[1950] EACA 550

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON. Justice of Appeal

## REGINA. Appellant

$\mathbf{v}$

## (1) ALI ABDULLA SHIRAZI and (2) KHALID JAHA SHIRAZI, Respondents (Original Accused)

## Criminal Appeal No. 125 of 1956

(Appeal from the decision of H. B. M. High Court of Zanzibar, Windham, C. J.)

Procedure—Defective judgment—Whether defect renders trial a nullity—Zanzibar Criminal Procedure Decree, section 161 (1)-Zanzibar Penal Decree, section 240 (a) and (b)—Zanzibar Native Liquor Decree, section 5 (a).

The Crown appealed from a decision of the High Court quashing convictions and sentences imposed by the Magistrate's Court on three counts. The Crown conceded that there was insufficient evidence to found a conviction on the first count but submitted that although the judgment of the Magistrate was inadequate on the second and third counts there was sufficient material on the record to enable the High Court to consider the appeal from these convictions on the merits.

Held $(14-7-56)$ .—(1) In view of the failure of the Magistrate to make in his judgment any finding of fact on the discrepancy between the evidence of the only two witnesses to the charges on the second and third counts the convictions could not stand.

(2) Where there is a judgment, although a defective one, it does not follow that the trial is a nullity.

Appeal dismissed.

Cases referred to: R. v. Rashid bin Salim, 6 Z. L. R. 94; R. v. Mohamedali Juma<br>Sumar, 17 E. A. C. A. 154; R. v. Samwiri, 20 E. A. C. A. 277; R. v. Lute, 1 E. A. C. A. 106;<br>R. v. Derego, 20 E. A. C. A. 266; R. v. Desiderio, 20 E. A. C. A.

Appellants absent, unrepresented.

Carrick Allan, Acting Attorney-General, for respondent.

JUDGMENT (prepared by Worley, President).—In this appeal the Crown appealed against a judgment of the High Court of Zanzibar which quashed convictions and sentences imposed upon the respondents by the Resident Magistrate's Court, Zanzibar. The respondents were not present or represented before us, but after hearing the Acting Attorney-General we dismissed the appeal and now give our reasons for so doing.

The respondents were charged and tried jointly with—

- (a) being in possession of a greater quantity than 27 oz. of native liquor contrary to section 5 (a) of the Native Liquor Decree; and - (b) resisting a police officer in the due execution of his duty contrary to section 240 $(a)$ of the Penal Decree;

(c) assaulting a police officer in the due execution of his duty contrary to section 240 $(b)$ of the Penal Decree.

The case against them rested mainly on the evidence of a constable who swore that he saw both respondents on a bicycle which had a basket on the handle-bar. In the basket were two bottles which he seized and found to be full of date wine. The constable's story was that, when told they would be charged, the first respondent said: "We must settle it here". He then caught the constable by the chest (presumably by the coat) and snatched back the<br>basket and bottle. The first respondent then pulled the constable 20 paces away where the second respondent offered him a bribe of Sh. 5 in the form of a Sh. 20 note, asking for Sh. 15 change. The constable further said: "The sheha was sitting nearby and he saw me struggling with the two accused and he also saw the two bottles of date wine. I took the Sh. 20 to the sheha and showed it to him.... The shaha saw them pushing and pulling me about". The sheha's evidence was: "I saw the askari with two bottles in his hand. I do not know what was in them. The askari and the two men went aside and when the askari came back he produced a note of Sh. 20 from his pocket and showed it to me and told me that it had been given to him by the two accused.... Before they went aside the second accused caught hold of the askari and said to him: 'Let us go and talk'. He caught hold of him at the chest.... I do not know what happened to the two bottles... I heard the askari saying he had arrested the two accused with date wine".

Neither of the two respondents cross-examined these witnesses nor, when called on, did they make any defence. The learned Magistrate then noted as follows: "Finding. I find both the accused men guilty on all three counts". He then proceeded to sentence them.

It is not now disputed that there was insufficient evidence to support the convictions on the first count since there was no evidence of the size of the bottles or that they contained or could contain more than 27 fluid ounces.

The Crown, however, has sought to contest the correctness of the order quashing the convictions on the second and third counts on the ground that in spite of the obvious inadequacy of the Magistrate's judgment there was sufficient material on the record to enable the High Court to consider the appeals from these convictions on their merits: Samwiri, 20 E. A. C. A. 277 at p. 280. We think, however, that the learned Chief Justice was entirely correct on this point: after referring to the evidence which we have summarized above, he said: "the discrepancy between the evidence of the constable and that of the *sheha* called at least for some finding of fact on the point (of assault) in the judgment.... I do not think that from the mere fact of the conviction itself this Court would be justified in assuming to the prejudice of the accused that the Magistrate did prefer the evidence of the constable, for such an assumption would beg the question whether he had even applied his mind to the discrepancy and would tend to make a dead letter of the requirements of section 161 (1) (of the Criminal Procedure Decree)".

It is well settled now that the question whether a defective judgment is a curable or an incurable irregularity can only be answered after a consideration of the record and the circumstances of each case. The guilt of the accused may be so apparent that no other verdict than guilty is reasonably possible; Lute, 1 E. A. C. A. 106, *Derego*, 20 E. A. C. A. 266 at p. 268. On the other hand, if there has been no evaluation of conflicting evidence and necessary findings of fact do not appear on the record, the conviction will not stand: Derego (supra) Samwiri, (supra) and Desiderio, 20 E. A. C. A. 281. See also Willy John, E. A. C. A. C. A. 536 of 1955 (unreported).

The only point on which we respectfully differ from the learned Chief Justice is his finding that the defect in the Magistrate's judgment made the trial of the respondents a nullity. It is quite clear that in none of the cases cited so far in this judgment did this Court take that view. The only authorities to the contrary of which we are aware are Rashid bin Salim, 6 Z. L. R. 94, a decision of the High Court of Zanzibar in 1942; and Mohamedali Juma Sumar, 17 E. A. C. A. 154, a decision of this Court in 1950. It is not very clear from the report of Rashid's case what the subordinate Court actually did but in the judgment of Lucie-Smith, C. J., it is said: "There has been a verdict and sentence but no judgment... a complete omission of a judgment. The accused have not been tried according to law. Each of the four trials is, therefore, a nullity". We respectfully agree that if there was a complete omission of any judgment, the proceedings would be a nullity, just as surely as if the tribunal purporting to give judgment were not the tribunal established by law to do so: Joseph v. The King, (1948) A. C. 215; Loizeau and Gobin, E. A. C. A. Cr. A. 348 of 1955 (unreported). But where there is a judgment, though a defective one, the same consequence does not follow.

As to Mohamedali Juma Sumar's case, we think with deference that the statement that the irregularity in the proceedings was "such as to have rendered the trial a nullity" was made per incuriam. In that case, the subordinate Court found the appellant guilty (without recording its reasons) and heard evidence of his previous convictions. The Magistrate then adjourned the trial for "judgment" and sentence" and later delivered a reasoned judgment. This Court, on second appeal, held that the irregularity was "such a breach of legal principle and of proper legal procedure as to be incapable of cure under section 346 (a)". But it by no means follows that a trial which is vitiated because of an incurable irregularity has been "no trial at all".