19780519 TZHC Mbeya

I !: 40 A]IPEILATM ;UithUiOTJ(Jl HIGH COURT CRIMIWcL AA;PlbcL NO. 61 OF 1978 ORIGINAL CRIMINAL CASR NO 134 OF 1978 OF THE DISThICT COURT OF NDEYA DISTRICT AT MI31Yic BRE E.P. MTUI ESQ..DISThICT MaGISTRATE S]IdMSHI PUNJA . .... . APPELLANT ver sue TILCREPUI3LIC RESPONDENT CitiRGE- ist c/ss 22(a) IyVinn L.' (U.p1Fi.y pc.iees and 26 of Regulation of price control Act No 19 of 1973 2nd count- Selling euiiLrollecl goods above the maxinun price fixed. o/s 20 and 26 of the Regulation of Price nonLo1 Act I009 of 1 973 JUDCMJiNT MWAIctBETE J. Before Mbeya Distriet Ocuri; rho appellant was charged with and convicted of two counts naeioiy failure to display maximum prices o/ss 22(a) and 26 of the Regalatioii of Prices Act 1973 and selling controlled goods above the naximurs price c/ss. 20 and 26 of the said Act (1973). He was fined sic,1,0001= or 6 months iioprisonment in default in count one and sentenced to 9 months imprisonment in the count of overcharging He Las appealed against both the conviction and sentencel in either case The rarticulars of count one alleged as follows and I Quoten- uTha t the person charged on 31 clay of March, 1978 at about 1230 houis Market Street within township of Mbe1a District and Region of Mbeya being a shopkeeper dealing with the selling of different controlled and uncontrolled goods, did fail to display the maximum and charges as imposed by the crolleof

prices." Section 22(a) under which the charge was laid stipulates as followod _--'-- - -* .. ----------------- I i - ------ equLrenents in':regard to the display of maximun prices and charges, imposed by section 17 shall, unless he has been exempted from compliance with such obligation, be guilty of an offence." And section 17 to which reference is made by section 22(a) provictes as follows: "17 - ( 1) The Price Commissioner may, by order published in the Gazette, require any trader or other person or any class of traders or persons supplying price-controlled goods or rendering price-controlled services to display, in such language or languages as may be specified in the order, in a prominent manner and in a conspicuous nosition so that. it may be easily read and is clearly legible to customers in those parts of his or their business promises whore business is done, a list of the current maximum prices and maximum hire charges for such price-controlled goods as are mentioned in the order which he or they may supply 9 or the maximum service charges for such price-controlled services, as are specified in the order, which he or they may render. (2) An order under this section may apply to Tanganyika as a whole or to any area or areas thereof and may provide for the form in which any such list of maximum prices or maximum hire charges or maximon s(,rvice charges which it requires

to be displayed shall be arranged." Section 17 clearly speaks of the requirement. to display Ust o1 maxirrem prices in relation to controlled goods. It is not understood therefore why the particulars of the offence purported to include the allegation of failure to display maximum prices in relation to non-controlled goods as well. The anomaly in the charge was, however, found by the trial magistrate to be curable under section 346 of the Criminal Procedure Code. He observed that the charge ought to have stated that the by offence that was projectedfthe particulars was created by section 30 of the Act (19/73). I note here that on appeal, Mr. M.JANKA - State Attorney - was arguing that section 30 ought not to have replaced section 17 but that i& should simply have been added to the statement of the offence. And for that matter section 30 reads as follows:- "30-(1) The Price Commissioner may, with the consent of the Minister, and by order in the Gazette, require all or any category of traders dealing or authorized by their business licence to deal in any price-controlled goods to display, in such order, prices of all or any class of goods (whether or not price-controlled) sold or exposed for sale by such traders. (2) Any person to whom any order made under this section applies and who fails to comply with any requirement of such order shall be guilty of an offence0t' es, Be what

