[1947] EACA 46
The trial Judge's advice to the unrepresented accused to say nothing, instead of complying with section 278(2) of the Tanganyika Criminal Procedure Code, constituted a grave procedural error. This deprived the accused of the opportunity to present a defence or explain their prior statements, which were the main...
Source-derived case information.
- Citation
- [1947] EACA 46
- Parties
- Appellant: KIJA s'o SAGIDA; Appellant: LEGWA s/o GWANDA; Appellant: HOLO d/o BATANO; Respondent: REX
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeals Nos. 186, 187 and 188 of 1947
- Procedural Posture
- Criminal Appeal / Appeal From High Court Conviction
- Outcome
- trial declared a nullity; accused committed for retrial before another Judge
- Judges
- Bartley J, Graham Paul CJ, Nihill P
- Legal Topics
- Judicial Advice to Accused, Procedural Nullity, Right to Defence, Murder Trial, Unrepresented Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KIJA s'o SAGIDA
Appellant
LEGWA s/o GWANDA
Appellant
HOLO d/o BATANO
Appellant
REX
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Conviction
Legal Issues
- 1 Whether the trial Judge's advice to the accused to say nothing constituted a procedural error rendering the trial a nullity.
- 2 Whether the failure to comply with section 278(2) of the Tanganyika Criminal Procedure Code resulted in a miscarriage of justice.
- 3 Whether the accused were deprived of the opportunity to retract or explain their prior statements.
Ratio Decidendi
The trial Judge's advice to the unrepresented accused to say nothing, instead of complying with section 278(2) of the Tanganyika Criminal Procedure Code, constituted a grave procedural error. This deprived the accused of the opportunity to present a defence or explain their prior statements, which were the main evidence against them. The error was incurable and created a real possibility of a miscarriage of justice. Consequently, the trial was declared a nullity, and the accused remain committed for trial before another Judge.
Court Disposition
trial declared a nullity; accused committed for retrial before another Judge
Orders
- The trial is declared a nullity.
- Any further trial of the accused shall take place before another Judge.
Full Case Text
Judgment text and source record
12 paragraphs
# COURT OF APPEAL FOR EASTERN AFRICA
## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and BARTLEY, J. (Kenya)
### REX, Respondent (Original Prosecutor)
## (1) KIJA s'o SAGIDA, (2) LEGWA s/o GWANDA, (3) HOLO d/o BATANO Appellants (Original Accused)
### Criminal Appeals Nos. 186, 187 and 188 of 1947
(Appeals from decision of H. M. High Court of Tanganyika)
Criminal procedure—Advice by Judge to accused—Section 278, Tanganyika Criminal Procedure Code.
After the prosecution had closed its case the learned Judge strongly advised the accused to say nothing.
Held (22-8-47).—That this advice to the accused rendered the trial a nullity.
Appellants absent, unrepresented.
### Lowe, Crown Counsel (Kenya), for the Crown.
JUDGMENT (delivered by NIHILL, C. J.).—We have consolidated these three appeals. The appellants were jointly convicted of murder in the High Court of Tanganyika. The appellants were undefended at their trial and the learned trial Judge quite properly regarded it as his duty to constitute himself in some degree as their adviser. This dual role of Judge and defending counsel, however, caused him to commit a grave error in procedure which we regard as incurable. At the close of the Crown case, instead of complying with the provisions of section 278 (2) of the Tanganyika Criminal Procedure Code, he seems, from his own record of what took place, to have advised the appellants strongly not to enter upon any defence at all, or at least that the appellants should say nothing more. The Judge was no doubt influenced by the fact that the evidence given by the appellants at the preliminary inquiry and put in as a part of the Crown case at the trial, taken together tended to incriminate each one of the appellants, but he overlooked the fact that the appellants might have wished to retract or explain the statements they had made. As there was little, if any, evidence against the appellants other than these statements, the matter becomes one of crucial importance, and it is impossible for us to say that a failure of justice may not have been occasioned by the Judge's action. We therefore feel compelled to declare the trial a nullity which, of course, has the effect of leaving the appellants in custody committed for trial in the High Court on a charge of murder. We direct that any further trial of these three accused persons or any of them shall take place before another Judge.