19800609 TZHC Tabora

IN THE HIGH COURT OF TANZANIA AT4BORA. V ' V •

APPELLATE JURISDICTION V (Tabora Registry) V V V HIGH COURT CRIIYIINAL APPEAL NO. 21/80

OF THE DISTRICT COURT OP IIASWA DISTRICT

TMASWA V VIRUR OSMAN VS: THE REPUBLIC V V CkLRGE: 1st count: Sales of goods above the maximum price, V C/S 20 and 26 of the Price ActJo.19 of 1973. V :.2nd. count: Destroying evidèn'ce, c/s 109 ofe th Penal V 'COde, Car. 16 Vol.1 ofthe. Laws. V 3rd coVunt:Falling to ithsue cash ale receipt, a/s V :41(1) 72(I).'(f) (g) of the VSmp Duty"Act.. No'. 20 of I -97 JUDGI5ENT V V • MtSHI 9 J: V V V The appellant, one KHEETRON D/O OSMAN, was charged and V convicted On three Counts. On the first count, she was charged • with"Vthe offence of Selling goods above the maximum price c/s 20 and .?6 of Act No. 19 of 1973 • She was sentenced to a fine V Shs. 750/— or fOu± thonths imprisonment in default. On the second countrihe *s charged with destroying evidence c/s 109 of the peiat Code to which she was sentenced to a fine of Shs. 300/7 or two months imprisonment in default. And the third count she Was charged with failing to issue a cash sale V receipt c/s 41(i)(I)(f) 'and (g) of ,Act',No. 20' Of 1972, and V wab sentenced to ,f1e of Shs. 300/— or two months imprisonmànt in default. She is appealing against both conviction and sentence. •" The' Voircumstces ie.ding to this prosecution apparently, are Very simple and short. The Police are said to have heard that the-appellant was selling certain types of shirts above the. ' prescribed maximum price. A trap was set and someone 'was allegedly

given three Police Notes of shillings one hundred each. This' person went to the appellant's shop and bought a shirt for shs. 270/—. The Policenotes were 'handed to the appellant who refunded Shs. 30/— to the buyer as a changc. The'PolI'ce'énte'red immediately and quarie'd the buyo ästo how muóh he had' paid for the shirt and he was told that it was Shs. 270/—. The appellant denied to have sold the shirt. Her dy, .sho-p and premises 'werethbroughly searched but the Police money was not found. On the word of the decoy, the appellant was" charged with the offencas as I have already 'stated above. The appellant denied the charges hence this appeal. • ,. .13. -2- The judgment of the learned trial magistrate has been attacked. on .s•èveral' grounds which I shall presently deal with. The learned State attorney who appeared for the Republic did not seek to suppor4-thoconvj6tion and seemed to support the defence Counsel's arguments. As the result Bhowëd, the learned State Lttorney was right. The first ground of appeal,state that the learned trial magistrate erred in re3ecting the prosecution application f or withdrawal of the charges- without considering the merits of the sane or without lawful grounds. I feel,I,hoai• ;' tornthiug ab.oa1 this giound of appeal although Counsels did not argthis ground.. On 23/10/79 the court made the following "Pros I have been instructed by )LP.C. to

withdraw the charges, bt na grounds have been submitted. Order pplication ref used ecause no grounds have been given why the charge should be withdrawn." There are only two provisions in the Criminal Procedure Code on whic.L1 sucn withdrawal could have been done. These are section 86 which reads. • . . * .'.and section 200 which read. Section 86 does not require the proecation to give reasons for withdrawal but it only says - with the consent of 1 the court0 ah thb tcourt wibhhold its consent and if it does what happens If the provision has any meaning as I think it must ineanwhat it says, it is obvious that the court can with-hold such consent0 As to what will happen next, very much depends on the conductf the prosecutor, The most diff i l-cult situation will arise if the prosecutor simply decides to adduce no evidence. The trial magistrate might be tempted to act under section 205 of Criminal Procedure Code but such action would be wrong as clearly stated in Martin .Nguma '& Others v. Republic. In this particular appeal the.. stalç.-nate did not arise since the prosecution continued to adduce evidence. That then should be the principles which should guide the court" whether to with-hold consent in a situation like the one' where reasons were not given'? Unlike in the High Court, the District Court is not placed in a position to know what evidence is likely to be adduced in a

