Court name
Supreme Court of Uganda
Judgment date
26 October 2003

Arvind Patel v Uganda (Criminal Appeal-2002/36) [2003] UGSC 35 (26 October 2003);

Cite this case
[2003] UGSC 35

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODER, KAROKORA, MULENGA, KANYEIHAMBA, AND KATO
JJ.S.C.)

CRIMINAL APPEAL NO. 36 OF 2002

ARVIND PATEL
::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT




(Appeal from the judgment of the Court of Appeal of Uganda at Kampala
(Mukasa-Kikonyogo. D.C.J, Mpagi-Bahigeine and Kitumba, JJA)
dated 31. 1. 2002,
in Criminal Appeal No. 27 of 2001)

JUDGMENT OF THE COURT


This is a third appeal. The appellant, Arvind Patel, was convicted with
another person, Andrew Okello, now deceased, of conspiracy
to murder, contrary
to section 201 of the Penal Code, by the Chief Magistrate's Court of Kampala,
and sentenced to five years imprisonment.

The brief facts of the case are that the appellant and one Andrew Okello
between March and April 1998 at the Railways Goods shed conspired
to murder one
Rahuel Patel alias Bhikhu Patel. The two engaged the services of Sgt.
Nsubuga Frank, PW2, Richard Jumbo, PW3, and Andrew Odeke, PW4 to achieve
their
purpose.

However, PW2, PW3 and PW4 withdrew from the plan and instead reported the
mater to the police. Thereafter, the police gave PW3 and
PW4 recording machines
by which each of the recorded conversations with the appellant regarding the
conspiracy. They returned the
recorded audiotapes to the police.


As a
result of the report and the recordings, the appellant and Andrew Okello were
arrested and charge with conspiracy to murder.
On 21.8.1998, when the case was
placed before Ruhinda, the Chief Magistrate of Buganda Road, Andrew Okello, who
was accused No. 2,
changed his plea and pleaded guilty. The charge and the facts
were read to him, which he admitted. He was convicted on his own plea
of guilty,
and sentenced to a fine of shs. 500,000/= or six month's imprisonment. He opted
to pay the fine. He died one month later,
before the appellant's trial
commenced. The appellant was tried alone. In his defence, the appellant denied
participation in the
conspiracy. He put up a defence of alibi and said that the
prosecution witnesses had grudges against him. He claimed that the grudges
were
due to indebtedness to him by the prosecution witnesses who were unwilling to
pay him and a vendetta between him and the complainant
over the Swamirayan
Temple in Kampala.

The trial court rejected the defence evidence and
believed the prosecution witnesses. She found the appellant guilty and convicted
him as charged, sentencing him as we have already mentioned. The trial of the
appellant in the magistrate's court was conducted by
three magistrates. The
record shows that Mr. Ruhinda Asaph Ntegye, Chief Magistrate, was the first
magistrate to handle the case.
He took the plea of the appellant, on
22nd May 1998. On 5th June 1998, the case was mentioned
before the same chief magistrate. On 8th June 1998 Andrew Okello's
plea was taken and he denied the charge and both accused persons were granted
bail by the same chief magistrate.
The case was again mentioned on 22nd
June 1998, 27th July 1998 and 21st August 1998. On 26th
August 1998, when both accused persons again appeared before the same
chief magistrate, Andrew Okello changed his plea to guilty.
The facts were read
to him, which he admitted and he was convicted and sentenced as has already been
mentioned in this judgment.
On 5th October, Mr. Asaph Ntegye Ruhinda
disqualified himself from hearing and withdrew from the case, following
allegation of bias by the
appellant.

It appears that on the same date
another magistrate, Mr. Isingoma, Magistrate Grade 1, took over the hearing of
the case and recorded
the evidence of the first prosecution witness. Anthony
Ndidde, PWl on 19th October 1998, the appellant appeared before a
magistrate whose names and other particulars are not recorded. The appellant's
bail
was renewed on new terms and conditions.

On 3rd November
1998, another Grade I Magistrate, Ms. Tibulya took over the trial of the case
and recorded the evidence of Sgt. Nsubuga
Frank (PW2). Thereafter she conducted
the trial up to the end. She recorded the evidence of the rest of the witnesses
who testified
in the case.

