AT THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI; CJ; TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA, JJSC)
CRIMINAL APPEAL NO.27 OF 2003.
CHARLES HARRY TWAGIRA APPELLANT
[APPEAL FROM JUDGMENT OF THE COURT OF APPEAL AT KAMPALA (MUKASA - KIKONYOGO, DO; MPAGI-BAHIGEINE AND KITUMBA, JJA) DA TED 19th AUGUST, 2003 IN CRIMINAL APPEAL NO.169 OF 2002]
REASONS FOR DECISION OF THE COURT
This appeal arises from a decision of the Court of Appeal upholding a revisional order of the High Court, made by Bamwine, J., to the effect that the appellant had no right of appeal against the ruling of the trial Chief Magistrate who at the end of the prosecution case had found that the appellant had a case to answer and therefore should defend himself.
On 11th April, 2005, we heard Mr. Karugaba, counsel for the appellant, briefly since he had filed written arguments and Mr. Byabakama-Mugenyi, Deputy Director of Public Prosecutions, for the respondent. We considered the contents of the written arguments and the record of appeal and concluded that the appeal was incompetent. We dismissed it and promised to give our reasons on notice. We now give those reasons.
This case has had a chequered history. We should give its background. The appellant, Charles Harry Twagira, was charged with the offences of embezzlement, in the first count, and of stealing by an agent, in the second count, in the Buganda Road Chief Magistrate's Court in Criminal Case No.1425/2000. He first appeared in that Court on 12/9/2000. Subsequently, the prosecution led evidence and closed its case. A submission of no case to answer was made on his behalf. The prosecution replied to the submission. On 24/6/2002, the learned Chief Magistrate, Mr. Frank Nigel Othembi, gave a rather detailed 13 page ruling, holding that the prosecution had established a prima facie case against the appellant on both counts and therefore the appellant should be put to his defence. The appellant was dissatisfied with that ruling. He petitioned the High Court under the old sections 339 and 341 (1) (b) and (5) of the residue of the Criminal Procedure Code Act for an order to revise the ruling of the Chief Magistrate on the ground that the Chief Magistrate had misdirected himself when he concluded that there was a case to answer.
On 16/9/2002, Bamwine, J., dismissed the petition holding that: "There is nothing irregular about the procedure adopted by the trial Magistrate so far or any thing
prejudicial to the petitioner on the face of the record to warrant a revisional order."
The learned judge ordered that the trial should continue from where it had stopped. The appellant was dissatisfied with that order and so he appealed to the Court of Appeal. In its judgment dated 19/8/2003, dismissing the appeal, that court held that:
"We entertain no doubt in this case, there was a prima facie case against the appellant and some explanations as a matter of common sense were required as observed by the Chief Magistrate."
The appellant was still dissatisfied with that judgment. So he lodged a notice of appeal intending to appeal to this Court.
By virtue of sub section (5) of the S. 5 of the Judicature Act, the appellant can only appeal against the judgment of the Court of Appeal in respect of a criminal case tried by a Chief Magistrate either with a certificate of the Court of Appeal that the matter raises a question or questions of law of great public or general importance or if this court in the exercise of its overall duty to see that Justice is done, considers that the appeal should be heard. The appellant sought certificate from the Court of Appeal to appeal to this Court against the decision of the Court of Appeal. While his application for the certificate of the Court of Appeal was pending in that court, he appears to have been apprehensive about his success in that court for the certificate or of the application being heard early. Furthermore, the appellant suspected that the Chief
Magistrate intended to resume the hearing of the case by 22/9/2003 after Court of Appeal had dismissed his appeal.
To pre-empt the continuation of the hearing of the case and because the application for certificate in the Court of Appeal could not be heard as quickly as desired by the appellant, he instituted in this Court, Criminal Application No.2 of 2003 by which he sought orders of this court, inter alia, that
(a) A stay of proceedings in Buganda Road Criminal Case
No.1423 of 2000...... .., be ordered pending the
determination of this application.
