Akankwasa v Uganda (Criminal Application 9 of 2020) [2021] UGSC 18 (12 November 2021)

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: Opio-Aweri, Tibatemwa-Ekirikubinza, Mugamba, Muhanguzi, Chibita, JJSC.

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## CRIMINAL APPLICATION NO. 09 OF 2020

### DAMIAN AKANKWASA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### UGANDA:::::::::::::::::::::::::::::::::::

(An application for leave to appeal against the decision of the Court of Appeal in *Criminal Appeal No.105 of 2015 dated 28<sup>th</sup> February 2019)* 10

# **RULING OF THE COURT**

Damian Akankwasa, the applicant brought this application under Section 5(5) of the Judicature Act Cap. 13 and Rule 38(1)(b) of the Judicature (Supreme Court Rules) Directions S. I 13-11 for orders that: -

- 1. A certificate doth issue, to the effect that the applicant's intended 15 appeal against the decision of the Court of Appeal in Criminal Appeal No. 105 of 2015 concerns a matter of law of great public or general importance. - 2. Costs be provided for. - The grounds of the application are stated as follows: -20 - 1. The applicant applied for a certificate of public importance before the Court of Appeal arising out of Criminal Appeal No. 105 of 2015 but the same was dismissed. - 2. The applicant was charged with the offences of abuse of office in count one and causing financial loss in count two contrary to sections 11 $\&$ 20(1) respectively of the Anti-Corruption Act, 2009 (as amended) in the Chief Magistrate's Court at Kololo.

3. The applicant was acquitted of the offence of causing financial loss on account that the evidence of PW2 and PW3 was unreliable.

4. The applicant was however convicted on the charge of abuse of office on the basis of the evidence of the same prosecution witnesses whose evidence on the charge of causing financial loss was rejected as unreliable.

5. The intended appeal concerns a question of public importance in regard:

- a) The propriety of upholding a conviction of an accused person on the testimony of prosecution witnesses whose evidence has been wholly rejected as unreliable in respect of another charge on the same charge sheet in one trial. - b) Where powers to act may be derived from two separate sets of laws and the accused elects to use either: - is he held responsible for abuse of office or punished for not electing the other? - c) Where the National Forestry and Tree Planting Act, 2003, provides that licenses for a forest produce shall be granted in accordance with regulations made under the Act and Regulations provide for options under which a license could be issued, can the accused be punished for not applying a different legal regime to wit; Public Procurement and Disposal of Public Assets Act, 2003? - d) The definition of procurement in the PPDA Act, 2003 includes a license but that of disposal excludes it, was court right to interpret a license to mean a disposal despite the clear definition in the Act and uphold a conviction for abuse of office? - e) In a criminal trial for an offence of abuse of office, does proof of good faith on the part of the accused in regard to the act(s) complained of and/or involvement of others in decision making, negative mens rea, this not being a statutory/strict liability offence? Mens rea must be proved.

f) Does failure to explain the allegation by the accused once put on his or her defense deny an accused a benefit of doubt or does failure to explain infer lack of doubt in the prosecution case hence *inference of guilt?*

The application is supported by an affidavit sworn by the applicant. He 60 deponed as follows: -

$\mathcal{L}_{\mathcal{L}}$ $\mathcal{L}_{\mathcal{A}}$

- 1. "That I am a male adult Ugandan of sound mind and the applicant herein and I swear this affidavit in that capacity. - 2. That I was charged and convicted of the offence of abuse of office in the Chief Magistrate's Court at Kololo and the said conviction upheld in a second appeal in the Court of Appeal. (a copy of the judgment of the Court of Appeal is attached hereto and marked as annexure "A") - 3. That I was also charged with the offence of causing financial loss in the same court but was acquitted of the said charge on account of the rejection of the evidence of two prosecution witnesses on the said charge. - 4. That I first applied for a certificate of public importance in the Court of Appeal but the same was dismissed. (A copy of the Ruling is attached hereto and marked as annexure "B") - 5. That strangely, I was convicted on the basis of the evidence of the same prosecution witnesses whose evidence on the charge of causing financial loss was rejected as unreliable. (A copy of the judgment of the trial court is attached and marked as annexure "C" (pages 28 to 29) - 6. That I wish to appeal against the judgment of the Court of Appeal to the Supreme Court and a Notice of Appeal was duly filed. (A copy of the said Notice of Appeal is attached hereto and marked as annexure "D") - 7. That I am advised by my lawyers of R. Mackay Advocates, whose advice I verily believe to be correct that my intended appeal concerns a question of public importance in regard; - a) The propriety of upholding a conviction of an accused person on the testimony of prosecution witnesses whose evidence has been wholly rejected as unreliable in respect of another charge on the same charge sheet in one trial. - b) Where powers to act may be derived from two separate sets of laws and the accused elects to use either: - is he held responsible for abuse of office or punished for not electing the other? (A copy of the judgment of the High Court is attached hereto and marked as annexure "E" (page 6 paragraph 4) - c) Where the National Forestry and Tree Planting Act, 2003, provides that licenses for a forest produce shall be granted in accordance with regulations made under the Act and Regulations provide for options

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under which a license could be issued, can the accused be punished for not applying a different legal regime to wit; Public Procurement and Disposal of Public Assets Act, 2003?

