[1955] EACA 326

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal and Briggs, Justice of Appeal

# (1) FAZELABBAS SULEMANJI, (2) ABDULLA GULAMHUSEIN GOWANI. Appellants (Original Accused)

v.

### REGINAM, Respondent

### Criminal Appeals Nos. 851 and 852 of 1954

(Appeals from the decision of H. B. M. High Court of Zanzibar, Robinson, C. J.)

Appeal—Principles on which first appellate court acts before reversing trial court -Second appeal where suggestion of misdirection in first appellate court and where first appellate court reverses trial court's decision—Whether appellate court may act on explanation of facts denied by accused-"Omission to enter material particulars" in charge of fraudulent false accounting—Penal Decree, section 315 $(c)$ .

The first accused was charged on a number of counts charging fraudulent false accounting and theft and the second accused was charged on a number of counts for receiving stolen property. The trial magistrate convicted the first accused on all counts and the second accused on four out of six counts with which he was charged. On first appeal the appellate judge allowed the appeal of the first accused on some counts and allowed the appeal of the second appellant on the counts on which he was convicted.

The Crown appealed against the High Court judgment so far as it set aside the convictions entered by the trial magistrate and the first accused appealed against the said judgment in so far as it affirmed the convictions entered against him.

It was contended that the Crown's appeal was incompetent as a second appeal lies only on law and the Crown's appeal was on issues of fact. The record indicated that the Crown would contend that the first appellate Judge had misdirected himself on the evidence.

In respect of the counts for fraudulent false accounting it was alleged that it was the duty of the first accused to keep, correctly, a register of goods received into a certain store, and that he, with intent to defraud, omitted to enter therein "material particulars" of certain goods. It was, however, the Crown's case that the said goods had been stolen before the time they should have been received in the store and that they were never there received, and it was so held.

In considering certain of the evidence the first appellate Judge in allowing the appeal concerning certain counts ascribed to such evidence an explanation which the denials of the accused themselves negatived.

The Crown submitted that it was not open for the first appellate Judge, as he had done, to allow the appeal in respect of certain counts because he felt some doubt on the matter, the findings of the trial court's findings being based on sufficient evidence.

$\mathbf{I}$

Held $(28-2-55)$ .—(1) It is a question of law as to whether a first appellate court has misdirected itself.

(2) Where the High Court reverses the judgment of a subordinate court, it must<br>always be a question of law whether there existed sufficient grounds for such reversal, the position being different where the High Court has dismissed the first appeal.

(3) It is not open to an appellate court to accept or act upon an explanation dependent upon facts of which the existence was expressly denied by the accused at their trial

(4) For an appellate court, in allowing an appeal, to say "This matter is complicated" and we feel some doubt about it' is not enough. It must go further and say "This matter<br>is so complicated and uncertain that the court of trial ought to have felt some doubt about it."

(5) In a charge of fraudulent false accounting, if an event has not occurred it cannot be an "omission to enter any material particulars" if no entry in regard thereto is made, there being no material particular to be entered.

Appeal of first accused allowed on Counts 2, 5, 8 and 11. Crown's appeal allowed in part, order of High Court quashing convictions of the two accused on Counts 13, 15, 16 and 18, set aside.

Cases referred to: R. v. Bentley Current Law Year Book, 1953, para. 830. Times<br>Newspaper 14-1-1953; Fielding v. R., 26 C. A. R. 211; Bailey v. R., 18 C. A. R. 42;<br>Southern v. R., 22 C. A. R. 6; R. v. Tomlin, (1954) 2 Q. B. 274; S

#### O'Brien Kelly for first appellant.

$\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}}$

$\epsilon = \infty, \epsilon$

Murray for second appellant.

### Jasawalla for respondent.

JUDGMENT (read by Briggs, J. A.)—These were two appeals, which we consolidated, from an appellate judgment of the High Court of Zanzibar. Two persons were jointly tried by the Resident Magistrate, Zanzibar, on a charge containing eighteen counts. The first three were as follows: -

#### "FIRST COUNT

Statement of Offence

Stealing by a Person Employed in the Public Service Contrary to Section 267 of the Penal Decree (Cap. 9).

#### Particulars of Offence

Fazelabbas Sulemanji Mahuvawalla on or about the 24th day of January, 1952, in the Urban District of Zanzibar being on that date employed in the public service to wit the Police Department did steal 132 gallons of petrol value Sh. 309/09 which property came into his possession by virtue of his employment.

