Wakilii

Harthi and Others v Reginam (Criminal Appeal No. 835 of 1954)

East African Court of Appeal · [1955] EACA 328 · 1955 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from convictions in the Resident Magistrate's Court at Zanzibar, following dismissal of first appeal to the High Court of Zanzibar
Decision
Fourth appellant's convictions affirmed. Second appellant's convictions set aside and orders against him vacated. Appellants 1, 3, 5, 6, 7, 8 and 9 had convictions on possession counts set aside but convictions on publishing counts confirmed; orders for bonds and costs stand.

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Holding

Held that constructive joint possession under section 51(2) of the Penal Decree requires proof that co-accused had knowledge of and consented to the actual possessor's custody of seditious documents; mere membership of an executive committee is insufficient. Employers are vicariously liable for an employee's publication of seditious matter and for quasi-criminal offences under the Newspaper Decree where the acts fall within the scope of employment. Where the Attorney-General as sanctioning authority drafted and prosecuted amended charges based on the same facts as the original consent, failure to give fresh written consent was a curable irregularity. However, the British Resident's permission was invalid where it did not show on its face that the facts of the offences had been placed before him and no extraneous evidence established this.

Outcome

Fourth appellant's convictions affirmed. Second appellant's convictions set aside and orders against him vacated. Appellants 1, 3, 5, 6, 7, 8 and 9 had convictions on possession counts set aside but convictions on publishing counts confirmed; orders for bonds and costs stand.

Facts

The nine appellants were members of the executive committee of the unincorporated Arab Association of Zanzibar, which owned and published the newspaper Al Falaq. The fourth appellant was the newspaper's editor. They were convicted on multiple counts: publishing seditious matter in the newspaper (four counts under section 51(1)(c) of the Penal Decree); possessing seditious documents (three counts under section 51(2)); and publishing the newspaper without prescribed particulars (one count under section 9(2) of the Newspaper Decree). The seditious documents in the possession counts were Communist publications (Africa Newsletter and a Hungarian paper) found on the Association's premises during a search. The fourth appellant testified he received these by post and did not show them to his co-accused. The other appellants testified they had no knowledge of these documents. In January 1954, before the offences charged, the British Resident had warned the executive committee that certain articles in Al Falaq were seditious or verged on sedition. After this warning, the committee met to consider dismissing the fourth appellant but took no action. The second appellant was a member of the Royal Family.

Issues

  1. Whether appellants 1, 2, 3, 5, 6, 7, 8 and 9 could be held to be in constructive joint possession of seditious documents under section 51(2) of the Penal Decree read with section 4, absent evidence of their knowledge and consent to the fourth appellant's possession.
  2. Whether appellants other than the fourth appellant were vicariously liable for the fourth appellant's publication of seditious matter under section 51(1)(c) of the Penal Decree.
  3. Whether appellants other than the fourth appellant were vicariously liable for the fourth appellant's failure to comply with section 9(1) of the Newspaper Decree.
  4. Whether the Attorney-General's written consent under section 52(2) of the Penal Decree was valid for amended and additional charges not expressly covered by the original consent.
  5. Whether the British Resident's permission under section 6 of the Courts Decree was valid where it did not specify the facts constituting the offences and no extraneous evidence showed those facts had been placed before him.

Orders

  • Appeal of fourth appellant on all counts dismissed; convictions affirmed.
  • Appeal of second appellant on all counts allowed; convictions on all counts set aside.
  • Order requiring second appellant to enter into a bond to keep the peace vacated.
  • Order for payment of costs vacated as to second appellant.
  • Appeals of appellants 1, 3, 5, 6, 7, 8 and 9 allowed in respect of counts 5, 6 and 7 (possession of seditious documents); convictions thereon set aside.
  • Appeals of appellants 1, 3, 5, 6, 7, 8 and 9 dismissed in respect of counts 1, 2, 3, 4 and 8 (publishing seditious matter and publishing newspaper without prescribed particulars); convictions thereon confirmed.
  • Orders requiring appellants 1, 3, 5, 6, 7, 8 and 9 to enter into bonds to keep the peace and to pay costs stand.
  • Order confiscating the printing machine stands.
  • Order prohibiting publication of the newspaper for one year stands.

