The Principles of Criminal Liability Unveiled

The Principles of Criminal Liability Unveiled

Tuesday, September 16, 2014

The general basis for imposing criminal liability in criminal law is that the defendant must be proved to have committed a guilty act while having had a guilty state of mind. The physical elements are collectively called the actus-reus and the accompanied mental state which is called the mens-rea.
It is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof the defendant will be acquitted.

Actus ReusAn actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question - in other words all the elements of an offence other than the mental element.

Crimes can be divided into two categories:

• First, there are conduct crimes where the actus reus is the prohibited conduct itself. For example, the actus reus of the offence of dangerous driving is simply "driving a mechanically propelled vehicle on a road or other public place" . No harm or consequence of that dangerous driving need be established.
• The second type are known as result crimes where the actus reus of the offence requires proof that the conduct caused a prohibited result-or consequence. For example, the actus reus of the offence of criminal damage is that property belonging to another must be destroyed or damaged.

The Actus Reus Must Be VoluntaryThe accused's conduct must be "voluntary" or "freely willed" if he is to incur liability. It may be involuntary for a variety of reasons:
 
AutomatismAutomatism occurs where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor. See: R v Quick [1973)3 All ER 34 7.

Reflex ActionSometimes people can respond to something with a spontaneous reflex action over which they have no control. Although slightly different, this is sometimes classed as a form of automatism.The classic example is that given in Hill v Baxter [1958)1 All ER 193, of someone being stung by a swarm of bees while driving, and losing control of the car.

Physical ForceThe conduct may be involuntary in that it is physically forced by someone else, in which case there will be no actus reus. See: Leicester v Pearson [1952) 2 All ER 71.
 
State Of Affairs CaseOne group of cases which cannot be discussed in terms of voluntary acts are often referred to as the "state of affairs" cases. These crimes are defined not in the sense of the defendant doing a positive act but consisting in the defendant "being found", "being in possession" or "being in charge" etc.
In some such cases all the prosecution needs to prove are the existence of the factual circumstances which constitute the crime - the existence of the state of affairs. See: R v Larsonneur (1933) 24 Cr App R 74. Winzar v Chief Constable of Kent (1983) The Times 28 March.

OmissionsCan a person be held criminally responsible for a failure to act? The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action: "Unless a statute specifically so provides, or ... the common law imposes a duty upon a person to act in a particular way towards another ... a mere omission to act [cannot lead to criminal liability)." (R v Miller [1983)1 All ER 978.
A positive duty to act exists in the following circumstances:

(a) Duty Arising From StatuteLiability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action.A leading example of such a case is provided by the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. See also: Greener v DPP (1996) The Times, Feb. 15, 1996.

(b) Duty Arising From ContractWhere a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. See: R v Pittwood (1902) 19 TLR 37.

(c) Duty Owed To Family MembersThe common law recognises a duty that members of a family owe to each other to care for each other's welfare. See: R v Gibbons and Proctor (1918) 13 Cr App Rep 134.
The problem with such common law duties is that their exact limits are rather difficult to define, hence it may be difficult to determine when liability is likely to arise.

(d) RelianceThe courts have in recent years moved towards recognising the existence of a common law duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal. See: R v Stone and Dobinson [1977] 2 All ER 341.

(e) Duty Due To Defendant Prior To ConductIf the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. See: R v Miller [1983)1 All ER 978.

CausationQuestions of causation can present problems in the consideration of actus reus. When the definition of an actus reus requires the occurence of certain consequences, the prosecution must prove that it was the defendant's conduct which caused those consequences to occur.For example, in murder the prosecution must prove that the victim died; in section 18 of the offences Against the Person Act 1861 that the victim was wounded or caused grievous bodily harm; and in criminal damage that the property was destroyed or damaged.
In such crimes it is necessary for the prosecution to prove that the accused's act caused the oonsequence or in other words that the accused is liable as a matter of causation for the crime.
Most of the reported cases are concemed with murder and manslaughter where certain problems do arise. For example, see: R v White [1910)2 KB 124.

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Adjournments And Prosecutions Of Suits In Uganda

Adjournments And Prosecutions Of Suits In Uganda

Tuesday, September 09, 2014

Under Order 17 rule 1(Civil Procedure Rules), the court may as any stage of the suit if sufficient cause is shown, grant time to the parties, or to any of them, and may from time to time adjourn the hearing of the suit. An adjournment is not granted as of right but is only granted for sufficient cause. It involves the exercise of discretion by the court and this must be used judiciously.

An adjournment can be denied if it will occasion an injustice. If an application is vague and half hearted, the trial judge is justified in refusing the adjournment as was held in Birungi Wilbon V Akamba Ug Ltd. S.C.C.A. No. 12/94.

Court can adjourn for any reason which in its discretion is sufficient. If a new matter is raised at the trial which catches a party unaware, an adjournment if applied for should be granted to the party concerned to prepare his or her case in response to the matter. This was held in Ssalongo V Nantegolola 1976 H.C.B. 290.

In Abdala Babib v Harban Singh Rajput [1960] EA 325(U), when the plaintiff’s case came up for hearing his advocate applied for an adjournment on the ground that his client , who lives in Ruanda – Urundi , was for some unexpected reason absent. The defendant objected as his witness had come at a cost of 800/= from great distances, and because the plaintiff had been dilatory. It was held that no sufficient cause had been shown for granting an adjournment and accordingly the application was dismissed. Sheridan, J at. Page 326 said that:

“Under Order 15 rule 1 (equivalent to O.XVII R1) the court may if sufficient cause is shown grant an adjournment. The corresponding Indian provision is order 17 rule 1. In Chitaley and Rao’s Code of Civil Procedure (6th Edition) Vol.2, p.2631 instances are given of what has been held to be a sufficient cause. Here there is no suggestion that the plaintiff has been taken by surprise or was unaware of the hearing date. All that can be said on his behalf is that for some unexplained reason he has failed to communicate with his advocate. Generally his conduct has been dilatory and since the defendant has been granted leave to defend he has shown a lack of zeal in prosecuting his claim. Apart from the fact that it is probably not maintainable in the absence of a satisfactory explanation for the absence of a criminal prosecution it would be unfair to penalise the defendant further. No sufficient cause has been shown for granting this application. It is dismissed with the result that the suit is also dismissed with costs.”

The grant of an adjournment is a discretionary power which will not normally be interfered with on appeal. In the case of Mohindra v Mohindra (1953) 20 EACA 56, when the suit came up for hearing before the court of first instance, the appellant asked for an adjournment on the ground that he wished to engage an advocate. He intimated that he wished to call no other witnesses than himself. The trial judge refused the application without giving reasons. On appeal it was held that only on rarest occasions will the appeal court interfere with the discretion of the trial judge as to the adjournment of a trial. Quoting Corzens-Hardy, MR in the case of Sackville West v AG (128 LTJ 265), it was further held that the court of appeal will only interfere where the judge’s decision was such that justice did not result for the exercise of his discretion and he failed to see that such would be the effect of his decision.

Shah & Anor. V Osman Allu 14 EACA 45(K), it was held that the discretion of a court to grant or refuse an adjournment will not be lightly interfered with by an appellate court. An unjudicial or unreasonable exercise of discretion must be shown to have occurred.

Application For An Adjournment

It should be taken after due consideration is made in light of Article 28(1) of the constitution which enjoins the courts to determine civil rights in a speedy way. It should be noted however that an application for an adjournment must be made by counsel before court and adjournments by letter are not adopted under normal circumstances.

Similarly an application for adjournment cannot be made by telephone and in such circumstances, counsel applying should ask another counsel to hold his brief for purposes of an adjournment.

