Lubello & 2 Others v Uganda (Criminal Appeal 234 of 2021) [2022] UGCA 310 (12 October 2022)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0234 OF 2O2L

(Coram: Catherine Bamugemereire, JA, Christopher Madrama, JA, and Eva K. Luswata, JA)

#### BETWEEN

### 1. LUBELLO STEPHEN

- 2.]|trOzDY HAMIS - 3. CAROLINE AKURUT:::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### AND

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

(Appeal from the Ruling of the High Court in Revision proceedings in Criminal Case No. 78 of 2Ol9 by Gidudu Lawrence, J delivered on 19th October,2O19)

### JUDGMENT

# Introduction

1l The facts are that four accused persons were in Criminal Case No. 78 of 2019,jointly charged with possession of un-customed goods including an assortment of wines and a used television set contrary to section 200(d)(iii) of the East African Community Customs Management Act,2OO4 (hereinafter EACCAM Act). At the commencement of the criminal case, one Gerald Okware pleaded guilty. He was convicted and sentenced to a fine. The other three, who are the appellants here, entered pleas of not-guilty. Their counsel made a prayer for their acquittal for the reason that Gerald Okware had owned up to the offence. The prosecution raised no objection since they had not preferred any charges of aiding and abetting in the case before court.

- 2l The trial court granted the application and acquitted the appellants. Subsequently, the trial Magistrate formed the opinion that the acquittal was made in error and forwarded the matter through the Chief Magistrate, to the High Court for revision' On l9/lO/2O2O, the High Court revised the Magistrate's order by setting aside the acquittal of the three appellants. The Judge in addition remitted the file back to the Chief Magistrate with an order that the trial proceeds and therein, the prosecution would have the liberty either to amend or withdraw the charge. The appellants being aggrieved with the decision of the High Court lodged an appeal to this court. - 3] This appeal is premised on two grounds set out in the Memorandum of Appeal as follows; - The learned Judge erred in law in exercising Jurlsdiction not vested in him by the law to set aside an acquittal of the appellants handed down by the trial Maglstrate Grade 1. I - ii. The learned Judge erred in law in setting aside the acquittal of the appellants without affording them an opportunity to be heard.

## Representation

4] At hearing of the appeal, the appellants were represented by counsel Munguriek James on private brief while the respondent was represented by counsel Lomuria Davies and Donald Bakashaba, both officers of the Uganda Revenue Authority (URA).

### Ground one

## Submissions for the appellant

- 5] Counsel for the appellants submitted that the powers of the High Court in revision of the decisions and proceedings of lower courts are provided under Section 50 of the Criminal Procedure Code Act (CPC Act). That a clear reading of the provision elucidates that the High Court can interfere with any other order other than an order of acquittal. Counsel emphasized that the High Court has no revisionary jurisdiction where the lower court acquitted the accused and therefore the High Court acted without Jurisdiction. Counsel referred to the cases of Desai vs Warsama (1967) E. A 351, Joseph Mduvi Mbuvi vs R [2019] eKLR Criminal Rewision No.4l2OL9 and D. P vs Jackson Cherono (20191 eKLR. - 6l In conclusion, counsel submitted that the decision and ruling of the High Court in setting aside the acquittal Order was outside the jurisdiction of the court and therefore a nullity.

## Submissions for the respondent

- 7] Respondent's counsel disagreed. In their view, the learned Judge was vested with powers and jurisdiction to handle and determine the revision following an acquittal by the Trial Magistrate in line with Sections 4a, 49 and 50 CPC Act. Further and in addition, the respondent's counsel referred to Section 17(1) of the Judicature Act which gives the High Court powers of supervision over magistrate's courts. Specifically, that the learned Judge rightly exercised his powers and jurisdiction to revise the proceedings in order to satisfy himself as to the correctness, legality or propriety of any findings. Counsel submitted that the learned Judge correctly set aside the trial Magistrates' order because there was no trial as per the criminal procedure law. Citing the leading decision of Makula International Ltd Vs His Eminence Cardinal Nsubuga & Another 1982 HCB 11, they argued that the glaring illegality could not be ignored by the Leamed Judge. - 8l In conclusion counsel submitted that the proceedings before the Magistrate were irregular there having been no trial, the High Court Judge could not leave such a material error on the record of court while exercising its revision powers. They prayed that the appeal ought to fail.

