[2020] UGCA 2171

# Offerner under the<br>National Angpoling<br>Sentence Purshed THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Egonda-Ntende, Cheborion Barishaki, Muzamiru Kibeedi, JJA]

## CRIMINAL APPEAL NO. 765 OF 2014

(Arising from High Court Criminal Appeal No. 20 of 2011 at Mbale)

#### **BETWEEN** Lutoti Stephen= Appellant AND

Uganda= Respondent

(An appeal from the judgement of the High Court of Uganda [Kawesa Isabirye, J] delivered on $8$ ^th July 2014)

#### **JUDGMENT OF THE COURT**

#### **Introduction**

The appellant together with three others were charged with four offences $[1]$ under the National Drug Policy and Authority Act Cap 206. The first count was carrying on a business of a pharmacist without a license contrary to section 14 (3) of the National Drug Policy and Authority Act. The particulars of the offence were that the appellant and two others on the 18^th day of May 2010 at plot 9 Pallisa road in Mbale municipality, Mbale district carried on a business of a pharmacist in the name of Ambition Pharm without a licence. The second offence was supply of restricted drugs without a general or a limited certificate contrary to section 16 (1) (a), (c), (d) and (e) of the National Drug Policy and Authority Act. The particulars of the offence were that the appellant and two others on the 18^th day of May 2010 at plot 9 Pallisa road in Mbale municipality, Mbale district carried on a business of supplying restricted drugs from Ambition Pharm without a general or limited certificate issued under the Act.

The third offence was possession of classified drugs contrary to section 27 (2) of the National Drug Policy and Authority Act. The particulars of the $\sim$ offence were that the appellants and two others on 18^th May 2010 at plot 9 Pallisa road in Mbale municipality, Mbale district were found in possession of classified drugs of classes A, B and C as per the 1^st, 2^nd and 3^rd schedules to the National Drug Policy and Authority Act. The fourth count was possession of narcotics contrary to section 47 $(1)$ and section 60 (a), (c), (d) and (e) of the National Drug Authority and Policy Act. The particulars of the offence were that the appellants and two others on the 18^th May 2010 at plot 9 Pallisa road in Mbale municipality, Mbale district were found in possession of codeine, a narcotic drug without lawful excuse.

$[2]$

- The appellants and the two others were acquitted on all the four counts by $[3]$ the trial court. On appeal to the High court, the learned appellate judge reversed the decision of the trial court and convicted the appellant and the two others on each of the counts. The appellant was sentenced to pay a fine of UGX 500,000 for the first count or serve two years' imprisonment in default of the fine. For the second count, the appellant was given a fine of UGX 200,000 or in default of the fine, 30 days imprisonment and he was to forfeit the impounded drugs to the state. For the third count, the appellant was fined UGX 500,000 or imprisonment of 2 years in default. For the fourth count, the appellant was fined UGX 200,000 or imprisonment of 30 days in default and forfeiture of the said impounded drugs to the government. - Dissatisfied with the decision of the first appellate court, the appellant has $[4]$ appealed on the following grounds:

'1. That the 1^st appellant court erred in law in holding that a pharmacist in the private practice is required to have a licence before dispensing the restricted drugs hence occasioning a miscarriage of justice.

2. That the $1^{st}$ appellant court erred in law when it held that ambition pharmacy had not been issued with a licence by national drug authority hence occasioning a miscarriage of justice.

3. The 1^st appellant court erred in law when it relied of the exhibits that where not on the search certificate hold that ambition pharmacy was conducting a business of pharmacy hence occasion a miscarriage of justice,

4. The 1^st appellant court erred in law by failing on its duty to properly re-evaluate evidence on record hence occasioning a miscarriage of justice.'

