Musinga and Others v Rex (Criminal Appeals Nos. 131, 132, 133, 134 and 135 of 1951) [1951] EACA 211 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and Lewis, Ag. J. (Uganda)

## (1) STANLEY MUSINGA, (2) NASIB CHAND, (3) SAMSUDIN JUMA. (4) JAFFERALI KASSAM LADHA, (5) ASHABHAI K. PATEL, Appellants -

## $\mathbf{v}$ . REX, Respondent

## Criminal Appeals Nos. 131, 132, 133, 134 and 135 of 1951

(Appeal from decision of H. M. High Court of Uganda—Pearson and Ainley, JJ.)

Possession of wolfram—Definition of "mineral" section 2 Uganda Mining Ordinance—Evidence of control—Conspiracy—Two unlawful objects.

The first three appellants were convicted of possessing minerals, to wit, 2,237 lb. of wolfram *contra* to section 70 (1) Mining Ordinance, Uganda. The fourth appellant was convicted of possessing 3 lb. of wolfram. The fifth appellant was convicted of possessing 4 lb. of wolfram. The second, third and fourth appellants were convicted of conspiring to effect an unlawful purpose, to wit, to possess and sell the same 2,237 lb. of wolfram contra to section 375 (6) Uganda Penal Code.

The Crown failed to prove that the wolfram, the subject of the charges, was a mineral within the meaning of section 2, Mining Ordinance.

It was contended for the appellants that the evidence did not exclude the possibility of the ore in question having been casually picked up on the surface of the earth. Further on behalf of the third appellant that he was never in possession of the wolfram.

On the count of conspiracy it was contended that a charge alleging a conspiracy to effect two or more unlawful objects is bad for duplicity, and further that the conviction was bad because the prosecution failed to prove both objects specified in the particulars.

Held (11-7-51).—(1) There was sufficient evidence that the wolfram was a mineral within the meaning of the Ordinance as regards the first, second, third and fourth appellants, but not as regards the fifth.

(2) A finding of joint possession as evidence of control was sufficient to satisfy the requirements of the term "possession" as used in section 70 of the Mining Ordinance.

(3) A charge alleging a conspiracy to effect two or more unlawful objects is not bad for duplicity nor is the conviction thereon bad if the prosecution fail to prove one of the unlawful objects but prove conspiracy to effect the other unlawful object.

Appeals of appellants Nos. 1 to 4 dismissed. Appeal of appellant No. 5 allowed.

Appellant No. 1 in person, unrepresented.

Parekhji for appellant No. 2.

Verjee, Jnr., for appellant No. 3.

Wilkinson for appellants Nos. 4 and 5.

JUDGMENT.—These five appeals which have been consolidated are second appeals from the judgment of the High Court of Uganda dismissing appeals from convictions recorded against the appellants in the District Court of Kigazi.

The first, second and third appellants were convicted of possessing minerals, to wit, 2,237 lb. of wolfram contrary to section 70 (1) of the Mining Ordinance, 1949 (No. 5 of 1949). The fourth appellant was convicted of possessing 3 lb. of wolfram contrary to the same section and the fifth appellant of possessing 4 lb. of wolfram contrary to the same section. The second, third and fourth appellants were also convicted of conspiring to effect an unlawful purpose, to wit, to possess and sell the same 2,237 lb. of wolfram contrary to section 375 (6) of the Penal Code, 1950.

We will deal first with the ground which is common to all the appeals and which goes to the root of all the charges of which the appellants were convicted, namely, the contention that the Crown failed to prove that the wolfram which was the subject matter of the charges was a mineral within the meaning of the Mining Ordinance. This point was not taken before the learned Magistrate who tried the case and everyone concerned in the trial seems to have accepted the proposition that once the substance exhibited in the Court was proved to be wolfram or wolfram concentrate, the requirements of the Ordinance were satisfied. But on appeal to the High Court and before us it has been contended that the definition of "mineral" in section 2 of the Mining Ordinance is exhaustive and that it was not sufficient for the Crown merely to prove that wolfram or wolfram concentrate is a metalliferous ore but they must further prove that it is an ore which is obtainable only by mining or in the course of prospecting operations (as defined in the same Ordinance) or was in fact mined or obtained in the course of such operations, and Mr. Wilkinson in an admirably presented argument has submitted that the evidence led by the Crown did not exclude the possibility of the ore in question having been casually picked up on the surface of the earth. It was contended for the Crown on the other hand that the use of the word "include" indicates that the definition was not intended to be exhaustive and that the word "mineral" could be given its ordinary natural meaning. The difficulty in accepting this argument is the practical impossibility, which has been emphasized in many cases, of finding an ordinary natural meaning for this word, and we accept the proposition that, in spite of the use of the word "include", the definition was intended to be, and is, exhaustive. The same view was taken by the learned Judges of the High Court, who have found that on the record there was evidence before the Magistrate on which he could have specifically found, had his mind been directed to this point, that the wolfram which was the subject matter of the charges must have been mined or searched for. They say in their judgment:—