## Our decision

9] The issue for this court's determination is whether the learned Judge erred in law in exercising jurisdiction not vested in him by law to set aside an acquittal of the appellants. We have carefully studied the court record, considered the submissions for either side, and the law

and authorities cited therein. We are mindful that this is a first appeal to this court which is governed by the provisions of Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions S.113-10 (hereinafter COA Rules). We are accordingly required to carefully and critically review the records from the courts below to reappraise the evidence and make inferences of fact but without disregarding the decision of the High Court. See Kifamunte Henry vs. Uganda, **Supreme Court Criminal Appeal No. 10 of 1997.** This appeal is however majorly on a question of law regarding the legality of the revisionary order of the High Court on the ground of want of jurisdiction. Secondly, and in the alternative, if the High Court had jurisdiction in the matter whether the appellants' right to hearing was infringed thereby rending the decision unlawful.

10|On the question of jurisdiction of the High Court to make the revisionary order, the powers of revision of judgments made in criminal trials is conferred on the High Court by Criminal Procedure Code Act. It is provided in Section 48 that:

The High Court may call for and examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the *regularity of any proceedings of the magistrate's court.*

The scope of the powers of the High Court in revision is further $[11]$ elaborated in Section 50 CPC Act which provides in part that:

(1) In the case of any proceedings in a magistrate's court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or inuoluing a miscarriage of justice has ocanrred, the High Court may (a) in the case of a conuiction, exercise ang of the powers conferred on it as a court of appeal bg sections 34 and 41 and mag enhance the sentence;

(b) in the case of anA other order, other than an order of acauittal, alter or reuerse the order.

(2) No order under this section shall be made unless the Director of Public Proseantions has had an opportunity of being heard, and no order shall be made to the prejudice of an accused person unless he or she has had an opportunitg of being heard either personallg or bg an aduocate in his or her otan defence.

(4) Nothinq in this section shall be deemed to authorize the Hiqh Court to conuert a findina of acauittal into one of conuiction: except that uthen a.nA person is acquitted of the offence uith which he or she was charged but is conuicted of another offence, whether charged uith that other offence or not, the High Court mag, if it reuerses the finding of conuiction, itself conuert the finding of acquittal into one of conuiction. Emphasis of this Court

The jurisdiction conferred under these sections is supervisory in nature, which gives a very wide scope to the High Court to test the correctness, legality or propriety of any finding, sentence or order. Such Court may also interfere to examine the regularity of any proceedings.

l2l Counsel for the appellants submitted that the High Court has no revisionary jurisdiction where the trial court has handed down an acquittal order, and that the High Court by setting aside the acquittal, was acting without jurisdiction. Conversely, counsel for the respondent submitted that the actions of the High Court did

not amount to an illegality and that the learned Judge was ceased with revisionary powers and jurisdiction in this case.

We agree with the decision in **Desai vs Warsama (supra)** that no $[13]$ court can confer jurisdiction upon itself. The issue of jurisdiction was extensively dealt with by the Kenya Court of Appeal in the case of Owners of Motor Vessel Lillian "S" vs Caltex Oil (Kenya) **Limited [1989] KLR 1** in which Nyarangi JA, citing **Words and** Phrases Legally Defined vol. 3 I-N page 13 held;

"By jurisdiction, is meant the authority which a court has to decide" *matters that are before it or take cognizance of matters presented* in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be *unlimited. A limitation may be either as to the kind and nature of the actions and matters which the particular court has cognizance,* or as to the area over which the jurisdiction shall extend, or it may *partake both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence* of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it had *jurisdiction; but, except where the court or tribunal has been given* power to determine conclusively whether the facts exist. Where the *court takes it upon itself to exercise a jurisdiction which it does not* possess, its decision amounts to nothing. Jurisdiction must be *acquired before judgment is given"*

It is our considered opinion that Section $50(1)$ is very instructive $[14]$ as to the Jurisdiction of the High Court in regard to an order of acquittal. The section allows revision of other orders by the High

court and clearly precludes an order of acquittal from revision proceedings. Ordinarily, where an accused is acquitted, the State has a statutory right of appeal against the order of acquittal and this is meant to protect the accused's interest in finality. Therefore, instituting and allowing revision proceedings where one is acquitted, would amount to an illegality.

151 However, in the current case, the appellants were wrongly acquitted without following the correct procedure grounded in law. The procedure to follow after an accused pleads not guilty to a charge is provided for in Section 1,2a(31 of the Magistrates Courts Act that which provides that:

"if the accused person does not admit the truth of the charge, the court shall record a plea of not guilty and shall proceed to hear the case as hereafier in this Act prouided".

