIO) s1_1 *404Sss1•... viv g Yi 1i] 1.TW O1.R( 'zojj eqto( cci aqmogg 30 JO OLG! JO )3 *09 00113 t 11UtItL3 Ie12tQ 1L61 JO cI& °L Iaodly, tco 40 QG RiDia SHID ILl - 2, intoxioatin liuo, duriig un*thoicd hottr&' or for "ant peon to oonswne intoicatiig liquor on the premises of an otf-lienoe toreU, if I uere not satisfied that the particulars of offone laid in ospct of both cotus left the appellant in no doubt as to the nature of offence ho was faing, I could have allowM this appeal on this groun&s flowever, on exaninatiøn of the obaDe sheet I am fully satisfied that the patioulars of offence et out in both oount were expressed in such explicit terms as to leave the appellant in no doubt as to what offences be had to answer, I am thus of the view that no fat mrs. of justice was occasioned by the ePrors in the charge shoot. The nest question to colder is whether the prseoution Adduced sufficient eviderce in eupport of the alleged contraventione of, the Intoxicating Liuoro Act. The proaeoition called aitcether four witnesses in support of the charges laid, The first pmoesoutio witnosø was one Police Liepoctor Aoniface 3. Ryimbo (Pj.i) who testified that on the da7 in 4uestion ho and P.C. Ansoim (PJ.2) carried out an inspection of all boor stores tn the minor settlemeM for the purpose of satisfying themselves whether the Intoxicating iuoz law was being observed.. In the course of this tnpection they isitod the akppGllant's Mbade store and there they found three people drinking each one having one bottlo of tusker hee, The time when the isit to the appellant' .s store was made was aocordirw, to the evienoe of both police officers, past the hour when the atore is required I)y law to close, The two øfflcsrs therefore eeized two bottles of the tueker beer as exhibits in the case that they intended to bring against the owner of the store. P.C. An (P..W.2) and a Olvilian one Barnabarbas Vgondola (P.W,4) corroborated the testimony of the Police Insp4otor.. The appellant in his memorandum of apsal has raised some interesting grounds of defence. The first such ground, as it appearS n the inesoranduin, is that he cominitte? no offence because the person found by the poliOc drinking beer were his relatives. It is perhaps high time that I should dispel the notion that many beer store owners seem to hold that it is perfootly airight for them to allow their relatives to consume intoicatirg liquor within the store after the hours authorised by law. That is oetainly not the law. The law, as I apprehend it, makes it an offence for any -1110,enseo to allow any person aftGr authorized hours, whether a irnmber of the family or nOt e to eonst1ne intoxicating iiquor in the room in which the beer is sold. WhIle sub-section (2) of section 14 permits members of the family and servants to remain in the premises of a retailer's on.lioenee store during normal authorized bøuve of business, there is no orreponding permission in respect of members of the family and servants of an off-licence store owner, It would seem to we a deliberate OmisSion by the legislature and it follows that it is an offence for any person of whatever dser:iption to consume intoxicating liquor or off- licence premises at whatever time of the day. Tt matters not whether the liquor in ciucetion was bought on the premisos or brought there from another place. I acoordinly find, no oubotanocs In this ground of appeal. The second ground of appeal is that Since the police -offloors did not witness a sale in the triot sense of the word no offence was committed by him. I ha'rd.ly can see any merit in this argument. Seetion 92 makes it unnecessary for the prosecution to prove that any money actually passed. It is sufficient that in the opinion of the Court the evidence adduced Shows that a transaction in the nature of a. sale actually took placee F urther, under ub-otion (2) of section 92 once the prosecution have established evidence that some person or persons 3. other than the 000üpier or a servant em4yed on, the prmies, Osumed or were intending to ooneurnc intoxicating Uquor on the Zlcenood pemise, that wotalcl be priia faoie evIdence that the Iiquox' was eold by the licensee to the person* And it would.be upon the lioensee to Iis.charge the onus plaoed on him by this section* as the Iaistrate correctly found on the evidence, the appellant tailed to do* the thirci ground of appeal the appellant allecee that his prosecution for the two offenoos amounts to a persecution as no such ffenoes have boen brought against other licensees who, according to him, were guilty, of similar contraventiozu. I do not believe that this is in fact true and the Magistrate was right in rejecti this b seloes allegations twt coming to the final grou,d. of appeal, I consider that there Is good reason for the appellant feeling dissatisfied with the aiatrate'e decision to admit a statement made by Twingilae dfo Nairobi (Pj.,3) to the police at the police station, The evidence in court iiatrial1y contrad.i0ted with her earlier stetpmet to the police whercupon with the leave of the court she was treated as a. hostile *itnese, without going into the merits of the aistrat&s action in treating lifingilage as a hostile witness, I find that the Mgistrate acted improperly in accepting bor state Iflent to the polios asppart of the evidence of the prosecution's case worthy of belief. This was clearly a gToss midirctiono it is a trite principle of law that where a witness g&ves evidence of facts quite contraditory to a statement he/ebe irs alleged to have made to the police and an applIcation made to treat the witness as hostile has been granted by the court, the evitonco of such witnese inGluding the statement made to the police is completely valueless and not worthy to be taken into conidoration.in the case. In this respeot I can do no betar than refer to what va said in the .Arusha 111gh Court Criminal Apee.. N, 217 of 1965 by the learned 4r. E.k$i. Bannerman, 3, (as he then waC)t 'The effect of a statement tendered in evidence wherot a witness has been allowed to be treated as hostile is meroly to aentradiot any evldonOe he has given in court differing from such statement ancl the effect is to negative such evidence and make it valueless and net worthy to be taken into consideration in the case. The statement tendered is of even less weight for if a witness has been proved or held out to be untruthful when on oath it Is even less likely that be would be truthful when making a statement without oatb'. It was therefore a saroas misdirection for the Magiztrato to treat 'rwingilage' s evidence as crediblo evidenco worthy of being taken into consideration in the case. I am howvr satisfied that having regard to the rest of the evidence accepted by the aistrate, the !agistrate would have reached the same conclusion even it he had not misdirected himself with regard to the effect of wingi1aga's evidence. Acoordiigly the mIsdirection has occa.sioned, no failure of justice and this appeal against conviction therefore tails. The appeal against sentence must also fail., The sentenceS iThpoBM are merely minimal and it would be ludirouc to think to reduce them any further, In the result this e.ppeai falls in its entirety and is dismissed.