[1950] EACA 583

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and CONNEL, J. (Kenya)

### LOBOZI s/o KATABARO, Appellant (Original Accused)

#### $\mathbf{v}$

## REGINAM, Respondent

### Criminal Appeal No. 206 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Law, Acting J.)

Practice-Summary dismissal of appeal by High Court-Revisional order enhancing sentence made after notice of appeal-Tanganyika Criminal Procedure Code, sections 15, 317, 325 and 329.

The High Court had summarily rejected an appeal from two convictions by the District Court, purporting to act under section 317 of the Criminal Procedure Code. The sentences passed by the Magistrate were subject to confirmation and had been enhanced after notice of appeal had been given.

$Held$ (1-10-56).—(1) The exercise of the power of summary rejection of appeals under section 317 (1) (b) is strictly limited to cases where the appeal is brought on the ground only that the conviction is against the weight of evidence.

(2) It is a most undesirable practice that a revisional order enhancing sentence should be made before the period for giving notice of appeal has run out or, where such notice has been given, before the appeal has been determined.

Appeal allowed. Proceedings remitted to the High Court for the appeal to be heard.

Cases referred to: King-Emperor v. Dahu Raut (Py. Co.), (1935) 51 T. L. R. 338;<br>R. v. Njeroge, (1947) 14 E. A. C. A. 67; R. v. Nealon, (1950) 17 E. A. C. A. 120; R. v.<br>Sironga, (1918) 7 E. A. L. R. 148; Suleman Ahmed v. R., (1922) 9

Appellant absent, unrepresented.

Samuels for respondent.

JUDGMENT (prepared by WORLEY, President).—This is a "second appeal" from a decision of the High Court of Tanganyika. Although the memorandum of appeal does not itself raise any point of law, it was apparent to us from a perusal of the record that the order of the High Court summarily dismissing the appellant's appeal to that Court was made without jurisdiction: we therefore set aside that order and remitted the matter to the High Court with a direction that the appeal to that Court be heard and determined. We now give our reasons for so doing.

The appellant was convicted by the District Court at Bukoba on 6th January, 1956, on two charges of arson and was sentenced to two years' and three months' imprisonment on each charge, the sentences to run consecutively.

On 10th January, i.e. four days after conviction and within the prescribed time, the appellant gave notice of appeal to the High Court. He received a copy of the Magistrate's judgment on 23rd March and submitted his memorandum of appeal on 28th March through the officer in charge of the prison at Bukoba.

The first ground of appeal alleged, in effect, that the trial Magistrate had misdirected himself by not considering the evidence adduced on behalf of the accused. The second ground alleged in effect that the trial was improperly conducted in that two material defence witnesses were not subpoenaed although application in that behalf had been made by the accused while in remand custody. The remaining grounds were based on fact alone. $\sim$

On 12th April, 1956, the appeal came for consideration before Law, Acting Judge, who, purporting to act under section 317 of the Tanganyika Criminal Procedure Code, certified that the appeal had been lodged without any sufficient ground of complaint and rejected it summarily. In the course of a brief written judgment, the learned Judge, after referring to the questions of fact raised by the memorandum, said: "The appellant also complains that two other defence witnesses were not called. It is clear from the record that the appellant did not ask for these witnesses to be summoned".

It is here that we think the learned Judge fell into error. The exercise of the power of summary rejection of appeals under section 317 (1) $(b)$ is strictly limited to cases where the appeal is brought on the ground only that the conviction is against the weight of evidence: see King-Emperor v. Dahu Raut (Py. Co.), (1935) 51 T. L. R. 338. The questions whether or not the appellant had applied for further witnesses to be summoned and whether or not he waived their attendance at his trial are, of course, questions of fact, but their determination involves a finding whether or not the trial was properly conducted, a question which takes the case entirely outside the purview of section 317 (1). The question whether the allegation can be substantiated is irrelevant at that stage.

There is one other unsatisfactory feature of this case to which we must refer. The sentences imposed by the Magistrate's Court were subject to confirmation under section 15 of the Procedure Code, and for that purpose, the papers were laid before Harbord, J., at Mwanza, on 16th January, 1956, i.e. six days after notice of appeal had been given. On 6th February, Harbord, J., in exercise of the powers conferred by section 15 (2) and section 329 (1) (a) enhanced the sentences to three years on each charge to run consecutively, and these sentences were in force at the time when Law, Acting J. considered the appeal.

