[1943] EACA 22

## COURT OF APPEAL FOR EASTERN AFRICA ...

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and MARK WILSON, Ag. C. J. (Tanganyika)

## MOHAMED HUSSEIN, Appellant (Original Accused)

## THE PRICE CONTROLLER, Respondent (Original Prosecutor)

## Criminal Appeal No. 3 of 1943

Appeal from decision of H. M. Supreme Court of Kenya

Defence Regulations, 1939, Regulation 84—Defence (Price of Goods) Regulations, 1941, Regulation 12—False information as to stocks—Wholesale or retail merchant—Sufficiency of evidence—Criminal Procedure Code, Section 357— Additional evidence ordered by Supreme Court—Court of Appeal Rules 18— Reference back to Supreme Court-Indian Code of Criminal Procedure, Section 428—Criminal Appeal Act, 1907, Section 9—Powers of English Court of Appeal and of Kenya Supreme Court (appellate jurisdiction)—Evidence Act (Amendment) Ordinance, 1936, Section 2—Onus of proof—Traders Licensing Ordinance, 1936.

The accused was convicted by the Resident Magistrate, Mombasa, of giving false information in answer to a request by the Price Controller made under Regulation 12 of the Defence (Price of Goods) Regulations, 1941, contrary to Regulation 84 (1) of the Defence Regulations, 1939. The information sought by the Price Controller was in respect of the accused's stocks of rice. The accused stated that he had 230 bags, whereas in fact 275 were found on his premises. The accused was convicted by the Magistrate, and appealed to the Supreme Court, who remitted the case to the Magistrate for the purpose of taking of further evidence on the question whether the accused was a wholesale or retail merchant. The further evidence made it clear that the accused was a trader and a wholesaler, and the appeal was dismissed. The accused thereupon appealed to the Court of Appeal for Eastern Africa, on the ground, *inter alia*, that the Supreme Court erred in ordering additional evidence under Section 357 of the Criminal Procedure Code.

Held (18-2-43).-(1) That there was sufficient evidence before the Magistrate to warrant a conviction.

(2) That the power to direct the taking of additional evidence was not improperly invoked by the Supreme Court in its appellate jurisdiction.

R. v. Sirasi, 3 E. A. C. A. 40 distinguished. Sohoni 12th Edition, commentaries to Section 428 at pp. 908 and 909 referred to.

Dictum in R. v. Robinson, 12 Cr. App. R. 226 at p. 227 approved.

(3) That in the circumstances of the case, the onus of proving that he was neither a wholesaler nor a retailer shifted to the accused, if it did not actually rest on him throughout.

Dictum in The King v. Kakelo (1923) 2 K. B. 793 at p. 795 approved.

The appeal was dismissed.

Figgis, K. C., and Christie for the Appellant.

Solicitor General (Brown), Kenya, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused was convicted by the Resident Magistrate, Mombasa, of an offence contra Regulation 12 of the Defence (Price of Goods) Regulations, 1941, and sentenced to a fine of Sh. 4,000 and three months' imprisonment with hard labour. The Regulation provides: -

"12. (1) The Price Controller, any Deputy Price Controller, any District Commissioner or any person authorized by any of them in writing, and any Price Inspector, or any Assistant Price Inspector if so authorized in writing by any of the aforesaid persons may, for the purpose of ascertaining whether the provisions of these Regulations, or of any other law for the time being in force relating to the control or regulation of prices, are being complied with, at all reasonable times enter and inspect any premises in the occupation or under the control of any wholesaler or retailer; and the Price Controller, any Deputy Price Controller or District Commissioner, or any person authorized by any of them in writing may demand the production of and may examine any books, accounts or other documents relating to the trade or business of any wholesaler or retailer, and may require any wholesaler or retailer to furnish, either verbally or in writing, and in such form as may be required. any information in relation to such trade or business.

