Kizito v Reginam (Criminal Appeal 69 of 1955) [1955] EACA 341 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Lewis, J. (Uganda)

ALAJABU KIZITO, Appellant (Original Accused No. 2)

$\mathbf{v}$ REGINAM, Respondent

Criminal Appeal 69 of 1955

(Appeal from the decision of H. M. High Court of Ugandan, Griffin, C. J.)

Evidence—First Report—Corroboration—Evidence Ordinance, section 155— Remitting case to first appellate court to consider point not taken in said. court.

The appellant was charged and convicted before a magistrate with the offence of robbery with violence.

Evidence that the appellant was one of the persons taking an active part in the robbery was given by the complainant and his schoolboy grandson. A police officer gave evidence that when the complainant gave him the names of his assailants he did not mention the appellant. The discrepancy was not considered by the appellate Judge on first appeal. The complainant said that he had made a report to his local chief the day following the robbery The chief was not called as a witness.

By section 155 of the Evidence Ordinance: "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

In R. $\nu$ . Godinho, the Court of Appeal remitted a case on second appeal to the High Court for reconsideration of sentence, which the Court of Appeal could not vary, it being the second appeal.

Held $(5-5-55)$ .—It is of paramount importance to call evidence as to the nature of the first report made in cases of serious crime, when that evidence is available. Such evidence corroborates a witness's later testimony as to the same facts.

Case remitted to High Court for the point to be considered.

Case referred to: R. v. Godinho, 17 E. A. C. A. 132.

Thacker for appellant.

Dickie for respondent.

[Editorial Note.—Section 155 of the Evidence Ordinance reproduces section 157 of the Indian Evidence Act.1

JUDGMENT (prepared by Nihill (President)).-In this appeal this Court has made an order remitting the case to the appellate court below in order that the learned Chief Justice of Uganda who heard the appeal in the High Court may have an opportunity of considering a point which was not taken before him and was accordingly overlooked in his long and careful judgment. The point arises from a non-direction on the defence evidence by the convicting magistrate.

This appellant was charged before a resident magistrate at Kampala together with three other accused with the offence of robbery with violence. All the accused were convicted and this appellant was sentenced to 14 years' imprisonment with hard labour and 24 lashes. All the accused appealed to the High Court. The appeals of the third and fourth accused were allowed by the learned Chief Justice and their convictions were quashed. This appellant then appealed to this Court, but his counsel filed a memorandum of appeal, which being a second appeal was incompetent. We, however, allowed Mr. Thacker who appeared for the appellant before us to put in a supplementary memorandum of appeal containing what we regarded as a possible point of law, and which, on our perusal of the magistrate's judgment and the record of the evidence, had given us anxiety.

The point is this. Evidence that this appellant was one of the robbers and took an active part in the robbery was given by the complainant Sensule (P. W.1) and by his grandson who is described as a schoolboy. His age was not recorded by the magistrate, but he gave evidence on oath. The complainant stated that he reported the matter on the day following to his local chief. The learned Chief Justice in his judgment has commented on the failure of the prosecution to call this chief and we fully endorse all that he has said. This Court has often noted, particularly in cases arising in this territory, the singular failure of the authority responsible for initiating the prosecution to realize the paramount importance of calling evidence as to the nature of the first report made in cases of serious crime when that evidence is available. In the instant case the complainant testified that he knew the appellant and recognized him at the time of the robbery as one of the men who was taking a leading part. Accordingly, had evidence been called that at the first opportunity the complainant had given the name of this appellant to the authorities such evidence would have been admissible under section 155 of the Uganda Evidence Ordinance and would have tended to corroborate the complainant's testimony.

