19780609 TZHC Mwanza 1

:ic-i 2OUI.T 01" TANZ.PJTIA AT WAJTZA " 1 (V1 APPELLATE]llS DICT I OIT I-IIG-IJ C 01J:tT CRIT:T[::AL APPEAL O .157 01' 1977 ORIGLAI Cilihi AL CKDE 0 394 02 1976 OF TIE DISTRICT C 0iJI OF ETJ0:9A DISTRICT AT ]]UTTOL'A i re S. B. ]7• Chc:riho Esç., Theident DATIAFs/o JARUSI . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . APPEILAiiT (0riina1 Accused) versus ¶p: ........................... .. RESPOTDE'TT (Oriina1 Prosecutor)

JUDGENENT SISYA, J: The appellant was cony ted on two ccwa;s of Car'ying on iiaess wit aLit a 1 onCe corrarv OSe c;irns 1 7(11) (a) and 3(2) ot the Lusinees Licensing ict Fo.25/72 and SoIling goods above .ianiaw. price contrary to Sctions 20 and ?6 Part IV of the iiegdations Price Act o.19/1973" respec .voly. On the first count he was ovnCencsd to t ivenonthe i:iDrisonont and On t)13 sec ond c OUnt ho was Ce:ate:o.c3c1 to e:Lricox! :ionths 1npr2sou(2.n. - G plus a iine oi Sac.1 500 11= 9 \:.L;h an orr na the tcras of i.prlsonao]at should ran concLirrontly. is now appealing. Evidence was led at the trial to show that on 12th October, 1975 the appellant 'ias approacl.eeL by the conp1ainat in the cac;o, one Frcderic.!: s/a Daudi (PU]..). It iS; not clear \'w;r :2xactiy the said approach was .eade. . According to PVT1 hiio was at the appelient' e house . 1Iowever, according tothe othr witnesses in the case thio was at the stall where th- app1iar.t sells fish because ho is a fish aongor. 7horever it was, on his arrival PU] n.cticod that ther. a drun containi:: Forosme. Since PU1 was looking for cone Lerosenc e apol1nnt agreed to and di i .2 c ccli i !.n i 'ol - dr. 7 ci je r oen' , a p. / .1. The price .aantioned by the aoneilanG was She .1, 000/= and P 1.71 pEnd the no:;asy to hue. It wee while P71 was carr71:1.:'.g eo.w. of U T Terosene to his place when he wac accosted and

subsequently apprehended by an as]:ari. The .eat;er was reported to the Police end 0 .L.1647 Sgt ejor Jr\jan (? ) too' jj ' L rr iJgae.o e ua the Case • La went, end asked the apeJ_1ant if ho had a licence to sell Lerosene to which the appoTL1at; aaswered in the negative. Sgt. ajor Joim (PU3) tetific1. to the effoct that a drun ouch as the aup lant sold has a co.pacity of 200 litnos of Lorose.oe end the controlled price of Lerosene in Luleba Dietrict was, at the naterial tiae, Shs.1/70 per litre. La euipoit of the lattor )fr1Oj a ]ie 0C yC - cooro]1od ercL aeC ) :r respectjve rices j. issued by the Assistant Price Coneic.eionor of TiilCljE:, Djstrjct (Exh.T3). In ...is defence thea J..lzn.t denied selling ay Leroocne to P71. ccord.ng to hiw th. Jorooeno which the P 'lice. seized .1 'o i ."Iis IF J..O' s aL] as C, i.i ' re or \iC 1Y r of Kagabiro Cooperative shoe iced asked hio. to buy for tleui. Tic trid to saplain this to P73 who thou ij:ce.ne vc;n eug:cy with biüi and ace used Inn ci aeaJ_a.ng Is. Fe roe ens on nic black nrke t eventualJ_y, told hue tJiet he aepci]ant, would be released only on cash bail of She.?, 000/=. Thoroafter he was eco:cted to his hone where he borrowed the aoney, She .i, 000/=. To hi i.e appellant' s disnay P73 Jn tsr turned the ieoney into ie. orhibit. -2--- he appoJ.la.t called t::o wit: see on his ride. D.T. 2, Vcli'rac Cl'rp b Ia ucl be LLLed n C

0 0 -' 12/10/75 h. as shopTsn.aer of Kisna Co-oporstivç; Shop, anthorised payae....:; of c.si;., ShE.1 9 200/= 2 to. PJ1 :a k.iJ3 capacity as Snop Unaj.r - .an ;o ;o and buy Kerosene :tor the onop. Ie.er nc isosived 1 -L[ e a oa 'o said Keio C C bc. oc n CCJ iCd beca.we the seller had seld it at an iliea1 price. DTT3, Edward i3inon, who described his1f as who 7ard ][ccutivs Officer of sachonu, ietiiied -bo - : of:Iect that T. after the ape1lant 4 s arrest and, apparently, after ho had been released on bail ho 2 Edward, sL1 aon3ci F. apnellaat aLad asked hia alJoLrb the :Lerosone • U1ie appellant denied 1Jo1( any Kerosene. and added that the drun of Kerosene oil which las ape11sn - ;, had be1oud, to isina Co-operative Shop. Later h':, 53inon, went to Kizin:';a Co-operative Shop and asked its Chair. an end freasurr if what the appellant had said was true. Eoth of then ag±eed addind tha;b they had :;iven appl1an - b ShO .1, 200/= for Kerosene. Later still the Chairman of Kizin,a Co-operative than confirmed to hiri, i.e. Si.'ron,. that appellai -b was their agent. In his judeTn.sn.t the 1carned Resident 7 a2istra.tc wes, jn Count 2, satisfied that the appellant sold a price controlled co.riodity at a price above the naoinum fixed by law. jount 1 the learned Resident .:Taist.rete was eatiofied that the aspellant carried on, illegal trade co:. anly k:io;n as Biashara ya i,7agendo"

