[2022] UGCA 179

| $\mathsf{S}$ | THE REPUBLIC OF UGANDA | |--------------|------------------------------------------------------------------------------------------| | | IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA | | | CRIMINAL APPEAL NOS. 112 & 91 OF 2018 | | | (CORAM: MUSOKE, CHEBORION, MADRAMA, JJA) | | | UGANDA | | 10 | VERSUS | | | 1. HON. ENG. ABRAHAM JAMES BYANDALA | | | 2. ENG. BERUNADO SSEBUGGA KIMEZE | | | 3. JOE SSEMUGOOMA | | | 4. MARVIN BARYARUHA | | 15 | 5. APOLLO SENKEETO | | | 6. MUGOTE ISAAC | | | 7. WILBERFORCE SENJAKO | | | (Appeal from the Judgment of Hon. Justice Lawrence Gidudu of the High | | | Court, Anti – Corruption Division at Kololo delivered on 29 ^th August 2018 in | | 20 | Criminal Case No. 12 of 2015) |

## **RULING OF COURT**

This interlocutory ruling arises from an appeal from the decision of Justice Lawrence Gidudu of the High Court Anti - Corruption Division in Criminal Session Case No. 12 of 2015 in which the first Respondent was acquitted of 25 2 counts of Abuse of Office contrary to section 11(1) of the Anti – Corruption Act No 6 of 2009 and Disobedience of lawful Orders contrary to section 35(c) of the Inspectorate of Government Act, 2002. The second Respondent was acquitted of 3 counts of Abuse of Office contrary to section 11(1) of the Anti - Corruption Act and Causing Financial Loss contrary to section 20 of the 30 Anti - Corruption Act. The third Respondent was acquitted of Causing Financial Loss contrary to section 20 of the Anti - Corruption Act but convicted of Abuse of Office contrary to section 11(1) of the Anti – Corruption Act and Corruption contrary to section 2(i) of the Anti – Corruption Act. The

fourth Respondent was acquitted of Causing Financial Loss contrary to 35 section 20 of the Anti - Corruption Act and Abuse of Office contrary to

- ⁵ section ll(l) of the Anti Corruption Act. The fifth Respondent was convicted of theft of UGX 24,790,823,522/= contrary to section 254(1) and 261 of the Penal Code Act, 6 counts of Uttering False documents contrary to section 351 and 3L7 of the Penal Code Act, and obtaining the execution of ^a Securities by Fatse Pretences contrary to section 306 of the PenaI Code Act. - He was acquitted of Conspiracy to Defraud contrary to section 309 of the Penal Code Act. The sixth Respondent was acquitted of charges of Conspiracy to Defraud contrary to section 309 of the Penal Code Act and abetting the offence of Causing FinanciaI Loss contrary to section 52(c) of the Anti- Corruption Act. The seventh Respondent was convicted of Corruption contrary to section 2(i) of the Anti - Corruption Act. ln summary, the l, 2, 4 and 6 Respondents were acquitted and set free while the 3, 5 and 10 15

7 Respondents were convicted.

The 3, 5 and 7 Respondents appeated against their respective convictions and sentences in Criminat Appeat No. 9l of 2018 white the Appettant appealed against the acquittals of the 1, 2, l+ and 6 Respondents in this appea[.

When the appeals came up for hearing, the l't, znd, lrth and 6 respondents objected to the appeat of the appettant and this ruting is in respect of that objection.

## Representations 25

At the hearing of the appeat, the Appettant was represented by learned counsel Brenda Kimbugwe, the Manager Prosecutions lnspectorate of Government and learned counseI Thomas 0kot, Senior lnspectorate 0fficer with the lnspectorate of Government. The first Respondent was represented

- by tearned counsel Atlan Serul.iika and learned counsel Robert Matovu, the second Respondent by [earned counsel lvan Engoru, the third Respondent by [earned counseI Wittiam Were, the fourth Respondent by learned counsel David AF Mpanga and learned counsel Dickens Kagarura. The f ifth Respondent by learned counseI Peter Mulira, the sixth Respondent by learned counsel Norah Kaggwa and the seventh Respondent by learned counseI Jimmy Muyanja. 3o - 2

## ⁵ Preliminary Point of law

When this matter came up for hearing on 28'h September 2021, [earned counseI for the Appettant prayed that this appeat be consotidated with Criminal Appeat No. 9l of 20'18 under rute 62 of the Judicature (Court of Appeat Rutes) Directions since both appeals arise from the same judgment of Justice Lawrence Gidudu of the High Court Anti - Corruption Division. She also prayed that the matter be adjourned because the Respondents

were not in court.

