738

EASTERN

AFRICA

LAW REPORTS

[1962] E.A.

There is no principle better recognised than that a man is not to be a judge in 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 minds of ordinary persons, and induce them to think that the magistrates might be biased, that will be sufficient to render the tribunal incompetent. But where the parties choose their own tribunal the case is very different. Jn the present case it is of the essence of the submission that questions shall be submitted to the engineer as arbitrator which must involve the decision of matters connected with his own competency, care, and caution, and with the way in which he discharged his duties under the contract. The parties agree that the arbitrator is to adjudicate on matters in which he has an interest. Here the umpire was in the position of a judge and the very strict rule should be applied. It is only in the case of a named arbitrator that suspicions of bias will 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 in some 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, a Canadian case which is noted in 2 Digest 682, 1520, it was held that arbitrators must be indifferent, and an award made by arbitrators one of whom was at the time of the arbitration subagent for an agent of the defendants in obtaining risks, was void, although he only acted in that capacity to a small extent. On the affidavit evidence as it stands the facts here are not dissimilar. I am satisfied that there is a prima facie case. Accordingly, I made the umpire and the respondents parties to the objection proceedings which after any further objections or cross-objections have been filed within twenty-one days shall be set down for hearing. Costs in those proceedings. Order accordingly. Advocates: R. E. Hunt, Kampala (for the respondents). (for the applicant):

Y. V. Phadke, Kampala

PREMCHAND

ATHU & CO. LTD.

I'.

THE LAND OFFICER

of Avonholm and

[PRIVY COUNCIL (Lord Morton of Henryton, Lord Keith 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 Court of Tanganyika-Murphy, J.)

Stamte=-Crown=Intentton to bind Crown-Inference from circumstances-Land Ordinance (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 building conditions=Extension of time for compliance with conditions-Failure TO erect buildings within extended time-Revocation of right of occupancyNo notice of revocation served=Whether purported revocation invalid-s-Lard Ordinance (Cap. 113), s. 2, s. 3, s. 4, s. 6, s. 7, s. 8, s. 10, s. 11. s. 13 and s. 21 (T.)-Collveyancing and Law of Property Act, 1881, s. 14 (I)-Land (Law of Property and Conveyancing) Ordinance (Cap. 114), s. 2 and s. 10Law of Property Act, 1925-Crown Lands Ordinance (Cap. 155), s. 83 (K.).

IS
l

[1962] E.A.

P.c. A A

PREMCHAND

NATHU

&

co.

v. LAND OFFICER

739

is not to be a judge veil established that, influence the minds le magistrates might tl incompetent. But is very different. In that questions shall involve the decision nd caution, and with ontract. The parties in which he has an very strict rule should that suspicions of bias 1y (2), [1900]2 Ch. 835. tenuous but he was in rld have been disclosed. 1892), 19 A.R. 293, a as held that arbitrators ; one of whom was at Iefendants in obtaining to a small extent. On issimilar. I am satisfied Ie the umpire and the 1 after any further obenty-one days shall be Order accordingly. Y. V. Phadke, Kampala

The appellants occupied land under a certificate giving the appellants a right of occupancy for ninety-nine years from 1952, subject to the building conditions contained in the certificate of occupancy. There was considerable delay in compliance with these conditions, and certain extensions of time were granted. Although the appellants built a godown on the plot they did not commence construction of the main buildings, namely shops and flats, and the right of occupancy was revoked in May, 1957. The appellants refused to give up possession 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 appeal the Court of Appeal dismissed the occupiers' appeal and on further appeal it was contended that s. 14 (1) of the Conveyancing and Law of Property Act, 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 Crown although s. 14 (1) did not bind the Crown in England. Held: there was not in the law of Tanganyika any necessary implication that s. 14 (I) of the Conveyancing and Property Act, 1881, bound the Crown, and accordingly the right of occupancy was validly revoked without notice. Appeal dismissed.

i I,

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, I T.L.R. (R.) 631. Dingle Foot, Q.C. and Dick Taverne (both of the English Bar) for the appellants. Raymond Walton (of the English Bar) for the respondent. November 27. LORD MORTON OF HENRYTON: This is an appeal from a judgment of the Court of Appeal for Eastern Africa, dismissing an appeal from an order of the High Court of Tanganyika, ordering the appellants to deliver up possession of a plot of land at Moshi to the respondent. The appellants occupancy signed of occupancy for Shs. 435/- a year, were occupiers of the plot in question under a certificate of by both parties to this appeal, giving the appellants a right a term of ninety-nine years from April 4, 1952, at a rent of subject to revision as therein mentioned. of occupancy contained in the certificate provided (inter alia),

F
I

I
:: LAND OFFICER
.eith of Avonholm 1961. appeal from H. M. High
r.)

