Rex v Hemedi (Criminal Appeal No. 74 of 1940) [1940] EACA 21 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before WEBB, C. J. (Tanganyika), WHITLEY, C. J. (Uganda) and CLUER, J. (Tanganyika)

#### REX. Respondent

## HEMEDI BIN KAMBENGA, Appellant Criminal Appeal No. 74 of 1940

## (Appeal from the decision of H. M. High Court of Tanganyika)

Courts—Jurisdiction—Extended jurisdiction—Subordinate Court—Criminal Procedure Code (Tanganyika), section 14—Interpretation Ordinance, section 18.

Appellant appealed from a conviction of murder. He was tried by a Subordinate Court of the First Class which purported to be sitting in extended jurisdiction. On the 15th March all the evidence was heard and the assessors gave their opinions. On 16th March judgment was given and sentence pronounced. In the Official Gazette of 29th March there appeared a notice dated 16th March signed by the Chief Secretary and purporting to confer on the magistrate power to try the case. The record did not disclose facts showing jurisdiction though it did commence with the words "Sitting in extended jurisdiction".

Held (8-8-40).—(1) That the record did not show jurisdiction on its face but merely that the magistrate believed that he had been invested with jurisdiction.

(2) That the notice of the 16th March was not itself, as it purports to be, the order investing the magistrate with extended jurisdiction but was merely the signification or publication in accordance with section 18 of the Interpretation Ordinance, of an order of the Governor that had previously been made.

(3) That it was uncertain that the magistrate had been invested with jurisdiction in. the case before 16th March.

(4) As the Court was a subordinate court and its record did not show jurisdiction on its face no presumption of jurisdiction could be made.

(5) That the trial must be held to be a nullity.

Appeal allowed—Conviction quashed—Re-trial ordered.

Houry for the Appellant.

#### C. Furness-Smith, Attorney General of Tanganyika, and Smith for the Crown.

JUDGMENT (delivered by WEBB, C. J.) (\*).—The appellant was tried and convicted of murder by a magistrate exercising extended jurisdiction under section 14 of the Criminal Procedure Code, which authorizes the Governor to invest a magistrate holding a subordinate court of the first class with power to try a case which normally is triable only by the High Court. The trial of the appellant commenced on 15th March, on which day all the evidence was heard and the assessors gave their opinions. On the 16th judgment was given and sentence pronounced. The conviction and sentence were confirmed, as required by section 16 of the Criminal Procedure Code, on the 19th March. In the Official Gazette of the 29th March there appeared the notice (G. N. No. 274) signed by the Chief Secretary purporting to confer on the magistrate power to try the case, and as this notice is dated the 16th March, the first question that arises is whether the trial was not a nullity by reason of the fact that the magistrate apparently had not been invested with power to try the case at the time when the trial commenced.

After hearing the learned Attorney General we are satisfied that the notice of the 16th March is not itself, and was at first believed and as it purports to be, the order investing the magistrate with extended jurisdiction, but is merely the signification, or publication, in accordance with section 18 of the Interpretation Ordinance, of an order of the Governor that had been previously made.

But the question still remains, was that order made before the magistrate entered upon the trial. In the absence of any definite information it may be assumed that it is not now known upon what day it was in fact made: but it is conceded that if it was made upon the 16th it was too late. The Attorney General says that it is not competent for this Court to go behind the notice: if by this he means that the court cannot question the fact that the effect of the order of the Governor was to invest the magistrate with power to sit in extended jurisdiction we agree, but we do not agree, if he means that this Court is bound to assume further that the order was made in time. In the case of R. v. All Saints' Southamption (108 E. R. 916) Holroyd J. said, "The rule that in inferior courts. . . . the maxim omnia praesumuntur rite esse acta does not apply to give jurisdiction never has been questioned" and in Dempster v. Purnell (11 L. J. C. P. 33) Tindal C. J. said: "I take the rule to have been well settled . and to be $\sim$ founded upon sound principle that where it appears on the face of the proceedings of an inferior court, that that court had jurisdiction, then every intendment is to be made in favour of the correctness of these proceedings; but, if it appears that the court had not jurisdiction or even if it be left in doubt whether it had or not, then the rule as I have stated it does not hold good." Now the court of a magistrate is a court of inferior jurisdiction, and accordingly a magistrate sitting in extended jurisdiction is purporting to exercise a jurisdiction which normally he does not possess; therefore the record of his proceedings should either show on its face that he had jurisdiction, or that fact, if it be questioned, must be proved aliunde: R. v. All Saints' Southampton; R. v. Evett (108 E. R. 444). But, as there is no presumption of jurisdiction in the case of an inferior court, the record here could show jurisdiction only by setting out that the magistrate had already been invested under section 14 of the Criminal Procedure Code with power to try the case; the words at the commencement of the record "Sitting in extended jurisdiction" show only that the magistrate believed himself to have been invested with the necessary power, but, there being no presumption, they do not even amount to prima facie proof that he had been so invested. To show jurisdiction on its face the record should state "Sitting in extended jurisdiction by virtue of the order of the Governor signified by Notice dated the .......... day of ................................... jurisdiction is question, that the Governor's order was in fact made before the magistrate entered upon the trial.

Granted that the notice is conclusive of the fact that the Governor has made an order investing the magistrate with power to sit in extended jurisdiction, it says nothing, and therefore proves nothing regarding the date upon which the Order was made. If it had been made to appear to us that in this case His Excellency knew that the trial had been fixed for the 15th March the omnia praesumutur *maxim* in favour of official acts might justify the court in presuming that he had made his order in due time; but this is not the case.

The majority of the Court are of opinion that this is a case in which it is left in doubt whether or not the court had jurisdiction, and in these circumstances we must hold that the proceedings were a nullity. The appeal is allowed, the conviction quashed, and a re-trial is ordered.

\*Whitley, C. J., did not sign the judgment.