[1991] UGSC 19

## Tfcfi' SUPREME COURT OF UGANDA

## at mengo

CORAM: MANYINDO, D. C. J., PLATT, J. S. C. & SEATON, J. S. C.

CRIMINAL APPEAL NO. 9 OF 1990

Between

UGANDA *¹* APPELLANT AND HASSAN ABDI HUSSEIN RESPONDENT IN (Appeal from the Judgment/Order of the High Court of Uganda at Kampala (Mr. Justice Solugde). dated 19/9/90)

HIGH COURT CR. SESSION CASE NO,11/90

JUDGMENT OF THE COURT

The High Court was urged to revise an order of the Magistrate Grade ¹ given on 1Jth July 1990, in which the learned Magistrate had refused to strike out a charge under Section 51 of the Penal Code Act, The point taken had been that the particulars of the offence had failed to disclose a charge as set out in Section 51 of the Act/ That Section provides:-

> 51. "51\* Any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to degrade, revile, or expose to hatred or contempt any foreign prince, potentate ambassador or other foreign dignitary with intent to disturb peace and friendship between Uganda and the country to which such prince, potentate, ambassador or dignitary belongs is guiljy of misdemeanour".

> > /2...

*2*

The particulars impugned are as follows:-

"Hussein Abdi Hassan on the 19th day of January 1990 at State House Entebbe in Entebbe Sub District, without justificattion or excuse published defamatory matter of His Excellency The President of Zambia, Dr. Kenneth Kaunda by asking him questions which were intended to disturb peace and friendship between Uganda and Zambia.....

The question was whether the particulars -

"By asking him questions I!

were sufficient to raise the offence of publishing -

or any sign, "anything intended to be read, or visible representation...."

But in technical language, did the particulars raise a case of slander, when the Section required a libel to be proved? The Magistrate held that the charge was sufficiently particularised, while the learned Judge held that the particulars were insufficient. The final Order was:-

> "The ruling of the lower Court is accordingly set aside and the Order of this Court is that the Applicant has no case to answer under Section 51 of tne Penal Code".

The explanation for this Order was as follows. First there is the finding as to what kind of defamation was provided for in Section **51.** The learned Judge held:-

> "Libel is a form of words in a permanent form i.e. writing as opposed to spoken words which is slander. The language as used in Section 51 leaves one in no state of uncertainty that what the legislature intended is libel".

Secondly there was the question in what category the particulars fell.

"The particulars of offence has the words 'by asking him questions' and the only meaning it conveys in normal parlance is i.e. by words of mouth".

The conclusion was inescapable;-

"It is my view that the particulars as laid out is inconsistent with the charge and that Section 51 refers to libel and not slander".

The meaning of the order which is somewhat ambiguous, in that the order that the charge was sufficiently particularised could not stand, and in its place there was the order that the Applicant had no offence made out against him under Section 51\* By inference the charge could not stand; but it would have been very much clearer if the High Court had substituted the correct order that the charge must be struck out.

The ambiguity in the order has led to several complaints, set out in the grounds of appeal:-

- 1. that the learned Judge was wrong in lav/ to hold that the Respondent had no case to answer; - 2. the Judge should not have made the revisional order without having heard the Director of public Prosecutions; - 3. that it was wrong to hold that Section 51 referred to libel only and not slander.

On ground 2, Section J^2(2) of the Criminal Procedure Code /let on revision) unless the Director of Public Prosecutions has had an opportunity of being heard. The learned Director had been served but failed to appear• The learned Judge explained how he had had the Ministry informed, how the Ministry had assured the Court that a State Attorney was on the way, but after delaying tne hearing for over an hour without any such appearance, the Court proceeded ex parte. The learned Director had had an opportunity of being heard but did not appear. It is surprising that any such ground as this provides that no order shall be made (i.e.

*..... A-*

could seriously have been put forward\* The learned Judge was quite right in all he did. Ground 2 fails.

Senior Counsel for the Respondent suggested that ground 2 could not lie with ground 3, submitting in effect that if the learned Director complained of not having been heard, he should have moved the High Court to set aside its ex-parte order before agitating ground 3 in this Court.

The answer is that the learned Director would never have succeeded in the High Court to set aside the exparte order, because the State Attorney never appeared although the Court waited for him. His best course was to appeal, which is the reason why we have observed above that it is surprising that ground 2 was brought and argued.

