[2023] UGHCCRD 153

#### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

#### **(CRIMINAL DIVISION)**

#### **CRIMINAL APPEAL NO. 8 OF 2023**

## **ARISING FROM CHIEF MAGISTRATE'S COURT OF KAMPALA AT LDC** 10 **CRIMINAL CASE NO. 1199 OF 2022**

# **UGANDA (PRIVATE PROSECUTION BY MALE H. MABIRIZI KIWANUKA) ………..………………………………… APPELLANT**

15 **Vs.**

#### **A1. HON. MAO NOBERT**

#### **A2. KIWANUKA MAYAMBALA**

**A3. GERALD SIRANDA BLACKS …………………………………… RESPONDENT'S**

#### **JUDGEMENT**

#### 20 **BEFORE HON. JUSTICE GADENYA PAUL WOLIMBWA**

#### **1.0. Introduction**

Male Hassan Mabirizi (the Appellant), being dissatisfied with the decision of H/W Kirya Martins delivered on 15th December 2022 at the Chief Magistrate's Court of Kampala at LDC, appealed against the dismissal of the Complaint on Oath brought under Section 42 (1) (c) and 42 (3) of the 25 Magistrates Court Act.

#### **2.0. Background to the Appeal**

On 9 th September 2022, the appellant filed a Complaint on Oath as a Private Prosecutor against the Respondents for three offences, including: - 1). Forgery contrary to sections 342 and 345 of the Penal Code Act; 2). Uttering a false document contrary to section 351 of the Penal Code Act;

30 and 3). Conspiracy to defraud contrary to section 309 of the Penal Code Act. The particulars of each count are as follows:

### **Count 1:**

Mao Norbert, Kiwanuka Mayambala, and Gerald Siranda Blacks, on 3rd September 2021, at the Electoral Commission Office and Democratic Office in Central Division Kampala City, made a

false document to wit: Minutes of Democratic Party Delegates Conference Held on 18th – 20th 35 September 2020 with intent to deceive and to defraud both Electoral Commission and the Public.

## **Count II:**

Mao Norbert, Kiwanuka Mayambala, and Gerald Siranda Blacks on 3rd September 2021 at the Electoral Commission Office and Democratic Office in Central Division Kampala City knowingly 40 and fraudulently uttered a false document to wit: Minutes of Democratic Party Delegates Conference Held on 18th – 20th September 2020.

## **Count III:**

Mao Norbert, Kiwanuka Mayambala, and Gerald Siranda Blacks on 3rd September 2021 at the Electoral Commission Office and Democratic Office in Central Division Kampala City conspired 45 with each other by fraudulent means to defraud members of the Democratic Party and the Public by making and uttering a false document to wit: Minutes of Democratic Party Delegates Conference Held on 18th – 20th September 2020.

When the matter came up for the first time on 2nd November 2022, the appellant appeared and prayed for a criminal summons to be issued against the respondents. As an alternative, he prayed 50 for the court to issue a case mention notice to the respondents. In support of his prayers, the appellant argued that Under Article 28 (5) of the Constitution, any criminal proceedings must occur

in the presence of an accused person.

On 15th December 2022, H/w Kirya Martins delivered a ruling in which he: declined to issue criminal summons against the respondents; and dismissed the Complaint on Oath because:

- 55 1. The appellant failed to present his complaint on Oath, supported by a letter from the Local Chief; - 2. The appellant failed to demonstrate that the Director of Public Prosecutions mandated with conducting criminal prosecutions has failed in her duty; and, - 3. The Court has no territorial jurisdiction to handle the matter. - The appellant, being dissatisfied with the decision, filed an appeal on 8th 60 February 2023 because: - 1. The Learned Magistrate erred in law and fact in proceeding with the case in the absence of the accused persons; - 2. The Learned Magistrate erred in law and fact in holding that he lacked jurisdiction to handle the case; - 65 3. The Learned Magistrate erred in law and fact in holding that the Appellant was duty-bound to demonstrate that the Director of Public Prosecutions had failed in her duty before instituting private prosecutions; - 4. The Learned Magistrate erred in law and fact in dismissing the complainant on account of lack of a letter from a local chief, which duty is imposed on him under the Magistrates Act; 70 and, - 5. The Learned Magistrate erred in law and fact in refusing to summon the accused persons for plea-taking.

