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AT THE REPUBLIC OF UGANDA
IN THE SUPREME
COURT OF UGANDA
AT MENGO
(CORAM: ODOKI; CJ; TSEKOOKO, KAROKORA, MULENGA AND
KANYEIHAMBA, JJSC)
CRIMINAL APPEAL NO.27 OF
2003.
BETWEEN
CHARLES HARRY
TWAGIRA APPELLANT
AND
UGANDA RESPONDENT
[APPEAL FROM JUDGMENT OF THE COURT OF APPEAL AT KAMPALA (MUKASA - KIKONYOGO, DO; MPAGI-BAHIGEINE AND KITUMBA, JJA) DA TED 19th AUGUST, 2003 IN CRIMINAL APPEAL NO.169 OF 2002]
REASONS FOR DECISION OF THE COURT
This appeal arises from a decision of the Court of Appeal upholding a revisional order of the High Court, made by Bamwine, J., to the effect that the appellant had no right of appeal against the ruling of the trial Chief Magistrate who at the end of the prosecution case had found that the appellant had a case to answer and therefore should defend himself.
On 11th April, 2005, we heard Mr. Karugaba, counsel for the appellant,
briefly since he had filed written arguments and Mr. Byabakama-Mugenyi,
Deputy
Director of Public Prosecutions, for the respondent. We considered the contents
of the written arguments and the record of
appeal and concluded that the appeal
was incompetent. We dismissed it and promised to give our reasons on notice. We
now give those
reasons.
This case has had a chequered history. We should give
its background. The appellant, Charles Harry Twagira, was charged with the
offences
of embezzlement, in the first count, and of stealing by an agent, in
the second count, in the Buganda Road Chief Magistrate's Court
in Criminal Case
No.1425/2000. He first appeared in that Court on 12/9/2000. Subsequently, the
prosecution led evidence and closed
its case. A submission of no case to answer
was made on his behalf. The prosecution replied to the submission. On 24/6/2002,
the
learned Chief Magistrate, Mr. Frank Nigel Othembi, gave a rather detailed 13
page ruling, holding that the prosecution had established
a prima facie case
against the appellant on both counts and therefore the appellant should be put
to his defence. The appellant was
dissatisfied with that ruling. He petitioned
the High Court under the old sections 339 and 341 (1) (b) and (5) of the residue
of
the Criminal Procedure Code Act for an order to revise the ruling of
the Chief Magistrate on the ground that the Chief Magistrate had misdirected
himself when he
concluded that there was a case to answer.
On 16/9/2002, Bamwine, J., dismissed the petition holding that: "There is nothing irregular about the procedure adopted by the trial Magistrate so far or any thing
prejudicial to the petitioner on the face of the record to warrant a revisional order."
The learned judge ordered that
the trial should continue from where it had stopped. The appellant was
dissatisfied with that order
and so he appealed to the Court of Appeal. In its
judgment dated 19/8/2003, dismissing the appeal, that court held that:
"We entertain no doubt in this case, there was a prima facie case against the appellant and some explanations as a matter of common sense were required as observed by the Chief Magistrate."
The appellant
was still dissatisfied with that judgment. So he lodged a notice of appeal
intending to appeal to this Court.
By virtue of sub section (5) of
the S. 5 of the Judicature Act, the appellant can only appeal against the
judgment of the Court of
Appeal in respect of a criminal case tried by a Chief
Magistrate either with a certificate of the Court of Appeal that the matter
raises a question or questions of law of great public or general importance or
if this court in the exercise of its overall duty
to see that Justice is done,
considers that the appeal should be heard. The appellant sought certificate from
the Court of Appeal
to appeal to this Court against the decision of the Court of
Appeal. While his application for the certificate of the Court of Appeal
was
pending in that court, he appears to have been apprehensive about his success in
that court for the certificate or of the application
being heard early.
Furthermore, the appellant suspected that the Chief
Magistrate intended to resume the hearing of the case by 22/9/2003 after
Court of Appeal had dismissed his appeal.
To pre-empt the continuation of the
hearing of the case and because the application for certificate in the Court of
Appeal could not
be heard as quickly as desired by the appellant, he instituted
in this Court, Criminal Application No.2 of 2003 by which he sought
orders of
this court, inter alia, that
(a) A stay of proceedings in Buganda Road
Criminal Case
No.1423 of 2000...... .., be ordered pending the
determination of this application.
