premchand nanthu v land officer 1962 e a 738 (privy council decision

8/14/2019 Premchand Nanthu v Land Officer 1962 e a 738 (Privy Council Decision

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738 EASTERN AFRICA LAW REPORTS [1962] E.A.There is no principle better recognised than that a man is not to be a judge Ain his own cause; and in the case of magistrates it is well established that,if there is any reason which, it can be suggested, would influence the mindsof ordinary persons, and induce them to think that the magistrates mightbe biased, that will be sufficient to render the tribunal incompetent. Butwhere the parties choose their own tribunal the case is very different. nthe present case it is of the essence of the submission that questions shall Bbe submitted to the engineer as arbitrator which must involve the decisionof matters connected with his own competency, care, and caution, and withthe way in which he discharged his duties under the contract. The partiesagree that the arbitrator is to adjudicate on matters in which he has aninterest.

Here the umpire was in the position of a judge and the very strict rule should Cbe applied. It is only in the case of a named arbitrator that suspicions of biaswill not suffice: Bright v , River Plate Construction Company (2), [1900]2 Ch. 835.The umpire's link with the respondents may have been tenuous but he was insome sort of agency relationship with them and that should have been disclosed.In Vineberg v. Guardian Fire and Life Assurance (3) (1892), 19 A.R. 293, aCanadian case which is noted in 2 Digest 682, 1520, it was held that arbitrators Dmust be indifferent, and an award made by arbitrators one of whom was atthe time of the arbitration subagent for an agent of the defendants in obtainingrisks, was void, although he only acted in that capacity to a small extent. Onthe affidavit evidence as it stands the facts here are not dissimilar. I am satisfiedthat there is a prima facie case. Accordingly, I made the umpire and therespondents parties to the objection proceedings which after any further ob- Ejections or cross-objections have been filed within twenty-one days shall beset down for hearing. Costs in those proceedings.

Order accordingly.Advocates: R. E. Hunt, Kampala (for the applicant): Y . V. Phadke, Kampala

(for the respondents). F

PREMCHAND ATHU CO. LTD. I. THE LAND OFFICER G[PRIVY COUNCIL (Lord Morton of Henryton, Lord Keith of Avonholm and

Lord Pearce), November 6, 7 and 27, 1962.]PRIVY COUNCIL ApPEAL No. 24 OF 1961.

(Appeal from E.A.C.A. Civil Appeal No. 67 of 1960 on appeal from H.M. High HCourt of Tanganyika-Murphy, J.)

Stamte=-Crown=Intentton to bind Crown-Inference from circumstances-LandOrdinance Cap. 113) T.)-Conveyancing and Law of Property Act, 1881,s. 14 (I)-Land Lall of Propert y and Conveyancing) Ordinance Cap. 114),s. 2 (T.).

Landlord and Tenant-Crown land= Riglu of occupancy subject to buildingconditions=Extension of time for compliance with conditions-Failure TOerect buildings within extended time-Revocation of right of occupancy-No notice of revocation served=Whether purported revocation invalid-s-LardOrdinance Cap. 113), s. 2, s. 3, s. 4, s. 6, s. 7, s. 8, s. 10, s. 11. s. 13 ands. 21 T.)-Collveyancing and Law of Property Act, 1881, s. 14 I)-LandLaw of Property and Conveyancing) Ordinance Cap. 114), s. 2 and s. 10-Law of Property Act, 1925-Crown Lands Ordinance Cap. 155), s. 83 K.).

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S [1962] E.A.is not to be a judge Aeil established that,influence the mindsmagistrates mightincompetent. Butvery different. In

that questions shall Bnvolve the decision

caution, and withntract. The partiesn which he has an

ry strict rule should eat suspicions of bias(2), [1900]2 Ch. 835.ous but he was inhave been disclosed.

892), 19 A.R. 293, as held that arbitrators Done of whom was atfendants in obtainingto a small extent. Onimilar. I am satisfiedthe umpire and the Eafter any further ob-

nty-one days shall beOrder accordingly.

. V. Phadke, Kampala F

LAND OFFICER Gth of Avonholm and

.ppeal from H. M. High Hn circumstances-Landof Property Act, 1881,

Ordinance Cap. 114),Y subject to buildingconditions-Failure to

f right of occupancy-cation invalid-Land, s. 10, s. 11, s. 13 and1881, s. 14 1)-Land

, 114), s. 2 and s. 10-Cap. 155), s. 83 K.).

