Court name
Supreme Court of Uganda
Judgment date
17 June 2003

Arvind Patel v Uganda (Criminal Application-2003/1) [2003] UGSC 25 (17 June 2003);

Cite this case
[2003] UGSC 25

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODER JSC)

CRIMINAL APPLICATION NO. 1 OF
2003


BETWEEN

ARVIND
PATEL APPLICANT


AND

UGANDA RESPONDENT

RULING OF ODER JSC.

This is an application brought under rule 5 of the Supreme Court Rules
for an order granting bail to the applicant pending the determination of
his appeal to this Court in a criminal case.
The applicant's affidavit filed
with the application shows that the applicant was convicted, after a trial, of
the offence of conspiracy
to murder c/s 201 of the Penal Code, and sentenced to
5 years imprisonment by the Chief Magistrate's Court of Buganda Road, Kampala,
on 9.3.1999. He subsequently appealed to the High Court against the conviction
and sentence. That appeal was dismissed on 16.3.2001.
His appeal to the court of
Appeal was also dismissed, on 31.10.2002. He further appealed to this court and
the appeal is pending
determination. He is 52 years old. Due to that age, he
said in the affidavit that he is unable to withstand prisons condition. The
offence with which he was charged did not involve personal violence. During his
trial and the hearing of his appeals by the two courts
below he was released on
bail and never absconded.

Mr. Michael Akampurira, the applicant's learned counsel argued three
grounds in support of the application. The first was that
due to the busy
schedule of work in the Supreme Court there was a possibility of substantial
delay in hearing the appeal. He
contended that although the appeal has
already been set down for hearing on 2.7.2003, it might still take about three
months
from now before judgment in the appeal is delivered. The second is that
the appeal is not frivolous. It has a reasonable possibility
of success. It is
based on a point of law, which is that the applicant's trial was conducted
by three Magistrates. This was contrary
to section 142 of the Magistrate
Courts Act 1970. In the circumstance, this court will have to interpret the
provisions of that
section for purposes of guiding the lower courts. In case
that ground of appeal is upheld, the purpose of the appeal would be
defeated
if the applicant is not granted bail.

Thirdly learned counsel submitted
that rule 5(2) of the Rules of the Court empowers it to grant the application
bail pending the determination
of the appeal.

Learned Counsel pointed out
that there is a lack of authorities of this Court indicating the criteria on
which the Court exercises
its jurisdiction under this rule. He would therefore
rely on the case of Merali vs. Republic (1972) EA 47 in which the High
Court of Kenya listed down the criteria which should be applied generally, to
applications for bail pending appeal.
Learned Counsel also referred the court to
Chinambhai vs. Republic (1971) E.A. 343. He contended that the criteria
laid down in the Merali case (supra) are all present in the instant application.
The learned counsel
then informed the court from the Bar that the applicant is a
permanent resident of Uganda, though not a citizen. Citizenship is not
a
condition for bail. He also said that the applicant is a married man with a
family, resides in his own house on plot 12 Kimera
Road, Ntinda Kampala, and has
no record of previous conviction. The learned counsel also introduced to the
Court prospective sureties
for the applicant if he were granted bail. They are
Mr.Praful Patel and Mr. Henry Makmot, both well-known citizens of this country
and businessmen. Mr. Makmot was a minister in a previous government in this
country.

Mr. Ndamaranyj Ateenyi, state attorney, represented the D.P.P. He opposed the
application. He submitted that the ground of a possibility
of substantial delay
is not applicable to the instant case because the appeal has been set down for
hearing within two weeks. It
is mere speculation by the applicant that it may
take two to three months for the appeal to be completed. This court has a
constitutional
duty to dispose of cases expeditiously. The learned state
attorney conceded that the appeal is based on points of law, but he contended
that its possibility of success is minimal because the grounds of appeal raised
on the third appeal are substantially the same as
those that were argued in the
first and second appeals, where they failed. Regarding the applicant's arguments
that if bail is not
granted the appeal shall be rendered nurgatory, because the
applicant will have served a substantial part of the sentence, the learned
State
Attorney contended that the argument is speculative because it pre supposes that
the appeal will succeed. Going by the results
of the previous two appeals such a
presumption has no foundation.

