[2021] UGSC 60

# IN THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA HOLDEN AT KAMPALA

## **CRIMINAL APPEAL NO.92 OF 2018**

## (ARISING OUT OF COURT OF APPEAL CRIMINAL APPEAL NO. 14 OF 2013 ARISING OUT OF HCT-OO-AC-SC-084 OF 2012 AT ANTI CORRUPTION DIVISION OF THE HIGH COURT)

CORAM: OWINY-DOLLO, CJ; ARACH-AMOKO; OPIO-AWERI; EZEKIEL MUHANGUZI; MIKE CHIBITA; JJSC

# UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

### **GUSTER NSUBUGA**

# ROBINHOOD BYAMUKAMA :::::::::::::::::::::::::::::::::::

(An appeal arising from a decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No. 14 of 2013 before Hon. Justice Kenneth Kakuru, JA, Hon. Justice Stephen Musota, JA, Hon. Justice Percy Tuhaise, JA dated 23^rd October, 2018.)

### JUDGMENT OF THE COURT

This is an appeal against the whole judgment and decision of the Court of Appeal on the following grounds:

1. That the learned Justices of Appeal erred in law in holding that the conviction and sentence of the respondents based on the amended indictment not pleaded to, was a nullity whereas not.

- 2. That the learned Justices of Appeal erred in law in failing to hold that, by not pleading to the amended indictment at the High Court, there was no miscarriage of justice occasioned to the respondents, in the circumstances. - 3. That the learned Justices of Appeal erred in law in ordering a retrial in the circumstances, thereby occasioning a miscarriage of justice to the Appellant.

#### **REPRESENTATION**

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.. .

At the hearing, the appellant was represented by George Okello, Assistant Commissioner, Litigation, assisted by Hilda Bakanasa, Manager Prosecutions, URA.

The respondents were represented by Evans Ochieng of Ochieng Associated Advocates.

### **BRIEF BACKGROUND**

The respondents had been tried at the Anti-Corruption Division of the High Court on two counts of unauthorized use and interception of computer services $c/s$ 15(1) and 20: electronic fraud $c/s$ 19; unauthorized access to data c/s 12(2) and 20; producing, selling or procuring, designing and being in possession of devices, computers, computer programs designed to overcome security measures for protection of data c/s 12(3) and 20 of the Computer Misuse Act, 2011.

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They were also charged with unauthorized access to a Customs computerized system $c/s$ 191(1)(a) and fraudulent evasion of payment of duty $c/s$ 203(e) of the **EACCMA**.

They pleaded not guilty, were convicted on all counts except one and sentenced accordingly. Being aggrieved by the decision of the High Court, the respondents appealed to the Court of Appeal.

The Court of Appeal allowed the appeal on the ground that the learned trial judge erred in law and fact when he convicted the appellants, now respondents, without them pleading to the amended indictment, which was prejudicial to them and occasioned a miscarriage of justice.

The Court of Appeal, therefore, ordered a retrial, they were remanded and appeared before the Anti-Corruption court, where they were charged with the very counts in the amended indictment, pleaded not guilty and were released on bail. Thereafter, they applied for, and were granted, a stay of proceedings pending the determination of the present appeal.

### GROUND 1 AND 2

- 1. That the learned Justices of Appeal erred in law in holding that the conviction and sentence of the respondents, based on the amended indictment, not pleaded to, was a nullity whereas not. - 2. That the learned Justices of Appeal erred in law in failing to hold that, by not pleading to the amended indictment at the High

Court, there was no miscarriage of justice occasioned to the respondents, in the circumstances.

Counsel for the appellants chose to argue both grounds together, since, in his view, they overlapped. He summarized the two grounds into the one issue of whether by not pleading to the amended indictment, the trial of the respondents was a nullity and whether a miscarriage of justice was thereby occasioned.

According to Counsel, the original charge sheet dated 22^nd June, 2012, was read to the accused persons including A1 and he pleaded not guilty. On 25^th June, 2012, one accused person, A3, was dropped from the charge sheet, charges were read again to the accused persons, including A1, who pleaded not guilty again. He was committed to the High Court for trial.

On 27^th July, 2012, the charge sheet was amended to add A2, the charge was read to him and he pleaded not guilty and was committed to the High Court for trial.

Counsel further submitted that when the matter came up for hearing before Mugamba J (as he then was), Counsel for the State asked to amend the charge sheet, to which Counsel for both respondents offered no objection. The learned trial judge thereafter pronounced that the amended indictment was allowed.