"It is true that there ought to have been evidence to show either that wolfram is a substance which in its natural state is obtainable only by mining or that the wolfram in this case was a substance which had been either mined or obtained in the course of prospecting operations or that the wolfram fell under paragraph (c) of the definition. What was the evidence relative to the wolfram which formed exhibit E (i.e. the 2,237 lb.)? In the first place there was a ton of it. It may well be that wolfram like very many mineral substances can be obtained by mere chance without intentionally winning (the definition of "mining"). No one swore to the contrary; no one probably could do so, but it is not very reasonable to suppose that without search or mining a ton of the stuff will be gathered together. If this consideration be inconclusive however let us turn to the evidence of Mr. Pollock, the metallurgical chemist. $\ldots$ It is plain that he found this sample of exhibit E sent to him $\ldots$ "wolfram concentrate, i.e. the final product of an ore dressing process as done at a mine or some such place, not as extracted from the earth". It seems to us, therefore, that there was ample evidence that the wolfram at the first appellant's place had come from a mine or had been obtained by mining operations of a deliberate nature.

$\cdot$ Turning to exhibit F (i.e. the 4 lb. which was the subject matter of the charge on which the fifth appellant was convicted) . . . this again was found to contain wolfram concentrate and though it appears to have come from a different source from the sample taken from exhibit E the fact that it was a concentrate appears to fix it as something "mined" not as something picked up by chance without search or winning. Indeed the fact that this appellant clearly handed this wolfram over as a sample of some tons of wolfram is surely some indication that this wolfram was not something stumbled on or over in the course of a country walk."

So far as concerns the possession of the 2,237 lb. of wolfram by the first, second and third appellants, we have no fault to find with this reasoning. Furthermore, looking at the whole of the evidence both for the prosecution and the defence, as we sitting as an Appellate Court are entitled to do, we find that although the appellants when called upon for their defence gave evidence on oath neither they nor the counsel who represented them at the trial suggested either by way of evidence or submission that the 2,237 lb. of wolfram had been acquired in any way which would take it outside the definition of a mineral. All the defences were directed substantially to seeking to rebut the evidence of possession. Taking this into account and in conjunction with the reasons advanced by the learned Judges of the High Court we are unable to say that they came to a wrong conclusion in holding that there was sufficient evidence that the wolfram comprised in exhibit E was a mineral within the meaning of the Ordinance.

With regard to the fifth appellant however, in view of the facts that the quantity of wolfram concentrate found in his possession was so small and was not proved to have come from exhibit E we are not satisfied that had the learned Magistrate's mind been directed to the definition of "mineral" he would necessarily have come to the same conclusion in respect of exhibit F and have convicted the appellant. It seems to us that in the case of exhibit F the inference was not irresistible that it must have come from mining or prospecting operations. We therefore allow the appeal of the fifth appellant and quash his conviction, set aside the sentence and order him to be set at liberty.

