THIRD APPEALS IN CRIMINAL PROCEEDINGS; THE LAW AND PRACTICE IN UGANDA

 

  Abstract:

Whereas appeals from decisions of the trial are on matters of law and effect, second appeals are on matters of law only, third appeals have rather unique circumstances and pre-requisite matters to address. This article shall cover the basics to all such appeals and then particularly address the uniqueness of third appeals.

 Introduction:

There is no inherent right of appeal. For an individual to appeal, he or she should show court that the right of appeal is expressly provided for in a given statute. This principle was discussed in AG vs Shah (No.4) (1971) EA 50, and followed with approval in the case of UNEB Vs Mparo Constructors Civil Appeal 19 of 2004.

 

Appeals From Grade (ii) Magistrate’s Court

Where the appeal is from a Grade II Magistrate’s Court, it lies in the Chief Magistrate’s Court. This is conversed in section 204(1)(b) of the Magistrates Courts Act. Section 204(2) of the Magistrate Courts Act provides that the scope of this appeal is limited to matters of law, fact or mixed law and fact.

It must be noted that where a person has pleaded guilty, no appeal shall lie therein except against the legality of the plea or sentence as enunciated in section 204(3).

 

Appeals From Chief Magistrate’s Court

An appeal from a Chief Magistrate’s Court lies in the High Court. This is provided for in section 204(1) (a) of the Magistrate Courts Act Cap 16. Subsection 2 provides that the scope of this appeal is on matters of fact, matters of law and matters of mixed law and fact. Section 204(4) provides that an individual cannot appeal from a sentence of one month or fine of less than one hundred shillings.

Appeals From The High Court

Article 134 of the Constitution 1995 and section 132 of the Trial on Indictments Act provides for the right of appeal from the High Court to lie in the Court of Appeal. It is further provided for in section 10 of the Judicature Act Cap 13 that an appeal from the High Court shall lie in the Court of Appeal.

It must be noted that the scope of this appeal is provided for in section 45 of the Criminal Procedure Code Act and it covers matters of law only.

 

THIRD APPEALS

Procedure for getting a certificate of general importance

Section 46 Criminal Procedure Code Act of the  same act provides that where this is a third appeal, one needs to get a certificate of general importance.

This is covered in both the Judicature (Court of Appeal) Rules Directions and the Judicature (Supreme Court) Rules Directions, depending in what court an individual is applying to:

In case it is the Court of Appeal;

Rule 39 (1)(a) of the Judicature(Court of Appeal) Rules Directions (herein after referred to as the court of appeal rules) provides that an application is made to the High Court where the Applicant prays for a Certificate general importance.

 

Rule 2 of the Court of Appeal Rules provides that applications to the High Court should be by Notice of Motion supported by an affidavit.

Rule 4 places a mandate on the Applicant (usually the convict) to give Notice to the Police. This is fortified by Namuddu Vs Uganda SCCA 3 0f 1999, which lays down the considerations for the certificate of general importance.

 

In case it is the Supreme Court;  Rule 38(1) (a) of the Judicature(Supreme Court) Rules Directions (herein after referred to as the supreme court rules) provides that where an appeal lies if the court of appeal certifies that a question or questions of public importance arise, applications to the court of appeal shall be made informally at the time the decision of the Court of Appeal is given against which the intended appeal is to be taken. Rule 38(1) (b) provides that where the court of appeal declines to grant a certificate referred to in para a, then an application may be lodged in the Court within fourteen days after the refusal to grant the certificate by the Court of Appeal.

 

Appeals from the Court of Appeal.

Article 132(2) of the Constitution provides that a right of appeal from the court of appeal shall lie in the Supreme Court. This is further fortified by section 5(1) of the Judicature Act Cap 13.

Scope of appeals to Supreme Court:

If it is a conviction from the High Court, or court of appeal, the scope of the appeal in the Supreme Court is limited to matters of law, or mixed law and fact, per section 5(1) (a) of the Judicature Act.

If it is an acquittal from the High Court; and a subsequent conviction in the Court of Appeal, the scope of appeal in the Supreme Court is limited to matters of law, fact or mixed law and fact, section 5(1) (b) of the Judicature Act.

If there is a conviction in the High Court; followed by an acquittal in the court of appeal, the DPP’s appeal in the supreme court is limited on matters of law or mixed law and fact for a declaratory judgment, section 5(1) (c) of the Judicature Act.

 

If there is an acquittal in the High Court, followed by a subsequent acquittal in the Court of Appeal, the DPP’s appeal to the supreme court is limited to matters of law of General importance, section 5(1) (d) of the Judicature Act.

 

In conclusion therefore; It must be noted that appeals in criminal matters arise from final orders for examples convictions, acquittals, special findings, ruling on no case to answer. This principle is fortified in Charles Twagira vs Uganda SC Crim. Application 3 of 2003 before Tsekoko JSC.

 END 

 “The calling to be an Advocate is divinely Ordained” – Oliver Holmes

AHIMBISIBWE INNOCENT BENJAMIN

(Entertainment Lawyer)