As that Criminal Application (No.2 of 2003) was pending in this Court, the appellant instituted yet another criminal application in this Court (Criminal Application No.3 of 2003), under Rules 1 (3) and 41 of the Rules of this Court and the old Section 6 (5) of the Judicature Statute 1996, seeking for:
"an interim order of stay of proceedings in Buganda Road Criminal Case No.1423 of 2000 Uganda Vs Charles Harry Twagira be ordered pending the final determination of Criminal Application No.2 of 2003"
The last application was presented to Tsekooko, JSC sitting as a single judge
ex-parte, because the matter was urgent. The justice heard it and
dismissed it on 19/9/2003 mainly on the ground that the appellant had no right
of appeal against the order of the Chief Magistrate. The appellant argued the
substantive application on 9/2/2005 before the full
court. The Court dismissed
it because it was prematurely brought to this court while a similar application
for a certificate to appeal
was pending in the Court of Appeal. Thereafter the
Court of Appeal declined to grant the certificate but held that the appellant's
appeal to the court itself against the Revisional Order by Bamwine J constituted
a first appeal and therefore any subsequent appeal
to this Court would be a
second appeal which requires no certificate. The appellant took advantage of
that opinion and lodged this
appeal. He filed seven grounds. We consider it
unnecessary to quote those grounds as we are satisfied that the appellant has no
right
of appeal. We read the written arguments of Mr. Karugaba, counsel for the
appellant but we think that they are irrelevant to our
decision. We agreed with
Mr. Byabakama - Mugenyi, the learned Deputy Director of Public Prosecutions,
that the appeal is incompetent.
We dismissed it and promised to give our
reasons, which we now give. In this judgment we shall refer to the law, as it
was when the
Court of Appeal decided the application for a
certificate.
There were two main reasons for our decision:
The first is that under S.5 (5) [old S.6.5] of the Judicature Act, no appeals
from interlocutory rulings of Chief Magistrates and
Magistrates Grade 1 are
permitted to come to this Court. There is no other law that we are aware of
which grants a right of appeal
against such rulings. Second, even if such an
appeal could be made it could only come to this court with leave as stated
earlier
in this judgment.
Mr Karugaba contended that we have held in
this court that an appellant should not be driven from the judgment seat except
in plain
and obvious cases. He submitted that the justice of the matter requires
that this appeal be heard. With respect, there is no justice
that requires that
the appeal be heard. In our view, this is an obvious case illustrating that the
appeal has no foundation in law
and it should not be heard.
The right
of appeal of an accused person appearing in a Chief Magistrate's Court is
conferred by section 204 of the Magistrates Courts
Act, 1970 and section 5(5) of
Judicature Act. The appellant is being tried by a Chief Magistrate. In so far as
relevant the applicable
provisions of section 204 (old S.216) state:
"204 (1) subject to the provisions of any other written law and save as provided in this section, an appeal shall lie,
(a) to the High Court, by any person convicted on a trial by a court presided over by a Chief Magistrate.
(b)
(2) any appeal under subsection (1) of this section may be on a matter of fact as well as on a matter of law."
Clearly
these provisions do not confer a right of appeal to the High Court in respect of
interlocutory orders, i.e., discretionary
orders or rulings of the Chief
Magistrate during a trial in criminal matters. This may explain why, after the
Chief Magistrate's
ruling, that the appellant had a case to answer, the
appellant chose to seek from High Court a revisional order rather than a
decision
on appeal.
The appellant relied on S.5(5) of the Judicature Act, for the view that in these proceedings he has a right of appeal to this Court. We do not think so. The provision states, in so far as relevant, that-
"5 (5) where the appeal emanates from a judgment of a Chief Magistrate or Magistrate Grade I in exercise of their original jurisdiction and the accused person ,has appealed to the High Court and the Court of Appeal, the accused , may lodge a third appeal to the Supreme Court with the certificate of the Court of Appeal that the matter raises a question or questions of law of great public or general importance, or if the Supreme Court in its overall duty to see that justice is done, considers that the appeal should be heard."
We agree with the opinion of our brother in his ruling that the word "judgement" referred to in the old S.6 (5) of the Judicature Act has the meaning which Article 257(1) of the Constitution gives. According to the Article,
" Judgment includes a decision, an order or decree of a
Court".
In our opinion judgment means a final decision of a
Chief Magistrate or Magistrate Grade 1, but not a discretionary order or ruling
given in an interlocutory matter such as a finding that there is a prima facie
case to answer as the Chief Magistrate did. We would
refer to Criminal Appeal
No. 397 of 1959 (Mohamed Taki Vs R.), Case No. 107 MB
No.7//60 where Lewis J held that the final decision of the Magistrate in that
case, that there was no case to answer
was one of law giving to the crown a
right of appeal. That decision is correct because the accused was acquitted by
the trial Magistrate
at the close of the prosecution case and.
therefore, the decision of the Magistrate was a final judgment. Later in this
judgment we cite other similar cases to the same effect.
The reverse is not
true. This remains the law even up to now. In our view the decision of the Chief
Magistrate, that of Bamwine,
J, and of the Court of Appeal are interlocutory
decisions and not final decisions.