0n the other hand, learned counsel Mr. David AF Mpanga for the fourth Respondent objected to the consotidation of the appeals on the grounds that the appeat is incompetent. He submitted that the first, second, fourth, and

sixth respondents were acquitted, white the third, fifth, and seventh respondents, who are the Appettants in Criminat Appeat No. 9l of 2018, were convicted and are on bai[. Further, counsel submitted that according to rule 73(3) of the Rutes of this Court, the l't zno,lr'n, and 6th Respondents were not required to appear at the hearing of the appeal because they were not on bait untike the 3'd, 5th, and 7'h Respondents. 15 20

Secondly, counsel contended that the record of proceedings and notice of appeal were not served on the l,2,4,and 6 Respondents thereby rendering the appeat incompetent.

ln rejoinder, learned counseI for the Appettant submitted that the Notice of Appeal was served on the 2nd Respondent. She further submitted that the Registrar has the mandate to serve the record of appeal under rule 55 of the Rules of this Court. 25

Learned counse[ for the sixth Respondent submitted that the Notice of Appeat does not bear the addresses for service of the Respondents. She contended that, white ru[e 6l of the Rules of this Court requires the Registrar to serve the Notice of Appeat on the Respondents, rule 5l(2) of the Rules of this Court requires the Appettant to notify the Court of the Respondents'addresses for service. CounseI contended that because the Appettant faited to perform this duty, the Registrar was unable to serve the 30 l5

⁵ Record of Appeat on the Respondents.

Learned counsel for the Appettant conceded that the AppetLant did not include the Respondents'addresses in the notice of appea[, but reiterated that the Respondents had been served the memorandum of appeal and Appettant's written submissions, and that some of the Respondents had

filed written submissions in repty. 10

## Consideration of the Pretiminary Point of Law

Learned counseI David Mpanga for the 4th Respondent contended that this appeaI is incompetent because the Respondents were not served with the record of proceedings and Notice of Appeat. Learned counsel lvan Engoru for the 2nd Respondent associated himsetf with the submissions of counsel David Mpanga. He submitted that since there was no service of the record of appeal which forms the basis for drawing the memorandum of appeat, the purported memorandum of appeal is without consequence and there is no appeal to adjourn or consolidate. Furthermore, while adopting the submissions of counsel David Mpanga, counse[ Peter Mulira for the 5'h Respondent, submitted that since the Respondents were not served with the record of appeat, it coutd not be said that there is an appeaI against the judgment of the lower court and therefore the question of consolidation of this appeat with Criminat Appeat No. 9l of 2018 woutd not arise. 15

Ctearty, the submissions of the appeltant's arise from provisions of the Judicature (Court of Appeat RuLes) Directions and particularty the fact that the notice of appeal fited by the appetlant through the office of the lnspectorate of Government does not include an address for service of the respondents though it indicates that it is to be served on atl the respondents 25

- and the Registrar High Court Anti-Corruption Division. Rute 63 of the rules of this court provides that on the receipt of the notice of appeat, the registrar of the High Court shatt immediately send a copy of the notice to the registrar of the Court of Appeat and one to the respondent named in it. Further, rule 61 (2) provides that: 30 - 35

(2) Where the Director of Pubtic Prosecutions gives notice of appeal in the event

5 10 of an accused person being acquitted by the High Court, at the time the decision is given, the accused person shaI give his or her address for service on him or her of the notice of hearing of the appeat; or, if the Director of Public Prosecutions gives notice of appeaI in writing within 14 days after the decision, the director shat[ notify the court of the address of the accused person for service of the notice of appeaI upon him or her, and notice of the date of hearing, which notices shatl be substantiatty in the forms prescribed in respect of appea[s against conviction.

15 20 25 Though it cannot be discerned from the notice of appeat whether the director give notice of appeaI at the time the decision is given, it is clear from the notice itself that the decision was delivered on 29'h of August 2018 and the notice of appeal is dated llth September 20'18 and fited on court record on the same day meaning that it was a notice of appeat in writing which was to be given within 14 days after the decision. Rute 60 (l) provides that a notice in writing shatt be todged in six copies with the registrar within 14 days after the date of the decision. From rute 61 (1) of the rules of this court, where the director of pubtic prosecution gives notice of appeat, it is governed by rule 60 (1) and (2) of the rules of this court. lt foltows that the requirements of the law are that the notice sha[[ state shortty the nature of the finding against which it is desired to appeaI and the address at which documents connected with the appeal may be served on the appellant or appetlants. This has to be read together with the rute 61 (2) of the rules of this court which provides that where the director of pubtic prosecution

30 gives notice of appeat in writing within l4 days, the director shatt notify the court of the address of the accused persons for service of the notice of appeal upon him or her and the notice of the date of hearing. Rute 59 (6) provides that the notice of appeat shatl be substantiatty in Form B in the First Schedute of the rutes of this court.