Counsel contended that it was erroneous for the Court of Appeal to nullify and quash the conviction at all. It was even more erroneous

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in quashing even the two counts which were not the subject of amendment.

He added that the learned trial judge and learned Counsel for the respondents all proceeded with the trial on the assumption that the accused persons had pleaded not guilty to all the charges.

Moreover, he added, the amendments were only to the particulars of offence and did not introduce new ingredients of the offence.

Counsel cited section 50(2) of the **Trial on Indictments Act, Cap 23**, which provides as follows:

"...where before a trial upon indictment or at any stage of the trial it is made to appear to the High Court that the indictment is defective or otherwise requires amendment, the Court may make such an order for the alteration of the indictment (by way of its amendment or by substitution or addition of a new count) as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required alterations cannot be made without injustice; except that no alteration to an indictment shall be permitted by the Court to charge the accused person with an offence which, in the opinion of the court, is not disclosed by the evidence set out in the summary of evidence prepared under section 168 of the Magistrates Courts Act"

$\mathsf{S}$

On the basis of that section, Counsel submitted that though the original indictment was not defective, it was amended to provide specific dates and amounts. Secondly, the amendment neither substituted nor added a new count and finally the amendment only increased the amount of money lost in revenue, which increase still amounted to a loss occasioned by the accused persons.

Counsel also referred Court to sections 51 and 139 of the Trial on **Indictments Act** to further augment their position that the Court of Appeal erred to declare the trial at the High Court a nullity.

In support of his submissions, Counsel further relied on Francis Masaba vs. Uganda, Supreme Court Criminal Appeal No. 24 of 1994; David Irungu Marage and Anthony Kariuki Kareri vs. Republic, Criminal Appeal No. 184 of 2004; Benjamin Kariuki Wairimu vs. Republic, Criminal Appeal No. 217 of 2008, Peter Gachigwa Migwi vs. Republic, Criminal Appeal No. 174 of 2007 and NNC vs. Republic, Criminal Appeal No. 46 of 2017.

He also distinguished the case of **Rev Father Santos Wapokra vs.** Uganda, Court of Appeal Criminal Appeal No. 204 of 2012 on which the Court of Appeal based their decision.

Counsel invited court to hold that decisions of courts below that have annulled and quashed convictions and sentences on the basis of noncompliance with section 51(a) of the Trial on Indictments Act do not represent good law.

Citing the cases of **<u>Uganda vs. Okae Terensio & 3 others</u>**, Criminal Appeal No. 13 of 2006 and U vs Borespeyo Mpaya (1975) HCB, **245** Counsel submitted that no injustice or miscarriage of justice had been occasioned to the respondents.

He therefore asked court to allow grounds 1 and 2 of appeal.

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In reply, learned Counsel for the respondents opposed the appeal. He contended that plea taking in the Magistrates Court must be distinguished from plea taking in the High Court after committal, since the two are governed by different laws;

The Magistrates Courts Act and the Trial on Indictments Act, respectively.

Counsel disputed the argument by learned Counsel for the appellant that the amendment only affected the rest of the counts except counts 5 and 6. He cited page 54 of the record of proceedings to support his assertion that the amendments affected all the counts.

On the issue of plea taking, Counsel contended that plea taking in the Magistrates Courts is governed by the Magistrates Courts Act while the trial process in the High Court is governed by the **Trial on** Indictments Act.

He added that the law, procedure and practice are that plea must be taken by a competent court before the trial begins, otherwise a trial without a plea is a nullity. He referred to **Zachary Kataryeba & 3** others vs. Uganda (1977) KALR 31 and Rev Father Santos Wapkora (supra).

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He therefore asked court to find that the accused persons did not take plea as required by sections $51(1)(a)$ and 60 of the **Trial on** Indictments Act.

He referred to Adan vs. Republic (1973) EA, 445 to show the procedural guidelines that must be followed during plea taking. He therefore emphasized that there is no pleading by assumption, plea taking being a non derogable right provided for under article 28(3)(b) of the Constitution.

He referred to **Makula International vs. Emmanuel Cardinal Nsubuga** (1982) HCB 11 to emphasize that an illegality once brought to the attention of court cannot be ignored.

On whether the respondents were prejudiced by not taking plea to the amended indictment, Counsel contended that they were indeed prejudiced because the crimes were committed in 2010 when the Computer Misuse Act, 2011, upon which the offences under the amended indictment were based, and some exhibits, like P3, had not yet come into force.

