Lupamba and Another v Reginam (Criminal Appeal No. 307 of 1955) [1950] EACA 449 (1 January 1950)

#### 449

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

## (1) ERASMUS MUZIRA LUPAMBA and (2) AKISOFERI LYAGOBA JOWITT, Appellants (Original Accused)

### REGINAM, Respondent

### Criminal Appeal No. 307 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Lewis, J.)

Procedure—Accused not within the jurisdiction—Uganda Penal Code, section 163 (5)—Uganda Criminal Procedure Code, sections 331 and 331A—Eastern African Court of Appeal Rules, 1954, rules 30 (4), 39 (2), 49, Second Schedule, Part II, Items 14 and 15.

The two appellants had been acquitted by a Magistrate and the Crown appealed to the High Court which allowed the appeal and remitted the case to the Magistrate for rehearing but did not order the arrest of the accused or grant them bail. Both accused appealed to the Court of Appeal but, before the hearing, the first appellant went to India.

Held (21-1-56).—That in the circumstances the Court would not hear the appeal of the first appellant and that, although the second appellant was within the jurisdiction it was undesirable to hear his appeal separately as the appeals had been consolidated and the same considerations appeared to apply in each case.

Appeal adjourned to following sitting of the Court at Kampala and ordered that both appellants should appear personally.

No cases.

Bhatt for Appellant No. 1.

Keeble for Appellant No. 2.

Few for respondent.

JUDGMENT (prepared by Briggs, Acting Vice-President).—The appellants were jointly tried by the Resident Magistrate, Jinja, on a number of charges, including one of being rogues and vagabonds contrary to section 163 (5) of the Uganda Penal Code. They were acquitted on all counts and the Crown appealed from the acquittal on the one count mentioned. The High Court remitted the case to the learned Magistrate for rehearing, and referred to section 331 of the Criminal Procedure Code. This was apparently a slip, as the relevant section is 331A. The appellants have appealed to this Court against the order for rehearing and the appeal was listed for hearing on 19th January, 1956. Both appellants were represented by counsel and neither appeared in person. Under Rule 39 (2) there was at that stage no reason why either of them should appear in person, but on making inquiries of counsel we ascertained that the first appellant is in India. We considered that in these circumstances we ought not to hear his appeal, and that as regards the second appellant, although he is within the jurisdiction, it would be undesirable to hear his appeal separately, since the appeals are now proceeding as a single appeal under rule 30(4) and the same considerations appeared to apply to both appellants' cases. We therefore adjourned the hearing of this appeal to the next sittings of this Court at Kampala and ordered under rule 39 (2) that both appellants should personally attend the hearing at that time. We wish to add a few remarks in explanation of that order.

In our opinion, when the Crown appeals successfully from an acquittal or dismissal under section 331A and an order is made for rehearing, the High Court should always take at once the necessary steps to ensure that the appellant will duly appear at the rehearing. If he is present when judgment is delivered it should either commit him to prison or admit him there and then, to bail. If he is not present, it should direct that a warrant of arrest do issue, requiring either his production in the High Court, in which case the High Court can admit him to bail, or directing his production before the Magistrate and authorizing him to grant bail. If this is not done, the order for rehearing may become useless, for example, if he leaves the jurisdiction. No such steps were taken in this case and the first appellant did leave the jurisdiction. He now comes to this Court for relief, but he should not have it unless he submits physically and in fact, as well as in form, to the jurisdiction. If he appears on the adjourned hearing and his appeal is dismissed, this Court will take measures to ensure that the order for rehearing of the High Court will be carried into effect.

One other point was mentioned at the outset of the hearing. On a second appeal the appellant has ordinarily to pay the cost of preparing the record. See rule 49 and Part II of the Second Schedule to the Rules of this Court. It has apparently been the practice in Uganda to charge for each copy under Item 14 of Part I of the Second Schedule, the practice having arisen from a mistaken view that Item 15 refers to uncertified copies, while all copies for the Court must be certified. We wish to correct this practice. In our view Item 15 refers to certified copies. It is not the practice of this Court to supply uncertified copies of documents, unless unofficially and by special arrangement.