The said form only provides for the address for service of the appettant. 0n the other hand, it is the duty of the Directorate of Public prosecutions under rule 6'l (2) to notify the court of the address of the accused person for service of the notices of appeal upon him or her and also for services of the notice of hearing.

We have carefutty considered the requirements of the law together with the

- ⁵ fact that it is the duty of the registrar of the High Court to send a notice to the registrar of this court and to the respondents. To resotve this objection, the respondents who appeared in court through counseI rety on the formal defect in the notice of appeaI for not giving the address for service of the respondents though it purports to name a[[ the respondents who are named - in the titte to the proceedings. There was therefore a formaI defect which coutd have saddted the High Court from serving the notice of appeat and record of appea[ on the respondents. The first question is whether this would render the appeaI incompetent. Secondly the notice of appeat, does not, on the face of it, state shortty the nature of the acquittal and finding against which it is desired to appeaI in terms of rule 60 (2) (a) of the Rutes of this court. Again, the second question is whether this renders the appeat incompetent. 10 15

This Court deatt with the question of competence of a criminal appeal in its recent decision in Ssenteza Mohammed v Uganda Criminal Appeat No. 150 of 2018. The Appettant in that case did not file a memorandum of appea[. While resotving the question as to whether the appeal was competent, this court hetd at page 3 that; 20

Under section 28 of the CriminaI Procedure Code Act, cap 116, every appeat shatI be commenced by notice in writing signed by the appellant or an advocate on his or her behalf. ln this case the appe[[ant Iodged a notice of appeaI indicating that he intended to appeat against the whote judgment of the High Court. lt shows that the decision of the High Court was delivered on 24th 0ctober 2018 and notice of appea[ was received in the registry of the Court of Appeal on 7th November 2018. This was within 14 days from the date of the decision.

This Court ruted that there was an appeal pending before it as the Appettant had lodged a notice of appeaI within the prescribed time. 30

Section 28 of the Criminat Procedure Code Act, cap 116 provides that criminal appeats shatl be commenced by a notice of appeat. We reproduce it here for emphasis.

- 28. Notice of appea[. - ('l) Every appeat shatt be commenced by a notice in writing which shatt be signed ⁵ by the Appettant or an advocate on his or her behalf, and shatt be todged with the Registrar within fourteen days of the date of judgment or order from which the appeal is prefe rre d.

> (2) Every notice of appeal sha[[ state short[y the effect of the judgment or order appea[ed against and sha[[-

(a) contain a fu[[ and sufficient address at which any notices or documents connected with the appeaI may be served on the Appel[ant or his or her advocate; and

(b) except where subsection (3) appties, state the general grounds upon which the appeat is p refe rred.

Section 28 (2) (b) of the Criminal Procedure Code Act, cap 116 provides inter alia lhal every notice of appeat shalt state shortly the eff ect of the judgment appeated against and shalt except where subsection (3) applies, state the grounds upon which the appeal is preferred. Subsection (3) provides that: 15

(3) lf the appe[[ant or an advocate on his beha[f indicates at the time of titing ^a notice of appeaI that he or she wishes to peruse the judgement or order appeated against before formutating the grounds of appea[, he or she sha[[ be provided with a copy of the judgment or order, tree of charge, and the grounds of appeal sha[[ be lodged with the registrar within 14 days of the date of service on him or her of the copy of the judgment or order.