He referred court to the **Computer Misuse** Act, $$ (Commencement Instrument, 2011 SI No. 35 of 2011.

Counsel submitted that section 139 of the TIA cannot be used as a license to ignore the mandatory provisions of section $51(1)(a)$ of the TIA. He concluded by emphasizing that plea was not taken, it was an illegality and it was raised before judgment was given and ignored.

He therefore asked court to dismiss grounds 1 and 2 of appeal.

### **GROUND 3**

Learned Counsel for the appellants opened his submissions by citing the case of Laban Koti vs. Republic, (1962) EA 439 to contend that this was not a proper case for ordering a retrial.

He gave the following reasons to oppose a retrial:

- 1. Prosecution presented 26 witnesses, many of whom are no longer in the employment of URA. - 2. Exhibits presented included laptops, hard drives, modems and hard drives, which contained forensic evidence that gets eroded over time. - 3. MTN (U), employer of one the respondents retrieved some of the exhibited exhibits - 4. Respondents exercised their right to keep quiet at the trial and therefore a retrial would not serve a useful purpose. - 5. The respondents are not planning to change their plea of not guilty as evidenced by their plea at the re trial.

He, therefore, contended that this is a proper case of a technicality being used, which would defeat the spirit of article 126(2)(e) of the Constitution of the Republic of Uganda.

Counsel pointed out the fact that even the count where the accused persons were acquitted was subject to the order of retrial, which, in his view, points to a grave error in the order for retrial.

He therefore prayed that ground 3 is allowed.

In conclusion he prayed that the appeal is allowed, the decision and orders of the Court of Appeal are set aside and that **Criminal Appeal No. 14 of 2013** is remitted back for hearing by another panel.

Counsel for the respondent, on the other hand, contended that the Justices of the Court of Appeal never erred in law in ordering a retrial. He cited rule 32(1) of the Judicature (Court of Appeal Rules) Directions SI 13-10, which empowers court to order a retrial or a new trial.

In rebuttal to the learned Counsel for the appellant's reference to article 126(2)(e) of the Constitution, he argued that the article is subject to sections 51(1)(a) and 60 of the TIA, and therefore not a mere technicality.

He cited the case of **James Rwanyarare & another vs Attorney** General, Constitutional Petition No. 11 of 1997 in support of his assertion. He added that due process is a guarantee of a fair hearing, a non derogable right guaranteed by article 44 of the Constitution.

On the issue of exhibits getting eroded by the effluxion of time as advanced by learned Counsel for the appellant, Counsel contended that such an argument cannot stand in view of the fact that such exhibits were procured illegally contrary to sections 9, 10 and 11 of the Computer Misuse Act, 2011.

Referring court to the case of NSSF & another vs. Alcon International Ltd, SCCS No. 15 of 2009, he submitted that an

illegality can be raised at any time of the trial since court cannot sanction an illegality.

He cited section 28(3) of the **Computer Misuse Act, 2011**, which provides as follows:

"A computer system referred to in subsection (2) may be seized or samples or copies of applications or data may be taken, only by virtue of a search warrant."

He also referred to section 28(8) of the same Act, which provides:

"A computer system seized or samples or copies of applications or data taken by the authorized officer shall be returned within seventy-two hours unless the authorized officer has applied for and obtained an order in an interparty application for extension of time."

He added that since those provisions are couched in mandatory terms, their violation amounted to an illegality.

Learned Counsel continued that the evidence used to convict the accused persons was inadmissible and illegal. He added that the trial judge decided to circumvent the law by admitting such evidence thereby occasioning a miscarriage of justice to the respondents.

He prayed to court to dismiss the appeal and acquit the respondents.

In rejoinder, learned Counsel for the appellant, submitted that learned Counsel for the respondents had not responded to most of the submissions raised especially regarding section 39 of the TIA. Instead, he further submitted, they instead introduced matters

beyond the scope of the Supreme Court, as a second appellate court in this instance.

He mentioned allegations of obtaining evidence illegally as one of those, which were placed before the Court of Appeal, was not pronounced upon and therefore should not be raised in this court.

He also pointed out the attempt to submit on matters of evidence and evaluation of the same, which he contended were untenable since it was a ground of appeal at the Court of Appeal but was never decided upon.

He concluded by submitting that matters of Exhibit P,3 and the evaluation of the evidence of particular witnesses was not for this court.

