[2024] UGCA 119

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT JINJA

[Coram: Geoffrey Kiryabwire JA, Muzamiru M. Kibeedi JA, Monica Mugenyi, JJA]

# CRIMINAL APPEAL No.0014 OF 2015

(Arising from High Court Criminal Session Case No 252 of 2012 at Jinla)

## BETWEEN

NGOBI GERALD APPELLANT

# AND

UGANDA RESPONDENT

(An Appeal from the Judgment of the High Court of Uganda Lady Justice Catherine Bamugemereire J delivered on 13th November 2014)

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# JUOGMENT OF THE COURT

## lntroduction

The Appellant was indicted and convicted of the offence of Aggravated Defilement Contrary to Sections 129 (3) (4) (a) of the Penal Code Act

#### The Facts

on the 23rd July 2012, the Appellant (29 years of age) in Buguwa Zone Kawala Parish Balawoli sub county in Kamuli District performed a sexual act on "TC" (names withheld) a 9-year-old boy. The Appellant was then apprehended and tried for the offence.

## Decision of the Trial Court

The Trial Judge tried, convicted and sentenced the Appellant to 49 years' imprisonment. Dissatisfied, the Appellant appealed against conviction and sentence on the following grounds: -

- '1. That the learned trial Judge erred in law and fact when she failed to sum up the law and evidence to assessors which occasioned a miscarriage of justice. - 2. The learned trial Judge erred in law and fact when she imposed a manifestly harsh and excessive sentence against the appellant.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by tt/r. Daniel Mudhumbusi and the Respondent by Ms. Samalie Wakhooli Assistant DPP.

The parties Sought the leave of Court to adopt their wrltten submissions as their legal arguments in this Appeal which leave was granted.

## Powers of an Appellate Court

This is a first Appeal. We are alive to the duty of a first appellate Court which was espoused in the case of Kifamunte Henry V Uganda SCCA No 10 of 1 997 to reappraise all the evidence at trial and come up with our own inferences of law and fact.

On the ground of contesting a sentence that has been passed, we also alive to the decision in Ogalo s/o Owoura v R (1954) 21 EACA 270 where the Court held: -

"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter ^a sentence on the mere ground that if lhe members of the court had been trying

ti

the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe penalties and lesser offences in terms of aggravation attracting less severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor..."

We shall apply the above principles to this appeal.

Ground No 1: That the learned trial Judge erred in law and fact when she failed to sum up the law and evidence to assessors which occasioned a miscarriage of justice.

#### **Submissions of Appellant**

Counsel for the Appellant argued that the learned trial Judge failed to sum up the law and evidence to assessors as required under Section 82 (1) of the Trial on Indictment Act (TIA). Counsel submitted that even though two assessors were sworn in at the beginning of the trial, there is no evidence on record whether any summing up was done to the assessors or that there are notes to that effect that the trial Judge made.

Counsel further argued that this omission to sum up to the assessors renders the whole trial a nullity. In this regard we were referred to the decision in Sam Ekolu V Uganda [1995] UG SC 7. Counsel further referred us to this Court's decision in Adiga Johnson David V Uganda CA No 157 of 2010 (CA) where it was held that the wording in Section 82 (1) of the TIA was couched in mandatory terms and was part of the process of a fair trial expected under Article 28 of the Constitution of Uganda.

Counsel submitted that this omission occasioned a miscarriage of justice which made the proceedings illegal and that this Court should therefore quash the conviction and sentence of the Appellant.

### **Submissions of Respondent**

Counsel for the Respondent opposed the ground.

Counsel argued that the correct procedure was followed however the record of the summing up was missing on the Court file and could not be reconstituted. That this anomaly was not the fault of the Respondents or the victim of the crime. She submitted that it is the duty of the Court to maintain a full record of the proceedings.

Counsel further referred us to Section 139 (1) of the TIA which provides: -

"subject to the provisions of any written law, no finding, sentence or order passed by the High court shall be reversed or altered on appeal on account of any error. omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has in fact occasioned a failure of justice".

We were also referred to Section 139 (2) of the TIA which provides: -

"... In determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings."

Counsel argued that the omission of the record of the summing up to the assessors did not occasion a failure of justice and there is nothing on record to show that the Appellant or his Counsel raised any objection regarding the failure to sum up to the Assessors.

