Wakilii

Musinga and Others v Rex (Criminal Appeals Nos. 131, 132, 133, 134 and 135 of 1951)

East African Court of Appeal · [1951] EACA 211 · 1951 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeals from High Court of Uganda dismissing appeals from convictions in District Court of Kigazi
Decision
Appellant No. 5 acquitted and discharged; convictions of appellants 1 to 4 upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that wolfram concentrate in quantities of 2,237 lb. was a mineral within the Mining Ordinance definition as it must have been mined or obtained through prospecting operations, but the same could not be inferred for a 4 lb. sample. Joint possession based on evidence of control satisfies the possession requirement under section 70. A conspiracy charge alleging two unlawful objects is not bad for duplicity, and conviction is valid if one unlawful object is proved. Appeals of appellants 1 to 4 dismissed; appeal of appellant 5 allowed.

Outcome

Appellant No. 5 acquitted and discharged; convictions of appellants 1 to 4 upheld

Facts

Five appellants were convicted of unlawfully possessing wolfram contrary to the Mining Ordinance 1949. The first three appellants were convicted of possessing 2,237 lb. of wolfram found in the first appellant's store, which he had agreed to store for payment. The fourth appellant possessed 3 lb. of wolfram as a sample, and the fifth appellant possessed 4 lb. The second, third, and fourth appellants were also convicted of conspiracy to possess and sell the 2,237 lb. of wolfram. The wolfram was seized by police on 4 November 1950. The fourth appellant showed his sample to a prospective buyer, Mr. Bjordal, and participated in negotiations for the sale of the bulk quantity. The third appellant took Bjordal to the storage location, uncovered bags, and authorized sampling. None of the appellants proved lawful entitlement to possess the wolfram.

Issues

  1. Whether wolfram was a mineral within the meaning of section 2 of the Mining Ordinance 1949.
  2. Whether the evidence proved possession of wolfram by the appellants within the meaning of section 70(1) of the Mining Ordinance.
  3. Whether joint possession based on evidence of control satisfies the requirements of possession under section 70 of the Mining Ordinance.
  4. Whether a charge alleging conspiracy to effect two or more unlawful objects is bad for duplicity.
  5. Whether a conviction for conspiracy is bad if the prosecution fails to prove one of the unlawful objects but proves the other.

Orders

  • Appeal of appellant No. 5 allowed.
  • Conviction of appellant No. 5 quashed.
  • Sentence of appellant No. 5 set aside.
  • Appellant No. 5 ordered to be set at liberty.
  • Appeals of appellants Nos. 1 to 4 dismissed.

Rules and key headnotes

Mining Law — Definition of Mineral — Exhaustive Definition
The definition of 'mineral' in section 2 of the Mining Ordinance is exhaustive despite the use of the word 'include', and requires proof that the substance is obtainable only by mining or prospecting operations or was in fact mined or obtained in such operations, not merely that it is a metalliferous ore.
Criminal Law — Proof of Mining Origin — Inference from Quantity and Processing
Where a large quantity of wolfram concentrate (the final product of an ore dressing process as done at a mine) is found in possession, it is reasonable to infer that the substance was mined or obtained through prospecting operations rather than casually picked up on the surface, but such inference may not be irresistible for very small quantities.
Possession — Joint Possession — Control as Evidence
A finding of joint possession based on evidence of control is sufficient to satisfy the requirements of the term 'possession' as used in section 70 of the Mining Ordinance, and the offence is not limited to actual physical and exclusive possession.
Possession — Constructive Possession — Statutory Interpretation
Section 70 of the Mining Ordinance, which creates an offence of unlawful possession of minerals, contemplates possession that is not limited to physical possession and includes constructive possession evidenced by control over or power to dispose of the minerals, such as a banker's possession through documents giving control.
Conspiracy — Duplicity — Multiple Unlawful Objects
A charge alleging a conspiracy to effect two or more unlawful objects is not bad for duplicity where the conspirators have in mind the commission of more than one unlawful act to give effect to the conspiracy, and all such acts may properly be set out in the particulars of the charge.
Conspiracy — Proof of Objects — Partial Proof
A conviction for conspiracy is not vitiated if the prosecution fails to prove one of the unlawful objects specified in the charge but proves conspiracy to effect another unlawful object that was clearly specified in the charge.
Conspiracy — Continuing Offence — Joining Conspiracy
A person who joins a conspiracy is responsible in law for all acts of fellow-conspirators done in furtherance of the conspiracy, whether done before, during, or after his participation, and where unlawful possession is a continuing offence, it attaches in law to conspirators who join after possession commenced.

Legislation cited (5)

  • Mining Ordinance 1949 s.2
  • Mining Ordinance 1949 s.70(1)
  • Mining Ordinance 1949 s.70(4)
  • Mining Ordinance 1949 s.125(1)
  • Penal Code 1950 s.375(6)

Full judgment

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Musinga and Others v Rex (Criminal Appeals Nos. 131, 132, 133, 134 and 135 of 1951) [1951] EACA 211 (1 January 1951)
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.