I

P.c. PREMCHAND NATHU co. v LAND OFFICER 739A The appellants occupied land under a certificate giving the appellants a right

of occupancy for ninety-nine years from 1952, subject to the building conditionscontained in the certificate of occupancy. There was considerable delay incompliance with these conditions, and certain extensions of time were granted.Although the appellants built a godown on the plot they did not commenceconstruction of the main buildings, namely shops and flats, and the right ofB occupancy was revoked in May, 1957. The appellants refused to give uppossession and the respondent took proceedings for inter alia possession.The High Court held that the right of occupancy had been lawfully revoked,and ordered the appellants to deliver possession to the respondent. On appealthe Court of Appeal dismissed the occupiers' appeal and on further appealit was contended that s. 14 (1) of the Conveyancing and Law of Property Act,e 1881, applied to the exercise by the Governor of any rights of revocation and,therefore, since no notice had been served in compliance with that sub-section,the purported revocation was invalid. It was further submitted that as s. 14 (1)of the Act was imported into the law of Tanganyika, the courts should infer,from all the surrounding circumstances, that it was intended to bind the Crownalthough s. 14 (1) did not bind the Crown in England.D Held: there was not in the law of Tanganyika any necessary implicationthat s. 14 (I) of the Conveyancing and Property Act, 1881, bound the Crown,and accordingly the right of occupancy was validly revoked without notice.

i IAppeal dismissed.

E Cases referred to:(I) Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58.2) Bashir v. The Commissioner of Lands, [1960] A.C. 44; [1960] 1 All E.R.

117.3) Director of Lands and Mines v. Sohan Singh, IT.L.R. (R.) 631.

F Dingle Foot, Q.C. and Dick Taverne (both of the English Bar) for the appellants.Raymond Walton (of the English Bar) for the respondent.

II\

II

November 27. LORD MORTON OF HENRYTON: This is an appealfrom a judgment of the Court of Appeal for Eastern Africa, dismissing anappeal from an order of the High Court of Tanganyika, ordering the appellantsG to deliver up possession of a plot of land at Moshi to the respondent.

The appellants were occupiers of the plot in question under a certificate ofoccupancy signed by both parties to this appeal, giving the appellants a rightof occupancy for a term of ninety-nine years from April 4, 1952, at a rent ofShs. 435/- a year, subject to revision as therein mentioned.

H The conditions of occupancy contained in the certificate provided (inter alia),as follows:

2. The occupier undertakes:(i) To erect buildings on the said land of a value of not less than Shillings

sixty thousand (Shs. 60,000/-).(ii) Within a period of six months from the date of commencement of

the said right of occupancy to submit to the township authority,Moshi (hereinafter called the said authority), such plans of theproposed buildings (including block plans showing the position ofthe buildings) drawings elevations and specifications thereof as willsatisfy the said authority and as will ensure compliance with thebuilding covenant contained in sub-para. (i) supra. Such plansand specifications shall be submitted in triplicate.

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740 EASTER AFRlCA LAW REPORTS [1962] E.A.(iii) To commence building operations within a period of three months A

from the date of notification in writing by the said authority of ap-proval of the plans and specifications, such buildings to conform toa building line decided upon and notified by the said authority.

(iv) To complete the buildings according to the said plans and specifi-cations so that the said buildings are ready for use and occupationwithin a period of twenty-four months from the date of commence- Bment of the said right of occupancy.

6. Failure to comply with any of the terms or conditions hereincontained or implied will be deemed to constitute good cause for revocationof the said right of occupancy. C

The words good cause for revocation of the said right of occupancy referto s. JO of the Tanganyika Land Ordinance of January 26, 1923 (Cap. 113)which their lordships will quote later.There was considerable delay in compliance with these conditions, and

certain extensions of time were granted. On March II, 1954, the respondent Dwrote to the appellants extending the time for submission of detailed plansto April 30, 1954, and saying that if this was not done the right of occupancywould be revoked. The appellants complied with the requirements of thiletter by submitting detailed plans for a godown or store on April II, 1954,and detailed plans for the whole plot on April 29, 1954. These two sets of planswere approved on May 3, and May 20, 1954, respectively. E

On January 26, 1955, the respondent wrote to the appellants extending thetime for completion to July 31, 1955, and indicating that the right of occupancywould be revoked if the building was not completed by that date. Thi repre-sented an extension of nearly sixteen months beyond the original date forcompletion. By September, 1955, the godown had been completed anJ theappellant had received permission from the township authority to occupy it. PBut the building of the shops and fiats shown on the detailed plans had notbeen commenced and on November 21, 1955, the respondent granted a furtherextension of time to January 3 I, 1956, for completion of these buildings. Theappellants then submitted altered plans, which were subsequently approvedby the township authority on February 15, 1956. The appellants also askedthe respondent, through their architects, for an extension of six months in which Gto erect the remainder of the buildings.

