Rex v Mugala (Criminal Appeal No. 9 of 1947) [1947] EACA 19 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and THACKER, J. (Kenya)

REX, Respondent (Original Prosecutor) υ.

**ABSOLOMU MUGALA, Appellant (Original Accused)** Criminal Appeal No. 9 of 1947

(Appeal from decision of H. M. High Court of Uganda)

Criminal Law-Soliciting to commit murder-The Offences Against the Person Act, 1861, S. 4—Application to Uganda—Uganda Order in Council, 1902, Article 15 (2)—Uganda Penal Code.

The appellant was convicted of the offence of soliciting to commit murder contrary to section 4 of the Offences Against the Person Act, 1861. He appealed.

Held (5-2-47).—The Offences Against the Person Act (1861) does not apply to Uganda.

Appeal allowed.

Appellant absent, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The only really substantial point raised in this appeal relates to the conviction on the third count. That count was as follows: -

Statement of Offence.—Soliciting to commit murder contrary to section 4 of the Offences Against the Person Act, 1861.

Particular of Offence.—Absolom Mugala on or about the 11th day of April, 1946, at Sekiwunga Village in the Mengo District of the Buganda Province, did solicit one Petero Lwemera to murder Yona Kizito.

The point in question is a very short one. Are the Courts of Uganda by reason of Article 15 (2) of the Uganda Order in Council, 1902, bound to exercise their criminal jurisdiction in conformity with the Offences Against the Person Act, 1861, particularly section 4 thereof? In other words, is section 4 of the 1861 Act in force in Uganda?

It seems to us that a careful study of the terms of Article 15 $(2)$ shows clearly that the Offences Against the Person Act does not apply to Uganda.

True, it is undoubtedly a "State of General Application in Force in England on 11th August, 1902" and the first part of Article 15 (2) directs that the Courts shall exercise their jurisdiction in conformity with *inter alia* such Statutes. This direction is subject to certain Indian Codes in force in Uganda at the date of the commencement of the Order in Council, and "so far as the same shall not extend or apply". The codes in question included the Indian Penal Code, now replaced in Uganda by the Uganda Penal Code.

But the direction is subject further to the important saving clause in the same Article which—omitting the words irrelevant to the present point—reads as follows: "Save in so far as the said statutes of general application may at any time before the commencement of this Order have been, or hereafter may be, replaced by any Ordinance passed in and for the Protectorate"

The Offences Against the Person Act is simply a code of that branch of the English criminal law which deals with offences against the person. It is a comprehensive codification of that branch of the criminal law. In July, 1930, when the Uganda Government decided to enact that the Indian Penal Code should cease to apply to Uganda, the Government could if they had so desired

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have gone no further than that enactment. The Offences Against the Person Act as a statute of general application in England on 11th August, 1902, would then have been in force in Uganda under Article 15 (2) of the Uganda Order in Council as the Uganda Code for that branch of the criminal law. But the Uganda Government decided instead to "replace" the English Statute with their own comprehensive Code on the subject—"Division IV Offences Against the Person" as it is expressed in the Penal Code.

To say in an Order in Council that the Government of Uganda may by Ordinance "replace" an English statute does not mean that they can only replace the statute by an Ordinance in the same terms as the English statute. That would be quite pointless and would indeed make nonsense of the Article in question. To "replace" by Ordinance an English statute which is a code of a particular branch of criminal law means to enact a substituted code of the same branch of the criminal law. The substituted code may agree with or differ from the replaced English statute in several respects, but whatever the agreements or differences the code enacted by the Ordinance has "replaced" the English Statute of General Application and that statute is no longer a part of the law in force in Uganda. To hold otherwise would be directly contrary to the manifest spirit and the express letter of Article 15 (2).

By the "replacement" effected by the 1930 Penal Code the 1861 Act not being a law in force in Uganda in terms of Article 15 (2), the criminal liability under that Act is not covered by section 3 (1) of the Penal Code itself, which is in the following terms: —

- "3. Nothing in the Code shall affect— - (1) the liability, trial or punishment of a person for an offence against the Common Law or against any other law in force in the Protectorate".

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For these reasons the conviction and sentence on the third count are quashed and a verdict of acquittal substituted.

We may add that in this particular case there is a special circumstance, namely that in the Indian Penal Code which was in force in Uganda until replaced by the Uganda Penal Code in 1930 there was a provision which adequately provided for the offence of abetment of an offence whether or not the offence was actually committed. The Uganda Penal Code (ss. 21 and 23) provided for the offence of abetment but the provision expressly applied only where the offence had actually been committed. This was an alteration of the law, but under Article 15 (2) the Uganda Government was clearly entitled to make, and the Uganda Government having decided to make that alteration the Uganda Courts could not nullify that decision embodied in legislation by reviving section 4 of the "replaced" Offences Against the Person Act. To do so would be to legislate and obviously the Courts cannot do that.

As regards the first count, there is no substance in the appeal. Upon the whole evidence it is impossible to avoid the conclusion that the appellant did attempt to cause poison to be administered to Yona Kizito and thereby to do some grievous harm to the said Yona Kizito. The appeal as to the conviction on the first count is therefore dismissed. We do not consider that the sentence of six years imprisonment with hard labour on this count was so excessive as to warrant our interference with it and the appeal against sentence is therefore also dismissed.

As regards the second count, it is of course obvious, on the principle that the greater includes the less, that the appellant was also guilty, but the conviction on the first count renders the conviction on the second count superfluous and unnecessary and for that reason only it is quashed together with the sentence following upon it. It is obvious that the second count was only an alternative to the first count.