Opio v Uganda (Criminal Miscellaneous Application 20 of 2021) [2023] UGHCCRD 127 (11 July 2023)

Full Case Text

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 20 of 2021

(Arising from Criminal Case No. SOR-01-CR-CO-303/2020 -CRB 400/2020)

Opio Jimmy ::::::::::::::::::::::::::::::::::: 10

#### Versus

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Uganda :::::::::::::::::::::::::::::::::::

### Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

# 1. Representation:

According to the pleadings, the applicant is represented by M/s Legal Aid Project of the Uganda Law Society. In contrast, the respondent is unrepresented as it did not file a reply nor submissions.

#### 2. Background: 20

This application was brought by way of a Notice of Motion under Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, Section 31(1) of the Criminal Procedure Code Act, Cap 116, Rule 2 of the Judicature Act (Criminal Procedure) (Applications) Rules SI 13-18 for orders that; the applicant is granted leave to appeal out of time.

3. Grounds:

The grounds of this instant application, as set out in the application and supporting affidavit, briefly are that;

- a) In August 2020, the applicant was produced in the Chief Magistrate's Court - 30

of Katakwi at Amuria and charged with the offence of theft of eight million shillings contrary to Section 254(1) of the Penal Code Act, Cap 120.

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- b) On 22nd December 2020, the applicant was convicted of theft on his plea of guilty and sentenced to imprisonment of eight years. - c) Since the day the applicant was sentenced, he had challenges accessing a lawyer since he was in prison and was unrepresented until he contacted his brother, Odongo Alex, who picked the trial Court proceedings in May and approached M/s Legal Aid Project of the Uganda Law Society which took on instructions to pursue the matter. - d) The said lawyers advised the applicant that the applicant's plea was illegally entered into and the sentence was illegal, which he intends to appeal against in the High Court. - e) My lawyers have advised that the statutory period within which to appeal expired but leave can be sought from this Honourable Court to appeal out of time.

On the other hand, the respondent did not file a reply; however, upon perusal of the file, there is no affidavit of service in respect of the application to the respondent. But there is an affidavit of service deposed by Apedel Allan dated 24th March 2022 and filed in the Court on the same day but mentioning service of mediation hearing notices; the same was received by the respondent by stamp dated 2nd March 2022.

There is another affidavit of service deposed by Allan Apedel dated 11 May 2021, but interestingly filed in this court a year later, on 11 May 2022, it is in respect of 25 service of submissions of the instant application to the respondent; there is a return copy where the respondent acknowledged receipt dated 12th May 2022. Interestingly the affidavit of service was served to the respondent and filed in this court a year after it was deposed.

But of interest is that despite the respondent receiving a mediation notice on 24th 30 March 2022 and the applicant's submissions on 12 May 2022, there is no

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evidence on the court record to show that the respondent was ever served with $\mathsf{S}$ the instant Application.

4. Submissions:

Despite my findings above, only the applicant filed his submissions. I will consider those.

5. Issue: 10

> Whether the applicant should be granted leave to appeal the legality of his plea of guilt and sentence of Criminal Case No, SOR-01-CR-CO-303/2020 CRB 400/2020 of the Chief Magistrate's Court of Katakwi at Amuria conducted and delivered by His Worship Awacnedi Freddie?

6. Resolution: 15

> The applicant brought this application under Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, which enjoins the courts, while subject to the law, to administer substantive justice while adjudicating cases of both a civil and criminal nature without undue regard to technicalities.

- The applicant further cited Section 31(1) of the Criminal Procedure Code Act, Cap 20 116, which provides that an application to extend the time for lodging a notice of appeal or grounds of appeal under section 28(1) or (3) shall be made in writing to the registrar of the appellate court and shall be supported by an affidavit specifying the grounds for the application. - It is also worth noting that Section 28(1) of the Criminal Procedure Code Act, Cap 25 116, provides that every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behalf and shall be lodged with the registrar within fourteen days of the date of judgment or order from which the appeal is preferred.

Of further note is Section 28(6) of the Criminal Procedure Code Act that enjoins $\mathsf{S}$ the appellate court with discretion, for good cause shown, to extend the period of fourteen days within which to appeal.