The learned trial magistrate rejected the
defence evidence and believed the prosecution witnesses. She found the appellant
guilty
and convicted him as charged, sentencing him as we have already
mentioned. The appellant's appealed to the High Court and the Court
of Appeal
were dismissed. Hence this appeal, which came to this Court on a certificate of
the Court of Appeal that the matter raises
a question or questions of law of
great public or general importance, under the provisions of section (5) of one
Judicature statutes
1996.

The Memorandum of Appeal to this Court
originally contained four grounds, but the last two were abandoned at the
hearing of the appeal.
The remaining two grounds are that:

1. The learned Justice of Appeal
erred in law to hold that the trial was proper when it was conducted by 3 trial
Magistrates in contravention
of S.142 of the Magistrates Courts
Act.
2. The learned Justices of Appeal erred in
law in taking into account the plea of the first accused person in upholding the
conviction
against the appellant.


Mr. Stephen
Mubiru represented the appellant before us. His argument on ground one of the
appeal was based on the provisions of section
142(1) of the Magistrate's Courts
Act, 1970(MCA) and the interpretation made by the Court of Appeal for East
Africa of section 196(1)
of the Criminal Procedure Code of Tanzania in
Eustance v Rep. (1970) EA 393. The Tanzanian Statute was worded in
identical terms with section 142(1) of our MCA, which provides:

"142 (1) Whenever any magistrate, after having heard and recorded the
whole or any part of the evidence in a trial, ceases to exercise
jurisdiction
therein and is succeeded whether by virtue of an order of transfer under the
provisions of this Act or otherwise, by
another magistrate who has and who
exercises such jurisdiction the magistrate so succeeding may act on the evidence
so recorded by
his predecessor, or partly by himself, or he may resummon the
witnesses and recommence the trial: Provided that, (a)In any trial
the accused
may, when the second magistrate commence his proceedings, demand that the
witnesses or any of them be resummoned and
reheard.

(b) The High Court may, whether there be an appeal or not, set aside any
conviction passed on evidence not wholly recorded by the
magistrate before whom
the conviction was held, if it is of the opinion that the accused has been
materially prejudiced thereby and
may order a new inquiry or trial."

In the case of Eustance vs. Republic (supra) the appellant was
charged in July 1967 in the court of a resident magistrate with stealing money
which had come into his possession
by virtue of his employment in the public
service, and which was the property of the Tanzanian Government.

The
trial began on 4th September 1967 before Mr. Agege, when the evidence
of one witness was taken. After five adjournments, the trial was resumed on
8th November 1967, when the evidence of another witness was taken.
After four further adjournments the evidence of a third witness was
taken on 29
th January 1968. There were further adjournments, during which Mr.
Agege went on leave and his place was taken by Mr. Thomas. On 10th
April 1968, the trial was resumed, when the advocate for the appellant stated
that he did not wish any of the witnesses who had given
evidence to be recalled.
Three further witnesses were called for the prosecution and the appellant
himself gave evidence. After the
court had been addressed on behalf of the
prosecution and the defence, judgment was reserved until 2nd May
1968. Thereafter nothing appears to have happened until 22nd July
1968, when Mr. Meela sat as resident magistrate. The prosecutor is recorded as
having said that the proceedings should be recommenced
de novo, except as
regards one witness. The appellant asked that no date should be fixed for the
hearing in the absence of his advocate.
There was a further mention before Mr.
Meela, on 5th August 1968, and a mention before another magistrate on
17th October 1968. On 5th November 1968, the appellant
appeared before yet another magistrate, Mr. Osakwe, when his advocate indicated
that he had no objection
to a judgment being written by Mr. Osakwe. The
appellant himself concurred and said that he did not wish any of the witnesses
recalled.
Judgment was given by Mr. Osakwe on 16th November 1968. The
appellant appealed unsuccessfully to the High Court. He then applied for leave
to appeal to the Court of Appeal
for East Africa and leave was granted by the
Chief Justice.