As that Criminal Application (No.2 of 2003) was pending in this Court, the appellant instituted yet another criminal application in this Court (Criminal Application No.3 of 2003), under Rules 1 (3) and 41 of the Rules of this Court and the old Section 6 (5) of the Judicature Statute 1996, seeking for:
"an interim order of stay of proceedings in Buganda Road Criminal Case No.1423 of 2000 Uganda Vs Charles Harry Twagira be ordered pending the final determination of Criminal Application No.2 of 2003"
The last application was presented to Tsekooko, JSC sitting as a single judge ex-parte, because the matter was urgent. The justice heard it and dismissed it on 19/9/2003 mainly on the ground that the appellant had no right of appeal against the order of the Chief Magistrate. The appellant argued the substantive application on 9/2/2005 before the full court. The Court dismissed it because it was prematurely brought to this court while a similar application for a certificate to appeal was pending in the Court of Appeal. Thereafter the Court of Appeal declined to grant the certificate but held that the appellant's appeal to the court itself against the Revisional Order by Bamwine J constituted a first appeal and therefore any subsequent appeal to this Court would be a second appeal which requires no certificate. The appellant took advantage of that opinion and lodged this appeal. He filed seven grounds. We consider it unnecessary to quote those grounds as we are satisfied that the appellant has no right of appeal. We read the written arguments of Mr. Karugaba, counsel for the appellant but we think that they are irrelevant to our decision. We agreed with Mr. Byabakama - Mugenyi, the learned Deputy Director of Public Prosecutions, that the appeal is incompetent. We dismissed it and promised to give our reasons, which we now give. In this judgment we shall refer to the law, as it was when the Court of Appeal decided the application for a certificate.
There were two main reasons for our decision:
The first is that under S.5 (5) [old S.6.5] of the Judicature Act, no appeals from interlocutory rulings of Chief Magistrates and Magistrates Grade 1 are permitted to come to this Court. There is no other law that we are aware of which grants a right of appeal against such rulings. Second, even if such an appeal could be made it could only come to this court with leave as stated earlier in this judgment.
Mr Karugaba contended that we have held in this court that an appellant should not be driven from the judgment seat except in plain and obvious cases. He submitted that the justice of the matter requires that this appeal be heard. With respect, there is no justice that requires that the appeal be heard. In our view, this is an obvious case illustrating that the appeal has no foundation in law and it should not be heard.
The right of appeal of an accused person appearing in a Chief Magistrate's Court is conferred by section 204 of the Magistrates Courts Act, 1970 and section 5(5) of Judicature Act. The appellant is being tried by a Chief Magistrate. In so far as relevant the applicable provisions of section 204 (old S.216) state:
"204 (1) subject to the provisions of any other written law and save as provided in this section, an appeal shall lie,
(a) to the High Court, by any person convicted on a trial by a court presided over by a Chief Magistrate.
(2) any appeal under subsection (1) of this section may be on a matter of fact as well as on a matter of law."
Clearly these provisions do not confer a right of appeal to the High Court in respect of interlocutory orders, i.e., discretionary orders or rulings of the Chief Magistrate during a trial in criminal matters. This may explain why, after the Chief Magistrate's ruling, that the appellant had a case to answer, the appellant chose to seek from High Court a revisional order rather than a decision on appeal.
The appellant relied on S.5(5) of the Judicature Act, for the view that in these proceedings he has a right of appeal to this Court. We do not think so. The provision states, in so far as relevant, that-
"5 (5) where the appeal emanates from a judgment of a Chief Magistrate or Magistrate Grade I in exercise of their original jurisdiction and the accused person ,has appealed to the High Court and the Court of Appeal, the accused , may lodge a third appeal to the Supreme Court with the certificate of the Court of Appeal that the matter raises a question or questions of law of great public or general importance, or if the Supreme Court in its overall duty to see that justice is done, considers that the appeal should be heard."
We agree with the opinion of our brother in his ruling that the word "judgement" referred to in the old S.6 (5) of the Judicature Act has the meaning which Article 257(1) of the Constitution gives. According to the Article,
" Judgment includes a decision, an order or decree of a Court".
In our opinion judgment means a final decision of a Chief Magistrate or Magistrate Grade 1, but not a discretionary order or ruling given in an interlocutory matter such as a finding that there is a prima facie case to answer as the Chief Magistrate did. We would refer to Criminal Appeal No. 397 of 1959 (Mohamed Taki Vs R.), Case No. 107 MB No.7//60 where Lewis J held that the final decision of the Magistrate in that case, that there was no case to answer was one of law giving to the crown a right of appeal. That decision is correct because the accused was acquitted by the trial Magistrate at the close of the prosecution case and.
therefore, the decision of the Magistrate was a final judgment. Later in this judgment we cite other similar cases to the same effect. The reverse is not true. This remains the law even up to now. In our view the decision of the Chief Magistrate, that of Bamwine, J, and of the Court of Appeal are interlocutory decisions and not final decisions.