The appellant thus prayed for orders that:

- 1. The Ruling and Orders of the Lower Court be set aside; - 75 2. LDC Criminal Case No. 1199 of 2022 be re-instated and determined on merits. - 3. The respondents appear before LDC for plea-taking.

# **3.0. Representation**

The appellant was self-represented, whereas the Respondents were represented by the firm of M/s 80 Semuyaba, IGA & Co. Advocates.

# **4.0. Arguments of the Parties**

Both Parties filed submissions on record and shall not be reproduced herein.

# **5.0. Summary of Issues**

A perusal of the record reveals the following issues in need of resolution.

- 85 1. Whether the court erroneously declined to issue criminal summons against the respondents? - 2. Was it proper for the court to dismiss the complaint on Oath for not having a letter from the Local Chief? - 3. Whether the court at LDC lack Jurisdiction to handle the Complaint? - 90 4. Was the appellant duty bound to demonstrate that the Director of Public Prosecutions had failed to execute her mandate before instituting private prosecutions?

# **5.0. Resolving the Appeal 5.0.1. The Law on Appeals**

- 95 Section 34 (1) of the Criminal Procedure Code Act empowers an Appellate court to only interfere with the sentence passed by the trial court if it appears that the court acted on the wrong principle or overlooked some material facts or the sentence is illegal, or manifestly excessive as to amount to a miscarriage of justice. Additionally, Section 34 (2) (a) (b) (c) of the Criminal Procedure Code Act empowers an Appellate Court to: - 100 1. Reverse the finding and sentence, and acquit or discharge the appellant, or order him or her to be tried or retried by a court of competent jurisdiction; - 2. Alter the finding and find the appellant guilty of another offence, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence by imposing any sentence provided by law for the offence; or - 105 3. With or without any reduction or increase and with or without altering the finding, alter the nature of the sentence.

Section 132 (3) of the Trial on Indictment Act prohibits appeals from cases where a person pleaded guilty and was convicted unless the plea's legality or the sentence's extent or legality is questioned. It provides that,

*"No appeal shall be allowed in the case of any person who has pleaded guilty in his or her trial by the chief magistrate or magistrate grade I or on appeal to the High Court and has been convicted on the plea, except as to the legality of the plea or the extent or legality of the sentence."*

115 This section empowers the High Court to entertain an appeal of a case where the 'appellant' pleaded guilty to a charge in the trial court, but the said plea is ambiguous such that the trial court erred in treating it as a plea of guilty. Also, See Section 204(3) of the Magistrates' Court Act.

## **5.0.2. Duty of the Appellate Court**

- 120 This Court is cognizant that it is the first appellate court and must, therefore, evaluate all the evidence on the court record because it did not see the demeanour of the witnesses when testifying. See the case of **SCCA No. 04 of 2016 Godfrey Ssebanakita V. Fuelex (U)Ltd and Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga SCCA No. 17 of 2002** (unreported) - where it was stated that: "*The legal obligation of the 1st appellate court to reappraise the* 125 *evidence is founded in the common law rather than rules of procedure. It is a well-settled principle that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact and law. Although in case of conflicting evidence, the appeal court has to make due allowance because it has neither seen nor heard the witnesses*."

# 130 **5.0.3. Grounds of the Appeal**

As per the memorandum of appeal, there are five grounds. The court, however, merged grounds 1 & 5 to form one ground because they all touched on the refusal to issue criminal summons against the respondents. As a result, the court will deal with the following four grounds as merged and rephrased, and not five as they appear in the Memorandum of Appeal.

- 135 1. Whether the court erroneously declined to issue criminal summons against the respondents? - 2. Was it proper for the court to dismiss the complaint on Oath for not having a letter from the Local Chief? - 3. Whether the court at LDC lack Jurisdiction to handle the Complaint? - 140 4. Was the appellant duty bound to demonstrate that the Director of Public Prosecutions had failed to execute her mandate before instituting private prosecutions?

## **Ground 1: Whether Court Erroneously declined to issue Criminal Summons against the** 145 **Respondents?**

The appellant submitted that Article 28(5) of the Constitution and Section 123 (1) of the Magistrates' Court Act requires the respondents to be present before any criminal proceedings can take off and that, as such, the trial magistrate erred when he declined to criminal summons against the respondents to appear in court.