About section 196(1) of the Tanzanian Criminal Procedure
Code, that court said:

"We think that this section, on a true interpretation allows one
magistrate to continue and complete a trial begun by another magistrate,
we do
not consider that it can properly be read as authorizing the conduct of a trial
by a succession of magistrates. It may be noted,
although we do not base our
decision on this, that the proviso to sub-s (1) refers to "the second
magistrate," which appears to confirm
that the section applies only to two
magistrates.

Mr. Osakwe was the third magistrate to conduct the trial of the appellant
and we think that as such, he had no jurisdiction to continue
the trial; it
follows that the conviction and sentence passed are a nullity and the trial as a
whole was abortive. In these circumstances,
we see no alternative to quashing
the conviction of the appellant, setting aside the sentence passed on him and
ordering that he
be retried de novo, and we so order."


In the appeal
before us, the appellant's learned counsel contended that, contrary to the
finding of the learned Justice of Appeal,
Chief Magistrate Ruhinda did, in fact,
record evidence during the appellant's trial. This meant that three magistrates
participated
in the appellant's trial, which was irregular in view of the
decision in the case of Eustance vs. Republic (supra). In the learned
counsel's view, "evidence" as defined by S.3 of the Evidence Act,
includes admission by an accused person and ocular observation by the court in
its judicial
capacity. In the instant case, Chief Magistrate Ruhinda recorded a
plea of guilty by Andrew Okello. A2, the appellant's co-accused,
and proceeded
to convict and sentence him.

Learned counsel contended that the recording
of A2's guilty plea constituted a recording of evidence against the appellant.
It follows
that as this was a joint trial on a charge of magistrates who should
hear and record evidence in a trial. He submitted that in the
often cited case
of Eustance vs Republic (supra) the court made a wrong interpretation of s.196
(1) of the Tanzania Criminal Procedure
Code. Under the section, a magistrate
succeeding another in a trial has power to resummon witnesses and recommence the
trial. The
learned Deputy DPP referred to the definition, of the word "any" in
Stroud's Judicial Dictionary in support of the view that "any" does not
impose any limit to or qualification of the number concerned; and that it is as
wide as
possible. In the circumstances, section 142 (1) of the MCA does not
impose a limit on the number of magistrates who may try a case.

The
learned Deputy DPP has conceded, because recording pleas is part of trial.
However, he contended that that did not nullify the
trial in view of the
interpretation of section 142 (1) of the MCA put forward by him.


We
agree with the submission of the learned Deputy DPP regarding s.142 (1) of the
MCA. In our considered opinion, the interpretation
of the section made in the
case of Eustance vs The Republic (supra) is too narrow. Stroud's Judicial
Dictionary of Words and Phrases,
4th edition volume 1 on page 145 defines the
word "Any" as follows:

(1) "Any" is not confined to a plural sense (Eaton v. Lyon, 3 Ves. 694). (2)
"Any" is a word which excludes limitation or qualification
(per Fry
L.J., Duck v. Bates, 12 Q.B.D. 79); "as wide as possible" (per Chitty
J., Beckett v. Sutton, 51 L.J. Ch.
433). A remarkable instance of this wide
generality is furnished in Re Farquhar (4 Notes of Ecc. Cases, 651,652, cited
Wms. Exs.),
wherein the words "any soldier" etc. (Wills Act 1837 (c. 26), s.
11), were construed as including minors, so that soldiers and seamen,
within
that section, can make NUNCUPATIVE wills though under age. So, a power in a
lease, enabling the lessor to resume "possession
of any portion of the premises
demised, "enables him to resume all (Liddy v. Kennedy, L.R. 5 H.L. 134) so a
notice of an extraordinary
meeting (Companies Clauses Consolidation Act 1845
(c.16), s. 70-see now Companies Act 1948 (c.38), Sched. I, reg.96, "to remove
any
of the present directors," justifies a resolution to remove them
all).

In our view, the expression "any magistrate" at the beginning of
s. 142 (1) of the MCA, does not mean only one magistrate, but many
magistrates.
It follows that any number of magistrates can hear and record the whole or any
part of evidence in a trial, ending with
one who gives judgment where
applicable. The section itself provides a safeguard against injustice which may
arise from a trial
conducted by a succession of magistrates. That safeguard is
that a succeeding magistrate on his / her own initiative, or on application
by
the accused person, may recall witnesses or any of them, and re-hear the
evidence.

