[1950] EACA 66

### APPELLATE CRIMINAL

### Before BARCLAY NIHILL, C. J. and THACKER J.

# THE HON. THE ATTORNEY GENERAL, Appellant (Original Prosecutor) $\mathbf{v}$

## SAMUEL BAKER KALANJI alias JAPHET SAMUEL, Respondent (Original Accused)

### Criminal Appeal No. 46 of 1950

(Appeal from decision of R. M.'s Court at Nairobi—R. L. LeGallais, Esq.)

Case stated—Penal Code—Sec. 71 (a), membership of unlawful society— Sec. 58 (2), possession of seditious publication without lawful excuse— Sec. 58 (3), defence—Ignorance of contents of document—Lawful excuse— Sec. 72 (4), document "belonging to" unlawful society—Meaning—Burden of proof.

Accused was charged on two counts, (1) under sec. 71 (a), Penal Code, with being a member of the Bataka Party, which had been declared by Government notification to be unlawful; and (2) under sec. 58 (2) Penal Code, with being in possession of a seditious publication belonging to the Bataka Party.

The prosecution case was that on 22nd October, 1949, the police searched the room of accused in the Railway Quarters, and found three documents (Exhibits 1, 2 and 3), and a photograph (Exhibit 4). The trial Court found that these three documents, which all related to the Bataka Party, which was declared to be unlawful in the year 1949, originated from one Semakula Mulumba, a representative of the Bataka Party, now resident in London, and Exhibit 4 was a photograph of this same person. Accused, a Railway Ticket Collector, alleged in his defence that the three documents in question were thrust into his hand by two Buganda, who had alighted from the Kampala train on 20th October, 1949, when he was collecting the tickets, and that he put them in his pocket, unread, and had not read them when the police seized them on 22nd October. 1949, and was ignorant of their contents. With regard to the photograph (Exhibit 4), this was in the pages of a book he had borrowed some time before.

On Count 1, the Court had a reasonable doubt as to the ownership of the documents Exhibits 1 and 3, which were copies made by some person unknown. and holding that it had not been proved beyond reasonable doubt that these documents "belonged to" the Bataka Party, he acquitted the accused.

On Count 2, the Court held, with regard to Exhibit 2, a cyclostyled copy of a letter, and admittedly a highly seditious document, that there was no evidence to rebut the allegation of the accused that he had not read this document before its seizure by the police, and was ignorant of its contents; and that though, under sec. 58 (3) Penal Code, he was under the duty to deliver the document to the proper authorities, on learning the nature of its contents, there was a reasonable doubt as to whether he had had time to do so. Accordingly, the accused was acquitted on this count also. The Crown appealed by way of a Case stated.

**Held** (11-4-50).—(i) That the question as to whether these documents "belonged to" the Bataka Party was a question of fact, and it could not be said that the trial Court came to any wrong conclusion in Law. In re Miller (

(ii) That ignorance of the accused of the contents of the document in question was "lawful excuse" under sec. 58 (2), Penal Code, *Dickens v. Gill* (1896) 2 Q. B. 310 distributed. Findings of Trial Court upheld. Appeal dismissed.

Cases referred to: Re Miller (1893) 1. Q. B. 327; Dickens v. Gill (1896) 2 Q. B. 310.

A. R. Kapila for the appellant.

Somerhough, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal by the Crown by way of case stated against a decision by the Resident Magistrate, Nairobi, acquitting the Respondent, Samuel Baker Kalanji, who was charged with the two following offences:-

"First Count. Being a member of an unlawful society contrary to section 71 $(a)$ of the Penal Code.

Second Count. Without lawful excuse being in possession of a seditious publication contrary to sec. 58 (2) of the Penal Code."