$\mathcal{L}_{\mathcal{F}}$

d) The definition of procurement in the PPDA Act, 2003 includes a license but that of disposal excludes it, was court right to interpret a license to mean a disposal despite the clear definition in the Act and uphold a conviction for abuse of office?

e) In a criminal trial for an offence of abuse of office, does proof of good faith on the part of the accused in regard to the act(s) complained of and/or involvement of others in decision making, negative mens rea, this not being a statutory/strict liability offence? Mens rea must be proved. (A copy of the record of proceedings at the trial court is attached hereto and marked "F" (pages 51 to 52 for DW1's defence and pages 14 to 15 of PW1's evidence)

- *f) Does failure to explain the allegation by the accused once put on his* or her defense deny an accused a benefit of doubt or does failure to explain infer lack of doubt in the prosecution case hence inference of guilt? - 8. That I endorsed a license [Exch. P2(a) (b) in my capacity as executive director NFA after the involvement of others in the approval process/decision making through the hands of different departments who had okayed it under the National Forestry and Tree Planting Act, 2003 and the Regulations that were saved by the Act, and yet I was held liable for having acted arbitrary.

9. That I was blamed for not following the PPDA and yet the National Forestry and Tree Planting Act, 2003 provided for a different procedure under the saved Regulations (Forest Rules) on how forest produce should be dealt with and hence wrongly convicted of abuse of office.

10. That I am advised by my lawyers, whose advice I verily believe to be 125 correct that under the National Forestry and Tree Planting Act, 2003, a license for the forest produce is temporary and issued in accordance with the regulations made under this Act and not the PPDA that deals with the procedures for procurement and disposal of goods, services 130 and works of a disposal entity.

11. That whatever is stated hereinabove is true and correct to the best of my knowledge and belief, save for the contents of paragraphs whose source of information is stated."

The respondent opposed the application. Ms. Brenda Kimbugwe, from the Inspectorate of Government swore an affidavit in reply and stated as 135 follows: -

- 1. "That I am a female adult Ugandan of sound mind, the Manager Prosecution at the Inspectorate of Government/ respondent herein, conversant with the facts of this case and swear this affidavit in that capacity. - 2. That on the 9<sup>th</sup> day of December, 2020 I received a notice of motion and accompanying affidavit sworn by Mr. Damian Akankwasa amongst others, seeking a certificate to appeal to the Supreme Court. - 3. That I have read and understood the contents of the application and hereby respond as hereunder. - 4. That the applicant's affidavit in support of the application does not only offend the rules of this court, but are argumentative and incurably defective. - 5. That by virtue of my position, I am the overall supervisor of prosecution at the Inspectorate of Government and I am familiar with the applicant's case. - 6. That the applicant was first prosecuted by the Inspectorate of Government in the Magistrate court on charges of causing financial loss and abuse of office. - 7. That the trial Magistrate acquitted the applicant on the charge of causing financial loss but found him guilty on the charge of abuse of office and sentenced him to two years' imprisonment. - 8. That the applicant appealed against the decision of the trial Magistrate in the High Court, which court upheld the conviction and sentence of the trial Magistrate. - 9. That the applicant filed a second appeal to the Court of Appeal in Criminal Appeal No. 105 of 2015 and the Justices upheld the conviction and sentence by the lower courts hence this application.

10. That the applicant then filed Miscellaneous Application No. 58 of 2019 in the Court of Appeal seeking leave to be granted a certificate that this very matter is of great importance requiring this court to interpret.

11. That the said application was dismissed by the Court of Appeal on 2<sup>nd</sup> September, 2020 mainly on ground that there was no issue or point raised by the applicant requiring intervention or interpretation by the Honorable court.

12. That for this application to succeed, the applicant is inter alia required to prove that the matter for which he is seeking a certificate raises a question or questions of great public or general importance, which proof has not been provided or attached to this application.