Mr. Karugaba contended that the appellant had, under Art. 28 of the
Constitution, a right to a fair trial. So he should be enabled
to pursue his
right of appeal to this Court before the trial in the Chief Magistrate's Court
is concluded. He argued that it will
be unjust for the appellant to suffer a
full trial, conviction and sentence before he can challenge the propriety of the
trial. Mr
Karugaba argued further that a fair trial means more that affording
the appellant opportunity to prepare his defence and examine
witnesses. In the
learned counsel's view, a fair trial must include accussed's right to challenge
any adverse finding made in the
course of the trial such as wrongful admission
of evidence and a flawed finding of a case to answer. According to counsel, in
the
latter case, putting an accused to his defence denied him an early
opportunity for an acquittal.
With due respect to learned counsel, we think that he has stretched the
import of a fair trail to unreasonable limits. Accepting his
reasoning would
make it practically impossible for trial courts to finish any criminal trial in
reasonable time. In such a situation,
it is conceivable for an accused to launch
appeals against every interlocutory order made during the trial which he or she
perceives
(even incorrectly) to be wrong and thereby render a trial prolonged on
frivolous points by appealing on every point of objection.
This would unduly
undermine procedures, effective trials and would open gates to abuse of the
process of court and the due administration
of justice.
We are not persuaded by Mr. Karugaba's arguments. A fair trial, or a fair
hearing, under Art.28, means that a party should be afforded
opportunity to,
inter alia, hear the witnesses of the other side testify openly; that he should,
if he chooses, challenge those witnesses
by way of cross-examination; that he
should be given opportunity to give his own evidence, if he chooses, in his
defence; that he
should, if he so wishes, call witnesses to support his case. In
this case, the prosecution had called its witnesses who were cross-examined
on
behalf of the appellant. The appellant has been asked to give his side of the
story. Instead of giving his side of the story,
he is challenging the ruling
that says he should give his side of the case. Of course the appellant has the
right not to say anything
in his defence.
Article 28 requires the appellant
to be afforded a fair and speed trial. The steps taken so far appear to hinder
speeding up his trial.
We are aware of many decided cases which illustrate the practice to be followed in case an accused is dissatisfied with the trial court's ruling that there is or there is no case to answer. That is to appeal at the conclusion of the full trial and include in the grounds of appeal any complaints about wrong finding that there was or there was no case to answer. Examples are Jethwa and Another Vs Republic (1969) EA 459 CA, Republic Vs Wachira (1975) EA 262, Republic Vs Kidasa (1973) EA 368 and Merali Vs Uganda (1963) EA 647.
All these are appeals where the trial magistrates had concluded the trial at
the close of the prosecution case by delivering final
judgments. In those
decisions each appellant had a right of appeal because his case had been
concluded by the respective trial Magistrates.
This position is now reflected in
S.127 of our Magistrates Courts Act. In view of the provisions of section 204 of
the Magistrates
Court Act 1970 and S.5(5) of the Judicature Act, we are
satisfied that the appellant has no right of appeal to either the High Court,
the Court of Appeal or this Court.
In our opinion, the Court of Appeal erred in holding that the appeal before
it was a first appeal and that therefore the appellant
can appeal to this court
against that judgment.
We trust that lawyers will study this judgment and
refrain from causing unnecessary delays of criminal trials by indulging in
strings
of appeals which have no legal foundation.
Before leaving this
appeal, we wish to make observation on Mr. Karugaba's criticism of the Court of
Appeal that it hardly considered
the 35 authorities cited by counsel to the
court. This was his first ground of appeal in this Court. We do not accept the
suggestion
that a court is bound to study and pronounce itself upon each and
every authority cited by a party to court. Such a course of action
would bog
down the court. It is the fundamental duty of counsel, or a party to the
litigation, to cite a few most relevant authorities
to court, highlighting
pertinent passages for the members of the court to study. The growing deplorable
practice, among members of
the Uganda Bar, which must stop, is to throw into
court endless lists of cases most of which invariably turn out to be irrelevant
to the point calling for decision. The Chief Justice has given a practice
direction to this effect and we trust that members of the
Bar will study and
adhere to it.
For the foregoing reasons, we considered the appeal as
incompetent and dismissed it. We order that the trial should resume from where
the Chief Magistrate found that there was a case for the appellant to answer.
The appellant may exercise any of his rights enshrined
in section 128 of the
Magistrates Court Act.
Delivered at Mengo this 3rd day of August 2005.
B. J. Odoki
CHIEF JUSTICE
J.W.N. Tsekooko
JUSTICE OF THE SUPREME COURT
A. N. Karokora
JUSTICE OF THE SUPREME COURT
J. N. Mulenga
JUSTICE OF THE SUPREME COURT
G. W. Kanyeihamba
JUSTICE OF THE SUPREME COURT
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