- ln the notice of appeal, the DPP who can be taken to be the lnspectorate of Government indicated in the notice of appeal that they wish to peruse the proceedings and judgment of the trial court before fiting the memorandum of appeal and thereby apptied for the same. ln other words, there was no requirement for the DPP to state the grounds upon which the appeal woutd 25 - be preferred in the notice of appeal as they opted to formulate the grounds of appeaI upon receipt of the proceedings and judgment of the triat court. lt fottows that the only defect is the faiture to provide for the particulars of the address of the respondents upon which the record of appeal and the notice of appeal may be served. The purpose of providing for the address 30 - for service of the respondents is to ensure that the court is abte to serve them with the requisite documents for the appeaI inclusive of the hearing notices. 35

⁵ ln the circumstances of this appea[, we are deating with a situation where the respondents addresses for service were not included in the notice of appeal, but are represented by counsel and are deemed to have appeared in court. The prejudice caused by not having notified the court of the address for service was rectified by counsel appearing in court. ln other words, the appeat is not defective merety because addresses for service of the respondents were not inctuded in the notice of appeal. An appeal is commenced by notice of appeat under section 28 of the Criminal Procedure Code Act. 10

15 ln Masaba Herbert v Uganda, Criminal Apptication No. 172 of 2019, this Court etaborated on the apptication of Section 28 of the Criminat Procedure Code Act. ln that case, the Appticant, Masaba Herbert, was tried and convicted atong with two others by the Chief Magistrates Court of Mukono for abuse of office, theft and causing financia[ [oss. He jointty appeated to the High Court Mukono which uphetd the conviction and enhanced the sentence. 0n a second appeat to this Court, the Appticant did not fite a memorandum of appeal but instead wrote a letter to this Court indicating that he associated himsetf with and adopted the memorandum of appeaI and written arguments of his co - Appeltant. ln that case, learned counsel for the Respondent opposed the apptication for reinstatement of the Applicants appeal on the grounds that the Appettant had not appeated because an appeal must be commenced by todging a memorandum of appeal pursuant the Rutes of this Court. However, there was a notice of appeaI indicating that att three convicted persons, inctuding the Appticant, had appeated to this Court. The main issue before the Court was whether the Appticant had appeated. This court hetd that rule 66 of the Rutes of this Court which provides for the filing of a memorandum of appeaI is not mandatory but directory because in rule 67, an advocate assigned to represent the Appettant may [odge a supplementary memorandum of appeat. Taking into account the preambte of the Criminat Procedure Code Act Cap 116, which states that the Criminat Procedure Code Act is an Act to make provision for the procedure to be fotlowed in criminal cases, this Court hetd that the intention of the Legistature in section 28 of the CriminaI Procedure Code 20 25 30 35

- s Act was to enable intending Appettants to commence an appeal by notice in writing which may as we[[ be a notice of appeat. Further, this Court hetd that the Criminal Procedure Code Act, being an Act of Partiament, overrides the Rutes of this Court where there is any conflict or inconsistency with it. This Court also referred to section l8(4) & (5) of the lnterpretation Act cap - 10 3 which provides that every statutory instrument which is inconsistent with any provision of the Act under which the instrument was made sha[[ be void to the extent of the inconsistency; and any act done under a statutory instrument shatt be deemed to be done in pursuance of the Act conferring power to make the lnstrument. ln the premises, this Court ruled that the - 1s provisions of the CriminaI Procedure Code Act supersede the provisions of the Rutes of this Court and a[[ow an appeat to be commenced by notice of appeal within 14 days of the decision appealed against.

ln the present appeal, the Appettant todged a Notice of Appeal on llth September 2018 against the decision of the High Court detivered on 29th

- zo August 2018. The Appettant was we[[ within the 14 days prescribed by section 28 of the Criminat Procedure Code Act and rute 60 of the Rutes of this Court. ln the premises, this Court finds that there is an appeaI pending before this court which was commenced by a notice of appeal todged by the AppeLtant on llrh September 2018. - 25 Further, learned counsel for the Respondents contend that the appeal is incompetent for want of service of the record of appeat. We have duly considered the matter.

Rute 60 of the Rutes of this Court which appties in noncapita[ cases provides that:

30 50. Notice of appeaI in noncapitaI cases.

(1) in the case of an offence where the death sentence has not been passed, or which does not attract the death sentence, the accused may give notice informalty at the time the decision is given that the accused person desires to appeaI against the conviclion and sentence, or onty the sentence, or by notice in writing which shat[ be [odged in six copies with the registrar within fourteen days after the date of the decision.

⁵ (2) The notice of appeaI sha[[ -

(a) state shortly the nature of the conviction and finding against which it is desired to appea[; and

(b) contain the address at which documents connected with the appeal may be served on the appeltant or appeltants and shalt be in six copies.

(3) Rute 59(2), (3), (4), (5) and (6) of these Rutes shatl appty to appea[s under this ruIe.