The learned state attorney conceded that
the fact that the applicant had complied with conditions of bail granted to him
by the three
courts below is a factor in his favor but it should not influence
this court to grant him bail. Unlike during trial, when the appellant
was
presumed innocent, he is now a convicted person. Moreover during his appeals in
the High Court and the Court of Appeal the applicant
had expectation to be
successful in his appeals unlike now which is the third and final appeal.
Learned state attorney further submitted
that while the applicant was not
involved in personal violence, he was convicted of conspiracy to murder, which
is a worse offence
than one involving personal violence.

This court has jurisdiction to grant bail to any convicted person, who has
lodged a criminal appeal to court before the appeal is
determined. Rule 5 (2)
(a) of the Supreme Court Rules provides:-
"Subject to sub rule (1) the
institution of an appeal shall not operate to suspend any sentence or to stay
execution, but the Court
may -

(i) in any criminal proceedings, where notice of appeal has been given in
accordance with rule 55 and 56, order that the appellant
be released on bail
pending the determination of the appeal."


This is a
discretionary jurisdiction, which should be exercised judiciously. I have not
laid my hands on any decision of this Court
in which the application of this
rule has been considered. However, there are a few reported decisions of the
High Court of Tanzania,
of Uganda and of Kenya, in which bail applications
pending appeals by convicted persons have been considered. Since such cases are
relevant to what conditions should apply to bail applications pending appeal,
they are nevertheless, of persuasive value. In my view,
principles which govern
granting of bail pending the determination of an appeal by any appellate court
should be the same, whether
it is the High Court in its appellate jurisdiction,
the Court of Appeal or the Supreme Court. The earliest of the reported cases
is
the Tanzanian case of Raghbir Singh Lamba VS. R. (1958) E.A. 337.
In that case, the applicant having been convicted and sentenced to imprisonment
filed an appeal. The main grounds
of the application for bail were that an
appeal from a magistrate in Tanganyika was comparable to an appeal in England
from Petty
Sessions, in respect of which bail is commonly granted; that the case
was complex and the appeal could more easily be prepared if
the applicant was on
bail; and the previous good character of the applicant and the hardship to his
dependants. It was held by Spry
Ag.J. (as he then was) and of the High Court of
Tanganyika at that time) that: (i) principle to be applied was that bail pending
appeal should only be granted for exceptional and unusual reasons: R V
Leinster (Duke), 17,Cr.App.R.147
and R VS.. A.B. (1926) TLR (R)
118 applied. (ii) neither the complexity of the case nor the good
character of the applicant, nor the alleged hardship to his dependants
justified
the grant of bail, but had the court been satisfied that there was an
overwhelming probability that the appeal would succeed,
the application would
have been granted. This strict approach appears to have influenced Sheridan J
(as he then was) in the Ugandan
High Court case of Girdhar Dhanji Masrani VS.
R (1960) 1960
E.A. 320. In that case Sheridan J (as he was) did not agree
with what Lewis.J said in an earlier case, in which Lewis J had ordered:

"In my opinion the modern practice as tO bail should be this. In bailable
offences an accused should normally be granted bail unless
there are exceptional
circumstances against it, for example;

(i) Where
there is a real likelihood that the accused will not appear at the
trial;


(ii) Where there is a real likelihood of the
offence being committed while the accused is on release.

(iii) Where the accused has previous convictions. The old rule as to
"special circumstances" was from a harsher age and I am for
a more humane
approach. Bail is therefore granted." In the Girdhar Dhanji Masirani
case (supra), the law which was relevant to the case before Sheridan, J (as he
then was) was section 333(2) of Ugandan Criminal
Procedure Code, which
provided:

"The High Court or the subordinate Court which
convicted an appellant may, if it sees fit admit an appellant on bail pending
the determination
of his appeal."

When considering the application of
that section Sheridan, J (as he then was) said that court had a discretion on
the matter. He disagreed
with Lewis's J's order in the earlier case, because
that order, which I have reproduced verbatim in this ruling, appeared to apply
more to the considerations which should govern the grant or refusal of bail
before conviction than after. Different principles must
apply after conviction.
The accused person has become a convicted person and the sentence starts to run
from the date of his conviction.
In the case before Sheridan,J (as he then was)
the applicant for bail had received a sentence of 18 months imprisonment and if
he
were granted bail pending appeal he might be sorely tempted to abscond at any
cost. Sheridan,J's ruling in Girdhar Dhanji Masrani (supra) then
continued.