The respondent opposed the appeal. $[5]$

# **Submissions of Counsel**

- At the hearing the appellant was represented by Mr. Mututa Martin and the $[6]$ respondent by Ms. Nakafeero Fatina, the Principal State Attorney holding brief for Ms. Macrina Gladys Nyanzi. The parties undertook to file written submissions but on the counsel for the appellant did so. - With regard to ground 1, counsel for the appellant submitted that under $[7]$ section 40(2) of the Constitution of Uganda, every person is empowered to practice his profession and carry on any lawful occupation, trade or business. Counsel submitted that sections 13(1), 15 (1), 20 (1) and 22 of the National Drug Policy and Authority Act and Regulation 16 (d) of the National Drug Policy and Authority Regulations empower registered pharmacists to possess and supply drugs without a licence. Counsel for the appellant submitted that the intention of the framers of the Act was to ensure that persons who possess and supply drugs are qualified. - Counsel for the appellant submitted that it was agreed by PW1, DW2 and [8] DW3 that the appellant and Mwigo John Banobere were registered pharmacists in Uganda and were allowed to practice their profession in the year 2010. Counsel for the appellant relied on section 57 of the Evidence Act for the submission that agreed facts need not be proved. - It was argued by counsel for the appellant that the first appellate court's $[9]$ decision that Regulation 16 of SI 206-1 applies only to registered pharmacists who have access to the restricted drugs in the course of their employment in the public sector is against the spirit of the law and was a

Page 3 of 18

misinterpretation of the exemption under the law that gives all registered pharmacists rights to possess and supply drugs without a licence from the National Drug Authority. Counsel for the appellant was of the view that if the framers of the law intended to exclude pharmacists in private practice from this exemption, they should have clearly stated so. Counsel for the appellant submitted that the decision of the first appellate court was contrary to the law and should be set aside. Counsel prayed that this court holds that the appellant is allowed under the law to be in possession and supply drugs of class A, B and C without a licence issued by National Drug Authority.

Counsel for the appellant submitted, in relation to ground 3 that Ambition $[10]$ Pharmacy was not operating during the period of 12^th April 2010 to 18^th May 2010 when the drugs were impounded from its premises. Counsel for the appellant stated that in that period the pharmacy was stocking drugs in preparation to start the business. Counsel for the appellant also submitted that the first appellate court wrongly relied on the receipt book that had been adduced into evidence by the prosecution for identification purposes only and that it had no evidential value. Counsel for the appellant argued that any decision based on such documents is a nullity and should be set aside. Counsel for the appellant submitted that the receipt book was a creation by the prosecution to fabricate a case against the appellant and the other convicts. Counsel further submitted that the prosecution did not lead any evidence to show that the receipt book was recovered from the premises of Ambition Pharmacy and that the receipt book was not on the search certificate or part of other documents recorded by the prosecution witnesses as items recovered from the scene of the crime. Counsel for the appellant stated that the prosecution failed to call witnesses to testify that they had brought drugs from Ambition Pharmacy between the period of 12^th April 2010 and 18^th May 2010.

Counsel for the appellant concluded by submitting that the first appellate $[11]$ court had no evidence to support its findings that Ambition Pharmacy was carrying on business of a pharmacist at the time the drugs were impounded. Counsel for the appellant prayed that this ground of appeal succeeds and the decision of the trial court be set aside.

$\left( \begin{array}{c} \bullet \\ \bullet \end{array} \right)$

- While submitting on ground 2, counsel for the appellant stated that section $[12]$ 14 (1) (c) of the National Drug Policy and Authority Act, Regulations 3 and 7 of the National Drug Policy and Authority (Issuance of licences) Regulations S1 206-3 provide for who should apply for a licence and what requirements should be met by the applicant in order to be issued a licence. Counsel for the appellant argued that Ambition Pharmacy Ltd had been issued with a licence and what was left was administrative work to be carried out by the executive secretary to the National Drug Authority which included printing, signing the licence and calling the company officials to pick a copy. Counsel for the appellant submitted that the authority had exercised its discretion in favour of the pharmacy because its application had not been revoked or queried by the committee. Counsel for the appellant argued that the selling of pharmacy operational books to Ambition pharmacy was an indicator that the pharmacy was licensed. - $[13]$ Counsel for the appellant submitted that on 12^th April 2010, the appellant applied for a certificate of inspection of the premises for suitability to run a pharmacy and also applied for a licence for Ambition Pharmacy. Counsel stated that on 14^th April 2010, the appellant was called by National Drug Authority and told that the premises for Ambition Pharmacy had been found suitable and the licence could be issued subject to payment of the required fees. Counsel for the appellant submitted that a receipt of payment was produced to that effect. Counsel for the appellant submitted that both PW1 and DW2 agreed in their testimonies that fees are paid after the licensing committee of the National Drug Authority has granted the licence and communicated the decision to the applicant. - Counsel for the appellant further submitted that on 30^th April 2010, $[14]$ National Drug Authority invoiced the pharmacy so as to pay for the pharmacy operational books which included purchase order books, prescription books and the essential drug list of Uganda 2007 among others. Counsel for the appellant submitted that PW1, DW2 and DW3 all agreed in their evidence that the pharmacy operational books are owned by only licensed outlets. Counsel for the appellants submitted that licences are normally signed by the executive secretary retrospectively as was evidenced by the licence issued to Marvid Pharmaceutical Ltd that was admitted into evidence. Counsel for the appellant argued that it is not just and equitable for the first appellate court to visit the executive secretary's