This court will therefore examine the instant application to determine if the law as above has been duly complied with by the applicants.

Suffice to note that I am alive to the fact that the matter having been handled by 10 a Magistrate Grade One and a sentence of eight years upon the convict (now applicant) having been passed by a Magistrate Grade One requires confirmation as per section 173(1)(2)(a) of the Magistrate's Court Act which enacts the requirement of confirmation by the High Court of a two years and above custodial sentence imposed by a magistrate's court (other than by a magistrate's court 15

presided over by a chief magistrate).

Therefore, the sentence of eight years having been imposed on the convict (now applicant) by the trial magistrate is first subject to confirmation by this court. Be the foregoing as it may, I now turn to the merits of the instant application.

In the submissions, counsel for the applicant cited the case of Charles 20 Kangamitete vs Uganda (Criminal Application No. 1 of 1978), explaining the principle that:

> "it is to be noted that the power to extend time can only be exercised sufficient reason which relates to the inability or failure to take the particular step in time."

Counsel for the applicant also referred to the case of Mugo vs Wanjiru [1970] EA 481, 485 for the inference that the matter being of discretion, it is not possible to lay down an invariable rule, but it is necessary that time limits should be treated with respect, and in considering whether a time limit shall be extended, one has

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to have regard to the circumstances of the case and, the merits of the excuse put $\mathsf{S}$ forward for not adhering to the original time in the first instance.

In the case of Tushabe Chris vs Cooperative Bank Ltd (in Receivership) Supreme Court Civil Application No.8 of 2018, Justice Nshimye Ag. JSC (as he then was) observed as follows;

"The law created gates of justice through which people seeking justice pass to reach courts to be redressed. The Gates open and close at given intervals in accordance with rules of procedure. In rare circumstances, gates which are closed may be opened to allow in a late entrant. The discretion to open or not open is vested in the court. The application before me is one of such rare cases of late coming. However, the rule under which the application was brought emphasises showing "sufficient reason", which has been interpreted by this court and other equivalent courts in the region. Some of such cases have been ably referred to me by both counsel. For example, in the case of Giuliano Garigio v Claudio Casadio (Civil Appeal No. 13 of 2010) [2013], UGSC 61 was cited by counsel for the respondent. This court observed that a sufficient reason must relate to the ability or failure to take the particular step in time."

The applicant herein deposed in his affidavit in support that since 22nd December 2020, when he was sentenced, he had challenges accessing a lawyer since he was in prison and was unrepresented until he contacted his brother, Odongo Alex, who picked the trial Court proceedings in May 2021 and that he then approached M/s Legal Aid Project of the Uganda Law Society which took on instructions to pursue the matter.

That the said lawyers advised him that the statutory period within which to appeal expired but leave can be sought from this Honourable Court to appeal out 30 of time hence this application.

- The applicant's counsel submitted that due to COVID prevalence, it is general 5 knowledge that access to prisoners was limited, and there was not much contact between the applicant and his family members since he was not even stationed in one prison, that the applicant's brother – Odongo Alex was able to receive the record of the proceedings only in May 2021 despite various attempts. - The applicant's counsel further submitted that even after the brother contacted 10 the Legal Aid Project of the Uganda Law Society in May 2021 for action and advice, shortly thereafter, the country went into another total lockdown due to COVID 19 for which the totality of the circumstances prevailing allegedly made it impossible for the applicant to appeal within the stipulated time and offer a just explanation as to why he could not appeal within time. 15

The applicant's counsel referred this court to Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, which enjoins courts of law to administer substantive justice without undue regard to technicalities.

- According to the applicant's affidavit supporting the application, on 22nd December 2020, the applicant was convicted of theft on his plea of guilt and 20 sentenced to imprisonment of eight years. The foregoing is validated by the last page of the record of proceedings on which the sentence was made. The instant application was filed in court on 28th June 2021, 189 days (6 months, seven days) from the 22nd December 2020, when the sentence was passed. - This is 175 days beyond the 14 days the applicant could have filed an appeal. The 25 applicant advances the justification that he was unrepresented and that he had challenges accessing a lawyer since he was in prison.

