MudhasI Ivan v Uganda (Criminal Appeal No. 141 of 2024) [2025] UGSC 43 (26 June 2025)

L 5 10 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TIBATEMWA- EKIRIKUBINZA, CHIBITA, MUSOTA, MADRAMA, BAMUGEMEREIRE, JJSC) CRIMINAL APPEAL NO. 141 OF 202 4 BETWEEN MUDHASI IVAN :::::::::::::::::::::::::::::: ::::::: :::::::::::: APPELLANT AND UGANDA ······················· · · ·· "'· · ·· · · · ······ · · ··· ·········· RE SP ONDENT ......................... ' ..... ............. " .............. 15 (An appeal from the judgirtent of the Court of Appeal (Buteera, DCJ; Musoke and Barishaki; JJA) dated 28th March, 2022 in Criminal Appeal No. 0267 of 2015.) JUDGMENT OF THE COURT 20 This is a second appeal arising from the decision of the Court of Appeal which upheld the sentence of 27 years' imprisonment imposed on the appellant by the High Court in Criminal Session No.353 of 2015 for the offence of Aggravated Robbery c/s 285 and 286 of the Penal Code Act. 25 BACKGROUND: The background to this appeal is that the appellant was indicted on 2 counts: Count 1 of aggravated robbery C/S 285 and 286(2) of the 1 Penal Code Act, Cap. 120 and Count 2 assault occasioning actually bodily harm C/S 236 of Penal Code Act, Cap. 120, respectively. The facts are that, on 5th October,2Ol2 at Akright Estate, Wakiso District, the appellant stole several personal items such as two mobile phones, British passport, Tcredit bank cards and cash 2,100 British pounds from a one Estella Makumbi while using a big stick. During the same incident he assaulted a one Tigatege Ivan thereby occasioning him actual bodily harm. The appellant was tried, convicted and sentenced by Hon. Lady Justice Elizabeth Jane Alividza on the 23 1712015 to 27 yeats' imprisonment on count 1, and 3 years' imprisonment on count 2. The two sentences were to run concurrently. Dissatished with the decision of the trial court, the appellant appealed to the Court of Appeal against both conviction and sentence specihcally for aggravated robbery. When the appeal came up for hearing on the 23 l7l2o2l in the presence of the appellant via a video link, counsel for the appellant sought leave of court to appeal against sentence only. The same was granted and the appeal was against sentence only. The court upheld the decision of the trial court and found no reason to interfere with the sentence. The appellant being dissatisfied with the decision of the Court of Appeal, appealed to the Supreme Court against both conviction and sentence on six grounds. At the hearing ofthe appeal, the appellant abandoned grounds 1, 3, 4 and 6 and proceeded with two grounds thus 2 and 5. 10 15 20 25 30 2 The appellant's grounds of appeal are that; 2. The learned Justices of appeal erred in law and fact when they granted leave to counsel on state brtef (Mr. Mutange Ian Derrick) to appeal agalnst sentence only without the appellantts consent and lnstructions cauging a miscarriage ofJustlce. 5. In the alternative but without preJudlce to the above, the learnedJuetices of appeal erred in law when they upheld the sentence of 27 yearc handed down to the appellant founded on a wrong principle and falled to conslder a material factor occaslonlng a mlscarriage of Justice ln the clrcumstances. 10 15 REPRESENTATION: At the hearing, the appellant was represented by Mr. Henry Kunya, whereas Mr. Sam Oola, senior assistant DPP held brief for James Owere Odumbi Deputy DPP who represented the respondent. 20 APPELLANT'S SUBMISSIONS Counsel for the appellant argued both grounds simultaneously. He argued that, since this was a second appeal, their challenge was limited to the validity of the sentence rather than its severity. 25 Counsel invited the Court to intervene in the sentence upheld by the Court ofAppeal, arguing that the appeal proceedings were conducted via video link. That during these proceedings, the appellants' counsel indicated that they were appealing solely against the sentence, and that the court continued without seeking clarification on the scope of the appeal from the appellant. He contended that the implications of 3 5 appealing only the sentence are significant, and the Court should have confirmed the appellant's position by inquiring from the appellant. He argued that the failure to do so, violated the appellant's right to a fair hearing, having been present in court virtually. Counsel further argued that it was a-lso challenging to determine whether the appellant's legal representative was acting under specifrc instructions or with his consent. Lastly, in the a-lternative, Counsel submitted that the Court of Appea-l erred when they upheld a sentence of 27 years in the absence of his stance regarding the sole ground on sentence. The appellant invited court to allow the appeal, set aside the impugned sentence and have it substituted or lowered downwards with an appropriate sentence. RESPONDENT'S SUBMISSIONS Counsel for the respondent asserted that the appellant was present at the time of the appeal's hearing in the court of appeal and never objected to or showed disapproval ofthe sole ground ofappeal stated by his attorney either prior to or during the court proceedings. Counsel submitted that the appellant needed to seek leave of court to appeal on sentence only which is a point of law to which his legal counsel had to address. He argued that the appellant's counsel ably performed his duty and the court exercised its jurisdiction. Counsel submitted that having listened to the Court of Appeal's