He referred court to **Kifamunte Henry vs. Uganda, SCCA No. 10 of** 1997 to support his assertion that it is not the duty of the second appellate court to perform the duty of the first appellate court.

He further cited Areet Sam vs. Uganda, SCCA No. 20 of 2005, which stated, inter alia:

"We also agree with Counsel for the respondent that it is trite law that as a second appellate court we are not expected to reevaluate the evidence. However, where it is shown that they did not evaluate or reevaluate the evidence or where they are proved manifestly wrong on findings of fact, the court is obliged to do so and to ensure that justice is properly and truly served..."

He submitted that since the Court of Appeal did not determine the appeal on merit, he prayed that the matter be sent back to that court to hear it on merit.

In rejoinder to ground 3, Counsel for the appellant referred to the submissions of Counsel for the respondents as redundant and misguided. He reiterated his submissions that issues about evidence obtained illegally or otherwise were issues for the Court of Appeal to determine if the matter is referred back to that court.

He cited Rwabugande Moses vs. Uganda, SCCA No. 25 of 2014 in that regard:

"A question which then follows is whether this court can address an issue which the first appellate court had no opportunity to rule on but was nevertheless brought to the attention of this court. The general rule is that an appellate court will not consider an argument raised for the first time on appeal."

Counsel concluded by reiterating his earlier submissions and prayers.

## **CONSIDERATION OF THE COURT**

This appeal was premised on three grounds.

Counsel for the appellant decided to argue grounds 1 and 2 together. The facts as agreed upon by the lower courts are that the respondents were charged under the Computer Misuse Act and the East Africa Customs Management Act.

They were charged and committed to the High Court for trial. At the High Court, prosecution sought to amend the Charge sheet and Indictment. The amendment was allowed but the respondents, who had earlier on taken plea, did not plead to the amended charges.

The matter proceeded to the end and the respondents were found guilty, convicted and sentenced to terms of imprisonment.

Being aggrieved and dissatisfied with their conviction and sentence, they appealed to the Court of Appeal where they lodged 9 grounds of appeal.

The Court of Appeal agreed with the respondents, agreed that the trial was a nullity, quashed the conviction and set aside the sentence. Court ordered a retrial.

The respondents were then produced afresh before the High Court, charged with the very counts, pleaded not guilty and were released on bail. They then applied for, and were granted, a stay of proceedings at the High Court pending determination of the present appeal.

## GROUNDS 1 AND 2

Both parties agreed to merge grounds 1 and 2 into one ground. The issue that arises from those two grounds can be summarized into whether failure to plead to the amended plaint by the respondents was a nullity occasioning a miscarriage of justice to them.

It is not in dispute that there was an amendment to the indictment. It is not even disputed that, indeed, the respondents did not plead to that amended indictment.

According to the record of proceedings, the amendments were as follows:

"1. In effect to the period in the particulars of the 4 offences in count 1,2,3 and 4, I am amending to remove from the 2010 and adding during the period from 15^th April 2011 to June 2012.

"2. The figures in the revenue loss caused and this is applicable to all the counts(sic). The figure is changing from Shs $2,164,833,894/$ = to the new figure which I pray be included as Shs 2,461,447,275/= and 78 cents. That is all my Lord."

It was agreed that both Counsel for both respondents were present and expressed their no objection to the amendments. Whereupon the learned trial judge allowed the amendment to the indictment. Thereafter the trial proceeded.

Prior to the amendment, the respondents had pleaded **NOT GUILTY** to all the counts. The trial proceeded, witnesses were called and the respondents were found guilty, convicted and sentenced accordingly. It was only thereafter that the issue of not having pleaded to the amended indictment arose. Before that, the amended indictment had

not become an issue to the respondents. Or, if it had, they had chosen not to raise it.

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$\mathbf{v}_{\text{c}}$

Counsel for the respondents argued that according to the law, a trial proceeding without plea taking is a nullity. The issue here, however, is more advanced than just plea taking.

Indeed, the case of <u>Adan vs. $R$ </u> (supra) is instructive in this matter. It sets out the procedural guidelines that must be followed:

"(i) The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands.

(ii) The accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded.

(iii) The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.

(iv) If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered.

(v) If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused's reply should be recorded."

It is clear that none of the above guidelines was breached. If the guidelines were not breached, it is difficult to imagine how there could have been failure of justice.

