CRIMINAL PROCEDURE GUIDE NOTES-2009

CRIMINAL SUMMONS

A criminal summon is a simple court document that contains a number of facts justifying an
inquiry into a complaint against an accused person and requiring him to attend the inquiry.
In other words, it is a document, issued by the court to be served on the person addressed in
it, requiring that person to appear before court on the date specified in the document to
answer charges brought against him/her.

Forms and contents of a criminal summons.

According to section 44 (1) of the MCA, every summons must be in writing, prepared in
duplicate, signed and sealed by the magistrate or such other officer as the chief justice may
from time to time direct.

s.44(2) every summons must be directed to the person summoned and shall require him or
her to appear at a place, date, time indicated therein before the court having jurisdiction to
inquire into and deal with the complaint or charge.

s.44(3) a summons must also state shortly the offence with which the person against whom it
is issued is charged. This is basically for purposes of letting the accused know and prepare for
the charge he is being compelled to answer.

Service of Summons
Service of summons to accused personally

According to section 45 (1) MCA, every summons must be served by a police officer or an
officer of the court issuing it or any public servant but in practice, a summons is served by a
police officer or an officer of the court called a process server. A summons must be served
onto the person to whom it is addressed personally but the section states, if practicable.

The summons is served on the accused by giving him a duplicate of the summons and in
practice he must sign the original copy of the summons. S.45(2) MCA provides that every
person on whom a summons is so served shall, if so required by the serving officer, sign a
receipt of it on the back of the original summons.

Service of summons when person/accused cannot be found.

Sometimes it may not be possible after the exercise of due diligence to serve the accused
personally, in which case service of the summons may be effected by leaving the duplicate of
the summons for the accused with an adult member of the family or the accused’s servant
who normally resides with him, or by leaving it with his employer.
The person with whom the summons is left, if so required by the process server, must sign
receipt of it on the back of the original summons.

Look at section 46 MCA.

Where the person summoned cannot, by the exercise of due diligence be found, the summons
may be served by laving the duplicate for the person with some adult member of his or her
family or with his or her servant residing with him or her or with his or her employer; and
the person with whom the summons is so left shall, if so required by the serving officer, sign a
receipt of it on the back of the original.

Procedure when service cannot be effected.

s.47 MCA, if service in the manner provided by sections 45 & 46 of the MCA cannot by the
exercise of due diligence, be effected, the serving officer shall affix the duplicate of the
summons to some conspicuous part of the house or home stead in which the person
summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly
served.

SERVICE OF A CRIMINAL SUMMONS ON A COMPANY.

It is common knowledge that in law a body corporate is a legal person criminally liable except
in certain cases, to the same extent as a natural person. For this reason, provision has been
made for compelling a body corporate to answer charges against it in a court of law.

According to section 49 of the MCA, service of summons on an incorporated company or

other body corporate may be effected by serving it on the secretary, local manager or other
principal officer of the corporation or by registered letter addressed to the chief officer of the
corporation or by registered letter addressed to the chief officer of the corporation at the
registered office of the company or body corporate in Uganda.

Service of criminal summons on a body corporate can be done by sending the summons by
registered mail addressed to the chief officer of the company, secretary, local manager or
other principal officer of the company. These officers of a company are deemed competent to
plead on behalf of the company.

Proof that service was effected.

Where may a summons be served?

Under section 50, a summons may be served at any place in Uganda. So sometimes it may be
necessary to prove that a summons was served especially
a) where the summons was served outside the local limits of jurisdiction of the presiding
court
b) if the accused for whom the summons was intended does not appear at the place,
date, and time indicated, the court might either on its own or upon application by the
prosecution decide to issue a warrant for his apprehension.

But before the court does so, it will be necessary to show by evidence that the accused
was served and had deliberately refused to obey the summons.

Under section 51 of the MCA, ordinarily proof of service of summons shall be given
by calling the process server to give evidence on oath that service was effected. But
where the officer is not present or the summons was served outside the local limits of
the jurisdiction of the issuing magistrate, proof may be effected by the person with
whom the summons was left, swearing an affidavit before a magistrate and presenting
the original summons duly endorsed in the manner described above.