case before it The prosecutor withthe Poli'c''ôosier is the one who knows the quality and content of the evidence likely to be deposed agains.t the acç.sed assuming that the witnesses will abide with what they have stated to the investigator. This puts the prosecutor ma - better position to guess the out-cone . . . . . . 0 . . . 0 . 0/3 . -3- (-\of a trial. According to the evidence it may be he sees no chance at all of su.cceding and thus he may see no justification to wëste court' s time and. materia'l. If such was the position, the prosecutor would be expected to withdrawal"the charge undr" section 200 of C.P.C. bathe might not be disposed Q act under that section 'even though he lmows that the chances of recharging the accused on the same 'facts are . nill and yet he may not wish to reveal -to the court all these reasons. Or the prosecutOr, may feel that more evidence is likely to be available but it might take too long time: to" finalize and thus it might be reasonable to tenporrily withdraw th chare 'until such time as the roinaining evidence is available to warrant' trial and recharge. For some reâsoñs- the prosecutor might not wish to reveal this to the court. The principle concern for the court should be to see to it that the chargewith which the cciied is 'cbarged' is finalized as soon as possible so that the accused ows' the result. A withdraw uner section 86(a) 'of

C.P.C. - C does not legally finalize the matter but it could'as'.weil be : to the advantage of the accused. Bat' is does provide in a - realistic approach the reading in 'the prosecu.torts mind that the caeisnot.so good for him0 'In deciding'there'fore whether 'tO' refuse or grant application wber'e reasons have not been gisen the - court should among other thlngs,l'ook at'the nature of the charge' and time it has been pending in court and naturally what the accused says in.:connection with the appiication and to keep all three(prosecution, aqQuae,nd..-court)proprly adjucated such order must, and I may be exused if I borrow: a sentence from the judgment of Court of Appeal in Martin Ngunba & OthersVR, "be fair and.'re,asona'ble,.. and. exercising it a cou,Zt L1ust:16ok at mattOrreáListic.11y, and' keep in view and 'in balai-ice the rights of an accused person and the duty of the prosecution. to bring miscreants' to'justice". The record is clear that the learned trial magistrate did not seriously consjder the matter before he made the order refusing withdraw. I now, turn to consider grounds'Nose2,3,4,5aid 6 which in a nut shell alleged .insuliciencyof the evidence and' misinterpretation of the sane and without sufficient consideration of the defence evjdence The learned counsel for the defence submitted that as the 6n1 evidence.wab that of a Police decoy, the court erred in acting on such., evidence without corroboration and for this proposition the learned counsel cided the case of Mrs. A. Parenti's v. Rex-1937'. T.L.R.

208. Apart from the '-'- -' '--- -.-=-'=.--=- ---------------.- -6- . H s a court.of frs apealJ am entitled to re-eitaluLte the' 1 evidence, and make my ov'n findings. I think it can be taken that the.appe1lant did not 1rnow that P.W.2 Mazengo had cothè to = trap her' -anathus would not sp.spct that the alleged nöts were speciaJ2 and thu hide the, sane.. The ..wit±iess said that after he haO receivedtheshirt,.another'custoraer cane. and asked for a trouser and appellant gave him the trouser and then robeived money rom,P.W.2 and geback She. 30/-change immediately apparentl..ill holding the note and as t&i witness dèIañded' ' a cash, sa.iejreceipt and after telling 'the witness that t'here was no receipt book, she later decided to call her sister and thus she•,'went inside. Is it the normal practice for shopkeepers. to hold money in their hands as alleged' in'this par±icular case when dealing with customers? WOuld it not be expected: for the appellant to have put the 'money.. into the till when sh took" out the change?. .Taking for granted'tha't'he'was:holding the money in her hai1ds -and she went with' it inside the house to call her sister, why then should she-leave t1e'ioneyithr room9 Is it the usual paractice that the business money is kcp anywhere in th? house? Even if we assume she left the money in the.roth somewhere she could not have hidden the money so far away as for

