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ISLAMIC UNIVERSITY IN UGANDA FEMALES CAMPUS KABOJJA

NAME: COURSE: FACULTY: YEAR: REG.NO: TASK: COURSE UNIT: LECTURER:

ASIIMWE CHRISTINE LLB LAW 4 409-053011-00442 COURSEWORK FOUNDATIONS OF LAW MR. BASALIRWA ASUMANI

DATE OF SUBMISSSION: 27TH SEPT 2012

QN. USING RELEVANT EXAMPLES DISCUSS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL LAW.

Law applicable.
Statutes Common law and equity Case law Foundations of law basically deals with different laws as applied in the states and how they relate with each other and also how they are enforced on the people as binding on them. It is hard define a crime but it can be simply said that a Crime is a conduct forbidden by the state for which there is a punishment. In the case of Proprietary Articles Trade Association Vs. Attorney General For Canada, lord Aitkin supported this definition and said that the criminal quality of an act cannot be discerned by intuition (made out by gut feelings; nor can it be discovered by reference to any standard but one: is the act prohibited with penal punishments. Criminal law sometimes is referred to as the body of laws or rules whose common characteristics are the potential for unique and often severe imposition of punishments. Criminal law is designed to deal with general principles of criminal liability hence protecting the society from harmful people .it was developed as an instrument of social control for instance naturally human beings are weak and they need to be controlled otherwise they will commit crime. To ensure a speedy resolution of the dispute between the parties, procedural rules have been put in place for instance the rules of discovery mandate that places must disclose all relevant documents ,whether they are favorable to the disclosing party or not.1Proceedings are regular and orderly progression of a law suit including all acts and events between the time of commencement and the entry of judgment.2 Therefore Criminal proceedings are instituted to determine a persons guilt or innocence or to set a convicted persons punishment.3

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www.difference .com-civil.proceedure-and-criminal -procedure Black laws dictionary pg 1241 3 Magistrates Manual by B.D Chebete pg 5

Civil law refers to the rules concerning the settlements of disputes between different parties. And in this case civil proceedings are a process that is issued in a civil suit.4And the main purpose of civil law is to regulate relationships between individuals and to remedy wrong s suffered by the individuals. William Geldart, in his book stated that the difference lies on the objects which the law seeks to pursue redress or punishment.5To him, civil law is to redress the wrong by compelling, compensation or restitution .The wrong doer is not punished, he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law or at least he avoids a loss. And the main objective of criminal law is to pursue the wrong doer to give him and others as strong inducement not to commit same or similar crimes to reform him if possible and perhaps to satisfy the public sense that wrong doing ought to meet with retribution. According to this point of view in this question, the differences between criminal law and civil law. A plea is to criminal law whereas a pleading is to a civil law. A pleading is a written statement of defense. In criminal law a charge or a formal complaint is the foundation of a criminal prosecution and it is the first document on a case file. The responsibility of the correctness of a charge is that it lies on the doorstep of a public prosecutor or complainant. Its the duty of the DPP to institute a case on behalf of the victim.6 While in civil law a plaint must be instituted by presenting it to court of such officer by the plaintiff as the court may be appoint an advocate on that behalf.7For example, if a lumberyard enters a contract to sell a specific amount of wood to a carpenter for an agreed-upon price and then fails to deliver the wood, forcing the carpenter to buy it elsewhere at a higher price, the carpenter might sue the lumberyard to pay the extra costs incurred because of the lumberyard's failure to deliver; these costs are called damages. If these parties were from different states, however, then that suit could be brought in federal court under diversity jurisdiction if the amount in question exceeded the minimum required by statute.
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Ibid pg 6 th Introduction to English law 146 CDM Yardley 9 edition 1984 6 Article 120 of the constitution of the Republic of Uganda 1995 7 Section 22 order 4 rule 1(1)

