Wakilii

Rex v Lakhani (Criminal Appeal No. 115 of 1943)

East African Court of Appeal · [1943] EACA 35 · 1943 Appeal Allowed — Acquittal Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction following High Court direction on case stated
Decision
Appellant acquitted and discharged; fines to be refunded if paid

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that an accused person retains full rights of appeal under sections 307 and 320 of the Criminal Procedure Code even after conviction pursuant to a High Court order on a case stated, notwithstanding section 331. The High Court erred in directing the Magistrate to convict where the Magistrate had left vague his assessment of the evidence. Section 112(g) of the Evidence Ordinance provides that a court may presume evidence would be unfavourable if not produced, not that it must do so. The proper course was to direct the Magistrate on the onus of proof and leave him to draw such presumption as he thought proper from the totality of the evidence. Appeal allowed and appellant acquitted.

Outcome

Appellant acquitted and discharged; fines to be refunded if paid

Facts

The appellant was employed as an agent for buying hides and skins by the Old East African Trading Co. He was charged with obtaining money by false pretences on three counts. Count 4 alleged he falsely claimed to have bought 8,611 lb of hides from Zaver for Sh. 5,729/87 when he had only bought 4,707 lb for Sh. 3,014/52. The appellant explained that the balance was supplied by Dhanani under Zaver's contract and entered in Zaver's name, supported by his shipping book showing correct quantities sent to Mombasa. Counts 8 and 9 involved discrepancies in book entries which the appellant explained by saying he paid the higher amounts to the sellers and to Badru, the company grader, who signed purchase slips in acknowledgment. The Magistrate acquitted, finding strong suspicion but holding the prosecution failed to prove the charges as they did not call Dhanani or Badru. On case stated, the High Court held the onus was on the appellant to call these witnesses and directed conviction. The appellant appealed the resulting conviction.

Issues

  1. Whether an appellant retains the right of appeal under sections 307 and 320 of the Criminal Procedure Code after conviction pursuant to a High Court order on a case stated, notwithstanding section 331 declaring such orders 'final and conclusive'.
  2. Whether the High Court was correct to direct the Magistrate to convict on the basis that the onus was on the accused to call witnesses to support his explanation, and that his failure to do so required application of the presumption under section 112(g) of the Evidence Ordinance.
  3. Whether the High Court exceeded its jurisdiction in directing a conviction where the Magistrate had left vague his opinion of the effect of the evidence as a whole.

Orders

  • Appeal allowed.
  • Appellant acquitted.
  • Fines, if paid, directed to be refunded.

Rules and key headnotes

Criminal Procedure — Appeal — Case Stated — Right of Appeal After Conviction on High Court Direction
An accused person retains the full rights of appeal conferred by sections 307 and 320 of the Criminal Procedure Code even where conviction follows a High Court order made on a case stated, notwithstanding that section 331 declares such orders 'final and conclusive'.
Evidence — Presumptions — Failure to Call Witnesses — Section 112(g) Evidence Ordinance
Section 112(g) of the Evidence Ordinance provides that where a party fails to produce evidence which he could produce, the court may presume that such evidence would be unfavourable to him, but the court is not obliged to draw that presumption; the use of 'may' confers a discretion.
Criminal Procedure — Case Stated — Limits of High Court's Power to Direct Conviction
Where a Magistrate has left vague his opinion of the effect of the evidence as a whole, the High Court on a case stated should not direct him to draw one particular conclusion from the accused's failure to call witnesses, but should direct him as to the proper onus of proof and leave him to consider the effect of the evidence and draw such presumption as he thinks proper.
Criminal Procedure — Burden of Proof — Accused's Duty to Call Witnesses
Where an accused person offers an explanation for apparent discrepancies in his accounts, the onus is on him, not the prosecution, to call witnesses who are in a position to support his explanation, and his failure to do so may give rise to an adverse presumption under section 112(g) of the Evidence Ordinance.

Legislation cited (5)

  • Criminal Procedure Code (Uganda) s.307
  • Criminal Procedure Code (Uganda) s.320
  • Criminal Procedure Code (Uganda) s.331
  • Evidence Ordinance (Uganda) s.112(g)
  • Penal Code (Uganda) s.300

Cases cited (2)

  • Simpson v Nakuru District Council (6 EACA 83)
  • Kerr v Ayr Steam Shipping Co [1915] AC 234

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rex v Lakhani (Criminal Appeal No. 115 of 1943) [1943] EACA 35 (1 January 1943)
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.