Wakilii

Baigana v Uganda (Criminal Appeal No.08 of 2010)

Court of Appeal · [2016] UGCA 1 · 2016 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the High Court's appellate decision dismissing an appeal against conviction and sentence by the Chief Magistrate
Decision
Appeal dismissed; conviction upheld; fine option revoked and appellant ordered to serve four years' imprisonment and pay compensation with interest

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a second appeal, the Court held that under section 45(1) of the Criminal Procedure Code Act, only matters of law may be raised, and struck out grounds raising fact or mixed fact and law, as well as the ground challenging severity of sentence. On the surviving legal grounds, it held that a confession by a co-accused implicating the appellant was admissible under section 28 of the Evidence Act but was weak evidence; however, the conviction rested on other substantial evidence. It found the first appellate judge had properly re-evaluated the evidence. The appeal was dismissed. The Court revoked the fine option and ordered the appellant to serve the four-year sentence and pay compensation with interest.

Facts

The appellant, an advocate, was jointly charged with a co-accused at the Buganda Road Chief Magistrate's Court with obtaining money by false pretence and convicted in 2008. He was sentenced to a fine of shs. 3,000,000/= or four years' imprisonment in default and ordered to pay shs. 50,000,000/= as compensation to orphan beneficiaries. The case concerned the irregular taking over and handling of a civil suit and disbursement of settlement funds intended for the beneficiaries, who did not receive the money. The trial Magistrate relied on evidence including the appellant's failure to serve notice of change of advocates, reaching a settlement within three days, agreeing to pass on costs and special damages, inconsistencies in the disbursement of money, and the co-accused's charge and caution statement. The appellant's first appeal to the High Court was successful in part. He brought a second appeal to the Court of Appeal challenging the conviction, the use of the co-accused's retracted confession, the re-evaluation of evidence, and the sentence.

Issues

  1. Whether a second appeal from the High Court's appellate decision may be brought on matters of fact or mixed law and fact, contrary to section 45(1) of the Criminal Procedure Code Act.
  2. Whether the trial Magistrate erred in using a retracted extra-judicial confession of a co-accused against the appellant.
  3. Whether the first appellate judge properly re-evaluated the evidence.

Orders

  • The appellant commences to serve the sentence of 4 years imprisonment.
  • The appellant is to pay compensation of shs. 50,000,000/= with interest at 20 percent per annum from the date of sentence of 2nd September 2008 until payment in full.
  • All the money is to be paid to the Registrar of the Court who shall pass it on to the orphans/beneficiaries through their lawyers, Kasirye and Byaruhanga Co. Advocates.
  • Should the appellant fail to pay in full within 7 days from the date of Judgment, the compensation sum with interest may be recovered as a civil debt by the Registrar and/or the beneficiaries' advocates.
  • A copy of the Judgment to be served upon the secretary to the Law Council for possible investigation of professional misconduct.

Key headnotes

Criminal Procedure — Second Appeals — Confined to Matters of Law
On a second appeal from the High Court's appellate decision under section 45(1) of the Criminal Procedure Code Act, an appeal lies only on a matter of law, not including severity of sentence, and not on matters of fact or mixed fact and law; grounds offending this provision must be struck out.
Criminal Procedure — Right of Appeal — Creature of Statute
There is no inherent right of appeal; an appeal is a creature of statute and may only be exercised within the limits prescribed by the relevant statute.
Evidence — Confession of Co-Accused — Admissibility and Weight
Under section 28 of the Evidence Act, a confession by one accused implicating a co-accused is admissible only where the maker implicates himself substantially to the same extent or greater than the others; such evidence is of the weakest nature and cannot, on its own, sustain a conviction of the co-accused because its veracity cannot be tested by cross-examination.
Evidence — Retracted or Repudiated Confessions — Caution Required
A trial court should accept with caution a confession that has been retracted or repudiated, and must be fully satisfied in all the circumstances of the case that the confession is true.
Criminal Procedure — Second Appeal — Duty Limited to Reviewing Re-evaluation of Evidence
On a second appeal, the court is precluded from questioning findings of fact of the trial court where there was evidence to support them; its function is limited to determining whether the first appellate court properly carried out its duty of re-evaluating the evidence.
Criminal Procedure — Appeals — No Stay of Execution
The institution of an appeal does not operate to suspend any sentence or to stay execution, pursuant to Rule 6(2) of the Rules of the Court of Appeal.

Legislation cited (6)

  • Criminal Procedure Code Act (Cap 116) s.45(1)
  • Evidence Act s.28
  • Judicature Act s.11
  • Rules of the Court of Appeal r.66(1)
  • Rules of the Court of Appeal r.66(2)
  • Rules of the Court of Appeal r.6(2)

Cases cited (16)

  • Mitwalo Magyengo v Nedadi Mutyaba (Civil Appeal No. 11 of 1996)
  • Kobusingye vs Nyakaana (2005) EA 110
  • Nalukenge Mildred v Uganda (Criminal Appeal No. 67 of 2008)
  • P.C Wabwire Anthony v Uganda (Criminal Appeal No. 152 of 2009)
  • Attorney General vs Shah No. 4 of [1971] EA P.50
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Swami v King Emperor 1939 1 AER 696
  • UGANDA V KAMUSINI S/o SEKU & 1 1976 HCB 160
  • Oryem Richard and Another v Uganda (Criminal Appeal No. 2 of 2002)
  • Gopa and others vs. R (supra)
  • Ezra Kyabanamaizi and others v R (1962) EA 309
  • Thomas Nkulungira v Uganda (Criminal Appeal No. 168 of 2011)
  • Tuwamoi vs Uganda [1967] EA P.4
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • R. Mohamed Ali Hasham vs. R (1941) 8 E.A.C.A. 93
  • R. vs. Hassan bin Said (1942) 9 E.A.C.A. 62
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.