[2022] UGCA 239

THE REPUBLIC OF UGANDAIN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Musoke, Gashirabake & Luswata, JJA]

## CRIMINAL APPEAL NO. 057 OF 2018

(*Arising from Court Martial Appeal 004 of 2018*)

- 1. KASIITA MOSES - 2. LUBEGA JOLLY

3. WASWA SULAIMAN...................................

#### **VERSUS**

#### **UGANDA ...................................**

Arising from the decision of Hon. Mr. Elly Turyamubona and Col. Micheal Kagambirwe of 15 the Court Martial Appeall Case No. 004 of 2018 dated 26^th September 2019]

#### JUDGMENT OF COURT.

# Introduction.

The facts that led to prosecution of the Appellants are that during the months of January and February 2015, a group of about twenty people hatched a plan to rob 20 a Forex Bureau in Kampala. On or about the 3 March 2015 at about 1100hrs, while at Esso corner on Kampala –Jinja Road in Kampala, the Appellants putting on army uniforms swung into action. Using a fire arm, they robbed UGX $525,000,000=$ (Five hundred twenty five million shillings) being the property of Mr. Maddy Mulema Kalembe of Sports Forex Bureau. 25

The Appellants being civilians, were brought under the ambit of Section 119 (1)(g) and (h) of the Uganda Peoples Defence Forces Act (UPDF Act) No. 7 /2005 and were charged with aggravated robbery C/S 285 and 286 of the Penal Code Act. At first the Appellants pleaded not guilty, but as the trial progressed.

They decided to change their plea of not guilty to that of guilty. The General 30 Court Martial being satisfied with their change of plea accepted their plea of guilty and convicted and sentenced them to ten years' imprisonment each on their own plea of guilty.

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$\mathsf{S}$ Dissatisfied with the sentence imposed by the General Court Martial the Appellants appealed to the Court Martial Appeal Court on ground that the sentence was manifestly harsh.

The Court Martial Appeal Court, heard the Appeal and instead enhanced the sentence from 10 years imprisonment to 15 years having deducted 3 years spent on remand. Dissatisfied by the Court martial appeal court decision, the Appellants appealed to this court on two grounds that:

- 1. The learned members of the Court Martial Appeals Court erred in law when they enhanced the sentences of the Appellants without following the requisite procedure. - 15

2. The learned members of the Court Martial Appeals Court erred in law when they entertained a matter in which they lacked jurisdiction.

# **Representation**

The Appellants were represented by Mr. Henry Kunya. The Respondent was represented by Mr. Simon Peter Semalemba, assistant DPP.

The Court at the hearing adopted written submissions filed in support of the $20$ respective parties, which submissions have been considered in this judgment.

# Ground 1

# Submissions by counsel for the Appellant.

Counsel for the Appellant submitted that according to the law, the appellate court is not to interfere with a sentence imposed by the trial court which has exercised 25 its discretion on sentences unless the exercise of the discretion is such that the trial court ignored to consider an important matter or circumstances which ought to be considered when passing the sentence, as was in the case of **Kiwalabye v** Uganda (SC Cr App No. 143 of 2001) as was cited in Kimera Zaverio V **Uganda (COA Cr App No. 427 0f 2014).** 30

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⁵ Counscl submittcd that thc lcarncd mcmbcrs ol'1hc Court Marlial Appcal Court in cnhancing scntcnccs ol'thc Appcllants rclicd on thc provisions olScction 236 (a) (b) and 239 (2) of thc IIPDF Act 2005. Counscl submittcd that thc prosccution ncvcr Illcd any cross appeal against thc scntcnccs imposcd against thc Appcllants who challcngcd their rcspcctivc scntcnccs ol' l0 ycars imprisonmcnt. 10

Counscl lurthcr submittcd that u,hcrc an appcllatc court intcnds to cnhancc a scntcncc. it ought to givc thc Appcllants advancc noticc bclorc a scntcncc is cnhanccd to bc allordcd a hcaring on thc ncw scntcncc in thc intcrcst ol'.iusticc. 'l'hc casc ol' Kwamusi Jacob v Uganda (SC Cr. App No.22 of 2014 rvas highlightcd by counscl.

(lounscl submittcd that thc lailurc to lbllow thc abovc rcquisitc proccdurc by thc mcmbcrs ol'thc Court Martial Appcal court lcd thc Appcllant 1o sull'cr ^a miscarriagc ol'iusticc sincc thc1, wcl'c not givcn any opportunity to he hcard bclbrc thcir rcspcctivc scntcnccs rvcrc cnhanccd, lurlhcrmorc thc timc spcnt on rcmancl was not put into considcration.

Counscl concludcd by stating that thc honourablc court linds thc scntcnccs ol' l5 vcars inrprisonmcnt illcgal.

# (iround ²

l5

## Submissions by Counscl for thc Appcllant

Counscl lbr thc Appcllanl suhmittcd that thc Appcllants lvcrc c iv ilians and hcncc \\ crc not sub.jcct to milirary larv and both courts lack.jurisdictit)n to trv thcm. liurthcrmorc. thc ollcncc lbr lvhich thcy'wcrc indictcd was not a scn,icc ollcncc to warrant an)/ appriarancc bclirrc thcsc military courts as was hcld in [,1. Ambrose ()gwang V Uganda CACA No. 107 of 2013 citcd \* ith approval in L/CPl, Nasasira gracc & Ors v Uganda caca no. 250 of 2017. 25 30

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⁵ Counscl concludcd by praying that this honourablc courl allows thc appcal. quash thc conviction and sct asidc thc impugncd scntcnccs. And it'thc conviction is uphcld it should bc substilr.rtcd rvith appropriatc oncs in a bid to mccl thc cnds ol' justicc.

