Attorney General v Mwakalinga (Criminal Appeal No. 157 of 1946) [1946] EACA 43 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), $\cdot$ and BARTLEY, J. (Kenya)

THE ATTORNEY GENERAL, Appellant (Original Complainant) $\mathbf{1}$

# GODWIN MWAKALINGA, Respondent (Original Accused)

### Criminal Appeal No. 157 of 1946

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Procedure—Case stated by Subordinate Court for decision of High<br>Court—Appeal from decision of High Court—Question of law raised on

appeal not submitted for decision by High Court.

A police constable arrested a woman for an act which was not an offence and which he knew was not an offence and accepted Sh. 10 from her in consideration of his releasing her.

The police constable was charged with official corruption contra S. 88 (1) P. C. but was acquitted, the learned Magistrate holding that in the circumstances the arrest could not be said to have been made "in the discharge of the duties of his office".

The Crown appealed by way of case stated from the learned Magistrate's decision and the High Court dismissed the appeal. The Crown further appealed to the Court of Appeal for Eastern Africa and sought to raise a question of law which had not been submitted to the High Court for its decision.

Held (20-8-46).—That since the question of law which the Court of Appeal was asked to decide had not been submitted to the High Court for its decision it could not be raised in the appeal.

Appeal dismissed.

#### Phillips, Crown Counsel (Kenya), for the Appellant.

#### Inamdar for the respondent.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is an appeal from a decision of the High Court on a case stated by the learned Resident Magistrate, Tanga, who held that a native constable who had arrested a person for an act which was not an offence and which he knew was not an offence and had accepted the sum of ten shillings from the person so arrested in consideration for his releasing her could not be convicted of the offence of official corruption contra section 88 (1) of the Penal Code (now section 91 of the 1945 Penal Code), which provides: -

Any person who-

(1) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly solicits, receives or obtains, or agrees or attempts to receive or obtain. any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office;

is guilty of a misdemeanour and is liable to imprisonment for three years.

It was held by the Magistrate that in the circumstances the arrest could not be said to have been made "in the discharge of the duties of his office". We understood from learned Crown Counsel that it is not now questioned that the constable in making the arrest did so for his own wicked ends and could not be held to have been acting "in the discharge of the duties of his office"-in. other words, that his act amounted to an abuse of office, a criminal offence punishable under section 96 P. C. But it is submitted, and for the first time, that having regard to the provisions of section 31 of the Criminal Procedure Code the constable once having made the wrongful arrest, was bound to hold the person and take her to the police station. This question of law involves an interpretation of section 31. That section provides:-

"A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a magistrate having jurisdiction in the case or before an officer in charge of a police station."

The proposition submitted is a somewhat curious one for it implies that the constable having deliberately committed a wrongful act for which he was liable to be convicted was nevertheless bound to go through with it thus aggravating his abuse of office. While we must not be taken as subscribing to this submission we consider the proper course to follow is to dismiss this appeal on the ground that the question of law which we are asked to decide was not submitted to the High Court for its decision. Our following this course leaves it open to the learned Attorney General to have the question submitted to the High Court for decision if and when a suitable case arises.'