Court name
High Court of Tanzania

Republic vs Elirehema Nicolaus & Another () [1986] TZHC 24 (01 October 1986);

Law report citations
1986 TLR 130 (TZHC)
Media neutral citation
[1986] TZHC 24
Lugakingira, J.

Lugakingira, J.: The accused persons, Elirehema Nicolaus and Mwajuma Waziri, were licencee and barmaid respectively of Meru Bar in Kongwa.  At 3.30 p.m. on 12/12/82, a Sunday, the police arrived at the bar which they  B found open and five customers were consuming beer therein.  The accused, who were in attendance, were arrested and charged with allowing the consumption of intoxicating liquor on licenced premises after authorised hours c/ss 14(2), (3)  C and 91 of the Intoxicating liquors Act, 1968.  Upon conviction they were fined Shs. 500/= each.  The proceeding attracted the attention of my brother Maina, J. who admitted it to revision and minuted:
   The second accused was a barmaid.  In view of section 14 (3) of the Intoxicating Liquors Act, was the second accused's conviction D sound?
  E I will shortly come to this matter. Presently, another and equally important matter comes to mind.  Where exactly is Meru Bar?
The above question is a fundamental one considering that the law relating to drinking hours makes a deliberate distinction between urban and rural areas.  In urban areas the holder of a retailer's on-licence may supply liquor for consumption on  F or off the premises from 6 pm to 11 pm on Mondays to Fridays and from 11 am to 2 pm and 6 pm to 12 midnight on Saturdays, Sundays and public holidays.  In rural areas the corresponding hours are from 3 pm to 8 pm on Mondays to Fridays and from 2 pm to 11 pm on Saturdays, Sundays and public holidays.  There is a considerable uncertainty in this  G case as to the location of Meru Bar.  As per the charge sheet the alleged offence was committed "at Meru Bar Ugogoni area within the sub-district of Kongwa, Mpwapwa district in Dodoma Region"  In the evidence of PW 1 the place is given as "Ugogoni in Kongwa area" and in the evidence of PW 2, the only other witness in the case, it is  H "Ugogoni area Kongwa".  In his judgment the trial magistrate refers to the place simply as "Ugogoni area".
It is evident that neither of the above descriptions or a combination of them places the bar anywhere with that distinctness  I so crucial in a case of this kind.  I perused the relevant Government

  A Notices which appeared in 1968, 1970 and 1972 lists among others a place called "Kongwa" (perhaps for Kongwa) and it may well be that Ugogoni is in Kongwa urban area.  If that be the case then the charge sheet and the evidence, at least the former, should have distinctly named Kongwa urban area as opposed to the very vague expressions to which I   B have referred.  It is common knowledge that many of our towns and other urban centres bear the same names as the districts in which they are situated.  And to talk of Ugogoni in what is Gogoland is definitely to compound the mystery.  It is therefore important in a case like the present to be specific about the area of crime.  The trial magistrate and the public  C prosecutor probably knew the place in question, but it is different with me and I cannot in law assume facts where the statute labours to make a distinction.  It is thus uncertain where Meru Bar is.  If it is in an urban area, an offence was   D committed; if it is in a rural area, no offence was committed having regard to the operating hours stated above.  In short, the evidence was insufficient to found the convictions.
The foregoing suffice to dispose of the case but I feel duty bound to deal with the question raised by the admitting judge.  E To recapitulate it is whether the second accused, a barmaid, was rightly convicted under s. 14 (3).  The subsection states:
   (3)   Any licencee who contravenes or permits a contravention of this section shall be guilty of an offence.
  F There can be no doubt that this provision is intended for and directed against licencees as opposed to servants like a barmaid.  Mr. Lyimo, learned Senior State Attorney, drew my attention to the provisions of s. 14 (2), in particular to the clause "nor shall any intoxicating liquor, whenever or wherever obtained, be consumed on such part of the premises as  G aforesaid", and argued that the second accused was equally guilty and punishable under s. 91 as she was found buying and even admitted consuming beer after authorised hours.  In Mr. Lyimo's view s. 14 (2) prohibits even the very act of drinking.  I was at first inclined to agree with him but after reflection I have felt constrained to differ.  If Mr. Lyimo's  H argument is pursued to its logical conclusion it would mean that even customers would be guilty of an offence.  It would also mean that any person would be guilty of an offence if, coming along with his beer, he broke into a bar after  I authorised hours, settled there and consumed the beer.  But that cannot be correct for the act as a whole does not seek to

  A prohibit the consumption of alcohol at any time, and to attempt to do so would be a stupendous task indeed; what it seeks to do is to regulate the hours when consumption may be permitted on licenced premises.  Hence s. 14 (2) first requires the premises to be closed to the public at all times other than those which are authorised.  Secondly, it stipulates that no person other than the licencee, his family or servants shall be allowed to remain on or be permitted to the premises  B after authorised hours.  The operative words are "close", "allow" and 'permit" read in their proper grammatical context.  When, therefore, the subsection is read as one whole, it is clear to me that the phrase "nor shall intoxicating   C liquor ... be consumed" means that consumption shall not be allowed on the premises.  Prohibition is so fundamental an issue that the legislature could not in its wisdom have tucked it away in the body of a subsection which is addressed to the licencee and I am unable to read any prohibition therein. D
In my opinion, therefore, the guilt of the second accused was constituted not by her own consumption of alcohol as such but being a servant at the bar, by permitting consumption to take place.  There were five customers in the bar when the police arrived and she even took an order in their very presence.  But as earlier stated s.14 (3) does not create an  E offence as regards servants: it does so as regards licencees only.  A proper charge against a servant should cite s. 90(1) apart from ss. 14 (2) and 91.  It is under s. 90 (1) that it is an offence for a servant to do that which would be an offence if done by the licencee.  The provision was not cited in this case but there can be no doubt that the second accused  F understood the charge and was not embarrassed in her defence; but having regard to what has already transpired it is neither necessary nor desirable to decide whether the omission was fatal or curable.
For the reasons first above stated I quash the convictions, set aside the sentences and order that the accused persons be  G refunded the fines.
Conviction quashed H