IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(FROM MBALE CRIMINAL CASE NO.888/2008
BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN
by Mr. Wegoye of M/s Wegoye & Co. was charged, tried and convicted of the offence of assault occasioning actual bodily harm c/s 236 of the Penal Code Act for allegedly assaulting one Adhambo Rose on 29th November 2006 at Uhuru Cell, Mbale Municipality. The appellant was aggrieved by the decision of the trial Magistrate whereby she was sentenced to 4 months imprisonment.
The trial court erred in law and fact when it failed to give a proper evaluation of the evidence and arrived at an erroneous decision.
The learned Magistrate was biased against the accused.
The learned trial Magistrate erred in law and fact when he relied on extraneous matters in convicting the appellant.
The conviction is bad in law.
The trial before the lower court has occasioned a grave miscarriage of justice.
The trial Court erred in law and fact when it failed to find and hold that the prosecution failed to prove its case to the required standard.
I have considered the submission by Ms. Alpha Ogwang the learned resident State Attorney in support of the lower court’s trial.
I have found that the trail Magistrate flauted all tenets of basic criminal procedure while conducting the trial of the appellant as rightly pointed out by learned counsel for the appellant.
For example at pages 5 and 7 of the typed proceedings of 16.2.2007 it is indicated that there was no prosecutor in court. Although the accused was present, her advocate Mr.Musiiho then was absent. The accused told court that her advocate was sick. Despite this the court assumed the role of prosecutor
and judge and ordered as follows:
to cross-examine him or matter shall be adjourned for her advocate to cross-examine the expert witness.”
The record shows that before cross-examination was conducted, the medical report was admitted in evidence and was marked Exh.P.XI
The same scenario repeated on 19.2.2009. Apart from the Magistrate and his Clerk, defence counsel and prosecution were absent. The
accused prayed for adjourned because her advocate was absent. She did not know why the advocate was absent. Court refused to adjourn and this time round
pronounced itself as having taken over the prosecution role. At.P.7 the record reads,
As such since the Doctor PW.5 has turned up in court to be cross-examined, it is my view that all assistance and opportunity has been availed to the accused to cross-examine the expert witness. In addition, the perpetual absenteeism of prosecutor leaves me with no option but to order for the closure of the prosecution
case hearing. I shall proceed to pronounce my ruling.
Ruling: A prima facie case of doing grievous harm has been established against the accused. Accused shall defend herself and may call
witnesses as provided under S.128 of MCA.”
Later on that day the record reads that:
this occasion, the accused’s bail was cancelled in the following terms:
“I reiterate and maintain my order of 19.3.2007 cancelling accused’s bail. She failed to turn up in court claiming she was away in Bulucheke attending to a sick sister yet at around 12 p.m I saw her in Mbale
town chatting away. Her actions were an affront and abuse of the court bail conditions as granted to her. Accused shall be remanded until 28.3.2007 for further defence case hearing. Accused may apply
for bail to the Chief Magistrate or High Court.”
On another adjourned date Mr. Wegoye applied to have the case dismissed for absence of the prosecution under S.119 (1) MCA but court overruled him purportedly, “in the interest of justice.”
Despite protestations by the learned defence counsel that the case could not be reopened for cross-examination since the defence closed,
he was overruled and a State Attorney presumably a lawyer went ahead to cross-examine the accused.
the MCA and the Constitution of this Country. I was equally surprised by the submission by the learned State Attorney that although the trial magistrate
conducted the trial contrary to criminal procedure, it did not occasion a miscarriage of justice. That the pursuit of the trial magistrate was substantive justice. Further that the trial magistrate gave reasons for proceeding without a prosecutor or
defence advocate. That the intention of court was to expedite trial and in any case whether those officers of the court were absent, the evidence would be the same. This was an opportunistic disposition of a lay presentation by a lawyer. There was no fair
hearing accorded to the appellant by the lower court contrary to the law. According to Article 28 (1) of the Constitution in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public
hearing before an independence and impartial court or tribunal established by law.
sought adjournment so that her lawyer could be present to defend her but this was not allowed by the trial court.
alone. It was improper to conduct a trial in the absence of prosecution and defence counsel and invite prosecution to cross-examine the witness when evidence was received in their absence.
effectively. The procedure adopted by the trial magistrate in admitting the medical form in evidence as Exhibit PXI is unknown in criminal procedure. The appellant or her
advocate did not test the credibility of the doctor’s evidence before it was admitted by court unilaterally which was an incurable procedural irregularity.
the prosecution case. A magistrate has no right to end the case prematurely. Unless the accused or his/her advocate does not wish to submit on a no case to answer, a ruling should ideally follow that submission.
to court the reason for her absence.
of the appellant’s bail. This was unprofessional and judicial misconduct. Cancellation of bail can be ordered when inter alia the accused has breached the bail conditions or the surety has failed in his duty as surety. The violation of bail must be proved
and prosecution should apply to forfeit the bail. See part IX of the Magistrate’s Courts’ Act. Invoking what the trial Magistrate saw outside the trial court was improper and an illegality and caused a miscarriage of justice. By all standards that was an indicator that the lower court’s trial was not a fair one. The court descended into the arena which is unfortunate.
should not only be done but seen to be done. If courts are to be respected, Magistrates must be beyond reproach in their character and conduct of court business. Much of the working time of a Magistrate is taken up in pronouncing judgment on those
who transgressed on the law. A magistrate can hardly do this fairly unless he also respects the law. This Magistrate did in a truculent and oppressive manner to the accused person merely because she was in the dock. Justice was not done to the appellant. She was not
given a fair hearing and trial. This justifies the grounds of appeal in the memorandum of appeal. The trial was conducted contrary to criminal procedure.
In view of the flawed trial it is apparent that the trial Magistrate could not impartially evaluate the evidence adduced. All the complaints in the memorandum of appeal are upheld.
I am unable to order a retrial because of the trauma suffered by the appellant and the injustice meted out on her by the lower court as well as the time spent by the appellant in the justice system.
The prosecution condoned and abated this injustice. They cannot fairly re-prosecutor the appellant.
Namakoye Resident State Attorney.
Resident State Attorney: We are ready to receive judgment.