Rex v Nathu (Criminal Appeal No. 153 of 1948) [1948] EACA 34 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor)

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TRIKAMJI NATHU, Appellant (Original Accused)

Criminal Appeal No. 153 of 1948

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

Criminal Procedure (Uganda)—During hearing of Appeal to High Court Judge orders Magistrate to take further evidence—Appeal against order—No appeal to Court of Appeal for Eastern Africa-Uganda Criminal Procedure Code, sections 314, 315 and 320-Decision of High Court-East African Court of Appeal Rules, 1925, rule 22—Uganda Civil Procedure Ordinance, section 75.

Held (6-8-48).—Under the Uganda Criminal Procedure Code, before a person aggrieved by a decision of the High Court in its appellate jurisdiction may appeal to the Court of Appeal there must be a conviction and sentence upon which to found an appeal, unless it be an order of a kind concerning which the Criminal Procedure Code bestows a right of appeal.

Semble.-That rule 22 of the East African Court of Appeal Rules has reference only to civil appeals.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—This purports to be an appeal against an order made by Mr. Justice Pearson during the hearing of an appeal in the High Court of Uganda ordering the magistrate to take further evidence. The appeal before him was from a conviction for an offence under the Uganda Mining Ordinance. We are of the opinion that the order complained of is not one which is appealable against to this Court.

Under section 320 of the Uganda Criminal Procedure Code any person aggrieved by a "decision" of the High Court in its appellate jurisdiction may appeal to this Court on a matter of law (not including severity of sentence) but this section must be read together with section 314 and section 315. In section 314 are set out the powers the High Court may exercise in dealing with appeals from Subordinate Courts and these powers apply "mutatis mutandis" to appeal from the High Court of Uganda to this Court (section 320). From a perusal of these powers it is clear that in a criminal matter there must be a conviction and sentence upon which to found an appeal unless it be an order of a kind concerning which the Criminal Procedure Code bestows a right of appeal.

By section 315 when a case is "decided" on appeal by the High Court it certifies its judgment. In our view therefore there can be no doubt that the word "decision" in section 320 must mean the final judgment or order made by the High Court in the exercise of its appellate jurisdiction under section 314.

Counsel for the appellant who has not appeared before us but has submitted a memorandum in support of the appeal has submitted that rule 22 of the rules of this Court clearly envisages appeals against interlocutory orders. We think that this rule has reference probably to Civil Appeals only but whether this be so or not it can only refer to orders of a kind concerning which a right of appeal lies by statute, for example the kind of orders set out in section 75 of the Uganda Civil Procedure Ordinance. In the present case there is no statutory provision which confers a right of appeal against an order to take additional evidence made by a Judge during the hearing of an appeal before him from a conviction in a subordinate Court and it follows therefore that the prayer contained in this memorandum of appeal cannot be entertained.