- 13. That the point raised by the applicant for the certificate are not grounded in law but of facts therefore, the application lacks the substantial ground to render the grievance either of general or public importance. - 14. That the issue raised by the applicant challenging court's reliance on the testimony of a witness or witnesses in one count and rejection of the same testimony in another count are matters of personal interest and not of great or general public importance. - 15. That I swear this affidavit in reply and in objection to the grant of the certificate of great public or general importance to the application due to his failure to concisely dispose any matter of great and or general importance to merit receipt of the certificate sought in the application.

16. That whatever I have stated herein above is to the best of my knowledge and belief true and correct."

## **Representation.**

At the hearing, the applicant was represented by learned counsel Mr. 190 Robert Mackay and the respondent was represented by learned counsel Mr. Rogers Kinobe, a Senior Inspectorate Officer.

# Background.

The background of this application as contained in the applicant's written submissions is that the applicant who was an employee of National Forestry Authority (NFA) as an Executive Director, was charged in the Anti-Corruption Court on two counts: -

$\mathcal{M}^{\mathcal{C}}$

- 1. Abuse of office contrary to section 11 of the Anti-Corruption Act, 2009 - 2. Causing financial loss contrary to section 20(1) of the Anti-Corruption Act, 2009 - The applicant was tried by the Chief Magistrate's Court and acquitted on 205 the offence of causing financial loss. He was, however, found guilty of the offence of abuse of office and sentenced to two years' imprisonment. He appealed to the High Court and later to the Court of Appeal against the judgment and decision of the Magistrate Grade 1 and - that of the High Court. However, both appeals were unsuccessful. 210 Consequently, the applicant applied to the Court of Appeal for a certificate of public importance. That application was dismissed hence this application for leave to appeal against the decision of the Court of Appeal.

#### Submissions. 215

Both parties filed and adopted their written submissions. They are set out hereunder.

# Submissions for the applicant.

Counsel for the applicant submitted that the intended appeal raises questions of law of great public or general importance. Counsel relied on 220 Namuddu Christine Vs. Uganda, Supreme Court Criminal Appeal No. 3 of 1999 and the Kenyan case, Hermanus Phillipus Steyn Vs. Giovanni Gnecchi-Ruscone, Application No. 4 of 2012. He submitted that the

decision does not only affect this case but all licenses being issued by all departments under their respective sectoral laws and not under PPDA. 225 He argued that it transcends the circumstances of this case.

Counsel pointed out that the applicant applied the provisions of the National Forestry and Tree Planting Act which provides that licensing should be done in accordance with the regulations under the Act. He argued that the applicant should not have been faulted for not following the procedures provided under the PPDA because he entered into a private treaty in line with rules $5(1)$ c, $6(a)$ , $7(c)$ and 9 of the regulations to the Act.

Counsel further argued that if this position is left uncertain, it will not only affect the applicant but also other sectors for acts done in good faith 235 by following sector laws and regulations. He argued that all licenses issued by NFA since 2003 are null and void and so are all licenses issued by other departments.

Counsel contended that procurement and disposal are two distinct terms under the PPDA and the lower courts shouldn't have interpreted 240 the two terms to mean the same. He added that this court is therefore under the duty to set the record straight by interpreting both terms as provided under the PPDA. Further, counsel argued that Section 42 or any other provision of the National Forestry and Tree Planting Act refer to the PPDA and as such qualifies the intended appeal as a matter of public 245 interest and thus the need for grant of this application.

It was further submitted for the applicant that the issues arising in the intended appeal for consideration arose for determination in the lower courts but were not interpreted. He gave as example the fact that the applicant had followed section 42 of the National Forestry and Tree Planting Act and its regulations and the definitions of procurement and disposal under the PPDA.

Counsel submitted that the lower courts relied on the rejected evidence of PW2 and PW3 to convict and affirm the offence of abuse of office against the applicant.

Counsel relied on section 69 of the National Forestry and Tree Planting Act and submitted that the applicant had acted in good faith and shouldn't have been held personally responsible. He pointed out that the applicant had involved PW2 who had agreed and approved the license on prices before the applicant signed it. Counsel cited Eng. Samson Bagonza Vs. Uganda, Court of Appeal Criminal Appeal No. 0102 of 2010, in support of this argument.

In addition, counsel argued that the lower courts shifted the burden of proof from the prosecution to the applicant. According to counsel, failure

to explain the allegations when one is put to his defense, like it was in 265 this case, does not deny the accused the benefit of doubt in the prosecution evidence. He argued that this affected the right to presumption of innocence and standard of proof in criminal cases. Counsel prayed that this application be allowed.

## Submissions for the respondent. 270

Counsel opposed the application and pointed out that the applicant's submissions offend Practice Direction No. 2 of 2006 of this court because he did not comply with the number of pages and font.

