Sabino s/o Ngole v. R. Crim. App. 215-D-71; 11-8-71; Mwakasendo Ag. J.

 

Sabino s/o Ngole v. R. Crim. App. 215-D-71; 11-8-71; Mwakasendo Ag. J.

The appellant was convicted on two counts of (a) Selling intoxicating liquor at unauthorized hour’s c/ss 12 and 91 of the Intoxicating Liquors Act 1968 and (b) allowing people to consume intoxicating liquor on the premises of off-licence store c/ss 11 and 91 of the same Act. The appellant’s off-licence store was visited by the police after the authorized hours when they found three persons drinking beer. During the trial one of the prosecution witnesses gave evidence which was at variance with a statement she had given to the police and the prosecution obtained leave to treat her as a hostile witness. In his judgment the Magistrate considered he restatement to the police as part of the prosecution’ a case worthy of belief. The defence was that the persons drinking on the premises were the owner’s relatives.

            Held: (1) “The statement of offence in both counts does not appear to disclose any offence known to law. However on examination of the charge sheet I am fully satisfied that the particulars of offence sent out in both counts were expressed in such explicitly terms as to leave the appellant in no doubt as to what offence he had to answer. I am thus of the view that no failure of justice was accessioned b the errors in the charge sheet.” (2) “The law, as is apprehend it, makes it an offence for any licensee to allow any person after authorized hours, whether a member of the family or not, to consume intoxicating liquor in the room in which the beer is sold. While sub-section (2) of section 14 permits members of the family and servants to remain on the premises of a retailer’s on-licence store during normal authorized hours of business, there is no corresponding permission in respect of the members of the family

and servants of an off-licence store owner.” (3) “The second ground of appeal is that since the police officers did not witness a sale in the strict sense of the word no offence was committed……… Section 92 makes it unnecessary for the prosecution to prove that any money actually passed. It is sufficient that in the opinion of the Court the evidence adduced shows that a transaction in the nature of a sale actually took place. Further, under sub-section (2) of sec. 92 once the prosecution have established evidence that some person or persons other than the occupier or a servant employed on the premises, consumed or were intending to consume intoxicating liquor on the licenses premises, that would be prima facie evident that the liquor was sold by the licensee to the person.” (4) “It is a trite principle of law that where a witness gives evidence of facts quite contradictory to a statement he/she is alleged to have made to the police and an application made to treat the witness as hostile has been granted by the Court, the evidence of such witness including the statement made to the police is completely valueless and not worthy to be taken into consideration in the case ……….. I am however satisfied that having regard to the rest of the evidence accepted by the Magistrate, the Magistrate would have reached the same conclusion even if he had not misdirected himself with regard to the effect of [the hostile witness’s] evidence. Accordingly the misdirection has occasioned no miscarriage of justice” (5) Appeal dismissed.