[1955] EACA 357

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Lowe, J. (Tanganyika)

# (1) LAILA JHINA MAWJI, (2) KASSAMALI KARIM MAWANI, Appellants (Original Accused Nos. 1 and 2)

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## REGINAM, Respondent

## Criminal Appeals Nos. 169 and 170 of 1955 (Appeal from the decision of H. M. Supreme Court of Tanganyika, Sir Herbert Cox, C. J.)

Husband and wife—Conspiracy—Monogamous and polygamous marriages— Presumption as to property in matrimonial home—Presumption under section 114, Indian Evidence Act—Retaining—Receiving—Prosecution not able to prove state of accused's mind when property came into his possession—Penal Code, sections 4 and 110.

The two appellants, who had been married according to the rules of the Ismailia Khoja sect, which, upon the evidence, was a marriage under rules recognizing polygamy, were charged with conspiring with each other to defeat the course of justice, contrary to section 110 of the Penal Code.

It was submitted that, being husband and wife, they could not conspire alone, as, in law, they were one person.

Section 110 (a) of the Penal Code provides: "Any person commits a misdemeanour who $(a)$ conspires with any other person... to do anything to obstruct, prevent, pervert, or defeat the course of justice."

Section 4 of the same Code provides: "This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith."

The appellants were also charged jointly with retaining property, namely a clock, knowing or having reason to believe that it was stolen. There was no evidence that the female appellant acted independently in retaining the clock.

The male appellant submitted that the clock had not been identified. It had been thrown away by his wife and not recovered. The trial magistrate, considering that the non-production of the clock was the fault of the two appellants applied the presumption against them under section 114 of the Indian Evidence Act, but the male appellant contended that the presumption only arose against his wife. There was evidence that when he heard from his wife what she had done, his subsequent conduct amounted to an adoption of her act.

Section 114 aforesaid reads: "The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the particular case."

The male appellant also submitted that as the prosecution was not in a position to prove that the original receipt of the clock was not an innocent receipt, there should have been some evidence pointing to the fact that he had acquired guilty knowledge that the clock was stolen property at some time subsequent to its receipt.

Held (10-8-55).—(1) The expression "any other person" in section 110 Penal Code is inapplicable to the spouses of a marriage recognized at common law; secus in the case of marriages not so recognized. The spouses of a monogamous marriage resident in Tanganyika are thus unable alone to conspire together within the said section, but the spouse of a polygamous marriage can do so.

Per curiam-It was surprising that the prosecution thought it a proper case for prefering a charge of conspiracy against two persons who were lawfully married and living together in a common matrimonial home under conditions in all respects similar to a monogamous union.

(2) There is a natural presumption, in the absence of evidence to the contrary, that the property gathered together in a matrimonial home is that of the husband and in his<br>possession. Where a wife is living together with her husband in the matrimonial home, she cannot be convicted of receiving or retaining stolen property found therein unless there is evidence that she acted independently of her husabnd.

(3) As the first accused had adopted the wife's act in throwing away the clock, which was thus not available, the default was as much his as hers, and the presumption under. section 114 of the Indian Evidence Act arose against both of them.

(4) Where the prosecution is not in a position to prove, in a case of retaining property the state of the accused's mind at the time it came into his possession, there is no onus on the Crown to show exactly when he acquired the necessary guilty knowledge.

Appeals of both appellants on count 1 dismissed. Appeal of male appellant on count 2 dismissed. Appeal of female appellant on count 2 allowed.

Cases referred to: Hyde v. Hyde, (1866) L. R. 1 P. & D. 130; Nyali Ltd. v. Attorney-General, (1955) 1 A. E. 646; R. v. Baines, 69 L. J. Q. B. 681; Harji Kuverji Patel v. R.,<br>post page 536; Nawab Howladar v. Emp., 40 Cal 891; Lenson Ambindwile s/o Mafubila<br>v. R., ante page 448; Sharpe & Springer, 26 C. A. R. 12 *V. Sherali Jeraj, ante* page 142; *Abdulla v. R., 5 T. T. L. R. Sup. No. 5/54, 1954; Tomasi Mutaka v. R. E. A. C. A. Cr. A. 155/1955; R. v. Macharia Kichuhi, 15 E. A. C. A. 53; <i>Patel and another v. R., E. A. C. A. Cr. Apps. 970 and*

#### Master, Vellani and O'Donovan for appellants.

#### Summerfield, Acting Solicitor-General, for respondent.

JUDGMENT (prepared by NIHILL (President)).—These two appeals, which were consolidated, concern the case of a husband and wife who are members of, and were married in accordance with, the rites of the Ismailia Khoja community. They were charged and tried together before a resident magistrate in Dar es Salaam on two counts. The first count alleged that they had conspired together to obstruct and defeat the course of justice contrary to section 110 $(a)$ of the Tanganyika Penal Code and on the second count they were charged jointly with retaining property knowing or having reason to believe that it was stolen. The property in question was a wall clock of German manufacture bearing the trade mark "Mouthe". Both the appellants were convicted and on appeal to the High Court of Tanganyika their appeals were dismissed. The High Court at the instance of the Crown substantially increased the sentences imposed by the magistrate so that the wife is now serving two years and the husband three years' imprisonment. As a second Court of Appeal we cannot concern ourselves with the question of sentence since the ones imposed by the court below are not unlawful. We only mention the matter to show the importance of the case to these appellants. Both courts below have written long judgments in which the evidence has been set out at length and carefully examined. We do not propose therefore again to refer to the facts of this somewhat exceptional case in detail, and we shall only do so when it is necessary for our consideration of the point of law involved.