Counsel also argued that under Section 82 (2) of the TIA provides that whereas on the one hand, the opinion of the Assessors is mandatory on the other hand, the opinion is not binding on the trial Judge. Counsel argued that even though the section provides $that: -$

"...the Judge shall then give his or her judgment, but in so doing **shall** not be bound to conform with the opinions of the assessors..." (emphasis ours)

Counsel argued that the reference to the word "shall" in the section was not mandatory in nature. In this regard we were referred to the cases of Uganda V Gaster Nsubuga & anor CA No. 92 of 2018 (SC) and Kampala City Council V Kabandize & 10 ors CA No 13 of 2014 (SC).

Counsel prayed that this ground be dismissed.

#### **Findings and Decisions of Court**

We have considered the submissions of both Counsel for which we are grateful. The first Ground revolves around a missing record on the summing up by the trial Judge to the Assessors. We shall start by reviewing the law on missing court records and should be done if the said records cannot be found.

# Missing records on summing up to the Assessors

Sections 82 (1); (2) and (3) of the TIA deals with summing up to assessors and provides: -

- $\cdots$ - 1. When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge **shall take a note** of his or her summing up to the assessors. - 2. The judge shall then give his or her judgment, but in so doing shall not be bound to conform with the opinions of the assessors. - 3. Where the judge does not conform with the opinions of the majority of the assessors, he or she shall state his or her reasons for departing from their opinions in his or her judgment..." (emphasis ours)

This section has been canvassed in many judgments. In Bakubye & anor V Uganda of 2015 (SC) the Supreme Court held: -

"We agree with the submission of the appellants that the provision is couched in mandatory language. The presiding judge is duty bound to do the summing up and that duty cannot be delegated..."

In this Appeal, the Record of Appeal at page 7 thereof shows that Mudhaba Michael and Noah Kate were chosen as Assessors. The record also shows that the Assessors sat through the trial. It is important that the trial court as a matter of good practice records how the Assessors are chosen, sworn in and participate at the trial. In this Appeal the record does not show the trial Judge's notes of summing up to the Assessors. It is the duty of the trial Court to record the substance of the summing up to the Assessors as it is the only way for an appellate Court to determine whether the summing up was properly done. The absence of this record of the trial Judge's summing to the Assessors is therefore a fundamental one that goes to tenants of a fair trial. Whereas questions are now coming to the fore as to legal significance of assessors in our criminal justice system, their presence continues to be a fundamental part of the procedure and process of criminal trials in Uganda as can be deduced from the decisions from the Supreme Court (see Bakubye et al Supra). Such a fundamental

procedure at a trial cannot therefore be viewed as an "error, omission, irregularity or misdirection in the summons" within the meaning of section 139 (2) of the TIA. We therefore agree with the submissions of Counsel for the Appellant that the omission of the summing up notes was fatal to the outcome of the trial.

#### Other missing parts of the record.

As part of our duty to reappraise all the evidence at trial and come up with our own inferences of law and fact we also noted other areas of the Record of Proceeding that are incomplete.

At page 2 of the record of proceedings, the trial Judge after two previous adjournments of the Hearing had this to say: -

"... Considering that the State has up to now failed to proceed this Court finds this a proper case to exercise its jurisdiction to dismiss. The Charges against the accused are dismissed and the accused is set at liberty unless held on other lawful charge..."

So the trial Judge actually dismissed the charges against the Appellant at the trial Court. Thereafter, the record then shows on the next page (page 3) that trial of the Appellant somehow continues on an undisclosed date with the testimony of Gorrety Nabukali (PW 1) the mother of the victim. The record does not show how and when the charges against the Appellant at the trial Court were reinstated and Appellant charged afresh. It is not clear the record ended up like this. Though we agree with Counsel for the Respondent that it is the duty of court to secure its records, there is no explanation for this lacuna in the record and the numbering of the pages. We therefore do not know without the full record how the Court proceeded in this regard. In any event none of the parties to this Appeal raised this lacuna in the record.

In the recent decision of Rev Father Santos V Uganda 2016 UGCA this Court referencing Article 28 (3) (b) of the Constitution, held that plea taking is a fundamental principle of a fair trial. This is because taking plea serves the purpose of notice of the nature of accusation the accused is expected to answer in the charge sheet.

