[1953] EACA 37
The fundamental reasoning of the court was that the magistrate's decision to call a witness after the defence had closed its case was not justified by any unforeseen development arising from the accused's case. The court emphasized that such powers should be exercised only in exceptional circumstances to prevent...
Source-derived case information.
- Citation
- [1953] EACA 37
- Parties
- Appellant: Wambuga s/o Njaggi and another; Respondent: Regina
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 42 of 1952 ; Criminal Appeal No. 43 of 1952
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeals_allowed
- Judges
- Bourke J, Hearne CJ
- Legal Topics
- Calling Witnesses by Court, Official Corruption, Post Defence Evidence, Judicial Discretion, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wambuga s/o Njaggi and another
Appellant
Regina
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the court was justified in calling a witness after the defence had closed its case.
- 2 Whether the calling of the witness resulted in injustice to the accused.
- 3 Whether the powers under section 150 of the Criminal Procedure Code were properly exercised.
Ratio Decidendi
The fundamental reasoning of the court was that the magistrate's decision to call a witness after the defence had closed its case was not justified by any unforeseen development arising from the accused's case. The court emphasized that such powers should be exercised only in exceptional circumstances to prevent injustice, specifically where something arises ex improviso that could not have been anticipated. In this instance, the calling of the witness was not warranted by these considerations and resulted in injustice to the appellants. Consequently, the convictions and sentences were set aside and the appeals allowed.
Court Disposition
appeals_allowed
Orders
- Convictions and sentences set aside.
Full Case Text
Judgment text and source record
15 paragraphs
# APPELLATE CRIMINAL
### Before HEARNE, C. J. and BOURKE, J.
## WAMBUGA s/o NJAGGI AND ANOTHER (*Appellants*)
#### $\mathbf{1}$
# REGINA (Respondent)
## Consolidated Criminal Appeals Nos. 42 and 43 of 1952
Criminal Law—Section 150, Criminal Procedure Code—Power of Court to call for and examine a witness—Calling witness by the Court after defence has been closed—Not *ex improviso*—Whether injustice to accused. $\sqrt{ }$
The two accused, who were Tribal policemen, were charged contra section 93 (1) of the Penal Code with official corruption in that they accepted bribes. at Kagumo Market. The accused, at their trial, gave evidence on oath and called witnesses. One of these, a chief, gave evidence which the magistrate did not accept, to the effect that the charge could not be true. The magistrate was, according to his judgment, at the close of the defence case, prepared to find the charge proved, but an element of doubt remained in his mind for he elected to call a person mentioned by one of the accused as being present at the time of the alleged commission of the offence, not called as a witness to give evidence. On the strength of that evidence the magistrate held the charge proved beyond any doubt. The Crown did not support the conviction.
Held (18-4-52).—The powers of the court to call a witness after the case for the defence has been closed should be limited to those cases where something has arisen *ex improviso* on the part of the accused, which human ingenuity could not foresee lest injustice be done. The calling of the witness was not justified by these considerations. An injustice having been done to the appellants the convictions must be quashed.
Appeals allowed.
Le Gallais, Crown Counsel, for the Crown.
Appellants absent, unrepresented.
JUDGMENT.—The Crown does not support the conviction.
As we pointed out in the last appeal (Mr. Wilkinson was also the magistrate) in order that injustice should not be done to an accused, the calling of a witness by the court after the case for the defence has been closed should be limited to the cases where something has arisen *ex improviso* on the part of the accused which human ingenuity could not foresee. We think that in this case an injustice was clearly done to the appellants by the calling of the witness Kasinga when the defence had been closed. It was certainly not justified by the considerations we have mentioned.
Appeals allowed. Convictions and sentences set aside.