Wakilii

Rex v Busigo (Criminal Appeal No. 13 of 1945)

East African Court of Appeal · [1945] EACA 19 · 1945 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder in the High Court of Uganda
Decision
Conviction for murder upheld; appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that where a witness who did not give evidence at the preliminary inquiry was called at trial without the statutory notice required by Section 268 of the Uganda Criminal Procedure Code, the omission was curable under Section 340 where the evidence was purely formal and the accused suffered no prejudice. The omission did not occasion a failure of justice because the evidence could neither be impeached nor rebutted, and giving notice would merely have postponed its admission without providing any additional advantage to the defence.

Outcome

Conviction for murder upheld; appeal dismissed

Facts

The appellant was employed as a cook and was to be replaced at the end of September 1944. On 30 September, the ayah prepared meat which she and others ate, becoming violently sick but recovering. The next day, the appellant handed over duties to the new cook after having purchased soup meat the previous day and left it in the kitchen. The new cook prepared soup from this meat for the family. All who ate it fell violently sick and a child died. Post-mortem examination revealed arsenic poisoning. Chemical examination showed arsenic in the child's liver and intestines and in the remains of the meat and soup. A drum containing arsenic solution for dipping hides was kept in the township with a loose cover. The appellant had told his employer and a prospective employer that the ayah would put medicine in food to blame him. Before the poisoning incident, when the ayah saw him eating maize but not meat, he said he would not eat the meat and had seen God. After the family fell ill, he visited Ali's wife and recommended treatment, then left for new employment but did not report and was arrested 26 miles away.

Issues

  1. Whether the omission to give statutory notice under Section 268 of the Uganda Criminal Procedure Code before calling a witness who did not testify at the preliminary inquiry rendered the witness's evidence inadmissible.
  2. Whether the omission to give statutory notice was curable under Section 340 of the Uganda Criminal Procedure Code on the ground that it had not occasioned a failure of justice.

Orders

  • Appeal dismissed.

Rules and key headnotes

Criminal Procedure — Additional Evidence — Notice Requirements — Section 268 Uganda Criminal Procedure Code
Where a witness who did not give evidence at the preliminary inquiry is called at trial without the statutory notice prescribed by Section 268 of the Uganda Criminal Procedure Code, but no objection is raised at trial and the evidence is of a purely formal nature that could neither be impeached nor rebutted, the omission to give notice does not prejudice the accused.
Criminal Procedure — Irregularities — Curable Defects — Section 340 Uganda Criminal Procedure Code
An omission to give statutory notice under Section 268 of the Uganda Criminal Procedure Code before calling a witness at trial is curable under Section 340 when it has not occasioned a failure of justice, having regard to whether objection could and should have been raised at trial.
Evidence — Witnesses — Additional Witnesses — Purpose of Notice Requirement
The object of the practice and procedure requiring notice before calling witnesses who did not testify at preliminary inquiry is twofold: to ensure that relevant evidence is not excluded merely because a witness was not called at the preliminary inquiry, while ensuring that the accused is not placed at an unfair disadvantage by having evidence sprung upon him without reasonable notice that he might otherwise be in a position to impeach or rebut.
Criminal Procedure — Objections — Effect of Failure to Object — Waiver
In determining whether an omission in proceedings is curable under Section 340 of the Uganda Criminal Procedure Code, regard must be had to whether objection could and should have been raised at trial; where no objection was in fact taken, this is a relevant consideration in assessing whether a failure of justice occurred.

Legislation cited (2)

  • Uganda Criminal Procedure Code s.268
  • Uganda Criminal Procedure Code s.340

Full judgment

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

Rex v Busigo (Criminal Appeal No. 13 of 1945) [1945] EACA 19 (1 January 1945)
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.