As it is, the evidence is the other way. An African sub-inspector of police was called by the prosecution and he gave evidence that he visited the complainant's house four days after the robbery. This witness was also called as a defence witness by this appellant when he was asked if the complainant had mentioned the names of his assailants to him. He replied that the complainant had done so and that he had given him three names. The witness then gave the names, but these names do not include the name of this appellant. The prosecution did not cross-examine this witness. Accordingly when it came to judgment the magistrate had before him no evidence that the complainant had mentioned the name of this appellant to his chief, and evidence that he had not given his name to the police when the sub-inspecor visited his house. The magistrate, however, in his judgment, makes no reference to this fact, and his failure to do so most certainly constitutes a serious non-direction, which undoubtedly should have been brought to the attention of the appellate court below. Unfortunately this was not done and the learned Chief Justice, although he made a most careful appraisal of the evidence, especially in regard to the third and fourth appellants, overlooked this serious omission by the convicting magistrate.

Mr. Thacker has argued that taking into account the fact that the appellate court below was not prepared to support the convictions of the third and fourth appellants because it thought the evidence against them was too flimsy, it might well have come to a different view in respect of the appeal of this appellant had it noted the fact that the complainant had not included this appellant's name in the list of names given to the police inspector. We think there is some force in this submission, particularly in view of the concluding paragraph of the learned Chief Justice's judgment, in which he commented adversely on the failure of the prosecution to adduce evidence in respect of the complainant's' first report to his chief.

This being a second appeal, we find ourselves in some difficulty because our jurisdiction is limited to consideration of points of law and whether this particular

non-direction by the magistrate can be said to amount to an error in law is not easy to determine, for in order to determine it, it would be necessary for us to review all the other evidence led, which would involve consideration of questions. of fact or mixed law and fact, which on this appeal it is outside our province to do. Accordingly we have taken the somewhat unusual course of remitting this case to the appellate court below, so that the point now taken by Mr. Thacker in his supplementary memorandum of appeal can be considered by that court. It will be for the court below to decide whether the convicting magistrate, had he not failed to direct himself properly, would have so unreservedly accepted the evidence of the complainant as truthful. It may well be, of course, that the court below will consider that the other evidence identifying the appellant as one of the robbers, and there was other evidence, was sufficient to justify the conviction, so that no possibility of a miscarriage of justice exists. This, however, is a matter for the court below.

We recognize that the course we have taken is an unusual one, but it is not altogether without precedent. In the case of R. v. Godinho, 17 E. A. C. A., page-132, this Court remitted a case on second appeal to the High Court of Uganda togive it an opportunity to reconsider the sentence passed by the magistrate on one count because this Court had set aside convictions on three other counts. In effect this Court, as in this case, gave the appellate court below an opportunity to do something which this Court could not itself do on a second appeal.

In conclusion we must stress that this is a most serious case, and that the appellant has been sentenced both to a long term of imprisonment and a heavy flogging. It is accordingly right, in our view, that we should take the action we have done. In Uganda the Criminal Procedure Code by section 5 has conferred on subordinate courts the power to try offences of the most serious character, excluding only murder, manslaughter and rape. Furthermore by sub-section 2 of the same section a subordinate court of either the first or second class may pass any sentence authorized by law. It is true that in section 7 a magistrate may sit with assessors if the offence complained of is of an aggravated, serious or unusual character but we have reason to believe that this discretionary safeguard is rarely, if ever, exercised. The instant case is the second case of its kind which has come before this Court during the present sittings in which we have felt anxiety as to the character of the trial before the convicting magistrate. In most countries where British law is administered an offence so serious as robbery with violence, where the nature of the robbery was grave enough to call for a long term of imprisonment, would ordinarily be triable by a superior court after committal. It is not for this Court to press for alterations in the law but we cannot help observing that we consider that the time may be opportune for consideration whether the exceptional powers conferred upon magistrates to try and punish serious offenders should not receive some limitation. We mention this matter because what may have been appropriate to this territory as a certain stagein its development may not necessarily be appropriate to-day.

As ordered, this case is remitted to the same Judge of the High Court of Uganda who determined this appellant's first appeal, with a direction that he should reconsider his judgment in that appeal in the light of the judgment of this Court. Meanwhile, the appellant will continue to serve his sentence of imprisonment. We have informed Mr. Thacker that he should file a supplementary memorandum of appeal in the High Court, containing the point taken before us.

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