161 On page 8 of the record of appeal, the Learned Judge in his ruling stated that the trial Magistrate should have rejected the prayers of the defence to acquit Al , A2 and A3. That instead he should have fixed a date for the State to either call evidence to prove their case, or amend or withdraw the charge. We agree with that decision. It is clear that the trial magistrate did not follow the right procedure after a plea of not guilty had been established. The effect of the Magistrate's decision is that the offence against the appellants was never prosecuted. The trial did not fail on a "plea of no case to ansu.ter" nor was it heard to full trial. In the latter case, an acquittal would be handed down after the defence had to the Court's satisfaction raised reasonable doubt to the prosecution case. Thus, the trial Magistrate erroneously acquitted the appellants without recourse to the rules of procedure expected before an acquittal is handed down.

- L7l We therefore hnd that the learned Judge's decision to remit the file back to the Chief Magistrate and allow the state to amend or withdraw charges was not in any way an illegality as alleged by the appellants. In our opinion, Section 50(1)(b) and (a) CPC, only applies to acquittals procured after a proper trial and not mere pronouncements made after submissions by counsel. In fact, in this case, the learned Judge did not reverse or alter the judgment of the trial court. His decision was meant to cure the serious procedural errors at the trial which resulted into the decision to acquit the three appellants. - 181 The purpose of a criminal trial is to serve justice to both parties and where a conviction is returned, vindicate the victim. Therefore, the learned Judge's decision was meant to ensure that justice was served after a trial or withdraw of the charge by the State. Since there was no trial, there was no possibility for the State to appeal. In this case, the Judge sitting in revision had no evidence to re-evaluate. He could only investigate whether there was an error on the merits of the trial in the lower court. Failure to follow the correct procedure was an error on the face of the record and as such, the Judge made the correct decision to remit the record back to the trial court with suggestions of three options that he fully explained i.e. (1) both parties to be heard on the

charge, (2) an amendment of the charge or (3) its withdraw by the State.

191 We accordingly find no error in the decision made in revision and the first ground of appeal fails.

## Ground two

## Submissions for the appellant

- 2Ol Counsel for the appellants submitted that the procedure adopted by the High Court in hearing and determining the revision offended Section 50 (2) CPC which directs that the accused must be heard by court before an order for revision is made. Counsel then drew our attention to the ruling of the learned Judge in which he noted that although directions were made by the Court for both counsel to be informed about the revision proceedings, only defence counsel responded. He vehemently denied his clients being part of those proceedings by themselves or their counsel, and then contended that attempts to obtain a record of proceedings to ascertain which defence counsel appeared on record of the revision proceedings, were in vain. - 2ll Again counsel drew our attention to Mr. Lubello Stephen's affidavit made in in support of this appeal as A1 in the criminal case. That Lubello deposed that none of the appellants instructed any lawyer to represent them in the revision proceedings and their counsel on record in the trial court, was never notified and did not enter an appearance in the revision proceedings. Counsel argued then that the appellants were never given an opportunity to be

heard before the orders setting aside their liberty was issued by Court. This in his view was in contravention of Article 28( 1) of the Constitution whose provisions for a fair hearing are mandatory. Counsel summarized by inviting us to quash and set aside the order of the Learned Judge.

## Submissions for the res ondent

- 221 In response, respondent's counsel submitted that they responded to a letter from the High court by filing written submissions on 6/|O/2O2O. That it was therefore an error for the Judge to state that they filed no response to the revision proceedings. They contended that the appellants were in the same manner and for the same purpose alerted by the Court, which meant that the Iearned trial Judge was alive to the provisions of Section 50(2) and 51 CPC Act with regard to the right to a fair hearing. Accordingly, that the Court afforded both parties in the revision proceedings an opportunity to be heard, through their written submissions. - 231 In conclusion, respondent's counsel prayed that ground two is misconceived and ought to fail.

## Our decision

241 Having found that the High Court had jurisdiction to issue the revisionary order, the second issue is whether the learned Judge erred in setting aside the acquittal of the appellants without affording them an opportunity to be heard. We have carefully studied the court record, considered the submissions for either side, and the law and authorities cited therein.