Page 5 of 18

irregularities on the pharmacy. Counsel for the appellant argued that the respondent did not come to equity with clean hands given the circumstances surrounding the case and the way National Drug Authority was issuing licences to pharmacies. Counsel for the appellant prayed that this ground of appeal succeeds and that the decision of the first appellate court be set aside.

$[15]$ With regard to ground 4, counsel for the appellant stated the duty of the second appellate court in re-evaluating evidence as set out in Mumbere v <u>Uganda</u> [2018] <u>UGSC 4</u>. Counsel for the appellant submitted that the first appellate court failed to evaluate the evidence in relation to the receipt book and reiterated its submission on the same issue. Counsel for the appellant invited this court to look at the exhibits of Marvid Pharmacy specifically the dates of issuance of the licences and the dates when the executive secretary to the National Drug Authority signed the licences. They reiterated their submissions above.

Counsel for the appellant submitted that the first appellate court turned a $[16]$ blind eye to the evidence of PW1 and DW2 relating to the invoices from the National Drug Authority for pharmacy operation books, counsel reiterated its submissions above on the matter. Counsel for the appellant further submitted that the first appellate court did not consider the evidence of PW1, DW2 and DW3 to the effect that a registered pharmacist can possess and supply drugs without a licence from the National Drug Authority.

$[17]$ Counsel for the appellant submitted that under section 14 (1) of the National Drug Policy and Authority Act, Regulation 3 and 7 (1) of the National Drug Policy and Authority (Issuance of licences) Regulations, the mandate to issue licences is a preserve of the National Drug Authority and that as per the evidence of PW1, DW1 and DW3, the issuance of licences is by the licensing committee. Counsel stated that it is misleading for PW1 as an inspector in the field to turn around and usurp the powers of the authority to licence drug outlets and wrongly claim that he had not licensed Ambition Pharmacy. Counsel for the appellant submitted that had PW1 investigated from the National drug authority licensing committee, and the first appellate court properly scrutinized the evidence on record, it should

have known that Ambition Pharmacy was licensed for the year 2010. Counsel for the appellant prayed that this ground of appeal succeeds.

- $[18]$ In conclusion, counsel for the appellant prayed that this appeal be allowed, the decision of the first appellate court be set side and uphold the decision of the trial court. - $[19]$ Counsel for the respondent in her written submissions stated that although the appellant filed a notice of appeal he had not filed a memorandum of appeal as required under rule 66 (1) of the Judicature (Court of Appeal Rules) Directions, herein after referred to as Court of Appeal Rules. She prayed that this appeal be dismissed.

#### **Analysis**

- This being a second appeal, this court is not bound to re-evaluate the $[20]$ evidence on record unless it is established that the first appellate court failed in its duty to do so. See Rule 32(2) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 and section 45 (1) of the Criminal Procedure Code Act cap 116. See Kifamunte Henry v Uganda [1998] **UGSC 20** - $[21]$ The facts of this case are hardly in dispute. What is in the dispute is how to apply the law to them. The appellant, Mwigo John Banobere (both pharmacists) were directors of Ambition Pharmacy Ltd that had a place of business in Mbale. Ambition Pharmacy Ltd applied for licence from the National Drug Authority on the 12^th April 2010. National Drugs Authority advised the Ambition Pharmacy Ltd that their application was successful and they should pay the licence fees for issue of licence to operate a pharmacy. Ambition was given banking slips to pay for the licence by the National Drugs Authority, in particular, PW1. They paid the fees and National Drugs Authority issued them with receipt for the same on 14^th April 2010.

