Johnston v Rex (Criminal Appeal No. 165 of 1951) [1951] EACA 278 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Newnham Worley, Acting President, Lockhart-Smith, Ag. Vice-President, and MILES, Ag. J. (Tanganyika).

## CHARLES CECIL JOHNSTON, Appellant $\overline{1}$

# REX, Respondent

## Criminal Appeal No. 165 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Sinclair, Ag. C. J.)

Criminal Procedure & Practice-Magistrate's ruling of "No case to answer" at close of prosecution—Case stated—Appeal allowed by High Court—Appeal to Court of Appeal for Eastern Africa-Jurisdiction of Court of Appeal for Eastern Africa.

The appellant was charged before the Resident Magistrate, Dar es Salaam, with possession of property feloniously obtained outside the territory contra to section 313, Tanganyika Penal Code. At the close of prosecution's case the Magistrate held the evidence did not disclose an offence and acquitted the appellant. The Attorney General appealed to the High Court by way of case stated under section 333, Criminal Procedure Code. The High Court allowed the appeal and remitted the case to the Resident Magistrate with a direction to hear and determine the charge. An appeal against the High Court order was preferred to the Court of Appeal for Eastern Africa.

Held (30-10-51).—(1) No appeal lies from a decision of the High Court on the question of law arising on the case stated.

(2) An appeal lies on a question of jurisdiction if it is contended that the subordinate Court had no jurisdiction to state a case or the High Court had no jurisdiction to hear and determine the case stated. $\mathcal{L} \times \mathcal{L} \times \mathcal{L}$

### Appeal dismissed.

Cases referred to: Simpson v. The District Council of Nakuru (1938) 5 E. A. C. A. 54;<br>Simpson v. The District Council of Nakuru 6 E. A. C. A. 83; Rex v. Ibrahim H. Lakhani<br>10 E. A. C. A. 107; Attorney General v. Godwin Mwakalinga 1

#### McRoberts for appellant.

Sir James Henry, Acting Solicitor General (for Crown), Tanganyika.

JUDGMENT.-This appellant, Charles Cecil Johnston, was charged before the Resident Magistrate, Dar es Salaam, with possession of property feloniously obtained outside the Territory contrary to section 313 of the Penal Code. At the close of the case for the prosecution the learned Magistrate acquitted the appellant holding that the evidence adduced by the prosecution did not disclose an offence under the section under which the appellant was charged. The Attorney General appealed against this decision to the High Court by way of case stated under section 333 of the Criminal Procedure Code. The High Court allowed the appeal, set aside the acquittal, and remitted the case to the Resident Magistrate with a direction to hear and determine the charge according to law. The appellant now seeks to appeal to this Court against the order of the High Court.

Upon the opening of the appeal we raised the question whether this Court had jurisdiction to entertain it having regard to the provisions of section 337 of the Criminal Procedure Code. This section is in the following terms:-

"The High Court shall (subject to the provisions of the next succeeding section) hear and determine the question or questions of law arising on the case stated, and shall thereupon reverse affirm or amend the determination in respect of which the case has been stated, or remit the matter to the subordinate Court with the opinion of the High Court thereon, or make such other order in relation to the matter, and may make such other order as to costs, as to the court may seem fit, and all such orders shall be final and conclusive on all parties."

The learned Acting Solicitor General stated that he had considered this point but that in view of section 325 of the Criminal Procedure Code he did not feel justified in taking on his own initiative a preliminary objection that no appeal lay to this Court against a decision of the High Court upon a case stated. He was, however, prepared with such authorities, and they are not many, as exist upon this point and we have considered them.

Were it not for section 325 it would indeed be plain beyond argument that no appeal lies from the determination of the High Court upon the question or questions of law arising on the case stated by virtue of the concluding words cited. Section 325 provides that: $\rightarrow$

"Every party to the proceedings under this Part, other than proceedings by way of revision under sections 327 to 332, may appeal to the Court of Appeal for Eastern Africa on a matter of law (not including severity of sentence) but not on a matter of fact."

It may be noted here that the corresponding section (314) in the Criminal Procedure Code, 1930, which was repealed by the present Code, was in the following terms: -

"Any person aggrieved by a decision of the High Court in its appellate jurisdiction under this Part may appeal to the Court of Appeal for Eastern Africa on a matter of law (not including severity of sentence) but not on a matter of fact."