Even if the original summons is not endorsed, the affidavit shall be admissible in
evidence if the court is satisfied from the statements made in it that service of the
summons has been effected properly. S. 51(2) MCA.

From what has been discussed above, under what circumstances will an original
summons not be endorsed?

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF MPIGI AT MPIGI

CRIMINAL CASE NO 72 OF 2007

UGANDA------------------------------------PROSECUTION

VERSUS

K. DDUMBA---------------------------------------------------ACCUSED

AFFIDAVIT OF SERVICE

I JJ WILFRED of Ms. Firm A & Co. Advocates P.O. Box 7062,Kampala do solemnly swear and
state on oath as follows:

1. That I am a process server of all courts of judicature and this Honourable Court,
working with Ms. Firm A & Co. Advocates.
 2. That on the 23rd day of February 2007 I received a criminal summons serving upon K.
Ddumba the accused in this matter.

3. That on the 29th day of February, 2007 I proceeded to the accused’s place of residence
at Wamala village Ngando Butambala, a place well known to me.

4. That on reaching the accused’s place I found there his son who identified himself to
me as Asuman Ddumba and son to the accused.

5. That I asked him for the father but he told me that he was not aware of his
whereabouts since he had just returned from School where he takes his studies. He
however suspected him to have gone to Ngando town.

6. That I ordered a Boda Boda man one Rashid to take me Ngando town but upon
reaching Nganda, I didn’t find the accused.

7. That I ordered the Boda Boda man to take me Bulo town and it was on our way to
Bulo that I met the accused at a lady’s place of residence identified to me by the Boda
Boda man, as Hajjati Nazziwa alias Mrs. Kagga.

8. That we stopped and I branched off to Hajjati Nazziwa’s home from where I served
the accused with a copy of the summons.

9. That on service the accused told me that he was advised by his children not to appear
before court.

10. That I asked him to sign on my original summons which he refused and instead he
pleaded to me not to mention that I ever met him any where for service of the same.

11. That I left him with the duplicate copy of the summons and returned with the
original un signed.

12. That I swear this affidavit as proof of service of the summons in this matter.

13. That what is stated is true to the best of my knowledge.

SWORN BY THE SAID

J.J WILFRED at Kampala this …………………………………….
…………day of……………………………2007 DEPONENT

BEFORE ME

………………………………………………
COMMISSIONER FOR OATHS
 ARRESTS

Meaning of Arrest.

An arrest is the deprivation of liberty for the purpose of compelling a person to appear in
court or other authority to answer a criminal charge or to testify against another person. It
usually involves the taking of the person arrested in custody whereby he is detained or
confined.

Every individual in Uganda has a constitutional protection as to personal liberty enshrined in

the Bill of rights. Arresting a person therefore means interfering with his personal liberty.
Therefore, a person will not be deprived of his liberty save as may be authorized by law.

Method of Arrest.

Section 2(1) of the CPC provides that in the making of an arrest the police officer making the
same shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.

If such a person forcibly resists the endeavor to arrest him or attempts to evade the arrest,
such police officer or other person making the arrest may use all means necessary to effect the
arrest. However, there is an important proviso qualifying the use of force to the effect that
nothing contained in this section 2 of the CPC shall be deemed to justify the use of greater
force than is reasonable in the circumstances in which it is employed or is necessary for the
apprehension of the offender. S.2(2) & (3) of the CPC.

In other words, only reasonably necessary force is allowed to be used in order to effect an
arrest. Excessive or unwarranted force is unlawful. In otherwords, there is no need to touch
the person being arrested if he agrees to go with the person effecting arrest without resistance
or argument.

It is even unnecessary to handcuff or tie him if he behaves himself and intends to cause no
trouble.

Under section 5 of the CPC, it is provided that a person arrested should not be subjected to
more restraint than is necessary to prevent his or her escape. The late Ayume in his book gave
an example of a police officer who comes across a young lad trying to steal a tyre from a
motor vehicle at Nakivubo mews and asks the lad to follow him to the Central Police Station
and he willingly agrees to go without any danger of his escaping, there is no need to handcuff
him and push him around. It is unlawful and unnecessary to assault a person who is already
in custody.