The applicant's lawyer reiterates the applicant's justification of being unrepresented but adds, albeit from the bar, which is unacceptable though that at that time, COVID-19 was prevalent, which prevented the lawyers from filing a $\mathsf{S}$ notice of appeal on time.

Be that as it may, it can be judicially noticed that at the time the eight-year. custodial sentence, soon thereafter in March, 2021 there were imposed upon a number of restrictions which became prevalent, key among which some partial restrictions that impacted the courts of law and access to justice.

In addition, it is also judicially noticed that during that particular time, in response to the spread of the virus and measures to contain its spread, the Prisons authorities, frequently transferred and even isolated prisoners from time to time in between different cells and detention facilities to avoid the spread of the then prevalent COVID-19 pandemic which affected generally the provisions of services by all concerned institutions, the courts inclusive.

Accordingly, whereas Section 28(6) of the Criminal Procedure Code Act being alive to such factors as may affect access to justice, does enjoins appellate courts with discretion, for good cause shown, to extend the period of fourteen days within which to appeal, Section 30 of the Criminal Procedure Code Act is

20 instructive in that for an appellant who is in custody, the provision of the law provides that where an appellant is in prison he or she may present any document relating to his or her appeal to the officer in charge of the prison who shall then forward the document to the registrar, and for the purpose of section

28 on the date of the presentation, any such document shall be deemed to have 25 been lodged with the registrar.

The foregoing, juxtaposed with Section 31(1) of the Criminal Procedure Code Act, Cap 116, through which this application was brought, provides that "an application to extend the time for lodging a notice of appeal or grounds of appeal under section 28(1) or (3) shall be made in writing to the registrar of the appellate

court and shall be supported by an affidavit specifying the grounds for the $\mathsf{S}$ application."

Relating the foregoing provisions of the law to the instant application is that an unrepresented applicant can commence an appeal by presenting a document relating to such appeal to the officer in charge of the prison, whereas the appellate court is enjoined to extend the time within which an appeal is to be brought, a good cause should be shown.

In the case of Mulindwa George William versus Kisubika Joseph SCCA No. 12 of *2014*, the Supreme Court observed that;

- "The applicant seeking for extension of time has the burden of proving to the Court's satisfaction that, for sufficient reasons, it was not possible to lodge the 15 appeal in the prescribed time. Sufficient reason must relate to the inability or failure to take a particular step in the proceedings. Each application must be viewed by reference to the criterion of justice, and it is important to bear in mind that time limits are there to be observed, and justice may be defeated if there is laxity. Factors to be considered in an application for an extension of time are: 20 - The length of delay; $i.$

- The reason for delay; ii. - The possibility or chances of success; iii. - The degree of prejudice to the other party. iv. - Once a delay is not accounted for, it does not matter the length of the delay. 25 There must always be an explanation for the period of delay."

In the instant application, the applicant delayed by 175 days (five months and twenty-four days) beyond the statutory fourteen days in which he could have filed an appeal yet he offers no plausible explanation why he omitted to exercise

- the provisions of Section 30 of the Criminal Procedure Code Act even if there $\mathsf{S}$ were partial and subsequently full COVID-19 restrictions at the time which could have prevented him from exercising that step yet as was held the case of *Tushabe* Chris vs Cooperative Bank Ltd (in Receivership) (supra), sufficient cause is vital to open closed gates. - While Black's Law Dictionary 9th Edition at, page 251 defines "good cause" as a 10 legally sufficient reason that good cause is often the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused. - Accordingly, from the reason advanced by the applicant, that is of not being represented and being in prison as a "good cause" which prevented him from 15 filing a notice of appeal within the required fourteen days, is to me, not sufficient cause to extend time which because Section 30 of the Criminal Procedure Code Act was available to him as he was in prison since it provides that "If the appellant is in prison he or she may present any document relating to his or her appeal to the - officer in charge of the prison who shall then forward the document to the registrar, 20 and for the purpose of section 28 on the date of the presentation, any such document shall be deemed to have been lodged with the registrar". However, I would consider the reason of COVID 19 restrictions at the time and the delay to access the record of proceedings as more viable reasons which could have impacted on the applicant's ability and which prevented him from taking a step 25 to lodging a notice of appeal. For this assumption, I am fortified by the observation of Justice Saied in the case of Charles Kangamiteto v Uganda [1978] **HCB 124** in which the learned judge was of the view that;