audio recording, the respondent's lawyer contended that the appellant's failure to object or reject his counsel's conduct during the court clerk's interpretation of the proceedings negates his ability to now maintain this allegation. To support his argument, Counsel relied on 10 15 20 25 4 30 5 Rule 23(1) and Rule 73(3) of the Court of Appeal rules that representation can be in person or by advocate and further cited Rule 68(3f of the Court of Appeal Rules in relation to parties filing submissions. Counsel strongly emphasized that the appellant gave instructions to his counsel to appeal against sentence and no objection was raised to the Justices. He therefore prayed that ground two fails. In regards to ground five on sentence, counsel submitted that, the Supreme Court entertains appeals on matters of law only and not severity of sentence. He relied on section 5 (3) of the Judlcature Act. Counsel submitted that the learned Justices reappraised the evidence and found no reason to interfere with the decision of the trial Judge. Counsel strongly submitted that the appellant was questioning the severity of sentence and not the legality which this court should not entertain. He submitted that the sentence of 27 years was legal and there was no need to interfere with the same. He prayed that this ground fails. Counsel invited Court to uphold the sentence and dismiss the appeal. CONSIDERATION OF COURT We have appraised the record, the written submissions and authorities of the parties. The mandate on second appeals to this court is settled. This court will only interfere with the decision of the first appellate court if it is evident that the hrst appellate court in approaching its task tailed to 10 15 20 25 5 5 apply the relevant principles correctly resulting in a miscarriage of justice. See: Kifamunte Henry v Uganda No. 1O of L997, Secondly, as a second appellate court, we are only restricted to considering issues of legality of sentence and not its severity as provided under Sectlon 5(3) of the Judicature Act. Basically, the Appellant asserts, inter alia, that a procedural irregularity occurred, depriving him of a fair hearing, insofar as the learned Justices failed to afford him an opportunity to clarify his position regarding the scope of his appeal, specihcally, whether he maintained an appeal against conviction or had limited his challenge solely to the sentence imposed. The Respondent on the other hand opposed this appeal on the basis that there was no objection to the appellant's counsel's application for leave to appeal against sentence alone, and the proceedings were interpreted to him in court. That Counsel's appearance in court on behalf of a client constitutes adequate representation, therefore the appellant cannot claim lack of consultation when represented by counsel who in addition filed written submissions. Secondly, that this court lacks jurisdiction on severity of sentence. We wish to note that the Judicature (Visual-Audio Llnk) Rules, 2O16 which allow courts to use video links were created to allow parties, advocates, and accused persons to address the court without physical appearance. Counsel faults the learned Justices for not consulting the appellant on his position regarding the grounds of appeal but just relied on what his lawyer said without the appellant's consent and instructions. 10 15 20 25 6 30 5 The question to answer essentially is whether counsel was instructed to prefer an appeal against sentence only which the court acted upon. Rule 23(1) of the Court of Appeal Rules allow a party to appear in person or by an advocate. Therefore, counsel must always appear in court with full instructions and authority from his client regarding a matter. Regulation 2(1) of the Advocates (Professional conduct) Regulatlons S.l 267-2 provide that no advocate shall act for any person unless he or she has received instructions from that person or his duly authorized agent. Regulation 3(1) provides that an advocate may withdraw from the conduct of the case on behalf of a ciient where the client withdraws instructions from the advocate. It is a fundamental principle that by giving instructions, an advocate is endowed with full authority regarding the lawsuit, its management, and all related matters. Therefore, Counsel's authority during a trial includes all court proceedings and related matters, unless explicitly limited. Halsbury's Laws of England 4th Edition (reissue) Volume 3(1): paragraph 518 at page 42O states that: "Apart from such express authority as is conferred by his lnstructlons, a barrlster ls ordlnarily lnstructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client." 10 15 20 25 7 30 5 Similarly, in Matthews Vs. Munster (1887)20 QBD 141 court observed that: - uThe dutg of Counsel ls to odvlse hls cllent out of Court and to act for htm ln Couti, and untll hls authorttg ls utlthdrqun he has, utlth regard to qll matters that properly relqte to the conduct oJ the case, unllmlted pouter to do thqt uthtch ls best for hls cllent." 