- 150 In justifying his decision not to issue a criminal summons, the magistrate, on page 10 of the Ruling, said, "*…in this case, Section 42 thereof, as clearly understood, does not require summoning the intended accused person to appear in court for a discussion on his intended trial. Rather, the law is that if a private person has any cause, may lodge a complainant which subject to law has to be considered by the magistrate to cause the issuance of the criminal summons."* - 155 Section 42 (3) to (7) of the Magistrates Court Act meticulously outlines the systematic procedure to follow in a private prosecution before a criminal summons is issued. It Provides that:

*"(3) Any person, other than a public prosecutor or a police officer, who has reasonable and probable cause to believe that an offence has been committed by any person may make a complaint of the alleged offence to a magistrate who has jurisdiction to try or inquire into the alleged offence,*

160 *or within the local limits of whose jurisdiction the accused person is alleged to reside or be. Every such complaint may be made orally or in writing signed by the complainant, but if made orally, shall be reduced into writing by the magistrate and when so reduced shall be signed by the complainant.*

*(4) Upon receiving a complaint under subsection (3), the magistrate shall consult the local chief* 165 *of the area in which the complaint arose and put on record the gist of that consultation; but where the complaint is supported by a letter from the local chief, the magistrate may dispense with the consultation and thereafter put that letter on record.*

*(5) After satisfying himself or herself that prima facie the commission of an offence has been disclosed and that the complaint is not frivolous or vexatious, the magistrate shall draw up and*

170 *shall sign a formal charge containing a statement of the offence or offences alleged to have been committed by the accused.*

*(6) Where a charge has been—(a) laid under the provisions of subsection (1)(b); or (b) drawn up under the provisions of subsection (5), the magistrate shall issue either a summons or a warrant, as he or she shall deem fit, to compel the attendance of the accused person before the court over*

175 *which he or she presides, or if the offence alleged appears to be one which the magistrate is not empowered to try or inquire into, before a competent court having jurisdiction; except that a warrant shall not be issued in the first instance unless the charge is supported by evidence on oath, either oral or by affidavit.*

*(7) Notwithstanding subsection (6), a magistrate receiving any charge or complaint may, if he or* 180 *she thinks fit for reasons to be recorded in writing, postpone the issuing of a summons or warrant and may direct an investigation, or further investigation, to be made by the police into that charge* *or complaint; and a police officer receiving such a direction shall investigate or further investigate the charge or complaint and report to the court issuing the direction*." Also, see **Charles Mbiire and 12 Others v Uganda HCT--**‐**00--**‐**CR--**‐**CV--**‐**0015/2012.**

The gist of the above-cited provision is that anybody who sufficiently believes an offence has been committed may institute private prosecutions against the alleged offenders by making a complaint on Oath, either orally or in written form, to a magistrate court with jurisdiction to handle the matter. Upon receiving the Complaint on Oath, the magistrate must consult with the local chief of the area 190 where the complaint arose and put the substance of the consultation on record.

However, where the complaint is supported by a letter from the local chief, the magistrate may do away with the consultation process and rely on the said letter to grant or not grant permission to prosecute privately. This means that the requirement for a Magistrate to consult with the Local Chief is mandatory and can only be dispensed with if the complaint presented is supported by a

195 letter from the local chief. In contrast, the presentation of a Complaint on Oath, supported by a letter from a local chief, remains discretionary for the complainant.

After consulting with the Chief or dispensing with the consultation according to the law, the Magistrate should decide whether: 1). prima facie, the commission of an offence has been disclosed, and 2). the complaint is not frivolous or vexatious before drawing up a formal charge 200 against the accused.

After drawing the charge, the magistrate should issue either a summons or a warrant to compel the attendance of an accused. However, if a magistrate deems fit, they shall postpone the issuance of summons or warrant and direct an investigation or further investigation. The investigating officer must report back to the court that issued the directions. And depending on the investigative officer's 205 report, a summons may be issued afterwards.

In the instant case, the appellant filed a written and duly signed Complaint on Oath on 19 th September 2022, in which he claims the commission of three different criminal acts by the respondents, i.e., 1)—forgery contrary to sections 342 and 345 of the Penal Code Act; 2). Uttering a false document contrary to section 351 of the Penal Code Act; and 3). Conspiracy to defraud

- 210 contrary to section 309 of the Penal Code Act. When the matter first appeared on 2nd November 2022, the appellant appeared and prayed for a criminal summons against the respondents. The Appellant wanted the case to proceed inter-parties even before the Magistrate could make a finding that prima facie, an offence has been committed, and the complaint is neither Frivolous nor Vexatious, then draw up the charges as per section 42 (5) & (6) of the Magistrates Court Act. - 215 As noted under Section 42 (5) & (6) of the Magistrate's Court Act, Criminal summons are only to be issued after a trial magistrate has found that, prima facie, an offence has been committed and the complaint is neither frivolous nor is it vexatious and charges have been drawn. In the same way, even if the Director of Public Prosecutions institutes a matter, Criminal Summons are likewise only issued after a charge has been drawn.