1
\

and

I
I

The conditions as follows: "2. The

n circumstances-Land , of Property Act, 1881, !) Ordinance (Cap. 114), subject to building '1 conditions-Failure to of right of occupancyrevocation invalid-Land 8, s. 10, s. 11, s. 13 and t, 1881, s. 14 (1)-Land tp, 114), s. 2 and s. 10ce (Cap. 155), s. 83 (K.).
'ICY

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 the proposed buildings (including block plans showing the position of the buildings) drawings elevations and specifications thereof as will satisfy the said authority and as will ensure compliance with the building covenant contained in sub-para. (i) supra. Such plans and specifications shall be submitted in triplicate.

740

EASTER

AFRlCA

LAW REPORTS

[1962] E.A.

(iii) To commence building operations within a period of three months from the date of notification in writing by the said authority of approval of the plans and specifications, such buildings to conform to a building line decided upon and notified by the said authority. (iv) To complete the buildings according to the said plans and specifications so that the said buildings are ready for use and occupation within a period of twenty-four months from the date of commencement of the said right of occupancy.

"6. Failure to comply with any of the terms or conditions herein contained or implied will be deemed to constitute good cause for revocation of the said right of occupancy." The words "good cause for revocation of the said right of occupancy" refer to 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 wrote to the appellants extending the time for submission of detailed plans to April 30, 1954, and saying that if this was not done the right of occupancy would be revoked. The appellants complied with the requirements of thi letter 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 plans were approved on May 3, and May 20, 1954, respectively. On January 26, 1955, the respondent wrote to the appellants extending the time for completion to July 31, 1955, and indicating that the right of occupancy would be revoked if the building was not completed by that date. Thi represented an extension of nearly sixteen months beyond the original date for completion. By September, 1955, the godown had been completed anJ the appellant had received permission from the township authority to occupy it. But the building of the shops and fiats shown on the detailed plans had not been commenced and on November 21, 1955, the respondent granted a further extension of time to January 3 I, 1956, for completion of these buildings. The appellants then submitted altered plans, which were subsequently approved by the township authority on February 15, 1956. The appellants also asked the respondent, through their architects, for an extension of six months in which to erect the remainder of the buildings. The respondent in a letter dated January, 1956, replied that this was not approved. He granted the appellants an extension up to February 29. 1956. to have their plans approved and commence building operations, stating that he would call for a further report during the first week of March, 1956, and unless building operations were by then under way he would recommend to the Governor that the right of occupancy should be revoked. If the report revealed that building was proceeding satisfactorily a further short extension of time would be granted to complete the erection of the building. The appellants replied in a letter dated February 8, 1956, pointing out that they had already built a store costing Shs. 60,000/- but had not yet received approval from the township authority for shops; that they would require further time for inviting tenders; that it would not appear economical to build shops at that moment because there were many empty shops in the vicinity, and asking for another six months to arrive at a final decision. On May 31,1956, the respondent wrote to the appellants giving them thirty days in which to inform him of the reasons 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 judge said in his judgment:

TS

[1962] E.A.

P.c. A A

PREMCHAND

NATHU

& CO. v. LAND

OFFICER

741

iod of three months .aid authority of apdings to conform to the said authority. id plans and specifiuse and occupation e date of commence-