#### SECOND COUNT

### Statement of Offence

Fraudulent False Accounting Contrary to Section 315 (c) of the Penal Decree (Cap. 9). $\Box$

### Particulars of Offence

Fazelabbas Sulemanji Mahuvawalla on or about the 24th day of January, 1952, in the Urban District of Zanzibar being a clerk (employed in the Police Department of the Government of Zanzibar) with intent to defraud, omitted from or was privy to omitting from a ledger belonging to the said Police Department a material particular, that is to say the receipt on or about the said date of 132 gallons of petrol.

### **THIRD COUNT**

## Statement of Offence

Receiving Stolen Property Contrary to Section 308 (1) of the Penal Decree (Cap. 9).

## Particulars of Offence

Abdulla Gulamhusein Gowani on or about the 24th day of January, 1952, in the Urban District of Zanzibar did receive 132 gallons of petrol value Sh. 304/09 the property of the Police Department of the Zanzibar Government, knowing the same to have been stolen."

The remaining fifteen counts are in precisely similar form and refer to five other occasions, on each of which the first accused is alleged to have stolen petrol (and in some cases kerosene), and to have fraudulently omitted to enter the receipt of the same in the ledger, and the second accused is alleged to have received the stolen property. The dates of these five transactions were 11th February, 14th February, 18th March, 10th May and 25th July, 1952. The learned magistrate convicted the first accused on all the counts relating to him. He acquitted the second accused on Counts 3 and 12 and convicted him on Counts 6, 9, 15 and 18. Both accused appealed. The High Court allowed the appeal of the second accused and set aside all convictions and sentences on him. It allowed the appeal of the first accused in part and set aside the four convictions and sentences relating to the transactions of 10th May and 25th July, but affirmed the remaining convictions and sentences. The Crown appealed to this Court in Criminal Appeal No. 851 against the High Court's judgment so far as it set aside any convictions by the learned magistrate of either accused. The first accused appealed in Criminal Appeal No. 852 against the same judgment so far as it affirmed some of the convictions against him. It will accordingly be convenient to refer to the parties as "the Crown" and "the first and second accused," rather than as appellant or respondent.

Both accused contended as a preliminary point that the Crown's appeal was incompetent. A second appeal lies only on grounds of law, and it was submitted that the Crown's appeal was on issues of fact. We overruled this objection on two grounds, the first being that the record indicated that the Crown would contend that the learned Chief Justice had in certain respects misdirected himself as regards the effect of the evidence. The other was the wider ground that, where the High Court has reversed a judgment of a subordinate court, it must always, in our view, be a question of law whether there existed sufficient reasons for such reversal. The situation is of course quite different where the High Court has dismissed the first appeal.

We next heard Mr. O'Brien Kelly for the first accused and he dealt first with the convictions for false accounting. The facts were shortly that the first accused was a clerk in the office of the quartermaster of the Zanzibar police. The quartermaster is in charge of the police stores at Ziwani, among which are stores of petrol and kerosene in a separate building or part of a building. It was the first accused's duty to prepare in duplicate and submit to the quartermaster for signature order forms, known as Local Purchase Orders, for the purchase of various commodities required from time to time to be taken into stock in the store. It was also his duty to receive the goods so ordered and to see that they were taken on charge in the "Store Ledger Inventory". The Crown's case was that, as regards the petrol and kerosene in question, it had been bought on local purchase order and paid for by Government, but had been stolen by the first accused before it ever reached the store. The police store ledger was produced, and the pages relating to petrol and kerosene were in evidence. They are headed-

"Article $\ldots$ ...........

Unit $\ldots \ldots \ldots$

(Description on Invoice only to be used)

| | From or to whom | Date | Voucher<br>Number | Received | <b>Issued</b> | Balance" | |--|-----------------|------|-------------------|----------|---------------|----------| |--|-----------------|------|-------------------|----------|---------------|----------|

