Introduction to Criminal Law Notes PT2

Section 1 of the Penal Code Act provides that "the Code is to be interpreted following the principles of legal interpretation, obtaining in England, and expressions used in it should be presumed, so far as is consistent with their context and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and should be construed in accordance in addition to that"

We note that criminal law is a creature of the common law, that is, Judge-made law. Some of the most significant crimes have their source in the common law. Murder and manslaughter are prominent examples. 

However, the majority of criminal offences are now statute-based. 

Such offences may either have originated in statutes or are common law offences whose elements have been incorporated into laws, such as theft and most crimes of violence. 

In the latter case, such statutes will not always define the entire common-law offence. 

This will leave the common law with a significant role still to fulfil. 

In Ireland, for example, the offence charged was a statutory offence, but the full scope of the crime is a matter of judicial decision.

 

Note: It should be noted that common law is made up of ancient customs and practices of England that have been recognized and given the source of direction. On the other hand, the doctrine of equity (fairness) was developed since the common law had become too rigid and could not be used to address all problems for which there was no precedent.

European Law and the European Convention on Human Rights are other vital sources of criminal law. It is essential in particular to understand the Convention and its impact. 

Rarely a month goes past without some aspect of domestic law being challenged for being inconsistent with the Convention. 

See ICC Statute in Uganda (Rome Statute).

 

Note: With nature, it means what criminal law of Uganda consists and source refers to where the law is derived from.

 Dodhia v National & Grindlays Bank Ltd and another [1970] 1 EA 195 (CAN)

The facts are that on 24 June 1960, National & Grindlays Bank Limited (the Bank) granted overdraft facilities to Mr Govindji Mulji Dodhia (the plaintiff) on the security of two letters of hypothecation.

In consideration of the Bank granting an overdraft, it was agreed that the plaintiff hypothecates to the Bank as continuing security for payment of the amount in respect of the said overdraft all goods of the description specified in the letters of hypothecation. 

There were also clauses relating to the value of the goods to be kept in the premises as well as keeping the hypothecated interests separate from other goods, giving power to Dodhia (plaintiff) to sell the hypothecated goods subject to crediting the proceeds of sale to the account, and other matters.

The Bank entered upon the shop premises and seized the goods therein and locked the shops since there was a clause to that effect. 

The goods were carried away and subsequently sold. The plaintiff filed a suit against the Bank, claiming, among other things, a declaration that the letters of hypothecation were wholly void and damages for trespass and conversion of the goods. The Bank counterclaimed for the amount owing to it by the plaintiff.

The first suit came before Miles, J., and on the preliminary issue, he held that the letters of hypothecation were wholly void as they were not attested. At the same time, the issue of whether letters of hypothecation which were not certified were completely void was the subject of entirely separate proceedings in 

Dharamshi Vallabhji v. National & Grindlays Bank Ltd., [1964] E.A. 442, 

holding that unattested letters of hypothecation were wholly void. 

During the trial in the High court, the first of these issues raised the question of whether the letters of hypothecation were valid. It was agreed that the High Court was bound by the decision of the Privy Council, which had held so.

One of the issues for determination by the East Africa Court of Appeal was whether the letters of hypothecation are totally invalid because of the lack of attestation. 

The decision of the Privy Council being the final court of Appeal in Kenya, in the case of Vallabhji was that unattested letters of hypothecation are valid inter parties and thus, would in the past have been binding on all subordinate courts, including that court.

Sir Charles Newbold P noted that this issue raises the question of judicial policy as to the extent to which the court, being the final court of appeal for Kenya, and indeed, also for Tanzania and Uganda, would continue to apply the principle of stare decisis. 

The question then raised was whether or not the decision of the Privy Council given at a time when it was the final court of appeal was wrong and whether, even if it was terrible, the East Africa Court of Appeal could now depart from it.

 He further noted that the court, when it was a subordinate court to the Privy Council, would always consider itself bound by the principle of stare decisis. 

In criminal cases, the principle was relaxed to some extent, like this Court, while it considered itself bound to follow a previous decision of the Privy Council, did not consider itself bound to follow an earlier decision of its own if it considered that by doing so, its decision would result in an improper conviction. 

Also Read: Introduction To Criminal Law Notes PT1

See Kabiu v R (1954), 21 E.A.C.A. 260 at p. 261)

The other important aspect noted was that since the Court became the final Court of Appeal for the sovereign countries of Kenya, Tanzania, and Uganda no decision of the Privy Council or of any English court or of any foreign court would be binding on it. 

Indeed, no such decision would be binding on any court in Kenya, Tanzania or Uganda, unless it was a decision of the Privy Council on an appeal from any of those countries, though in so far as any such decision sets out what is English law? 

The High Courts of Kenya, Tanzania, and Uganda would usually accept such to be the position. Even where English law is applied in any such country, its application would be subject to such modifications as the circumstances of the country and its inhabitants required, and it would be for the courts of such country to determine what those modifications if any, would be in any particular case to determine what is the law of such country.

 Under article 132 (4) of the constitution, the Supreme Court of Uganda is the final court of appeal and while treating its own previous decisions as usually binding, may depart from an earlier them when it appears to it right to do so, and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law. 

The Penal code is the primary source of criminal law, and the judicial officers in practice are free to refer to English Law in interpreting the code. 

However, the interpretation of the PCA with English law is not applicable where the code is unambiguous. This principle was discussed in the case;

Wallace Johnson v R (1940) 23 AC 

In this case, the accused was charged with sedition.  Under English law, a person is guilty of sedition if established that he intended to incite the public against the government. Under English law, the intention must be proved.

In the colony of the Gold coast, the intention was presumed in the Penal Code if a person published something.