"I have no evidence of any further correspondence between these two dates. It is not disputed that no building other than the godown has ever been commenced on the plot." The appellants refused to deliver up possession of the plot, and these proceedings were started by the respondent on April 8, 1959, claiming possession. a revocation fee and damages. The appellants contested the validity of the revocation on various grounds. The learned trial judge held that the respondent was entitled to possession and ordered accordingly. He also entered judgment for the amount of the revocation fee but awarded no damages, since the appellants would have to yield up the godown which they had built. The Court of Appeal dismissed the appellants' appeal. Of the defences raised before the trial judge and the Court of Appeal one only has been argued before their lordships' board. The appellants contend that s. 14 (I) of the Conveyancing and Law of Property Act, 1881, is applicable to the exercise by the Governor of any right of revocation and therefore, since no notice was served in compliance with that sub-section, the purported revocation was invalid. The su b-section just mentioned is in the following terms: "14. (I) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of and . if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach." The relevant provisions of the Tanganyika Land Ordinance (Cap. 113)

rr

conditions herein cause for revocation

1t of occupancy" refer 'y 26, 1923 (Cap. 113) these conditions, and 1954. the respondent ssion of detailed plans the right of occupancy e requirements of this .ore on April 11, 1954, These two sets of plans ely. .ppellants extending the t the right of occupancy I that date. This reprej the original date for een completed and the authority to occupy it. detailed plans had not indent granted a further of these buildings. The subsequently approved .e appellants also asked n of six months in which 'plied that this was not 1 to February 29, 1956, operations, stating that ek of March, 1956, and ie would recommend to revoked. If the report further short extension building. The appellants ut that they had already received approval from require further time for .I to build shops at that . vicinity, and asking for .' 31, 1956, the respondent ich to inform him of the till not been put in hand. . The learned trial judge

are as follows:

"Section 2 'occupier' means the holder of a right of occupancy . The 'right of occupancy' means a title to the use and occupation of land ... "3. (1) The whole of the lands of the Territory, whether occupied or unoccupied, on the date of the commencement of this Ordinance are hereby declared to be public lands: "Provided that . . . nothing in this Ordinance shall be deemed to affect the validity of any title to land or any interest therein lawfully acquired before the date of the commencement thereof and that all such titles shall have the same effect and validity in all respects as they had before that date. "4. Subject to the proviso to sub-so (1) of s. 3, all public lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the Governor and shall be held and administered for the use and common benefit, direct or indirect, of the natives of the Territory, and no title to the occupation and use of any such lands shall be valid without the consent of the Governor.

"6. 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's discretion;

-- ~

_.

~-

--

~ ~--'--------------------'------

742 (b)

EASTERN

AFRICA

LAW REPORTS

[1962] E.A.

demand a rental for the use of any public land granted to any native or non-native; (c) revise the said rental at intervals of not more than thirty-three years: "Provided that before any public land in an area over which a native authority has been established is so disposed of the said native authority shall be consulted. "7. Such rights of occupancy shall be for any definite term not exceeding ninety-nine years, and shall be granted subject to the terms of any contract which may be made between the Governor and the occupier not inconsistent with the provisions of this Ordinance: "Provided that the Governor shall not (save in the case of a right granted in connection with a mining lease) grant rights of occupancy to any nonnative free of rent or upon any conditions which may preclude him from revising the rent at intervals of not more than thirty-three years." "10. It shall not be lawful for the Governor to revoke a right of occupancy 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)

(j)

(g) (h)

breach of the provisions of s. J 4; breach of any term or condition contained or to be implied in the certificate of occupancy or in any contract made in accordance with s. 7; attempted alienation by a native in favour of a non-native: breach of any regulations under this Ordinance relating to the transfer of or other dealings with rights of occupancy or interests therein." of January,

The Land (Law of Property and Conveyancing) Ordinance 1923 (Cap. 114), provided as follows:

"2. (J) Subject to the provisions of this Ordinance, the law relating to real and personal property, mortgagor and mortgagee, landlord and tenant, and trusts and trustees in force in England on the first day of January 1922, shall apply to real and personal property, mortgages, leases and tenancies, and trusts and trustees in the Territory in like manner as it applies to real and personal property, mortgages, leases and tenancies, and trusts and trustees in England, and the English law and practice of conveyancing in force in England on the day aforesaid shall be in force in the Territory. "(2) Such English law and practice shall be in force so far only as the circumstances of the Territory and its inhabitants, and the limits of Her Majesty's jurisdiction permit. "(3) When such English law or practice is inconsistent with any provision contained in any Ordinance or other legislative Act or Indian Act for the time being in force in the Territory, such last mentioned provision shall prevail."

ns
land granted

[1962] E.A. to any

P.c.
A A

PREMCHAND

NATHU

& CO. v. LAND

OFFICER

743

.ore than thirty-three over which a native said native authority te term not exceeding terms of any contract upier not inconsistent ase of a right granted cupancy to any non.y preclude him from -three years."