We do not think that the use of the expression "the second magistrate" in
paragraph (a) of the proviso to s.142 (1) indicates any
intention on the part of
the legislature to limit the application of the section to only two magistrates.
The expression is equivocal.
It is significant that in Eustance's case (supra)
the court was careful to say that it did not base its decision on that
expression.

There are many reasons why magistrates who commence trial may
not complete the hearing of cases and have to be succeeded by other
magistrates.
The cause may be administrative, illness or death, transfer to other stations or
other reasons. Consequently, if only
two magistrates can try a case, it means
that only one magistrate may take over a case from the one who has commenced the
trial.
This would bog down trial of cases in magistrate's Courts. The present
situation of backlog of cases would go from bad to worse.
In our opinion in
Eustance v Republic (supra) the interpretation put on the Tanzanian Statutory
provisions was too restrictive.
With the greatest respect to the distinguished
Court of Appeal for East Africa, we are not persuaded to apply the same
interpretation
to s.142 (1) of the MCA of Uganda. Our view is that any number of
magistrates as necessary may hear and record evidence in a trial
of a case
throughout its progress. What matters is to ensure that the accused person is
not thereby prejudiced by applying the proviso
where appropriate. In the
circumstances, ground one of the appeal must fail.

Under ground 2 of the
appeal, the appellant's learned counsel criticized the Court of Appeal for
upholding the learned trial judge
in taking the plea of guilty by Andrew Okello,
A2, as evidence against the appellant. Learned counsel contended that this was
an
error in law, and relied on the case of Frederic Moore V.R. (1956). 40, Cr.
Appeal Report, 50 for his proposition. Learned counsel
prayed for the appeal to
be also allowed on this ground.

In his submission under ground 2 of the appeal, the learned Deputy DPP, said
that the cases of conspiracy are different from other
cases, because one person
cannot conspire alone. If a co-accused on a charge of conspiracy is acquitted,
it follows that the other
accused must also be acquitted. Learned counsel relied
on R V. Shannon (1974) 2, ALLE 1009, at 1020 and 1021. In the instant
case A2 pleaded guilty to conspiracy and a full trial of the appellant followed.
In her judgment the learned trial
magistrate said that although Okello A2
pleaded guilty of conspiracy, with which the appellant was jointly charged with
him, Okello's
plea of guilty could not and would not in any way prejudice the
appellant since criminal liability is personal. The prosecution has
the burden
to prove its allegations against each accused person beyond reasonable doubt. In
the instant case, the prosecution had
to prove that the appellant conspired with
Okello to commit the offence charged. This was regardless of the fact that
Okello pleaded
guilty to the charge. The learned trial magistrate therefore, did
not rely on the plea of guilty by Okello to convict the appellant.
The learned
Deputy DPP however conceded that the Court of Appeal misdirected itself to say
that Okello's plea of guilty should be
taken into account against the appellant.
Such a misdirection, however, did not prejudice the appellant because there was
other evidence
which amply supported conviction of the appellant. He contended
that this ground of appeal, should therefore fail.

This is what the Court of Appeal said in this connection:

"By changing his plea of guilty, agreeing with the facts has narrated and
showing remorse, Okello must have agreed to kill the complainant.
We do not
agree with counsel for the appellant that the plea of guilty should not have
been relied on to convict the appellant. It
could not be ignored but considered
together, with all the evidence on record. Okello voluntarily changed his plea
of not guilty
to that of guilty and did not retract it, as the appellate judge
rightly observed. The only reasonable inference to draw was that
Okello agreed
with the appellant to kill the compliant."