Under Order 17 rule 2(b), where a suit is adjourned generally, either party is at liberty to apply to court to have the case restored to the list. Where no such application is made to the court within twelve months of the last adjournment, the court may give notice to the parties to show cause why the suit should not be dismissed and if no sufficient cause is shown to the court, the suit shall thereby be dismissed (Order 17 rule 2).

The court is empowered under order 17 rule 3 to dispose of the suit in one of the modes provided for in order 9 where the parties or one of them fails to appear on the day on which the hearing of the suit was adjourned. The court can alternatively make such orders as it thinks fit.

Order 17 rule 4 provides that: “Where any party to a suit to whom time has been granted fails to produce his or her evidence, or to cause the attendance of his or her witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding that default, proceed to decide the suit immediately.”

A suit may be dismissed for want of prosecution under Order 17 rule 5 which provides that: “if the plaintiff does not within eight weeks from the delivery of any defence, or, where a counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution, and on the hearing of the application the court may order the suit to be dismissed accordingly, or may make such other order, and on such terms, as to the court may seem just.”

Under order 17 rule 6, in cases not otherwise provided for, the court may order a suit to be dismissed where no application has been made or no step has been taken by either party with a view to proceeding with the suit. In such a case, the plaintiff may, subject to the law of limitation bring a fresh suit.

In Nyiramakwene v G. Bitiro [1973] HCB 58, the file in this case was submitted to the High Court for directions on the issue of dismissal of the suit for want of prosecution. The suit was filed in the District Registry of the High Court at Mbarara on the 22nd April 1968. On 28th January 1969, the summons was served on Messrs. Mboijana &Co. Advocates who on the same day wrote to the plaintiff’s advocates stating that they had no instructions to act for the defendant. No affidavit of service was filed, nor was an attempt to obtain interlocutory judgment under Order 9 rule 6 in default of appearance and the matter stood without any further steps being taken by the plaintiff or her advocate with a view to proceeding with the suit. Consequently, the District Registrar, on 18th January, 1973 forwarded the file to the High Court for directions regarding the dismissal of the suit for want of prosecution.

It was held that Order 15(now 17) rule 6 enables the court of its own initiative without notice to either party , to dismiss the suit after what was prima facie an inordinate delay of two years. The court relied on the judgment of Russel, J in Pirbhai Lalji & Sons Ltd v Hassanali Devji (1969) EA 440.

Referring to a corresponding provision, the court in the case of Victory Construction Co. V Duggal [1962] EA 697 stated that only a step taken on the record, such as an interlocutory application, could amount to such step as envisaged by rule 6. In this case, the parties had agreed to refer the matter to an arbitrator which attempt had failed and the plaintiff contended that reference of the dispute to arbitration amounted in effect to a “step taken” under rule 6. The court rejected the view that reference to informal arbitration was a step taken with view to “proceeding with the suit”. Although the court in this case did not exercise that discretion, it pointed out that the purpose of rule 6 is to provide the court with administrative machinery whereby to disencumber itself of case records in which the parties appear to have lost interest .

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Key Definitions regarding Bail In Criminal Proceedings

Key Definitions regarding Bail In Criminal Proceedings

Friday, August 15, 2014

The purpose of this post is to act as a user’s guide or manual for detainees, detainees’ relatives, legal aid service providers, paralegals, prison officers and all kinds of people who relate with pre-detainees on a regular basis. It's purpose is to educate this category of people on the rights of pre-trial detainees and what they can do to secure their rights.

This post has been dived into three parts which are; 

Part One examines Pre-Trial Detention in Uganda and how one becomes a detainee and whether the pre-trial detainee have any rights or freedoms. The part enumerates the rights of Pre-Trial detainees as stipulated in the 1995 Constitution of Uganda in contrast with other International Instruments that provide for rights of pre-trial detainees and how they are protected and promoted as ratified by Uganda.

1. Pre-trial detention in Uganda.
2. Reasons for arresting and detaining a person
3. Who has power to arrest? 
4. Procedure of arrest and detention 
5. Pre- trial detainees rights

Part Two covers the meaning of bail, common bail terms and the Laws relating to bail.

What is bail?

1. The laws applicable to bail
2. Object of bail
3. Effect of bail
4. To grant or deny bail

Part Three covers Court’s interpretation of the Law on bail. It also looks further at the steps one can follow in order to apply for bail in different Court’s of Judicature.

1. Courts interpretation of the law on bail
2. Procedure for applying for bail
3. Challenges posed by the law on bail

Key Definitions

• Acquittal is the discharge from prosecution upon a verdict of not guilty oron a successful plea of pardon.

• Bail Bond is the form signed at court when executing bond to guaranteethat the accused person will return until the conclusion of investigations.

• Committal proceedings are when a person is charged in a magistrate’s courtwith an offence triable by the High Court; the case is eventually referred tothe High Court for plea taking and hearing.

• Conviction is the finding of a person guilty of an offence after trial.

• Ratification is a formal ceremony whereby some time after the signing of atreaty, the parties to it exchange solemn confirmations of it so as to make it binding to them.

• Plea taking is when the substance of the charge is read out and explained and the accused is called upon to state whether he admits the truth of the charge.

• Police bond is the temporary release of an accused person from police custody as investigations go on. Police bond is free of charge.

• Recognizance is an obligation or bond, with or without sureties, acknowledged before a court or authorized officer, and enrolled in a court record. Its purpose is to secure the performance of some act by the person bound, such as to appear in court.

• Remand This is when on adjournment of a hearing to a future date, court orders that the defendant is kept in custody in the meantime.

• Summons is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the court.

• Surety is a person who binds or guarantees himself/ herself, to satisfy the obligation of another if he/ she fails to do so.

• Sanctioning is when the DPP peruses a police file to determine whether there is enough evidence to institute criminal proceedings against the accused.

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Law Relating To Pre- Trial Detention In Uganda - Paralegal Reference Hand book

Law Relating To Pre- Trial Detention In Uganda - Paralegal Reference Hand book

Friday, August 15, 2014

Pre-trial detention is broadly defined by The Paralegal Reference Hand book, FHRI, 2002, pg 70 as the holding of an accused person on criminal charges in custody (whether in prison or police custody) before trial and decision of court. Once an accused person is arrested and detained in lawful custody, the accused person is referred to as a “detainee”. A person who is detained before trial or before court makes a decision on his/her case is classified as a person on remand.

Reasons for arresting and detaining a person

A person would be arrested for any of the following reasons; Section 21 of the Police Act, Cap 303

• If he/she is accused of having committed an offence or a crime,

• If he/she has committed a crime,

• If he/she has to be presented in court to answer charges against him or her,

• If the police is carrying out investigations against him/her in relation to an offence he/she allegedly committed,

• If he/she attempts to commit a crime,

• If he/she is planning to commit an offence.

Power to arrest

The power to arrest a person is contained in the following laws;

The Criminal Procedure Code Act thus Criminal Procedure Code Act, Cap 116. Which is the major body of law regulating treatment of accused persons? It gives powers of arrest to;

i. Police officers,

ii. Any Magistrate to arrest or direct the arrest of a person who commits a crime in his/her presence within the local limits of his her area of control.

iii. Any private person to arrest a person who commits an offence, or arrest a person he/she reasonably suspects of having committed a felony or major offence.

•The Police Act thus The Police Act, Cap.303 No. 21 of 2000 gives and regulates powers of arrest to Police officers.

• The Local Government Act The Local Government Act, Cap. 243 No.69 of 2000 gives powers of arrest to chiefs.

• Uganda People’s Defense Forces Act thus UPDF Act, No 7 of 2005 in Section 185 gives powers to the public or member of the army to arrest any member of the armed forces committing an offence or who is wanted to answer to charges, or who is accused of being about to commit a crime.