On 18^th May 2010, police and inspecting officers from National Drug $[22]$ Authority while carrying out surveillance of the drug outlets in the area entered the premises and found a nurse. The appellant and Mwigo John who were the directors of the pharmacy were in Kampala at the time. The officials requested the nurse to show them the licence for the entity from

National Drug Authority since it was not displayed in the premises as required by the law. Upon failure to do so, the officials decided to impound all the drugs in the pharmacy on the ground that the pharmacy was. operating while unlicensed and was in possession of classified drugs without a special certificate. The appellant arrived later after the drugs had been impounded and explained that the pharmacy was licensed but he did not produce the licence. The three persons were arrested and charged with the offences stated above.

The respondent had called for this appeal to be dismissed on the ground $[23]$ that there was no memorandum of appeal contrary to rule 66 (1) of the Court of Appeal Rules. It is true that at the time she filed her submissions on 27^th July 2020 there was no memorandum of appeal on the file. It was only filed on 20^th August 2020. During the hearing of this appeal on 6^th August 2020 the appellant's counsel notified court that he had not been served with the record of proceedings of the lower court. It was only availed after he appeared in court in answer to hearing notices. We allowed the appellant to file a memorandum of appeal and written submissions in support of the appeal which he did. However, the respondent did not file any submissions as she had offered to do, in relation to the appeal.

#### Ground 1

The appellant and his co accused were convicted of carrying on the $[24]$ business of the supply of restricted drugs without a general or limited licence contrary to section 16 of the Drugs Policy and National Authority Act. This provision states,

> '16. Places from which restricted drugs may be supplied.

> (1) No person shall carry on the business of supplying restricted drugs from any premises—

(a) if restricted drugs including drugs of class A or B are supplied, unless either a general or a limited certificate is issued under this Act for the purpose;

(b) if restricted drugs not including drugs of class A or B are supplied, unless either a general or a limited certificate issued under this Act is in force.

$\bigcirc$

(2) No person shall supply any drug by means of an automatic machine."

$[25]$ The appellant contends that the first appellate court erred in law by holding that a pharmacist in private practice is required to have a licence before possessing restricted drugs. Regulation 16 of the National Drug Policy and Authority Regulations Statutory Instrument 206 -1 states:

> '16. Persons authorised to possess and supply narcotics and psychotropic substances without licence.

> Any of the following persons is authorised, so far as is necessary for the practice of his or her profession or employment, to possess and supply such drugs—

- $(a)$ any registered or licensed medical practitioner; - $(b)$ any registered or licensed dentist; - any registered veterinary surgeon; $(c)$ - $(d)$ any registered pharmacist; - any person employed in dispensing $(e)$ medicines at any public hospital or other public institution; - $(f)$ any person in charge of a laboratory for the purposes of research or instruction approved by the drug authority for that purpose; and - $(g)$ the Government chemist or analyst.' - $[26]$ The learned appellate Judge held that this provision was intended to be applicable to registered pharmacists practicing their profession or employed in their profession as opposed to registered pharmacists involved in the private business of pharmacist. It is difficult to understand why the learned judge read into the provision, 'any registered pharmacist' the exclusion of registered pharmacists in private practice of a pharmacist or that this applied only to pharmacist in the public service. Those words are not in the regulation in question. What is provided in the above regulation 16, is the category of persons, authorised to possess and supply, in so far as necessary for the practice of their profession, narcotics and psychotropic substances without licence. The category of such persons includes all registered pharmacists without distinction as to whether one is in public service or private practice. - However, the offence with which the appellant was charged was carrying $[27]$ on the business of supplying restricted drugs without a general or limited licence contrary to section 16 of the main Act. The main Act prohibited the carrying on of a business of supplying restricted drugs without a general or limited licence. Regulation 16, being subsidiary legislation, could not vary the provisions of the main Act. What had to be considered by the courts below, and this court, is whether or not all the ingredients of the said offence had been proved or not. - The elements of this offence are the following: (1) the supply of restricted $[28]$ drugs to any person; $(2)$ by a person or business; $(3)$ without a general or limited licence. In this case it was established that Ambition Pharmacy had stocked restricted drugs in preparation to selling the same to the public. They had applied for a licence for which they had paid and awaited the issuance of the same. Technically Ambition Pharmacy had not yet obtained a licence. Nevertheless, in our view, they could stock drugs to start business upon issuance of the licence. What was not proved on the evidence of the prosecution was that the appellant and his other co accused had supplied to any person, any restricted drugs. This offence, count 2, therefore was not proved. - We would allow this ground, quash the conviction on count 2, and set $[29]$ aside the sentence imposed on the appellant and his co accused on that count.

