Bhamji v Rex (Criminal Appeal No. 5 of 1928) [1928] EACA 9 (1 January 1928)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya); SIR CHARLES GRIFFEN, C. J. (Uganda) and GUTHRIE-SMITH, J. (Uganda).

## RANCHHOD BHAMJI (Appellant) (Original Accused) $\overline{11}$

## REX (Respondent) (Original Prosecutor). Cr. App $5/1928$ .

## Appeals to the Court of Appeal Ordinance, 1922-section 3right of appeal.

Held: - That the right of appeal from a conviction, whether with or without leave, is confined to the cases set out in subsection (1) of<br>section 3, and that the word "order" as used in subsection (2)<br>means something different from a Judgment.

Ishmael for appellant.

Abrahams, Attorney-General (Uganda), for Crown.

JUDGMENT. This is a second appeal, i.e. an appeal from the Judgment of the High Court of Taganyika in an appeal from a Subordinate Court on a conviction for an offence under section 354 of the Indian Peral Code. The question of the jurisdiction of this Court has been raised as a preliminary point.

The relevant enactment is the Appeals to the Court of Appeal Ordinance, 1922. Section 3 of that Ordinance provides $that :-$

$\therefore$ (1) Any person who, after the commencement of this Ordinance, is convicted of an offence by the High Court in the exercise of its original jurisdiction or on an appeal from an acquittal or whose sentence is, after the commencement of this Ordinance, enhanced by the High Court under its revisional jurisdiction, may appeal to the Court of Appeal— $\bullet$

- (a) as of right, on any ground of appeal which involves $(a)$ a question of law alone; and - (b) with the leave of the High Court, on any ground whatsoever.

(2) Any person aggrieved by any order of the High Court made after the commencement of this Ordinance in any criminal matter may, with the leave of the High Court, appeal to the Court of Appeal.

(3) Where leave to appeal under this section is granted, it shall be competent for the appellant, subject to any directions to the contrary contained in the order giving leave to appeal, to appeal on any ground which may be open to him.'

The appellant's counsel relies on subsection $(2)$ as giving the appellant the right to appeal with the leave of the Court on the footing that a Judgment dismissing the first appeal is an order of the High Court and that the appellant is thereby aggrieved.

In our opinion, whatever subsection (2) may mean it cannot mean that an unsuccessful appellant to the High Court can with the leave of that Court present a further appeal to this Court.

The right of appeal from a conviction, whether with or without leave, in our opinion is confined to the cases set out in subsection $(1)$ of the section. That is to say the conviction must be by the High Court, either in the exercise of its original jurisdiction or on an appeal from an acquittal. The appeal may be as of right on a ground which involves a question of law or on any grounds whatsoever with the leave of the Court. Subsection (2) of the section does not in our view extend that right, if it did most of subsection (1) would be redundant. The word "order" as used in subsection (2) must mean something different from a Judgment. The appeal is dismissed on the ground that this Court has no jurisdiction to hear it. In conclusion the Court would like to point out that the appeal should clearly have been filed in Tanganyika, vide section 6 (1) of the Eastern African Court of Appeal Rules, 1925.