Wakilii

Lubello & 2 Others v Uganda (Criminal Appeal 234 of 2021)

Court of Appeal · [2022] UGCA 310 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First criminal appeal from the ruling of the High Court in revision proceedings
Decision
Appeal dismissed; High Court revisionary order upheld, file remitted to the Chief Magistrate for trial or amendment/withdrawal of charges

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that while section 50(1)(b) of the Criminal Procedure Code Act precludes revision of an order of acquittal, that bar applies only to acquittals procured after a proper trial. Where a Magistrate acquits accused persons who pleaded not guilty without conducting any trial, this is a procedural error on the face of the record which the High Court may cure on revision by remitting the file. The High Court did not reverse the acquittal into a conviction but ordered a proper trial or amendment/withdrawal of charges. On the hearing point, the Court found the appellants had been afforded an opportunity to be heard and, following Jacob Mutabazi, the partial record sufficed. The appeal was dismissed.

Outcome

Appeal dismissed; High Court revisionary order upheld, file remitted to the Chief Magistrate for trial or amendment/withdrawal of charges

Facts

Four accused persons were jointly charged in the Magistrate's Court with possession of un-customed goods contrary to section 200(d)(iii) of the East African Community Customs Management Act 2004. One accused, Gerald Okware, pleaded guilty and was convicted and fined. The other three (the appellants) pleaded not guilty. Their counsel prayed for their acquittal on the basis that Okware had owned up to the offence, and the prosecution raised no objection since no aiding and abetting charges had been preferred. The trial Magistrate granted the application and acquitted the appellants without conducting any trial. The Magistrate subsequently formed the opinion that the acquittal was made in error and forwarded the matter through the Chief Magistrate to the High Court for revision. The High Court set aside the acquittal and remitted the file to the Chief Magistrate for the trial to proceed, with liberty to the prosecution to amend or withdraw the charge. The appellants appealed to the Court of Appeal.

Issues

  1. Whether the High Court erred in law in exercising revisionary jurisdiction to set aside an acquittal handed down by the trial Magistrate.
  2. Whether the High Court set aside the acquittal without affording the appellants an opportunity to be heard, contrary to law.

Orders

  • The appeal is dismissed for lack of merit.
  • The Ruling of the High Court in revision is upheld and shall stand.

Rules and key headnotes

Criminal Procedure — Revision — High Court Jurisdiction over Acquittals under Criminal Procedure Code Act s.50
The statutory bar in section 50(1)(b) of the Criminal Procedure Code Act precluding revision of an order of acquittal applies only to acquittals procured after a proper trial, and not to mere pronouncements of acquittal made after submissions where no trial occurred.
Criminal Procedure — Plea of Not Guilty — Duty to Conduct a Trial before Acquittal
Where an accused pleads not guilty, the court must under section 124(3) of the Magistrates Courts Act proceed to hear the case, and an acquittal entered without a trial or a proper 'no case to answer' determination is a procedural error on the face of the record.
Criminal Procedure — Revision — Scope of High Court's Supervisory Powers under s.48 and s.50
The revisionary jurisdiction conferred on the High Court by sections 48 and 50 of the Criminal Procedure Code Act is supervisory in nature and gives a wide scope to test the correctness, legality or propriety of any finding, sentence, order, or the regularity of proceedings of a magistrate's court.
Fair Hearing — Right to be Heard in Revision Proceedings under CPC Act s.50(2) and Article 28(1)
No order in revision may be made under section 50(2) of the Criminal Procedure Code Act without affording the affected party an opportunity to be heard, consistent with the right to a fair hearing under Article 28(1) of the Constitution.
Appellate Procedure — Missing or Incomplete Records — Proceeding on Partial Record
Where reconstruction of a missing part of the record is impossible but the available material is sufficient to take proceedings to their logical end without prejudice to any party, an appellate court may proceed on the partial record.

Legislation cited (11)

Cases cited (10)

  • Desai vs Warsama (1967) E.A 351
  • Joseph Mduvi Mbuvi vs R [2019] eKLR Criminal Rewision No.4/2019
  • D.P vs Jackson Cherono (2019) eKLR
  • Makula International Ltd Vs His Eminence Cardinal Nsubuga & Another 1982 HCB 11
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Owners of Motor Vessel Lillian "S" vs Caltex Oil (Kenya) Limited [1989] KLR 1
  • Ephraim Mwesigwa Kamugwa v The Management Committee of Nyamirima Primary School (Civil Appeal No. 101 of 2011)
  • East African Steel Corporation Ltd Vs Statewide Insurance Co. Ltd 1998-2000 HCB
  • Nsimbe Godfrey v Uganda (Criminal Appeal No. 361 of 2014)
  • Jacob Mutabazi v The Seventh Day Adventist Church (Civil Appeal No. 88 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Lubello & 2 Others v Uganda (Criminal Appeal 234 of 2021) [2022] UGCA 310 (12 October 2022)
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.