the, Police not to find it'because we aretol..the Police who apparer.'tly came in as she. cane out iEdC a thorou.h. '.. check bucou1d.not find any t±'ace of that money. Thereis no evidence that after the Police had coue the appellant went inside before the, search. Thereforunde' the circumstances .,:. there is no reason not to believe the appellant that she did not receive the money. Apart from this, there is a very importt aspect of the case which was left out. Whn the Poliôe found . no money on the appellant or in the brenises, the witness P.W.2 Wiliam.Mazengo should have been searched to find out if he had infact parted with the money as stated assuming that he ha: nfact received such money. This was not done. r Thy?. Again the witness showed Shs. 30/-:Or the-change he reveived from the appeUant. There was no evidence, and no effort was directed to that effect, that before P.W.'erit,ered. the: shop f . he did not have tKis he was showing as being a changb"frbm the apellant. Further therç was 'evidence from P.W2 to the effect that'sinilar shirts to the one' he bought, and lables indicating price of Shs, 135 per shirt. If that was the case was so stupid as to accet.to'payShs.27O/- for a similar shirt? I have no doubts at all in my mind, that WiU,ia.mMazengots evidence cannot be relied upon as ­truthful and I am certain had the trialnagistrate subjected it to the same scrutiny

he would P have come in the same conclusion. With the evidence of P.W.2. o/9/6 amr 'IHf1JAt 9 IAtI 77/ uiecId etq. oq. pepun;oi eq. oq A'ououi OT41 9 11 0 M se .xep.xo oLlq. pus epts os soul; pu's petsib suoiqop.uoo et peore s -c iedd @qq. 'aAoq ue OAST I qst Suossax etq. J0] JCAOMOH 'i.XSSeOeU eq qo€ TTTA& OouOpLe S 1 SOOep TO uoçqoq.o.xoo eIOLTM seouqsumo.tio ou eJe OJetfl qStq pepstlsJecl qou =a I 'xqunoo sçi4 uç qxiO iiotr Duieq axe 9, ,eLT9, scIiq ooTod TO pua.xq e7qq. tiM 6dejo, eotioa parçnbe.x pUeqUOO ATsnOTJeSeUO u'o 'Iedd's ino -cxscI sTtnuT S 'aA.oqS peqeqs sç qin txo.x; .rc; exs seouqstrnaJo ot soaeo qsou UT 9,-na eouopp.e epuecIepui uLa xo; peeu ou eq pynOM eot seoT.rqstanOJTO eset. JOUfl •oqota .xoçJe;trç ou p -me atrç.xo e Zuioeqep TO atqorn eios et 'qq.TM cuop oq qsiiti ç puy uoiq.oe sp JOJ qun000s oq oedsrs etjq UTiq. oq. eq.un eIS eoço ei UOSOAUT tlOJt pU queep eqcIsep UOtc[M etT.Io sqçtarioo STTen0,Tqeq qoedsris pe?eT et oaLtM 9 es eq STuo pinots scIi. eooa ee9 itqoedse I oTqes.q.o T- tqç eoue;;o - Ot[q. uç edoq.xd oq. UIt(. Jo; £.rssseQeu eq. ITTM q.T ODUepTA? eoue;;o we sqrtacioo qo's; UT pu xe;;o TXS oq puOdsaJ p1nOM et qou .xo J8T9ttM UT.XeAO 05 Tp TO MCA 81q tqM urçq.oq. icooep piles o. uçq4o o q.twT;;ip ST tToTttM TO ;ooxcI eoue;;o ire sçcicioo ATer4Tq.tI uosed UTJOO - 5 rUTTfl 0q UOSOJ pOOp eA'GL eoTIoa et eJeqA eso etfl. uç Jadoad iVqoe;ecI osi ST

4-Ill —:aqorb I pu-s eqs oq. uo queM e.?Pnf peuree otq qrtq (sM ueq OtT s) ro 's 1 eoe q 69 a 906 cId - TJ0IA1 uoze & TO esso oiq. UT petTSt1u-cqSTp £TTn;SS000nS SSM esso Sp 'uoqTsodoJd qstq o; Jottq se poqco s ILL (L6I) eu °i sTwexsa *V 4 saX TO esso et uoTq.sJoq.oa:Joo qxtOtqTM uothpeqoe eq qou pnoo iVooep eoçoa e TO qpeq Tuiaq eouepie tTOflS etq PTS iesunoo °UOtq.sJOqOJOo paxmba,j eouepç.e stq. iesttno3 eoue;ep et TO q.uotrnxs etq uo tptloq Oq. 03TTT prnoM i Isoc STLTq asodstp oq. quOOJnS srnq 0 1 q-i st; eso uoqoesoJd eq.. pus oouep&e JOO Oil 5M eJeq 'puT; I OS tTOTtTM 'eq.sç[eJun p[°tT uIoq