The first point in this appeal, and it is a very important one, is whether these two appellants as a lawfully married husband and wife could be charged with conspiracy at all. If the doctrine of the English common law that husband and wife are one person is applicable to these two appellants there can be no doubt that count one was ill-founded. The learned Magistrate addressed his mind very carefully to this problem. He found as a fact, on the evidence before him, as did the appellate court below, that a marriage according to the rules of the Ismailia Khoja sect cannot be classed as a monogamous one. We cannot say that there was not evidence to support this finding. The Secretary of the Ismailia Provincial Council in Dar es Salaam was a witness for the defence and he described himself as a high official of his community which he said was a sub-sect of the Shia Sect of Mohammedans. He stated categorically that marriage in his community was monogamous but he produced and put in evidence what he said was the latest edition of the Constitution, Rules and Regulations of the Ismailia Council of Africa. It was on his study of these rules that the learned magistrate based his conclusion, and if the definition of a monogamous marriage as given by Lord Penzance in Hyde v. Hyde (1866) L. R. 1 P. and D. 130, is accepted as the test. there can be no doubt that he was right.

"I conceive that marriage as understood in Christendom may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others."

The appellants are both members of the Khoja sect, they were married in Dar es Salaam and their matrimonial domicile is there. It is unquestionable therefore that the law applicable to their marriage is their personal law as laid down in these Rules.

Having looked at the Rules ourselves we see no reason to question the correctness of the magistrate's analysis which he set out in the following passage:

"After considering these rules and his evidence I see no reason for saying this marriage of the accused is monogamous. On the grounds set out in rule 19 $(a)$ , a husband can marry a second wife with the permission of the Council and must deposit a minimum sum with the Council, the income from which is paid to him for the maintenance of the first wife if she continues to live with him and direct to her if she leaves him. This taking of a second wife does not operate as a divorce of the first wife—if she wants to remarry she must apply for divorce and then wait four months—and she can choose to continue to live with her husband. There is nothing to say that she can enforce full conjugal rights but equally there is nothing to say the husband cannot exercise them with impunity. However close to monogamy the Ismailia Khoja sect are coming, I am satisfied that this situation of one wife and another optional or semi-wife is not monogamous and not the kind of union to which legal unity is accredited in English criminal law."

The interesting question therefore which arises is, whether a conception of the common law, based on a monogamous marriage system has any relation to a system of marriage which permits polygamy even although under stringent conditions? Both the magistrate and the learned Chief Justice were of the opinion that the possibility that a husband could take unto himself more than one wife at one time ousted the common law fiction that husband and wife are one person in the eyes of the law, and after much consideration we have come to the same conclusion. Mr. Summerfield, who has argued this appeal for the Crown with his usual ability, has submitted that the matter is governed by the wording used in section 110 of the Tanganyika Penal Code, and that the question of the application or non-application of any common law principle does not really arise. The section makes it an offence for "any person" to conspire with "any other person" and since there is no exception or provision covering married spouses, the word "person" must be construed in its ordinary meaning. The argument is an attractive one because if it could be accepted it would place the law as regards conspiracy between spouses in Tanganyika on the same footing, no matter what the nature of the marital union. In view, however, of section 4 of the Tanganyika Penal Code we consider the submission is unsound. This section reads as follows:

"4. This Code shall be interpreted in accordance with the General rule principles of legal interpretation obtaining in England, and of construction expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith."

This is a section laying down by local statute that as a general rule of construction expressions used in the Code shall be presumed to have the meaning attached to them that they would have in English criminal law unless inconsistent with context. Nothing can be more certain than that in England a husband and wife cannot alone be found guilty of conspiracy "for they are considered in law as one person and are presumed to have but one will. 1 Hawk. c. 72 s.8" (33rd Archbold at p. 22). Under English criminal law the expression "any other person" could not be applied to either spouse of a union recognized as a marriage under the English common law, for both spouses are regarded as one person. We are fully persuaded therefore that spouses of a monogamous union resident in Tanganyika cannot commit an offence under section 110. The position where the union is polygamous is not the same because a union of this kind would not be recognizable as a marriage at all within the framework of the English common law. We are aware, of course, that in modern times a tendency has manifested itself to include within the term "marriage" forms of marital union of a character wholly unchristian in concept, and that such unions have been and can be considered valid marriages under English law for certain purposes; it is a different thing however to extend, as we are now asked to do by these appellants, the common law fiction that husband and wife are one person and possess one will, to a form of union where the female spouse is not limited to one. We have not the library here at our disposal to enable us to trace the precise source from which the common law doctrine has sprung, but that it was Christian in character we have little doubt. To apply a doctrine based on the principle that the sacrament of marriage constitutes the parties "bone of one bone and flesh of one flesh" to forms of marital union based solely on a contractual conception would to our mind be entirely wrong. In the recent case of Nyali Ltd. v. Attorney-General in the Court of Appeal (1955) 1 A. E. L. R. 646 Lord Justice Denning, when considering the proviso to Article 15 of the 1902 Kenya Order in Council, spoke of the great task entrusted to Judges in these Territories to prune and cut away the offshoots of the common law uncongenial to the soil of the African Continent. Fortunately here our task is not so onerous, because we have not to consider the cutting away of a principle which would, prima facie, be applicable. We are merely refusing to extend a doctrine to a set of circumstances to which under the common law the doctrine could never have been applied. It may be that Mr. Summerfield would like us to regard the application of the doctrine to monogamous marriages between spouses in Tanganyika as an offshoot to which the pruning knife should now be applied. This we cannot do however by reason of section 4 of the Penal Code which must govern the construction of section 110. On this part of the appeal accordingly we approve the view taken in the courts below that the appellants were properly chargeable under count one.