19780505 TZHC Mbeya

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IN THE HIGH COURT OF TANZANIA AT 1'fl3EYA APP]JLATE JURISDICTION HIGH COURT CRII'flNAL. APPEAL NO. 32 OF 1 978 ORIGINAL CRININAL CASE NO. 39 OF 1978 OP THE DISTHICT COURT OF KYELA DISTRICT - AT KYEL[. BEFORE: B.P. ONZI,ESQ DISTRICT TDGISTRTE Ei.ST}iR IIlIANJL.I3ALA •....,.....,.... IJ?PELLANT versus THE RTIPTJDLIC • ............ ......... REPONDliIIr CHARGE:— Sell of Goods above Maxiuun Prices c/ss. 20 and 26 of the Price Control Act No.19/73. JUDGN]JINT NWAKIBETE, J.: The appellant who was charged under Act 19/73 with the offence of selling go;ds above the naximum price was convicted on her own plea of guilty and sentoncIto shs.3,000/= fine or 16 Llonths inprisonnont in default The plea was' uneQuivocal. The appeal is one aainst 1)0th the conviction and sentence. The appeal against conviction is clearly inconpetent. It is incoripctent because on the basis of section 313(1) of the Crioijnal Procedure Code: No apeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court, except * as to the exteflt or legality of the sentence.' 1 . .. 0 . . . - - - —2 Just for the sake of argx-,iontj however, in her memorandum of appeal,, appellant complains that she was not to blame for the overcharging because allegedly she was simply implementing what had been decidedby her employer. If her complaint is genuine

one wonders why she should have withheld such information from the trial court According to the facts which appellant confirmed to be correct - the overcharging was her own intiative and that she had to do it in order to offset transport chargea from Mbcya to Kyela for the goods. This is not tantamount to saying that the law • empowered her to do so. The memorandum ;f appeal does n.t say that the appellant did not know that overcharging as in the instant case was illegal. For if she was aware of the illegality, which seems to be the position, it would not be a defence to say that she was simply implementing a decision of her employer. She would still be responsible under section 22 of the Penal Code as aprincipal offender. Her appoal against conviction would still be an exercise in futility. In all the circumstances, therefore, the appeal against conviction is devoid of merit and is hereby dismissed. As for the sentence I agree with the RepithJ.ic ±ha-L tlipsn is manifestly excessive. It was not the employer or the shop as t,he such that was the subject ofcharge - but the appellant in her personal capacity. The remarks of the trial magistrate appeared aimed at the body cooperate instead of the appellant, which was a misdirection. The remarks must have influenced the learned magistrate in imposing the fine The learned magistrate apparently verlooked also the provisions of P1'RT

IV of the Regulation of Prices Act. The offence that was corrnitted by the appellant was clearly compoundable within the meaning provided by section 33. The excess amount over the alleged maximum was clearly negligible. It was a more =145 cents. In addition, the appellant was a first offonrir cj.rrine' cni'l,y per month. • For the above reasors I would reduce the amount of fine imposed to one of shs.450/= or 1 month imprisonment in default. Order accordingly. Delivered in court at Mbcya this 5th day of May, 1978. M. J. M1iKIjTE

JUDGE IN THE PRESENCE OF: L I / APPi11,NT • - in person MTAI - State Attorney for the Republic. -• • - S