as it may. -the--question is was there evidence in-support of the- charge .as---anended. by the -trial. court -cr the learned State Attorney on appeal? With 3Teat respect to both the trial mastrate and State Attorney I am unable to see any on record. On count one this is what the price inspector - one LIKWILE - from the Regional Commercial Office had to say: "Sone items inside the accused shop had no price tags. There were other tins of yeast but none bore any price lables as required by law." Then in cross-examination he said as follows: "The law requires oery shop keeper to display prices of.00ntrolled items. If the items are in the cupboard it is lawful to indicate the price on the cupboard instead of using tags. The accused had labelled some goods inside the shop by using paper tags." He finally deposed as follows in re-examination: "The tin of yeast had no price label. There was nothing 1.I1- price indication where other tins ware disDlayod. The accused never claimed to have labelled them." To my indes±.andiug, the evidence of the price inspector rd n.+.ci !o 'price labelling or marking of goods sold - in terms of section 7(5) of the Reeulation of Prices Ac-L Section 27(5) is couched in the following terms: Price Commissioner, any Assistant Price Commissioner, or any person authorised in that behalf by writing by either the Commissioner or an Assistant Commissioner shall

have the power - to order in respect of any price-controlled goods, or any goods in relation to which an order has been made under section 30, that, when exposed or offered for sale or hire, they shall boar such markor label as may be specified, in the order for the purpose of indicating their quality, grade, price or place of origin; by order in the Gazette, to prescribe the place in which any price controlled goods may be stored". 'Display of lisSof prices' is a totally different concept from that of price labelling or marking 0 As already seen 'dis?lay of lists d± prices', is dealt with under sections 17, 22(a) and 30. What was produced in,court as exhibit P3 by the prosecution were books of Y'4X LWUY lists ofAprices of price controled items. They were not price -. lables or tags as such as Qn*?saq44 in section 27(5) of the Act. I am fortified in this 'iew 1y the wording of sectior16, 17 and- 30 on the one hand and that of section 27(5) on the other n including., S • S • • /4 • Goirexn+-NO-tjcellD.. 125/76 which, w'madunder section 30(1) and Government Notice No.126/76 which was made under section 27(5). The evidence of the other prosecution witnesses like that of the Price Inspectwho sought to establish the alleged non—compliance with sections 17, 22(a) and 30 simply talked of a different thing altogether. All talked about marking or labelling of prices on goods on shelves,

offered by sale. The notes made by the trial magistrate at the locus in quo also related to marks or labels on the goods displayed for sale. The charge was not one of failure to label or mark goods offered for sale but one offailure to display a list of current maximum prices The two are two distinct offencos with different elements to be prov'ed. In the absence of an authbrity to substitute a conviction of the one proved for the other I find myself left with no other alternative but to allow the appeal and quash both the conviction and sentence in respect of count one. The fine paid on count one is to be refunded to the appellant. Order accordinglyZ I now turn to count two. This related to overcharging. It was the lrosectuion case that appellant sold a tin of yea8t, 21 kilos 9 Fench made to P.W.i at shs.100/= instead of shs.67/75 which is the official maximum price for the commodity. Sc going by the prosecution case appellant ovcrcharged by shs.33/ 2 5. Appellant denied having overcharged P.M. He claimed to have given him a change of the amount he is aileuclto have ovcbargdd i.e. shs.33/ 2 5. There was no dispute that the 100,1= note whose number was said to have been recorded by the prosectulon witnesses, bofoe P.W.1 gave it to the appellant for the tin of yeast, was the one actually fourJ on the person of the appellant. There was also no dispute - in fact it was fully

established - that the current maximum price for the tin, of 3roast sold was shs.67/75. The only question therefore is, didnt t appellant give back the change as claimed? After a thorough study of the record and upon hearing the two counsel who argued the appeal I am satisfied this was a case of a trap - by the police working inconjunctionwith the Regional Commercial Office - after receiving a complaint from P.W.J. For, otherewise, I cannot see how the act of recording the number of ioo/= note'befcre handing it to appellant could be explained away. On the evidence, it is irresistible that P.W,1 did in fact ccmplain to P.W.3 and the Police about appellant - overcharging. The recording of the note must have been clone at the time and under the cir'oumtances explained by the prosecutioi. It could not have been done after or /5 - th±ng-tho-saleansactioa, because in the former case there was - nothing to record - the note having been handed to appellant - while in the latter appellant would most probably have noticed the act of recording. It does not stike me that the Police and the Price Controller could have conspired with P,W.1 to frame appellant after the event - that is after the sale having 'akon place. I accept the story of P O W.2 and 3 that they were signalled into theshop immediately N. 1 appered at the door with .the tin.' of yeast. I accept also the version of Aq same