### Ground 2

- $[30]$ The appellant contends that the first appellate court erred in law when it held that ambition pharmacy had not been issued with a licence by the National Drug Authority. - PW1, the inspector of drugs attached to the Eastern Region, National Drug $[31]$ Authority testified that when he asked the appellant and accused no.2 if they had a license, the appellant told them that they were going to get the licence but they never showed it to them. They did not find a licence on display in the premises upon inspection. He stated that he issues licences to the Eastern region and that he never issued any licences to Ambition pharmacy. Upon cross examination, he was shown a receipt from National

$\left(\begin{array}{c} 1 \\ 1 \end{array}\right)$

Drug Authority indicating that Ambition Pharmacy had paid UGX 330,000 upon applying for the licence. He stated that at the time of the search and at the hearing of the case, the pharmacy did not have a licence although it had applied for one.

DW2 (the appellant) stated in his testimony that a registered pharmacist can carry on business without a licence from the National Drug Authority. He testified that he applied for a licence on 12^th April 2010 and by 14^th April 2010 Ambition Pharmacy had been granted a licence subject to payment of the fees. A receipt of payment was exhibited to that effect. He stated that once prescribed fees are paid for the issuance of the licence, the process of licensing is complete. DW2 stated that upon payment of the fees, the onus is on the executive secretary to print the licence. He stated in his testimony that although pharmacists are exempted from getting a licence from National Drug Authority, they had to apply for one because the business could not be passed on to a non-registered person by selling or inheritance. Upon cross examination DW2 stated that he had never come across a pharmacy owned by a registered pharmacist which was not licensed.

$[33]$ DW3 confirmed in his testimony the evidence of DW2 that they had applied for the licence and paid for it. Upon cross examination he stated that they were never given the printed document called a licence; the licence was never issued to them. That they met the obligation on their part and what was left was for the National Drug Authority to print the licence. He stated that the pharmacy was not operating illegally because they had paid for the licence.

#### $[34]$ Section 14 of the Act provides:

$[32]$

## '14 Licensed Persons.

If, on application made in the prescribed form by any $(1)$ person, the authority is satisfied—

(a) that the applicant is fit to carry on a business of mixing, compounding and preparing and supplying restricted drugs by retail;

(b) that the business, so far as concerns the restricted drugs, will be carried on under the immediate supervision of a pharmacist in each set of premises where the business is to be carried on;

(c) in the case of a body corporate, that at least one of the directors is a pharmacist resident in Uganda; and

(d) in the case of a partnership, that at least one of the partners is a pharmacist resident in Uganda,

the authority may, on payment of a prescribed fee, issue a licence to the applicant to carry on the business required at the premises and on conditions specified in the licence.

(2) A licence issued under this section shall be valid for a period specified in the licence, but the drug authority may revoke the licence if, at any time, it is satisfied that the licensed person has contravened any provision of this Act or any condition specified in the licence, or has ceased to be fit to carry on the business.

(3) A person who carries on the business of a pharmacist without a licence issued under this section commits an offence and is liable to a fine not exceeding one million shillings or to imprisonment not exceeding five years or to both'

From the above provisions it is an offence to operate a business of a $[35]$ pharmacist without a licence. And it is clear that the National Drug Authority had not issued a licence to the Ambition Pharmacy as at the time PW1 and others inspected the Premises of Ambition Pharmacy on 18^th May 2010. However, in light of the particular facts of this case, much as the appellant and his co accused persons below may have technically committed an offence, this offence arises directly from the unexplained inaction of the National Drug Authority to do its statutory duty of issuing appropriate businesses that qualified licences to operate a pharmacy. We are satisfied that this unexplained action by the National Drugs Authority raises the question whether the initiation of a prosecution in those circumstance is not an infringement of the appellant's right to a fair trial under article 28 (1) of the Constitution of Uganda or whether it is not an abuse of the process of this court.

