The law and practice of CRIMINAL REVISION in Ugandan courts Analysed

The Criminal Revision applications are premised under Sections 48 and 50 of the Criminal Procedure Code Act Cap 116 and Section 17 of the Judicature Act Cap 13. Section 48 of the Criminal Procedure Act, provides for the Power of courts to call for records. It states that, ‘The High Court may call for and examine the record of any criminal proceedings before any magistrate’s court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the magistrate’s court.’

Section 48 of Criminal Procedure Act, vests the High Court with powers to call for the records of the magistrates’ court. Then the power of the High Court to consider an application for Criminal revision is premised under Section 50 of the Criminal Procedure Act Cap 116. Section 50 which provides for the Power of High Court on revision states that:-

1)    In the case of any proceedings in a magistrate’s court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may—

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 34 and 41 and may enhance the sentence;

(b) in the case of any other order, other than an order of acquittal, alter or reverse the order.

 From the above provisions, it’s clear that Criminal Revision is exercisable only when it appears that in the proceedings in the magistrates court contain, an error material to the merits of any case or involving a miscarriage of justice has occurred. The High Court is then empowered to enter a Revisional Order, in case of a conviction, or in case of any other order other than an order of acquittal.

The question then is: What order does the law refer to in Section 50 (1) (b) of the Criminal Procedure Code Act, as ‘any other order.’? In the case of Uganda vs Dalal [1970] 1 EA 355 (HCU), Justice Mukasa Ag J (as he then was) at page 357 stated explicitly that, “It is obvious, as Jones, J., remarked in Cr. Rev. 81/63, Geresomu Musoke v. Uganda (unreported), on reading ss. 339 to 341 of the Criminal Procedure Code only a final order can be the subject of a revisional order of this court. At the moment no such order is on the lower court’s record. If this were not the case all sorts of magistrates’ rulings would be finding their way to this court and I can well imagine a clever accused who likes to avoid a prosecution to conviction delaying such prosecution by making a series of objections, on which a trial magistrate would be compelled to rule and thereafter appeal to this court time and again. I agree entirely with Mr. Korde that these proceedings now before this court are misconceived. The trial in the Court below should continue and in the event of the prosecution’s being dissatisfied with the final decision of that court, this present ground could form part of the grounds of appeal. This petition is therefore incompetent. It follows then that it is unnecessary for me to go into the merits.”

This position was adopted by Justice Michael Elubu in the case of Barasa Bernard Odiemo and another vs Uganda Criminal Revision No. 1 of 2017, at page 4, parag 5, 6 & 7 where the trial Judge further said that ‘It is therefore clear that in the instant case as well, the applicant had no locus to bring this application, against the trial magistrate’s order rejecting his preliminary objection, as that order was interlocutory in nature.’ For those reasons, the application for Revision was dismissed.

I entirely agree, and adopt the above as the correct position of the law.

Similarly, in the case of Uganda vs Okumu Reagan & others Criminal Revision No. 0003 of 2018 at page 4, paragraph 1, Justice Stephen Mubiru in part stated that: ‘ … the revisional powers are not ordinarily exercisable in relation to interlocutory orders but to final orders. … Merely because a Magistrate’s Court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify the interference or revision unless it has also resulted in grave injustice. ….’

Clearly interlocutory orders are neither subject to appeal in the pendency of a trial, nor subject to Revision by the High Court. It’s therefore clear that, the Order of Court referred to under section 50 (1) (b) of the Criminal Procedure Code Act is a final order of the lower Court. It’s the only one that can be subject of a Revisional Order.  It follows therefore, that applications for revising Interlocutory orders will not and should not be entertained by the High Court.

In the case of Charles Harry Twagira vs Uganda – Criminal Application No. 3 of 2003, the applicant therein sought a Revisional Order under Section 48 and 50 (1) (b) CPCA, but the same was dismissed by Bamwine J (as he then was) (in page 2) to wit that there is nothing irregular about the procedure adopted by the trial magistrate so far as anything prejudicial to the petitioner on the face of the record to warrant a Revisional Order’. The matter went upto the Supreme Court.  Wherein Justice Tsekooko (in Page 5) stated that: ‘In my view this provision is in line with the provisions of S.216 of MCA. The Statute does not define the word “Judgment”. The above quoted S.6 (5) refers to a judgment of a Chief Magistrate. Article 257 (1) of the Constitution interprets the word “judgment”. It interprets it this way- “Judgment” includes a decision, an order or decree of a Court. In my view, this interpretation means a final decision of a court, but not a discretionary order or ruling in an interlocutory matter such as a finding that there is a prima facie case as the Chief Magistrate did.’ He further stated that, ‘The decision of Bamwine,J, and of the Court of Appeal are interlocutory decisions and not final decisions.’

From the above case, it’s clear that a Judgment, is the final order of Court envisaged under Section 50 (1) (b) of the CPCA. A Judgement is defined to mean, the Final order of the court, in a criminal case; the conviction and sentence or acquittal constitute the judgment. And a Final Order is an order that substantially ends the lawsuit between the parties, resolves the merits of the case, and leaves nothing to be done but enforcement.

 Clearly, not all decisions given in the course of the proceedings in court are judgments or final orders. The last nail, in guiding what amounts to a final order of court or judgment, is premised in the case of Firstrand Bank Limited t/a First National Bank vs Makaleng (034/16 [2016] ZASCA 169, page 8 para 2. It was stated that a “judgment or [final] order” is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

It is thus my understanding that a final order in a criminal litigation, is the appealable order. The fact that a decision may cause a party an inconvenience or place him at a disadvantage in the criminal litigation which nothing but an appeal can cure, does not make such a decision susceptible to criminal Revision.

In the case of Okiror James vs Uganda Criminal Revision Cause No. 003 of 2010 page 5, 6, whilst citing the case of Charles Harry Twagira vs Uganda – Criminal Application No. 3 of 2003, the Hon. Justice Godfrey Namundi stated that ‘the right to a fair trial, should not be stretched to mean giving a right to an accused person to challenge each and every point of objection as this would unduly undermine procedures and effective trials and would open gates to abuse of the process of Court and the due administration of justice. Further, the decision of the trial Court does not call for Revision as it is not a final Judgment or decision within the provisions of the Magistrate’s Court Act.

I rightly agree with this position.

Section 17 (2) of the Judicature Act states that ‘With regard to its own procedures and those of the magistrates’ courts, the High Court shall exercise its inherent power

a)    To prevent abuse of process of the court by curtailing delays, in trials and delivery of judgment including the power to limit and discontinue delayed prosecutions

b)    To make orders for expeditious trials, and

c)     To ensure that substantive justice shall be administered without undue regard to technicalities

 The rational of Section 17 (2) Judicature Act is to prevent abuse of Court process, facilitate expeditious trials, curtail delays in delivery of judgment and ensure that substantive Justice is administered. The hallmark of Section 17 (2) of the Judicature Act is that Litigation must come to finality. Subjecting interlocutory orders to revision achieves just the opposite.

 Thus a criminal revision application brought against the interlocutory orders is preposterously clouded with illegality, irregularity, and impropriety. It is incompetent, premature, incurable in law, and utterly misconceived. It is a material error, involving a miscarriage of justice. It’s only aimed to delay, frustrate or injuct the delivery of substantive justice, and is not deserving of a Revisional Order.

"A family which Reads together, passes together"

 AHIMBISIBWE INNOCENT BENJAMIN

(Entertainment Lawyer)

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