(2) Any person who obstructs any person authorized by this Regulation to enter and inspect premises in the exercise of his powers under this Regulation, or who refuses or fails to produce any books, accounts or other documents, or to give any information required, relating to the trade or business upon demand being made by the Price Controller, Deputy Price Controller or District Commissioner or any person authorized by any of them, as the case may be, shall be guilty of an offence."

There was evidence before the learned Magistrate that the accused was a merchant who sold rice and had a shop with a godown at the back of it in-Mombasa and a shop at Lamu to which he despatched 45 bags of rice. This evidence in our opinion, in the absence of any rebutting evidence, was sufficient to raise a prima facie case that he was a wholesale or retail merchant or both. At the trial before the learned Magistrate, at which the accused was represented by an advocate, it was not even suggested that he was not either a wholesaler or retailer and he had in fact purported to comply with the notice (Exhibit 1) served upon him as such which required him to make returns of his stocks of rice and other commodities. This notice specifically referred to Regulation 12. At the time of the alleged offence the respective definitions of "wholesaler" and "retailer" under the Regulations then in force were:-

"'wholesaler' means a trader who sells goods in wholesale quantities to a retailer".

"'retailer' means a trader who sells goods to a consumer."

The accused's evidence, "I approached the Price Controller to let me sell at an increased price because some of the rice was damaged", does not raise a defence that he was not either a wholesaler or retailer. To say the least of it there was at the trial some evidence from which it could reasonably have been inferred that the accused was either a wholesale or retail merchant dealing in rice. It was not even hinted that he was an importer exclusively; the term "importer" was not mentioned. It is common knowledge that an importer may also be, and in this country generally is, a wholesaler or a retailer or both.

We ask ourselves then why we should seek for an unlikely interpretation of the evidence when there is a likely one staring us in the face. There was an implicit finding that the accused was either a wholesaler or a retailer in the conviction of the accused by the Magistrate, there was evidence to support such a finding, and the conviction and sentence were confirmed by the Supreme Court. The accused then appealed to the Supreme Court where, after directing that additional evidence should be taken, the Court dismissed the appeal. The question as to whether the accused was a wholesaler or a retailer was raised for the first

time (as a last resort, as it seems to us) in that appeal and the argument succeeded to the extent that a direction to have further evidence taken was given in the $\omega$ following terms: -

"There is a certain amount of evidence on the record that the appellant is a trader in rice, but it is not clear whether under the definition clause he is a 'wholesaler', a 'retailer', or both. We have therefore decided that the case must be sent back to the trial Magistrate under Section 357 Criminal Procedure Code for him to take such additional evidence as may be necessary to clear up this point. Such evidence to be taken forthwith and certified to this Court by Tuesday the 1st December, 1942."

Under the provisions of Rule 18 of the Court of Appeal Rules we have asked Lucie-Smith, J., as to the circumstances in which this direction was given and his report was to the effect that "My recollection is that when the case first came before us my brother Horne and myself came to the conclusion that there was some evidence that the accused was a trader, i.e. the shop and godown at Mombasa and the shop at Lamu. One of us, I forget which, was doubtful if such evidence was sufficient, and we therefore sent the case back to have the point cleared up. The further evidence made it quite clear that the accused was a trader and a wholesaler within the definition"

It will be observed from this report that the learned Judges had not decided to allow the appeal in the event of there being no further evidence and apparently only one of them was doubtful of the sufficiency of the evidence. The position then apparently was with regard to this question which had hitherto been undisputed that one Judge considered the evidence sufficient and the other was doubtful. Had the case remained at that and no further evidence been taken, the appeal would not have succeeded but would have been set down for hearing before three Judges (Section 358 Criminal Procedure Code).

