Mutoto v Uganda (Criminal Revision 2 of 2023) [2023] UGHCCRD 41 (3 August 2023)

The Republic of Uganda

In The High Court of Uganda at Soroti

Criminal Revision Case No. 0002 of 2023

(Arising from Criminal Case No. 22 CR-CO-425/2019 of The Chief *Magistrate's Court of Soroti Holden at Serere)*

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Mutoto Patrick ::::::::::::::::::::::::::::::::::::

## Versus

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Uganda ::::::::::::::::::::::::::::::::::: 15

## Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

## 1. Background: 20

This is an application brought by way of Notice of Motion brought under sections 48 and 50 of the Criminal Procedure Code Act and section 33 of the Judicature Act for orders that:

- a. This Honourable court calls for and examines the record of proceedings vide criminal case no. 22 CR-CO-452/2019 at the chief magistrate's court of Soroti Holden at Serere. - b. The court alters or revises the conviction and sentence issued by Her Worship Nyipir Fortunate of the Chief Magistrate's Court of Soroti Holden at Serere, the applicant having been convicted and sentenced twice of the same offence and facts. - c. Costs be provided for this application.

- The grounds of this application as set out in the application and detailed in $5$ the affidavit sworn by the applicant but briefly are that the applicant was charged with the offence of the criminal trespass $c/s$ 302 (a) of the Penal Code Act Cap. 120 and on the 14<sup>th</sup> day of February 2023 he was convicted and sentenced to 10 months imprisonment by the Chief Magistrate of - That the applicant at the time of his conviction and sentence was earlier on the 08.09.2022 and 04.10.2022 convicted and sentenced by the same court to six months imprisonment vide criminal case SOR-22-CR-CO-0013 2020 premised on the same offence and facts.

Soroti Holden at Serere vide Criminal Case No. 22 CR-CO-425/2019.

That the applicant has been put to suffer double jeopardy as he been 15 convicted and sentenced twice over the offence of criminal offence of criminal trespass on the same land and same complainant Apiny Anna Christine.

That there is an error apparent on the face of the record on the conviction and sentence that needs to be altered as the law does not allow double 20 jeopardy.

The respondent made no reply despite being served by the applicant as evidenced by the affidavit of service on record. This matter thus proceeded ex parte.

2. Representation: 25

The applicant was represented by M/s Ewatu & Co. Advocates and the written submissions field were duly considered.

3. Determination:

From the certified record of proceedings and judgement marked "A" and "B" under case number SOR-22-CR-CO-425/2019 the applicant on the 30

26/11/2019 pleaded not guilty to the charge of criminal trespass and the $\mathsf{S}$ matter proceeded to trial.

The prosecution relied on four witnesses namely Apiny Anna Christine, Opolot James Francis, Atek Martin Jackson and No. 54573 Detective Constable Ogwalinga Robert.

The Defence relied on two witnesses; Mutoto Patrick the applicant and 10 Opolot Max.

On the 14/02/2023 the accused was convicted of criminal trespass as charged, he was sentenced to 10 months' imprisonment.

The certified record of proceedings marked "C" and "D" for case number SOR-22-CR-C0-0013-2020 state on 09/01/2020, the applicant was charged

with the offence of the criminal trespass c/s 302 (a) of the Penal Code Act Cap. 120 and pleaded not guilty to the offence and the matter proceeded to trial.

The prosecution led three witnesses Opolot James Francis, Atek Martin

Johnson and No. 54573 Detective Constable Ogwalinga Robert and the 20 Defence led five witnesses the applicant Mutoto Patrick, Adaku Charles, Opolot Max, Ojanga William and Etola Joseph, however the evidence of Adaku Charles was expunged from the record.

On the 08/09/2022 the applicant was convicted of criminal trespass and on 04/10/2022 he was sentenced to 6 months in prison.

Both SOR-22-CR-CO-425/2019 and SOR-22-CR-CO-0013-2020 were heard and determined by H/W Nyipir Fortunate. Both these cases were on criminal trespass contrary to section 302(a) of the Penal Code Act. Both cases rely on the same particulars that the applicant Mutoto Patrick on the

6/12/2019 at Abuket village in the Serere District entered into or upon the 30

land in the possession of Apiny Anna Christine with intent to annoy the said $\mathsf{S}$ Apiny Anna Christine.

From the record, it is clear to me that the applicant was tried twice on the same charge, convicted twice and sentenced twice.

The first sentence on the 04/10/2022 was for 6 months and the second sentence on 14/02/2023 was for 10 months. He was sentenced to 10 10 months in prison while he was still serving the 6 months term on the same conviction.

Section 48 of the Criminal Procedure Code empowers High Court to call and examine the record of any Criminal proceedings before any

Magistrate's court for the purpose of satisfying itself as to the correctness, 15 legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the magistrate.