Procedure of arrest and detention

A person becomes a detainee when he or she is either lawfully arrested and is detained in custody or is summoned by Police while conducting investigations into a case. Formal or lawful arrest and detention follows the following procedure;

• Upon receiving a report that an offence has been committed, the Police opens a file and registers the case by giving it a Criminal Register Book number (CRB).

• Police starts investigating the case by taking the statement of the complainant, summoning witnesses to the commission of the offence and the accused person and records their statements.

• If the accused person does not answer to the summons, the Police forward the file to a Magistrate who issues a warrant of arrest. This is a document which instructs the Police to look for the person named therein and arrest him forthwith. The purpose of the warrant of arrest is to ensure that the accused person answers to the charges brought against him or her.

• Upon arrest, the accused person is interrogated or asked questions, produced in court for charging and trial. Police should do this within forty eight (48) hours.

• If by the time of arresting the Police have not finalised their investigations and the offence with which the accused person is charged is a minor offence, the Police can release the accused person on Police Bond pending conclusion of the investigation process. The Police has a discretion to grant or deny an accused person bond if he or she is accused of committing a major offence, but nevertheless, they must produce that person in court within 48 hours of arrest.

• The Police send’s the file to the State Attorney to sanction the charges against the accused person. Sanctioning is an administrative measure by which the Director of Public Prosecutions assesses whether evidence collected by Police is sufficient to sustain the charges brought against an accused person.1

• If on perusal of the file it is established that evidence is insufficient, the Director of Public Prosecutions sends the file back to Police to gather more evidence.

• The accused person is produced in Court, where the Magistrate reads out the offence which the accused person is alleged to have committed and asks him or her to plead. The accused person should tell court whether he/she pleads guilty or not guilty. On doing this the Magistrate remands him/her  unless he/she applies for bail and sets a date for hearing the case.

• If the accused person pleads not guilty, the Magistrate informs him or her of his right to apply for bail. The accused person can apply for bail there and then or be remanded and instruct a lawyer or any other person knowledgeable about the procedure to apply for bail on his/her behalf.

For offences which are only triable by the High Court, the accused is charged in a Magistrate’s court, but he or she is not allowed to plead to the charges. The Magistrate informs him/her about the right to apply for bail in the High Court and remands him/her. The detainee can then file an application for bail at High Court where the Judge hears it and takes a decision on whether to grant or deny him/her bail. When the prosecution finalises its investigations, the accused person is committed to the High Court for trial.

For cases which are triable by the Magistrates court but are not bailable by them for example embezzlement, when the accused person is presented in Court, he/she takes a plea and is remanded. He/She is informed of his/her Right to apply for bail in the High Court which he/she can exercise any time before the trial process is completed.

The right to bail is a fundamental right guaranteed by Article 23 (6) of the 1995 Constitution of the Republic of Uganda. Its basis roots from Article 28 which provides that an accused person is to be presumed innocent until he/she is proved or he/she pleads guilty. It further provides that the accused is entitled to a fair and speedy trial before an independent and impartial court or a tribunal which is established by law.

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Criminal Procedure Course outline and Description

Criminal Procedure Course outline and Description

Friday, March 28, 2014

A. Course Description
Criminal Procedure is a practical subject that deals with the legal procedure for bringing criminal offenders to justice. These rules are found in statutory enactment and case law.

B. Course Objective
At the end of this course, the student will be able to;
1. Appreciate the legal basis for police work regarding crime, particularly police investigations.
2. Demonstrate an understanding of the law relating to how suspects (or persons in conflict with the law) are brought to justice before the courts of law.
3. Be able to understand the procedures and legal basis for punishment.

C. Basic legal Materials
The Constitution of Uganda, 1995
The Magistrate Court Act Cap 16
The Magistrates’ Courts (Amendment) Act, 2007
The Criminal Procedure Code Act Cap 116
The Trial on Indictment Act Cap 23
The Penal Code Act Cap 120
The Penal Code (Amendment) Act, 2007
The Prisons Act Cap 303
The Probation Act Cap 12
The Children’s Act Cap 59
The Habitual Criminals (Preventive Detention) Act Cap 118
The Extradition Act Cap 117
The Judicature Act Cap 13
The Court of Appeal Rules, Directions, 1996
Justice of Peace Act Cap 15
The Magistrates Courts (Magisterial Areas) Instrument, 2007

D. General Readings/Textbooks

- Ayume, Francis J., Criminal Procedure and Law in Uganda, Longman, 1980
- Odoki, B.J., A Guide to Criminal Procedure in Uganda, Kampala. L.D.C Publishers 1975
- Odoki, B. J., Cases on Criminal Procedure Vol. II L.D.C. Publications: A Handbook for Magistrates, Kampala, 1972
- Brown Donglas, Criminal Procedure in Uganda and Kenya ( 2nd ed.), London, Sweet and Maxwell, 1970
- Ssekandi F. W., Specimen Charges for Common Offences in Uganda, Kampala L.D.C Publishers, 1975
- Roger Arguile, Criminal Procedure, London, Butterworths
- Odoki, B. J, Sentencing in Uganda (L.D.C) Kampala, 1979
- Hampton C., Criminal Procedure and Evidence London, Sweet & Maxwell, 1973

E. Methodology, course requirements and evaluation

The instructor will use a variety of teaching methods including the lecture method and seminar style method (involving class discussions), with a bigger emphasis on the lecture method. Students will take their own notes as the instructor facilitates their learning. Lectures will be supplemented by tutorials.
Students are encouraged to attend all the classes and prepare for class by reading in advance.
This is a largely case based subject and students are encouraged to find and read the cases provided on the reading list.
Student will be assessed at two levels; course work and examination. Course work constitutes 30 percent, while examination accounts for the 70 percent of the marks. It should be noted that out of the 30 marks for coursework, 10 marks will be reserved for class attendance and class participation.

F. COURSE CONTENT
· Nature of Criminal Proceedings
· Jurisdiction
· Extradition
· Summons, Warrants and Arrest
· Searches and Search Warrants
· Bail
· Charges and Indictments
· Criminal Prosecutions ( Trial Procedure)
- Trial before Magistrate Courts
- Trial before the High Court
- Pleas ( including change of plea and functus officio rule)
- Judgments
- Sentencing ( including orders related to sentencing- compensation, restitution, reconciliation, forfeiture, binding over order)
· The trial of juvenile offenders
· Appeals and Revisions

Topic Required Reading

NATURE OF CRIMINAL PROCEEDINGS JURISDICTION Ayume: Ch.1, Pages 1-8
Abdul Aziz Suleman v R (1958) EA 31
Onumu & Another v R (1970) EA 453
Ayume : Ch.3,pages 15-16
Richard Card and Jones: Criminal Law, 13th Edn, Ch.4, page 45.
The Constitution of Uganda; arts. 129 -139
The Judicature Act
Magistrates Courts Act; s. 1, 2, 3, 31-41, 142, 157, 161 & 166
Trial on Indictments Act; s. 1, 3
The Penal Code Act; s. 4, 5
The High Court (Circuits) Instrument, SI No. 20 of 2004
Ug vs Mustapha Atama (1975) HCB 254
Musisi vs R (1969) EA 493
Animisic Ltd vs Foreign Compensation Commission (1967) 2 All ER 986
Desai vs Warsama (1967) EA 351
Ug vs. James Bitambe ( 1983) HCB 17
R v Pinfold (1988) 2 WLR 635
Ug v Ongone Taresela (1992-93) HCB 75
Kabenge & 2 Ors vs Uganda ( 1971) ULR 20
R vs. Hashin S/O Mohammed Mfaume (1968) HCB 272
Ug vs. Katamu Alayo (1977) HCB 219
Ug vs. Santina Rakias [1980] HCB 98
Ug vs. Stabi Juman [1983] HCB 14
Ug vs. Ongone Taresela (1992 -1993) HCB 75
Ug vs. Christopher Kiwanuka (1979) HCB 210

