Awlaki v Rex (Criminal Appeal No. 116 of 1949) [1949] EACA 48 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## NASIR AHMED AWLAKI, Appellant (Original Accused)

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## REX, Respondent (Original Prosecutor) Criminal Appeal No. 116 of 1949

(Appeal from decision of H. M. Supreme Court of Aden-NUNN, Ag. J.)

Jurisdiction-Supreme Court-Aden Protectorate Order, 1937-Foreign Jurisdic-

tion Act, 1890—Aden Protectorate Application of Laws Order, 1942-Colonial Criminal Courts Ordinance, 1937-Order of Governor General in Council, 1907.

The appellant was convicted of murder by a Judge of the Supreme Court sitting without a jury or assessors at Awabil, in the Aden Protectorate.

It was contended that the trial was void in the absence of any provision in the Supreme Court Ordinance or any other law enabling the trial to be held outside Aden Colony.

Held (25-10-49).—(1) The power of the Supreme Court, created by the Colonial Supreme Court Ordinance, 1937, to exercise jurisdiction in the Protectorate, is derived from the Aden Protectorate Order, 1937, made under the Foreign Jurisdiction Act, 1890.

(2) Article 7 of the order empowers the Governor to apply to persons in the Protectorate in whole or in part any law which is in force in the Colony. Article 9 of the<br>order enacts that the Supreme Court of the Colony shall have jurisdiction in all matters arising in the Protectorate .... to the same extent as if such matters had arisen in $\tilde{\tau}_{\rm c} \propto$ the Colony.

(3) By the Aden Protectorate Application of Laws Ordinance, 1942, the Governor $\epsilon$ . applied to the Protectorate subject to certain modifications the Colonial Criminal Courts $\epsilon_{\pm 1}$ Ordinance, 1937, which Ordinance regulates the Procedure of the Supreme Court when $\mathbb{Z}_{+}.$ exercising criminal jurisdiction in the Protectorate.

(4) Sections 164-173 of the Criminal Courts Ordinance lay down certain rules and exceptions to the venue of the trial but as none of these exceptions refer to the Supreme Court, the general rule that offences shall ordinarily be tried where committed, applies, and the Supreme Court when sitting as a Court for the Protectorate may try such cases in the Protectorate.

(5) Legislature Order No. 1 of 1942 and the Change of Titles Ordinance, 1944, enables the Judge of the Supreme Court to dispense with jury or assessors.

(6) The Indian Penal Code and Criminal Procedure Code were applied to the Protectorate by the Governor General's Order in Council of 1907.

Appellant absent, unrepresented.

$\overline{a}$

Bechgaard, Attorney-General (Aden), for the Respondent.

JUDGMENT (delivered by Sir John Gray, C. J.).—The appellant has been convicted of murder by the Judge of the Supreme Court of the Colony of Aden sitting without jury or assessors at Awabil, Shaibi State, in the Western Aden Protectorate, and has been sentenced to death.

The Memorandum of Appeal seeks to raise a number of questions of law as well as of fact.

It is in the first place contended that "the proceedings on the trial of the case and the conviction and sentence passed are void in the absence of any provision in the Supreme Court Ordinance, 1937, or any other law that the hearing of this case could be held outside the Colony of Aden. There is no provision in any of the laws in force in the Colony of Aden that the Supreme Court can hold sessions in the Protectorate by stating grounds for so doing as was done in the present case".

The fallacy in this argument rests in the assumption that the laws of the Colony (including the Supreme Court Ordinance) necessarily apply in the Protectorate of Aden. The power of His Majesty or the duly delegated authority of His Majesty to make laws and establish courts in the Colony of Aden is derived from the British Settlement Acts, 1887 and 1945 (cf. Indian Independence Act, 1947, S.16), whereas his power to do the like acts in respect of the Protectorate is derived from the Foreign Jurisdiction Act, 1890, and Orders in Council issued thereunder. The authorities for the enactment of the Supreme Court Ordinance, 1937, which as its text shows, deals solely with a Court exercising jurisdiction in the Colony, are the British Settlement Acts, 1887 and 1945, but no corresponding legislation has been passed by Order in Council under the Foreign Jurisdiction Act, 1890, applying that Ordinance, either wholly or in part, to the Protectorate.

The power of the Court, which is created and given its title by the Colonial Supreme Court Ordinance, 1937, to exercise jurisdiction in the Protectorate is derived from the Aden Protectorate Order, 1937, which was made under the Foreign Jurisdiction Act, 1890. Article 9 of that Order enacts that:-

"The Supreme Court of the Colony and all Courts of the Colony inferior to the Supreme Court shall, subject to and in accordance with the provisions of any law in that behalf from time to time in force in the Colony, have jurisdiction in all matters arising in the Protectorate in which any person, to which this Order applies, is concerned, in the same manner and to the same extent as if such matters had arisen in the Colony."

