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Rex v Ala (Criminal Appeal No. 52 of 1942) [1942] EACA 68 (1 January 1942)
- Citation
- [1942] EACA 68
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Bartley J, Sheridan CJ
- Case number
- Criminal Appeal No. 52 of 1942
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Bartley J, Sheridan CJ
- Case number
- Criminal Appeal No. 52 of 1942
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the appellant, as the servant of the holder of a wine merchant's and grocer's licence, was lawfully in possession of the licence at all material times. There is nothing in the Liquor Ordinance, 1934, to prevent the business from being carried on by a servant in the absence of the licence holder. Therefore, the appellant did possess a licence and could not be convicted under section 44 for selling liquor without a licence. The previous acquittal on a related charge further precluded prosecution for the same facts. Accordingly, the conviction and sentence were quashed, and any fine paid was ordered to be refunded.
Court disposition
appeal_allowed
Orders
- Conviction and sentence quashed.
- Any fine paid to be refunded to the appellant.
02
Material facts
Parties
Magajan Ala
Appellant Counsel: BarretRex
Respondent Counsel: SpurlingAmounts and remedies
- Fine Refunded: UGX 0
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the appellant committed an offence by selling liquor without a licence under section 44 of the Liquor Ordinance, 1934.
- 02
Whether a servant can lawfully sell liquor in the absence of the licence holder under the Ordinance.
- 03
Whether the acquittal in Criminal Case No. 6039/41 precludes prosecution for the same facts under section 138 of the Criminal Procedure Code.
Party arguments
- Applicant
- Barret for the appellant argued that the appellant's absentee master held a valid wine merchant's and grocer's licence, which was in the possession of the appellant at all material times. The prosecution agreed to this fact. It was contended that there is nothing in the Liquor Ordinance, 1934, preventing the business from being carried on by a servant in the absence of the licence holder, and therefore the appellant was lawfully in possession of the licence and entitled to sell liquor.
- Respondent
- Spurling, Crown Counsel for the Crown, maintained that the appellant was guilty of selling liquor without a licence, contrary to section 44 of the Liquor Ordinance, 1934. The prosecution did not dispute that the licence was held by the absentee master and was in the possession of the appellant, but argued that the sale by the servant constituted an offence under the Ordinance.
05
Court’s reasoning
Legal principles
- 01
Liquor Ordinance, 1934, section 44 and section 4
A person cannot be convicted for selling intoxicating liquor without a licence if he is acting as a servant of the licence holder and is in possession of the licence at the time of sale.
- 02
Criminal Procedure Code, section 138
A person acquitted of an offence on certain facts cannot be tried again for the same offence on the same facts unless the acquittal is reversed or set aside.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the appellant, as the servant of the holder of a wine merchant's and grocer's licence, was lawfully in possession of the licence at all material times. There is nothing in the Liquor Ordinance, 1934, to prevent the business from being carried on by a servant in the absence of the licence holder. Therefore, the appellant did possess a licence and could not be convicted under section 44 for selling liquor without a licence. The previous acquittal on a related charge further precluded prosecution for the same facts. Accordingly, the conviction and sentence were quashed, and any fine paid was ordered to be refunded.
Obiter and limits
- Section 44 of the Liquor Ordinance, 1934, creates three distinct offences, but only the first and third are relevant to this case.
- The prosecution agreed that the licence was in the possession of the appellant at all material times.
Court disposition
appeal_allowed
- Conviction and sentence quashed.
- Any fine paid to be refunded to the appellant.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
APPELLATE CRIMINAL
BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.
REX, Respondent
v.
MAGAJAN ALA, Appellant
Criminal Appeal No. 52 of 1942
Liquor Ordinance, 1934, section 44-Offences under section summarized-Sale of liquor by servant of absentee master the holder of a wine merchant's and grocer's licences.
The appellant was convicted of selling two bottles of beer without a licence. The appellant's absentee master was the holder of a wine merchant's and grocer's licence which was in possession of the appellant.
Held (2-6-42).—That there was nothing in the Liquor Ordinance, 1934, to prevent the business of a wine merchant and grocer being carried on in his absence by his servant and that the answer to the case against the appellant was that he did possess a licence. (Conviction and sentence quashed.)
Barret for the Appellant,
Spurling, Crown Counsel, for the Crown.
JUDGMENT.—The decision in this appeal turns on the construction of section 44 of the Liquor Ordinance, 1934. It reads as follows: -
"Any person who, contrary to the provisions of this Ordinance, sells or deals in or disposes of any intoxicating liquor without a licence, or sells or offers or exposes for sale any such liquor at any place where he is not authorized by his licence so to sell, or who sells or deals in or disposes of any intoxicating liquor in any manner other than is provided for in the conditions of his licence shall on conviction be liable to the penalties provided in sub-section (2) of section 39 of this Ordinance, and all liquor found on the premises may be forfeited."
Summarized this section provides for three separate and distinct offences, (1) selling, dealing in or disposing of intoxicating liquor without a licence, (2) selling or offering or exposing for sale intoxicating liquor at any place where he is not authorized by his licence so to sell, and (3) selling or dealing in or disposing of intoxicating liquor in any manner other than is provided for in the conditions of his licence.
No. 2 requires no consideration in this case. The issue affects Nos. 1 and 3.
With regard to No. 3 in Criminal Case No. 6039/41' the accused was charged on the same facts as in the present case with "dealing in intoxicating liquor in a manner other than is provided for in the provisions of his licence". For reasons which it is unnecessary to refer to he was acquitted on that charge and as the acquittal has not been set aside the provisions of section 138, Criminal Procedure Code, are applicable; they read:—
"A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence."
In the present case he was charged with "Selling or disposing of intoxicating liquor without a licence", that is what we have referred to as No. 1 offence in summarizing section 44.
Mr. Barret for the appellant has contended that the appeal should succeed for the reason that the appellant's absentee master was the holder of a licence which was in possession of his servant the accused at all material times. This fact is agreed by the prosecution. In our opinion this fact is a sufficient answer to a charge under No.
1. The evidence establishes that the accused was the servant of the holder of the wine merchants and grocers licence and there is nothing in the Ordinance to prevent the business of a wine merchant and grocer being carried on in his absence by his servant. Section 4 of the Ordinance provides that "No person shall sell any intoxicating liquor or manufacture any malt liquor in the Colony without a licence" and as we have said the answer to the present case against the accused is that he did possess a licence. The case of his having sold liquor in contravention of the terms of that licence we have already dealt with.
The appeal is allowed and the conviction and sentence are quashed, the fine if paid being ordered to be refunded.
(Note.—In. Criminal Case No. 6039/41 the prosecutor withdrew the charge.)
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