Being of the opinion then that there was not only some evidence, but evidence which could have resulted in the dismissal of the appeal, had the Supreme Court proceeded to a decision of the appeal without additional evidence, we think the appeal to this Court must fail in any event. It was argued before us, however, that the learned Judges were not legally entitled to direct further evidence to be taken, bearing in mind this Court's refusal in the case of Rex v. Sirasi, 3 E. A. C. A. 40, to have evidence taken to fill up a gap in the Crown case, and that as they had done so, and acted on the additional evidence, the appeal ought to be allowed. But the two cases are not parallel, for in the cited case there was no evidence at all on an essential part of the case, whereas in the present case there was some evidence, the nature and cogency of which we have dealt with above.

Every case of this kind has to be considered on its own particular facts and circumstances and Courts should refrain from laying down a hard and fast rule which might result in a miscarriage of justice in individual cases. The power to call additional evidence when considered necessary is in the Code, and on the facts of this case we cannot say that it was improperly invoked. The following passage occurs in Sohoni (12th Edition: in the commentaries to Section 428, at pages 908 and 909): "This section contemplates further inquiry by taking additional evidence when the conviction by the lower Court has been based on some evidence which might legally support it, but which, in the opinion of the Appellate Court, is not quite satisfactory. It does not empower an Appellate Court so to act in a case where there is no evidence legally capable of sustaining the charge". Section 428 of the Indian Code of Criminal Procedure corresponds to Section 357 of the local Code. It was argued that the powers vested in the Court of Criminal Appeal under Section 9 of the Criminal Appeal Act, 1907, are substantially the same as those contained in Section 357 of the local Code, and we find the following dictum of the Court of Criminal Appeal (Reading, L. C. J.,

Avory, J., and Rowlatt, J.) in the case of R. v. Robinson, 12, Cr. App. R. 226, at p 227, apposite: "We are of the opinion that it is within the power of the Court to admit the evidence under those words in Section 9 of the Criminal Appeal Act on which Mr. Muir relies which gives the Gourt the same powers at the Court of Appeal possesses in civil matters. It is clear that the Court of Appeal in civil matters has power to admit evidence which would throw a material light on the issue. It is a power which must always be exercised with great care. As it is admitted that the evidence will throw a light on the matter in question we have decided to admit it". The reference to the powers possessed in civil matters in Section 9 does not affect our view that the powers of the English Court of Appeal and the Kenya Courts are substantially the same. The words in Section 357 of the local Code "if it thinks additional evidence is necessary" are very wide.

One aspect of this case deserving consideration and which was not mentioned in any Court is the application of Section 2 of the Evidence Act (Amendment) Ordinance, 1936, to the facts of this case. In so far as it is material it provides: "When a person is accused of any offence, the burden of proving... any fact especially within the knowledge of such person is upon him". Now it seems to us that the prosecution might reasonably and perhaps successfully have advanced the argument that in the circumstances of this case it was for the accused to prove that he was neither a wholesaler nor a retailer. We do not, however, in the absence of argument on the point, wish to say that this was so, nor do we find it necessary to do so. But we do say with the Court of Criminal Appeal in England in *The King v. Kakelo* (1923) 2 K. B. 793, at p. 795: "We think that the burden of proof may in the course of a case be shifted from one side to the other and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively". We are of opinion that in this case the burden of proving that he was neither a wholesaler nor a retailer shifted to the accused during the course of the trial. It would seem that a trading licence under the Traders Licensing Ordinance, 1936, enables the licensee to trade as an importer, a wholesaler or a retailer, or all three and it surely cannot be said that anyone has a better opportunity than the licensee of knowing the nature of his trading.

We summarize our views as follows: (1) there was sufficient evidence before the learned Magistrate to warrant a conviction; (2) the power to direct the taking of additional evidence was not improperly invoked; (3) in the circumstances of the case, the onus of proving that he was neither a wholesaler nor a retailer shifted to the accused, if it did not actually rest on him throughout.

The appeal against the conviction is dismissed. As to the appeal against sentence all we need say is that even if we had the power to interfere on second appeal in a matter of sentence, we would not feel justified in exercising that power in the circumstances of this case.