From the indictment, the amendments related to the dates of commission of the offence. Instead of "year 2010 -2012" the amendment fine-tuned that to "period April 15^th 2011 – June 2012". It is obvious that the dates 15^th April 2011 to June 2012 ordinarily and clearly fall within the period 2010 to 2012.

The amendment therefore did not alter the facts or the dates in material particulars. The period in question remained essentially the same. Since the respondents had taken plea and neither they nor their Counsel, did object at any time during the trial proceedings, it would be a travesty of justice to declare the entire trial a nullity based simply on that amendment.

The other amendment related to the amount of money lost. It was amended from "Shs 2,164,833,894/=" to "Shs 2,461,447,275.78". Again, the amendment was not a fundamental amendment. It was, so to say, an adjustment of the figures. The fundamental allegation is that the respondents caused financial loss. The question of amount is a detail that can be adjusted and reconciled at any point.

So the question is whether financial loss was caused by the respondents, a question they pleaded NOT GUILTY to. It could be argued that if they pleaded **NOT GUILTY** to causing financial loss to a lesser amount, they are not likely to plead GUILTY to a larger amount of money. Indeed, as shown, when given the opportunity, they did not.

Section $51(1)$ of the TIA provides as follows:

"Where an indictment is altered under section 50

## 1. The court shall thereupon call upon the accused person to plead to the altered indictment"

The question to be determined is:

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"Are the aforementioned provisions mandatory or directory?

To answer this question would require a review of previous decisions of this court in which the interpretation of the word "shall" has been dealt with.

In the case of Sitenda Sebalu vs. Sam K. Njuba and the Electoral **Commission** (Election Appeal No 26 of 2007) (unreported) this Court discussed Section 62 of the Parliamentary Elections Act where the word "shall" is used. The Court held as follows: -

2. "<u>It is common ground that although prima facie the use</u> of the word "shall" in a statutory provision gives the provision mandatory character, $\boldsymbol{a}$ in some circumstances the word is used in a directory sense. Much as we agree with learned Counsel for the appellant to the extent that where a statutory requirement is augmented by a sanction for non-compliance it is clearly mandatory that cannot be the litmus test because all too often, particularly in procedural legislation, mandatory provisions are enacted without stipulation of sanctions to be applied in case of non-compliance. We also find that the proposal by Counsel for the $2^{nd}$ respondent to restrict the directory interpretation of the word "shall" $\;$ to only where it is shown that interpreting it as $a$ mandatory command would lead to absurdity or to $inconsistent$ with the Constitution or statute or would cause injustice, to be an unreliable formula, which is not supported by precedent or any other authority" (Emphasis Ours)

$\overline{\mathcal{M}}_{\mathcal{A}}$

Similarly, in the case of **Kampala City Council Authority vs.** Kabandize & 10 others, SCCA No. 13 of 2014, the court found that the word "shall" as used in the provisions of section 2 of the Civil Procedure (Miscellaneous Provisions) Act did not connote a mandatory meaning which required a plaintiff to serve statutory notice on a government, local authority or scheduled corporation, 45 days before instituting a suit against the aforementioned parties. The court in arriving at the decision that the failure to do so would not vitiate the proceedings held as follows:

> "As already stated in this judgment the rationale for $% \left\vert \mathcal{A}\right\vert$ the requirement to serve a statutory notice was to enable a statutory defendant investigate a case before deciding whether to defend it or even settle it out of court. There was a claim that no statutory notice was served but the appellant was able to file $a$ written statement of defence and adduce evidence in support of his defence. There was also nothing that stopped the parties from settling the case if ever a

> > 19

settlement was an option. This is a clear illustration that failure to serve the Statutory Notice does not vitiate the proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required more time to investigate the matter.

This however does not necessarily mean that this court's position is always directory and not mandatory. In the case of **Bitamisi** Namuddu vs. Rwabuganda Godfrey, SCCA No. 16 of 2014, where the court made a determination of the meaning of the word "shall" in the provision of Order 5 rule 1(3) of the Civil Procedure Rules. The court held as follows:

" $0.5 r. 1$ (3) clearly states that where summons are issued and service is not effected within 21 days from the date of issue and no application for extension is made "the suit shall be dismissed without notice". The consequences of failure to serve the summons within 21 days from the date of issue and not making application for extension of time in the prescribed period are clear and straight forwardthe provision does not give court discretion to decide whether to dismiss the suit. The action is dictated by law and it is mandatory. The dismissal is also effected without $\frac{1}{2}$ notice to the plaintiff."