The first authority cited to us was Simpson v. The District Council of Nakuru (1938), 5 E. A. C. A. 54 which was decided under section 346 of the Kenya Criminal Procedure Code, which was in identical terms with the former section 314 of the Tanganyika Criminal Procedure Code, 1930. That was a case where the Supreme Court of Kenya on a case stated had remitted the case to the Resident Magistrate, Nakuru, with a direction to convict and the appellant appealed against the conviction and sentence. It $\boldsymbol{\text{was}}$ held that the Supreme Court appellate when hearing $\mathbf{a}$ $case$ stated $was$ $not$ exercising its jurisdiction and that no appeal lay at that stage. In view of the different wording of section 325 of the Tanganyika Criminal Procedure Code now in force this case is hardly of assistance on the question now before us. The same case was carried a stage further in 6 E. A. C. A., page 83. The appellant, Simpson, after the dismissal of his appeal by the Court of Appeal for Eastern Africa, applied to the Supreme Court for liberty to appeal out of time against the order of conviction. The application was dismissed on the ground that no appeal lay. He then appealed against this dismissal to this Court which held that an appeal would lie to the Supreme Court from a conviction by a subordinate Court made in compliance with an order of the Supreme Court on a case stated. Certain passages in the judgments are of relevance to the point which arises in the present appeal. Sir Joseph Sheridan, C. J., says at page 84:-

"The appellant has not attempted to argue before us that he could have appealed from the order of the Supreme Court directing that the appellant

should be convicted and sentenced and it is clear to me that such an argument could not have succeeded. The words 'all such orders shall be final and conclusive on all parties' appearing in section 357 would dispose of any such argument."

Similarly, Whitley, C. J., at page 86 said: $-$

"It is now common ground that there could be no appeal from the Order of the Supreme Court on the case stated inasmuch as section 357 of the Criminal Procedure Code provides hat such Order shall be final and conclusive which must mean 'not appealable'."

This case was followed in Rex v. Ibrahim H. Lakhani 10 E. A. C. A. 107 which was an appeal from the High Court of Uganda.

We were also referred to the Attorney General v. Godwin Mwakalinga 13 E. A. C. A. 158 where this Court did in fact entertain an appeal by the Attorney General from a decision of the High Court of Tanganyika on a case stated. The question whether an appeal lay at all was, however, not argued or considered in that case.

Mr. McRoberts has contended that a right of appeal against an order of the Supreme Court made on a case stated is conferred by section 325. He points out that proceedings by way of case stated are "proceedings under this Part". A right of appeal is expressly excluded only in the case of proceedings by way of revision. Therefore, he says, an appeal must lie to this Court from the decision of the High Court on a case stated.

In our opinion section 325 must be read subject to the express provisions of section 337. The case might have been different if the enactment of the amendment to section 325 had been subsequent in time to the enactment of section 337: but both these sections as now in force were simultaneously enacted in the Criminal Procedure Code, 1945, and we see no sufficient reason for departing from the general rule that if there is an inconsistency between two provisions of an enactment the latter in position will prevail. It is clear from the judgments of the Court of Appeal in Simpson's case reported in 6 E. A. C. A. that the members of the Court based their opinions that no appeal lay from a decision of the Supreme Court on a case stated on the rule "all such orders shall be final and conclusive". These words appear in section 337 and to uphold Mr. McRobert's contention would be to deprive them of all meaning. We may add that a perusal of section 334 which deals with the recognizances to be entered into by an appellant conditioned to "submit to the judgment of the High Court" are a further indication that the legislature intended that, at least as regards the applicant, the decision of the High Court on the case stated is not open to challenge. If this were not the case criminal proceedings would become indefinitely protracted. An accused person is in no way prejudiced by the finality of the decision of the High Court. If he is subsequently convicted in the subordinate court he still has his ordinary right of appeal under section 312 (see Simpson's case (No. 2) cited above).

We accordingly hold that no appeal lies to this Court from a decision of the High Court on the question or questions of law arising on the case stated.

This does not however dispose of the present appeal since Mr. McRoberts has raised a further ground of appeal which goes to jurisdiction. He<br>contends that the learned Magistrate should not have been asked to state a case nor should the High Court have entertained it in the circumstances of this case. He puts his argument in two ways. First he points out that section 341 $(b)$ requires a case stated by a subordinate Court to set out "the facts found by the

subordinate Court to be proved or admitted". In the present case, he says, the learned Magistrate could not find any facts proved or admitted since he had heard only the case for the prosecution. He could only set out the evidence which is precisely what the Divisional Court in Betts v. Stevens 26 T. L. R. at page 7 had laid down should not be done by justices when stating a case. His second argument is that no appeal lies against a refusal of jurisdiction.