Counsel relied on section 5 (5) of the Judicature Act, Cap 13 and the Kenyan case of Hermanus Phillipus Steyn Vs. Giovanni Gnocchi-275 Ruscone, Application No. 4 of 2012, on what amounts to "great importance". He submitted that this application raises questions that do not transcend circumstances of the applicant's case and therefore are not substantial to have a significant bearing on public interest.

- On the issue of the testimonies of PW2 and PW3, counsel argued that 280 the evidence of PW 2 and PW3 in contention was not rejected wholly. He added that it was incumbent upon the applicant to prove that the rejected parts of the evidence were indeed relied on by the lower courts to convict and uphold the applicant's conviction. - Counsel further submitted that the issue of the applicant being convicted 285 on one count and acquitted of another is a question of fact not law. He argued that it is not rare for an accused person to be convicted of an offence and acquitted of another in minor and cognate offences as was the case for the applicant. - It was also submitted for the respondent that the questions raised in 290 paragraphs (b) (c) and (d) of the motion concerning the application of the National Forestry and Tree Planting Act to the PPDA on the issuance of licenses, are questions that were handled by the lower courts and that do not transcend the circumstances of the applicant's case and do not have a significant bearing on public interest. 295

Furthermore, counsel argued that the Court of Appeal's definition of issuance of a license to mean disposal under the PPDA, is not so substantial as to have a significant bearing on public interest to warrant certification.

Counsel contended that the applicant did not act in good faith because 300 he failed to prove to the lower courts that he involved other people in the decision making to dispose of the produce. Counsel supported the lower court's finding that the applicant had single handedly set the price, issued a license and disposed of the poles as he willed and that the applicant's actions denied NFA a chance to get the highest competitor 305 on the market for such a big transaction.

Counsel further supported the lower court's finding on what amounts to a prima facie case as laid down in the case of **Bhatt Vs. R (Regina) (1957) EA 332.** Counsel prayed that this application be dismissed with costs.

**In rejoinder**, counsel for the applicant submitted that the issue of minor 310 and cognate offences is not relevant in this case. He pointed out that the lower courts rejected the set price of the poles at 20,000 in the count of causing financial loss but the same evidence was later relied on to convict the applicant of the offence of abuse of office. Counsel reiterated his earlier submissions and prayer. 315

## **Consideration of the application.**

We have carefully perused the record of the application and the submissions of both parties. We have also read the Ruling of the Court of Appeal declining to grant the leave sought.

The applicant brought this application under section 5(5) of the 320 Judicature Act, Rule 38 (1) (b) of the Judicature (Supreme Court Rules) Directions, SI 13-11.

Section 5(5) of the Judicature Act provides as follows: -

"Where the appeal emanates from a judgment of the chief magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, and 325 either the accused person or the Director of Public Prosecutions has appealed to the High Court and the Court of Appeal, the accused or the Director of Public Prosecutions may lodge a third appeal to the Supreme Court, with the certificate of the Court of Appeal that the matter raises a question of law of great public or general importance or if the Supreme 330 Court, in its overall duty to see that justice is done, considers that the appeal should be heard, except that in such a third appeal by the Director of Public Prosecutions, the Supreme Court shall only give a declaratory judgment."

Rule 38(1)(b) of the Judicature (Supreme Court Rules) Directions 335 provides: -

> "If the Court of Appeal refuses to grant a certificate as referred to in paragraph (a) of this subrule, an application may be lodged by notice of motion in the court within fourteen days after the refusal to grant the certificate by the Court of Appeal, for leave to appeal on the ground that the intended appeal raises one or more matters of great public or general importance which would be proper for the court to review in order to see that justice is done."

This court in the case of Namuddu Christine Vs. Uganda, Supreme Court Criminal Application No. 3 of 1999, had the opportunity to interpret the 345 above section and held that: -

> "Under sub section (5) of section 6, this court will grant leave if the court, in its overall duty to see that justice is done, considers that an appeal should be heard. In other words, this court is not bound by the restrictions placed on the Court of Appeal, when that court is considering an application for a certificate where it is satisfied: (a) that the matter raises a question or questions of law of great public importance; or (b) that the matter raises a *question or questions of law of general importance.*

On the other hand, this court will grant leave if it considers that in order to do justice, the appeal should be heard. Anything relevant to doing justice 355 will be considered including questions of law of general or public importance.

> It appears to us that in deciding whether or not to grant leave we are not restricted to questions of law like the Court of Appeal. We have the power to consider other matters."

