High Court Affirms: Substantive Justice Cannot Cure a Fatally Defective Criminal Appeal

Waboga David
Jul 8
3 min read

Updated: Jul 9

📘 Facts

Ngabirano Frank was convicted by the Chief Magistrate’s Court at Kisoro on 6 January 2025 for threatening violence with intent to intimidate contrary to Section 81(a) of the Penal Code Act.

The offence arose from a domestic land dispute involving proceeds from the sale of family land. Evidence at trial showed that the appellant went to the complainant’s home at night, banged the door, and threatened to kill him with a panga unless he paid UGX 100,000/=. The complainant’s testimony was corroborated by multiple witnesses including his wife and the LC1 Chairperson.

The appellant was convicted and sentenced to two years' imprisonment. He appealed the conviction and sentence on grounds of failure to properly evaluate evidence and harshness of sentence.

⚖️ Issues for Determination

Whether the appeal was properly and competently filed before the High Court in accordance with Section 28 of the Criminal Procedure Code Act.
Whether the learned trial magistrate erred in law and fact in convicting the appellant without properly evaluating the evidence on record.
Whether the sentence of two years’ imprisonment was harsh and excessive in the circumstances of the case.

⚖️ Holding of the Court

Issue 1: Whether the appeal was properly and competently filed before the High Court in accordance with Section 28 of the Criminal Procedure Code Act.

The Court held that the appeal was incompetent and improperly before the court because the appellant failed to comply with the mandatory requirements of Section 28(1) of the Criminal Procedure Code Act (Cap. 116), which states that:

“Every appeal shall be commenced by a notice in writing... lodged with the registrar within fourteen days of the date of judgment or order from which the appeal is preferred.”

The record before the court lacked a Notice of Appeal, and this procedural omission was fatal to the appeal.

While the appellant filed a memorandum of appeal and submissions were received from both parties, this did not cure the jurisdictional defect. The court emphasized that appellate jurisdiction is conferred by statute and must be strictly invoked through proper procedural steps.

Citing Habib Buwembo v Uganda [2024 UGHCCRD 4] and Attorney General v Shah [1971] EA 50, the court affirmed that there is no inherent right of appeal and that the absence of a Notice of Appeal renders the appeal a nullity.

Holding: The appeal was improperly commenced and therefore incompetent for failure to file a Notice of Appeal in accordance with Section 28 of the Criminal Procedure Code Act.

Disposition: Appeal dismissed on a point of law without consideration of the merits.

Issue 2: Whether the learned trial magistrate erred in law and fact in convicting the appellant without properly evaluating the evidence on record.

The Court declined to determine this issue on account of the appeal being procedurally incompetent. However, for context, the record indicated that the trial magistrate had considered the prosecution and defence evidence, finding that the appellant had:

Threatened to kill the complainant over UGX 100,000/= related to a family land dispute,
Armed himself with a panga,
Made menacing statements corroborated by multiple prosecution witnesses.

That said, the High Court made no finding on this issue, having dismissed the appeal at the threshold for procedural non-compliance.

Holding: Not determined. The issue was not adjudicated due to the procedural incompetence of the appeal.

Issue 3: Whether the sentence of two years’ imprisonment was harsh and excessive in the circumstances of the case.

Similarly, this issue was not addressed on its merits, as the entire appeal was dismissed for failure to comply with the procedural requirements of the law. Nonetheless, the trial court had justified the sentence on the grounds of:

The appellant's lack of remorse,
The seriousness of the threat involving potential violence,
The fact that the appellant sought to forcibly claim family property.

However, the High Court exercised no appellate discretion over the sentence, given that the appeal was a nullity.

Holding: Not determined. The court had no jurisdiction to consider the severity or appropriateness of the sentence.

⚖️ Key Takeaways:

Failure to File a Notice of Appeal is Fatal to Appeal Competence.
The Right of Appeal is Statutory, Not Inherent.
The Court Emphasised Strict Compliance with Section 28 of the Criminal Procedure Code Act.
Appellate Jurisdiction Must Be Properly Invoked under Article 139(1) of the Constitution and Section 16 of the Judicature Act.
Substantive Justice Cannot Override Fundamental Procedural Defects.

🔍 Practical Implication

Courts will decline to entertain appeals that are improperly commenced, even if the case has been substantially argued.

Read the full case below