EXTRADITION
The Extradition Act, Cap. 117
The Extradition (Arrangements) (Enforcement) Instrument, SI No. 117-1
Ayume: Ch. 3, pages 21-28
Re Castioni (1891) 1 QB 149
Re an Application by the Attorney General of Tanganyika (1958) EA 482
R v Meunier (1894) 2 QB 41
R v Governor of Brixton Prison, Ex parte Kaleynski (1955) 2 WLR 116
R v Governor of Brixton Prison, Ex parte Gargener (1968) 1 All ER 636
Cheng vs. Governor of Pentoville Prison (1973) 2 WLR 746
Re an application by the Attorney General of Tanganyika [1958] E.A 482

SUMMONSES , WARRANTS AND ARREST
Ayume: Ch.4
Odoki: pages 37-44
Constitution: Articles 23 and 24
MCA: s. 44-53
TIA: s. 5, 21-36
CPCA: s. 2-23
Uganda v Kamalawo & 4 Others (1983) HCB 23
Stephen Obiro v R (1962) EA 61
Davey v Shawecroft (1948) 1 All ER 827
Christine v Leachinsky (1947) 1 All ER 567
Beard & Another v Republic (1970) EA 448
M’bui vs. Dyer (1967) EA 315
Mwangi s/o Njerege vs. R (1954) 21 EACA 377
Karum s/o Njerege vs. R (1954) 21 EACA 377
Joseph Byarugaba vs. Ug [1973] ULR 4
Gustus Nsubuga vs. Attorney General (1973) 1 ULR 74
Edward Lule Nsimbe vs. Ug (1982) HCB 77
Ug vs. D Kamalawo and 4 ors (1983) HCB 23
Nvule vs. Attorney General (1978) HCB 31
Stephen Oporocha vs. Ug [1991] HCB 9
Ug vs. Kizza [1983] HCB 12
F. Sentamu vs. U.C.B 7 Anor [1983] HCB 59
Byansi & Anor vs. Busoga District Local Administration [1975] HCB 286
R.K. Kasule vs. Makerere University Kampala [1975] HCB 375

SEARCHES AND SEARCH WARRANTS
Odoki: pages 45-48
Constitution: art. 27
Ayume: Ch.5
MCA: s. 69 -74
CPCA: s. 3-8
Police Act: s. 24 - 28
Kityo v Uganda (1967) EA 23
Onyango v Uganda (1967) EA 386
Tenywa v Uganda (1967) EA 102
Simon Musoke v R (1958) EA 715
Ug v Kakooza (1984) HCB 1
Ug v Twaha Muyangu [1975] HCB 329
Elias vs. Pasmore (1934) 2 KB 164
Mohanlal Trivedi vs. R [1967] EA 355
Dritoo vs. West Nile District Administration [1968] EA 428
Ug vs. Alfred Cox-Odoki [1973] HCB 191
Koech vs. R [1968] EA 109
Simon Musoke vs. Ug [1958]EA 715
Tumuhairwe vs. Ug [1967] EA 328
Ug vs. Musisi [1977] HCB 298
Kiwanuka & Anor vs. Ug [1977] HCB 1
Ug vs. Mukasa [1978] HCB 318
Ndege vs. Ug [1979] HCB 162 (CA)
Ug vs. Zakaria Kera [1975]107
Christopher Lubaale vs. Uganda [1995] VI KALR 36

BAIL The Constitution: Art. 23(6)
Ayume: Ch.6
Odoki: Ch. 14 pages 69-75
MCA: Sections 75-84, 205
TIA: Sections 14,15 and 17
The Judicature (Criminal Procedure)(Applications) Rules, SI No. 13-8: rules 2-4
Livingstone Mukasa & 5 Others v Uganda [1976] HCB 117
Panju v R (1973) 282
Nakyeyune v Uganda (1992-93) HCB 61
Jagger v R (1973) EA 39
Mugerwa Ssalongo v Uganda (1986) HCB 25
S. Ruparelia v Uganda (1992-93) HCB 52
Ug. Vs. Lawrence Luzinda [1986] HCB 33
In an Application for Bail for Balaki Kirya Misc. Criminal Appeal 65/1984
DPP vs. Col (RTD) Dr. Kiiza Besigye, Constitutional Reference No. 20 of 2005
Col (RTD) Dr. Kiiza Besigye vs. Ug H.C. Criminal Misc. Application No. 37 of 2004 – Interim bail
Alvind Patel vs. Ug S.C.C.A No 1 of 2003 – consideration for bail pending appeal
Christopher Lubaale vs. Ug [1995] IV KALR 48
Capt. Wilberfore Serunkuma vs. Ug [1995] 1 KALR 32
Leonard Muyingo vs. Ug [1995] II KALR 32
Ug vs. Quarish Ggolooba [1998] II KALR 27
Charles Onyango Obbo & Andrew Mwenda vs. Ug [1997] V KALR 25
Mutyaba Semu vs. Ug H.C Criminal Misc. Application No. 99/92
Dr. Aggrey Kiyingi vs. Ug H.C. Misc. Criminal Application No.41 of 2005
Florence Byabazaire vs. Ug H.C. Misc. Criminal Application No.284 of 2006
Dens Obua Otima v. Ug H.C. Misc. Criminal Application No.18 of 2005