As Article 3 of the Order shows, a native of the Protectorate in the service of the Crown is "a person to whom this Order applies". In the present case the appellant is a Government Guard in the service of the Crown and the Supreme Court therefore had jurisdiction over him personally.

The word "jurisdiction" is defined by section 16 of the Foreign Jurisdiction Act as including power and by reason of section 31 of the Interpretation Act. 1889, this meaning must, unless the context otherwise requires, to be given to the word in Article 9 of the Order of 1937.

Article 7 of the Order of 1937 makes provision for the continuance of existing laws having the force of law in the Protectorate and also empowers the Governor to make rules and orders to be applied in the Protectorate. This latter power includes the power to apply to persons in the Protectorate "in whole or in part, with such modifications (if any) as to him may seem necessary or expedient" any law which is in force in the Colony.

In exercise of this legislative power the Governor has by the Aden Protectorate Application of Laws Order, 1942 (Legislative Order No. 1 of 1942) applied to the Protectorate the Colonial Criminal Courts Ordinance, 1937, subject to certain modifications, which will be referred to later. This Ordinance, as so modified, is the law which regulates the procedure of the Supreme Court when exercising its jurisdiction in a criminal matter arising in the Protectorate.

Legislative Order No. 1 of 1942 amended an earlier Order made by the Governor General of India in Council, 1907, which had applied inter alia the Indian Penal Code and the Indian Code of Criminal Procedure to the Protectorate. Article 2 of this Order of 1907 is still in force and provides that "for the purpose of facilitating the application of the said enactments to the Aden Protectorate, any Court for the Aden Protectorate may construe any such provision in any such enactment with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the Court".

Turning to the Criminal Courts Ordinance, we find that section 164 enacts that "every offence shall ordinarily be inquired into or tried by a Court within the local limits of whose jurisdiction it was committed". It is to be observed that this section lays down the general rule. Sections 165 to 173 enact certain exceptions: to this general rule, and it is to be noted that none of them expressly refers to the Supreme Court and none of them ousts the general rule laid down in section. 164. They merely enact that in certain cases the offence may be tried in one or other of two or more places, including the place where the offence was committed.

Reference should be made to section 172 of the Ordinance, which enacts. that "when section 9 of the Aden Protectorate Order, 1937, confers on any Magistrate jurisdiction in matters arising in the Protectorate of Aden, such jurisdiction may, with the previous sanction of the Governor, be exercised in the same manner as if the offence charged had been committed at any place where that person may be found".

It is to be noted that the section is silent regarding the Supreme Court. It is also to be noted that it makes provision for an accused person to be tried at some place other than the place where the offence was committed. Section 173 makes provision for the production before a Court exercising its powers under section 172 of "copies of depositions made or exhibits produced before a political" or judicial officer in or for the Protectorate". The intention therefore of section 172 is inter alia to provide in the case of a Colonial Magistrate's Court, when sitting as a Court for the Protectorate, an exception to the general rule, which is laid down in section 164 and which requires that an offence committed in the Protectorate shall be tried in the Protectorate, by allowing such Court as an alternative in certain circumstances to try such offence in the Colony. Without this enabling provision in section 172, a Magistrate's Court would in many cases. have no alternative but to observe the general rule laid down in section 164 by trying the case in the Protectorate.

Therefore, construing the Criminal Courts Ordinance with the necessary alterations referred to in Article 2 of the Governor General of India's Order in Council of 1907, we are of the opinion that section 164 of that Ordinance, empowers the Supreme Court, when sitting as a Court for the Protectorate in a criminal matter arising in the Protectorate, to try such case in the Protectorate.

In disposing of this first ground of appeal we have incidentally disposed of the second ground of appeal, which is that "the Indian Penal Code is not applicable to Shaibi State where Awabil is situated". As already mentioned, the Governor General of India's Order in Council of 1907 has applied that Code to the Protectorate.

The third legal point raised in the Memorandum of Appeal alleges that the appellant was prejudiced by not being tried in the Colony, where such trial could have been by jury, and that "the learned Judge acted" on extraneous advice, which "is not shown in the record of the case as to the impracticability of holding: trial by jury and assessors".