The respondent in a letter dated January, 1956, replied that this was notapproved. He granted the appellants an extension up to February 29. 1956.to have their plans approved and commence building operations, stating thathe would call for a further report during the first week of March, 1956, andunless building operations were by then under way he would recommend to Hthe Governor that the right of occupancy should be revoked. If the reportrevealed that building was proceeding satisfactorily a further short extensionof time would be granted to complete the erection of the building. The appellantsreplied in a letter dated February 8, 1956, pointing out that they had alreadybuilt a store costing Shs. 60,000/- but had not yet received approval fromthe township authority for shops; that they would require further time for Iinviting tenders; that it would not appear economical to build shops at thatmoment because there were many empty shops in the vicinity, and asking foranother six months to arrive at a final decision. On May 31,1956, the respondentwrote to the appellants giving them thirty days in which to inform him of thereasons why construction of the main buildings had still not been put in hand.On May 4. 1957, the right of occupancy was revoked. The learned trial judgesaid in his judgment:


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[1962] E.A.f three months Authority of ap-to conform tosaid authority.ns and specifi-and occupationof commence- B

nditions hereinfor revocation

coccupancy refer, 1923 (Cap. 113)

conditions, and4. the respondent Dof detailed plans

ight of occupancyuirements of thison April 11, 1954,e two sets of plans Eants extending theright of occupancydate. This repre-original date for

ompleted and therity to occupy it. Fled plans had not

granted a furtherese buildings. The

uently approvedlants also asked

ix months in which Gthat this was not

February 29, 1956,tions, stating thatMarch, 1956, and

uld recommend to Hd. If the report

er short extension. The appellants

t they had alreadyved approval frome further time for Ibuild shops at thatity, and asking for1956, the respondent

inform him of thet been put in hand.learned trial judge

P c PREMCHAND NATHU CO. v. LAND OFFICER 741A I have no evidence of any further correspondence between these two

dates. It is not disputed that no building other than the godown has everbeen commenced on the plot.The appellants refused to deliver up possession of the plot, and these pro-

ceedings were started by the respondent on April 8, 1959, claiming possession.a revocation fee and damages. The appellants contested the validity of theB revocation on various grounds. The learned trial judge held that the respondentwas entitled to possession and ordered accordingly. He also entered judgmentfor the amount of the revocation fee but awarded no damages, since the appellantswould have to yield up the godown which they had built.

The Court of Appeal dismissed the appellants' appeal. Of the defencesC raised before the trial judge and the Court of Appeal one only has been arguedbefore their lordships' board. The appellants contend that s. 14 (I) of theConveyancing and Law of Property Act, 1881, is applicable to the exerciseby the Governor of any right of revocation and therefore, since no notice wasserved in compliance with that sub-section, the purported revocation wasinvalid. The su b-section just mentioned is in the following terms:

14. (I) A right of re-entry or forfeiture under any proviso or stipulationin a lease, for a breach of any covenant or condition in the lease, shall notbe enforceable, by action or otherwise, unless and until the lessor serveson the lessee a notice specifying the particular breach complained of and .if the breach is capable of remedy, requiring the lessee to remedy thebreach, and, in any case, requiring the lessee to make compensation in moneyfor the breach, and the lessee fails, within a reasonable time thereafter, toremedy the breach, if it is capable of remedy, and to make reasonablecompensation in money, to the satisfaction of the lessor, for the breach.

D

E

The relevant provisions of the Tanganyika Land Ordinance (Cap. 113)are as follows:F Section 2 'occupier' means the holder of a right of occupancy .The 'right of occupancy' means a title to the use and occupation ofland ...

3. (1) The whole of the lands of the Territory, whether occupied orunoccupied, on the date of the commencement of this Ordinance are herebydeclared to be public lands:

Provided that . . . nothing in this Ordinance shall be deemed to affectthe validity of any title to land or any interest therein lawfully acquiredbefore the date of the commencement thereof and that all such titlesshall have the same effect and validity in all respects as they had before thatdate.