'llpically, an advocate seryes as the representative of a client being the mouth piece unless a party expressly desires to retain the power to direct and guide counsel regarding the conduct and management of the case. Therefore, an advocate assigned to represent a case in court must possess complete authority over the matter and manage it to the best of their capabilities; otherwise he would perform his duties under the peril and fear of an action by every disappointed or dissatisfied client. However, where counsel exceeds his/her authority the court has unfettered discretion to interfere to prevent an injustice being made against a client. We must therefore add that if the client is in court, part of case management is the duty to consult him/her regarding important matters which the party has an interest in, and counsel should adhere to their client's decisions concerning the objectives of representation. Nevertheless, in the present case, according to the record of appeal, the appellant was represented by counsel Mutange Ian Derick. The appellant did not object to the fact that counsel was his 10 15 20 25 30 o representative. In the absence cf any oLjection, we take it that Mr. Mutange was instructed/ accepted by the appellant as his counsel in the appeal. It is expected that a party wor-rld have discussed with their counsel prior to attending the hearing. This consultation would serve to ascertain the client's expectations and apprise them of the available options regarding the appeal. It is presumed that counsel would have had ample opportunity to meet with, interview, and obtain instructions from their client in advance of the hearing. Therefore, during the court proceedings, should the appellant have disagreed with their counsel's approach, it was incumbent upon him to immediately raise this concern with the Court despite being represented. However, no such objection was made. We are inclined to agree with counsel for the respondent's submission, a submission that remained unchallenged, that a review of the Court of Appeal proceedings' recording indicates that 20 25 9 30 As it appears from the record, the appellant himself filed a notice of appeal to the Court of Appeal on 7th August, 2015 against both 10 conviction and sentence. On 3'd September,2O2l his counsel filed a memorandum of Appeal on a sole ground of sentence together with written submissions upon which the respondents replied. The matter came up for hearing on 23,d September 2O2l . T}:,e appellant was present in court via a visual -audio link while his counsel and the 1s respondent counsel were in court. The appellant's counsel sought leave of court to appeal against sentence only, the same was granted in the presence of all parties and their counsel. No evidence was adduced that the appellant objected. 5 interpretation was provided to the appellant, and no objections were voiced at that time. Consequently, we infer that the appellant was aware of the proceedings and their progression, and by failing to express dissent to counsel's application for leave to appeal against sentence only, he cannot now assert a lack of authorization. The appellant did not inform the court of any unfamiliarity with his counsel. Therefore, he cannot now repudiate counsel's submissions, having elected to remain silent and not exercise his right to object during the hearing. Statements made by counsel during trial or proceedings in the client's presence, if not repudiated, will bind the client and may be used as evidence against them. See: Halsbury's Laws of England 4th Edition, Volume 3, paragraph 1184. Having sought leave in the presence of the appellant which was not disputed at the time, the court interprets this as the appellant's consent to the same. From the foregoing, we find no reason to interfere with the Court of Appeal's decision. We find that the appellant was afforded the opportunity to be present during the proceedings and exercised his right to legal representation. Counsel was granted audience before the court, and the application for leave to appeal against sentence only was presented and granted in the appellant's presence via video link. In our view, no violation of the right to a fair hearing is discernible. The appellant's presence in court afforded him the opportunity to raise any pertinent objections at that time; raising them now constitutes a belated reconsideration following the unsuccessful appeal. 10 15 20 25 30 10 5 Parties shall not be permitted to contort legal principles to secure a rehearing merely due to the absence of alternative recourse. The unsuccessful outcome of the appeal, coupled with the realization of the preclusion against further appeals on sentence severit5r, appears to have prompted an attempt to circumvent this legal constraint by improperly invoking the jurisdiction of this Court to interfere with the Court of Appeal's decision. This Court shall not be util2ed as an instrument to circumvent established legal principles to permit an appeal against severit5r of sentence. This court has constantly stated that on second appeal, the appellant has a right of appeal to this Court against sentence, on a matter of law, not including the severity of the sentence. See: Senyonga Kabo v Uganda, No.82 of2O2O and Odeke & 2 Ors v Uganda, No.63 of 2OL9. We do not find any illegality in the proceedings at the Court of Appeal. We find that this appeal has no merit and is a disguised attempt to appeal the severity of the sentence under the guise of a legal question. As a result, the appeal is dismissed. 10 15 20 25 Dated at Kampala thir.....hb.S.o., o 2025 '--, tL.o c,.l<av17rN-q Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT Hon. M e J. Chibita 30 11 JUSTICE OF THE SUPREME COURT 5 Hon. Stephen Musota JUSTICE OF THE SUPRIME COURT Hon. Christopher Madrama JUSTICE OF THE SUPRTME COURT 10 15 20 25 w Hon. Catherine Bamugemereire JUSTICE OF THE SUPRTME COURT 72