Wakilii

Rex v Din (Cr. App, 125-1933.)

East African Court of Appeal · [1937] EACA 68 · 1937 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Supreme Court conviction for bankruptcy offence
Decision
Conviction and sentence upheld; appellant to serve original sentence from date of conviction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a nolle prosequi ends only the particular prosecution, not the underlying order authorising prosecution under the Bankruptcy Ordinance. Section 289(1) of the Criminal Procedure Code requires accused persons in the Supreme Court to give evidence on oath and does not permit unsworn statements. The Supreme Court has no power to grant bail pending an appeal to the Court of Appeal. The appellant's conviction for pledging goods obtained on credit shortly before a receiving order was upheld, as the pledging was not in the ordinary course of business and the appellant failed to prove absence of fraudulent intent.

Outcome

Conviction and sentence upheld; appellant to serve original sentence from date of conviction

Facts

The appellant was a trader against whose estate a receiving order was made. On 15 August 1932, he bought goods on credit. The following day, he pledged those goods and others as security for a loan. On 19 August, he called a meeting of creditors, and on 22 August an interim receiving order was made. The Bankruptcy Court ordered prosecution under section 134(1)(o) of the Bankruptcy Ordinance 1930. The Attorney General entered a nolle prosequi on the first information, then issued a fresh information. The appellant was tried and convicted by the Chief Justice of Kenya and sentenced to six months' imprisonment. At trial, the appellant attempted to tender a written statement prepared by his counsel, which the trial judge refused to admit. The appellant was granted bail by the Supreme Court pending appeal.

Issues

  1. Whether the entry of a nolle prosequi on a particular charge under the Bankruptcy Ordinance discharges the order made under section 141 of that Ordinance sanctioning the prosecution of a debtor.
  2. Whether an accused person may make an unsworn statement at trial in the Supreme Court under section 289(1) of the Criminal Procedure Code.
  3. Whether the Supreme Court has power to grant bail pending an appeal from that Court to the Court of Appeal.
  4. Whether pledging goods obtained on credit shortly before a receiving order constitutes an offence under section 134(1)(o) of the Bankruptcy Ordinance when not done in the ordinary course of business.

Orders

  • Appeal dismissed.
  • Application that sentence should run from date of judgment dismissed.
  • Court declined to enhance sentence to rectify irregularity in bail grant.

Rules and key headnotes

Criminal Law & Procedure — Bankruptcy Offences — Nolle Prosequi — Effect on Order Authorising Prosecution
The entry of a nolle prosequi on a particular charge under the Bankruptcy Ordinance does not discharge the order made under section 141 of that Ordinance sanctioning the prosecution of a debtor. The nolle prosequi puts an end only to the particular prosecution, not to the liability to be prosecuted created by the order to prosecute, which can be satisfied only by acquittal or conviction.
Evidence — Statement of Accused — Unsworn Statement in Supreme Court — Section 289(1) Criminal Procedure Code
As section 289(1) of the Criminal Procedure Code stands, and notwithstanding the provisions of section 154(8), there is no sanction in the Supreme Court for an accused person making an unsworn statement at trial. The intention of section 289(1) is that an accused person may give evidence on oath. Section 197, which applies to subordinate courts, is the corresponding provision permitting statements, but it does not apply to High Court trials.
Criminal Law & Procedure — Bail — Power of Supreme Court to Grant Bail Pending Appeal to Court of Appeal
The Supreme Court has no power to grant bail pending an appeal from that Court to the Court of Appeal. Section 121(3) of the Criminal Procedure Code must be read with sub-section (1). Power cannot be inferred in the Supreme Court to grant bail on an appeal from that Court under section 346 of the Criminal Procedure Code, as an application for bail in these circumstances is defeated by the last sentence of section 317 of the Criminal Procedure Code.
Criminal Law & Procedure — Sentencing — Enhancement by Court of Appeal — Abuse of Power
The enhancement of a sentence by the Court of Appeal to rectify an irregularity in the Supreme Court would be an abuse of the powers of the Court of Appeal. The Court should only enhance a sentence where it is manifestly inadequate, not to compel an appellant to serve time evaded through wrongful release on bail.
Commercial Law — Bankruptcy — Pledging Goods Obtained on Credit — Ordinary Course of Business
Under section 134(1)(o) of the Bankruptcy Ordinance, it is a criminal offence for a person in respect of whose estate a receiving order has been made to pledge within twelve months of that order any property obtained on credit and not paid for, unless in the case of a trader such pledging is in the ordinary way of his trade, and unless in any case he proves he had no intent to defraud. The prosecution must prove that the pledging was not in the ordinary course of business; if that is done, the accused must show absence of fraudulent intent. Pledging goods obtained on credit the day after purchase and shortly before calling a creditors' meeting is not in the ordinary course of business but to relieve financial embarrassment.

Legislation cited (14)

  • Bankruptcy Ordinance 1930 s.141
  • Bankruptcy Ordinance 1930 s.134(1)(o)
  • Criminal Procedure Code s.197(1)
  • Criminal Procedure Code s.289(1)
  • Criminal Procedure Code s.121
  • Criminal Procedure Code s.342
  • Criminal Procedure Code s.346
  • Criminal Procedure Code s.317
  • Criminal Procedure Code s.340(1)(a)(ii)
  • Criminal Procedure Code s.80
  • Criminal Procedure Code s.154(8)
  • Criminal Procedure Code s.3(3)
  • Criminal Evidence Act 1898 s.1
  • Debtors Act s.15

Cases cited (6)

  • Rex v Allen (1821) 121 ER 929
  • Rex v Elliott (1910) 2 Cr App R 171
  • Rex v Parker (1924) 18 Cr App R 14
  • Rex v Mitchel (1848) 3 Cox CC 93
  • Ex parte Brett, In re Hodgson (1875) 1 Ch D 151
  • Rex v John Stone Thomas (1870) 22 LT 128

Full judgment

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Rex v Din (Cr. App, 125-1933.) [1937] EACA 68 (1 January 1937)
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.