- $[36]$ We are aware of course that these points of law were not raised by the appellant in the courts below or in this court. We raise the same, suo sponte or suo motto, as in our view these are important questions both in terms of fundamental rights and to protect the jurisdiction of our courts from abuse. On a hearing on 15^th September 2020 we brought these questions to the parties' counsel. Mr Aliwala Kizito, Chief State Attorney appearing for the respondent, requested to be granted time to respond, stating that he was not in personal conduct of the appeal, and was merely holding brief for Ms Gladys Nyanzi, Principal State Attorney, in the Office of the Director, Public Prosecutions. We allowed the respondent to file written submissions on this point within 7 days of from the 15^th September 2020. None have been filed to date. - $[37]$ The learned appellate Judge held that the National Drug Authority has the discretion to grant an applicant a licence upon satisfaction that the prerequisite requirements have been met and that payment of the prescribed fees does not equate to the grant of a licence. An entity cannot rely on the receipt of payment to prove that they are licensed. It has to produce the licence issued by the authority as proof of being licensed. From the evidence above, it is clear that Ambition Pharmacy Ltd was not licensed by the National Drug Authority at the time of inspection by PW1 and the other officials which was, technically, contrary to the law. - $[38]$ However, notwithstanding the discretion that the National Drug Authority may have in granting licences, such discretion must be exercised lawfully and reasonably. It is does not permit arbitrary action. Where an applicant has passed the prerequisite requirements and been advised to pay for the licence, an obligation is cast upon the National Drug Authority to issue that licence in a timely manner, or likewise reject such application in a timely manner. In our view 7 working days would be more than enough for this to happen. - $[39]$ Though the National Drug Policy and Authority (licensing) Regulations, 35 of 2014 do not specify the time within which such licence may be issued it is clear that once an applicant qualifies in terms of regulation 5 and has paid the licence fees the Authority should issue a licence to such applicant. The rule is couched in mandatory terms. Rule 11 states,

#### '11. Licence to operate a retail pharmacy

The Authority shall issue a licence to operate a retail pharmacy where the applicant complies with the requirements of regulation 5 of these Regulations.'

- It is PW1, who advised Ambition Pharmacy Ltd to pay, that its application $[40]$ for licence had been approved. It is perplexing that it is the same official a month later that initiated the inspection and the prosecution of the appellant and his co accused persons. One obviously must note that setting up a pharmacy is both a business and service to the community that is under the regulatory authority of the National Drugs Authority. The National Drugs Authority is charged with a public trust in the discharge of these functions which are regulated by law. It is an abuse of the process of our courts if prosecution serves a purpose other than that authorised by law. What is the explanation for the failure of the National Drugs Authority to issue a licence within reasonable time to allow an applicant proceed with its business and service to the community given its investment in both the premises and drug stock that were obviously in place in the case at hand? There is simply no explanation other than to say the appellants were infringing the law for doing business without obtaining a licence from the National Drug Authority. But they had paid for one! - In our view the conduct of the National Drugs Authority in this case is $[41]$ both oppressive and vexatious. It is oppressive because it is the inaction of National Drugs Authority in failing to issue a licence that lands the appellant and his co accused persons in this position. National Drugs Authority should not be heard complaining that Ambition Pharmacy Ltd was operating without a licence yet it had processed their application and Ambition Pharmacy Ltd had complied with all that was required of them, including payment of the necessary fees for the licence and were now only waiting upon the National Drugs Authority to issue a licence. As noted above the licence was paid for on 12^th April 2010 and the inspection that founded the current charges made on 18^th May 2010, a period of about 5 weeks from the payment for the licence. - In his testimony PW1 stated, 'I issue licences for Eastern region. I never $[42]$ issued a licence to Ambition.

