[2020] UGCA 2085
The absence of plea taking in the trial court proceedings constituted a fundamental breach of the appellants' right to a fair trial as guaranteed by Article 28(3)(b) of the Constitution of Uganda. The record showed no indication that the appellants were ever informed of the nature of the offence or given an...
Source-derived case information.
- Citation
- [2020] UGCA 2085
- Parties
- Appellant: Tabo Abubakari; Appellant: Wandera Lukeman; Appellant: Nambiro Shaban Wamaghe; Respondent: Uganda
- Court
- Court of Appeal of Uganda
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 16 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- Cheborion, JA, Egonda-Ntende, JA, Kibeedi, JA
- Legal Topics
- Murder, Plea Taking, Fair Trial Rights, Nullity of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabo Abubakari
Appellant
Wandera Lukeman
Appellant
Nambiro Shaban Wamaghe
Appellant
Uganda
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants ever pleaded to the charges for which they were tried, convicted and sentenced.
- 2 Whether the absence of plea taking rendered the trial a nullity.
- 3 Whether a re-trial should be ordered in the circumstances.
Ratio Decidendi
The absence of plea taking in the trial court proceedings constituted a fundamental breach of the appellants' right to a fair trial as guaranteed by Article 28(3)(b) of the Constitution of Uganda. The record showed no indication that the appellants were ever informed of the nature of the offence or given an opportunity to plead, rendering the entire trial a nullity. The court relied on established precedent that a trial without a plea is void. Given the unique circumstances, including the passage of time since the alleged offence, the period already served by the appellants, and the fact that the mistrial was not their fault, the court declined to order a re-trial and instead ordered a...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The proceedings and conviction are quashed and sentences set aside.
Full Case Text
Judgment text and source record
40 paragraphs
### THE REPUBLIC OF UGANDA
## IN THE COURT OF APPEAL OF UGANDA AT MBALE
# (Coram: Egonda-Ntende, Barishaki, and Kibeedi, JJA)
#### **CRIMINAL APPEAL NO.16 OF 2016**
(HCCR Case No.57 of 2014)
#### **BETWEEN**
A.1 HAJJI ELIASA NAMUNYU (RIP)
A.2 HAJJI MALIKI WANAMBILI (RIP)
A.3 TABO ABUBAKARI:::::::::::::::::::::::::::::::::::
A.4 WANDERA LUKEMAN
$\mathcal{L}_{\text{max}}$
A.5 MUSIHO UBAIDI (RIP)
A.6 NAMBIRO SHABAN WAMAGHE
#### **VERSUS**
UGANDA:::::::::::::::::::::::::::::::::::
#### JUDGEMENT OF THE COURT
The appellants appealed to this court against the conviction for murder contrary to Sections 188 and 189 of the Penal Code Act, cap 120 and the sentence of 37 years' imprisonment that was handed down to each one of them by the High Court of Uganda sitting at Mbale.
When the appeal came up for hearing, court was informed that A1(Hajji Eliasa Namungu), A2 (Hajji Maliki Wanambili) and Musiho Ubaidi had passed on. That left only A3(Tabo Abubakari), A4 (Wandera Lukeman) and A6 (Nambiro Shaban) to continue with the appeal.
At the trial before us the surviving appellants were represented as follows:
- Counsel Obonyo Job For A3 (Tabo Abubakari); and - Counsel Kyabakaya For A4 (Wandera Lukeman) and A6 (Nambiro Shaban Wamaghe).
On the other hand, the respondent was represented by Mr. Peter Mugisha, a State Attorney.
Both the appellants and respondents filed written submissions and we reserved our judgement on notice.
On perusing the record of proceedings of the trial court, there was no indication whatsoever that the appellants had ever pleaded to the charges for which they were tried, convicted and sentenced.
From the record of proceedings, on 27.04.2015 when the trial of the case started, it is indicated that the proceedings started by both counsel for the prosecution and the accused tendering into court documents by agreement. Thereafter court started hearing the oral testimonies of the prosecution witnesses.
In Criminal Appeal No.204 of 2012, Rev. Fr. Santos Wapokra Vs Uganda (Court of Appeal Unreported), it was held that plea taking is a fundamental principle of a fair trial as enshrined in Article 28(3)(b) of the constitution of Uganda which provides:
"Every person who is charged with a criminal offence shall ... be informed immediately, in a language that the person understands, of the nature of the offence".
Further, it was stated that where an accused does not plead to a charge, then the trial is a nullity.
We therefore allow this appeal, quash the proceedings and conviction and set aside the sentences.
We have considered whether in the circumstances of this case, it would be just to order a re-trial. We are of the view that in arriving at any decision, each case must be decided on the basis of its unique facts and circumstances.
The offences for which the appellants were tried under the nullified proceedings were alleged to have been committed almost eight years ago (in 2012). The appellants spent three years on remand and have now served five years out of the sentences of imprisonment handed down to them by the High Court. The mistrial was not the appellants' fault.
In the result we decline to order a re-trial. We order a stay of prosecution and direct immediate release of the appellants.
We so order
Dated at Mbale this OBth Day of Angus 2020
Hon. Justice Fredrick Egonda-Ntende
**Justice of Appeal**
Amingri
Hon, Justice Barishaki Cheborion
**Justice of Appeal**
$cileed$
**Justice of Appeal**