220 As the Magistrate rightly observed, no intended accused person can ever be summoned to appear in court to discuss their intended trial*.* By the appellant requiring the court to issue criminal summons contrary to the established procedure provided for under the law, he was technically trying to amend substantive law, which, as correctly pointed out by the trial Magistrate, is a preserve for Parliament. In light of this, Court did not erroneously decline to issue criminal 225 summons against the respondents. This ground of Appeal fails.

## **Ground 2: Was it proper for Court to dismiss the Complaint on Oath for not having a Letter from the Local Chief?**

Section 42 (4) and (5) of the Magistrates' Court Act provides that *"(4) Upon receiving a complaint under subsection (3), the magistrate shall consult the local chief of the area in which the complaint*

230 *arose and put on record the gist of that consultation; but where the complaint is supported by a letter from the local chief, the magistrate may dispense with the consultation and thereafter put that letter on record. (5) After satisfying himself or herself that prima facie the commission of an offence has been disclosed and that the complaint is not frivolous or vexatious, the magistrate shall draw up and shall sign a formal charge containing a statement of the offence or offences* 235 *alleged to have been committed by the accused."*

The above provisions require a magistrate who receives a Complaint on Oath to consult with the local area chief from where the complaint arose and put on record the outcome of the consultation. Alternatively, the magistrate can dispense with the required consultation if a letter from the local 240 area chief supports the complainant's Complaint on Oath.

In the instant case, the record lacks proof that the Magistrate consulted the local chief of the area where the complaint arose. Instead, the magistrate placed the primary burden onto the appellant to provide a letter from the local area chief rather than on himself, which position is wrong. On page

- 245 10 of the Ruling, the magistrate stated, *"the parameters are that the magistrate has satisfied himself that prima facie, there is a commission of an offense. To get to the above satisfaction, the magistrate has to receive the complaint when it is supported by a letter from the local chief; if there is no such letter, the magistrate would then write to the area local chief where the offence took place for such a complainant to mature."* - 250 Additionally, on page 14 of the Ruling, while dismissing the complaint, the magistrate held that "it *was premature to seek for criminal summons or notification because criminal summons precede a fully competent complaint supported by a letter from the area local chief or a request for such to be done by the trial magistrate having jurisdiction. This mandatory requirement was lacking making the complaint premature, and so are the consequential prayers sought*." - 255 The correct position of the law is that even if a complainant files a complaint on oath without a letter from the local area chief to support the complaint, that fact does not render the Complaint on Oath incompetent. Presentation of a letter from the local area chief is discretionary on the part of

a complainant, and they need not request that such be done by the magistrate. A complaint on Oath can only be judged incompetent on the grounds of jurisdiction, non-establishment of a prima facie 260 case, and the institution of frivolous and vexatious claims.

A magistrate presented with a Complaint on Oath bears the primary burden of consulting and factfinding from the area's local chief. If, for one reason or another, a zealous complainant provides a letter from the area local chief in which the complaint arose, they will have done the magistrate a favour, who in turn may dispense with the requirement to consult bestowed upon them in the law 265 or still go ahead and consult then document their findings which form part of the record.

Therefore, having noticed that the appellant had not exercised his discretion by accompanying the complaint with a letter from the local chief, the trial magistrate should have taken it upon himself to consult with the local chief rather than prematurely dismiss the complaint. The prerequisite of consulting with the area's local chief is mandatory for the Magistrate, whereas the presence of a

270 letter from a local chief is discretionary for a complainant. This spoken-of mandatory requirement on the part of the magistrate can only be dispensed with in situations where a complainant has presented a supporting letter from the local chief, which was not the case here.

Only after consultation would the magistrate have been able to properly evaluate if the complaint has established a prima facie case and if the complaint is frivolous and vexatious. In this case, the 275 magistrate neither consulted nor made a finding on whether, prima facie, an offence had been committed. He also did not find whether the claims were frivolous and vexatious. If the court had consulted and found that no prima facie case had been established and the evidence pointed to frivolous and vexatious claims, the magistrate would have been justified in dismissing the Complaint on Oath. In light of this, the court finds that the Magistrate erroneously dismissed the 280 complaint prematurely. This appeal ground succeeds.