Judging merely from the form of this heading it appears to us that this "ledger" is really and is intended to be used as, a register of stores received into, held in, and issued from, the Ziwani store. It does not purport to be a record of purchases, as opposed to physical receipts. Moreover, the only evidence on the point, that of Mr. Wright, Deputy Superintendent of Police, and of Mr. Hull, the Quartermaster, is that the true purpose of the ledger is to record "receipt and issue", not purchase, of stores. It was the first accused's duty to keep this ledger, and, of course, to keep it correctly. Counts 2, 5, 8, 11, 14 and 17 charge that with intent to defraud he omitted to enter therein "material particulars, that is to say the receipt" of the petrol and kerosene in question. But the Crown's whole case was that the petrol and kerosene had been stolen before the time when it should have been received into the store, and that it never was so received. The learned magistrate so found and the High Court appears, subject to what is said hereafter, to have accepted this finding. We certainly do. It could not be the duty of the first accused to make false entries in the ledger, and if he had entered these goods as "received" the entries would have been false. To put the matter in another way, if an event has not occurred, it cannot be "omission to enter any material particulars" if one does not record that it has occurred. There is no material particular to be entered. No doubt the first accused committed various other accounting irregularities and possibly crimes. He falsely certified on the returned local purchase orders that the goods had been received, i.e. received by Government into the store, and also falsely certified that the relative entry had been made in the "store ledger inventory", which must, we think, refer to this ledger. But the actual offences charged as false accounting were not, and in the circumstances could not be, committed. It was no doubt prudent to add those counts in case the defence should be that the goods were duly received into store and in some way misappropriated later; but once it was found that they were never so received acquittal on Counts 2, 5, 8, 11, 14 and 17 should have followed. This point does not seem to have been taken, or as least taken so clearly, in the courts below. It may have been thought that the ledger was a record of purchases, in which case the convictions would have been proper; but the evidence is to the contrary. We allowed the appeal of the first accused so far as it related to the convictions and sentences for false accounting under Counts 2, 5, 8 and 11. Those convictions and sentences we set aside. The High Court had already set aside for different reasons, with which we are unable to agree, the convictions and sentences on Counts 14 and 17.

It was next argued for the first accused that there had been misjoinder of charges. It was admitted that the joinder was not actually unlawful, and that no application had been made for separate trials, but it was contended that the joinder was embarrassing and that the learned magistrate should in his discretion have disallowed it. The short answer to this is that all the evidence led on all counts against the first accused would have been admissible in proof of system and intention if he had been tried on any one of those counts alone. There was no misjoinder and no prejudice.

$\mathbf{I}$

The only other point argued on the first accused's appeal was that certain evidence admissible as against the second accused, but not as against the first accused, must have influenced the trial court against the first accused. The evidence consisted of memoranda written by the second accused and found in his possession, purporting to record payments made by him to the first accused. Counsel fairly admitted that he could point to no specific indication in the

judgment that this evidence had been used against the first accused, and we are certainly not willing to assume that it was so used in the absence of any such indication.

We dismissed the first appellant's appeal against his convictions for theft on Counts 1, 4, 7 and 10.

Mr. Jasawala for the Crown abandoned his appeal so far as it related to the charges against the first accused of false accounting under Counts 14 and 17 and so far also as it related to those against the second accused under Counts 6 and 9. He was therefore concerned only with the charges of theft and receiving on the last two occasions, namely 10th May and 25th July, under Counts 13, 15, 16 and 18. He dealt with the two occasions separately.

As to the former occasion he contended that the learned Judge in the High Court misdirected himself on the effect of the evidence and reversed the convictions of the two accused on the basis of a defence which was not open to them in view of their denials at the trial.

As to the second, Mr. Jasawala contended that the learned Judge had erred in law in setting aside the trial court's findings of fact without sufficient reason and without any critical examination of the evidence on which those findings were based.

The facts of the May transaction were complicated, but the learned magistrate found on sufficient evidence that the petrol and oil in question were stolen by the first accused and received by the second accused. The first accused signed for the goods as received and brought on charge in the store but made no entry in the Store Ledger Inventory. When asked under cross-examination for an explanation, he first said that the consignment had been delivered on his instructions to the second accused in return for petrol and oil which he had previously borrowed from the second accused, who is a petrol dealer. Later the first accused retracted this and said the May consignment was received by him at Ziwani and was put into the store. The second accused consistently denied that he had ever received the May consignment.

As regards the transaction of 25th July both the accused admitted that this consignment of petrol and kerosene was ordered by the first accused on Government account and was received by the second accused, their explanation being that it was in refund of a loan of similar quantities.

In the judgment of the High Court the two transactions are dealt with together. As regards the first accused the learned Judge says (we omit reference to the false accounting charges.):-

"As to charges 13 (and) 16 involving the possible Gowani loans I will allow the appeal. The transactions are too complicated to be free from all doubt."

As regards the second accused, the learned Judge says: —

"I allow the appeals concerning the incidents of 10th May, 1952 and 25th July, 1952, although in essence the proof was the same."