"10. The Governor may, if he thinks fit, from time to time by order published in the Gazette declare that any English Act of Parliament or part of an Act is or is not by virtue of this Ordinance in force in the Territory, and every such declaration shall be conclusive." If regard is to be had only to the provisions of the the revocation of the right of occupancy granted to to be entirely in order. The appellants were clearly in the certificate of occupancy, and this was "good s. IO (f) of the Land Ordinance. two Tanganyika Ordinances the appellants would appear in breach of condition 2 (iv) cause" for revocation under

voke a right of occucause shall inc1udeposed upon the land; for public purposes: -s or for any purpose period of five years: r to be implied in the made in accordance of a non-native; 1ance relating to the ccupancy or interests )rdinance of January,

Counsel for the appellants contended, however, that s. 14 (1) of the English Act of 1881, was imported into the law of Tanganyika by s. 2 of the Land C (Law of Property and Conveyancing) Ordinance, that the section bound the -' Crown and that the certificate of occupancy had all the characteristics of a lease. Consequently, as no notice was served in compliance with s. 14 (I) the Governor could not validly revoke the right of occupancy. Counsel conceded that the Act of 1881, as applied in England, did not bind the Crown, but contended that when the provisions of section 14 (I) were imported into the D law of Tanganyika the courts should infer, from all the surrounding circumstances, that they were intended to bind the Crown. He pointed out that all the land in Tanganyika had been public land since the date of the Land Ordinance of 1923, subject to the proviso in s. 3 (1) of that Ordinance, and was vested 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 acquired before the date of the commencement" of the said Ordinance. Counsel suggested that the lands coming within the proviso were small in extent compared with the total area of Tanganyika. No evidence on this matter was called by the appellants in the courts of Tanganyika, but their lordships are willing to assume that by far the greater portion of the country was made public land by the Land F Ordinance of 1923. The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is well established and it is common ground 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 following terms: "The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein. . . but the rule so 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 is manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions." There is nothing in the wording of the Conveyancing and Law of Property Act, 1881, which manifests an intention that the Crown should be bound, but counsel for the appellants submits that a necessary implication can arise from a consideration of the Ordinances in force in Tanganyika, and relies upon the 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 and Mines v. Solian Singh (3), I T.L.R. (R.) 631. Their lordships will return to these cases later, but for the moment they will assume, without so deciding, that counsel's submission is well-founded, and will consider how far the provisions of the two Ordinances of January,

nee, the law relating

tgagee, landlord and day of rty, mortgages, leases itory in like manner leases and tenancies, 1 law and practice of said shall be in force
I on the first -ce so far only as the

md the limits of Her

znt with any provision

ct or Indian Act for mentioned provision

744

EASTERN AFR[CA LAW REPORTS

[[962] E.A.

1923, give rise to the implication for which counsel contends. of the English Act of 1881, deals only with

Section 14 (I)

"a right of re-entry or forfeiture under any proviso or stipulation in a lease, 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 word "lease" appears to be deliberately avoided. It is discarded in favour of the B words "right of occupancy", and there are other indications that s. 14 (I) of the 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". C This again appears to be a deliberate avoidance of the words in the English statute; (3) the right of revocation conferred upon the Governor is a right which is quite unknown in the law of England and bears little resemblance to a lessor's right of re-entry or forfeiture. All that the Governor has to do is to execute a document saying that the right of occupancy is D revoked, and the list of "good causes" deals to a large extent with matters of public policy which have nothing to do with any "breach" by the occupier of any "covenant or condition". Other striking differences between a right of occupancy and a lease are contained in s. 7, s. 8, s. II, s. 13 and s. 21. In their lordships' opinion the intention of the Land Ordinance was to establish an entirely new interest in land, similar to leases in some respects but different in others. They think that the Act was intended to be a complete code regulating the respective rights 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, when incorporated therein, binds the Crown, even if it be assumed, in favour of the appellants, that it is legitimate to look outside the terms of the 1881 Act 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 somewhat restricted operation in Tanganyika, but this fact is not sufficient to create a necessary implication that the Crown was to be bound thereby. They see no reason to doubt that s. 14 (l) applies to any leases, properly so-called, coming within the proviso to s. 3 (1) of the Tanganyika Land Ordinance. They have not overlooked the fact that the Law of Property Act, 1925, expressly binds the Crown, with certain immaterial exceptions, but that Act is not incorporated in the law of Tanganyika by s. 2 (1) of the Land (Law of Property and Conveyancing) Ordinance, 1923, since that section applie the law in force in England on January I, J 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 the argument on behalf of the appellants. The decision in Basltir's case depended on the interpretation of s. 83 of the Kenya Crown Lands Ordinance. That section, so far as material. provides: " ... if there shall be any breach of the lessee's covenants the Commissioner may serve a notice upon the lessee specifying the covenant of which a breach has been committed, and ... may commence an 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 such terms as may appear just declare the lease forfeited E

