Wakilii

Rex v Nathu (Criminal Appeal No. 236 of 1948)

East African Court of Appeal · [1949] EACA 32 · 1949 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court of Uganda dismissing appeal against conviction by District Court
Decision
Appellant acquitted and discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that section 317(1) of the Criminal Procedure Code may not be used to allow a prosecution to retrieve a position lost by its own default. Where the prosecution failed to call a necessary witness to establish the chain of custody of an exhibit at trial, the High Court erred in ordering additional evidence to be taken on appeal to fill that gap. The conviction was quashed.

Outcome

Appellant acquitted and discharged

Facts

The appellant was convicted in the District Court at Mbarara of unlawfully dealing in gold contrary to section 99 of the Uganda Mining Ordinance. At trial, the prosecution produced a substance proved to be gold as exhibit 1, but failed to call Sub-inspector Oneyma, who had handled the substance found in the appellant's shop and passed it to a European police officer. This created a gap in the chain of evidence proving that exhibit 1 was the substance found in the appellant's shop. On appeal to the High Court, the learned Judge found it necessary to have additional evidence and under section 317(1) of the Criminal Procedure Code directed the Subordinate Court to take additional evidence strictly limited to the identification of exhibit 1 and its chain of custody. After receiving the additional evidence, the High Court dismissed the appeal against conviction and enhanced the sentence by two months. The appellant then appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether the High Court properly exercised its discretion under section 317(1) of the Criminal Procedure Code in ordering additional evidence to be taken on appeal.
  2. Whether section 317(1) may be used to allow the prosecution to fill a gap in its case caused by its own failure to call necessary evidence at trial.

Orders

  • Appeal allowed.
  • Conviction entered against the appellant in the District Court of Ankole quashed.
  • Sentence of six months' imprisonment set aside.
  • Appellant discharged from his recognizances and set at liberty.

Rules and key headnotes

Criminal Procedure — Additional Evidence on Appeal — Proper Exercise of Discretion
Section 317(1) of the Criminal Procedure Code, which permits a court on appeal to order additional evidence to be taken, must not be used to allow a prosecution to retrieve a position lost by its own default in failing to call necessary evidence at trial.
Criminal Procedure — Additional Evidence on Appeal — Gap in Prosecution Case
Where there is no evidence legally capable of sustaining the charge or where the entire evidence falls short of sustaining the charge, additional evidence should not be taken to fill a gap in the prosecution's case, especially where the prosecution had the means to prove an essential fact at trial but failed or omitted to do so.
Evidence — Chain of Custody — Failure to Establish
Where the prosecution produces an exhibit proved to be a particular substance but fails to establish through evidence the chain of custody linking that exhibit to the accused's possession, the prosecution has not proved an essential element of the charge.

Legislation cited (2)

  • Uganda Criminal Procedure Code s.317(1)
  • Uganda Mining Ordinance s.99

Cases cited (2)

  • Rex v Sirasi Bachumira (3 E.A.C.A. 40)
  • Rex v Yakobo Isairi Busigo (12 E.A.C.A. 60)

Full judgment

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

Rex v Nathu (Criminal Appeal No. 236 of 1948) [1949] EACA 32 (1 January 1949)
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.