Wakilii

Uganda v Nsubuga & Another (Criminal Appeal 92 of 2018)

Supreme Court · [2021] UGSC 60 · 2021 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal by the State to the Supreme Court against a Court of Appeal decision nullifying the conviction and ordering a retrial
Decision
Appeal allowed; Court of Appeal orders set aside; conviction and sentence of the trial court reinstated; respondents to commence serving their sentence

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Cited — treatment unverified cited in 8 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court held that the requirement under section 51(1) of the Trial on Indictments Act to plead to an amended indictment, though couched in the word "shall", is not invariably mandatory; whether it is mandatory or directory depends on legislative intention and the consequences of non-compliance. Because the amendments concerned only the dates (falling within the original period) and the figure of revenue loss, they did not go to the root of the respondents' case, and the respondents — who had pleaded not guilty — suffered no miscarriage of justice. Applying article 126(2)(e), the procedural anomaly was overlooked in favour of substantive justice. The trial was therefore not a nullity, the retrial was wrongly ordered, and the appeal was allowed.

Facts

The respondents were tried at the Anti-Corruption Division of the High Court on counts under the Computer Misuse Act, 2011 and the East African Community Customs Management Act. During the trial the indictment was amended in two respects: the period of the offences was refined from "2010–2012" to "15 April 2011 to June 2012", and the figure for revenue loss was increased from Shs 2,164,833,894 to Shs 2,461,447,275.78. Both counsel were present and raised no objection, and the trial judge allowed the amendment. The respondents, who had earlier pleaded not guilty to all counts, were not called upon to plead to the amended indictment. The trial proceeded, witnesses were heard, and the respondents were convicted and sentenced. The issue of the unpleaded amendment arose only afterwards. On appeal, the Court of Appeal held the conviction a nullity and ordered a retrial, prompting the State's appeal to the Supreme Court.

Issues

  1. Whether the conviction and sentence of the respondents, based on an amended indictment to which they did not plead, was a nullity.
  2. Whether the requirement under section 51(1) of the Trial on Indictments Act to call upon an accused to plead to an altered indictment is mandatory or directory.
  3. Whether the failure to take plea to the amended indictment occasioned a miscarriage of justice to the respondents.
  4. Whether the Court of Appeal was right to order a retrial in the circumstances.

Orders

  • Appeal allowed.
  • The decision and orders of the Court of Appeal are set aside.
  • Bail cancelled.
  • The orders of the trial court are reinstated.
  • The respondents are to start serving their sentence.

Key headnotes

Criminal Procedure — Amendment of Indictment — Failure to Plead to Amended Indictment
Failure to call upon an accused to plead to an amended indictment under section 51(1) of the Trial on Indictments Act does not automatically render the trial a nullity where the amendment does not go to the root of the case and occasions no miscarriage of justice.
Statutory Interpretation — Mandatory vs Directory Provisions — Meaning of "shall"
The word "shall" in a statutory provision is prima facie mandatory, but may be construed as directory depending on the intention of the legislature and the consequences attaching to non-compliance; the presence or absence of a sanction is not a conclusive test.
Constitutional Law — Administration of Justice — Article 126(2)(e) — Substantive Justice over Technicalities
Courts are enjoined by article 126(2)(e) of the Constitution to administer substantive justice without undue regard to technicalities, and a procedural irregularity that occasions no miscarriage of justice may be overlooked in favour of substantive justice.
Criminal Procedure — Retrial — When a Retrial is Appropriate
A retrial ought not to be ordered where the original trial occasioned no miscarriage of justice.
Appeals — Second Appellate Court — Issues Not Raised in the Courts Below
An appellate court will not, as a general rule, consider an argument raised for the first time on appeal which the lower courts had no opportunity to determine.

Legislation cited (20)

  • Trial on Indictments Act, Cap 23 s.20(2)
  • Trial on Indictments Act s.50
  • Trial on Indictments Act s.51(1)(a)
  • Trial on Indictments Act s.51(1)
  • Trial on Indictments Act s.60
  • Trial on Indictments Act s.139
  • Computer Misuse Act 2011 s.12(2)
  • Computer Misuse Act 2011 s.12(3)
  • Computer Misuse Act 2011 s.15(1)
  • Computer Misuse Act 2011 s.19
  • Computer Misuse Act 2011 s.20
  • Computer Misuse Act 2011 ss.9, 10, 11
  • Computer Misuse Act 2011 s.28(3)
  • Computer Misuse Act 2011 s.28(8)
  • East African Community Customs Management Act s.203(e)
  • Magistrates Courts Act s.168
  • Constitution of Uganda art.28(3)(b)
  • Constitution of Uganda art.44
  • Constitution of Uganda art.126(2)(e)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 32(1)

Cases cited (18)

  • Francis Masaba v Uganda (Criminal Appeal No. 24 of 1994)
  • David Irungu Marage and Anthony Kariuki Kareri v Republic (Criminal Appeal No. 184 of 2004)
  • Benjamin Kariuki Wairimu v Republic (Criminal Appeal No. 217 of 2008)
  • Peter Gachigwa Migwi v Republic (Criminal Appeal No. 174 of 2007)
  • NNC v Republic (Criminal Appeal No. 46 of 2017)
  • Rev Father Santos Wapokra v Uganda (Criminal Appeal No. 204 of 2012)
  • Zachary Kataryeba & 3 others vs. Uganda (1977) KALR 31
  • Adan vs. Republic (1973) EA, 445
  • Makula International vs. Emmanuel Cardinal Nsubuga (1982) HCB 11
  • Laban Koti vs. Republic, (1962) EA 439
  • James Rwanyarare & Another v Attorney General (Constitutional Petition No. 11 of 1997)
  • NSSF & Another v Alcon International Ltd (Civil Suit No. 15 of 2009)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Areet Sam v Uganda (Criminal Appeal No. 20 of 2005)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Sitenda Sebalu v Sam K. Njuba and the Electoral Commission (Election Appeal No. 26 of 2007)
  • Kampala Capital City Authority v Kabandize & 10 Others (Civil Appeal No. 13 of 2014)
  • Bitamisi Namuddu v Rwabuganda Godfrey (Civil Appeal No. 16 of 2014)
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.