4. Subject to the proviso to sub-so (1) of s. 3, all public lands and allrights over the same are hereby declared to be under the control and subjectto the disposition of the Governor and shall be held and administered forthe use and common benefit, direct or indirect, of the natives of theTerritory, and no title to the occupation and use of any such lands shall bevalid without the consent of the Governor.

G

H

I6. The Governor may, where it appears to him to be in the general

interests of the Territory-0 grant a right of occupancy to a native or a non-native whether

with or without the payment of a premium at the Governor'sdiscretion;

. . - _ ~- - ~ ~ .


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742 EASTERN AFRICA LAW REPORTS [1962] E.A.b demand a rental for the use of any public land granted to any A

native or non-native;(c) revise the said rental at intervals of not more than thirty-threeyears:

Provided that before any public land in an area over which a nativeauthority has been established is so disposed of the said native authorityshall be consulted. B7. Such rights of occupancy shall be for any definite term not exceedingninety-nine years, and shall be granted subject to the terms of any contractwhich may be made between the Governor and the occupier not inconsistentwith the provisions of this Ordinance:Provided that the Governor shall not (save in the case of a right granted Cin connection with a mining lease) grant rights of occupancy to any non-native free of rent or upon any conditions which may preclude him fromrevising the rent at intervals of not more than thirty-three years.

10. I shall not be lawful for the Governor to revoke a right of occu-pancy granted as aforesaid save for good cause. Good cause shall include-(a) non-payment of rent, taxes, or other dues imposed upon the land;b requirement of the land by the Government for public purposes:(c) requirement of the land for mining purposes or for any purpo e

connected therewith;(d) abandonment or non-use of the land for a period of five years:e breach of the provisions of s. J 4;(j) breach of any term or condition contained or to be implied in the

certificate of occupancy or in any contract made in accordancewith s. 7;(g) attempted alienation by a native in favour of a non-native:h breach of any regulations under this Ordinance relating to thetransfer of or other dealings with rights of occupancy or interests

therein.

D

E

F

The Land (Law of Property and Conveyancing) Ordinance of January, G1923 (Cap. 114), provided as follows:

2. J Subject to the provisions of this Ordinance, the law relatingto real and personal property, mortgagor and mortgagee, landlord andtenant, and trusts and trustees in force in England on the first day ofJanuary 1922, shall apply to real and personal property, mortgages, leasesand tenancies, and trusts and trustees in the Territory in like manner Has it applies to real and personal property, mortgages, leases and tenancies,and trusts and trustees in England, and the English law and practice ofconveyancing in force in England on the day aforesaid shall be in forcein the Territory.

(2) Such English law and practice shall be in force so far only as the Icircumstances of the Territory and its inhabitants, and the limits of HerMajesty's jurisdiction permit.

(3) When such English law or practice is inconsistent with any provisioncontained in any Ordinance or other legislative Act or Indian Act forthe time being in force in the Territory, such last mentioned provisionshall prevail.

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[1962] E.A. Pc PREMCHAND NATHU CO. v. LAND OFFICER 743

E

10. The Governor may, if he thinks fit, from time to time by orderpublished in the Gazette declare that any English Act of Parliament orpart of an Act is or is not by virtue of this Ordinance in force in theTerritory, and every such declaration shall be conclusive.If regard is to be had only to the provisions of the two Tanganyika Ordinances

the revocation of the right of occupancy granted to the appellants would appearB to be entirely in order. The appellants were clearly in breach of condition 2 (iv)in the certificate of occupancy, and this was good cause for revocation unders. IO f) of the Land Ordinance.

Counsel for the appellants contended, however, that s. 14 (1) of the EnglishAct of 1881, was imported into the law of Tanganyika by s. 2 of the LandC (Law of Property and Conveyancing) Ordinance, that the section bound the

-' Crown and that the certificate of occupancy had all the characteristics of alease. Consequently, as no notice was served in compliance with s. 14 (I) theGovernor could not validly revoke the right of occupancy. Counsel concededthat the Act of 1881, as applied in England, did not bind the Crown, butcontended that when the provisions of section 14 (I) were imported into theD law of Tanganyika the courts should infer, from all the surrounding circum-stances, that they were intended to bind the Crown. He pointed out that allthe land in Tanganyika had been public land since the date of the LandOrdinance of 1923, subject to the proviso in s. 3 (1) of that Ordinance, and wasvested in the Crown, and submitted that it was most likely that the legislature,having imported the English law of landlord and tenant into Tanganyika,E should have intended it to apply only to the interests in land lawfully acquiredbefore the date of the commencement of the said Ordinance. Counsel suggestedthat the lands coming within the proviso were small in extent compared withthe total area of Tanganyika. No evidence on this matter was called by theappellants in the courts of Tanganyika, but their lordships are willing to assumethat by far the greater portion of the country was made public land by the LandF Ordinance of 1923.