Before I take leave of this matter, I would like to offer some guidance on the meaning of a Local Chief provided for under Section 42 (4) of the Magistrates' Court Act.

On page 4 of the Ruling, the appellant is said to have argued that "*the MCA was incepted in the year 1970 and therefore section 42 is colonial in nature because it makes a requirement for a*

285 *magistrate to consult the local chief of the area in which the complaint arose and or, that the applicant should attach a letter from the local chief mandatory…the office of the local chief no longer exist in our law and subjecting a complainant to such a requirement amounts to failure by the court to properly apply Article 274 which calls for necessary modifications because it would amount to a denial of access*."

290 In the case of **Hassan Bassajabalaba v Kakande Bernard Criminal Revision 2 of 2013**, the Magistrate dispensed with the requirement to consult the local chief of the area in which the complaint arose and relied on a letter written by one Musoke Kabisala, Chairman, Kategula Zone. Local Council 1, Kibuye II Parish, -Makindye Division, Kampala District, which was put on record. Justice Lamech N. Mukasa found that the letter from the LC1 could not be construed as 295 one from a local chief.

This brings me to the question: If an LC1 is not considered a Local Chief of an area, who then is a Local Chief of an area referred to under Section 42 (4) of the Magistrates Court Act?

- 300 The Magistrate's Court Act and the Local Governments Act do not define a 'local chief'; however, Section 69 (1) and (2) of the Local Governments Act provides that "*there shall be a chief in each sub-county and in each parish who shall be appointed by the district service commission who shall be the administrative head and accounting officer of the respective sub country or parish*." - 305 Section 69 (3) of the Local Government Act provides the functions of the chief as: "*to obey all lawful directions from the council and other higher authorities; obey and execute orders and warrants issued by any court of competent jurisdiction; assist in the maintenance of law, order and security; assist in the prevention of crime and public nuisance; detect, apprehend and bring offenders to justice; collect data and keep records of the council; assist the relevant council in* 310 *planning, budgeting and budget implementation; supervise or monitor the implementation of socio-economic development projects; and, in the case of a parish, be the secretary to the parish*

*council and implement lawful councils' policies and decisions of the council*."

It does appear that a local chief is a person appointed by a District Service Commission at a sub-315 county or parish level who exercises the functions prescribed in section 69 of the Local Governments Act and not a Local Council Chairperson at either county, parish, or village level who wields political powers by their election under Section 111 of the Local Governments Act and exercises functions provided for under Section 50 of the Local Governments Act. Another name for a local Chief is a Parish Chief and not a Local Council Chairperson.

With the repeal of the Kampala City Council law and the coming into force of the Kampala Capital City Authority Act, no District/City Service Commission was set up. This ideally means that Kampala has no local chief as per the above-deduced meaning. Be that as it may, Section 5 (4) of the Kampala Capital City Authority Act provides that "*any enactment that applies to a district*

- 325 *shall, subject to this Act and with the necessary modifications, apply to the Authority*." In light of this, the equivalent for a local chief/Parish Chief within Kampala City is a ward administrator who is charged with, among others, the duties of: "*Compiling data registers; Preparing and compiling reports on Ward operations for the attention of the Ward Administrator and the Parish Development Coordinator; Providing regular and timely accountability and reporting on Parish* - 330 *Development Model results from the Coordinator; Overseeing the implementation, monitoring and evaluation of the projects at the ward level; Undertaking the mobilization of the Ward community for Government development programs and projects; Undertaking duties of*

*Secretariat to the Ward Development Committee; Participating in the preparation of work plans and budgets for the operations of the Ward; and, any other duties assigned from time to time.*"

## **Ground 3: Did the LDC court lack Jurisdiction to handle the Complaint?**

Sections 31-38 of the Magistrates Court Act generally provide for the criminal jurisdiction of the Magistrates Court in Uganda. Under careful consideration, Jurisdiction is a broad word with several meanings depending on the context. Black's Law Dictionary, 8th ed. 2004, on page 867, 340 defines jurisdiction as, among others, to mean: 1). A court's power to decide a case; 2). A geographic area within which Political or Judicial Authority may be exercised; and 3)—a political or Judicial Subdivision within an area. However, this matter describes the territory where a court regularly exercises its authority.