This Court further citing with approval the High Court decision in Zachary Kataryeba & 3 Others V Uganda [1997] KALR 31 held that where an accused does not plead to a charge then the resulting trial is a nullity. In the Record of Appeal in this matter there is no evidence of reinstatement of the charges against the Appellant together with a fresh plea taking. The record simply shows that the trial of the Appellant continued after the charges against him had been dismissed which is irregular and illegal.

Secondly, the record of proceedings ends at Page 30 on the 13^th November, 2014 with the Judgment of the trial Judge. There is no record of the sentencing proceedings thereafter where the period on remand of the Appellant would have been taken into account in accordance with Article 23 (8) of the Constitution. Instead, at page 35 of the Record is the Warrant of Commitment on Sentence of Imprisonment [S 298 (1) CPC] dated 13^th November, 2014. It is as a result of the said Warrant in the Record that we first time find out that the Appellant was sentenced to 42 years of imprisonment. This lacuna in the record was also not pointed out by any of the parties to this Appeal.

In the Supreme Court Decision of Rwabugande Moses V Uganda Criminal Appeal No 25 of 2014 [2017 UGSC 8] referred to Article 23 (8) of the Constitution provides: -

"... Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment. (Emphasis ours) ..."

The Supreme Court then went on to hold that: -

"... A sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision..."

Clearly the record of this Appeal is as incomplete as it is embarrassing.

The question now is what do with an incomplete record of Appeal? Under the legal authorities, this Court has the option to have the record reconstituted or to Order a retrial.

The leading authority on this point of law is the decision in Fatehali Manji V Republic (1966) E. A. 343 and 344 where it was held that the ordering of a retrial is in the discretion of court and that: -

"... the discretion must be exercised in a judicial manner ... in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should be made where the interests of justice require it and it should not be ordered where it is likely to cause an injustice to the accused person."

$\cdot$

The Manji Decision (Supra) was followed in Luwaga Suleman Alia Katongole vs. Uganda Court of Appeal Criminal Appeal No.858 of 2014, Court of Appeal held that: -

"... in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of the evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake by the trial court for which the prosecution is not to blame. It does not necessary follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it. See Manji V R [1966] EA 343..."

In Obirai V Uganda CA No. 470 of 2015 (CA) following the case of Bakubye (Supra) further held that: -

"... We have reviewed the record and have not seen any evidence of the assessors having taken oath. Indeed, there are even no particulars of the assessors anywhere.

We have further considered the issue of the records. In Lukwago Hussein and others Vs Uganda; Criminal Appeal Nos. 01, 06, 07 and 08 0f 2015, this court considered the problem of the vital parts of the trial court record missing and held that: -

"... In Ephraim Mwesigwa Kamugwa Vs the Management Committee of Nyamirima Primary School (Civil Appeal 2011/101) [19] UGCA Fredrick Egonda Ntende, JA in this Judgment analysed the law on incomplete record on appeal.

"what is the law with regard to an incomplete record of appeal? The law on missing record of proceedings has long been established. Where a record of trial is incomplete by reason of parts having been omitted or gone missing, or where the entire record goes missing, in such circumstances, the appellate court has the power to either order a trial or reconstruction of the record by the trial court."

This Court then held that: -

"... The fact that the trial judge may agree or disagree with the opinion is not material as it is provided for under section 82(2) of the TIA. What is material being that the assessors shall give their opinion after they are asked by the trial judge to do so..."

Looking at the Lukwago Hussein criminal Appeal (Supra) It is clear to us that the issue of missing vital court records cannot be cured by Sections 82 (2) and 139 (2) of the TIA as Counsel for the Respondent DPP argued. A record is the very manifestation that shows that all parties have had an opportunity to be heard. Indeed, Counsel for the Respondent has also submitted that the record cannot be reconstituted which creates another dilemma in this case. This Court is a correctional Court and appeal is determined on the basis of a re-evaluation the record of the trial court. This is impossible with the record.

It is also public knowledge that the trial Judge in this matter left the High Court. This is makes it difficult to reconstitute the Court Record with the help of trial Judge. On the other hand, a full retrial of this matter will create significant injustice to both the victim and the Appellant. Even though the authorities caution that no injustice should be occasioned to the accused person in ordering a retrial, the same consideration should be made to the victim of the crime. In this case the victim is a boy child who was just 9 years old at the offence. The Trauma of reliving his ordeal when he was such a young person cannot be overlooked given that the evidence on record also shows that the victim at the time of the offence had mental health issues. The evidence on record also shows that it was not the first time he was being abused by the Appellant.