" It is unfortunate that some delay must occur before this
appeal is heard but that, in itself, is not a ground for granting bail
at this
stage. It is with diffidence that I do not follow the order of Lewis, J, but
consider that the previous practice of this
court in being guided by the United
Kingdom precedents in exercise of its discretion on these applications to be
correct. This application
is refused." I agree with view expressed by Sheridom J
(as he then was) in the case of Girdhar Dhanji Masirani (supra) that different
considerations should apply in application for bail before conviction and those
which apply before the determination of an appeal
already
lodged.



In another case, Chimambhai -Vs- Republic (No 2)
(1971) E.A. 343
, the appellant had been convicted of handling stolen
goods and had appealed against conviction. He was 40 years old, married with
children, without prior conviction. His passport was with the police. During the
hearing of the case, he had been on bail, and had
surrendered every time, even
though he knew that the minimum sentence for offence was 7 years imprisonment.
He had given the police
full co-operation. The applicant applied for bail
pending appeal. Harris J. of the High Court of Kenya, held in his court ruling
on 14.11.1969 that:
(i) anticipated delay in hearing of the appeal
together with other factors could constitute good grounds for granting bail
pending
appeal (Akbarali Juma Kanji (1946) 22 (I) K.R. 17
followed).

(ii) In the circumstances bail would be allowed.
The basis on
which Harris J, granted bail in the Chimambhai case (supra) was stated in
his ruling. It may be summarised as follows: -

The case of an appellant under sentence of imprisonment seeking bail lacks
one of the strongest elements normally available to an
accused person seeking
bail before trial, namely, the presumption of innocence, but nevertheless the
law of today frankly recognizes,
to an extent at one time unknown, the
possibility of the conviction being erroneous or the punishment excessive, a
recognition which
is implicit in the legislation creating the right of appeal in
criminal cases. As to the measure of that recognition the decision
in Kanjis
case,(1946), 22, K.LR 17, is directly on the point. There, two persons had been
convicted of assault causing actual bodily
harm and sentenced to terms of
imprisonment. Each appealed against both conviction and sentence and applied to
the magistrate for
bail pending the hearing of the appeal. The magistrate
granted bail to one of the appellants but not the other, where upon the latter
applied to the court by way of appeal from such refusal. Although in his
judgment the judge said that it was not the practice to
grant bail to an
appellant after he had been convicted and sentenced to imprisonment except in
very exceptional circumstances, he
went on, nevertheless, to illustrate what he
considered would be circumstances justifying the granting of bail to such an
applicant.
The mere fact of anticipated delay in hearing an appeal, he said, was
not of itself exceptional circumstance but might become one
when coupled with
other factors, and he added that the good character of the appellant together
with such an anticipated delay might
constitute an exceptional
circumstances.

The particular circumstances in that case by virtue of which it was
considered that bail should be allowed were:

1. that the appellant was a first offender;

2. that his appeal has been admitted in hearing, showing thereby that it was
not frivolous ,


3. that there would probably be a delay of six or eight weeks before the
appeal could be heard by which time the appellant would have
served more than
one fourth of his sentence.


4. that the co-accused and fellow - appellant who was in no respect in a
different position from him had been allowed bail.


In the
Chimambhai case (supra) the relevant circumstance corresponding to
those in the Kanjj case (supra) may be summarized as follows:

(1) the applicant was
a first offender;
(2) the appeal
had been admitted to
hearing;
(3) it might be expected
that it would take between twelve and twenty-four weeks before the appeal was
heard; and
(4) the offence of
which the applicant had been convicted, unlike the offence in Kanji's
case (supra), was not one involving personal
violence.


In the Chimambhai,
case (supra) Harris J concluded: "The principal damage against which the court
must guard in granting of bail pending appeal, is
of course, that the appellant
may in the meantime either abscond or commit further offences, while, unlike the
case of granting bail
before trial, there is usually no damage of his destroying
evidence or interfering with witnesses In regard to the possibility
of his
absconding a material consideration is the length of the term of imprisonment
against which the applicant is appealing, for
clearly the longer that term the
more likely is he tempted to abscond and possibly to leave the country. In
Kanji's case, the sentence was one of only a few months whereas here it
is one of seven years. Nevertheless it seems to me that this may
be more a
question of conditions to be imposed rather than one of the granting of bail in
itself, and in the present case the applicant's
passport, I understand, has
already been seized by the police. Further more his sentence of seven years is
the statutory minimum
term of imprisonment for the offence and accordingly when
the applicant surrendered to his bail at the time of the trial he then
knew that
if convicted and sentenced to imprisonment the term would not be of shorter
duration. For these reasons taking everything
into account, I granted the
application and directed that the applicant might be released on bail""
I
agree with what Harris.J said in that case.