The general principle to be applied in considering whether or not the Crownis bound by general words in a statute is well established and it is commonground between the parties that this general principle is applicable in Tanganyika.The principle was stated by the board in the case of Province of Bombay v,Municipal Corporation of Bombay (I), [1947] A.C. 58 at p. 61, in the followingG terms:

granted to any A Athan thirty-threewhich a native

native authority Brm not exceeding

of any contractnot inconsistent

of a right granted Ccy to any non-clude him fromyears.

a right of occu- De shall inc1ude-d upon the land;public purposes:for any purposeod of five years:

be implied in thee in accordancenon-native;

e relating to theor interests

F

of January, G

o far only as thethe limits of Her J

The maxim of the law in early times was that no statute bound theCrown unless the Crown was expressly named therein. . . but the ruleso laid down is subject to at least one exception. The Crown may be bound,as has often been said, 'by necessary implication'. If, that is to say, it ismanifest from the very terms of the statute that it was the intention of thelegislature that the Crown should be bound, then the result is the sameas if the Crown had been expressly named. It must then be inferred that theCrown, by assenting to the law, agreed to be bound by its provisions.

There is nothing in the wording of the Conveyancing and Law of PropertyAct, 1881, which manifests an intention that the Crown should be bound, butcounsel for the appellants submits that a necessary implication can arise froma consideration of the Ordinances in force in Tanganyika, and relies uponthe decision of the board in Basltir v. The Commissioner of Lands (2), [1960]A.C. 44 and upon the judgment of ABERNETHY, J., in Director of Lands andMines v. Solian Singh (3), I T.L.R. (R.) 631.

Their lordships will return to these cases later, but for the moment theywill assume, without so deciding, that counsel's submission is well-founded,and will consider how far the provisions of the two Ordinances of January,

the law relatinge, landlord andthe first day of

mortgages, leasesin like manneres and tenancies,

and practice ofshall be in force

I

HH

ith any provisionIndian Act foroned provision


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EASTERN AFR[CA LAW REPORTS [[962] E.A.1923, give rise to the implication for which counsel contends. Section 14 (I) Aof the English Act of 1881, deals only with

a right of re-entry or forfeiture under any proviso or stipulation in alease, for a breach of any covenant or condition in the lease,and it is to be observed at once that in the Land Ordinance of 1923, the wordlease appears to be deliberately avoided. It is discarded in favour of the Bwords right of occupancy , and there are other indications that s. 14 (I) ofthe Act of 1881, was not intended to apply to the public lands of Tanganyika.For instance-

(1) the right of occupancy can only arise under a grant by the Governor:(2) there is no mention in the Ordinances of a right of re-entry or forfeiture. CThis again appears to be a deliberate avoidance of the words in theEnglish statute;(3) the right of revocation conferred upon the Governor is a right whichis quite unknown in the law of England and bears little resemblanceto a lessor's right of re-entry or forfeiture. All that the Governor hasto do is to execute a document saying that the right of occupancy is Drevoked, and the list of good causes deals to a large extent withmatters of public policy which have nothing to do with any breachby the occupier of any covenant or condition.Other striking differences between a right of occupancy and a lease arecontained in s. 7, s. 8, s. II, s. 13 and s. 21. In their lordships' opinion the Eintention of the Land Ordinance was to establish an entirely new interest inland, similar to leases in some respects but different in others. They thinkthat the Act was intended to be a complete code regulating the respectiverights of the Crown and the occupier.For these reasons their lordships are quite unable to find in the law of