In criminal law the center of any criminal trials or the accused for that reason the general rule and exception or circumstances the accused must be present; his advocate must be present when the case is taken court as pointed out in section 197 of the criminal proceedings code. This was illustrated in the case of R. VS LEE KUN , Lord Denning , C.J said that there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused .The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity of answering it.8While civil law the plaint is entered for the plaintiff. If the defendant has been fully served fails to appear and the plaintiff appears when the suit is called on for hearing. The court may proceed. However to sustain this claim, the court must be satisfied that the defendant was dully served that he was served in sufficient time and that he is absent on the day fixed for the hearing of the case.9 In criminal law the prosecution has the right to begin calling witnesses because the burden of proof is usually or always on the prosecution. As according to the presumption that he who asserts must prove .This was seen in the case of Wilmington vs.DPP, where court held that the prosecution had to prove beyond reasonable doubt that the defendant killed his wife. And if the prosecution satisfied that then the defendant had to show that there were circumstances which made the killing a pure accident.10 While in civil law the preponderance of evidence burden of proof is initially on the plaintiff and then shifts to the defendant 11. And that the right to begin largely depends on the questions as to who has the burden of proving a particular issue .The plaintiff being the person who asserts facts on which his claims are based has the right to begin but the defendant admits the facts alleged or asserted by the plaintiff but contends that either in point of law or on some additional facts the plaintiff is not entitled to any part of relief which he seeks ,then the defendant will have the right to begin in that the burden of proving those additional facts lies on him.12 In criminal law the complaint or the prosecutor are the leading parties in the criminal matters where the complainant institutes a case against the defendant while the plaintiff or the defendants are the leading parties in the civil matters .A plaintiff has been defined as legal person who asks
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[1916] 11 Criminal R 293 at page 300 Magistrates manual pg 25 10 [1935] AC 462 11 Http//.en //criminal -proceedings v-civil-proceedings.htl 12 Order 18 r.1 of the civil procedure Act cap

for any relief in a court of law (not being by way of counter-claim as a defendant) against any other legal person by way of civil proceeding13. In criminal law the state seeks to punish those who disregard the laws governing the public order .Of course the state cannot exercise this power unless the accused persons are found guilty after affair trial while in civil law the plaintiff seeks remedies against the damages done by the defendants for instance monetary damages while the defendants liberty is seldom at stake.14 Criminal law has cases such as theft, murder, robbery, treason, abortion, rape that is to say case which is grave to humankind while in civil law the cases which constitute to a crime are fraud, breach of contract, negligence in torts, land disputes and so on. In criminal law a guilty defendant is punished by either incarceration in a jail or fine paid to the government, or, in exceptional cases, the death penalty. Crimes are divided into two broad classes that is to say, Felonies and Misdemeanors where defendant can be found guilty or not in the case of R Vs. Sierra, the court held that if a person owing to some purpose of its own wants to claim insurance money and then sinks a boat and the end result is death of a person, he is guilty of murder and it doesnt matter that he had a specific intention provided that he had the knowledge that death would probably occur from sinking.15 while in civil law are done to redress the wrong by compelling or compensating or reinstitution .the wrong doer is not punished her only suffers so much harm as is necessary to make good the wrong he hash done. The person who has suffered gets definite benefit from the law or at least he avoids a loss. 16This was affirmed in the case of Victoria Laundry (Winston) Ltd Vs. Newman Industries, the plaintiffs who were launders and dyers wished to extend their business and to equip themselves for certain highly lucrative dyeing and agreed to supply on 5th .they were aware of the nature of the plaintiff business required for immediate use but they had no knowledge .the plaintiff claimed damages for the loss .it was held that the plaintiff were entitled to get damages because it was the defendants fault because they expected the losses in the due course of business.17

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Magistrates Manual B.D Chipeta pg 155 th Criminal law Rout ledge Cavendish pg 36 , 6 edition 15 (1887) 16 CC 311 16 www.answers.com/en/compare 17 (1949) AC PG 134

The person to report first in criminal law is the state because any crime done is against the state. This is based on the presumption that he who alleges must prove ,since the state is the one which institutes the case its the duty it owes to the victim or the relatives of the victim (if the victim is dead) to report the case .While in civil law the duty to report is at the discretion of the plaintiff. In civil law the state seeks to protect the rights of the individual a contract with B and B fails to furnish consideration to A .if the plaintiff complains then the rights to be protected is for the plaintiff for instance if A while in criminal law the state seeks to protect the rights of the victim and the public at large. This was affirmed in the instituting a case to protect the individual case of Attorney General of Northern Island Vs. Gallegher,the accused purchased bottle of beer o be drunk voluntarily before he killed his wife with a wife. Lord Denning stated that, the person who goes out intending to kill knowing it to be wrong and goes ahead to kill cannot escape liability by giving a defense of intoxication while risking the life of others.18 In criminal law there is prerogative of mercy that is to say if a person has been convicted of murder and the punishment, the president can forgive that person under a prerogative of mercy. Article 121(4), states that 19while in civil law there is no prerogative of mercy at all. Anyone convicted of a crime must pay compensation or pay back the owners of the money himself. In criminal law, there is no time limit to institute a case while in civil law there is time limit. According to the Limitation Act it states that the person who asserts a case in criminal law should make sure that he is not time barred though he or she can still institute case even if he is time barred. As to civil law time is essential and the case can be dismissed on grounds of time barred. In criminal law the formula of filling cases is different from those of civil cases. That is to say, in criminal law, the state or the republic is the plaintiff and is against the accused i.e. STATE Vs. KAMUNTU. While in civil proceedings the files are filled in such a way that parties are against each otherwise KAMUKAMA RONALD vs. KAMUNTU EMMANUEL.