At Page 13 of the Ruling, the Magistrate stated that "*Section 42 (3) of the Magistrates Court Act* 345 *further requires that such a complaint should be made to a magistrate who has jurisdiction to inquire into the alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to reside or be.*

*The complaint in issue here regards an accusation that took place on 3rd September 2021 at Electoral Office and Democratic Party offices are located for this court to determine its territorial*

- 350 *jurisdiction, which gives mandate over the complaint. Yet again, the applicant said the false documents were uttered at the Electoral Commission offices, but they were not specified within Kampala. Law Development Centre Court does not have a monopoly over all areas of Kampala. Assuming the applicant by the term Electoral Commission Offices meant the headquarters, according to the Magistrates' Courts (Magisterial Areas) Instrument, 2017 (Statutory Instrument* - 355 *No. 11 of 2017), Law Development Court does not cover Jinja Road where the alleged offence of uttering false documents emanates from.*

*The above therefore renders this court incapable of entertaining this application for want of territorial jurisdiction over the complaint because there was no indication that either the intended accused persons reside or be in the jurisdiction of LDC Court or that the offences took place in* 360 *areas within the coverage of LDC Court."*

Additionally, at Pages 14 and 15, the Magistrate held that "*failure to reveal the actual location of the offices of Democratic Party with precision renders this court incapable of handling the application for want of jurisdiction over matters allegedly committed along Jinja road where the Electoral Commission Offices are situate.*"

365 In his submissions, the appellant rightly stated that every count on the complaint on Oath says that the alleged offences took place at the Democratic Party Offices and the Electoral Commission Offices in Central Division, Kampala City.

This court is of the view that the particular buildings and plot numbers where the said offices are located are not very crucial in determining the issue of territorial Jurisdiction by the Magistrates' 370 Court (Magisterial Areas) Instrument, 2017. However, what was and remains essential in determining territorial jurisdiction was knowing the District or City; and the Division in which the said Offices, where the offences arise from, are located. Even the Magistrates' Court (Magisterial Areas) Instrument, 2017, designates magisterial areas based on two parameters, i.e., District/City and Division. It does not mention specific Parishes/Wards; Villages/Zones; Building Names; 375 Street Names; or Plot numbers, to mention a few.

This court further notices that under Item Number 7 of the schedule to the Magistrates' Court (Magisterial Areas) Instrument, 2017, the Magisterial Areas said to have jurisdiction over matters within Central Division of Kampala include the Chief Magistrate- Buganda Road; Magistrate Grade 1- Buganda Road; Magistrate Grade 1- City Hall; and Magistrate Grade 1- Law 380 Development Centre (LDC). This means that the Magistrate had the Jurisdiction to handle the Complaint on Oath filed by the appellant. Considering that the complaint on oath indicated the City and Division where the alleged offences were committed, which city and division fall under the trial magistrate's Magisterial area, the court finds that the complaint was erroneously dismissed for want of territorial jurisdiction. This appeal ground succeeds.

# 385 **Ground 4: Was the appellant duty-bound to demonstrate that the Director of Public Prosecutions failed to execute her mandate before instituting private prosecutions?**

Section 42 of the Magistrate's Court Act provides three ways criminal proceedings may be instituted in Uganda. They may be initiated by a police officer bringing a person arrested before a magistrate upon a charge; by a public prosecutor or police officer laying a charge against a person 390 before a magistrate and requesting the issuance of a warrant or a summons; or under subsection (1) (c) they may be instituted by any person, other than a public prosecutor or a public officer, making a Complaint as provided in subsection (3) and applying for the issue of a warrant or a summons in the manner hereafter mentioned.

395 Relevant to Private Prosecutions and this issue, section 42 (3) (4) & (5) provides that,

*"(3) Any person, other than a public prosecutor or a police officer, who has reasonable and probable cause to believe that an offence has been committed by any person may make a complaint of the alleged offence to a magistrate who has jurisdiction to try or inquire into the alleged offence,* 400 *or within the local limits of whose jurisdiction the accused person is alleged to reside or be. Every such complaint may be made orally or in writing signed by the complainant, but if made orally shall be reduced into writing by the magistrate and when so reduced shall be signed by the complainant."*

405 *"(4) Upon receiving a complaint under subsection (3), the magistrate shall consult the local chief of the area in which the complaint arose and put on record the gist of that consultation; but where the complaint is supported by a letter from the local chief, the magistrate may dispense with the consultation and thereafter put that letter on record.*