Foul play in our opinion to degrade the record is a real possibility in this Appeal. In the matter of Lukwago and 3 others V Uganda Criminal Appeal No 01; 06; 07 and 08 of 2015 [2021 UGCA 140] the Court found that the issue of foul play leading to incomplete records as a matter of great concern for the Judiciary and referred to some instances as of loss of records as "fraudulent leakage". The Court held: -

"... On a more serious note however, fraudulent leakage in the system where records are intentionally lost in order to fail the cause of justice to all is a worrying prospect. It brings the integrity of the justice system under scrutiny. Sadly, all the cases relied on in this judgment are precedents of missing records in most of which sentences are set aside as a direct consequence of missing court records. Whatever the reason might be, for the future and in the interest of justice it is prudent that the Principal Judge reviews all these cases and makes inquiry into the record keeping system to seal any possible leakages of such nature and to get justification on how these records go missing..."¹

https://africanlii.org/articles/2021-11-12/carmel-rickard/judges-ask-are-fraudulent-leakages-responsible-forall-those-missing-court-records accessed 27th December 2023. This vice appears to be growing other countries as well like Zimbabwe, South Africa and Kenya.


^&lt;sup>1</sup> See Judges ask: are 'fraudulent leakages' responsible for all those missing court records?

We agree with this finding as true for this Appeal as well. In the Lukwago Decision (Supra) the Appellants had been charged with Aggravated Robbery contrary to section 285 & 286 (2) Penal Code Act and each sentenced to serve 13 years 2 months and 15 years 2 months' imprisonment concurrently. Vital records including the Judgment, the allocutus, mitigation and sentence were all irretrievably lost. At the time of the time of the said appeal, the Appellants had been in custody for a total of 11 years and one of them had passed away. The Court then held: -

"... It is a well-established maxim of law that delay defeats equity, the appellant's right of appeal has been unjustifiably delayed by the justice system for a period of about 6 years. So, putting into consideration the time already served and the frustration from the delay the conviction and sentence against the appellant are set aside and the appellants are discharged unless held on other lawful grounds..."

We agree that it is the Court's constitutional duty under Article 126 (2) (b) that justice should be not be delayed. The Appellant from the record on file (which is not well written indicating key dates dates) was arrested in late July 2012, charged with aggravated defilement on the 17^th October, 2014 and convicted on the 13^th November, 2014 and sentenced to 42 years in prison. He has therefore been in custody for about 11 years and appeal was heard in March 2023 nine years after conviction. For the reasons stated herein before we are of the considered opinion that with the passage of time, the record of the trial in this matter will not be reconstituted given the multiple gaps therein. A retrial will also create serious hardship to the victim through no fault of his. So like in the **Lukwago case** (Supra) taking into account, the time already served and the frustration from the delay it is in the interest of justice that the conviction and sentence against the Appellant is set aside and the Appellant is discharged unless held on other lawful grounds.

As a consequential Order we direct as was the case in the **Lukwago case** (Supra) that this appeal be brought to the attention of the Principal Judge to further establish ways to curb the loss of vital Court records especially those in the courts that predate the new Electronic Court Case and Management System (ECCMIS) now in place in some courts. Hopefully the digitization of court records will end this vice.

Since this decision resolves the current Appeal, there is no need for us to address the other grounds of Appeal.

## Final Decision.

The foi'going being our findings we now Order and Dlrect -

- 1. This Appeal on the whole succeeds. - 2. The Judgment of the trial Court is set aside. - 3. Exceptionally we shall not in the interests of justice Order a retrial' - 4. The Appellant is hereby set free unless he is held for other charges' - 5. This file be brought to the attention of the Principal Judge so as to establish ways of curbing the loss of court records and fraudulent leakage.

We so order.

At 6t\ \$+ Dated at Jinja this . day of 2024. HON. MR. JUSTICE GEOFFREY KIRYABWIRE f HON. MR. JUSTICE MUZAMIRU MUTANGULA KIBEEDI / -HON. LADY JUSTICE MONICA K. MUGENYI t

-This Judgment was signed before this Judge ceased to hold that office

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