[1947] EACA 50

## COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), THACKER, J. (Kenya), and STUART, J. (Tanganyika)

REX, Respondent (Original Respondent)

## (1) KAMPALA OIL, FLOUR AND SOAP MANUFACTURING CO., LTD., (2) NARSHIBHAI M. PATEL. (3) CHUNIBHAI M. RAO, Appellants

## (Original Appellants Nos. 1, 2 and 3)

Criminal Appeals Nos. 251, 252 and 253 of 1947

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

Criminal law-The Uganda Defence (Control of Prices and Distribution) Regulations, 1943, Reg. 11 (1)—Overcharging—Protectorate Order No. 1 of 1947 —Proof of Order.

The appellants were convicted, inter alia, of overcharging on the sale of simsim oil, the price of which was alleged to have been fixed by an alleged Order of the Price Controller, known as the Protectorate Order No. 1 of 1947, which was not published in the Official Gazette. At the trial the contents of the alleged Order were not proved by any admissible evidence. The appellants appealed.

Held (31-10-47).—That as it was not proved by any admissible evidence that the price of simsim oil had been fixed by the Controller no offence had been established as the existence of the Order could not be assumed against the appellants.

Appeal allowed on the first count,

Russell for the appellants.

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

JUDGMENT (delivered by NIHILL, C. J.).—The appellants in these appeals, which we have consolidated were convicted in the Magistrate's Court at Kampala on two counts charging them with offences under the Uganda Defence (Control of Prices and Distribution) Regulations, 1943. The first appellant is a limited liability company and the second and third appellants are the company's officers or servants. The appellants are entitled to succeed in this appeal so far as their convictions on the first count are concerned on a point which, although not specifically put forward in their memorandum of appeal, is one which this Court cannot ignore. The appellants were charged on the first count with overcharging contrary to a price fixed in an Order made by the Controller of Prices and known as "The Protectorate Order No. 1 of 1947", but the contents of this Order were not proved by any admissible evidence. A police inspector gave hearsay evidence of the prices set out in the Order and just before the close of the case for the prosecution he is recorded by the Magistrate as having put before the Court "a notice of controlled price of simsim". We must assume that this was a copy of the Protectorate Order which formed the basis of the charge, although it is not before us as it was made an exhibit in the case. Even had the document, whatever it was, been put in by the prosecution, it would not have constituted legal proof of the price fixed by the Controller for simsim unless it complied with the requirements of Regulation 20 of the Regulations (see page 106 of the Uganda Consolidated Edition of 1946). There is nothing on the record to show that the notice tendered by Inspector Griffin did contain a certificate in writing under the hand of the Controller. Deputy Controller or an Assistant Controller of Prices that the maximum wholesale price of simsim had been fixed by the Controller, and we cannot assume against the appellants, in the absence of the document that it did. It is highly regrettable that in a prosecution of this nature, which was intended to protect the public, that the officials of the Price Control **Department** should either take so little interest in the proceedings or that they

should neglect to apply provisions expressly enacted to make their duties easier of execution. Under the Regulation in question, the presence in Court of an official of the department to prove a price fixed by the Controller is dispensed with as in any proceedings instituted in any Court under the Regulations any relevant fact certified or purporting to be certified by the Controller or one of his officers must be admitted without further proof as prima facie evidence of the fact so certified. The law could hardly go further to ease the lot of the busy bureaucrat. Learned Crown Counsel, in a praiseworthy endeavour to save the situation, has sought to rely on the provisions of section 57 (1) of the Indian Evidence Act which appears in similar form in section 55 (1) of the Uganda Evidence Ordinance, but for this to avail a Court must have proof of the existence of the law or rule having the force of law. In the present instance we are assured by both Counsel for the appellant and respondent that Protectorate Order No. 1 of 1947 was not published in the Uganda Government Gazette.

It must be observed that we have not overlooked the observation in the judgment of the learned Judge who heard the appeal in the Court below that "there are in existence two orders which deal with the price at which this oil may be sold. The first is Protectorate Order No. 1 of 1947". If the learned Judge based this remark on his extra judicial knowledge he clearly erred, if he had some document before him which is not available to us it must have been the "notice" to which we have already referred and which for what reason we know not does not appear as an exhibit in the case.

It follows that the prosecution having failed to establish the first ingredient of the charge brought against the appellants on the first count, their convictions on that count cannot stand.

On the second count no question of law has been argued before us, nor indeed could he, as accepting the evidence of the decoy and the policeman who accompanied him, as this Court is bound to do, the offence of the appellants is clearly established.

Mr. Russell, although not entitled to appeal against sentence, has brought the matter to our attention, but even if we felt disposed to interfere with the discretion of the Magistrate, which we do not, this being a second appeal we are not prepared to intervene in this case.

In the result we quash the convictions and sentences imposed on the appellants in respect of the first count and we uphold the extant conviction against the first and third appellants on Count 2 and the sentences imposed upon them in respect of this count.