Note:
Where any person is charged with a criminal offence arising out of the arrest or attempted
arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested
the court should, in considering whether the means used were necessary or the degree of
force used was reasonable for the apprehension of such person, have regard to the gravity of
the offence which has been or was being committed by such person and the circumstances in
which such offence had been or was being committed by such person.

Before use of force is employed, the arresting person should take into account the seriousness
of the offence committed and the manner in which it was committed. If the offence is grave
and violence is involved, the arresting officer may be justified to use deadly force like a
firearm to arrest the offender, or prevent him from escaping.

CRIMINAL PROCEDURE CLASS NOTES- 2009.

SEARCHES WITH OR WITHOUT A WARRANT

Law applicable.

The Criminal Procedure Code Act cap 116

The Police Act cap 303
The Magistrate’s court Act cap 16

Definition of a search.

A search may be defined as an inspection made on a person or in a building for the purpose of
ascertaining whether anything useful in criminal investigation may be discovered on the
body of the person or in the building searched.

A search is carried out for the purpose of collecting evidence and exhibits which may be used
in a criminal trial. A search may be carried out in anyplace whether it be within premises or
outside, or in a vehicle.

Normally searches are carried out on the authority of search warrants issued by the court, but
police officers are empowered to search without a warrant in certain cases.

SEARCH OF ARRESTED PERSONS.

A police officer has power to search any person who has been arrested and to take possession
of anything found on such a person which might reasonably be used as evidence in any
criminal proceedings. S.6 (2) of the CPC.

Whenever a person is arrested without a warrant, by a private person under a warrant, and
the person arrested cannot be released on bail, the police officer making the arrest or the re
arrest has power to search such a person and place in safe custody all articles other than
necessary clothing, which are found on him.
A police officer or any person making the arrest has power to seize any offensive weapons
found with an accused person. S. 9 CPC

Whenever it is necessary to search a woman, the search must be carried out by another
woman with strict regard to decency. S.8 CPC and s. 23 (2) of the police Act.

Search of Premises of Arrested Persons.

When a police officer has reason to believe that material evidence can be obtained in
connection with an offence for which an arrest has been made. Or of the person for whom
the warrant of arrest has been issued, and he has power to seize anything which might
reasonably be used as evidence in any criminal proceedings. (s.69 MCA). If the person to be
arrested enters any building or place, the arresting officer or person has power to enter the
premises and search them. (S.3(1) CPC)

Power to stop and search persons and vehicles.

Any police officer has power to stop, search or detain any vessel, boat, aircraft or vehicle
where he has reason to suspect that anything stolen or unlawfully obtained may be found. A
police officer has similar powers in respect of any person who may be reasonably suspected of
having in his possession or conveying in any manner any thing stolen or unlawfully obtained.
The police officer is authorized to seize such thing. S.7 CPC.

SEARCH WITH A SEARCH WARRANT.

A search warrant is written authority given by a court ordering the search of the premises,
place, or vessel named in the warrant for the purpose of seizing anything therein which is
required or material in the investigation of an offence. In other words, a search warrant is an
authority to search a place for evidence of a crime which is suspected or believed to have
happened. The two main reasons why it may be necessary to search a place are, to make an
arrest and second, to obtain evidence.

A search warrant must be signed by the magistrate issuing it, and must bear the seal of the
court. S.56(1) and s. 74 MCA. Every such warrant remains in force until it is executed or until
it is cancelled by the court which issued it. S. 55(3) MCA.

The direction in the search warrant must be strictly observed. The person to whom it is
directed is not supposed to seize articles which are not mentioned in the warrant unless such
un named articles are likely to provide additional evidence as to the identity of such articles,
or which at least, have some relevance in the charge against the accused person.
Thus the seizure of irrelevant articles is not only legally unjustified but may damage the
prosecution’s case. In order to prove that the articles seized were from the accused, it is
necessary to prove the contents of the warrant.

