[1945] EACA 39

## COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

### REX, Respondent (Original Respondent/Prosecutor)

# SADRUDIN JIWA ALI, Appellant (Original Appellant/Accused) Criminal Appeal No. 253 of 1945.

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal law-Unlawful possession of stores in Regimental charge-Regulation

15 (2), The Defence (His Majesty's Forces) Regulations 1941 (Tanganyika)--Appeal from decision of High Court of Tanganyika affirming conviction on appeal from a subordinate court—Second appeal not competent on questions of fact.

The facts in so far as they are material to the points on which the case is reported appear from the majority judgment of the Court.

Held (16-11-45)) (Sir Joseph Sheridan, C. J. and Sir G. Graham Paul, C. J.).-(1) That a second appeal does not lie on a point of fact.

(2) That the finding of the magistrate rejecting the accused's account of how he came by the military stores was a finding of fact from which no appeal lies to the second appellate Court.

Appeal dismissed.

Reid for the Appellant.

Carnegie, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN. C. J.).—There are concurrent findings of fact that an engine No. B. F. C. 435065 was discovered affixed to a Chevrolet motor vehicle, the property of the accused, at a garage belonging to one Subzali in Arusha on the 16th May, 1945. The discovery was made by Superintendent Jenkinson. On the 17th May, 1945, this same engine was found on the same vehicle by Lt. Slingsby and Sub-inspector Sarwan Singh when they visited the garage. There was ample evidence to prove that this engine originated from stores in regimental charge and that at one time it had been affixed to a W. D. Chevrolet vehicle which was stolen on the 5th May, 1945. Corporal Clark's evidence was that he had recorded *inter alia* on the 24th January, 1945, in a master log that the engine number of the vehicle in question was 435065 B. F. C. and that the engine in that vehicle was never changed while he was in Moshi. He was stationed in Moshi between December, 1944 and May, 1945, and was not transferred from there until June 1945. Lt. Oldfield had also checked the engine number "earlier in the year" (1945). There was evidence to support the concurrent findings of fact that this engine was brought to Subzali's garage about the 14th May, 1945, that it was fitted to the accused's vehicle by Subzali's mechanics and on his orders. Subzali's evidence was that the accused's Chevrolet truck when brought to his garage "had no engine... accused said he would produce an engine and everything necessary to put the truck in order. Accused brought an engine and it was fitted to the truck by my boys ... Engine fitted same day as it was brought. Mr. Jenkinson called a day or two after the engine had been fitted". The evidence of Mzee bin Hamisi, a boy employed by Subzali, was: "On morning at 8 a.m. arrived at garage where I found an engine. I was told by Subzali to put it in a chassis ... Ali helped me to fit the engine to the chassis. Engine fitted to a lorry chassis . . Accused brought lorry to garage. It was pulled by another vehicle".

Ali bin Mohamed, another employee of Subzali, said that he made a statement to the police about an engine brought to the garage by the accused. His evidence was: "It was to be fitted into his lorry. I fitted the engine to the lorry assisted by Mzee ... Subzali told me to fit the engine to the lorry". There was thus evidence that the engine No. 435065 B. F. C. which was discovered affixed to the accused's vehicle on the 16th May, 1945, by Superintendent Jenkinson had been brought to Subzali's garage by the accused and that fact was accepted by the defence as is shown $(a)$ by the omission of accused's counsel to cross-examine Ali bin Mohamed, $(b)$ by his counsel's submission that there was no case to answer being limited to the charge with respect to the tyres and $(c)$ his counsel's final submission recorded as "Submit clearly proved engine found in vehicle bought in Nairobi".

For the first time in this second appeal it was contended on behalf of the accused that an engine other than the engie brought to the garage by the accused was found fitted to his vehicle when the garage was visited by Superintendent Jenkinson and afterwards by Lt. Slingsby and Sub-inspector Sarwan Singh. It seems to us impossible even on first appeal to question the learned magistrate's finding of fact on this part of the case, but it is sufficient for us to say that it is not competent on second appeal to question it.

The final question is whether the learned magistrate should have been satisfied by the accused's explanation that he came by the engine lawfully and without contravention of the relevant regulations. The learned High Court Judge sitting in appeal said: "As regards the conviction in respect of the engine, it was open to the appellant to prove to the satisfaction of the trial magistrate that he acted in ignorance of the same being the property of the military and as has been held in Carr-Briant (29 C. A. R. 76) the burden of proof could have been discharged by the appellant with evidence satisfying the Court 'of the probability of that which he was called upon to establish'. The trial magistrate wrote in his judgment 'I do not believe the story put forward by the accused and in the absence of any explanation which satisfies me that he came by this engine and four tyres lawfully and without contravention of the regulations, I find him guilty of the offence charged'. This I consider can reasonably be interpreted to mean that the learned magistrate was not satisfied that accused's account of how he came by the engine could be accepted as being probably true".

The finding of the magistrate on this point whether right or wrong was undoubtedly a finding of fact in regard to which the appellant had a right of appeal to the High Court but not to this Court. The appellant did appeal to the High Court on this very finding of fact in ground 7 of his appeal to the High Court:-

"The learned Resident Magistrate's rejection of the appellant's evidence and explanation is contrary to the weight of evidence on record, unreasonable and unjust".

That ground of fact was very fully argued in the High Court and in regard to it the learned Judge said:-

"I consider that the learned magistrate had every justification for finding that the appellant had failed to satisfy him that he (the appellant) came by the engine lawfully and without contravention of the Regulations".

Sitting in second appeal our view is that it is not competent for this Court to interfere with this concurrent finding of fact. By a majority the appeal is dismissed.