Rex v Mbugeramula (Criminal Appeal No. 101 of 1951 .) [1951] EACA 207 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

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

## REX, Appellant

$\mathbf{v}$

## YAKOBO MBUGERAMULA, Respondent

## Criminal Appeal No. 101 of 1951

(Appeal from decision of H. M. High Court of Uganda (Kampala)—G. C. Low, J.)

Appeal against revisional order of Uganda High Court, section 348 (7) Uganda Criminal Procedure Code, 1950—Effect of section 303 Criminal Procedure Code on section 29 (4) Arms and Ammunition Ordinance.

Upon entering a conviction on a plea of guilty *contra* to section 12 (1) of the Arms and Ammunition Ordinance the Magistrate made a peremptory confiscation order under section 29 (4) of the Arms and Ammunition Ordinance without giving the owner of the gun any opportunity to show cause. On revision the Judge set aside the forfeiture order on the grounds that the case was on all fours with facts leading the High Court to make a revisional Order in Criminal Revision Case 28 of 1950. The Crown appealed against the present revisional Order. Section 303 Uganda Criminal Procedure Code, 1950, was not in force when the Order in Criminal Revision Case 28 of 1950 was made nor when the Magistrate made his Order in the present case but it was in force when the Judge made his revisional Order. Section 303 (2) provides that when making an order of forfeiture or confiscation of property the Court may either make an order for its destruction or for its delivery to any person, but if such Order is not made the Court "may" then either direct that the property be kept or sold pending the time when some person establishes a right to the property or the proceeds of its sale.

Held (11-7-51).—(1) Appeals against revisional orders can only be entered in a matter of law and cannot include an appeal against severity of sentence, vide section 339, Uganda Criminal Procedure Code.

(2) After section 303, Criminal Procedure Code, came into force the exercise of discretion remains a matter dependent upon the facts of each particular case, which must be exercised judicially in the light of such facts.

Appeal dismissed.

Walthers, Crown Counsel (Uganda), for the Crown.

Respondent in person.

JUDGMENT.—This is an appeal by the Attorney General of Uganda against an Order made by the High Court of Uganda in the exercise of its revisional jurisdiction and dated 16th April, 1951. This Court is competent to hear this appeal by reason of the provisions of section 343 (7) of the Uganda Criminal Procedure Code, 1950. This sub-section which did not appear in the Code prior to the amending and consolidating Ordinance of 1950 is as follows: -

"(7) A decision of the High Court under this section shall be subject to the Court of Appeal for Eastern Africa as if the decision had been a decision of the Court exercising its appellate jurisdiction."

As this is the first instance of an appeal being brought to this Court from a. decision of the High Court of Uganda when exercising revisional jurisdiction we think it as well to point out that a right of appeal against an order made in revision is subject to the same limitations governing appeals to this Court from

decisions given by the High Court in the exercise of its appellate jurisdiction. These limitations are set out in section 339 of the Uganda Criminal Procedure Code, 1950. The appeal can only be entered on a matter of law and cannot include an appeal against severity of sentence. In the instant case the petition of appeal does raise a matter of law and is properly receivable.

The point for our consideration arises in this way. On 30th September, 1949, an African named Aramadhani Mayanja was convicted by the Resident Magistrate, Kampala, on his own plea of being in unlawful possession of a shotgun contrary to section 12 (1) of the Arms and Ammunition Ordinance. He was likewise convicted on his own plea of an offence against section 11 of the Game Ordinance in that he had unlawfully in his possession six skins of animals. As pleas of guilty were entered no evidence was taken but it seems safe to assume that the animals had been shot by the gun in respect of which the accused admitted unlawful possession. In passing sentence the learned Magistrate there and then ordered confiscation of the gun. It may be as well to quote his exact order, viz.: —

"Gun and ammunition to be confiscated."

By section 29 (4) of the Arms and Ammunition Ordinance the learned Magistrate had a permissive power to make such an Order and again it seems safe to assume that it was under this section that he purported to act.

On the back of our copy of the Charge Sheet it is stated that the gun, the subject matter of the charge had been left in possession of the accused by one Yakobo who was its owner. Whether this fact was brought to the notice of the learned Magistrate we do not know, but the fact remains that his Order of confiscation was a peremptory one and the owner did not have an opportunity to show cause why his gun should not be confiscated. Apparently there followed unsuccessful attempts by the owner to get his gun back which culminated in an application to the High Court for revision. This application did not reach the High Court before 1951 and the learned Judge who dealt with the matter gave his Order on 16th April, 1951. By this Order the learned Judge set aside the Order of forfeiture on the ground that the case was on all fours with facts which had led the High Court to make an order in revision dated 1st May, 1950, in Criminal Revision Case No. 28 of 1950. The Crown did not resist the view taken by the learned Judge so that by entering this appeal we are invited to say that the earlier Order was wrong in law also. In this Order the High Court composed of two Judges sitting in revision reversed an Order of forfeiture on the ground that there had been an improper exercise of the discretion given to the Magistrate under section 29 (4) of the Arms Ordinance. It is not necessary for us to review the facts of that particular case. It is sufficient to say that the effect of the Order was to constitute a direction to Magistrates that they should not make a peremptory Order of forfeiture under section 29 (4) where the owner of the gun is known and is a person other than the accused, without giving the owner a chance of being heard.