CHARGES AND INDICTMENTS
I. JOINDER OF CHARGES
II.DEFECTIVE CHARGES, DUPLICITY OF CHARGES
III. AMENDMENT OF CHARGES Ayume: Ch. 7
Odoki; Ch.11
MCA: S. 42(2), 85-88, 132,
TIA: s. 22-27, 50 – 51, 58
R v Timbukiza s/o Kiyonga (1958) EA 212
Judge & Ors v West Nile Administration (1963) EA 406
R v Wandera (1948) 15 EACA 105
Ug v Lakol (1986) HCB 27
R v Male (1963) EA 471
Kimeze & Anor. V Uganda (1983) HCB 9
Ug v Ndondo & 2 Ors. (1985) HCB 3
Balinda v Ug (1992-93) HCB 41
Matu v Ug (1951) EACA 311
Ug vs. Samwiri Baligeya [1977] HCB 223
Judagi & Ors vs. West Nile District Administration [1963] EA 406
Kayondo vs. Ug (1992 – 1993) HCB 41
Ug vs. Ndondo & 2 Ors [1985] HCB 3
Ug vs. Paulo Muwanga (1988 – 90) HCB 72
Ug. William Ibwokital [1980] HCB 3
Stephen Kisuwa & Anor vs. Ug [1980] HCB 95
Ug vs. Katabazi [1978] HCB 4
Ug vs. Mpaya [1975] HCB 245
Ug vs. Byaruhanga [1975] HCB 258
Ayume: pp. 70-75
Odoki: p.55
MCA s. 85 -87
TIA s. 23 -24
Alikaeli v R (1932) 12 EACA 371
Leban Koti v R (1962) EA 439
R v Peter Scarmange 47 Cr. App. R 2132
Joseph s/o Odare v R (1954) 21 EACA 311
Dalip Singh v R (1971) hcb 364
Nathan v R (1965) EA 77
Ug v Bitambe (1983) HCB 17
Yowanda Buliza v Uganda (1965) EA 634
Kato v Ug 91971) HCB 36
Yakobo Uma & Anor vs. R [1965] EA 542
Sulemani Makerere vs. R (1973) 1 TLR ® 205
Ug vs. Katabazi [1978] HCB 67
Ug vs. Luabye [1986] AC 31
Joseph s/o Odare vs. R (1954) 21 EACA 311
Delip Sigh vs. R [1971] HCB 364
Yolamu Okecho & Anor vs. U {1977} HCB 270
Ug vs. Muwonge (1988 – 90) HCB 72
Ug vs. Emmanual Yigga [1984] HCB 25
Pin vs. Ug (1992 -93) HCB 32
Ug vs. Kadi Matovu & Anor [1983] HCB
Yorokamu Okech & Isaya Okumu vs. Ug [1977] HCB 270
MCA, s. 42
TIA s. 25, 50, 58
Odoki; pp.55-56
Ayume: pp. 76-80
Ug vs. Matovu (1983) HCB 27
Kimaze & Anor. vs. Uganda (1983) HCB 9
Koti vs. R (1962) EA 437
Opale vs. R (1962) EA 661
Ug vs.Sebaale (1986) HCB 36
Avone vs. Ug [1969] EA 129
Ug vs. James Bitambe [1983] HCB 17
Ug vs. Robert & Anor (1969) EA 622
Opale vs. R (1962) EA 611
Ug vs. Keneri Opidi (1965) EA 614
Abdul Rasul G. Subur vs. R [1958] EA 126
Harbans Singh vs. R[1958] EA 199
Ug vs. Bwambale & Anor [1979] HCB 254
Saidi vs R [1969] EA 280
Ludwike vs. R [1967} EA 763
Ug vs.Okello [1985]hcb 13
Shah vs. R [1960] EZ 562
Ug vs. Ssebaale [1986] HCB 230
Ug vs. Bitambe [1983] HCB 17
MCA, s.132
TIA, s. 50
Ayume: Ch.81 - 83
Odoki, pg 71
Wanje Kanyoro Kamau v R (1965) EA 501
Lubega & Ors vs. Ug (1967) EA 240
Mwangi vs. R (1974) EA 499
R. vs Sitapakwe [1945] 19 EACA 240
Mbithi Kisoi vs. R (1955) 22 EACA 484
Maine s/o Kamunye vs. R (1954) 21 EACA 254 (k)
Yusuf Mauma vs. R [1966} EA 167
Saucier vs. R [1962] EA 30
R vs. Pople (1951) 1 KB 53
Maulidi Abdullah Chengo vs. Republic [1964] EA 122 (T)
William Sebugenyi vs. R (1959) EA 411
Ug vs. Isake Irumba & 4 Ors [1978] HCB* 229
Musoke vs. R (1956 -57) 8 ULR 108

TRIAL PROCEDURE IN MAGISTRATES COURTS MCA, s. 114 -118, 119 -160
Ayume: Ch.8
Odoki: PP. 92-100
Wanje Kanyoro Kamau v R (1965) EA 501
Lubega & Ors v Uganda (1967) EA 240
Mwangi v R (1974) EA 499
R. v Sitapakwe [1945] 19 EACA 240
Lubega & Ors vs. R (1967) EACA 240
R vs. Hans 20 Cr. App EA 144
Batala vs. E [1974] EA 402
Ug vs. Akai & Ors [1979] HCB 6
Musa & Ors v. R [1970] EA 42
Ug vs. Ndungo [1978] HCB 226
R vs. Suke d/o Samw & Ors (1947) 14 EACA 134

PLEAS
CHANGE OF PLEAS AND THE FUNCTUS OFFICIO RULE Ayume: Ch.9 Odoki: Ch. 14
MCA: S.124
R v Inns 69 Crim. App. R 231
Adam v R (1975) EA 445
Ug. v Mwebesa (1978) HCB 872
Ug. v Lwanga (1984) HCB 20.
R v Thomas (1950) KB 26
Ug. v Tukei (1979) HCB 127
Ug. v Lakot (1986) HCB 27
Ug. v Kilama (1992-93) HCB 50
Ug. v Muwonge & Ors (1978) HCB 23
Haji Sedi Senyaga vs. Ug [1975] EA 186
Ug. Vs. Muwonge & Ors [1978} HCB 23
Ug. Vs. Bwambale & Anor [1979] HCB 252
Ug. Vs. Milenge & Anor [1970] EA 269
George Kanalusasi vs. Ug (1988 – 90) HCB 9
Ug vs. Charles Olet & Anor [1991] HCB 13
Ug vs. Matovu [1973] HCB 95

Ayume: Ch.9
Mugola S/o Pudha v R (1953) 20 EACA 171
Kulundi Gatithi v R (1973) EA 540
R v Guest (1964) 3 All ER 685
George Yiga v Uganda 1974) HCB 162
Lapi & 2 Ors v R MB 98/65
Okello v R (1969) EA 167
Yusuf Mbumba v R (1966) EA 383
R v Guest (1964) 2 All ER 685
S (an infant) v Manchester City Recorder & Ors (1969) 3 All ER 1230
Ug. vs. Savio Elio Crim. Rev. 90/77
Ug. vs Ndondo & 2 Ors (1985) HCB 3
Yiga vs Ug (1974) HCB 162
Ug. Vs. Tukei (1979) HCB 127
Ug vs Bakamwise (1986) HCB 15
Ug vs. Okwang Michael ( 1992 – 93) HCB 62

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Fundamentals Of Criminal Law Course Outline and Description

Fundamentals Of Criminal Law Course Outline and Description

Monday, March 17, 2014

1.0     About the fundamentals of criminal law
This course is the foundation for the study of criminal law. Criminal law is a foundation course which must be appreciated and understood by every lawyer and law student. Therefore it is imperative that as a student each of you takes this course extremely serious.

This course is introductory as it prepares the student for the later course in criminal liability. If a student does not fully comprehend the fundamentals of criminal law then he or she shall find it difficult to understand the criminal liability in the next semester.
This course shall cover the basics of criminal law. It shall cover the laws governing criminal law and the ingredients of a crime. The details are highlighted in the reading list.

2.0    Mode of conducting the lectures
It is understood that as students, most of you are making a transition from secondary school and are therefore used to a teaching setting where notes are dictated to you while you note down the same. However, this shall not be the case in this class. Law school is intended to teach you the law and how to think like a lawyer. The profession of the law is predominantly one based on analytical thinking and reasoning.

Therefore, this class shall be conducted in such a way that shall illuminate your mind and provoke the students to engage in critical thinking and reasoning in addition to studying the principles of the law.

This reading list shall state the topics to be covered during the semester and the cases that MUST be read by each student at the time they are assigned to either the class or to a particular student.
All the cases on the reading list shall be availed to the students and no excuses shall be entertained for not reading. We shall discuss the principles of law and the cases during the lectures.

ATTENDANCE and GRADING
Attendance of class shall be mandatory save for a valid reason for nonattendance which must be communicated to the class president prior to the class. A roll call shall be conducted at the beginning of each class and the same shall be used in evaluating the attendance at the end of the semester.

There shall be a course work test which shall be administered during the semester and marked out of 30%. For avoidance of doubt, the coursework test shall be a closed book test that shall be written in the class within the firsts 6 weeks of the semester.

The final exam at the end of the semester shall be marked out of 70%. Instructions in respect to this exam shall be communicated.

3.0    Reading materials
The following are the reading materials for the course.
a.    The 1995 Constitution of the Republic of Uganda
b.    The Penal Code Act, Chapter 120 of the laws of Uganda
c.    Cases as provided in the compendium of cases provided by the lecturer
d.    Other text books
i.    Baird, Norman: 0 & A Series, Criminal Law, London,. Cavendish 1999.
ii.    Collingwood: Criminal Law in East and Central Africa; Lagos African University, 1967,
iii.    Smith and Hogan: Criminal Law, International Student Edition, Ninth Edition, Buttterworths, 1999.