- 410 *(5) After satisfying himself or herself that prima facie the commission of an offence has been disclosed and that the complaint is not frivolous or vexatious, the magistrate shall draw up and shall sign a formal charge containing a statement of the offence or offences alleged to have been committed by the accused."* - 415 This means that it is lawful and proper for any person to commence and continue criminal prosecutions against any individual or group of individuals to the point of disposing of the whole case. The substantive provisions of the relevant law governing institutions of private prosecutions do not require a "potential private prosecutor" to show proof that the director of public prosecutions has failed to prosecute their case. If a matter does not require explicit consent from - 420 the Director of Public Prosecutions (See Sections 50 and 149 of the Penal Code Act on Incest), all a complainant will need is Consent from Court for them to prosecute the matter privately. Such consent is granted when they prove a prima facie case, and the complaint is neither frivolous nor vexatious. - 425 However, to control and exercise its supervisory powers, Article 120 (3) (c) empowers the Director of Public Prosecutions to take over and continue any criminal proceedings instituted by any other person or authority. Section 43 of the Magistrates Court Act also empowers the Director of Public Prosecutions to control private prosecutions. Upon the institution of private prosecutions, the Director of Public Prosecutions may take over and continue the conduct of proceedings; and 430 discontinue the trial of the proceedings privately instituted at any stage before the conclusion of the proceedings. The Director of Public Prosecutions may require a person in relation to such criminal proceedings to give them all reasonable information and assistance and to furnish any documents or other matters and things in the person's possession or control. - 435 On pages 9 and 10 of the Ruling, the Magistrate held, "*As I observed earlier, this right (the right to institute public prosecutions) emanates from the inactivity of the prosecuting agency in case of a criminal case. The applicant/complainant has to demonstrate with evidence in his complaint that the prosecuting agency remained in limbo upon a commission of an offence and notification duly notified to them by the complainant… the applicant, in this regard, did not demonstrate the* 440 *inactivity of the office of the Director of Public Prosecutions which in my view violates the policy* - *of the law on institution of criminal prosecutions….*" The words in brackets are mine.

Additionally, on page 14 of the Ruling, the Magistrate held that "*in any case, he has failed to demonstrate that the director of public prosecutions mandated in conducting criminal prosecutions has failed in her duty to prosecute the accused persons, a requirement precedent to*

445 *the institution of private criminal proceedings whose legal existence is the need to address the inertia or partiality on the part of the prosecuting authority, DPP. See Gouriet v Union Post Workers [1978] AC 435."*

The Magistrate erred in finding that the appellant, as a potential private prosecutor, was dutybound to demonstrate that the Director of Public Prosecutions had failed to execute her mandate 450 before seeking the court's permission. As previously held, the substantive provisions of the relevant law to private prosecutions do not require a "potential private prosecutor" to show proof that the director of public prosecutions has failed to prosecute their case. Suppose a matter does not require explicit consent from the Director of Public Prosecutions (See Sections 50 and 149 of the Penal Code Act on Incest). In that case, all a complainant will need is Consent from Court for them to 455 prosecute privately. Such consent is granted when they prove a prima facie case, and the complaint is neither frivolous nor vexatious.

The record shows that in arriving at the erroneous holding, the Magistrate relied on the Common Law case of **Gouriet v Union Post Workers [1978] AC 435,** in which the House of Lords stated that "*the right of private prosecutions is considered as a valuable constitutional safeguard against* 460 *inertia or partiality on the part of the prosecuting authority…."*

Precedents, persuasive and binding, are welcome and revered in the Ugandan Legal Fraternity because they provide certainty of law and uphold the citizens' confidence in the justice delivery system. Concerning the judiciary, precedents are a guideline to decide future cases based on similar facts. The doctrine of precedent was developed to promote consistency in decision-making by

465 judicial officers. Precedents, however, are subject to specific principles of applicability. If a judicial officer intends to follow previously decided cases, the facts of the current case should be sufficiently similar to that of the precedent.

Scrutiny of the **Gouriet case supra** relied upon by the trial magistrate reveals that the case is one not based on the committal of an offence plus a refusal to prosecute by the Prosecuting Authority 470 hence the institution of private prosecutions upon proof of the Prosecuting Authority's inertia or impartiality. It is instead based on a right to take preventive action in a civil court which could have been taken but was not accepted by the Attorney-General in relator proceedings (Relator Proceedings refers to an action brought by the Attorney General on behalf of a Citizen who would not otherwise be able to bring a proceeding before the court). For ease of reference, I will highlight 475 the brief facts of this case to make out my point.