With respect we find this sentence rather obscure in meaning. In its context it probably refers to the dismissal of first accused's appeal from his convictions for theft on the first four occasions, those convictions having been based on evidence in essence the same as that relating to the May and July occasions. The judgment continues: -

"Borrowing petrol on loan from No. 2 to tiding over and making mention of it in the ledger and getting letters to support it, may well have been a blind to cover up this disposal of stolen property and thus allow the open use of transport for the purpose but it is difficult to say, at this distance of time, that the transactions must have been fraudulent and might not have been more or less true, so far as the receiver went.

Thus I allow the appeal of this appellant on Counts 15 and 18."

Counsel for the appellants have suggested that, in respect of the May transaction, the learned Judge felt some doubt as to whether this consignment of petrol and kerosene had been signed for by first accused or delivered to the second accused. We cannot accept this suggestion. Reading these passages from the judgment together the only meaning we can put on them is that the learned Judge would not have interfered with the convictions on the 13th and 15th Counts had he not been under the impression that this transaction might have been the return of a loan. Mr. Jasawala has contended that, as a matter of law, it was not open to the first appellate court to accept or act upon an explanation dependent on facts of which the existence was expressly denied by the accused at their trial. In support of this proposition he referred us to the case of R. v. Bentley (1953) in the Court of Criminal Appeal in England. No full report of the appeal is available to us but a sufficient note appears in Current Law for January, 1953, paragraph 423, and in The Times newspaper for 14th January, 1953. Bentley was convicted, together with one Craig, of the murder of a police-officer. He appealed on the ground, inter alia, that the joint enterprise on which he and Craig were engaged had come to an end before Craig had fired the fatal shot. In delivering the judgment of the court dismissing the appeal, Croom-Johnson, J., said (we quote from *The Times* report): -

"The other point was perhaps more interesting and more unusual. It was said that the appellant was arrested by police officers on the roof of a building, and that it was after he had been arrested that the shot was fired which killed the police officer in question. The argument was advanced that the joint enterprise was then at an end; but that depended on what the jury thought the joint enterprise was. Bentley was specifically asked whether he was under arrest at the time when the shot was fired, and he specifically denied it. The answers of the accused destroyed the point of law."

We accept Mr. Jasawala's proposition as correct. It is clear that the learned Judge did misdirect himself on the evidence given by the two accused as to the May transaction and consequently erred in law in ascribing to them an explanation which their own denials negatived.

As to the July transaction, to which Counts 16 and 18 related, Mr. Jasawala contended that the question left in issue was one of pure fact, namely, was it the return of a loan. The trial court had disbelieved the story of a loan and found on ample evidence that this, like the others, was a dishonest transaction. He submitted that when the findings of a trial court are based on sufficient evidence an appellate court is not entitled to set them aside merely because it finds the matter complicated or because it feels some doubt in the matter. It is, he said, an error of principle justifying the interference of a superior appellate court for an appellate court to reverse a trial court on insufficient grounds or on grounds not recognised as valid for an appellate court to act on. Counsel for the two accused contended that the learned Judge was entitled, if he found the matter obscure and doubtful, to substitute his own opinion for that of the magistrate. If he thought that the July transactions might have had reference to a loan, he was entitled, if not bound, to give the accused the benefit of his doubt.

We cannot accept that as an accurate statement of the function of an appellate court.

We think it is not sufficient for an appellate court to say "This matter is complicated and we feel some doubt about it". That will justify an acquittal in a court of first instance but an appellate court must be able to go further and say: - "This matter is so complicated and uncertain that the court of trial ought to have felt some doubt about it". The onus was upon the accused on first appeal to show that the findings of the magistrate were unreasonable or could not be supported having regard to the evidence, and there is no indication in the judgment of the High Court that the learned Judge appreciated and applied this principle. The learned magistrate in an admirably careful judgment examined and analysed all the relevant evidence: no suggestion has been made that he misdirected himself on the facts or omitted to take any relevant fact into consideration: there is no suggestion, nor could there be, that the evidence was not sufficient to support his finding or that his conclusion was unreasonable. In the circumstances we are constrained to say, with due deference, that the learned Judge in the High Court acted on a wrong principle in quashing the convictions on Counts 16 and 18.

For these reasons we allowed the Crown's appeal in part and set aside the order of the High Court so far as it quashed the convictions of the two accused on Counts 13, 15, 16 and 18.

Before concluding this judgment we wish to express our appreciation of the admirable way in which the record of appeal was prepared. Our understanding of this complicated case was greatly facilitated by the photostat copies of the many documents exhibited at the trial. We also wish to comment on the thoroughness and care shown in the investigation and presentation of the case: we have had so often to comment adversely on these matters in some of the East African territories, that we think it only right to record our appreciation in this case.