Wakilii

Devraj v Reginam (Criminal Appeal No. 128 of 1955)

East African Court of Appeal · [1955] EACA 348 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by High Court of Uganda following conviction in District Court of Mengo for unlawful residence after expiry of temporary employment pass
Decision
Appellant's conviction and fine of Sh. 200 upheld. Court expressed hope that responsible authorities would consider passage from earlier Court of Appeal judgment regarding good citizens who should not be deprived of permanent residence rights merely because of technical objections to original entry.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the appellant failed to prove lawful entry under the Defence (Immigration) Regulations 1944, and his residence was only lawful during the currency of two temporary passes and during a seven-month period in 1948. He therefore accumulated only three years and nine months of lawful residence, insufficient to qualify for permanent residence. The Governor's order continuing the 1944 Regulations until 31 December 1947 was intra vires. The burden of proving entitlement to remain after expiry of a pass lay on the accused under section 104 of the Evidence Ordinance. Appeal dismissed.

Outcome

Appellant's conviction and fine of Sh. 200 upheld. Court expressed hope that responsible authorities would consider passage from earlier Court of Appeal judgment regarding good citizens who should not be deprived of permanent residence rights merely because of technical objections to original entry.

Facts

The appellant, a British protected person from India, entered Uganda in April 1945 to work as a carpenter. He reported to Soroti Police Station and left his passport there. In January 1949, he was charged with unlawful entry and failure to report under the Defence (Immigration) Regulations 1944, but these charges were withdrawn as time-barred. He was then issued a Special Pass valid for two months on 17 January 1949, followed by a Temporary Employment Pass valid for three years on 11 March 1949. This pass expired on 11 March 1952. In April 1954, he applied for a certificate of permanent residence, claiming five years' aggregate lawful residence within the preceding eight years, or alternatively claiming permanent and lawful residence since 1 August 1948. He was convicted of unlawful residence after expiry of his pass under section 15(b) of the Immigration (Control) Ordinance.

Issues

  1. Whether the appellant's original entry into Uganda in April 1945 was lawful under the Defence (Immigration) Regulations 1944.
  2. Whether the appellant's residence had become lawful by effluxion of time or by virtue of passes issued to him by immigration authorities.
  3. Whether the Governor's order purporting to keep in force the Defence (Immigration) Regulations 1944 until 31 December 1947 was ultra vires.
  4. Whether the appellant qualified for a certificate of permanent residence under regulation 3 of the Immigration (Control) Regulations.
  5. Whether the burden of proof lay on the prosecution or the appellant to establish lawful entry and residence.
  6. Which definition of 'permanent residence' applied where the offence was continuing but the definition had been amended during the period.

Orders

  • Appeal dismissed.

Rules and key headnotes

Evidence — Burden of Proof — Criminal Offences — Exception to Operation of Law Creating Offence
Under section 104 of the Evidence Ordinance, the burden lies upon an accused person to prove the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged.
Immigration — Unlawful Entry — Permanent Residence — Qualification by Effluxion of Time — Requirement of Lawful Residence
To obtain the status of a permanent resident by effluxion of time, the qualification period must be lawful residence. A prohibited immigrant cannot acquire lawful status merely by avoiding detection and conviction for five years.
Immigration — Temporary Passes — Effect on Status — No Waiver of Unlawful Entry
The issue of temporary passes by immigration authorities with knowledge of an immigrant's history does not constitute a waiver of objection to the immigrant's original unlawful entry. If authorities had intended to accept the person as a permanent resident, they would have issued an entry permit rather than temporary passes.
Immigration — Definition of Permanent Residence — Continuing Offence — Applicable Definition
Where an immigration offence is a continuing one, the relevant definition of 'permanent residence' is that obtaining at the date of the charge, not at the date when the offence commenced.
Administrative Law — Emergency Powers — Transitional Provisions — Continuation of Defence Regulations — Purposes Similar
Where the Governor is empowered to continue Defence Regulations in force for purposes similar to those specified in primary legislation, the courts cannot question what appears to the Governor to be required, but may inquire whether the regulations continued are for purposes similar to those prescribed. Defence (Immigration) Regulations controlling entry, length of stay, employment, and deportation are for purposes similar to Defence Regulation 18 which imposed restrictions on entry, length of stay, occupation, and employment.
Statutory Interpretation — Saving Provisions — Effect of Expiry of Regulations — Liability Incurred Under Repealed Enactment
Where a saving provision applies section 10(2) (formerly section 7(2)) of the Interpretation and General Clauses Ordinance on the expiry of Defence Regulations, the repeal of an enactment does not affect any liability, penalty, or punishment incurred in respect of the repealed enactment. A person's liability to punishment for unlawful entry under expired Defence Regulations persists if a proper saving provision is enacted.
Criminal Procedure — Withdrawal of Charge Before Defence Called — Effect on Subsequent Proceedings — Autrefois Acquit
Where a criminal charge is withdrawn before the accused is called upon to make his defence, the discharge does not operate as a bar to subsequent proceedings on account of the same facts. Such a discharge is not a determination on the merits and does not give rise to a plea of autrefois acquit, though a limitation defence may succeed in subsequent proceedings.

Legislation cited (22)

  • Immigration (Control) Ordinance s.15(b)
  • Immigration (Control) Ordinance s.12(1)
  • Immigration (Control) Ordinance s.12(2)
  • Immigration (Control) Ordinance s.5(1)(A)
  • Immigration (Control) Ordinance s.9
  • Immigration (Control) (Amendment) Ordinance 1954 s.2
  • Immigration (Control) Regulations r.3
  • Immigration (Control) Regulations r.19
  • Immigration (Control) Regulations r.21
  • Defence (Immigration) Regulations 1944 r.3(1)
  • Defence (Immigration) Regulations 1944 r.3(2)
  • Defence (Immigration) Regulations 1944 r.5(2)
  • Emergency Powers (Defence) Acts 1939-1945
  • Emergency Powers (Defence) Act 1949
  • Emergency (Transitional Provisions) Act 1946 s.18(1)(a)
  • Emergency (Immigration) Ordinance 1947 s.3
  • Emergency (Immigration) Ordinance 1947 s.6
  • Evidence Ordinance s.104
  • Interpretation and General Clauses Ordinance s.10(2)
  • Interpretation and General Clauses Ordinance s.7(2)
  • Criminal Procedure Code s.83
  • Criminal Procedure Code s.204

Cases cited (4)

  • Hirji Devchand Ramji v Attorney-General of Kenya (Civil Appeal No. 85 of 1954)
  • Mohamed Hassan Ismail v. R., ante page 461
  • Keshavlal Punja Parbut Shah v. Superintendent of H.M. Prison, Nairobi, ante page 218
  • Wicks v Director of Public Prosecutions [1947] 1 AE 205

Full judgment

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Devraj v Reginam (Criminal Appeal No. 128 of 1955) [1955] EACA 348 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.