We next consider the appeal of the first appellant. The 2,237 lb. of wolfram was undoubtedly in his possession, having been seized by the police in his store and it was proved that he had received it from the second appellant on the night of the 4th of November, 1950, and had agreed to store it in consideration of payment of Sh. 100. On these facts the learned Magistrate held, quite correctly, that under the provisions of sub-section 4 of section 70 of the Mining Ordinance the onus lay on this appellant to prove that he obtained this wolfram lawfully; that is to say that he had to show that he was entitled in law to possess the mineral as a person authorized under the provisions of sub-section 1 of section 70. This he never attempted to do. His defence was and is that although he was told that the substance was wolfram he was only storing it at the request of the persons who brought it, and that he did not know that it was wrong for him to do so. This really amounts to a plea of ignorance of the law which cannot be accepted. It is true that in his Memorandum of Appeal he has submitted that he did not know at the material time that what he agreed to store was wolfram, but this is inconsistent with his evidence at the trial. The learned Magistrate has not recorded any finding as to whether he accepted the bona fides of this appellant but in our view, because of the wording of section 70 (1) and 70 (4) it was not necessary for him to do so. We think it would have been better had the Magistrate recorded, when passing sentence, whether he accepted the appellant's explanation or not, but it seems probable that he rejected it since he imposed a substantial sentence of imprisonment. The appellant has asked for leniency but as this is a second appeal we have no power to interfere with the sentence imposed. Furthermore, we agree with the observation of the Judges of the High Court that this appellant is no ignorant victim but well knew what he was about when he agreed to store the wolfram. His appeal is accordingly dismissed.

We have now to consider the appeals of the second, third and fourth appellants against their convictions for unlawful possession and for conspiracy. As regards the convictions for unlawful possession, it has been submitted on behalf of the second and third appellants that even assuming that the wolfram in exhibit E is a mineral within the meaning of the Ordinance the evidence of their possession did not amount to evidence of actual physical and exclusive possession which, it is said, is essential to a conviction under this section.

As regards the second appellant there is no substance whatever in this ground of appeal because it was proved beyond any doubt that at one time during the material period he was in actual physical possession of the 2,237 lb. of wolfram which he conveyed in his own lorry to the first appellant, and delivered it at his store. We agree therefore with the learned Judges in the Court below that however narrow a construction we place on the word "possession" in section 70 it will not avail this appellant. His appeal against conviction on this count is accordingly dismissed.

As regards the third appellant, it has been submitted on his behalf that his actions in regard to the wolfram in exhibit E were those of an innocent agent and that he was never in possession of this wolfram in any sense of the word. But the learned Magistrate was satisfied on the evidence that this appellant was exercising such a degree of control over this wolfram as to fix him with joint possession with others of the accused. As a finding of fact this was clearly justified by the evidence which showed that the third appellant was present at a discussion with Mr. Bjordal, a prospective buyer, took him to the house where the wolfram was stored, removed some wattle bark and uncovered two of the bags, cut the strings and authorized Mr. Bjordal to take samples; but the point remains whether in law a finding of joint possession based on evidence of control was sufficient to satisfy the requirements of the term "possession" as used in section 70 of the Mining Ordinance. Here we are in agreement with the views of the learned Judges of the High Court. Mr. Virjee ably presented the argument for the appellant on this point and we accept his contention that one cannot go outside the Ordinance for the definition of "possession". He referred us to a number of cases decided under English Acts, in which it has been held that the phrase "found in possession" imports actual physical possession and argued that these decisions should be applied to the interpretation of sub-section (4) of section 70, but in our view section 70 which creates an offence of unlawful possession of minerals is to be read as a whole and the fallacy of his argument is in the assumption that subsection 4 creates a separate and different offence from sub-section 1. Examination of sub-section 1 indicates that the possession there contemplated is not limited to physical possession; for example, a banker is not necessarily, and probably in practice rarely is, in physical possession of minerals or other goods on which he has a lien, his possession may be constructive and evidenced by his possession of documents which give him control over or power to dispose of the goods. In our view the intention and effect of sub-section 4 is merely to put the onus of proof on to the accused when possession has been proved and not to cut down the connotation of possession in sub-section 1, any contravention of which is punishable under section 125 (1). Reading section 70 (1) and 70 (4) together we are of opinion that these provisions cannot be read as excluding joint possession and the third appellant's appeal against his conviction for possession is therefore dismissed.

As regards the fourth appellant, he has not grounded his appeal on any alleged defect in the quality or nature of his possession, for he was proved to have been in actual physical possession of 3 lb. of wolfram. But if there were any reason to doubt that the Crown proved that this wolfram was a sample of the bulk of 2.237 lb, we should deem it our duty to deal with his conviction on this count as we have dealt with the appeal of the fifth appellant. The trial Magistrate came to no finding on this point because, for the reasons we have indicated above, his mind was not specially directed to the definition of "mineral", and we agree with the learned Judges of the High Court that there was sufficient evidence to show that it was in fact a sample from this bulk. This being the case, this conviction was a proper one and must be upheld. His appeal against conviction on this count is therefore dismissed.