- $[43]$ If PW1 was the officer for the National Drugs Authority to issue licences for the Eastern region, and he was the same officer, who advised the Ambition Pharmacy Ltd to pay for a licence and this was acknowledged, it is clear that there is more than meets the eye in the actions of this officer. He offers no explanation as to why he did not issue the licence to the Ambition Pharmacy Ltd. Instead of providing an explanation for his inaction, or failure of duty, he initiates a prosecution of the appellant and his co accused persons in the court of first instance. This conduct appears geared for an improper purpose. - Courts have an inherent power to prevent the abuse of court process by any $[44]$ party who comes to it in circumstances that point to the court process being used for an ulterior purpose. This inherent power was recognised in Connelly v DPP [1964] AC 1254 where Lord Reid at page 1296 was of the view that every court had, 'a residual discretion to prevent anything which savours of abuse of process'. Lord Devlin, at page 1354, was of the view that courts have, 'an inescapable duty to secure fair treatment for those who come or are brought before them.' - $[45]$ In Mills v Cooper [1967] QB 459 Lord Chief Justice Parker observed, at page 467, that

'every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of process the court.'

$[46]$ In Hunter v Chief Constable of the West Midlands Police, [1982] AC 529, at page 536, Lord Diplock observed,

> 'inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among rightthinking people.'

$[47]$ It is clear to us that the trial court, and or the High Court under section 10 of the Judicature Act, definitely, have inherent jurisdiction to prevent the

Page 15 of 18

oppressive conduct by a party to litigation against another party using the process of the court. In order to prevent such abuse, the trial court had the power to order a stay of prosecution, dismiss the charges, and discharge the accused persons.

$[48]$ In addition to the inherent jurisdiction of courts to protect parties from abuse of court process article 28 (1) of the Constitution affords all persons a right to fair hearing. It states,

> In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.'

- This fundamental right which is really a cluster of several constituent $[49]$ elements to the right renders to parties to litigation a right to, inter alia, a fair hearing. Where it can be determined in the circumstances of a particular case that it is not fair to commence a charge or charges against a person, it runs afoul of this fundamental right. - In R v Derby Crown Court ex parte Brooks, [1985] 80 Cr App R 164, at $[50]$ page 168, Lord Chief Justice Roger Ormord observed,

The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable.................................... of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution.'

It appears to us that the National Drug Authority which is the complainant $[51]$ in this case and at whose instance this prosecution was commenced have acted in such a manner that there are simply taking advantage of a

technicality, the absence of an issued certificate to Ambition Pharmacy Ltd, or their own default in issuing a licence, to prosecute the appellant and his co accused persons in this matter. Ambition Pharmacy Ltd had fulfilled all the requirements on its part to obtain a licence including paying of the licence fees. It is the National Drug Authority and its officers, who were obliged to issue to the Ambition Pharmacy Ltd a licence to operate. They did not do so for no apparent reason. Instead of ensuring that they issue the licence without delay they instead commenced criminal proceedings against appellant and others. This cannot be fair. While we cannot understand what actuated this turn of affairs a public organisation discharging a public trustee ought to behave differently and take responsibility for their own actions or inactions. Having failed to do their duty, they cannot cover up the same by bringing charges that arise from their own breach of their statutory responsibility to issue licences to qualified applicants. It is simply unfair and would violate the appellant's right to a fair hearing.

- $[52]$ Secondly, and independently of the right to a fair hearing, this diabolical conduct of the complainant in this matter would bring to disrepute the administration of justice in the eyes of right thinking men and women in our society. - $[53]$ On the facts of this case we are satisfied that the prosecution of the appellants was both an abuse of the process of the court and a violation of the right of the appellant to a fair hearing. - $[54]$ We would allow ground 2 of the appeal in the terms set above. In light of our conclusions on ground 2 it is unnecessary to consider ground 3 of the appeal.

# Decision

$\left( \mathbb{C}\right)$

We quash the convictions of the appellant and his co accused by the High $[55]$ Court of all the charges against them, and set aside the sentences imposed upon them. We order a refund to the appellant and his co accused persons of any fines they may have paid on account of the convictions and sentences ordered by the High Court. We order a stay of prosecution of the appellants against the charges originally brought against them in this matter.

Signed, dated and delivered at Mbale this $16^{\text{th}}$ day of October 2020.

$\frac{1}{\text{da-Nton}}$ Fredrick Egonda-Ntende **Justice of Appeal**

Cheborion Barishaki **Justice of Appeal**

Muzamiru Mutangula Kibeedi **Justice of Appeal**