Please note that these text books are available in the library and shall not be availed.

GOOD LUCK
“I’m convinced that about half of what separates the successful people from the non-successful ones is pure perseverance”
Steve Jobs, Co-founder of Apple Inc.
(1955-2011)
The course outline
Please note that this course outline is not exhaustive. It will be revised from time to time.

1.0    Fundamentals of criminal law
1.1    Criminal law as a branch of law.
1.2    The purpose of criminal law.
1.3    Sources of criminal law
1.4    Criminal law and morality
1.5    The criminal process
1.6    The role of the criminal victim (Complainant)
1.7    The suspect v. accused
1.8    Criminal investigations and the role of the police
1.9    The prosecutor’s role in the criminal case
1.10    How to read and understand a criminal case
1.11    Legal reasoning in judicial decisions

Cases to read:
Gichina V. Republic [1970] 1 EA 105
Shaw v DPP [1961] 2 ALL ER 446

2.0    The constitution and the implementation of criminal law
2.1    Innocence and guilt of a suspect
2.2    The role of the court in criminal proceedings
2.3    The right to a fair hearing
2.4    The burden of proof in criminal cases
Cases to Read:
1.     Ntavoba and Anor v. Republic [1976-1985] EA 433
2.    Kigula and Anor v AG [2005] 1 EA 132
3.    Republic v Surbodinate Court of the first class magistrate at City Hall, Nairobi and another exparte Yougindar Pall Sennik and another Retread Limited
[2006] 1 EA 330 (HCK)

3.0    The concept of a crime
3.1    The elements of the crime
3.2    Parties to a crime
Cases to read:
Besigensi v. Uganda [2005] 2 EA 37
Butiti (Masenu) v. Republic [1967] EA 382
Kibale V. Uganda 1 EA 148 (SCU)

4.0    Actus Reus
4.1    What is an act
4.2    When does failure to act constitute a crime?
4.3    Possession as a criminal act
4.4    Status as a criminal act
Cases to Read
Mboi v. R [1962] EA 780
Kigozi v. R [1958] EA 1 
Mohammed v. Republic [1973] EA 238 
Bukenya and Anor v Uganda [2007] EA 348
Uganda v. Omong [1974] EA 459

5.0    Mens Rea
5.1    Concurrence of an act an intent
5.2    General and specific intent
5.3    Why should the intent be proved?
Cases to read
Yusuf v Republic [1974] EA 501
Uganda v. Rukwandura [1973] EA 574
Magayi v. Uganda [1965] EA 667
Menezes v. Republic [1975] EA 209
Katimba v. Uganda [1967] EA 363

6.0    The burden and standard of proof
6.1    The burden of proof
6.2    The standard of proof of the crime
Cases to read
Woolmington v. DPP [1935] AC 462
Semufukwe and Others v. Republic [1967-1985] EA 536

7.0    Parties in a criminal case
7.1    The victim/complainant
7.2    The state (prosecution)
7.3    The accused
7.4    Joint offenders
7.5    Accessories after the fact
Cases to read:
Njani v Republic [1970] EA 260
Shah (Zaverchad Hemraj) V. R [1960] EA 562
Uganda V. Kolokole [1972] EA 313
R v. Thorley [1962] 3 ALL ER 583, CCA
R v. Rook [1993] 2 ALL ER 955   

8.0    Recklessness as a factor of criminal law
Cases to Read:
R v. Paramenter [1991] 4 ALL ER 698
R v. Spratt [1991] 2 ALL ER 210
R v. Venna [1975] 3 ALL ER 788

9.0    Negligence as a factor of criminal law
Cases to Read:
Gitau and another v. Republic [1967] 1 EA 449   

10.0    Inchoate offences
10.1    Attempt
10.2    Solicitation as an offence
10.3    Conspiracy to commit a crime
Cases to Read:
R v. Jones (Kenneth) [1990] 3 ALL ER 886
R v. Mohan [1975] 2 ALL ER 193
Cheruiyot v Republic [1976-1985] EA 47
Gitau v. Republic [1967] EA 449

11.0    White collar crime
11.1    An analysis of white collar crime in Uganda

12.0    Criminal responsibility and Defences

12.1     Defences asserting lack of capacity to commit the crime – Diminished responsibility
12.1.1    Insanity
12.1.2    Automatism
12.1.3    Intoxication
12.1.4    Infancy/immaturity
Cases to read:
Rukarekoha v Uganda [1999] 1 EA 303
Ogwang V Uganda [1999] 2 EA 254
Oyugi v. R [1959] EA 322
Kimani v. Republic [2000] 2 EA 417
Philibert v Republic [1976-1985] EA 477
Bratty v A-G for North Ireland [1961] 3 ALL ER 523
R v. Burgress [1991] 2 ALL ER 769
Sodeman v. R [1959] 3 ALL ER 418
Liundi v Republic [1967 -1985] EA 251
Kieti (Malungu) v. R [1959] EA 797

12.2    Defences asserting excuse or justification
12.2.1    Necessity
12.2.2    Consent
12.2.3    Mistake of Law
12.2.4    Mistake of fact
12.2.5    Alibi
12.2.6    provocation
Cases to Read:
Mtaki (Doto) v. Republic [1959] EA 860
Musa v Republic [1970] EA 42
Katemi v Republic [1990 – 1994] EA 166
Kenga v Republic [1999] 1 EA 145
Haslett v. Republic [1967] EA 796
Masesi v Republic [1970] EA 102
Kibale v. Uganda [1999] 1 EA 148

12.3    Defences justifying the Use of force
12.3.1    Self defence
12.3.2    Defence of others
12.3.3    Defence of property
12.3.4    Use of force by police
12.3.5    Compulsion
Cases to read:
Josia v Republic [1972] EA 157
Zahura V Uganda [2005] 2 EA 358
Magayi (Dafasi) v Uganda [1965] EA 667
Ussi (Selemani) v. Republic [1963] EA 442
Mengi Manzi v R [1964] EA 289

12.4    Defences based on constitutional and statutory authority
12.4.1    Presidential pardon
12.4.2    Amnesty
12.4.3    Double jeopardy
12.4.4    Diplomatic immunity
Cases to Read:
DPP v. Nasralla [1967] 2 ALL ER 161
Flatman v Light [1946] 2 ALL ER 368
R v Madan [1961] 1 All ER 588

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Execution of decrees- what happens next after a judgement is delivered?

Execution of decrees- what happens next after a judgement is delivered?

Wednesday, October 16, 2013

A judgement  is that statement made by the judge giving grounds of an order or decree.It includes the facts in issue,a solution and the reasons for reaching that solution.There are various types of judgements and these include; judgement in default,preliminary judgement,summary judgement,consent judgement and ex parte judgement.

It is a custom for a decree  to follow after the delivery of a judgement.A decree is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to any of the issues in contention in the suit and may be either preliminary or final.Normally a decree is unreasoned since most of the reasons have been given in the judgement that led to the arise of the decree.A party who gets a decree has to serve it to the other party it is then taken signing and executing to the registrar of court after receiving approval from the served party.In the event that the decree is rejected by the served party,the registrar is supposed to appoint a date on which the parties should before him agree on the contents of the decree.If the disagreement is sustained still,the matter is refered to the judge who was in charge of the case for determination of the issue upon hearing.

The decree has to agree with the judgement; it ought to contain the number of the suit, the names and descriptions of the parties to the suit and the particulars of the claim. The decree must also specify clearly the relief granted or other determination of the suit. The decree should also state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid.The court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.