## Submissions by counscl for thc Rcspondcnt.

Counscl lbr thc I{cspondcnl raiscd a prcliminary point to disposc ol- this appcal. 'l hc point ol law raiscd by counscl lbr thc l{cspondcnt was "v,hether the Court of Appeol has jurisdiclion lo hear appcols/rom the Court Mafliol Appeul Court." 10

In support ol'his submissions counscl rclicd on thc dccision of this court in I)TE Muhumuza Zcpha vs. Uganda Criminal Appcal No. 031/2016, thc Appcllanls r.vcrc chargcd by thc divisional court martial on tlrrcc counts o1'murdcr and scntcnccd to dcath. thcy appcalcd to thc Court Martial against only onc scntcncc ol'dcath and it was sct asidc and substitutcd rvith a scntcncc ol'4() vcars. thc Appcllanls bcing dissatisllcd with thc scntcncc appcalcd to thc court rnarlial appcal court and thc scntcncc was rcduccd to 30 ycars.

Still dissatislicd with that scnlcncc. thc Appcllants appcalcd 1o this honourablc court, but thcir appcal rvas dismisscd lirr lack o l'.iurisd iction. 'lhis honourahlc court hcld intcr alia that a right to appcal is a crcaturc olstatutc. Scction 8 ol'thc UPDF Act confcrs on thc (icncral Court Manial somc appcllalc jurisdiction undcr thc Act but no lurthcr provision is madc to thc (lourl ol'Appcal ol-iJganda. llc concludcd that thc provisions in thc (JPI)lt Act clo not conlcr anv lurthcr rights ol'appcal to thc Court ol'Appcal ol'lJganda. Counscl lurthcr statcd that thc Iacts ol'the casc abovc arc almost similar to thc instanl casc. 20 25

Counscl concludcd by praying that thc Appcllanl.s appcal bclirrc this court is inconrpctcnt and thcrclorc should bc struck out.

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#### $\mathsf{S}$ **Consideration of Court**

The Respondent raised a preliminary point of law as to whether the Court of Appeal has jurisdiction to hear appeals from the Court-Martial Appeal Court. This question was addressed by this Court in the case referred to by Counsel for the Respondent in PTE Muhumuza Zepha vs. Uganda Criminal Appeal No.

**031 of 2016.** Where this court held that: 10

> "the proposition that appellate jurisdiction is a creature of statute can be found in the holding of the then East African Court of Appeal in Attorney General v Shah (No. 4) [1971] EA, 50 ....... Spry Ag P held,

> 'it has long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. there is no such thing as inherent appellate jurisdiction."

This court in **PTE Muhumuza** (Supra) exhaustively dealt with this matter and discussed the different laws that govern the jurisdiction of this court like Article 134(2) of the Constitution of Uganda and Section 10 of the Judicature Act Cap 13 of laws of Uganda 2000 which confers on this Court of Appeal the general 20 appellate jurisdiction to hear appeals emanating from the decisions of the High Court only. In that very case court observed that in the strict sense of the above provisions the Appellate Jurisdiction does not confer jurisdiction to hear Appeals emanating from Court Martial Appeal Court, other than decisions of the High Court. 25

This Court also examined Regulation 20 of the Uganda People's Defence Forces (Court –Martial Appeal Court) Regulations: Statutory Instrument 307, which provides that the Appeal from the Court-Martial Appeal Court are final.

We have no reason to divert from the decision of this court. When the law clearly stipulates the jurisdiction of a court, it is illegal and a nullity to file the suit in a court without jurisdiction, let alone for the presiding judicial officer to hear the

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# same. See: Paul K. Semogerere and 2 Others v. A. G. SCCA 1/2002; where it $\mathsf{S}$ was held: Jurisdiction is defined in **Mulla on the Code of Civil Procedure at** page $225$ as;

"By jurisdiction it meant authority which court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way, for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be exercised or restricted by the like means. If no restriction or limit is imposed, the Jurisdiction is unlimited."

It is therefore justified to say that the lack of jurisdiction goes far beyond the original errors or technicalities. It is an illegality to handle a matter without 15 Jurisdiction. In Desai v. Warsama (1967) EA 351, court held that:

> "lack of jurisdiction goes far beyond any error, omission, or irregularity nor can it be regarded as a mere technicality and that there is in law nothing to be reversed or altered and there is a complete absence of any material from which an appeal can be

Consequently, since under Regulation 20 of the Uganda People's Defence Forces (Court-Martial Appeal Court) Regulations Statutory Instrument 307-7, it is provided that the decisions from Court – Martial Appeal Court are final, this court would be acting ultra vires to entertain this matter. This court has no power to intervene in this matter.

It is therefore our considered opinion that since this Appeal is incompetent before this court and it is hereby struck out.

We so Order.

Dated at Kampala this $2.8$ Of $\mathcal{S}$ Of $\mathcal{S}$ 2022 30

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$\mathsf{S}$ ELIZABETH MUSOKE **JUSTICE OF APPEAL** $10$ **........ CHRISTOPHER GASHIRABAKE** JUSTICE OF APPEAL EVA K. LUSWATA 15 JUSTICE OF APPEAL

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