Mr. Karugaba contended that the appellant had, under Art. 28 of the Constitution, a right to a fair trial. So he should be enabled to pursue his right of appeal to this Court before the trial in the Chief Magistrate's Court is concluded. He argued that it will be unjust for the appellant to suffer a full trial, conviction and sentence before he can challenge the propriety of the trial. Mr Karugaba argued further that a fair trial means more that affording the appellant opportunity to prepare his defence and examine witnesses. In the learned counsel's view, a fair trial must include accussed's right to challenge any adverse finding made in the course of the trial such as wrongful admission of evidence and a flawed finding of a case to answer. According to counsel, in the latter case, putting an accused to his defence denied him an early opportunity for an acquittal.
With due respect to learned counsel, we think that he has stretched the import of a fair trail to unreasonable limits. Accepting his reasoning would make it practically impossible for trial courts to finish any criminal trial in reasonable time. In such a situation, it is conceivable for an accused to launch appeals against every interlocutory order made during the trial which he or she perceives (even incorrectly) to be wrong and thereby render a trial prolonged on frivolous points by appealing on every point of objection. This would unduly undermine procedures, effective trials and would open gates to abuse of the process of court and the due administration of justice.
We are not persuaded by Mr. Karugaba's arguments. A fair trial, or a fair hearing, under Art.28, means that a party should be afforded opportunity to, inter alia, hear the witnesses of the other side testify openly; that he should, if he chooses, challenge those witnesses by way of cross-examination; that he should be given opportunity to give his own evidence, if he chooses, in his defence; that he should, if he so wishes, call witnesses to support his case. In this case, the prosecution had called its witnesses who were cross-examined on behalf of the appellant. The appellant has been asked to give his side of the story. Instead of giving his side of the story, he is challenging the ruling that says he should give his side of the case. Of course the appellant has the right not to say anything in his defence.
Article 28 requires the appellant to be afforded a fair and speed trial. The steps taken so far appear to hinder speeding up his trial.
We are aware of many decided cases which illustrate the practice to be followed in case an accused is dissatisfied with the trial court's ruling that there is or there is no case to answer. That is to appeal at the conclusion of the full trial and include in the grounds of appeal any complaints about wrong finding that there was or there was no case to answer. Examples are Jethwa and Another Vs Republic (1969) EA 459 CA, Republic Vs Wachira (1975) EA 262, Republic Vs Kidasa (1973) EA 368 and Merali Vs Uganda (1963) EA 647.
All these are appeals where the trial magistrates had concluded the trial at the close of the prosecution case by delivering final judgments. In those decisions each appellant had a right of appeal because his case had been concluded by the respective trial Magistrates. This position is now reflected in S.127 of our Magistrates Courts Act. In view of the provisions of section 204 of the Magistrates Court Act 1970 and S.5(5) of the Judicature Act, we are satisfied that the appellant has no right of appeal to either the High Court, the Court of Appeal or this Court.
In our opinion, the Court of Appeal erred in holding that the appeal before it was a first appeal and that therefore the appellant can appeal to this court against that judgment.
We trust that lawyers will study this judgment and refrain from causing unnecessary delays of criminal trials by indulging in strings of appeals which have no legal foundation.
Before leaving this appeal, we wish to make observation on Mr. Karugaba's criticism of the Court of Appeal that it hardly considered the 35 authorities cited by counsel to the court. This was his first ground of appeal in this Court. We do not accept the suggestion that a court is bound to study and pronounce itself upon each and every authority cited by a party to court. Such a course of action would bog down the court. It is the fundamental duty of counsel, or a party to the litigation, to cite a few most relevant authorities to court, highlighting pertinent passages for the members of the court to study. The growing deplorable practice, among members of the Uganda Bar, which must stop, is to throw into court endless lists of cases most of which invariably turn out to be irrelevant to the point calling for decision. The Chief Justice has given a practice direction to this effect and we trust that members of the Bar will study and adhere to it.
For the foregoing reasons, we considered the appeal as incompetent and dismissed it. We order that the trial should resume from where the Chief Magistrate found that there was a case for the appellant to answer. The appellant may exercise any of his rights enshrined in section 128 of the Magistrates Court Act.
Delivered at Mengo this 3rd day of August 2005.
B. J. Odoki
JUSTICE OF THE SUPREME COURT
A. N. Karokora
JUSTICE OF THE SUPREME COURT
J. N. Mulenga
JUSTICE OF THE SUPREME COURT
G. W. Kanyeihamba
JUSTICE OF THE SUPREME COURT