More serious problems arise under ground ¹ • There is no doubt that by virtue of Section 337 (6) of the Criminal Procedure Code Act the revision proceedings were to be treated as an appeal. This Court second appeal from the High Court's decision as a first appeal. If that be so, then the powers of this Court would reside in section 337 O) would then be entering upon a

> ''Either party to an appeal from a Magistrate's Court may appeal against the decision of the High Court in its appellate jurisdiction to the Court of Appeal on a matter of law, not including severity of sentence, but not on a matter of fact or of mixed fact and law".

The word ''decision" may cover several orders of the High Court. **It** conviction which such section provides for (inter alia). It probably does not include an acquittal; but it may include several interlocutory and consequential orders such as costs, compensation, and orders for forfeiture. Orders concerning a retrial or separate must include a

''decision\*\* • striking out order would also be included within Section 51 of the Penal Code Act. It is, we think clear that a trials could lie- within a

Mr. Kayopdo submitted that the order concerning no case to answer had ended in the acquittal of the **Respondent.** probably have been fatal to the jurisdiction of this Court. In so shall not be punished twice for the same offence. Unless Section 337 made provisions similar to those of Section 132 A of the Trial acquittal on first appeal. Section 132 A provides for a declaratory judgment in the case of an appeal to the Supreme Court from an acquittal by the High Court at first instance. Section 337 has no special powers for an appeal against an acquittal on a first appeal. Hence if the learned Judge's ruling amounts to an acquittal, then Senior Counsel would be right. On Iidictments Decree, there can be no second appeal against an far as Section 20 of the penal Code Act is concerned, a person If so, that would

An order of no case to answer, properly speaking, may be made at the end of the prosecution case, whether or not evidence is called. It does not apply to the situation where the charge is defective, and no offence is disclosed by the particulars of the offence. However it is easy to see what the learned Judge meant. His order may be paraphrased thus:

> ''The ruling of the lower Court is accordingly set aside and the Order of this Court is that no offence has been made out in the particulars of offence within Section 51 of the penal Code Act which the Appellant can be called upon to defend"•

> > ... /6..

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The learned Judge should then have added that the charge was struck out. The learned Judge did not order an acquittal. There is no doubt that he meant to strike out the charge.

The situation then is that this appeal may lie both under Sections J37 (6) and 337(1) of the Criminal Code xct. We would vary the order given, in the way we have paraphrased it above adding that the charge will be struck out, for the avoidance of doubt.

We now turn to ground J. It is desirable that the Section 51 of the Penal Code, under which the respondent was charged should be set out in full. It reads as follows

> ''Any person who, without such justification or excuse as would be sufficient in the case of a defamation of a private person, Publishes anything intended to be read, or any sign or visible representation, tending to degrade revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Uganda and the country to which such prince, potentate, ambassador or dignitary belongs, is guilty of a misdemeanour". (Underlining added).

It will be observed that the offence which was chargedby the prosecution as ''defamation of VIII of the Penal Code. Nowhere is there in the Chapter any definition of ''defamation" or such key expressions as ''publishes" and ''read". The lack of such definition has led to the divergence of views as to a foreign dignitary" falls under Chap the validity of the charge in the instant case.

The particulars of the charge, as amended, state as follows

''Hussein Abdi Hassan on the 29th day of January, 1990 at State House Entebbe Sub District, without justification or excuse Published defamatory matter against His

... */7-\*-*

Excellency The president of Zambia Dr. Kenneth Kaunda 6y asking him questions which were intended to disturb peace and friendship between Uganda and Zambia to with " (Underlining added)

under S.51 of the Penal Code something must be printed or written and publication, it is no offence under S.5^ of the Penal Code. Counsel for the appellant on the other hand submitted that the key words of his counsel had in both the lower courts, that to constitute an offence The learned Counsel for the respondent argued before this Court, as published; that if one merely speaks, even if that amounts to a S.5^ cine ''publishes'¹ and ''intended to be read" and in this case the prosecution relies on publication by speech. His interpretation of S.51 is that once a person publishes anything intended to be read, he may be charged. One can allege in a charge brought under this section, that a person published by a visible sign, by visible representation, or by reading. In the instant case what the prosecution contended was **that** by **asking** the question, the respondent was publishing i.e.