Rute 6l of the Rutes of this Court applies to appeats from acquittats tike the present appeat. The rute provides as fo[[ows;

61. Notice of appeaI from acquittats.

- (1) Apart from the third appeat to the court being finat, whenever the court acquits or confirms the acquittal of an accused person, the Director of Pubtic Prosecutions, as empowered by the Judicature Act, may give notice of appeaI as provided by rute 60(1) and (2) of these Rules. - (2) Where the Director of Pubtic Prosecutions gives notice of appeaI in the event of an accused person being acquitted by the High Court, at the time that the decision is given, the accused person shalI give his or her address for a service on him or her of the notice of hearing of the appeat; or, if the Director of Pubtic Prosecutions gives notice of appeaI in writing within fourteen days after the decision, the director sha[t notify the court of the address of the accused person for service of the notice of appeaI upon him or her, and the notice of the date of hearing, which notices sha[[ be substantiatty in the forms prescribed in respect of appea[s against conviction.

(3) The accused sha[[, as soon as possible, be informed that if he or she does not attend the hearing of the appeat, the appeaI wit[ be heard in his or her absence and that he or she may be liable to be arrested if the appea[ of the Director of Public Prosecutions is successfu[.

(4) Sub rutes (1), (2) and (3) of this rute shal[ appty to the case where the court confirms or orders the acquittat of an accused person and the Director of Pubtic Prosecutions gives notice of appeaI to the Supreme Court.

- The essence of rules 60 and 6'1, of the rutes of this court are that in appea[s from acquittals, the Director of Pubtic Prosecutions may todge a notice of appeal in writing within fourteen days of the decision appealed against and 35 - 10

5 notify the court of the address of the accused person for purposes of service of the notice of appeat and the notice of the date of hearing.

The Notice of appeal todged by the Appettant does not disclose the addresses for service of the Respondents as stipulated in the rules. And the question is whether this proceduraI defect substantia[[y affected the appeat

10 as to render it incompetent.

> Learned counseI for the Appettant submitted that according to rule 65 of the Rul.es of this Court, the mandate to serve the record of appea[ ties with the Registrar. She conceded that the Respondents were not served with the record of appeaI because it was voluminous and she undertook to fottow up

15 the matter with the Registrar. CounseI further contended that the Respondents shoutd have liaised with the Registrar of this court to obtain copies of the record of appeat.

Rute 65 of the Rutes of this Court provides for service and transmission of the record of appeat. lt states as follows;

20 65. Service and transmission of record of appeat, exhibits, etc.

> (l) A soon as the record of appeaI has been prepared, the registrar of the High Court sha[[ cause a copy to be served on the appeltant and a copy on the respondent and shatt send four copies to the registrar.

(2) The registrar of the High Court shal at the same time send to the registrar the origina[ record of proceedings in the High Court and the original documentary exhibits in the High Court, other than any of great butk, but sha[[ not send any exhibits other than documentary ones, unless requested to do so by the registrar.

(3) The registrar of the High Court sha[[ ensure, so far as practicable, that att other exhibits are availabte for inspection by the court at the hearing of the appea[.

It is apparent from rule 61(2)and rute 65(1) that it is the duty of the registrar of the High Court to serve the notice of appeal and record of appeat. The Registrar, however, could not have served the record of appeal or proceedings on the Respondents in the absence of a notice of address of ³⁵ the Respondents which is supposed to be furnished by the Appettant

⁵ pursuant to rule 61(2) ot the Rules of this Court. The Court cannot fautt the Registrar for faiting to carry out his or her mandate prescribed by rute 65 of the Rutes of this Court.

We find that white the appeat is not incompetent, it cannot proceed without the record of appea[. We find no merit in the preliminary objection to the appeat. We direct that the record of appea[ be served on the respondents. Secondty, concerning the apptication for consotidation of appeals, rule 62 (l) of the Rules of this court provides that:

Where two or more appea[s are brought from convictions, acquittals or sentences passed at the same tria[, they sha[t, unless the court otherwise orders, be consolidated and shat[ proceed as one appea[.

It is a requirement of the rutes that the appeats have to be consolidated because they are from convictions and acquittals or sentences passed at the same triat. lt is onty when the court otherwise orders that they may not be consolidated.

²⁰ ln the premises, the application to consolidate this appeal with Criminat Appeat No. 91 of 2018 is granted. An order is issued consolidating Criminat Appeal No 112 of 2018 with CriminaI Appeat No 91 of 2018. Further, this appeat shatl is adjourned pending the service on the respondents of the record of appeal.

Dated at Kampa ay ol June 2022 Eti za beth Musoke Justice of Appeat ³⁰ eborion Barishaki Justice of Appeat n5 op e r Madrama Justice of Appeat C

25