We have had the opportunity to consider the Kenyan case of Hermanus Phillipus Steyn Vs. Giovanni Gnecchi-Ruscone, (supra), where the Supreme Court of Kenya was reviewing the decision of the Court of Appeal dismissing an application for leave to appeal to the Supreme Court on matters of general public importance. That court followed the

principles in the Irish case of Glancare Teorada Vs. A. N Board Pleanala [2006] IEHC 250 and stated the governing principles for grant of a certificate of importance in the case of a third appeal as follows: -

$\mathcal{F}^{\mathcal{S}}_{\mathcal{A}}$

- For a case to be certified as one involving a matter of general public $i.$ importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing in the public interest; - ii. Where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest; - iii. Such question or questions of law must have arisen in the court or courts below, and must have been the subject of judicial determination: - iv. Where the application for certification has been occasioned by a state of 380 uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the *matter to the Court of Appeal for its determination;* - Mere apprehension of miscarriage of justice, a matter most apt for v. resolution in the superior courts, is not a proper basis for granting 385 certification for an appeal to the Supreme Court; the matter to be certified for final appeal in the Supreme Court, must still fall within the terms of Article 163 (4) (b) of the Constitution; - vi. The intending applicant has an obligation to identify and concisely set out the specific elements of "general public importance" which he or she attributes to the matter for which certification is sought; - Determinations of fact in contests between parties are not, by themselves, vii. a basis for granting certification for an appeal before the Supreme Court. - viii. *Issues of law of repeated occurrence in the general course of litigation may,* in proper context, become "matters of general public importance", so as to 395 be a basis for appeal to the Supreme Court; - Questions of law that are, as a fact, or as appears from the very nature of ix. things, set to affect considerable numbers of persons in general, or as

litigants, may become "matters of general public importance", justifying certification for final appeal in the Supreme Court;

- Questions of law that are destined to continually engage the workings of $X.$ the judicial organs, may become "matters of general public importance", justifying certification for final appeal in the Supreme Court; - Questions with a bearing on the proper conduct of the administration of xi. justice, may become "matters of general public importance", justifying final appeal in the Supreme Court.

Firstly, on ground 5(a) the applicant alleges that the propriety of upholding a conviction of an accused person on evidence that had been wholly rejected and found to be unreliable in respect of another charge on the same charge sheet is a matter of general public importance.

The Court of Appeal, while dismissing the above ground, held as follows:-

"The question set out by the applicant above that the propriety of upholding a conviction of an accused person on the testimony of prosecution witness whose evidence had been wholly rejected as unreliable in respect of another charge on the same charge sheet in one trial, in our view appears to be a question of fact, which is not provided for under section 5(5) of the Judicature Act in respect of an application such as the one before this Court."

We agree with the Court of Appeal finding that this is a question of fact not law. We wish to add that the offence of abuse of office and the 420 offence of causing financial loss, are two different offences with quite different ingredients to be proved before an accused person is convicted. Evidence of a witness or witnesses may fail to prove one offence but be sufficient to prove another offence beyond reasonable doubt. This is a question of fact not law.

Secondly, counsel for the applicant submitted that the applicant should not have been convicted of the offence of abuse of office because he elected to follow the National Forestry and Tree Planting Act instead of

the PPDA. We have read the findings of the trial court on each ingredient of the offence of abuse of office. The trial court properly applied the 430 evidence to the facts before it. The evidence on record shows that the applicant did not involve the NFA Price Committee and the Contracts Committee in disposing of the poles at Ugx 10000/=

Thirdly, we find that National Forestry Authority is a statutory body and therefore a procuring entity for a fact. It was therefore bound to follow 435 the procedures under the PPDA. We therefore do not agree with the submissions of counsel for the applicant that where there are two laws and the accused chooses to follow one, he/she should not be convicted. In this case, PW2's evidence was clear that the authority usually followed the procedures stipulated under the PPDA when harvesting timber 440 produce unless there was an emergency like where the trees were dying of diseases which was not the case here.

We therefore find that the applicant's grounds of this application do not raise a matter of public importance to warrant leave of this court so as to file a third appeal. It is dismissed with costs.

Dated at Kampala this....................................

Rubby Opio-Aweri 450 JUSTICE OF THE SUPREME COURT

L'usatemu

Prof. Lillian Tibatemwa-Ekirikubinza 455 JUSTICE OF THE SUPREME COURT

. . . . . . . . . . . . . . . . . . .

Paul Mugamba JUSTICE OF THE SUPREME COURT

**Ezekiel Muhanguzi** JUSTICE OF THE SUPREME COURT

Due Cleft

**Mike Chibita** JUSTICE OF THE SUPREME COURT

Delivered by the Rigistra 12/11/21<br>Spatistics