Tanganyika any necessary implication that s. 14 (I) of the English Act of 1881, Fwhen incorporated therein, binds the Crown, even if it be assumed, in favourof the appellants, that it is legitimate to look outside the terms of the 1881Act for the purpose of seeking such an implication. It is true that if s. 14 (I)of the Act of 1881 does not apply to Crown lands that section will have a some-what restricted operation in Tanganyika, but this fact is not sufficient to createa necessary implication that the Crown was to be bound thereby. They see Gno reason to doubt that s. 14 (l) applies to any leases, properly so-called, comingwithin the proviso to s. 3 (1) of the Tanganyika Land Ordinance. They havenot overlooked the fact that the Law of Property Act, 1925, expressly binds theCrown, with certain immaterial exceptions, but that Act is not incorporatedin the law of Tanganyika by s. 2 (1) of the Land (Law of Property and Convey-ancing) Ordinance, 1923, since that section applie the law in force in England Hon January I, 922.The cases of Basltir v. The Commissioner of Lands (2), and Director of Lands

and Mines v. Solum Singh (3). already mentioned afford no assistance to theargument on behalf of the appellants. The decision in Basltirs case dependedon the interpretation of s. 83 of the Kenya Crown Lands Ordinance. Thatsection, so far as material. provides: ... if there shall be any breach of the lessee's covenants theCommissioner may serve a notice upon the lessee specifying thecovenant of which a breach has been committed, and ... may commencean action in the Supreme Court for the recovery of the premises, and,on proof of the facts, the Supreme Court shall, subject to relief upon suchterms as may appear just declare the lease forfeited

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[1962] E.A.s. Section 14 (1) A

or stipulation in alease,e of 1923, the worded in favour of the B.ns that s. 14 (1) ofnds of Tanganyika.t by the Governor:entryorforfeiture . Cof the words in theor is a right which

little resemblanceat the Governor has

t of occupancy is Da large extent withwith any breach

cy and a lease arerdships' opinion the E

y new interest inothers. They think

lating the respectivefind in the law of

English Act of 1881, Fe assumed, in favoure terms of the 1881true that if s. 14 (1)

ion will have a some-ot sufficient to create

thereby. They see Gly so-called, coming

rdinance. They have5, expressly binds the

is not incorporatedroperty and Convey-in force in England H

nd Director of Landsno assistance to thesltirs case dependedds Ordinance. That Icovenants ... thespecifying . . . the. . may commencethe premises, and,to relief upon such

Ij

JrII

P.c. PREMCHAND NATHU CO I. LAND OFFICER 745In exercising the power of granting relief against forfeiture under this

section the court shall be guided by the principles of English law andthe doctrines of equity.It was clear that the section, dealing as it did with Crown lands, was intended

to bind the Crown, and the board held that the reference to principles ofB English law clearly applied to Crown lands, s. 14 of the Act of 1881. (Seepp. 61 Fin. and 62 of the report.)In Sohan Singhs case (3), ABERNETHY,J., did not hold that s. 14 (I) of the

Act of 1881 applied to certificates of occupancy, but held that in the circum-stances of the case before him the respondent ought in all fairness to havebeen given an opportunity to answer an opinion which had been expressedC by the executive officer. The learned judge continued:

It is entirely contrary to justice that a certificate of occupancy shouldhave been revoked on the mere opinion of someone that a building cannotbe erected by a specified date.

A

In the present case it was not suggested that equity required the giving of noticeD of revocation or of intention to revoke; consequently their lordships havenot considered whether such a defence would or would not have been opento the appellants .

Their lordships will humbly advise Her Majesty that this appeal shouldbe dismissed. The appellants must pay the costs of the respondent.

E Appeal dismissed.Solicitors: Gibson Weldon, London (for the appellants); Charles Russell Co., London (for the respondent).

F

THE ATTORNEY-GENERAL v. CHIMANBHAI MOTIBHAI PATELAND ANOTHERG [H.M. SUPREMECOURT OF KENYA AT NAIROBI (Rudd, Ag. CiL, and Edmonds,

J.), October I and 4, 1962.]CRIMINAL ApPEAL No. 862 OF 1962.

HCriminal law-Case stated-Magistrates findings of fact in complex case not

stated-Appellate court invited to refer to long record and judgment toestablish facts-Whether case should be remitted to lower court for re-statement of facts-Penal Code, s. 318 K.)-Criminal Procedure Code,s. 368 and s. 376 K.).

IBoth respondents were acquitted by a senior resident magistrate on two

counts of conspiring to defraud contrary to s. 318 of the Penal Code. A casewas stated by the magistrate, on the application of the Crown, which containedvirtually none of the essential findings on which the Crown intended to relyat the hearing but a copy of the record of evidence and of the judgment wasattached. At the hearing counsel for the Crown stated that he would have torefer to the file of the lower court and to many exhibits to establish the findingsof fact on which he relied as the basis of his argument and he invited the courtto refer to the original record and exhibits to establish the findings of factmade by the magistrate which were not specified in the case as stated. These

premchand nanthu v land officer 1962 e a 738 (privy council decision

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