[1943] EACA 35

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenva), SIR HENRY WEBB, C. J. (Tanganyika) and HAYDEN, J. (Kenva)

### REX, Respondent (Original Prosecutor)

# IBRAHIM H. LAKHANI, Appellant (Original Accused)

# Criminal Appeal No. 115 of 1943

### Appeal from decision of H. M. High Court of Uganda

Criminal Law-Appeal-Case stated-Magistrate directed by High Court to convict-Appeal to High Court-Appeal to Court of Appeal-Criminal Procedure Code (Uganda), Sections 307, 320, 331—Evidence Ordinance (Uganda), Section 112 $(g)$ .

The appellant was charged with obtaining money from his employers, the Old East African Trading Co., by false pretences. The false pretences alleged were: (1) that the appellant's books showed that he had bought from $Z$ hides to the value of Sh. $5,729/87$ , whereas in fact he had bought from Z a smaller quantity to the value of Sh. $3,014/52$ ; (2) that one entry in his books showed a purchase from J for Sh. $1,231/25$ , while another, by a difference in grading, showed the value as Sh. 1,206/25; and (3) that one entry in his books showed a "retail" purchase for Sh. 162/05, while another showed the amount as Sh. 148/70. At the trial Z swore that he had only sold hides to the value of Sh. $3,014/52$ . The appellant admitted this, but said he had bought the balance of the hides from D, and paid him for them, though the whole transaction had been entered in the name of Z. D was not called as a witness, but the appellant's shipping book showed that the correct amount of hides had been sent to his employers at Mombasa. As regards the second and third charges the appellant said that in fact he had paid the larger amounts to the knowledge of B, the Company's grader. B was not called as a witness. The Resident Magistrate held that, while "the contradictions in the appellant's books set up strong circumstances of suspicion against him, yet if the prosecution evidence leaves a possibility that one of two explanations is possible the presumption of innocence in favour of the accused operates"; and, as the prosecution did not call D and B he acquitted the appellant. On a case stated the High Court held that the onus was on the appellant to call D and B and that, he having failed to do so, the presumption under section 112 $(g)$ of the Evidence Ordinance would have to be considered; and it directed the Magistrate to convict. On appeal from the conviction to the High Court it was held that, so far as regarded the matters decided upon the case stated, the Order was "final and conclusive". (Criminal Porcedure Code, section $\cdot$ 331.) On appeal to the Court of Appeal:

Held $(20-8-43)$ .—(1) That, notwithstanding the decision upon the case stated, the appellant by virtue of Sections 307 and 320 of the Criminal Procedure Code had the same right of appeal as he would have had if he had been convicted by the Magistrate in the first instance; Simpson v. Nakuru District Council (6 E. A. C. A. 83).

(2) That as Section 112 (g) of the Evidence Ordinance only says "may presume etc."<br>and as the Magistrate had left vague his opinion of the effect of the evidence that had<br>been produced, the High Court should not have direc conclusion from the appellant's failure to call the witnesses D and B.

Kaplan for the Appellant.

Spurling, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The appellant appeals against his conviction upon three counts (out of ten upon which he was originally charged) for obtaining money by false pretences contrary to section 300 of the Uganda Penal Code. The first of these (Count 4) charged him with obtaining from the Old East African Trading Co., by whom he was employed as an agent for buying hides and skins, the sum of Sh. 2,715/35 by falsely pretending that he had bought from one Lakha Zaver 8,611 lb. of hides for Sh. 5,729/87, whereas in fact he had bought only 4,707 lb. of hides for Sh. 3,014/52. Count 8 charged him with obtaining Sh. 25 by falsely pretending that he had bought from Mr. Juma 2,785 lb. of hides for Sh. 1,231/25, whereas in fact he had bought 2,797 lb. for Sh. 1,206/25. Count 9 charged him with obtaining Sh. $13/35$ by falsely pretending that he had bought by retail sales Sh. 162/05 worth of hides, whereas in fact he had paid only Sh. 148/70 for the hides.

On Count 4 Zaver swore, and his books corroborated him, that he had only sold 4,707 lb. of hides for Sh. 3,014/52, though the appellant's books purported to show purchases from Zaver of 8,611 lb. for Sh. 5,729/87. In cross-examination, Zaver agreed that his contract with the Company bound him to supply a much larger quantity and that, as he was unable to fulfil it, he had agreed that one G. A. Dhanani should supply the balance, or so much of it as he could, but he said that he was unaware if Dhanani had in fact done so. The appellant said that Dhanani had supplied 3,904 lb, and been paid Sh. 2,715/35 therefor, and he explained the entries in his books of Purchase Slips in the name of Zaver by saying that, as the original contract was with Zaver, he had put all the purchases in Zaver's name, though Dhanani was paid for what he had supplied. In support of this he produced his Stock Book and his Shipping Book, which purported to show, by reference to the numbers of the different Purchase Slips, that the 8,611 lb. of hides apparently bought from Zaver had actually been despatched to the Company at Mombasa. He did not call Dhanani, but relied solely on the admission of Zaver and the evidence of his books.

With regard to Count 8, the evidence for the prosecution was that one of the appellant's books showed the value of the hides, and the price paid for them, as $\overline{Sh}$ . 1,206/25, while another, by a difference in grading, showed it as Sh. 1,231/25. The appellant explained this by saying that the seller, Juma Alibhai Dhanani, had objected to the first grading and that accordingly the hides were regraded by the Company's grader, Badru, and that he had paid the seller in accordance with the higher grading, and he said that the seller had signed the Purchase Slip in acknowledgment of the payment. In this case the seller was not available as a witness, but Badru, who was available, was not called.