The answer to this is to cite the modifications to the Criminal Courts Ordin-Tance, which Legislative Order No. 1 of 1942 sets out as applying to that Ordinance in its application to the Protectorate. They are: $-$

- "(i) The Supreme Court may take cognizance as a Court of original jurisdiction without the accused person being committed to it by a Magistrate and shall, when so taking cognizance of any offence, follow the procedure prescribed in the Ordinance, in the trial of warrant cases by Magistrates. - (ii) Subject to the provisions of Chapter XXI of the Ordinance, trials before the Supreme Court may, in the discretion of the Chief Justice, be without jury or the aid of assessors."

The Judge of the Supreme Court, who under the Change of Title Ordinance, 1944, has been substituted for the Chief Justice, is lawfully empowered to exercise his discretion as to the mode of trial of a Protectorate case and this Court ought not to interfere with a judicial discretion exercised in a lawful manner.

With regard to the facts in the case the evidence, which the learned trial Judge believed and was entitled to believe, is to the following effect. Like the accused, the deceased was a Government Guard and was issued as such with a rifle. Sometime before the deceased met with his death the accused arranged to sell a rifle "like his own rifle" to one Saleh Kassim Halmi. On the afternoon of the day on which the deceased must have been killed at about the time of Asr prayers the accused set out with the deceased, who is also a Government Guard, from the post at Awabil to a village called Sawad. They were met between those places by another Government Guard and a Tribal Guard, who asked them where they were going. They both said they were going to some coffee trees. Both witnesses said the deceased had a rifle with him at the time and one witness deposes that he and the accused continued on their way towards the coffee trees. The two next called at a house of a woman named Amina, who was asked by the accused whether she had finished curing a skin for him. Amina's brother, Tahir Mohamed. was present at the time. He says the deceased's companion had a rifle, which he himself asked to be allowed to use but was not allowed to do so.

Up to this point the accused does not dispute the evidence regarding his movements and those of the deceased. He alleges, however, that after leaving Amina's place he and the deceased both returned towards Awabil. Before they reached the Government Post, the deceased left him saying that he was going to the house of one Muthana Hussein. On the other hand, Tahir Mohamed, whom the learned Judge believed, deposed that the accused and the deceased continued on their way towards the hillside where the coffee trees were. A little later a shepherd, who was driving his flock to the village, saw two Government guards going up the path on the hillside in the direction in which Mohamed Tahir had seen them going. At a subsequent parade of two sections of the Government Guards at Awabil the shepherd identified the accused as being one of the two guards he met on that day. It is true he says both men had rifles, whilst all the other witnesses depose to only the deceased having a rifle, but this, like a number of other discrepancies which have been stressed in the Memorandum of Appeal, is a minor discrepancy, which in no way impeaches the credit of this or any other prosecution witness.

That evening the accused produced to the intending purchaser, Saleh Kassim Halmi. a rifle which "was like the rifles the Government Guards have". On his instructions the accused handed it over to a woman named Hayah, until such time as the purchase could be completed.

When the deceased was found to be missing, a search was made and early the following day his body was found on the hillside a little beyond the place where the shepherd had met him and the accused. His rifle was missing and his injuries pointed to the fact that he had been shot from behind in the back of the head at very close range.

When Saleh Kassim Halmi learnt that the deceased was missing, he instructed the witness Hayah to hide the rifle which the accused had produced to him for the purposes of sale. Hayah accordingly did so. Later she handed it over to an Assistant Political Officer, who, however, was not called as a witness, but the officer commanding the Government Guards deposes that the Political Officer brought a Government rifle to the post at Awabil. It then had the number 25 in brass on the stock and the officer in charge of the Guards deposes that it was the deceased's rifle.

A rifle was produced at the trial, but the learned trial Judge was not satisfied as to its identification with the rifle belonging to the deceased. But this does not alter the fact that the evidence goes to show that the rifle, which the deceased was seen to be carrying shortly before he was killed was the rifle which the appellant subsequently produced to Saleh Kassim Halmi and which the woman Hayah subsequently hid and later was handed over by her to the Assistant Political Officer and brought by him to the post at Awabil.

Except for his own denial that he left Sawad in company with the deceased going in the direction of the place where the deceased's body was later found and his further denial that he ever agreed to sell a rifle to Saleh Kassim Halmi, no evidence has been called by the defence which rebuts the above story as told by the prosecution witnesses. The learned trial Judge believed the evidence of prosecution witnesses and in our opinion it points, to the exclusion of any other reasonable hypothesis, to the fact that the person who killed the deceased was the appellant and such killing was murder as defined in section 300 of the Indian Penal Code.

In view of the nature of the offence and the circumstances in which it was committed we can see no reason for disturbing the sentence.

$+4/2$

The appeal is accordingly dismissed.