[1943] EACA 58
The court found that the alleged offence was not a war offence and thus Regulation 80 of the Defence Regulations, 1939, did not authorize arrest without warrant. Furthermore, there was no evidence that the Tribal Policeman complied with section 8(2) of the Tribal Police Ordinance, 1929, prior to effecting the...
Source-derived case information.
- Citation
- [1943] EACA 58
- Parties
- Appellant: Mohamed Ali; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 88 of 1943
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_and_acquittal
- Judges
- Bartley J, Sheridan CJ
- Legal Topics
- Arrest Without Warrant, Assault on Police Officer, Essential Commodities Regulations, Tribal Police Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ali
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the Tribal Policeman was acting in the due execution of his duty when assaulted by the accused.
- 2 Whether Regulation 80 of the Defence Regulations, 1939, conferred authority to arrest without warrant for the alleged offence.
- 3 Whether section 8(2) of the Tribal Police Ordinance, 1929, was complied with before the arrest was effected.
Ratio Decidendi
The court found that the alleged offence was not a war offence and thus Regulation 80 of the Defence Regulations, 1939, did not authorize arrest without warrant. Furthermore, there was no evidence that the Tribal Policeman complied with section 8(2) of the Tribal Police Ordinance, 1929, prior to effecting the arrest, nor that the accused failed to comply with its provisions. The arrest was therefore unlawful. The accused's resistance did not amount to excessive force, as the Tribal Police had already subdued him before he drew his knife. Consequently, the accused could not be convicted of assaulting a police officer in the execution of his duty, as the officer was not acting lawfully at...
Court Disposition
appeal_allowed_and_acquittal
Orders
- The appeal is allowed.
- The accused is acquitted of all charges.
Full Case Text
Judgment text and source record
19 paragraphs
## APPELLATE CRIMINAL
## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.
## REX. Respondent
v MOHAMED ALI, Appellant
Criminal Appeal No. 88 of 1943
Arrest without warrant—Assaulting tribal police officer in due execution of
duty-Essential Commodities (Control of Distribution) Regulations, 1943-Tribal Police Ordinance, 1929, Section 8—Defence Regulations, 1939, Regulation 80.
Tribal police constables were sent by a police officer in charge of a police station to arrest any persons found offending against an order made under the provisions of the Essential Commodities (Control of Distribution) Regulations, 1943. The accused resisted arrest.
Held $(5-7-43)$ —(1) That an offence against the Essential Commodities (Control of Distribution) Regulations, 1943, was not a war offence and that the power to arrest without a warrant conferred by Regulation 80 of the 1939 Defence Regulations did not therefore apply.
(2) That the record did not show that the tribal policemen acted in accordance with<br>the provisions of section 8 (2) of the Tribal Police Ordinance, 1929, before effecting the<br>arrest and that there was nothing to show that provisions of that section.
The appeal was allowed.
(*Note*.—"War offence" is defined in Regulation 2 of the Defence Regulations, 1939.) Appellant present, unrepresented.
Spurling, Crown Counsel, for the Crown.
JUDGMENT.—The point in issue in this case is whether the Tribal Policeman was acting in the due execution of his duty when an assault on him took place. The Magistrate answering the question in the affirmative rested his decision on Regulation 80 of the 1939 Defence Regulations which reads: —
"Any police officer, any member of His Majesty's Forces acting in the course of his duty as such, and any person authorized by the Governor to act under these Regulations may arrest without warrant any person whom he has reasonable grounds for suspecting to have committed a war offence."
The offence alleged in the present case was not a war offence but one under the Essential Commodities (Control of Distribution) Regulations, 1943, to which Regulation 80 does not apply. Alternatively the Magistrate considered that he was entitled to hold that the Tribal Police Officer was acting in execution of his duty by virtue of section 8 of the Tribal Police Ordinance, 1929. The perusal of that section, particularly of S. 8 (2), will at once show that the section does not confer an authority of peremptory arrest without a warrant. The section provides: -
"Any person who shall fail to produce such licence, permit or pass when called upon by a Tribal Police Officer may be arrested without a warrant unless he shall give his name and address and shall otherwise satisfy the Tribal Police Officer that he will duly answer any summons or other proceed. ings which may be taken against him."
There is nothing on the record to show that the Tribal Policeman acted in accordance with the provisions of S. 8 (2) before effecting the arrest and nothing to show that the accused failed to comply with its provisions. On the contrary it is clear that the Tribal Policeman set out to arrest unnamed persons on the instructions of a Police Officer in charge of a police station who himself would not have had authority to arrest in the circumstances without a warrant. We have considered the question whether the accused in resisting what was an illegal arrest used excessive force and come to the conclusion that he did not. In the course of the arrest the Tribal Police succeeded in knocking him down and overcoming him, and it was not until then that he drew his knife.
The appeal is allowed and the accused acquitted.