)RTS contends.

[1962]

E.A. 14 (1)

P.c.

PREMCHAND

NA THU & CO

I'.

LAND OFFICER

745

Section

"In exercising the power of granting relief against section the court shall be guided by the principles the doctrines of equity."

forfeiture under this of English law and

iso or stipulation the lease",

in a 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 of English law" clearly applied to Crown lands, s. 14 of the Act of 1881. (See pp. 61 Fin. and 62 of the report.) In Sohan Singh's case (3), ABERNETHY, J., did not hold Act of 1881 applied to certificates of occupancy, but held stances of the case before him the respondent "ought in been given an opportunity" to answer an opinion which by the executive officer. The learned judge continued: that s. 14 (I) of the that in the circumall fairness to have had been expressed should cannot

inance of 1923, the word scarded in favour of the ications that s. 14 (1) of lie lands" of Tanganyika. grant by the Governor:

B.
I,

'j
C C

)f"re-entryorforfeiture". nee of the words in the

overnor is a right which bears little resemblance II that the Governor has he right of occupancy is D s to a large extent with .0 do with any "breach"
1",

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

D of revocation

In the present case it was not suggested that equity required the giving of notice or of intention to revoke; consequently their lordships have not considered whether such a defence would or would not have been open to the appellants . Their lordships will humbly advise Her Majesty that this appeal be dismissed. The appellants must pay the costs of the respondent. should

.upancy and a lease are eir lordships' opinion the 1 entirely new interest in It in others. They think regulating the respective Ie to find in the law of , the English Act of 1881, it be assumed, in favour Ie the terms of the 1881 It is true that if s. 14 (1) section will have a someis not sufficient to create iound thereby. They see iroperly so-called, coming rd Ordinance. They have 1925, expressly binds the Act is not incorporated of Property and Conveye law in force in England 2), and Director of Lands ford no assistance to the in Basltir's case depended Lands Ordinance. That .es see id . of lject
I

E
Solicitors: Gibson & Weldon, London & Co., London (for the respondent). (for the appellants);

Appeal dismissed. Charles Russell

,
'J

F THE ATTORNEY-GENERAL v. CHIMANBHAI MOTIBHAI PATEL AND ANOTHER G

[H.M. SUPREMECOURT OF KENYA AT NAIROBI (Rudd, J.), October I and 4, 1962.] Ag. CiL, and Edmonds,

CRIMINAL ApPEAL No. 862 OF 1962.

Criminal law-Case stated-Magistrate's findings of fact in complex case not stated-Appellate court invited to refer to long record and judgment to establish facts-Whether case should be remitted to lower court for restatement of facts-Penal Code, s. 318 (K.)-Criminal Procedure Code, s. 368 and s. 376 (K.). Both respondents were acquitted by a senior resident magistrate on two counts of conspiring to defraud contrary to s. 318 of the Penal Code. A case was stated by the magistrate, on the application of the Crown, which contained virtually none of the essential findings on which the Crown intended to rely at the hearing but a copy of the record of evidence and of the judgment was attached. At the hearing counsel for the Crown stated that he would have to refer to the file of the lower court and to many exhibits to establish the findings of fact on which he relied as the basis of his argument and he invited the court to refer to the original record and exhibits to establish the findings of fact made by the magistrate which were not specified in the case as stated. These

covenants ... the specifying . . . the . . may commence the premises, and, to relief upon such
,.

j ...