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//QoufI7 L THE HIGH C)IJRT OF .PANZNIA AT MWA,NZA "LPPELLATE JJPISDICTION }ITSII COURT u1LINL APPEAL NO 398 OF 1974 ORIGINAL CIMIiAL 'CA&U, N 178 OF'974 OF THE'DISTRIC '•CORT OF SRGETI DIHThICT AT SER:NGHTI - BEFORE V.S. L4GE, Q., BISTRIC MACISTRATE PILISA SABAI .. • • • •, • • • . .: • • • • APPELLANT Versus TJih'. .RH'FUBLIC • • • • 0' • • . . . .• . .. . RESPONDiT CHARGE: I1ia1 IViarketing of maize c/s '7 and 13 of 1962 O. 486 of N,aticnal' Agricultural Prod icts .Bothd:, Gériera1 Noticè s Nc. III and 11.39. of Government Notice •328 of 1968. . JJDGM.JNT KATITI, AG. J. The ape1lant Musa 8/0 Sabahi, was lound guilty bj the District Courb Mugumi, of the offeflce of Illegal Piarketingof 'Maize.'c/s 7' and 13, G.N. 111, 1139 Governernent Notice 328 of 1968a The apiellantas Wit'hut'conviction sentehced to a fine of 20Q/ or 3. months imprisonment. The ape1iant aggrieved has appealepi, this Court, ... The roünc1' of appeal have been accorded the epproapiate,rCspects and scruiny. The Couioe1 for the Republic Mrs. Matovu, dec1ined to support conviction, which was neer reached any way, for reasons that will here under be obvious.: To appreciate this Oase, the scanty facts available are that cn.infoz'rnation..rceived, Police Officers— P.W.1 DtisOn Lymo, P.W.2 Mrisho and P.W43.1oth, bumped i.ntc tha apoellant, aid sought t arch the shop. According ta the evidnce, they'went to the'shop

whefe the' ippe11ant sold them a bagcf maize at 50/=.' TliCse"wi -tnesses, told tCà'ii'r, that the appellCn -t as buying and selling maize without licence. The a 1 pcllant on tho other hand. defended himsoif, denying any o'le of mié to the witnesses. He t1d. the Court that although ho had maize, that 'was his food. He was hpwevr aiested, his five Lags ceased, and taken 'to the Police Station, The trial Maistrte finding him guilty,' aiid seeing h 'need to procoed tc conviction he cncluLoo. thus "The Court whiie simrning up thist case there are two point (a)' Accuseh has 5 bags and. tin at the shop. • (b) They asked him that they wanted 'to- by ' • maize, and he sold bag Shs. 50/. 5 'in this view I. am convicted the' accused j. '.. guilty as charged." I feel some moral in—hibitions to castigate, the trial magistrate in the way he dealt with this case. It appears that lie did not appreciate the nature of the charge, and the form it should take, and it appears, with due respects ) that he did not know what the prosecution was supposed to prove, and it followed that the ciuestion of burden of proof was of no material consequence, just as it was to. him, unnecQssary to convict. Force to partioülarise, I cannot make the escape from the fact, that charge idefect.ve one, while'he eectirCns cited exist in the relevant Ordinance Cap. 486 - Agricul5tural Products (Control and Marketing ),

and while Government •to,ticN.. 328 of 1968 i.e. the National Agricultural Product Board (Contri of Marketin.) Order 1968 1 was made thereunder, the general Notices No. III and 1139 also charged do'nct seem to exist, or, to be relevant to the case in point. Further more, the Order in the above Government Order, was not made under section 7, as the charge seems to suggest, but under section 6 of the Ordinance. The above Order is made under section 6 vide, which the Beard etab1ished under the Ordinance, can Lawftlly issue orders, and ctiroctiono, pertaining to the production and marketing f arioultural products sjocifiez in the order. 0• - 2 - In other ic;rds section 6, as on enabling section, giving the relevant Minister, power to make subs itiary legislation in the interest of proper production and marketingof agricultural orcd.ucts. For the appropriate charge therefore, the charge should unbody the section under ihich the relevant suh1diary logislotion i made, the rule r para of subsidiary legislation. broached, signified by the relevant Government hotice, and the offëñOendunishmoht sections or rules. Of course there is some concessicii tc be mode that in frm and sot up. It sOmetimes happens, thdt 'th6 scoti- , hL,, in the pa±ent stature, are ouch that the. offence,.aa.ounisthnont section is one, for instance where the section stipulates that over contravenes the provisions of

this ordinance or r'provisicns made uncr it, shall be guilty of an offence and shall beliable on conviction to a fine not exceeing 11 ... . or to imprisonment for a term act exoeoding ..... or to both such fine and such imprisonment. In this..eve-nt as earlier,. ociatod. cdt, the ohage should. contain the delrtin 300tion , tao rule tcalotion ' r order I th utidiary lé&.slation br eached.' ollowed by., the, offcnce..and: punishment sootion-t- But where the subsidiary legislation provides, for 'both for the offence nad punishment, the chcge should only contain the delegating section, the breached rule or reguiatio'ri.L. -f the legislation made under it, followed by the offence and punishment rule or order, providc, .by..thes.aid.... subsidiary legislation. It is theru:h:rc improper to apply the parent statute puni3hment seotin WL1Lfl L c subsidiary legielotion is self cc'nt ed and pr(..vides'fcr..offence e4nd punishment. : The,l,gic of it may be1, that at, the pun1hme L)zavled by b th statute and subid12ry legieJatiL.n my vary, and as subii try leiblt n is subseguent to the parL statute, and meant for certain eventualities 'and ,ciroumat.nces, and the 'aunishment it provides may be more commensurate with the times, and occasions, for which it is: rieant, than the punishing section in the pai'et stdtue usually difiernt circumstances Ccmin tack 'to tie fold f tr coc, n + only was

the haeL section wi n, out Iso since the Orcer (G.N 328) provided fr punihment, it was irnprc icr to a chare the ± nishment section of the ± arent stuiute. In the liit I shot nas been si , the char g e an ulci. have ceen - "Illegal Marketj.n5 I Sceifi.ct Aricu1ur,,.l Produce c/s 6, pra (2) and (4) 1 the Nation -il Agricultural Prcucts B cO Oraer G.N.328 of the Naticral Agricultural Products (Coiitr 1 and IrKetin)Ordinance Cap.

486. The question whether or nit this is oiable is bvi)isly a must. Ccnsid.ciing the defects in the charged., ana Oe]fl the apeliant's defence. in mind, it is as c±ar as ucy, that the ±pellant as Sc prejudiced that it would be a i'niscbrriage of justice tc. uphold the conviction: that in fot.; never was. This is vindicated by the fact that, not only was the trial Magistrate, not sure '.1 the nature of the charge, but also the appellant did not know exactly the charge ho was facing. To him he. was being prosecuted. for. trad.ing:'wthout licence. . In this event it is net easy to avoid the co1usion that he ras prejudiced. Thu.s the totality of the above is that Qbrpi,ictio pnnat atond. The appeal is therefore allowed, conviction quashed. and sentence set asic3e." sine if paid to be refunded.