With respect, we are unable to agree with the learned Justices of Appeal that
Okello's plea of guilty could not be ignored as against
the appellant. In our
view this was misdirection, because Okello's plea of guilty should not have been
allowed in any way, to prejudice
the appellant. Criminal responsibility is
personal to an individual, even in the case of conspiracy. This view is
supported by the
House of Lords decision in R. V Shannon (supra). In that
case the respondent and T were charged on an indictment with having conspired
together dishonestly to handle stolen goods.
The respondent pleaded guilty to
the charge. There was no evidence that he did not appreciate and understand what
he was doing when
he did so. He was sentenced to four years imprisonment. T,
pleaded not guilty (i) To the conspiracy charge and (ii) To a Count charging
him
with handling stolen goods. The jury were unable to agree on their verdict and T
was retried. A few days later, T was found not
guilty of handling stolen goods.
The prosecution offered no evidence against him on the conspiracy charge and a
formal verdict of
not guilty was entered in that Count. The respondent thereupon
appealed, contending that as T had been found not guilty of conspiring
with him,
his own conviction and sentence following his plea of guilty to conspire with T
could not stand. The Court of Appeal, in
purported exercise of its power under
s.2 (1) of the Criminal Appeal Act, 1968, allowed the appeal and quashed the
respondent's conviction.
The Crown appealed. It was held by the House of Lords
that the appeal would be allowed and the respondent's conviction restored for
the reasons, inter alia, that where one or two alleged conspirators had been
fairly and properly tried and, on the evidence adduced,
rightly convicted, there
was no reason why his conviction should be invalidated if for any reason the
other conspirator was acquitted
at a subsequent trial. Accordingly just as the
respondent's conviction on his own plea of guilty was not relevant to (and
therefore
not admissible evidence to prove) T's guilt, so was T's acquittal
irrelevant to the respondent's conviction.

In the instant case, the learned trial magistrate made a thorough evaluation
of the evidence as a whole, from both the prosecution
and the defence, and came
to the conclusion that the prosecution had discharged the burden of proof to the
required standard. She
was satisfied beyond reasonable doubt that the appellant
committed the offence with which he was charged with Andrew Okello, A2.
The
learned trial magistrate did not rely on Andrew Okello's plea of guilty. She
acted on other prosecution evidence, which was sufficient
to convict the
appellant. The findings of the learned trial magistrates were upheld by the
learned appellate High Court Judge. The
learned Justices of Appeal agreed with
this when they said in their judgment:

"In agreement with
Mr.Byabakama, there is over whelming evidence to prove the agreement; to show
that the purpose of the agreement was
to kill the complainant and that it was
the appellant who masterminded it. As can be seen from the record the appellate
judge confirmed
the findings of the trial judge in the credibility of the
prosecution witnesses including PWl, Ndide, the appellant's accountant,
PW2, Sgt
Nsubuga, PW3, Jumba, the appellant's driver and PW4, Andrew Odeke who were
supposed to carry out the mission. We agree
with both Courts that PWl, Ndide,
was a truthful witness and heard the appellant making the agreement with Andrew
Okello and Odeke.
He was not part of he plot, but came to prove of it (sic) as
he was employed by the appellant. We are satisfied that the first meeting
held
at the Railways Goods shed Kampala connected the appellant with the offence. In
fact it was at that meeting that the offence
was completed."



It
is clear, therefore, that inspite of what the learned Justices of Appeal said to
the effect that Andrew Okello's plea of guilty
should be taken into account
against the appellant, they were satisfied that there was other prosecution
evidence which proved beyond
reasonable doubt the appellant's guilt of the
offence he was charged within in this case.

We agree with the Learned Justices of Appeal in this regard.

In the
circumstances, the misdirection by the Court of Appeal to which we referred
earlier in this judgment, did not cause a failure
of justice.

The second ground of appeal must, therefore, fail. In the result, this appeal
is dismissed, and it is ordered that the appellant's
bail be and is here by
cancelled. He must be taken into custody immediately, to resume serving his term
of imprisonment.

Dated at Mengo this 27th day of October
2003.

A.H.O Oder
JUSTICE OF SUPREME COURT

A.N. Karokora
JUSTICE OF SUPREME COURT

J.N. Mulenga
JUSTICE OF SUPREME COURT

G. W. Kanyeihamba
JUSTICE OF SUPREME
COURT

C.M.Kato
JUSTICE OF SUPREME COURT