On Count 9, again, the evidence for the prosecution was that one set of entries in the appellant's books showed a retail purchase for Sh. 162/05, while another showed the amount as Sh. 148/70. As to this the appellant said that, while he could not explain the discrepancy, he had paid the larger amount to Badru, as was usual in the case of Retail Purchases, and that Badru had signed the Purchase Slips in acknowledgment. Here again Badru was not called to corroborate this.

In these circumstances it seems to us that if the trial Magistrate had said either that he accepted the explanations given by the appellant, and believed that the signatures on the relevant Purchase Slips were those of Juma Alibhai Dhanani and of Badru respectively, or that upon the whole of the evidence he was not satisfied that the charges had been proved against the appellant, his decision could not well have been questioned: to do so would be, to adapt the words of Lord Shaw in Kerr v. Ayr Steam Shipping Co. (1915), A. C. 234: "A usurpation; because it would be making the Court enter the arbitrament of fact, and in that abitrament the Magistrate is the final judge, unless the conclusion he reaches can be

declared to be so unreasonable as necessarily to involve its being upset". But the Magistrate did not do either of these things. In his judgment he said: "It seems to me that the net effect of the contradictions in the two sets of books is this; that they set up srong circumstances of suspicion against the accused, which suspicion might be connected into proof of an offence by other evidence, either to show that the hides delivered by accused corresponded with the Godown Selection Books, in which case the payment slips would be manifestly fraudulent; or by positive evidence that the sums accused says he paid out were not in fact paid out. The first mode of proof has not been attempted and the prosecution has relied on the second mode. I have now to consider whether... they have succeeded or not". Upon this basis, in dealing with Count 4, after referring to the suggestion by the prosecution that Dhanani should have been called to prove the sale by him and payment to him, he said, "but the answer to that is that if the prosecution evidence leaves a possibility that one of two explanations of events is possible the presumption of innocence in favour of the accused operates so as to clear him of the obligation to prove that what he says is the correct explanation". He held that Count 8 failed because the seller was not available as a witness, and that Count 9 failed because the prosecution had not called Badru to prove the amount actually paid to him. On these grounds he acquitted the appellant, but, at the request of the Crown, stated a case for the opinion of the High Court.

Upon the hearing of the Case Stated the High Court held that, "The onus being on the appellant to account for all the moneys which he has debited against his employers, his explanation must be a reasonably satisfactory one, and it is for him, and not the prosecution, to call any witnesses who are in a position to support his explanation. If he fails to do so the presumption under section 112 $(g)$ of the Evidence Ordinance (the reference to section 112 $(f)$ is clearly a mistake) would have to be considered". The Court accordingly directed the Magistrate to convict upon Counts 4, 8 and 9.

The appellant appealed from the convictions recorded in pursuance of this order to the High Court. That Court held that the order made upon the Case Stated was "final and conclusive" (Criminal Procedure Code, section 331), and not subject to appeal, and, after considering the other matters urged before it, dismissed the appeal with a slight alteration of the sentence. From that decision the present appeal to this Court is taken.

In the case of Simpson v. Nakuru District Council (6 E. A. C. 83) this Court decided that, even though there may have been a conviction in compliance with an order of the High Court made upon a Case Stated, the accused is not thereby deprived of the rights of appeal given to him by sections 307 and 320 of the Criminal Procedure Code, in spite of the words "final and conclusive" contained in section 331. On the authority of this decision we are of opinion that Manning, J., was wrong in holding that the appellant was debarred from challenging the determination of the High Court in any way, and in confining the appeal to the consideration of certain matters only. Simpson's case appears to us to decide that the appellant had exactly the same right of appeal as he would have had if he had been convicted by the Magistrate in the first instance, although doubtless the learned Judge might have felt himself bound to follow the decision of the High Court upon the question of law raised and answered by the Case Stated. This Court is not so embarrassed, and, with respect, we are of opinion that, having regard to the evidence in this case, the learned Judges went too far when, after referring to section 112 (g) of the Evidence Ordinance, they directed the Magistrate to convict. By doing so they in effect ordered him to draw one particular conclusion from the appellant's failure to call the witnesses G. A. Dhanani and Badru. Section 112 (g) says that only where a party fails to produce evidence which he could produce the Court may presume that the evidence would, if

produced, be unfavourable to him, not that it must so presume. Now in the present case the Magistate had taken, as we respectfully agree, a wrong view as to whose duty it was to call these two witnesses, and had based his decision upon the failure of the prosecution to call them. In consequence his view of the effect of the evidence as a whole was left somewhat vague: the case was not one in which the facts being undisputed, or having been definitely found, the sole question was whether those facts did, or did not, constitute the offence charged. In these circumstances we are of opinion that the High Court was wrong in saving that had the Magistrate properly directed himself as to the onus of proof he" must have convicted, because as we have already said, he had left vague what was his opinion of the effect of the evidence. What we think that the High Court should have done was to direct him as to the party upon whom the onus properly. lay, and, the case on both sides having been closed without these witnesses having been called, to leave him to consider the effect of such evidence as had been given and to draw from the failure of the appellant to call them such presumption as he thought proper. Had this course been taken we entertain no doubt that, taking the evidence, which we have already summarized, as a whole, he must have come to the conclusion that the charges comprised in these three Counts had not been established against the appellant beyond all reasonable doubt.

<span id="page-3-0"></span>We accordingly allow the appeal and acquit the appellant. The fines, if paid, are directed to be refunded.

\* Case reported by Sir Henry Webb. C. J.