witnesses that PW,1, like appellant, was searched inside the shop wheh 12/= only was found on P,W,l's person. Accordingly I see no opportunity f6k P,W.1 to have disposed of the othr amount alleged to have been givento him as change. Like the trial nags-Lrate I hold that appellant lied on the question of change. He lied also on the point that P,W.1 went away after the sale transction and returned with the Police after 20 - 25 minutes, It was a question of credibility and the trial magistrate who saw and hoard them all testify was satisfied P.I.2 and 3 told the truth. On the facts his finding cannot be impugned. Appellant never gave a change to P.M. Of course, there were SOnG anomalies in the evidence of P.W.4 - as. whore for instance he was imable to say from whore appellant removed the tin when he handed it to P,W.1, and his inability to observe c1oselr where appellant kept the note in question after P.W,1 handed it to him in exchange with the tin of yeast. In my view, however, the anomalies were not falsehoods but merely evidence of the Police Officer not being reasonably diligent in the performance of his assignments. For the reasons I have endeavoured to demonstrate I am satisfied appellant was properly convicted on count two. Accordingly I would dismiss the apTieal agninstconviction on that count. As for sentenc' I had the occasion to comment, in my ruling on

the.applicatiofor bail pending appeal, on a number of misdirecti3ns which apparently influenced the mind of the trial magistrate when he imposed a prison sentence of 9 months. I did remark that the sentence was not warraued by the circumstances of the case. It is-my.intention to elaborate this ohscrvation. Under the Rogulation of Prices Act there are two categories of offences. There are those which are ccnpoundahle and those which are not. Compoundable offences are dealt with under Part VI of the Act. And section 33 defines what compouidable offence moans, For the purposes of this case it means that ovechargj±jg which jr ivolvos not more than fifty shillings. So that by this definition appellantt s crime was one that belonged to the catego:cy of compoundable offences - pure and simple. . . . I 0 0 & a -. According-to the Act the Price Commissioner - in this case the Assistant Price Commissioner (R.D.D. or D O D.D.) - could cor.pound appellant's wrong—doing by requiring him to make a payment of money, the sum of which is not less than shs.1001= (one hundred) but not more than shs.2,000/= (two thousand). The fact that the R.D.D. or D.D.D. did not compound appellant's wrong—doing, in my view, in no way removed the offence from the category of compoundable offences. It may be argued that compounding under the Act implies adriision of the offence on the part of the perpetrator - in

this case the appellant - and that failure to admit the offence or to plead guilty to the charge , the appellant agr gavated the situation - hence a sentence which is patently more severe or stiffer than that, which would otherwise have been imposed. Yet on the authority of MUTIGI v R (1922) R-1 260 no increase in sentence may be made because the accused has pleaded not guilty. This is:..h±the 'Ioaned Judges (Siapson Mull) had to say in their .judent with which I am in full agreèment "While it is perfectly proper and indeed desirable to impose a lesser sentence than that which would otherwise he imposed on' the ground that the accused pleaded guilty it is quite wrong to impose a sentence higher than that which 'iould otherwiso have // been iLiposedon the ground that the accused f had wasted the court's time." Having observed, thus their Lordships proceeded to reice the sentence irposed by the lower court. I note fThally that the prosecutor had asked the trial court to impose an exámplary sentence because allegedly everyday people went to the Police to complain about goods being sold above maximum prices. I do not read the prosecutor!s remarks as amounting to a pJ.eafor a sentence which is incompatible' with the letter and spirit of the Regulation of Prices Act. A sentence of fine within the rmge of ioo/= and 2,000/= was in my view capable of being exemplary in the circumstances

of this case - although the prosecutors remarks are questionable. For the court returns of cases filed and/or docide: in lower courts - which roach the high Court monthly show negligible number of cases of overcharging. I am not persuaded either that cases of overcharging are difficult to detectl It is my considered opic;n a. based on the above observations and the ones canvassed in my ulj.? on the application for bail pending appeal - that the docisi to impose imprisonment in count two was without good fo'nd:4ict. According1 I woülth alter the setnence of 9 'months imprLsou4'ent to one of shs.1,500/= fine or distress in default. The rdoi of the lower court as to the amount vercheed is o stai & un isturhed. I so order. -7., Delivered in court at Mbeya this dy of May, 1978 . M. J. I1WMBETE JTJDC-E IN TIlE PRESENCE OF:- TUXtJNJOlEi for the appellant and H4MMXA for. the Republic.