[1948] EACA 84

## APPELLATE CRIMINAL

## Before MODERA, Ag. J.

## REX, Respondent (Original Prosecutor)

## (1) OSURU HUBA, (2) OBURO ONGOR, Appellants (Original Accused) Criminal Appeals Nos. 379 and 380 of 1948 Consolidated

Criminal Law—Giving false evidence before a Native Tribunal—Native Tribunals Ordinance, section 29—Whether evidence material or relative—Distinction between "perjury" under the Penal Code, section 104, and "giving false evidence before a Native Tribunal"-Award of compensation for expenses incurred in previous Civil action—Competency.

Chief Amoth of the Alego Location, Nyanza Province, was sued before the Native Tribunal in 1947 for the recovery of a bull. The appellants, called as witnesses gave evidence amounting to an allegation that the Chief had stolen the bull. The case was dismissed. On appeal to the Appeal Tribunal the appellants gave similar evidence. Again the case was dismissed. Then the Chief sued the appellants before the Tribunal for defamation of his character by their evidence in the previous case and was awarded damages. On appeal to the District Officer this decision of the tribunal was reversed, the District Officer finding that the defamation proceedings should never have been brought. In June, 1948, the appellants were tried on two counts by the same district officer, sitting as 2nd Class Magistrate, with (1) giving false evidence against the Chief before the Native Tribunal in 1947, and (2) with later giving false evidence before the Appeal Tribunal. The appellants were convicted on the first count and apart from the sentence the Magistrate awarded Sh. 40 compensation to the Chief for the expenses he incurred in instituting the defamation proceedings against the appellant. On appeal

*Held* (4-10-48).—(1) That the definition of "perjury" under the Penal Code is distinct from the definition of "giving false evidence" under the Native Tribunals Ordinance in that there is no provision that the evidence must be material in the definition in the latter Ordinance.

(2) That the award of compensation in the circumstances was incompetent.

Appeals dismissed. Award of compensation set aside.

Kohli for the Appellants.

McBrierley, Acting Crown Counsel, for the Crown.

JUDGMENT.—These appeals have been consolidated.

Apart from the grounds of appeal mentioned in the memorandum of appeal learned Counsel has argued that it was irregular for the learned Magistrate, who had been responsible for the initiation of these proceedings, to hear the case. I can find no substance in this argument and do not consider that the appellants have been prejudiced in this regard.

As to the grounds of appeal urged in these memoranda the main and only ground which calls for comment is that the evidence which the appellants gave before the Native Tribunal was not material or relative evidence.

I would at once point out that these prosecutions were not laid for perjury under the provisions of the Penal Code: the prosecutions were under section 29, Native Tribunal Ordinance (Chapter XXXIX of 1930). This section reads as $follows: -$

"Whoever in any proceeding before a native tribunal gives evidence, whether upon oath or otherwise, which he knows to be false, or believes to be false or does not believe to be true, shall be guilty of an offence ..."

The definition of "evidence" is to be found in section 3, the Indian Evidence Act, 1872, and reads as follows: $-$ .

"'Evidence' means and includes:-

1. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry: such statements are called oral evidence."

It cannot be seriously contended that the Elders did not permit the appellants to make the statements attributed to them and that these statements were not made in relation to the matters of fact under inquiry, namely circumstances attaching to the acquisition of a bull by the Chief Amoth. I find no substance in this ground of appeal.

As to the remaining grounds urged on behalf of the appellants the learned Magistrate heard and saw the witnesses and there would appear to be no good ground for disturbing his decisions on fact Furthermore there would seem to be no good ground for the suggestion that he in any way misdirected himself. in finding the appellants not guilty on count 2 and then convicting them on count 1.

The appeals against the convictions are dismissed. As to sentences these cannot be said to have erred in any way on the severe side but the learned Magistrate has given his reasons and this Court is loath to interfere with his $\overline{\text{discretion}}$ .

I must, however, respectfully disagree with his reasoning when he considers that it is proper to award to Chief Amoth compensation for expenses in instituting proceedings which were terminated by the decisions in D. O. Appeal Civil Cases 109/47 and 2/48. The learned Magistrate by his own finding in. those cases decided that those proceedings should never have been instituted by Chief Amoth.

It is hardly fitting that an opportunity should be sought in the present prosecution to reimburse Chief Amoth for his previously ill-advised action.

That part of the sentences which purports to award compensation to Chief Amoth or in default of distress imprisonment is set aside.

Otherwise the appeals against sentences are dismssed.