### **Brief Facts of the Gouriet case supra are as follows**:

On 13 January 1977, the general secretary of the Union of Post Office Workers (hereinafter the "U. P. W.") announced on television that his union's executive committee had resolved to call on its 480 members not to handle mail for transmission from England and Wales to the Republic of South Africa, for the duration of the week commencing at midnight, 16 January 1977. This resolution, if it were carried out, would have been in breach of the UK Post Office Act 1953. On January 14, "The Times" reported the passing of the U. P. W. resolution and also noted that the Post Office Engineering Union (P. O. E. U.) had said that they would instruct their members not to provide or

485 maintain circuits to South Africa except in a matter of "life and death." The news of this threat by the U. P. W. to break the law and bring about the interruption of postal services to South Africa annoyed John Gouriet.

On 14 January, he applied to the Attorney General for the latter's consent in the institution of 490 relator proceedings for an injunction to restrain the U. P. W. from calling the strike. The Attorney-General refused to consent to the proposed relator action. Quite undeterred, Gouriet brought an action in his name (thus making himself-and not the Attorney General- the plaintiff) against the *V. P. W.,* seeking an injunction against the latter. Because this action would not be heard in time to prevent the imminent strike, the plaintiff applied on the same day (still 14 January) to Stocker J. 495 (in Chambers) for an *interim* injunction matching the terms of the (final) request sought in the main (substantive) action.

- Stocker J. dismissed the application for the interim injunction because, in his view, the plaintiff had no *locus standi* to bring the main action, given that the Attorney-General had refused to act as 500 plaintiff in such an action. The plaintiff appealed to the Court of Appea1. The court, however, declined to give judgment even in these interlocutory proceedings until the Attorney-General (who was not then a party) was made a defendant in the proceedings. He was, however, granted leave to amend his claim and add P. O. E. U as the second defendant. On 18 January, the Attorney-General appeared with the other two defendants (V. P. W. and P. O. E. V.) to *continue* the litigation of the 505 interlocutory appeal. - **Briefly, the issues which emerged for a decision by the House of Lords were:** - 1. Whether, despite the refusal of the Attorney-General to consent to the use of his name in relator 510 proceedings, Mr Gouriet, as a private citizen, was entitled to come to the court and ask for an injunction against the Post Office unions from soliciting interference with the mail to or with communications with the Republic of South Africa, and for a declaration that it would be unlawful for the unions to take such action. - 515 2. Whether Mr Gouriet's claim against the Post Office unions to such injunctions or declarations is maintainable or ought to be struck out.

A quick comparison of the present case and the **Gouriet** precedent reveals that the facts of the current case were not sufficiently similar. In the Instant case, the appellant alleges that the 520 respondents committed three crimes, i.e., 1)—forgery contrary to sections 342 and 345 of the Penal Code Act; 2). Uttering a false document contrary to section 351 of the Penal Code Act; and 3). Conspiracy to defraud contrary to section 309 of the Penal Code Act, whereas, in the **Gouriet case supra,** the plaintiff instituted a preventative civil action in his name for offences yet to be

committed. The plaintiff took it upon himself to institute preventive action in a civil court because

525 of the Attorney-General's inertia to institute them. In light of this and the preceding finding, the court finds that the Magistrate erroneously relied on the **Gouriet** precedent to hold that the appellant, as a potential private prosecutor, was duty-bound to demonstrate that the Director of Public Prosecutions had failed to execute her mandate before seeking courts permission. This appeal ground succeeds.

#### **6.0. Decision**

In conclusion, grounds II, III and IV of the Appeal have succeeded, while grounds I and V of the appeal are dismissed. I, therefore, direct the Chief Magistrate of Buganda Road Court to rehear

535 LDC Criminal Case No. 1199 of 2022 in accordance with section 42 of the Magistrates' Court Act. The Deputy Registrar of the Criminal Division is directed to ensure compliance with this directive. I so order.

Gadenya Paul Wolimbwa **JUDGE** 30th June 2023

545 I request the Deputy Registrar of the Criminal Division of the High Court to deliver this decision on 6th July 2023.

550 Gadenya Paul Wolimbwa **JUDGE** 30th June 2023