Except in the case provided in sub-section (5) of section 329, the Code contains no prohibition against an order being made in revision during the pendency of an appeal. Nevertheless we think it a most undesirable practice that a revisional order enhancing sentence should be made before the period for giving notice of appeal has run out or, where such notice has been given, before the appeal has been heard and determined. A little reflexion will show the disadvantages of such a practice. If the appeal subsequently comes on for hearing and determination by the Judge who has made the revisional order (as may well happen in Mwanza or any other place where a single Judge is stationed) it is clear that he has disqualified himself from hearing the appeal at least so far as it relates to the sentence. If the appeal comes before another Judge or other Judges of the same Court he or they will be embarrassed, to say the least, if asked to interfere with the enhanced sentence, if indeed he or they have jurisdiction to do so.

So far as concerns the Court of Appeal, it seems very doubtful whether, in such a case, an appeal against the sentence even on the ground of illegality could be entertained since proceedings by way of revision are excluded from the scope of section 325 of the Code: see R. v. Njeroge (1947) 14 E. A. C. A. 67 and R. v. Nealon (1950) 17 E. A. C. A. 120. As regards the High Court's jurisdiction in such a case, there appears to be no authority of this Court or of the High Court of Tanganyika, but the question has been considered in two Kenya cases; R. v. Sironga (1918) 7 E. A. L. R. 148 and Suleman Ahmed v. Regem (1922) 9 E. A. L. R. 19.

In the former case, an illegal sentence had been passed by the subordinate Court and confirmed by the High Court, Hamilton, C. J. and Pickering, J., sitting in criminal revision held:-

(a) an order passed by the High Court in confirmation cannot be revised by the High Court; and

(b) an appeal lies to the High Court from a sentence of a subordinate Court even though it may have been confirmed by an order of the High Court.

In the course of his judgment, Sir Robert Hamilton said: -

"The practice of this Court hitherto has been to postpone making orders in confirmation or revision where notice of appeal has been given. but where an appeal has been entered subsequent to such orders having been made to proceed to deal with the appeal as though such orders did not exist. I am satisfied that this is the correct procedure in such cases, for the reason that the sentence whether confirmed or varied remains the sentence of the subordinate Court.

Section 19 (1) of the Criminal Procedure Ordinance relating to confirmation of sentence states that no sentence by a subordinate Court shall be carried into effect until the sentence has been confirmed by the High Court. And section 346 provides that when the High Court revises the sentence of a subordinate Court it shall certify its decision or order to that Court which 'shall thereupon make such orders as are conformable to the decision so certified'.

It is thus clear that the Ordinance regards the sentence of the subordinate Court whether confirmed or varied by the High Court as being still in its final form the sentence of the subordinate Court."

The latter part of this passage was, however, disapproved of in Suleman Ahmed's case where Pickering, J., and Barton, Ag. J., sitting in appellate jurisdiction held:-

- (a) at the hearing of an appeal lodged against a conviction entered by a Magistrate, an order of the Supreme Court, made in revision, altering the conviction cannot be reviewed; and - (b) an order confirming a sentence does not prevent a subsequent consideration of the sentence in the course of an appeal.

Pickering, J., delivering the judgment of the Court, expressly disagreed with Sir Robert Hamilton's view (with which he appeared to have agreed in Sironga's case) that "an order made by the Supreme Court upon revision is merged in and becomes a portion of the judgment of the Magistrate in respect of which the order in revision has been made".,

The conflict expressed in these two decisions may some day have to be resolved, but we cite these cases, not because we necessarily agree wholly with one or the other, but merely to illustrate the difficulties which may arise from the practice of making revisional orders to the prejudice of a convicted person before the period for giving notice of appeal has expired or before an appeal has been heard and determined.

We are disposed to agree with the view taken in both Sironga's and Suleman Ahmed's cases that an order confirming a sentence does not prevent consideration of the sentence in the course of an appeal. We think the same rule applies to an order confirming a conviction and we understand that this is the view generally taken and acted upon in the Superior Courts of the East African territories.

We are of opinion, however, that, save in cases where justice requires that an obviously improper conviction or illegal sentence be at once quashed or rectified, revisional powers should not be exercised before inquiry has been made whether an appeal has been or is likely to be lodged.