The key constituents of section 48 are: correctness, legality, propriety and regularity.

The applicant in this instance states that he has been subjected to double 20 jeopardy since he was convicted and sentenced twice over the same offence of criminal trespass on the same land by the same complainant.

4. The Law on Double Jeopardy:

The constitution of the Republic of Uganda 1995 as amended under Article $28(9)$ provides that;

A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.


A plea of double jeopardy in essence entails; $\mathsf{S}$

(i) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted;

(ii) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted;

(iii) that the same rule applies if the crime in respect of which he is being $10$ charged is in effect the same or is substantially the same as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted;

(iv) that one test whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which 15 constitute the second offence, would have been sufficient to procure a legal conviction on the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty.

See: Connelly v. DPP [1964] AC 1254 at 1305 and DPP v. Nasralla [1967] 2 20 AC 238 at 249, as cited Uganda v Adriko & Anor [2018] UGHCCRD 100)

It is generally accepted principle of law that there are three essential criteria to be satisfied:

- a. The accused had formerly been in jeopardy (or peril) of a lawful conviction before a court of competent criminal jurisdiction; - b. The former criminal trial must have concluded with a final determination of the facts at issue, i.e. that there has been a final verdict, either of acquittal or conviction, following a trial on the merits: - 30

c. The criminal offence for which the accused has been charged on the second occasion is the same or substantially the same offence as


that for which he had formerly been acquitted or convicted. (see Uganda v Adriko & Anor [2018] UGHCCRD 100)

The maxim double jeopardy basically means no man is to be brought in jeopardy of life or limb more than once for the same offence.

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In the US, its Supreme Court, whose decisions are persuasive, has equally dealt with the law on double jeopardy in the case **Benton v. Maryland** 10 where it held that the Double Jeopardy Clause of the Fifth Amendment of the US Constitution applies to the states and in doing so, expressly overruled the decision in *Palko v. Connecticut* which was from the State of Connecticut.

- The Double Jeopardy Clause of the Constitution provides that no person 15 shall be tried twice for the same offense. The Supreme Court has held that tribal courts are distinct sovereigns from federal courts and that an individual could be tried for the same offense in both courts without violating the Constitution. - In this instance the state opened two cases of criminal trespass arising 20 from the same facts with the same complainant against the complainant, SOR-22-CR-CO-425/2019 commenced on 26/11/2019 and judgement was delivered 14/02/2023 with a sentence of 10 months imprisonment.

SOR-22-CR-CO-0013-2020 commenced on 09/01/2020 and judgement was delivered on 04/10/2022 with a sentence of six months' 25 imprisonment.

From the clear picture presented by the two charges based on the same facts and dates, the applicant shows that he has clearly suffered double jeopardy having been lawfully convicted of criminal trespass c/s 302(a) of the Penal Code Act and sentenced to 6 months imprisonment under SOR-22-CR-CO-0013-2020 on 4<sup>th</sup> October, 2022.


- SOR-22-CR-CO-425/2019, which commenced earlier than SOR-22-CR-CO- $\mathsf{S}$ 0013-2020 was determined and the applicant sentenced to imprisonment of Ten (10) months on 14<sup>th</sup> February, 2023 which determination occurred after the applicant had been convicted and sentenced in SOR-22-CR-CO-0013-2020 on 4th October, 2022. - Given the fact that the latter conviction based on the same facts occurred 10 after that one based equally on the same facts had already then, it is my firm finding and resolution that such a conviction and sentence does amount to double jeopardy and is thus an illegality. - The basis of this conclusion is that the said later conviction and its resultant sentencing in SOR-22-CR-CO-425/2019 was illegal since it was 15 wont of any procedural and or any legal basis given the fact that the established principles of the law double jeopardy under Article 28(9) of the Constitution was blatantly debauched as it is clear that such a conviction and sentence does not have any place in any of the known law books. 20

This court would thus find that the sentence and conviction in SOR-22-CR-CO-425/2019 which came later than that in SOR-22-CR-CO-0013-2020 are accordingly quashed and set aside.

The conviction and sentence of 6 months in SOR-22-CR-CO-0013-2020 is maintained.

However, I note that the sentence of 6 months in SOR-22-CR-CO-0013-2020 was passed on 4<sup>th</sup> October, 2022 and today is the 3<sup>rd</sup> of August 2023, I believe that the said period of six (6) months must have already lapsed by the applicant having serving his prison term which should have ended on 4<sup>th</sup> April, 2023.


Accordingly, he is, if in custody ordered set free unless he is being held on $\mathsf{S}$ any other lawful charges and or sentence. I give no order as to costs. I do so order.

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Hon. Justice Dr Henry Peter Adonyo

Judge

3<sup>rd</sup> August, 2023

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