East African Court of Appeal - 1949

Contract — Agency — Control of Import Regulations.

Somali Census Ordinance, 1948 — Somali Census Order, 1948 — whether ultra vires.

Landlord and tenant — Respondents occupying portion of appellant’s premises as business premises — No partition — Whether part of a house let as separate business premises — Test to apply — Status of the parties in law — Matter for decision of Court — Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940.

Contract — Sale of mtama — Sale by sample or custom of trade not pleaded —  Magistrate declining to give ruling at close of one party’s evidence.

Jurisdiction — Supreme Court — Aden Protectorate Order, 1937 — Foreign Jurisdiction Act, 1890 — Aden Protectorate Application of Laws Order, 1942 —  Colonial Criminal Courts Ordinance, 1937 — Order of Governor General in Council, 1907.

Landlord and tenant — Lease of business premises for five years — Respondent lawfully in charge of premises during absence of tenant — Sale by tenant to respondent before expiry of lease — After expiry claim by landlord for possession — Order for possession against tenant and respondent — Appeal by respondent — Retrial — Further order for possession — Further appeal — Original lease not registered — Effect thereof — Evidence — Status of Original tenant — Status of respondent — Indian Transfer of Property Act, 1882, sections 105, 106, 107 — Crown Lands Ordinance (Cap. 140, Laws of Kenya), sections 101 and 102 (1) — Application of Article 2, Eastern Africa Court of Appeal Order in Council, 1921 — Power of Court of Appeal — “Doing justice in the cause”.

Wakf of property situated at Mombasa — Ultimate gift to Mosque — Validity —  Mohammedan law — Application.

Summing up — Omission.

Practice — Appeal against costs — Uganda Civil Procedure Ordinance, section 27 (1) — When a successful defendant may be deprived of his costs.

Divorce — Desertion — Onus of proof.

Specific performance — Meaning of “Subject to execution of agreement of sale” —  Sections 7 and 8, Land Control Ordinance, 1944.

Claim for succession — Ibadhi law — Zanzibar Slave Trade (Prohibition) Decree, 1st August, 1890.

Murder — Provocation — Section 202, Tanganyika Penal Code.

Enhancement of sentence by Court of Appeal — Whether appealable to Court of Appeal of Eastern Africa.

Murder — Trial of five appellants on six counts on one information — Whether allowable under section 135, Criminal Procedure Code — Common intent.

Wakf — Testamentary or inter vivos — Non-registration — Subsequent mortgage and registration of conveyance after mortgage decree — Effect of insolvency of Wakf estate.

Summing up — Omission — Whether misdirection.

Agreement to sell motor vehicle to respondent on 10th March, 1947— Respondent taking immediate possession—Vehicle subject of attachment order at later date — Attachment not executed — Sale of Goods Ordinance, 1930, sections 19, 20 and 27 — Interpretation of section 20, rule III — Vehicle subject to control — Permit obtained and price paid on 31st December, 1947 — Whether transfer of 10th March lawful — Defence (Sale and Purchase of Motor Vehicles) Regulations, 1945, reg. 4 (a) — Second attachment order — Objection proceedings by respondent — Civil Procedure Rules, 1927, 0.19 R.60 — Whether respondent’s right to vehicle affected by attachment.

Registrar of Land Titles — Land acquired near Mwanza in 1890 — Tanganyika Land. Registry Ordinance, 1923 — Nature of Tenure — Whether title by adverse possession.

Mukopi holder of kibanja on mailo land belonging to the Kabaka — Subsequent grant of use of land to another — Rights of holder under Busulu and Envujjo law (1927).

Murder — Confession — Presence of policeman who had questioned appellant.

Notes on visit to locus — Reading out — Opportunity to call evidence on.

Murder — Proof of previous conviction and escape from custody — Whether admissible — Section 159 (6) (a).

Provocation — Sections 202 and 203, Penal Code.

Assignment of unexpired term of lease owned by a Muganda — Consent of Governor and Lukiko — Registration of Titles Ordinance, 1924 — Section 3, Land Transfer Ordinance, 1944 — Section 2, Buganda Land (Amendment) Law, 1942.

Corruption of public officer — Whether proof necessary that it was corruptly accepted.

Criminal law — Increase of Rent and Mortgage Interest (Restriction) Ordinance, 1940 — Section 13 (2): Requiring payment of a premium in addition to rent for the grant of a tenancy — Section 8: Accepting excess rent — When an accused charged as aider and abettor may not be convicted.

Murder — Words assailing virtue of appellant’s niece — Whether provocation —  Tanganyika Penal Code, section 202.