and convicted him, not on the soctionj as shown in, the charge as laid but under Section 3(1) (a) of Act 71- o.25/72. In his petition. of appeal the appellant insists -bhat he did not sell the dma of Kerosene to P71. Although the appellant himself Cud not rai:n this point the oub-scctions quoted in Count 1 are all Wrong. The proper sections are Sections 3(l)(a) and 17(l)(a). In arguLag out - ta±s appeal before me the learaecl State Attorney, 7rs. TInt ovu., was of the view that the charge in Count 1 under wrong sub-sectiona was an important irregularity which cou.ld have pro judiced the apnellaut. th ier.ipoc; ± do n o t thank vna'G ne apel1a.yG was or could have been pro judiced by this irregularity. It, indeed, hclpe ( ao j'C ia 1 s'-' o. Public Pr'soc - id ao1 ho r to check with his law prior to fili:o.g the charge . At any i'ate I aa nevertheless sa:isfiod tJ.zat the app'.11ent knewthe charges against him, the mis quotr;Li on of . the sub-se cth O.:'.LS no'; :ith'taiidirig. Turni.::.g to the vidcnc 2 - do not thi.a:: that the learned Residoo:b 1Tagistrate gave it a thorough ounsideratioo. and analysis \ 'ic i deserved. Ic l -e 'icc r aeile id Yoc 0 was given Shs.l, 000/= by the ITanager of Kagabit-o Co-operetive Shop with which to buy three druues of Kerosene. lIe had o.aly purchased one when he was apprehended. The l.anager of Kaga'biro Co-operative Shop, UI?., denied

gilving, the appellant S:s.l,000/= f or pal-poses of buying Kerosene oil for the Co-onerative Shop. Ks, however, recalled that on the material day he autharised payncnt o: Shs.l,200/= 'cc P11 for purposes of iJLayiYg herossne oil f or the Co-operative, shop. According to DKl the shOoing of: articles of narchand:Lee for the Co-operative Shoe one being done by the Chairman and the Treasurer of the shop.. lie, i.e. DW1, addei. that ii; was, however, within his knowled;e that at tiass the shop Chairaen, P71, used to scaid the apc-llant tc do the shopig for hixii because of his, i.e. appcllaed;'s proximity to the shoping centre. Te evidence o :oKl on this poin: is in pan passu with ';kt of D\72 and both of these are independent :3r3sec; in the ce.se I -, .../) )' Aj —3- Indeed PUl ims] -F donied that he se;rt thO a]Jcllant to buy eoe forosene oil on his 1c . 7P71's behalf. Instoad, he, P71, insisted that he bought the lerosene oil fran the appellant. P]l JJnnElI Cud. not Cay I or wnat us a'Ohe.Ssd all Ii18;G aiTount of Kerosene oji, a whole drupx of it, that is to say whether he wanted it For hic domestic i)c or for resl 1 .Lowevar, on the evidence of Dli which stands unchallonnud and unc oat radic ted on this asiect of the case it is clear that ho, P11 9 bought the dru. of Kerosene on behalf of the Co-oprI;ivo Shop of which he was Cheir•an.. That being so and I rnpoat that there is

admissiblas ic.. crjjj1j evidence that it w as t ic - the (IQ jjjj b r P a that 'Ic askea the espJ1srit to do the bujan for him pales into oblivion. T.cuis VIOW 15 strengtJx:ened by t ho :ncIG]xat if P71 were to be believed on this asiioct of the nattor then how, it nay be asked, would no Inve ace ounteci for the :xonoy given to him by D I for t he e of bujuig CJO (' (1C cooperative shop? lore so when in the words of DIl Vncrai -.d, Ult is rrcde.rick Daudi (P71) the Chair ian who liuys goode for our shop. It is upca him to know where to get the goods. Irederico would then tender the purchasing raceilit and I will enter than into our books of account." This indeed is what one wec_Ld orpect tlinngs to be . In the instant caso P71 d.d not produco any- purchasing receipt purportedly issued by the ap11auit nor, indeed, did. he., P71, suggest that any was JS:iUOdL • in addition to this, there can be aa doubt that the ' r ;n ol which bOGh P11 and ao?iellan; Gaikea eborn was the eano one lJecaLxoe, according to Dli, PJl reported to hin that the Kero s ene which he bought had been seized by the Police. iLe:er the said acrossno was owhibited at the trial. Thy P71 decided to deny eo.ading ties anpsllaot to buy the fero e ee on his boh1f 1 , lçflo)'r1 to himself. PoriC )C J. t may not be insignificani; to noo that or±gina1Jy it was P71 hitusoif who was arrested by the Police with the

Yerosone. On .ay evaluation o:[the evide;:ece it sounds clear to no that PIJ was not a truthful witness. If the learned Resident lagictrate had properly analysed the evidence as a whole I thia'.:: ho would not J.eave :iailed to fina that the evidence of P71, in the light of other evidence Cli record, bristles with icxeiaaeibility. In the circueztances it was very wisafe to convict on the evidence of P11. L,s there is no other evidence to snpiorb that of P11 on the cuestions of sale end price hiking I a:'. of the considered view that these convioti.ciis should not he allowed to stand. in the event this apiieal succeeds. The convioteons, on both counts are quashed and the sentences are sot aside. The appellant should be set free i:actwdiate1y unless, of course, he is being held on some other lawful charges. V If the fine has been paid the cane should be refunded to lain. It is ordered accordingly. Delivered at Twanza 9th day of June, 1973. V TI. E. D. ISA 9th Juno, 1978