In presenting this appeal Mr. Walther, for the Crown, has called our attention to section 303 of the Criminal Procedure Code, 1950, and we accept his submission that this section read with section 3 (2) of the Criminal Procedure Code entails that a Court exercising its discretion to forfeit a firearm or ammunition under section 29 (4) of the Arms and Ammunition Ordinance must govern its procedure in the light of the provisions set out in section 303 of the Criminal Procedure Code. We will discuss the nature of these provisions later but here we must first observe that section 303 is a new section introduced into the Code by the amending and consolidating Ordinance of 1950 and perhaps it may not be out of place to quote from the Objects and Reasons printed with the 1950 Bill: -

"Clause 303. The present provisions of section 29 of the Penal Code have been found to be quite inadequate for dealing with the forfeiture and

confiscation of property used for the commission of an offence. This clause which is taken from the Nigerian Code gives the Court wider and more comprehensive powers."

Section 29 of the Penal Code provides for forfeiture of property used for the commission of certain specified offences against the Penal Code. It has no application to a forfeiture made under the Arms and Ammunition Ordinance.

The position then before the enactment of the 1950 Criminal Procedure Code in so far as a forfeiture under section 29 (4) of the Arms and Ammunition Ordinance is concerned was that the Court had a power of bare forfeiture but since the word "may" occurs in the sub-section and not the word "shall" the power was discretionary only and had to be exercised judicially. Now the Criminal Procedure Code came into force on 15th June, 1950, by reason of the publication in the Government Gazette of Legal Notice 133 of 1950. Accordingly when the learned Magistrate made the order of confiscation in the case now before us section 303 was not in operation, neither was it so when the learned Judges of the High Court made their Order in Criminal Revision Case No. 28 of 1950. It was however in force when the learned Judge made his order in the instant case.

We will now turn to the provisions of the new section. For our purpose we need only quote the first three sub-sections: -

"303. (1) During or at the conclusion of any trial or inquiry the Court may make such Order as it thinks fit for the disposal whether by way of forfeiture, confiscation or otherwise of any property produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence.

(2) Where the Court orders the forfeiture or confiscation of any property as provided in sub-section (1) of this section but does not make an Order for its destruction or for its delivery to any person the Court may direct that the property shall be kept or sold and that the same or, if sold, the proceeds thereof shall be held as it directs until some person establishes to the Court's satisfaction a right thereto. If no person establishes such a right within six months from the date of forfeiture or confiscation such property or the proceeds thereof shall be paid into and form part of the general revenue.

(3) The power conferred by sub-sections (1) and (2) of this section upon the Court shall include the power to make an order for the forfeiture or confiscation or for the destruction or for the delivery to any person of such property, but shall be exercised subject to any special provisions regarding forfeiture, confiscation, destruction, detention or delivery contained in the written law under which the conviction was had or in any other written law applicable to the case."

It will be seen that the Court when making an Order of forfeiture or confiscation of property may make an Order for its destruction or for its delivery to any person the Court may direct but if such Order is not made the Court may then either direct that the property be kept or sold pending the time when some person establishes to the Court's satisfaction a right to the property or the proceeds of its sale. This procedure is subject to a six months' time limit. We will say here that although the word "may" is used in sub-section (2) we consider that this is a case where the context requires that it should be read as "shall" for if the Court does not make an immediate order for the destruction of the property or its delivery to a named person then clearly it must proceed to comply with the other provisions of the sub-section. Doubtless, as Mr. Walther has submitted, this new section does provide an opportunity for the innocent owner of property used for the commission of an offence to come forward and prove his bona fides but it must be noted

that the Court still has a discretion to make an Order which might preclude such opportunity. It may, therefore, be the case that the Order made by the learned Judges in Criminal Revision Case No. 28 of 1950 and followed by the learned Judge in the instant case is still material if it is to be regarded as a directive that in no circumstances should a Court make a final Order regarding disposition of property when the owner is known and is not the person convicted of the offence. We say at once that we are not prepared to hold that the learned Judges in Criminal Revision Case 28 of 1950 came to any wrong conclusion on the particular facts of that case. We consider, perhaps, that they stated the general principle a little too broadly but they carefully guarded themselves by stating that they were well aware that there would be cases where the owner of the gun was unknown, could not be brought to Court or ownership was very uncertain. We would go a little further than that and say that even if the owner is known and could be brought to Court, there might be such clear evidence before the Court establishing either his gross neglect or complicity in the offence that a final order of forfeiture or confiscation might be justified. In short the exercise of discretion remains a matter dependent upon the facts of each particular case which must be exercised judicially in the light of such facts.

We have no doubt that the provisions of section 303 when Magistrates become accustomed to their exercise will operate to prevent this kind of injustice which the learned Judges had in mind when they made their Order of 1st May, 1950.

To return to the present case. We have been informed that the respondent, Yakobo now has possession of his gun which he is the licensed owner, and that the Crown has no wish to deprive him of possession. There is accordingly no reason for this Court to make any order, or to discuss whether the learned Judge might or might not have made some other Order than the one made on 16th April, 1951. It will be better to leave things as they are and to hope that the airing given to this matter by this appeal may be of assistance in future cases.