After a decree is given, execution occurs. The orders in the judgment are enforced by the decree holder especially against the unsuccessful party who is the judgment debtor through the various modes of execution prescribed by the laws of the land.ie by delivery of any property specifically decreed, attachment and sale, or by sale without attachment of any property, attachment of debts or garnishee proceedings, arrest and detention in prison or even by appointing a receiver. The decree is then executed by the court that passed it, alternatively another court with authority can enforce it considering certain factors. The decree should be executed within twelve years from its date. However the execution may be extended if the creditor is prevented by fraud or force.

A judgement without any orders directing enforcement of a  solution would be as good as nothing.It is just that the judgement creditor evokes either of the modes of execution discussed above and if the judgement debtor is in a different jurisdiction execution can take place through a process called the reciprocal enforcement of judgements and this applies to commonwealth countries.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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The plea of res judicata - Can a solved issue be brought to court for determination?

The plea of res judicata - Can a solved issue be brought to court for determination?

Monday, October 14, 2013

Res Judicata means a thing adjudicated, after a plaintiff has taken a matter to court and judgment is made, he/she cannot bring the same issue before any court of the same jurisdiction for determination. Once court has passed a judicial decision it cannot be reversed and its verity cannot be contradicted.

If the plaintiff is discontented with the ruling he/she can appeal or can ask the court for a review.Section 7 of the Civil Procedure Act provides that No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties,or between parties under whom they or any of them claim,litigating under the same title in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised and has been heard and finally decided by that court.

When does res judicata arise?

In general terms, res judicata is a plea made by the defendant against the continuance of a suit on the ground that the matter in question has been adjudicated upon by a competent court.

For res judicata to apply there must be three fundamental elements

 There must be two opposing parties

 There must be a definite issue between them

 There must have been a tribunal competent to decide the issue and that within its competence the tribunal did so.

The rationale for the doctrine of res judicata is to end litigation, every matter should be tried fairly once and having been so tried should come to an end forever between the parties. In a decision of the East African court in Kotak Ltd v Kooverji and others(1969)E.A 295,it was held that once it is decided that a particular rule of law is applicable to a certain factual situation between the parties,then as far as these parties are concerned,the fact of the applicability of the rule is res judicata and can only be challenged on appeal.

In determining whether a suit is barred by res judicata, the test used is whether the plaintiff in the second suit is trying to bring the court in another way in the form of a new cause of action a transaction which had already been presented before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If the question is answered in affirmative, the plea of res judicata will then apply not only on issues upon which the first court was called upon to adjudicate but also to every issue which properly belonged to the subject of litigation and which might have been raised at the time through the exercise of  due diligence by the parties.

It is important for the dissatisfied plaintiff to ask the court that adjudicated upon the matter to review the matter and if not convinced still he can appeal  to a higher court but not to bring the same suit in a court of a similar jurisdiction.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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When can consolidation of suits be denied in courts of law?

When can consolidation of suits be denied in courts of law?

Thursday, October 10, 2013

Actions that involve a similar question of law or fact pending before court may order all the actions consolidated.  A party to the suit may apply for consolidation of suits or even Court itself can consolidate suits where a common question of law or fact arises in the actions, the right to relief arises in respect of the same transaction or series of transactions, and it is otherwise desirable to approve the consideration. The court may also provide in the consolidation order that the proceedings be tried at the same time or one immediately after  another.

Consolidating suits is allowed for convenience and economy in administration, it does not change the rights of the parties or even merge the suits into a single cause. However there are circumstances where Court can refuse consolidation for instance ;

Rights of the plaintiff:

where the rights on the position of the plaintiff would be prejudiced against the plaintiff’s will the court  finds it noble to reject consolidation of suits.

Different Advocates:

If court realizes that the case has different advocates involved and it is somewhat difficult to save expenses and quite impossible to avoid multiplicity of pleading and proceedings it also rejects consolidation.

Different roles in the suit:

 In the event that the person is holding two different roles at ago ie plaintiff and respondent and consolidation is likely to make the plaintiff a defendant in the suit upon consolidation and probably lose his advantages as a plaintiff the court can set down the case of hearing one following the other in the order the summons were issued.

Different Law applicable:

In certain cases where a different law is going to be applied to the two causes of action,the court does not even bother to consolidate the suits.

Existence of different issues:

If it is discovered that there are different issues involved court will prefer to solve the issues separately.

Arise of a relevant matter:

Where a relevant matter in one action arose subsequent to the commencement of another action and the actions proceeded to a considerable extent,the judges will not allow consolidation of suits to proceed.

Standard of proof:

Where the plaintiff in one action has to meet different standard of proof from the plaintiff in the other action, then consolidation will not be allowed especially in cases involving fraud.

Necessity of fresh pleadings:

Where in the cross action between the parties, the consolidation would necessitate fresh pleadings throughout and multiply the interlocutory steps consolidation is refused.

By: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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Sexual offences, find out the ingredients of some sexual offences

Sexual offences, find out the ingredients of some sexual offences

Thursday, October 10, 2013

Sexual offences are wrongs against morality, morals are relative but there are certain morals that cut across all cultures and these among others include sexual offences. Society has set certain standards and it is something difficult to revert the standards society has set and as a result these morals have
gotten legal backing.

Sexual offences include;rape,sexual assault,defilement,prostitution.These different offenses carry different sanctions depending on the magnitude.

Rape  This is an offence where a man forcefully engages in carnal knowledge with a woman.Lack of consent is a key factor in establishing the rape offence,if it can be shown that the woman consented then it ceases to be rape.The weapon used should be the male organ and penetration must have occurred, slight penetration will suffice. Tearing of the hymen is not crucial for one to claim she was raped although it can easily incriminate someone who claims not to have raped especially if the victim is a young girl. In most commonwealth countries the sanction for rape is murder and the reason is to create fear in other people who intend to harm others and considering the pain suffered by the victim at the hands of a beastly human being it is only fair that he dies.

Defilement This is an offence where the man engages in carnal knowledge with a girl below majority age which is eighteen years. The issue of consent cannot be raised by the accused though most victims do consent to this act but that’s irrelevant because their consent is usually not one made out of independent thinking, most of the victims are promised and or given material things to bribe them into the immoral act. Its only fair to punish the man taking advantage of the situation. It is usually hard for court to convict a person who has defiled because of lack of cooperation from the victim, some victims insist on lying about their age and others deny having engaged into the sinful act and what happens is that the accused goes courts free because of lack of sufficient evidence to pin them.

Procurement of woman, under this offence a woman is threatened or intimidated, falsely represented or even administered a drug purposely to stupefy or overpower so as enable the man to have sexual intercourse with her. For one to be convicted of this offence either of the above situations has to be pleaded. Considering the malicious intentions of Homo sapiens, a person might choose to malign someone’s reputation by lying and so court is very careful when handling such matters. It cannot convict the accused on evidence of one witness, there has to be corroborative evidence which implicates the accused.

Sexual offences are generally considered as demeaning for they lower the self esteem of a woman and its only just that the offenders are heavily punished.Its absurd that In low development countries most of the defilers are people from well to do families and they easily bribe the parents of the victims just to cover up and the offence is not reported and this leaves many young people to sustain harm caused by immoral men.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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How the cause of death can be proved in criminal law.

How the cause of death can be proved in criminal law.

Friday, September 27, 2013

In every crime it is a general requirement that  the accused must  be proved to have performed the act constituting the offence.The issue of causation arises when there are more than one possibilities that could have caused the death of a person but its unclear as to who or what exactly caused the death.We cannot say that there is a standard rule on proof of causation but it’s a matter of common sense.However there is an applicable test in determining causation,it is whether the accused’s act/omission is a substantial and proximate cause of the victim’s death.There  should be no break in the chain of causation.

So how can the cause of death be proved?