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AC (1887) PG 21 The constitution of the republic of Uganda 1995

Even though there has been a lot of differences between civil law and criminal law, we however cannot forget the similarities between the two laws, the similarities as between civil law and criminal law are: In both laws the center of any proceedings is the accused /defendant so far that reason, as in cases the general rule and except in exceptional cases the accused/ defendant must be present throughout the proceeding in which court dispenses with his advocate must be present when the evidence is being taken .this was explained in the case of R . VS LEE KUN, Lord Denning, C.J said that there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused20 .Reasons for the presence of the accused at the trial is for him to hear the case made against him and have the opportunity of answering it while in civil law the plaint entered for the plaintiff.21if a defendant has been fully served fails to appear and the plaintiff appears when the suit is called on for hearing. The court may proceed.22 In both laws the issue of whether a court has jurisdiction for instance extent to which or the limits such courts can lawfully exercise its powers and what powers is vital23. This was seen in the case of Sindiko Vs. Kaaya ,the primary court tried a civil suit in which the value of the subject matter was T25 2000,the court could only handle a matter not exceeding T25 100024.Likewise in the case of Sharma Vs. R ,it illustrates the part as to the importance of territorial jurisdiction for here the court pointed out that proof of place of commission of an offence is essential to the prosecution case and that although it is not always capable of exact proof ,evidence should be led on which the necessary inference can be drawn25. In both laws the courts exhibits their duty to administer justice that is to determine the guilt or innocence of those accused of crime and to declare the rights and liabilities of parties to suits.26This is so because no one can be punished without proving that the alleged crime was actually done by the person in question. This can also be seen under Article 28 (3) (a) which

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[1916] 11 criminal R 293 Pg 300 [ 1967 ] AIR 312 22 Magistrates Manual ,B.D Chip pg 179 23 Ibid. pg 4& 5 24 [1977] LRT n.18 25 20 EACA 310 26 Magistrates manual by B.D Chipeta. Pg 81

states that every person shall be presumed innocent until proven guilty or until that person has pleaded guilty.27 Both laws are considered to be serious matters in a way that the parties in a civil proceedings risk losing their property or other property or even their reputation and a person accused of having committed a crime has a stake no lesser a right than his right to personal reputation and even freedom from incarnation. For instance a minister accused of raping a young girl. Adjournments: In both, there are numerous circumstances which from time to time necessitates adjournment .Here the magistrate or the judge or the public prosecutor or the accused or a material witness may be indisposed .you may be pressed with some other urgent business investigations may be incomplete, some exhibit might have been misplaced the accused may wish to engage an advocate who is yet to be brief and so on. The magistrate must record such adjournments. And the case is said to come up for either mention or hearing and while this happens the accused is released on bail or on remand him in custody. Judgments: In both laws, Judgments must contain the point or points for determination and the decision there on and the reasons for decision.28Also the statements above can also be cited in order 20 r.4.29From the ongoing it may be said that judgments is the culmination of civil and criminal law in cases where the rights or obligations of the parties or the guilt or innocence of an accused person are clearly stated and the reasons for arriving at that culmination are also very clearly stated. At judgments therefore is a mirror which reflects the clarity of thought of lack of it if the person who prepared it.30 The rule of giving and recording cases in all proceedings in both civil law and criminal law is the same .The evidence of witnesses who are present must be taken on oath and orally in open court in the presence and under the personal direction of the judge or magistrate, it should be in narrative and not in question and answer form that issuing the first person singular form and

