[1946] EACA 38

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and PEARSON, J. (Uganda)

REX, Respondent (Original Prosecutor)

ν.

(1) MULJI JAMNADAS, (2) YOWANA KATENDE, (3) GENZI s/o YOWANA, (4) KALAMANZIRE, (5) BADRU s/o MUSA, Appellants (Original Accused)

Criminal Appeals No. 111, 112, 113, 114 and 115 of 1946

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

Criminal Law—Conspiracy—Uganda Penal Code S. 380—"Unlawful means"— Practice—Particulars of charge—Omission—No failure of justice.

The appellants were tried and convicted by the Resident Magistrate, Mengo District, Uganda, on a charge of conspiracy framed as follows: -

"Conspiracy, contrary to section 380 of the Penal Code.

## PARTICULARS

The accused on divers days in the months of November and December, 1945, and January, 1946, conspired together to recruit ... "

The evidence generally was that the appellants during the months stated toured the neighbourhood of Masaka in a lorry to recruit labour for the Company's Sugar Works, and that acting together they did on a number of occasions compel natives by the use of force and threats of force to get into their lorry and submit to be carried away on it for labour at the Sugar Works.

They were convicted and appealed.

Held (1-6-46).—(1) The term "unlawful means" includes civil wrongs as well as acts punishable criminally if done by one person.

(2) The "unlawful means" adopted in this case were in many cases criminal and certainly tortious.

(3) The omission to state in the charge particulars of the acts constituting intimidation did not embarrass the defence or cause a failure of justice.

Appeals dismissed.

Cases referred to: Reg. v. Parnell and others (14 Cox 508); Reg. v. Druitt (10 Cox 592).

Baerline (Parekhji with him) for the appellants.

Dreschfield, Crown Counsel (Uganda) for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—This appeal arises out of proceedings in the Court of the Resident Magistrate, Kampala, In these proceedings there were a number of charges brought against the five appellants (and one other who was acquitted on all the charges). There was an appeal from the Magistrate's Court to the High Court and the matter comes before this Court by way of second appeal, the High Court having substantially confirmed the decision of the Magistrate's Court.

The charges in the Magistrate's Court were one of conspiracy and four of acts of wrongful confinement. These charges were all tried together. All the appellants were convicted on the conspiracy charge and it will be convenient at once to set the exact terms of the conspiracy charge which were as follows: —

"Conspiracy contrary to section 380 of the Penal Code."

## **PARTICULARS**

The accused on divers days in the months of November and December 1945 and January 1946 conspired together to recruit natives to be employed at the Kakira Sugar Works of Vithaldas Haridas & Co. Ltd., by unlawful means. In that they conspired together to intimidate labour into the employment of the said Kakira Sugar Works."

Section 380 of the Penal Code (omitting words having no application to this case) is in the following terms: $-$

"Any person who conspires with another to effect any of the purposes following, that is to say $\ldots$

(7) To effect any lawful purpose by any unlawful means, is guilty of a misdemeanour."

This being a second appeal, it lies only on questions of law and we proceed to consider the questions of law raised.

The first and main ground of the present appeal has reference to the form of the charge which is attacked for the following reasons: -

- (1) That intimidating labour into employment is not an offence known to the criminal law of Uganda and therefore does not constitute "unlawful means" within the meaning of section 380 of the Penal Code. - (2) That even if "intimidating labour into employment" were a sufficient allegation of "unlawful means" the charge was defective in that the particulars were inadequate and embarrassing to the defence in that the particular methods of intimidation were not specified.

As regards the first of these reasons it is useful to refer to the English law and the English authorities on conspiracy, as the English law is identical with the law of Uganda on the point in issue. Archbold (31st Ed. p. 1408) defines conspiracy as an agreement of two or more persons "to do an unlawful act, or to do a lawful act by unlawful means", and at page 1409 of the same volume we find the following passage:—

"The term 'unlawful' in the definition has been held to include civil wrongs as well as acts punishable criminally if done by one person."

That proposition was made quite clear in the judgment in the case of Reg. v. Parnell and Others (14 Cox 508). Where with approval is quoted the dictum of Baron Bramwell in the case of Reg. v. Druitt (10 Cox 592) as follows:-

"The public had an interest in the way in which a man disposed of his industry and his capital; and if two or more persons conspired by threats. intimidation or molestation to deter or influence him in the way in which he should employ his talents or his capital they would be guilty of an indictable offence—that is the common law of the land."

Those authorities dispose of the first reason urged by appellant's Counsel, by showing that a tort which is not a criminal offence is sufficient to satisfy the provision as to "unlawful means".

We agree with the learned Judge in the High Court that it is impossible to conceive any circumstances in which the intimidation of a person to enter into a particular employment would not be at least a tort, an infringement of the civil right of such person to employ his talent as he pleases.

We are satisfied on the findings of fact by the Magistrate that the appellants' acts complained of were in many cases criminal acts of various kinds and degrees and certainly tortious as well. It is also clear that they were all in agreement in what they did.

As regards the second reason put forward by appellants' Counsel it is true that the charge does not specify or classify the different acts constituting the intimidation. If it had done so it would certainly have been a most prolix document. But the question to be answered is whether the charge was so defective for lack of specification as to embarrass the defence. In the circumstances of this case it cannot be said that there was such embarrassment. The appellants were in the habit of going out in a specially labelled motor vehicle for the purpose of recruiting labour for the sugar works in question and in fact did so on the dates specified in the charge. They must have known that the allegation of intimidation referred to these recruiting journeys and to their conduct on such journeys. It is apparent from the conduct of the defence at the trial that the defence was prepared to meet the charge—some ten witnesses being called for the defence as to the way these recruiting journeys were conducted and there being no application for any adjournment to call further evidence or any suggestion that any further evidence was available for the defence.

In these circumstances it does not seem to us that the alleged omission to give further specification of the acts which were to be proved in order to show the intimidation did in fact occasion any failure of justice and we accordingly find no reason in this ground of appeal for interfering with the findings and sentences of the Magistrate's Court.

A further point was raised as to the Magistrate having relied on a statement by Mr. Creasey at the bar as to the opportunity which prosecution witnesses had at Masaka of getting to know the appellants by sight. Clearly this was improper. If Mr. Creasey wished to say anything on that subject he should have applied to give evidence on the subject when of course he would have been liable to cross-examination. But it is clear that what impressed the Magistrate most about the identification parade was not the identification of appellants but the fact that the witnesses did not pick out Badru who was one of the accused but who, as it turned out, established an alibi. If the witnesses had been basing their identification on what they saw at Masaka and not on what they saw at the times the acts complained of were committed they would or might have picked out Badru. That they did not pick him out was regarded by the Magistrate as "a pointer to the truth of their story". The Magistrate did not on Mr. Creasey's statement decide the question whether the witnesses had the opportunity of getting to know the accused by sight at Masaka. He simply remarked "from what Mr. Creasey told me .... I don't think it was the case", and proceeded straight away to the important point of the non-identification of Badru. We do not consider that this statement by Mr. Creasey at the Bar was of such a nature that if it had not been made there would have been any difference in the results at which the learned Magistrate arrived in his judgment.

For these reasons the appeals are dismissed.