- 251 The provisions of Section 50(2) CPC Act are clear. Both the State and an accused person who stands to be prejudiced by an order under that section, must be afforded a hearing before it is made. That right is well cemented in Article 28(1) of the Constitution which provides for a right to a fair, speedy and public hearing. Ordinarily, a decision made without hearing both sides should not stand. Counsel for the appellants submitted that the appellants were never given an opportunity to be heard before orders setting aside their liberty were issued and conversely, respondent's counsel submitted that the learned Judge gave an opportunity to both parties to be heard, which opportunity the appellants took by filing submissions. - 261 We agree with appellant's counsel and indeed it is a cardinal constitutional rule that any person faced with criminal charges shall be entitled to a fair hearing before any competent court. That rule was reproduced in the CPC Act in that, under Section 50 (2), no order for a revision of a Magistrate's order can be made without affording the affected party a hearing, by themselves or legal counsel. Respondent's counsel raised no contest to that cardinal rule. - 271 This Court has previously given some guidance on how courts should handle proceedings with missing records whether in part or in full. It was held in Ephraim Mwesigwa Kamugwa vs The Management Committee of Nyamirima Primary School Civil Appeal No. 1O1/2O11 and East African Steel Corporation Ltd Vs Statewide Insurance Co. Ltd 1998-2OO HCB that for missing

or incomplete records, the appellate court has power to either order a retrial or reconstruction of the record by the trial court. It was also the decision of this court in Nsimbe Godfrey vs Uganda Crim Appeal No. 361/2O14, that the same would apply where reconstruction of the missing part of the record is impossible and the available material is insufhcient to take the proceedings to the logical end. On the other hand, this Court had a more liberal view in Jacob Mutabazi vs The Seventh Day Adventist Church Civil Appeal No. 88/2O11 where it was held that:

oWhere the reconstruction of the missing part of the record is impossible for tahateuer reason but the court forms the opinion that all the auailable material on record is suJficient to take the proceedings to its logical end, the court may proceed uiththe partial record as long as none of the parties to the appeal is prejudiced.

281 At page 7 of his ruling, the learned Judge took cognizance of the parties'right to be heard on the revision as provided under Section 5O(2) CPC. He specifically stated as follows:

I directed both counsel to be informed for their response if ang as required bg subsection 2 of section 5O of the CPC Act, Cap 116 uthich prouides as follows:........ On|y defence counsel responded uthilst the URA prosecuting counsel did not respond..... The defence conceded that it uas an elror to acquit an accused who has pleaded not guilty without a tial"

291 Having perused the (hard copy) record provided, we saw no submissions hled for either party in the High Court. Indeed, in his affidavit in support of Criminal Misc. Application No. 57 12022, Lubello Stephen claims that he did not file any submissions and equally did not instruct lawyers to represent him in those proceedings. However, the Judge was clear in his ruling that a set of submissions were fited for the appellants in which their counsel conceded that it was an error to enter an acquittal without a trial. We are more inclined to believe the Judge than Lubello since the latter's lawyers did not themselves file an afhdavit to deny their involvement in those proceedings.

- 3Ol We believe the respondents on their counsel's submissions that their written submissions were filed but for some reasons omitted by the Judge in his decision. That being the case, the absence of submissions by both counsel cannot be interpreted to mean that the appellants were neither represented, nor given a hearing by the Court. We choose to interpret the facts to mean that the submissions are only missing and the record cannot be fully re constructed. Even then, we form the opinion that the available material is sufficient for us to make a decision in this matter. The following are our reasons - 311 The proceedings in the High Court were instituted by the Chief Magistrate who requested the Judge to peruse and then correct an error in the proceedings of the appellants' trial. It was <sup>a</sup> question of law whether the trial Magistrate could pronounce arl acquittal without a trial. In his decision, the learned Judge fully investigated the law and the facts on which they applied. He made a correct decision, the details of which have already been canvassed. With or without a submission by the appellants, nothing would preclude the Judge to make a decision on that

question of law. We see no prejudice against them especially when their counsel conceded that an error was made, and when the facts pointed to a clear error on the record. We would thus follow the ratio in Jacob Mutabazi vs The Seventh Day Adventist Church (supra) to hold that the partial record was sufficient for us to find that Ruling of the High Court is correct and shall stand.

321 We therefore find that this ground also has no merit.

In conclusion, we have found no merit in this appeal and it fails.

DATED at Kampala thrs .... I 0</ <sup>2022</sup> HON. CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL HON. CHRISTOPHER MADRAMA JUS CE OF APPEAL N. EVA USWATA JU OF APPEAL