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The constitution of the republic of Uganda 1995 Section 312( 1 criminal procedure code 1985 29 Civil procedure code 30 Magistrates Manual B.D Chipeta Pg 116 & 115

must be signed by the presiding judge or magistrates.31This can also be seen in order 18 r.4 and 5 of the civil procedure rules.32 Both in civil and criminal law no court shall proceed with the trial of any suit or proceeding in any case on a charge shit which has been previously instituted on the same parties, or between parties under whom they or any of them claim or litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant relief claimed.33 In all civil or criminal law the prosecution or the plaintiffs proceedings are commenced against the person for any act done. This is seen in the laws of Uganda where it states that the proceedings are commenced upon the person for ant act done in pursuance or execution or intended execution of any Act or any written laws or of any public duty or authority ,or in respect of any alleged neglect or default in the execution of any such act or any other written law, duty or authority ,the action ,prosecution or proceeding shall not lie or be instituted within six months after the act ,neglect or default complained of ,or in the case of continuance of injury or damage, within three months after the ceasing of the injury or damage.34 In determination of civil rights and obligations or any criminal charge and civil suit ,all parties are entitled to a fair, speedy and a public hearing before an independent and impartial court or tribunal established by law.35This was also affirmed in the case of Sheldrake VS. Dpp, the plaintiff was convicted of being in charge of a car in a public place contrary to the road traffic act and it was held that the DPP had the legal burden of proof, however pointed out that there is an obvious risk that a person in charge of a car in public place when unfit may cause death. Equity is also a source of law which is applied to both criminal law and civil law ,all parties must be equally judged and fairly heard. This is done to avoid injustice to both parties and this is done by putting both parties in the position or status they were in before the incident happened or put an injunction where necessary, rectify the issue or even rescind the contract. And same is for criminal law where a punishment must be implemented because no sinner goes unpunished.
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Ibid pg 116 Civil procedure rules of the laws of Uganda 33 Civil procedure Act cap 71 34 Ibid pg 1422 and criminal procedure Act Cap 116 35 Article 28 of the constitution of the republic of Uganda 1995

LASTLY no one can be charged of any offence in any proceeding as to both criminal and civil proceedings without any law prescribing it to be a crime or any offence. Article 7, which states that no one shall be held guilty of an offence on account of any act or omission which did not constitute a criminal offence under a national or international law at the time when it was committed and also no punishment will be given to any person under that category whatsoever.36This was seen in the case of C. R .VS. United Kingdom, where was held that the offence of rape was not in breach of Art.7 In conclusion, it can be seen that mostly the civil and criminal proceedings are usually conducted in the same way apart from a few distinctions as seen above.

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EUROPEAN CONVETION ON HUMAN RIGHTS

REFERENCES

STATUTES. 1. THE CONSTITUTION OF THE REPUBLIC OF UGANDA 1995 2. THE CIVIL PROCEEDURE CODE ACT CAP 116 3. THE CRIMINAL PROCEEDURE ACT CAP 72 4. THE MAGISTRATES COURT ACT CAP 16 TEXTBOOKS 1. MAGISTRATES MANUAL BY B.D CHIPETA LAW AFRICA PUBLISHERS, 2010 2. CRIMINAL LAW FOR A2 JACQUILINE MARTIN ,2006 3. CRIMINAL LAW BY CATHERINE ELLIOT AND FRANCES QUINN ,2003 EDITION 4. FACTS AT YOUR FINGER TIPS ,CRIMINAL LAW BY JACQILLINE MARTIN AAND CHRIS TURNER,2002 EDITION 5. CRIMINAL PROCEEDURE AND PRACTICE IN UGANDA BY SSEKAANA MUSA ,2000 EDITION INTERNET. 1. EN.WIKIPEDIA.ORG.CRMINALPROCEEDURE 2. WWW.DIFFEN.COM.CIVIL-LAW-VS-CRIMINAL-LAW 3. WWW.LAWFIRMS.COM/RESOURCE/LAWSUITS-AND-DISTORES/LITIGATION 4. RESOURCES.LAWINFO.COM/EN/LEGAL-FACTS/CIVIL-LAW-VERSUSCRIMINAL-LAW.HTML 5. WIKI.ANSWERS.COM/EN/COMPARE 6. WWW.EHOW.COM/SIMILARITIES-BETWEEN-CIVIL-AND-CRIMINAL-LAW