Rules and key headnotes

Sedition — Possession of Seditious Matter — Constructive Joint Possession — Knowledge and Consent Required
Before an accused person can be required under section 51(2) of the Penal Decree to put forward a lawful excuse for possession of a seditious publication, facts must be shown to exist which either directly prove possession or lead to a legitimate inference of possession as defined in section 4 of the Penal Decree. Constructive joint possession under section 4(b) requires proof that co-accused had knowledge of and consented to the actual possessor's custody of the seditious documents. Mere membership of an executive committee that owns premises where seditious documents are found is insufficient to establish constructive joint possession absent evidence of knowledge and consent.
Vicarious Liability — Employers' Liability for Employees' Acts — Quasi-Criminal Offences
An offence under section 9(2) of the Newspaper Decree (publishing a newspaper without prescribed particulars) is of a quasi-criminal character. Where the publication of a newspaper is an act done by an employee within the general scope of his employment, the employers are vicariously liable for the employee's failure to comply with statutory requirements, even in the absence of knowledge or authorization of the specific breach.
Vicarious Liability — Publication of Seditious Matter — Mens Rea Not Required
Section 51(1)(c) of the Penal Decree, which prohibits publication of seditious matter, does not require proof of mens rea or seditious intention. The section is framed to exclude the necessity of mens rea as an element in the offence of publication. The mischief is the fact of publication, not the attitude of mind of the publisher. Publishers must satisfy themselves that anything published by them is not seditious and neglect that opportunity at their peril. Employers who hold themselves out as proprietors and publishers of a newspaper are liable for seditious publications by their editor, particularly where they have been warned of the seditious character of articles and take no action to prevent further publications.
Consent to Prosecute — Validity of Consent — Facts Must Be Before Sanctioning Authority
Where a statute requires written consent to prosecute, the consent must be given in respect of the facts constituting the offence charged. While it is desirable that the facts be referred to on the face of the consent, this is not essential if the prosecution proves by extraneous evidence that those facts were placed before the sanctioning authority. The sanctioning authority cannot adequately discharge the obligation of deciding whether to give or withhold consent without knowledge of the facts of the case. A consent given without reference to the facts constituting the offence is not a valid consent.
Consent to Prosecute — Amended and Additional Charges — Curable Irregularity
Where the Attorney-General as sanctioning authority has given written consent to prosecution on certain facts and thereby vested the court with jurisdiction, and the Attorney-General himself subsequently drafts and prosecutes amended or additional charges based on the same facts, his failure to give fresh written consent to those amended or additional charges is a curable irregularity under section 366 of the Criminal Procedure Decree. The jurisdiction vested in the court by the original consent is not taken away where the sanctioning authority had before him all the facts constituting the alleged offences and himself preferred and prosecuted the charges.
Consent to Prosecute — Timing and Procedure — Magistrates' Duty
A consent to prosecute that is statutorily required must be given before the commencement of proceedings, that is, before the complaint is made. Magistrates should satisfy themselves before issuing process that any necessary statutory sanction has been given. If the consent is not attached to the complaint or charge, the magistrate when signing should note that he has seen the consent and returned it. It is desirable that the facts constituting the offence should be referred to on the face of the consent and that the persons to be charged should be named rather than described by reference to their role.
Consent to Prosecute — Defective Consent — Jurisdiction — Not Curable
A defect in the jurisdiction of the court arising from an invalid consent to prosecute can never be cured under section 366 of the Criminal Procedure Decree. Where a consent does not show on its face that the facts constituting the offences were before the sanctioning authority and there is no extraneous evidence that such facts were placed before the authority, the consent is invalid and the court lacks jurisdiction. The giving of consent confers jurisdiction on the court to try the case; without valid consent, the court is not a court of competent jurisdiction.

Legislation cited (15)

  • Penal Decree s.4
  • Penal Decree s.51(1)(a)
  • Penal Decree s.51(1)(c)
  • Penal Decree s.51(2)
  • Penal Decree s.51A(2)
  • Penal Decree s.52(2)
  • Criminal Procedure Decree s.83(3)
  • Criminal Procedure Decree s.345a
  • Criminal Procedure Decree s.366
  • Interpretation and General Clauses Decree s.2
  • Courts Decree s.6
  • Newspaper Decree s.9(1)
  • Newspaper Decree s.9(2)
  • Zanzibar Order in Council, 1924 s.24
  • Libel Act, 1843 s.7

Cases cited (23)

  • R v Holbrook (1878) 4 Q.B.D. 42
  • Pearks, Gunstan & Tee Ltd v Ward (1902) 2 K.B. 1
  • Barker v Levinson (1950) 2 All E.R. 825
  • R v Luima and others (1949) 16 E.A.C.A. 128
  • Girdharilal and another v R (Criminal Appeals Nos. 72 and 73 of 1946)
  • R v Walter 170 E.R. 524
  • R v Gutch and others 173 E.R. 1214
  • R v Almon 98 E.R. 411
  • Wallace-Johnson v R (1940) A.C. 231
  • Keshavlal Punja'Parbat Shah, (In the matter of an application for directions in the nature of habeas corpus) ante page 381
  • Gokulchand Dwarkadas Morarka v The King (1948) 35 A.I.R. 415
  • Thorpe v Priestnail (1897) 1 Q.B. 159
  • R v Allison and others (1889) 16 Cox C.C. 599
  • R v Bradlaugh (1883) 15 Cox C.C. 217
  • Mousell Bros Ltd v L.N.W. Railway (1917) 2 K.B. 836
  • Gardner v Akeroyd (1925) 2 Q.B. 743
  • Chisholm v Doulton (1889) 22 Q.B.D. 736
  • Dula Singh and another v R (1928) I.L.R. 9 Lah. 531
  • R v Cohen (1951) 1 All E.R. 203
  • Kenyatta and others v R (1954) 1 W.L.R. 1053
  • Roper v Taylors Central Garage (1951) 2 T.L.R. 284
  • R v Evening Standard (1954) 2 W.L.R. 861
  • R v I.C.R. Haulage Co Ltd (1944) K.B. 551

Full judgment

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Harthi and Others v Reginam (Criminal Appeal No. 835 of 1954) [1955] EACA 328 (1 January 1955)
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