These points were not taken in the Court below but since they go to jurisdiction we thought it right to consider them.

Although as we have already held no appeal will lie to this Court on the merits of a decision of the High Court on a case stated, yet we think that, since the question of jurisdiction is always in issue, an appeal will lie from such a decision if there is raised any serious contention either that the subordinate Court had no jurisdiction in the given circumstances to state a case or that the High Court had no jurisdiction to hear and determine the case stated.

We are fortified in this view by a consideration of the two cases to which we were referred by Mr. McRoberts after the close of the argument. The first of these is Murphy v. The King (1911), A. C. 401. The statutory provision there under consideration was section 7, sub-section 2 of the Old Age Pensions Act, 1908, which reads: $-$

"The decision of the local pension committee on any claim or question which is not referred to the central pension authority, and the decision of the central pension authority on any claim or question which is so referred to them, shall be final and conclusive."

The appellant, Elizabeth Murphy, was awarded an old age pension by a local pension committee, although she had not attained the statutory qualifying age of seventy. When her real age was discovered the local pension committee refused to alter their previous decision, and on appeal to the central pension authority she was deprived of her pension. On appeal to the House of Lords, it was held (we quote from the headnote to the report) that the original decision of the local pension committee was invalid, as the applicant had not fulfilled the statutory condition as to age and that notwithstanding section 7, sub-section 2, it was competent for the pension officer to raise the question and for the central pension authority to deprive her of the pension on the ground of her real age.

At page 404, Lord Loreburn, L. C., said: —

"It is quite clear that the finding of the central committee was final and conclusive so far as that question went (i.e. the question of age), if they had jurisdiction."

See also the speech of Lord Ashbourne at pages 405-6 and Lord Alverstone $\cdot$ C. J., at pages 407-8.

The second case is Rex v. Minister of Health: ex parte Committee of Visitors of Glamorgan County Mental Hospital (C. A.) 1938 4 All E. R. 32. Here again there was a statutory provision, section 15 of the Asylum Officers Superannuation Act, 1909, which provided: $-$

"In the case of any dispute as to the right to superannuation allowance" of any officer or servant of an asylum, or as to the amount of the superannuation allowance to which any such officer or servant is entitled, such dispute shall be determined by the Secretary of State (now the Minister of Health), whose decision shall be final."

The real issue in the case was whether in the given circumstances the Minister had jurisdiction to award an employee of the applicants a superannuation allowance but there are *dicta* in the report which are of assistance to us in this appeal. Greer, L. J., said (at page 37): -

"It might well be that there are cases in which there are provisions that the decisions of a Court or individual shall be final and conclusive, and yet, if it appears clear that there has been an excess of jurisdiction, then the order may be set aside."

And Slesser, L. J., said (at page $38$ ): —

"I agree with what has been said ... that the question of the finality of the decision is not really decisive of the case at all. It is sufficient to say that the appellants fail to show that the Minister acted outside his jurisdiction."

We think then that the words "final and conclusive" are not sufficient to bar an appeal grounded upon an objection to the jurisdiction: but, having considered Mr. McRoberts's contentions in this instance, we are of opinion that there is no substance in them.

In Betts v. Stevens the justices had come to a definite finding on the evidence but had submitted shorthand notes of the evidence. In the present case the learned Magistrate held, in effect, that accepting all the evidence led for the prosecution it failed to establish a prima facie case against the appellant. It may be noted that the Supreme Court of Kenya in Attorney General v. S. M. Bashir and S. F. Hassan XXIII K. L. R. 78 held that in setting out the question of law in a case stated on a finding of "no case to answer" a subordinate court should render the whole evidence adduced by the prosecution verbatim.

Section 341 which is merely procedural does not restrict the right of appeal conferred by section 333. An acquittal upon a ruling of "no case to answer" is a "determination" within the meaning of section 333 and the section confers a right of appeal by way of case stated.

Mr. McRoberts's second argument can be briefly disposed of and is based, if we may say so, on a misconception of what the learned Magistrate actually did. He did not refuse to exercise jurisdiction. He entertained the case but held that the evidence for the prosecution failed to disclose an offence under the section. under which the appellant was charged. He accordingly dismissed the charge and made an order of acquittal under section 205 of the Criminal Procedure Code, although he does not quote the section.

We accordingly hold for the reasons above stated that no appeal lies to this Court in the present case. The appeal is dismissed.

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