Plea of guilty by the accused either by admission or confession, a plea of guilty by the accused summarily puts the accused’s criminal liability beyond reasonable doubt. What is important is that the accused unequivocally pleads guilty to each ingredient of the offense.

Medical Evidence

By medical evidence, cause of death may be proved conclusively by medical evidence through an autopsy and once there is such evidence the burden is on the prosecution to link that to the accused person.

Evidence  of eye witnesses and circumstantial  evidences,where an autopsy is not carried out its absence may not be fatal to the case the cause can be substantiated by the witnesses.Witnesses can also be of great help if the findings of the doctor are at variance with other available evidence.For example where the doctor gives a report about injuries sustained by the deceased and yet they are completely different from those seen by the eye witnesses the court might elect to follow evidence of eye witnesses.

Circumstantial Evidence

Death can also be proved through circumstantial evidence if there is no medical report or eye witnesses,the court may rely on circumstantial evidence to implicate the accused and link him to the accused.

The courts will always be hesistant to convict an accused before they are sure of what realy caused death.The standard of proof is beyond reasonable doubt.

By Aturinda Lenah, a legal consultant for Conservation Efforts for community Development a member of Foundation for Environmental Education.

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When can presumption of innocence be compromised.

When can presumption of innocence be compromised.

Wednesday, September 25, 2013

As a general rule all persons should not be punished for their acts unless there is evidence that such acts were committed with the necessary mensrea. This arises from the common law presumption of innocence, ‘every one is presumed innocent until proved guilty’. It implies that in instances where a person’s acts are not voluntary, such persons should not be punished.

There are however a number of exceptions to the rule requiring proof of mensrea in criminal cases. Under the exception a person will be punished once there is evidence that they committed the act that constitutes the offence regardless of whether they had the necessary mensrea or not. This is known as strict liability and the burden of proof on the prosecution is to establish that the accused committed the act forbidden by law and unless such an act can be justified by pleading exemption, exclusion, exception or qualification he will be found guilty. There is no precise rule that can be cited in determining whether an offence is of a strict liability nature. This implies that whether the offence is of strict liability nature depends on the wording of the statute for example where a section omits the words knowingly/intentionally/willfully that may suggest that the commission of the relevant actus reus will suffice.

Strict liability offences are ordinarily to be found in statutes relating to traffic offences, sale of goods, foods and drinks and classified drugs. It is important in strict liability offences that the prohibited act should have been carried out regardless whether the accused knew of the prohibition or not.The principle of strict liability imposes the burden on the accused who seeks to be exonerated from criminal liability to prove that he falls into the cartegory of permitted acts.

One might wonder why this presumption is compromised but the rationale is to  protect the welfare of the public which is paramount.

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What you need to prove incase your falsely imprisoned

What you need to prove incase your falsely imprisoned

Thursday, September 19, 2013

False imprisonment refers to absolute body restraint.The victim is denied access to freedom of movement he is only confined in a defined area.One can be confined in an open place it doesn't necessarily have to be a cell. What is key is that the victim is deprived of personal liberty has no way of escaping whatsoever and that the reason for his confinement is unlawful.

Therefore for one to successfully sue for false imprisonment there must be total restraint,it's not pertinent to show that actual force was used only the threat of force is used. For example where Dan is compelled to remain in one place lest he is shot.

The victim doesn't necessarily need to know of the detention,a drunkard,a lunatic, an unconscious person or even one taking a nap could be falsely imprisoned but the damages might be diminished and would be affected by whether he/she was conscious or not.The rationale is that a person who isn't aware of his restraint may not be able to prove injury.Such victims are usually given norminal damages

Initially under common law the position was that knowledge of restraint was essential on the part of the plaintiff to constitute false imprisonment but the case of Bird v Jones1845 7 QB 742 the position was changed the court held that knowledge of restraint was not an essential to constitute  false imprisonement.

The law of tort especially as regards false arrest is more concerned with the harm done to the individual in the form of infringement to liberty.

Aturinda Lenah is a Regular contributor at La Law School Guide,  Legal consultant at Conservation Effort for Community Development which is a member of Foundation for Environment Education Eco Schools program.

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Read on If You Are In Search of a Proficient Criminal Lawyer,

Read on If You Are In Search of a Proficient Criminal Lawyer,

Tuesday, July 23, 2013

How do you choose on the best criminal lawyer when there are so many available? People always look for the one who would not put them in a dilemma and would help them get through the situation easily. There may be times when you are in some serious penalties and in such cases you want the best criminal defense
lawyer for yourself. So what are the main qualities that you should look for while hiring an appropriate
attorney for yourself?

ÿ See if your lawyer is more focused on your status or your problem. He should lay more emphasis on your
problem rather than knowing about what you can pay him.ÿ When you are telling him your problem, see that he records your every statement. A lot can be known about the lawyer by seeing on the way he maintains your documents. If anytime you feel he is just fooling, you may consider hiring another one.

ÿ If you are in a dilemma of choosing the right attorney, you can seek help from the discussion board. These always have great knowledge and experience in legal matters and can thus give you the best advice based on their own experiences.

ÿ Always ensure that the attorney takes time to listen to your problems. You can still search for the best one through the internet. There is a list of proficient lawyers and attorneys over the web who can help you get through your problems easily. Decide once you are fine with the location, specialty, reviews, and other important things about the attorney.

ÿ Always choose attorneys that offer you free advice, inform about their complete payment plans, and ask for economical fees. 

ÿ You undoubtedly need a lawyer who would help you get through your troubles easily. If you cannot find it anywhere, you can still get them on the Yellow Pages. It depends on where you stay that what number of lawyers you get.

ÿ Another way of finding the best one is through communications and network. You can take the help of your friends and relatives, and ask them if they had taken the help of any attorney. This would rather help you reach a good lawyer who has previously helped someone you know.

The criminal defense lawyers are always trained to catch the most important part of a case and work on it in a good way. The best criminal lawyer would be able to spot arguments and factors that may fall in contrary to your case. When your complete story is done, the criminal should know from where to start your trial. There are many jobs that are assigned to a criminal lawyer, that go from calling the defense to cross examine the witnesses. What should your lawyer do in order to solve your problem?

ÿ He should work with you and the prosecutor for negotiating the deal. This can by large reduce your potential sentence and do away with the charges against you.

ÿ The attorney you approach should be able to figure out a good sentence program for your situation. In case you are found guilty, your lawyer should be able to work in a way that your imprisonment would be lessened and that you are free early.

ÿ Attorneys should boost up your self confidence. There are cases that would land you great emotional stress and you would feel depressed. These situations should be well managed by your lawyer.

ÿ Defense lawyers should be able to advise you on how the trial is actually going, and the things that are likely to happen in the near future. These assessments would really be important at times when the criminal defendant is deciding if he should accept the plea bargain of a prosecutor.

ÿ You must always point out the issues that you would never find on your own. There might be many laws related to the criminal prosecutions that are buried within the regulations and that you would never come to know.

ÿ Spend more time with your lawyer and explain him the complete situation you are going through. This would make the picture clear in front of him and he would know what step should be taken next.

ÿ Make sure that you give all details and evidences to your lawyer so that there are no rooms for any suspects.

ÿ Leave space for further investigations. Despite of the fact that you have provided complete information to your lawyer, he might want to ask you more questions that relate to your case. Be open to such discussions and always allow him to ask him important things.

ÿ Always hire attorneys who can present evidence in your favor and who would show that you are innocent.

About the Author: Emma Taylor is Law Consultant in Las Vegas. She has 6+ Years of experience as Law Consultant and has worked with many Firms in Las Vegas. Here she is sharing her views on Criminal Lawyer, she writes often about the trends in this particular industry.

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