Likonja v Rex (Cr. App. 74/1930.) [1930] EACA 142 (1 January 1930)

### COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya); SIR CHARLES GRIFFIN, C. J. (Uganda), and Pickering, C. J. (Zanzibar.)

# . ASMANI S/O LIKONJA

### (Appellant) (Original Accused)

## **REX**

### (Respondent) (Original Complainant). Cr. App. 74/1930.

#### Effect of an alteration in judicial procedure.

#### Interpretation and General Clauses Ordinance (Cap. 1, Laws of Tanganyika), section 10 (2) $(e)$ —effect of repeal.

**Held:**—That Section 10 (2) (e) Cap. 1, of the Laws of Tanganyika enacts that as the liability to punishment continues so may the legal proceedings necessary for the imposition of such punishment be instituted, maintained or continued and enforced after the repeal of the penal enactment, but this provision cannot properly be read as affecting the procedure to be followed in the course of such legal proceedings.

#### Appellants absent.

#### Davies, Crown Counsel, for Crown.

JUDGMENT.—On the 15th September last this Court ordered The Provincial Commissioner sitting at Masasi reheard a retrial. the case but in doing so he purported to exercise the extended powers with which he had been invested under section 21 of the Courts Ordinance (Cap. 3, Tanganyika). If this were regular the conviction against which this appeal had been lodged would have come up for confirmation by the High Court under section $6$ of the Criminal Procedure Amendment Ordinance (Cap. 6). When the record of the purported retrial reached the High Court of Tanganyika an order confirming the sentence of death was made under section 16 of the Criminal Procedure Code. Upon that order of confirmation being made appeals were filed in this Court under section 17 of the Criminal Procedure Ordinance as though the appellants had been convicted upon a trial held by On the first July of this year the Criminal the High Court. Procedure obtaining in Tanganyika was changed, the applied Indian Procedure Code being replaced by the existing code. The events which are the subject of these proceedings occurred in April last, and in this appeal it is necessary to consider whether upon the retrial ordered in September the correct procedure was that laid down in the old code or that provided by the new. The

matter is of some importance as the procedure differs considerably. In the conduct of the retrial the Magistrate followed the procedure laid down in the Indian Code for the trial of warrant cases. By sections 14 and 15 of the new code the trial of offences $\mathbf{C}$ by Magistrates exercising extended jurisdiction shall be by preliminary enquiry and upon commitment, by trial before the Magistrate exercising such extended powers in the manner prescribed for the trial of such offences by the High Court. Moreover, by reason of section 154 of the New Procedure Code every person charged with an offence has become a competent witness. If then in the retrial, in the course of which the convictions now appealed against were entered the provisions of the new code should have been followed no valid retrial has been held and these appeals must be allowed. The general rule which has been long recognized in the English Courts as stating the effect of an alteration in judicial procedure is that the provisions of enactments effecting such alterations are retrospective unless they contain words expressedly or by necessary implication inconsistent with any retrospective effect. This rule was applied in the case of the King v. Chandra Dharma ((1905) 2 K. B., 335) in the matter of a conviction under section 5 of the Criminal Law Amendment Act, 1885. It has been contended that any retrospective effect of New Criminal Procedure Code has been avoided in Tanganyika by the provisions of section 10 $(2)$ $(e)$ of the Interpretation and General Clauses Ordinance (Cap. 1). It has been suggested that the words "any... investigation legal proceeding or remedy, may be instituted, continued or enforced " contained in subsection (e) amount to an express enactment that where criminal procedure is altered and the police have embarked upon any investigation of an offence prior to that change, all judicial proceedings concerning such offence shall be conducted in the procedure obtaining at the time when that investigation was begun, and shall not conform to a procedure which may be introduced after the commission of the offence but before the termination of such proceedings. We are of opinion that the word "continued" placed in subsection (e) between the words " instituted " and " enforced " cannot be reasonably regarded as constituting an express enactment to that effect. Apart from legislation upon the repeal of an enactment defining and creating a criminal offence all investigations and prosecutions under such enactment would automatically cease. On the 1st July, 1930, the application of the Indian Penal Code to Tanganyika was repealed and a new Penal Code enacted. By section 10 (1) $(d)$ liability to conviction and punishment in respect of an offence committed against the Indian Penal Code remained and was continued after the 1st July although that code had been repealed. Section 10 $(2)$ $(e)$ enacts that as the liability to punishment

continues so may the legal proceedings necessary for the imposition of such punishment be instituted, maintained or continued and enforced after the repeal of the penal enactment. This provision cannot properly be read as affecting the procedure to be followed in the course of such legal proceedings.

The new trial ordered has not in effect been held and the position is that proceedings must begin as if the accused had been committed for trial. Thereafter an information by the Attorney-General must be filed, if in the circumstances of this case, he should see fit to do so.

It follows that the convictions and sentences are set aside.