Criminal law —Tanganyika Penal Code — Appellant convicted of arson (sect. 319 (a)), Entering a dwelling-house with intent to commit a felony (sect. 295), and theft (sect. 265) — Appellant found in recent possession of the stolen property — Presumption that appellant had entered and committed the theft — Whether trial Judge justified in extending the presumption to cover charge of arson as well.

Criminal Procedure and Practice —Trial of minor offence — Charge of neglecting to obey order of Provincial Commissioner, Native Authority Ordinance, 1937, section 12 — Penalty: Fine or imprisonment and forfeiture of hut and crops — Whether triable as minor offence under section 197, Criminal Procedure Code — Whether “forfeiture” part of sentence.

Criminal Procedure and Practice — Failure to call certain witnesses — Observations of the Court.

Criminal Law — Appellant convicted of offences against the Diamond Industry Protection Ordinance, Cap. 103, Laws of Tanganyika — Appeal against sentence —  Police “trap" — Factors to be considered in assessing sentence — Observations of the Court.

Criminal law — Unlawfully selling intoxicating liquor to a native, Liquor Ordinance, 1934, section 39 — Selling rationed foodstuffs without accepting coupons, Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944, regulation 16 (1) — Failing to supply invoice at time of sale, Defence (Control of Prices) Regulations, 1945, regulation 17 (2) — Accomplices — Corroboration — Police trap — Genuine police spies not accomplices.

Criminal Law — Murder — Provocation — Intimation by wife that she is about to desert her husband — Tanganyika Penal Code, sections 202 and 203.

Criminal Law — Conspiring to export diamonds, Tanganyika Penal Code, section 385, and the Diamond Industry Protection Ordinance-(Cap. 103), section 9 (1) — Being in unlawful possession of diamonds, Diamond Industry Protection Ordinance, section 3 (1) — Appeal on fact — Principles which should guide a Court of Appeal — Evidence — “Found in possession” — Meaning of “found” — Agreement to conspire — Proof — Discretion of Crown Prosecutor as to calling of witnesses at trial — Sentence excessive.

Criminal Law — Murder — Circumstantial evidence — Evidence of accomplice —  Evidence utterly unreliable — Corroboration — Practice — Application to call further defence evidence at appeal — Procedure to be followed.

Criminal Procedure and Practice — Information for robbery with violence — Forms of stating offences in Informations, Tanganyika Criminal Procedure Code, second schedule — Section 135 and 138 (f) id.

Criminal Law — Printing and publishing a seditious publication, Uganda Penal Code, section 53 (1) (c) — “Seditious publication”, section 48 — “Seditious intention”, section 52 — Proof — Whether extrinsic evidence necessary — Whether mens rea a necessary element in the offence

Murder — Confession — Section 24, Uganda Evidence Ordinance — Effect of Judges’ Rules — Definition of voluntary confession.

Criminal Procedure and Practice — Appeal to Court of Appeal —Two Appellants filing joint memorandum of appeal — Eastern African Court of Appeal Rules, 1925.

Criminal Practice and Procedure — Appeal to High Court from conviction by a Subordinate Court — Order for additional evidence on appeal — Whether order proper — Uganda Criminal Procedure Code, section 317 (1).

Manslaughter — Whether facts amount to omission by culpable negligence.

Criminal Practice and Procedure — Appellant convicted of criminal trespass, section 303 (1), Penal Code — Magistrate instead of passing sentence bound over appellant to come up for judgment when called upon, section 34, Penal Code — Whether right of appeal conferred by section 347 (1), Criminal Procedure Code — section 348, id. — Meaning of “order” in section 349, id.

Criminal Law — Murder — Provocation — Belief in witchcraft as possible element of provocation — Uganda Penal Code, sections 11, 198 and 199.

Criminal Procedure and Practice — Absence of prosecutor in a Subordinate Court —  Legality of trial.

Appeal — Interim injunction — Costs.

Murder — Statement to Magistrate — Interpreter not called at preliminary inquiry or trial — Statement excluded by trial Judge — Statement examined by Court of Appeal for Eastern Africa in interests of justice — New trial ordered.

Tanganyika War Revenue (Income Tax) (Replacement) Ordinance, 1940 —  Assessment by Commissioner under section 21 (1) — Discretion of Commissioner — Appeal to Local Committee under section 22 (2) — Powers of Local Committee under section 61 (4).

Practice — Uganda Civil Procedure — Appeal where no decree issued — Whether appeal lies from an order made under Order 45, Rule 5 — Civil Procedure Ordinance, sections 66 and 75 — Rules, Orders 40 and 45, Rule 5.

Contract of Sale — Unstamped document basis of contract — Whether note or memorandum sent by a broker to his principal or agreement or memorandum of agreement relating to the sale of goods — Stamp Ordinance (Cap. 57, Laws of Kenya), sect. 4 and Schedule, Articles 40 and 5, exemption — Admissibility in evidence, sect. 37.