From the foregoing, there is no clearly defined threshold for the interpretation of the word "shall" as used in a statutory provision. However, one thing is clear, the courts look at the intention of parliament while enacting the various provisions in order to determine what is mandatory or directory. For instance, in the case of **KCCA vs. Kabandize** (supra) it is shown that failure to serve statutory notice on the appellant did not affect the appellant's right to file a defence. The party affected was the plaintiff who decided to proceed without issuing the Statutory Notice because he or she risked being denied costs or cause delay of the trial if the statutory defendant was unable to file a defence because she required more time to investigate the matter. The case of **Bitamisi Namuddu vs.** Rwabuganda Godfrey (supra) is distinguishable because the consequences of non-compliance with the provision affected the respondent's right to a fair hearing that is guaranteed under Article 28 of the Constitution.

$\mathcal{L}$

We would conclude that section $51(1)$ of the TIA is one of those, given the circumstances of this case, which has to be construed as being directory rather than mandatory.

The Constitution of the Republic of Uganda, article 126, enjoins the courts to do substantive justice instead of majoring on technicalities. Article 126 provides as follows:

"Judicial power is derived from the people and shall be exercised by the courts established under this Constitution

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in the name of the people and in conformity with law and with values, norms and aspirations of the people.

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"(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles-

"(e) substantive justice shall be administered without undue regard to technicalities"

This is one of the cases where substantive justice requires that the anomaly pointed out in the process of plea taking be overlooked in favour of the wider cause of substantive justice.

There is no denying the fact that we would not be here had the respondents been asked to take plea after the amendment. It would have been neater. It would have removed any excuses.

However, it would be expecting too much to demand that all trials must run like clockwork, short of which they would result in nullification of the entire trial. We do not live in a perfect world so we have to evaluate the impact of any particular imperfection on the entire trial.

It is our view that the amendments did not go to the root of the fundamentals of the respondents' case. They pleaded NOT GUILTY and would have, most likely, still pleaded not guilty had they been asked to plead to the amended indictment. This is evidenced by the fact that indeed they pleaded **NOT GUILTY** at the retrial.

## **GROUND 3**

The issue under this ground is whether this was a proper case for ordering a retrial.

The reasons advanced by learned Counsel for the appellant as to why a retrial should not have been ordered include difficulty in tracing some or all the 26 witnesses that testified in favour of prosecution. Difficulty in tracing the exhibits, some of which were already taken by their various owners, while others have deteriorated.

not In any case, counsel continued, the respondents pleaded guilty and are not likely to change their plea. Neither are they likely to change their stance of keeping quiet and exercising their right to remain silent.

For these reasons, he argued, a retrial would cause a miscarriage of justice to the appellants as it would be tantamount to an acquittal.

Counsel for the respondents, understandably, disagrees with the submission that ordering a retrial would occasion a miscarriage of justice. He delved into the illegal circumstances under which the exhibits referred to by the appellant were accessed.

However, this court cannot delve into this particular matter since it was not canvassed in the earlier courts. Counsel similarly raises other matters from the trial, which he contends were illegal. These were not part of the grounds of appeal, were never canvassed in the lower courts and are therefore premature.

The case of **Rwabugande Moses vs. Uganda** (supra) is a case in point:

"A question which then follows is whether this court can address an issue which the first appellate court had no opportunity to rule on but was nevertheless brought to the attention of this court. The general rule is that an appellate court will not consider an argument raised for the first time on appeal."

The issues for appeal are clearly whether failure to take plea occasioned a miscarriage of justice and whether a retrial is the most just way forward.

Having resolved under grounds 1 and 2 that no miscarriage of justice was occasioned, it would therefore follow that ordering a retrial was not the right decision.

We would therefore answer ground 3 in the affirmative.

Having found that there was no miscarriage of justice and that ordering a retrial was therefore not called for, we would set aside the orders of the Court of Appeal, cancel bail and reinstate the orders of the trial court.

The respondents are therefore to start serving their sentence.

Dated at Kampala this....................................

Hon Justice Alfonse Owiny-Dollo

**CHIEF JUSTICE**

Hon Justice Stella Araçh-Amoko JUSTICE OF THE SUPREME COURT

Hon Justice Ruby Opio-Aweri JUSTICE OF THE SUPREME COURT


Hon. Justice Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

Hon Justice Mike Chibita JUSTICE OF THE SUPREME COURT