"The essential step required to be taken by an intending appellant after his conviction is to file a notice of appeal, for which no fees are payable, within

fourteen days of the superior court's decision. The applicant could have informed the prison authorities of his intention to appeal and they would have filed the necessary documents on his behalf, as they invariably do. Learned counsel for the app1icnt did not refer to this argument in his reply. I can only presume that he deliberately shut his mind to it, not having any reasonable and convincing answer to it. If ignorance of the law governing appeals had been advanced as an excuse, I would have had no difficulty in rejecting this too in view of what was said in R. v. Brown s/o Mbetwa, (1948) 15 E. A. C. A. 138".

Such powers, he added "... is to be noted ... can only be exercised in sufficient reason which relates to the inability or failure to take the particular step in time 15 - ." as was noted in *Mugo v. Wanjiru, (1970) E. A.481, 485.*

On the justification of Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995, the law under which this instant application was brought, the Supreme Court decision in *Mulindwa George William versus Kisubika Joseph SCCA No. 12 of 2014* is instructive, for the learned justices observed that;

"As pointed out earlier in this judgment, in the instant appeal, it is clear that the appellant does not complain that the Justices of the Court of Appeal exercised their discretion wrongly or as a result of any misdirection. He does not even dispute the finding of fact by the two courts that the reason he gave for the delay was insufficient to justify the grant of the order sought. He contends that the Rules of procedure that the courts applied to dismiss his case are mere technicalities that Article 126 has done away with.

This contention is, in our opinion, erroneous and unsupported by the pronouncements of the Supreme Court in several cases involving the application of Article 126 of the Constitution by the courts. According to

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these authorities, the settled position is that Article 126 (2) (e) has not done away with the requirement that litigants must comply with the Rules of procedure in litigation. The Article merely gives Constitutional force to the well-settled common law principle that rules of procedure act as handmaidens of justice. The framers of the Constitution were alive to this fact. That is why they provided that the principles in Article 126, including administering substantive justice without undue regard to technicalities, must be applied "subject to the law." Such laws include the Rules of procedure."

While citing the case of Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank SCCA No.2 of 1997, in Mulindwa George William versus Kisubika 15 Joseph (supra), the Supreme Court was of the view that;

> "We have underlined the words 'subject to the law'. This means that clause (2) is no license for ignoring existing law. A litigant who relies on the provisions of Article 126 (2) (e) must satisfy the Court that in the circumstances of the particular case before the Court it was not desirable to pay undue regard to a relevant technicality. Article 126 (2) (e) is not a magic wand in the hands of defaulting litigants."

In my view and in line with the decision in Mulindwa George William versus Kisubika Joseph (supra), Article 126 (2) (e) has not done away with the requirement that litigants must comply with the Rules of procedure in litigation.

The COVID-19 prevalence as a deterrent would be a viable reason as it can be judicially noticed that at that time when the convicted was sentenced, COVID-19 partial restrictions came into play shortly thereafter and it is also trite that in order for prison authorities to curtail the rapid spread of COVID-19 among prisoners, they would choose some prisons for quarantine areas while others as

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detention centers and such act could have impacted on the applicant's exercise $\mathsf{S}$ of the step of informing the officer in charge of prisons of his intended appeal as there was transfer and movement of prisoners from one location to another.

In conclusion, I am satisfied that sufficient cause has been shown as to why the appeal could not have been lodged in time and hence this instant application for an extension of time to appeal the legality of the applicant's plea and sentence in Criminal Case No. SOR-01-CR-CO-303/2020 -CRB 400/2020 would accordingly allowed with the applicant given up to 15 days within which to lodge a notice of appeal to this court.

I so order

Adonyo, J 11th July, 2023

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