In Mohanlal Trivedi v R

The appellant was convicted of being in possession of property reasonably suspected of

having been stolen and failing to give a satisfactory account of his possession. The police
searched the house and shop of the appellant for a camera. Although they didn’t find the
camera, they found an exposure meter which was the subject matter of the charge. On appeal
it was contend among others that the conviction ought not to stand as no search warrant was
produced and there was no evidence to show that the appellant’s house and shop were the
buildings named in the warrant. The prosecution failed to prove the contents of the warrant
because of their failure to produce it in evidence.

Power to issue a search warrant.

If it is proved on oath to a magistrate that anything which is necessary to the conduct of

investigation into any offence is in a building, vessel, carriage, box, the court has power to
issue a search warrant authorizing the person to whom it is directed to search such place for
such a thing. The place to be searched for is found, the person carrying out the search is
empowered to seize and carry it to the court which issued the search warrant or some other
court to be use as an exhibit. S. 70 MCA

Execution of search warrants.

A search warrant may be directed to one or more police officers or chiefs named therein or
generally to all police officers and chiefs. However where the immediate execution of search
warrant is necessary and no police officer or chief is available, the issuing court may order
any other person to carry out the search. Where a search warrant is directed to more than
one officer or person, it may be executed by all or any one of them. S. 58 MCA

A Search warrant directed to a police officer may also be executed by any other police officer
whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
The position is the same as regards chiefs. S. 60 MCA.

Every search warrant may be issued and executed on a Sunday. It must be executed between
the time of sunrise and sunset, although the court has power to authorize the police officer or
other person to whom it is addressed to execute it at any hour. S. 71 MCA.

Search of Closed Places.

Whenever any building or other place liable to be searched is closed, any person residing in
or being in charge of such building must, on demand of the officer or person executing the
search warrant, and on production of the warrant, allow him free entrance and exit from the
building. The person in charge of the building is also required to afford the person searching
all reasonable facilities for the search. S.72 (1) MCA

If entrance or exit is not allowed, the person executing the warrant is authorized to break in
or break out of the building. S. 71(2) MCA and s. 4 CPC.

If any person is found in or near the building to be searched , and is reasonably suspected of
concealing on his body any article for which search should be made, such person may also be
searched. If the person is a woman, she must be searched by a woman. S. 72(3) MCA and s.
23(2) of the CPC.

Detention of Property seized.

When anything is seized and is brought before a court, it may be detained until the
conclusion of the case or the investigation. Reasonable care must be taken for its preservation.
S. 73(1) MCA.

If any appeal is made, or if any person is committed for trial, the court must order it to be
further detained for the purpose of appeal or the trial. S. 3(2) MCA. If no appeal is made, or if
no person is committed for trial, the court must direct such thing to be restored to the person
from whom it was taken, unless the court sees fit, or… authorized, to dispose of it otherwise.
S. 72(3) MCA.

SEARCHES WITHOUT A SEARCH WARRANT.

Under s. 7 of the CPC, a police officer is authorized without a search warrant to stop, search
or detain a vehicle, vessel, or aircraft, if he has reason to suspect that it contains stolen
property or property un lawfully obtained. In any way he can stop and search any person and
seize any property found on him

s. 7 (1) of CPC provides;

Any police officer may stop, search or detain any vessel, boat, air craft o r vehicle in or upon
which there is reason to suspect that anything stolen or unlawfully obtained may be found
and also any person who may be reasonably suspected of having in his possession or
conveying in any manner anything stolen or unlawfully obtained, and may seize such thing.

The application of this section is called into question when a police officer after stopping and
searching, proceeds to charge the person searched with an offence under s.300 of the penal
code act. On a charge under this section, the prosecution must satisfy the court that there was
reasonable suspicion before the vehicle or person was stopped and searched.

In other words, suspicion must precede the stopping. Suspicion which may be reasonable,
arising or manifesting itself after the stopping will not render the action of the police officer
legal under section 7 of the CPC.
Read Kityo Vs. Uganda 1967 EA 23.

It should be noted that the power of stopping and searching under s.7 of the CPC is vested
only in police officers. For example, chiefs would not be acting lawfully if they assumed to
exercise powers under this section

Read Tenywa V Uganda 1969 EA 102.

Prepared by Lecturer