Ndyoka v Reginam (Criminal Appeal No. 80 of 1956) [1950] EACA 505 (1 January 1950)

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

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

### ZEBIYO NDYOKA, Appellant (Original Accused)

#### $\mathbb{R}^{n}$ $\mathbf{v}$

## REGINAM, Respondent

### Criminal Appeal No. 80 of 1956

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

Attempted murder—Plea incorrectly accepted as plea of guilty to lesser offence--Uganda Penal Code, section 209 (1).

The appellant was convicted of the attempted murder of his wife. In answer to the charge he stated: "I struck her with the *panga* several times as I believed she had been sleeping with another man. I only intended punishing her". This was entered as a plea of guilty under section 209 of the Penal Code. The Court assumed this was intended as a conviction under paragraph (1) of section 209.

Held (12-4-56).—The statement did not amount to anything more than an admission that the appellant was guilty of unlawful wounding and was not an admission that he had in fact caused grievous bodily harm whether with or without intent.

Appeal allowed. Proceedings remitted to High Court for accused to plead.

Cases referred to: Hando s/o Akunaay v. R., 18 E. A. C. A. 307; R. v. Ingleson, (1915) 1 K. B. 512 C. C. A.; Brennan's Case, (1941) 28 C. A. R. 41.

Appellant in person.

Dickie for respondent.

JUDGMENT (prepared by Worley, President).—The appellant was indicted before the High Court of Uganda sitting at Fort Portal of the attempted murder of his wife by striking her three or four times with a panga. In answer to the charge the appellant said: "I struck her with the panga several times as I believed she had been sleeping with another man. I only intended punishing her". The<br>learned trial Judge then recorded: "Convicted on plea under section 209 Penal Code". We assume that he intended this as a conviction for an offence under paragraph $(1)$ of section 209.

When the appeal came on for hearing we drew the attention of Crown Counsel to the decision of this Court in *Hando s/o Akunaay v. R.* 18 E. A. C. A. 307 where this Court held that a plea couched in almost identical terms did not amount to anything more than an admission that the appellant was guilty of unlawful wounding and was not an admission that he had in fact unlawfully caused grievous harm whether with or without intent. We are bound by that decision and must allow the appeal to the extent of setting aside the conviction and the sentence of ten years' imprisonment imposed on the appellant.

In these circumstances the plea of guilty having been wrongly entered all the proceedings consequent on that plea are bad; R. v. Ingleson, (1915) 1 K. B. 512 C. C. A. In Ingleson's case the Court of Criminal Appeal ordered a plea of not guilty to be entered and sent the case back for rehearing. But in that case it is quite clear from the report that the appellant never intended to admit any

offence. In the instant case it is doubtful from the equivocal words used by the appellant what offence he intended to admit; we, therefore, think that the proper order to make is that made by the Court of Criminal Appeal in *Brennan's case*. (1941) 28 C. A. R. 41. We, therefore, remit the case to the High Court of Uganda so that the appellant can be asked to plead to the charge or such other charge as the Crown may see fit to lay and, if he pleads not guilty, to be tried on such charge or chages.

Finally, in the present case, there is no note on the record that the Crown accepted the plea as a plea of guilty to a lesser offence than that charged in the indictment. It may be assumed that the prosecutor did consent but we think it advisable that such assent should always be recorded.