The accused argued that since under English law, the intention must be proved, he was not guilty of the offence. 

The Privy Council argued that where the code is clear, there was no need to look for the interpretation from common law. 

The Penal code of Gold coast was clear, and the understanding of the words was accorded their ordinary meaning. The English law was found irrelevant.

This case illustrates that where the Penal Code is unambiguous, English law is not applicable.

 Customary Law

Customary Law is one of the sources of law in Uganda, just like other African countries.  Article 2 (2) of the Constitution and section 15 of the Judicature Act recognizes any existing customary law. In the pre-colonial period, the people used to conduct their activities following customary law. 

Therefore, we should understand customary law as rules and regulations derived from established and accepted norms and practices within a particular community.

 Question: In what circumstances during the trial of a criminal or civil nature under statute or common law should the court consider customary law? 

Usually, courts are regularly faced with deciding when to give effect to a custom if the principal rule to be applied is general. 

According to Ugandan circumstances, we should note that English law is not applicable when the Penal Code is understood differently. In 1917 a man was convicted on the counts of possession of the stolen property. His sentence was based on the evidence provided by the wife, who said she had seen him in possession of the stolen property

In R V Amkeyo (1917) EALR 14  

In 1917, a man was convicted on the counts of possession of the stolen property. 

His sentence was based on the evidence provided by the wife, who said she had seen him in possession of the stolen property.

The issue at hand, in this case, was whether customary marriages were to be recognized under Law.

Hamilton J dismissed the recognition of such kinds of marriages and reduced them to a mere "wife purchase".

In his statement "In my opinion, the use of the word ‘marriage’ to describe the relationship entered into by an African native with a woman of his tribe according to tribal custom is a misnomer which has led in the past to considerable confusion of ideas…The elements of a so-called marriage by native custom differ so materially from the ordinary accepted idea of what constitutes a civilized form of marriage that it is difficult to compare the two"

Alai v Uganda [1967] E.A 596

The appellant was charged with adultery under the Penal Code of Uganda. The particulars of the offence were that Alai Bin Sururu, on April 8, 1966, had sexual intercourse with Adija, not being his wife. The appellant and Adija pleaded not guilty to the charge.

The Chief Magistrate sitting as an appellate court held that a man and a woman who profess the Muslim faith could not be appropriately described as husband and wife under the Penal code since such marriages were potentially polygamous. 

According to Chief Magistrate, the complainant (Mohamed Umari) and Adija Bint Ibrahim was not husband and wife within the meaning of the Penal Code Act in which they were prosecuted.

 Sir Udo Udoma CJ held;

1.         That in interpreting the words “Any married woman” as specified in the Act, the legislature's intention intended the words to mean woman who is married to any man irrespective of the form of such marriages.

 

2.         That the vital point to note was that such marriage must have been conducted in one of the forms of marriages recognized by the people of Uganda, including weddings according to customs of the people. He noted that forms of marriages would include marriages conducted under or following customary law recognised by the Laws of Uganda.

Read the case of Abdulrahman Bin Mohamed and another v R [1963] 1 EA 188 (CAZ)  

 In the case of,

Oyat v Uganda [1967] 1 EA 827 (HCU)

On May 24, 1967, five oxen belonging to the complainant Petero Uma strayed into the farm garden of the appellant and therein destroyed the appellant’s maize and groundnut crops. The appellant was angry and seized them by way of distress damage. 

Shortly after that, the appellant, of his own volition, reported the matter to the clan chief, Chief Odulifu (alias Rudolph Kitara). The chief inspected the land and confirmed that the crops were, in fact, destroyed. The chief then discussed the matter with five others. 

The fact of the five oxen having been impounded was also brought to the notice of the complainant. In the course of the discussion, the appellant demanded the sum of Shs. 50/- for his crops, which had been destroyed, and maintained that he was not prepared to release the oxen unless he was paid that amount.

Finally, it was decided by the chief that Petero should pay the appellant the sum of Shs. 20/- by way of compensation for his crops which had been destroyed, and after that, the appellant was to return the five oxen to the owner. The sum of Shs. 20/- was to be paid within one week, failing which the chief undertook to report Petero to the mukungu chief. 

That decision was subsequently confirmed and approved by the mukungu chief.

In obedience to the chief's decision, the appellant immediately returned four of the oxen to Petero but retained one of them on the condition that he would only release it to Petero if he was paid the Shs. 20/- compensation awarded him. 

However, the complainant (Petero) was unable to pay the compensation of Shs. 20/- to the appellant. He complained that he had no money.

In his lien exercise, the appellant sold the oxen to Salimu Delei for the sum of Shs. 140/- on May 29, 1967, and as soon as Petero heard that the ox had been sold by the appellant, he immediately reported the sale to the mukungu chief and later that day to the police, at which point the appellant was arrested. The ox was rescued and handed over to Petero.

The police charged the appellant with having stolen and were convicted by a Magistrate Grade I, Magistrate’s Court, Acholi, for stealing cattle contrary to the Penal Code. He was sentenced to two years’ imprisonment.

He appealed against his conviction and sentence because the decision of the magistrate was wrong in law because the right which he exercised in selling the ox over which he had a lien.

Sir Udo Udoma CJ held that the right to seize domesticated animals destroying another’s crop either in his garden or farm is an ancient one. 

A person is entitled both by custom and under the common law to exercise the right of detaining and impounding any animal that destroys his crops until the owner of such an animal has compensated him for the crops destroyed.

The other circumstances where customary law is relevant in criminal law are;

·         The need to assess local circumstances. Role of assessors in capital offences.

·         When determining the blameworthy state of mind.

·         During sentencing by either a judge or Magistrate.

Read Next: Classifications of Crimes