The particulars of the two offences alleged were set out on the back of the Charge Sheet as follows: —

"First Count. Particulars of offence. That you, Samuel Baker Kalanzi alias Japhet Samuel, at Nairobi in the Central Province, on or about the 22nd day of October, 1949, were a member of an unlawful society, that is to say the Bataka Party, which society has been declared unlawful under the provisions of sec. 69 (2) of the Penal Code by an order of the Governor in Council published in Government Notice No. 678 of 1949 to be a society dangerous to the good Government of the Colony.

Second Count. Particulars of Offence. That you, Samuel Baker Kalanzi alias Japhet Samuel, at Nairobi in the Central Province, on or about the 22nd day of October, 1949, had in your possession without lawful excuse a seditious publication, that is to say a cyclostyled letter with enclosures thereto addressed to the Africans in East Africa purporting to emanate from Semakula Malumba, London."

In answer to the charges the respondent denied being a member of the Bataka Party. He admitted being in possession of the cyclostyled letter, Ex. 2, which on the face of it is a highly seditious document but he submitted that he did not know what the letter meant or that it might cause trouble against Government. The respondent is a ticket collector at Nairobi Station and he gave evidence as to how he came into possession of Ex. 2. The learned Magistrate accepted the Respondent's assurance that he did not know the nature of the document when it was handed him at Nairobi Station on the evening of the 20th October, 1949, and the learned Magistrate was also in doubt whether the respondent ever knew the nature of the document before it was found in his house on the morning of 22nd October, 1949. The respondent swore that in fact he never read the document at all.

On these facts the Crown maintain that the learned Magistrate should have convicted the respondent on both Counts and that he failed to do so because he misinterpreted the law thereby placing too heavy a burden on the prosecution.

The case as stated by the Magistrate is a long one. It is in effect a statement of the Crown's submissions and the reasons why the learned Magistrate rejected them. We do not propose to answer all the points raised in seriatim but to consider the general questions as to whether on the facts as found by the learned Magistrate an offence has or has not been disclosed.

As regards Count 1, the issue turns on whether it was proved that the documents, Exhibts 1, 2, and 3 admittedly found in the possession of the respondent were documents belonging to an unlawful society. If they were, then, by the provisions of section 72 (4) of the Penal Code it could be presumed that the respondent was a member of that unlawful society unless he could prove the contrary. The learned Magistrate had no hesitation in coming to the conclusion that the documents were copies of original documents for which a person named Semakula Malumba now resident in London was responsible. The learned Magistrate was also satisfied that this man is a representative of the Bataka Party, a society which

has been declared to be an unlawful society both in Kenya and Uganda. Because however the learned Magistrate took the view that the words "documents or other property belonging to an unlawful Society" used in section 72 (4) of the Penal Code implies ownership he refused to hold that copies of documents ("made by it is not known whom") the originals of which did doubtless belong to the Bataka Party could be said "still to belong" to the Bataka Party.

The Crown view is that this is far too narrow a view of the words "belonging." to" which should be construed in a wide sense so as to in effect include things pertaining to or emanating from an unlawful Society. Mr. Somerhough has referred us to the case of *in re Miller* (1893) 1 Q. B. 327 where Lord Esher at p. 333 considered the meaning of the words "any money or property belonging to the Society" which appeared in a certain section of the Friendly Societies Act, 1875. The point in this case was whether the estate of a bankrupt who had received certain moneys on behalf of a Friendly Society of which he was the treasurer was liable to pay to the Society as a priority debt the amount of the money so received although the actual specie received by the bankrupt was not in possession of the trustee in bankruptcy and could not be traced.

