Vohora Bros. Ltd v. R., Crim. App. 331-A-69, 27/12/69, Platt J.

Vohora Bros. Ltd v. R., Crim. App. 331-A-69, 27/12/69, Platt J.

This is an appeal against the order of the Resident Magistrate in the resident Magistrates Court at Arusha whereby the Managing Director of a company was ordered to be arrested. The company

had been charged with failing to comply with certain provisions of the National Provident Fund Act. A complaint was brought before the Resident Magistrates Court on the 10^th December 1969. At some time on the 16^th December a summons was issued requiring the company to cause an appearance to be made on the 26^th December 1969. It is not entirely clear form the record how the summons was served or on what date, but the Compliance Officer of the National Provident Fund in Arusha, informed the learned Magistrate, who issued the warrant of arrest, that there had been service, saying; “I have served the accused and he has refused to sign the summons and he also says that he does not like to appear in Court.” Although it was not clear from the record who the “accused” referred to was, the Court accepts as a fact that the person to be served was the managing director of the company. The managing director asked a messenger sent by the Compliance Officer for time to contact the Compliance Officer, probably with a view to complying with the National Provident Fund act. It appears that there was correspondence, and then the case came before the court on the 26^th December 1969. No officer of the company appeared, and so the District Court ordered the arrest of its managing director.

            Held: (1) “The first argument posed in ground 2(i) of the petition of appeal is that there was no proof of service of the summons upon the company as required by sections 96 and 98 of the Criminal Procedure Code. Section 96 provides that – “Service of a summons on an incorporated company …. May be effected by serving it on the secretary, local manager or other principal officer of the corporation at the registered office of such company ….” When the compliance officer refers to service on the accused, it should have been clear which of the officers and at what place the summons was served. One might well say who indeed was the “accused” if the charge was against a body corporate. Then section 98 provides hat where the officer, as mentioned in section 96, who has served the summons is not present at the hearing of the case, an affidavit purporting to be made before the magistrate that such summons has been served and a duplicate of the summons purporting to be endorsed in the manner hereinbefore provided by the person to whom it was delivered or tendered or with whom it was left, shall be admissible evidence and the statements made therein shall be deemed to be correct, unless and until the contrary is proved. It is clear that the general scheme of the Act or the Ordinance is that the court should not act precipitately, but it should act on direct information or information guaranteed by the sanction of an oath. Section 98, of course, deals with the case where there has been service and he person serving is no present. The appellant argued that there was no service and therefore that section if irrelevant. The Republic urges me to take the view that there was service as the Compliance Officer had informed the court – “I have served the accused and he has refused to sign the summons.” Therefore, as the officer serving the summons was present in court, there was no need to consider section 98.  I am prepared to accept the republic’s argument on that point, largely because I think that it is a preliminary issue which does not, in any event, affect the outcome of this order. It can be said that the court should not go behind the record that the Compliance Officer said that he did serve the summons on the accused, and although that is not very clear, presumably one might take the view that the service was effected on the person on whom the warrant was issued.” (2) “Presuming that there was service and that the company had to appear on the 26^th December, 1969, then an appearance before the court by a corporation must be made by an advocate or by an office of the corporation. (S. 99(A)

of the Code). It is admitted that no appearance was first made by either the advocate or the officer, when the case was first mentioned on the 26^th December 1969 …. If ……. the learned Magistrate …. Thought that the warrant of arrest was the proper course to adopt, then he had to follow the provisions of the Code as set out in section 101(2) and (3). The first of those subsections provides:- “If the accused being a corporation does not appear in the manner provided for by section 99(A), the court may cause any  officer thereto to be brought before it in the manner provided under this Code for compelling the attendance of witnesses.” The manner provided under the Code is to be found in section 146 which recites:- “If, without sufficient excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons  reasonable time before, may issue a warrant to bring him before the court at such time and place as shall be therein specified.” Therefore, the learned Magistrate, before he caused the officer of the company or the corporation to be brought before it, should have had proof of the proper service of the summons a reasonable time before the hearing.” (3)”The parties divided in their opinion as to what was meant by “proof of proper service of the summons”. The appellant thought that it must mean some proof on oath, while the Republic considered that a sufficient compliance of the section would be simply statements by the serving officer – as long as the court had been informed what had taken place that was sufficient. I decline to take that view. In my opinion, proof of the proper service of a summons means what is generally ascribed to that phrase, both in the civil and criminal law. It means that the serving officer must either prove on oath or affirmation to the Magistrate or by affidavit that he served a summons in the proper manner appropriate to the accused, and that it was served a reasonable time before the hearing, to enable the officer of the corporation to attend. There was no such proof, and therefore it seems clear to me that the warrant should not have been issued and was ultra vires.”