We observe that in Uganda the offence of defamation is dealt with in two separate Chapters of the Penal Code, Chap VIII is entitled ''Offences affecting relations with Foreign States and External Tranquility". In addition to S.51, this Chapter includes two sections dealing with the offences of ''Foreign Enlistment" and ''piracy" respectively. Then there is Chapter XVIII, which is entitled ''Defamation" and contains only one offence, namely ''libel" which is set out **in S.174.**

by speaking.

However Chap. XVIII contains some definitions of key expressions used in S.17^ with respect to the offence of ''libel", inter alia ''defamatory matter" in S.175; and ''publication" in S. I76.

... /8.. ^I

May one look to the definitions in Chap XVIII in order to see whether they shed light on expressions used in Chap. VIII, S.5^? Counsel for the appellant thinks not and he has referred us to the dictionary for definitions of and of ''read". In Webster New International Dictionary the word means "to utter or put in circulation'¹ (P.173^) • "To utter" is defined as "to offer directly or indirectly by words or by actions, to give public expression, speak or pronounce" (P.2260). "publish" "publish"

In the light of that definition, counsel submitted that "to publish" does not only mean something written but also includes words spoken.

The Concise Oxford Dictionary (7th ed. at p.861) defines "read to mean, inter alia "to interpret mentally".

Therefore, counsel submitted, if one speaks out something derogatory and it is heard by a third party who is capable of making that mental interpretation, then one is publishing something intended to be read and one is squarely within the Section *5"l*; this must have a publishing by writing stood up in the open and began talking or abating a dignitary and could argue that because he has written nothing, he cannot be cnarged. **01** or verbally; it would be absurd if a man been the Legislature's intention, that one may commit an offence by

Counsel for the respondent submitted that S.5^ clearly caters for publication that is intended to be read, not heard; that is, it refers to writings, printings, signs; if the Legislature had wanted to prohibit speech it would have included such words ^s "uttered, pronounces".

Counsel for the respondent urged that in interpreting one part of the Penal Code it was permissible, if one could not otherwise grasp ... /9...

its meaning, to consider other parts of the Code. He suggested that in the instant case, it would be helpful to consider the wording of S.174 which sets out the offence of ¹¹ libel" as follows:-

> "Any person who, by print, writing, painting, effigy, or by any means other wise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel". (Underlining added).

t

Again, S.176 (1) of the Penal Code defines publication thus:-

"A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be so dealt with, either by exhibition reading, recitation, description, delivery or otherwise, that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person".

The learned judge approached the question of interpreting S.^1 by referring not only to Sections 174 and 176 (1) but also to sections of the Penal Code relating to sedition. In particular, in his ruling he cited 8.42 (1) which sets out the following provisions

"42(1) Any person who -

- (a) does or attempts to do or makes any preparation to do, or conspires with any person to do any act with a seditious intention; - (b) utters any words witn a seditious intention; - ii (c) prints, publishes, sells, offers for sale, distributes or repoduces any sedition publication commits an offence (Underlining added).

/m

and observed that if the Legislature had intended to create an offence of slander or defamation by speech, it would have done so in S\*51\*

In reference to the provisions of S.51j the learned judge observed that the rule of ''eiusdem gereis" should apply; that the section must be read as a whole and given its natural and ordinary meaning. Regarding the particulars of offence in the instant case, the judge noted that the allegation was that the respondent had committed the act "by asking questions". He then went on (at p.33 of the Ruling)

> and the only meaning it conveys in normal parlance is i.e. by word of mouthy.

We agree with the learned trial judge's conclusion that in S.51 can only be by expressing oneself in a written or printed manner or in some otner form that can be read by another person. The learned judge should have accordingly revised the Magistrate's ruling and referred the case to the Magistrates' Court to be proceeded with under S.130 of the Magistrates' Court Act. ''publishes"

'We there-fore allow the appeal in part. We set aside the order of the High Court insofar as it related to "no case to answer". It will be up to the prosecution, if it is desired to proceed further against the respondent, to amend the charge or to substitute or add a new charge.

Dated at Mengo this day 1st day of March 1991 SIGNED:

## S. T. MANYINDO DEPUTY CHIeF JUSTICE.

H. G. PLATT JUSTICE OF THE SUPREM COURT

E. E. SEATON JUSTICE OF THE SUPREME COURT.

I CxlRSIFY THAT THIS IS A THUS CQPX-iTO THa ORIGTn.a.7

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.

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