We do not think that what Lord Esher said in the course of his judgment in this case really helps us to construe the words used in section 72 (4) of the Penal Code. What we have to decide is whether the learned Magistrate was wrong in thinking that the words connote an element of ownership which the prosecution had by evidence to fasten on the unlawful Society before the burden passed to the Respondent to prove affirmatively that he was not a member of that Society. After careful consideration of all that has been urged by Mr. Somerhough we do not find ourselves able to say that the learned Magistrate came to any wrong conclusion in law. The sub-section says: "Any person who has is his possession or custody or under his control any of the insignia, banners, arms, books, papers, documents or other property belonging to an unlawful society, or wears any of the insignia, or is marked with any mark of the society shall be presumed, unless and until the contrary is proved, to be a member of the Society". If one breaks up the sub-section what does it amount to? We think as follows: -

- (a) Prove that a person had in his possession insignia, banners, arms, books, documents, etc., the property of the society. - (b) Prove that a person was wearing insignia identifiable with the society, whether or not it is proved that such insigna is the property of the society. - (c) Prove that a person is marked with any mark known to be a mark $\frac{1}{2}$ identifiable with the society.

In all these cases the presumption is until the contrary is proved that the person in question is a member of the unlawful Society. The learned Magistrate had then, if this analysis be correct, to address his mind to whether the crown had proved beyond reasonable doubt that the documents found in the Respondent's possession were documents which could be said to be the property of the Bataka Society this is what he did and came to the conclusion that the prosecution had not proved this to his satisfaction and that therefore no burden shifted to the Respondent. That was a finding of fact by the learned Magistrate based on no erroneous principle of law.

We answer therefore all the questions put by the subordinate Court under paragraph $(b)$ of the case stated in the affirmative.

We now come to the second Count. On this Count we will first re-state the learned Magistrate's finding of fact. He found-

(a) that a highly seditious publication $(Ex. 2)$ was found in the Respondent's possession on the morning of 22nd October, 1949;

- (b) that this document was thrust into the Respondent's hands at Nairobi Railway Station on the evening of 20th October, 1949, when apart from knowing that it had something to do with Uganda and the Bataka Party, he had no idea that the document was of a seditious nature; - (c) that it was not proved beyond reasonable doubt that the Respondent ever read or understood the nature of the document between the time it was handed to him on 20th October and the time it was found along: with other papers in his possession on 22nd October. - On these findings the Magistrate refused to convict.

On one point we are in agreement with the Crown in respect of this Count. We answer question 4 (g) on p. 7 of the case stated in the affirmative. As in fact the respondent never handed in Ex. 2 either to the nearest Administrative Officer or to the Officer in Charge of the nearest Police Station, section 58, sub-section 3 has no applicability to the circumstances of this case. What we are left with is, whether the Magistrate's finding that the respondent never read the document soas to understand its meaning provided him with a lawful excuse so that he can escape liability for having been found in possession of the seditious document. The question raised here is one of considerable importance. Does ignorance as to the nature of a document provide a person in whose possession a seditious document is found with a lawful excuse for its possession? In Dickens v. Gill (1896), 2 O. B. 310 which was cited by Mr. Somerhough it was held that the possession of a die for making a false stamp, known to be such to its possessor, was, however innocent the use that he intended to make of it, a possession without lawful excuse within the meaning of section 7 (c) of the Post Office (Protection) Act, 1884. The point, however, in this case, as we understand it, was that the possessor of the die had consciously transgressed the law by having the die made at all, although he never had the slightest intention of using the die for any improper use. His subsequent possession therefore could not be said to be with any lawful excuse. In the case of an unconscious possession of a seditious document, however, if that does not provide a defence to section 52 (2) of the Penal Code, we wonder why the words "without lawful excuse" were inserted in the section. If an absolute liability was intended by the legislature, conscious or unconscious, the words should have been omitted. What will amount to a lawful excuse must, we think, depend on the circumstances in each case and be one for the Court trying the case to determine. Clearly a person who retains a seditious document in his possession consciously runs a grave risk, because he deprives himself of the defence which might have been open to him under sub-section (3) of the section but a person who satisfies a Court that the circumstances of his possession were such that quite reasonably he had no conception of the seditious nature of the document, has, we think, a defence open to him under sub-section (2). We therefore answer the fourth question put by the subordinate Court as regards Count 2 in the affirmative, and return the case stated with direction that on the facts as found by the learned Magistrate he was right to discharge the respondent on both the Counts framed against him in the charge sheet.