It remains for us to deal with the appeals of the second, third and fourth appellants against their convictions for conspiracy. The grounds of these appeals are that the charge is bad in law and that it was unsupported by any or any sufficient evidence. The appellants were charged that they conspired together to effect an unlawful purpose, to wit, to possess and sell 2,237 lb. of wolfram otherwise than as permitted by the provisions of section 70 (1) of the Mining Ordinance, 1949, and were convicted of the offence as charged.

The second ground of appeal, namely, the insufficiency of the evidence, was only seriously argued by Mr. Wilkinson on behalf of the fourth appellant. In his case it was proved that he showed the 3 lb. sample of the wolfram to Mr. Bjordal saying that it was a sample of about 2,500 lb. which he had been asked by some person to sell to clear a debt owing to him (the fourth appellant) and others: that he took part in a discussion between Bjordal, the third appellant and others over the purchase of the wolfram and accompanied Biordal and the third appellant to first appellant's house, where Bjordal took samples from the two sacks opened by third appellant. Mr. Wilkinson has contended that there is here no evidence that this appellant was a party to the conspiracy but merely evidence that he was assisting other persons in their attempt to sell. The inference to be drawn from these proved and admitted facts is however primarily a matter for the Court of trial and it is impossible for us, sitting as an Appellate Court, to say that the learned Magistrate was not justified in holding the appellant guilty of conspiracy on this evidence. We agree with the opinion expressed by the Court of first appeal that there was very clear evidence that all these three appellants were acting in concert in an attempt to dispose of the wolfram in exhibit E.

On the first ground, it was contended that a charge alleging a conspiracy to effect two or more unlawful objects is bad for duplicity. No authority was cited for this proposition nor do we think that any authority could be found. We were referred to cases where two or more conspiracies had been laid in one count, or where different accused persons, having been charged jointly with taking part in one conspiracy, were found guilty of two or more different conspiracies. Those cases are not in point here, and we see no reason in law why, if the conspirators have in mind the commission of more than one unlawful act to give effect to the conspiracy, these acts should not all be set out in the particulars of the charge. A conspiracy to kidnap a person and sell him into slavery is one conspiracy: it would, we consider, be wrong in such a case to lay two charges of conspiracy and it might well be impossible to bring home the charge to all the conspirators without proving both purposes and it is only proper to give them notice of these purposes.

It is, however, further contended that the conviction on this count was bad because the prosecution failed to prove both objects specified in the particulars. This argument is founded upon the judgment of the Judges of the High Court who held that it was not proved that the three appellants, before the wolfram came into

the hands of the second appellant, put their heads together and agreed to obtain possession of the wolfram and then sell it. With great respect, we should not have been disposed to interfere with the finding of the trial Magistrate on this point. The unlawful possession of the wolfram was a continuing offence and an essential factor in the agreement. A person who joins a conspiracy is responsible in law for all the acts of his fellow-conspirators done in furtherance of the conspiracy, whether done before, during or after his participation. In our view, therefore, the continuing unlawful possession of the wolfram, even if it originated with the second appellant, attached itself in law to the other conspirators.

But, further, we agree with the opinion of the Court of first appeal that even though the Crown failed to prove one of the heads of the agreement, this was not fatal to the conviction, the Crown having proved an agreement to do an unlawful act, namely, to sell the wolfram contrary to the provisions of section 70, which was clearly specified in the charge. We can see nothing wrong in the conclusion of the learned Judges of the High Court that even if the Crown alleged that the conspiracy had a wider scope than they were able to prove, they did prove an illegal conspiracy and proved that it was a conspiracy to commit one of the offences specified in the charge.

Counsel for the appellants have referred us to expressions of opinion by this Court and by Courts in England deprecating the joinder of a charge of conspiracy with charges of specific offences based on the same evidence. It is admitted that there is no illegality in such a joinder, but we agree that it ought not to be done in cases where it is likely to prejudice the conduct of the defence. No objection was raised to the joinder of this charge at the trial and we do not think that it was improper in the circumstances of this case. Indeed, it would seem to have been the only course open to the Crown to bring home the guilt of some of the persons concerned in this series of illegal transactions.

In the result therefore the appeal of the fifth appellant is allowed and the appeals of the other four appellants are dismissed.