[1941] EACA 66
The Court held that a second appeal is only permissible on a matter of law, not on questions of fact. The appellant failed to demonstrate any legal issue arising from the lower courts' decisions, as both the magistrate and the Supreme Court had considered the evidentiary presumption regarding the cheque counterfoil...
Source-derived case information.
- Citation
- [1941] EACA 66
- Parties
- Appellant: H. M. Kala; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal AppealNo. 71 of 1941
- Procedural Posture
- Criminal Appeal / Application for Leave to Appeal (second Appeal)
- Outcome
- leave to appeal refused
- Judges
- Thacker J, Webb, J, Whitley CJ
- Legal Topics
- Second Appeal, Questions of Law, Findings of Fact, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H. M. Kala
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Appeal (second Appeal)
Legal Issues
- 1 Whether a second appeal can be entertained on a question of fact.
- 2 Whether the omission to produce the counterfoil of the cheque raises a presumption under section 114 of the Evidence Act.
Ratio Decidendi
The Court held that a second appeal is only permissible on a matter of law, not on questions of fact. The appellant failed to demonstrate any legal issue arising from the lower courts' decisions, as both the magistrate and the Supreme Court had considered the evidentiary presumption regarding the cheque counterfoil and found sufficient factual evidence to support the conviction. Therefore, the application for leave to appeal was refused, reaffirming the principle that findings of fact by the second court are final unless a point of law is involved.
Court Disposition
leave to appeal refused
Orders
- Leave to appeal is refused.
Full Case Text
Judgment text and source record
14 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
Before SIR NORMAN WHITLEY, C. J. (Uganda), SIR HENRY WEBB, C. J. (Tanganyika). and THACKER, J. (Kenya)
# REX. Respondent
### v H. M. KALA, Appellant
#### Criminal Appeal No. 71 of 1941
### Appeal from decision of H. M. Supreme Court of Kenva
Application for leave to appeal from judgment of Supreme Court of Kenya in its appellate jurisdiction on question of fact.
Appellant was originally convicted in a subordinate court. His appeal to the Supreme Court of Kenya having been dismissed appellant sought leave to appeal to this Court. There was evidence to support the conviction and leave was sought. to appeal on a question of fact.
Held (15-8-41).—That a second appeal could not be entertained unless it was on a point of law. Ramgopal v. Shaniskhaton 20 Calc. 99 followed.
Leave refused.
Trivedy for the appellant.
Spurling, Crown Counsel, for Crown.
ORDER (delivered by SIR NORMAN WHITLEY, C. J.).—This being a second appeal it cannot be entertained unless it is on some matter of law. Mr. Trivedy in his ingenious argument has been unable to show that any matter of law isinvolved. As the Privy Council observed in Ramgopal v. Shamskhaton 20 Cal. 93 at p. 99, "It has now been conclusively settled that the third Court cannot: entertain any appeal upon any question as to the soundness of findings of fact by the second Court; if there is evidence to be considered, the decision of the second Court however unsatisfactory it might be if examined must stand final".
In the present case it is argued that the omission of the prosecution to produce the counterfoil of the cheque raises a presumption under section 114 of the Evidence Act that no such counterfoil existed. But that point was duly considered. both by the learned magistrate and the Supreme Court and there being ample other evidence, if believed, before them they were satisfied that the case against the appellant was established. The case depended entirely on the facts and we accordingly refuse leave to appeal.