In the case of Merali vs Republic (1972) EA 47, another Kenyan
High Court case, the applicant, who had been convicted on an exchange control
offence on his own plea of guilty filed
an appeal claiming, inter alia, that the
plea was equivocal. He then applied for bail pending appeal. Harris. J, of who
heard and
allowed the bail application, considered a number of decided cases,
including Kanji (supra) Lamba (supra) and
Chimambhai (supra) and listed four criteria which are proper to be
applied generally to all applications for bail pending appeal. They are:

1. the character of the applicant.

2. the possibility of a substantial delay;

3. whether the offence of which the applicant was convicted involved
personal violence;


4. that the appeal is not frivolous and has a reasonable chance of
success.

In my view, considerations which should generally
apply to an application for bail pending appeal as indicated by the cases above
referred to may be summarized as follows:
(i) the character of the
applicant;

(ii) whether he/she is a first offender or
not;

(iii) whether the offence of which the applicant was
convicted involved personal violence;

(iv) the appeal is not
frivolous and has a reasonable possibility of
success;

(v) the possibility of substantial delay in the
determination of the appeal.

(vi) whether the applicant has
complied with bail conditions granted after the applicant's conviction and
during the pendency of the
appeal (if any).

In my view it is not necessary that all these conditions should be present in
every case. A combination of two or more criteria may
be sufficient. Each case
must be considered on its own facts and circumstances. In the instant case, one
of the grounds put forward
by the appellant's learned counsel is that there is a
possibility of indefinite delay in hearing the appeal. Since the applicant's
second appeal was dismissed by the Court of Appeal, he has spent nine months in
prison. By the time the appeal is completed, he will
have served a large part of
the term of imprisonment. In my view, this ground should be considered in the
context that the appeal
has already been set down for hearing on 2.7.2003, which
is only 15 days away. Although it cannot be said with certainty when the
Courts
decision will be given after the hearing of the appeal, I do not think that
there will be an indefinite delay before the appeal
is disposed of. The criteria
of substantial delay therefore does not apply to the instant case. Regarding the
possibility of success
of the applicant's appeal, neither the grounds of appeal,
nor the record of appeal was attached to this application, which I think
should
have been done. In considering an application for bail pending appeal the only
means by which the Court can assess the possibility
of success of the appeal is
by perusing the relevant record of proceedings, the judgment of the Court from
which the appeal has emanated,
and the memorandum of the appeal in question.
In the absence of the relevant documents in the instant case, therefore, I am
unable
to say whether the applicant's appeal has a reasonable possibility of
success. However, I think that the appeal is not frivolous
since it has already
been admitted for hearing and a certificate allowing the appeal, as a third
appeal, has been issued by the Court
Appeal.

It is contended that he applicant's character is an important consideration
in the instant application. The appellant is a first offender,
he has complied
with all the conditions for bails granted him by the three courts below. He
never absconded. Further, the offence
of which he was convicted did not involve
personal violence. These are, in my view, factors favourable to the appellant.
Regarding
non involvement of personal violence I think that although the offence
of conspiracy to murder, of which the application was convicted,
did not involve
the appellant personality harming the complaint physically, the conspiracy was
meant to inflict the ultimate harm
on the applicant. In the circumstances I
think that the factors which strongly weigh in favour of bail for the appellant
is his character,
the most important of which are that he is a first offender;
he did not jump bail or abscond when he was released on bail by the
three courts
below. Further his appeal is not frivolous. This is strengthened by the fact
that he has a permanent abode and that
substantial sureties are willing to
ensure his presence -in Court as and when he is required to do so. In the
result, I would grant
this application and release the applicant on bail on the
following conditions.

(a) Payments by him of cash bail of shs 5,000,000.

(b) Surrender to the Registrar of this Court the applicant's
passport.


(c) The applicant should report to the Registrar of this Court every
fortnight at 8.45 am, beginning on 2nd July 2003, when his appeal
shall come up for hearing.


(d) Mr. Paul Patel and Mr. Henry Makmot should be the applicant's sureties,
to secure his attendance in Court whenever he is required
to do so.


(e) The said sureties should each bind himself by signing a bond (not cash)
of shs. 10,000,000

It is so ordered.

Dated at Mengo this 17th day of June,
2003.



A.H.O. ODER
JUSTICE OF SUPREME COURT