Aniugo v Uganda (Criminal Appeal No. 391 of 2017) [2022] UGCA 42 (24 February 2022)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

### CRIMINAL APPEAL NO. 391 OF 2OI7

(Arising from High Couri Criminal Appeal No. 382 of 2016 Holden at Kampala)

### ANIUGO GLORIA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

#### UGANDA RESPONDENT

## CORAM: HON. WSTICE ELIZABETH MUSOKE, JA

HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

#### JUDGMENT OF COURT

This is a second appeal.

In the Chief Magistrate's court Entebbe, the appellant was charged, tried and convicted of the offence of Possession of a narcotic drugs contrary to section 4(1) and (2) (a) of the Narcotic Drags and Psychotropic Substances (Control) Act 3 of 2015 and was sentenced to a fine of 100,000,000= or in default to serve a custodial sentence of 11 years imprisonment. The appellant was dissatished with the sentence passed by the trial court and appealed to the High Court. The High Court set aside the fine but maintained the default sentence 15 20

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of 11 years imprisonment. She was dissatisfied again and appealed to this court against sentence only on the ground that;

The learned tial Judge erred in law and fact in imposing <sup>a</sup> manifestlg harsh sentence on the appellant.

### Background

The appellant was, on 25th November 2016, at Entebbe International Airport, found with narcotic drugs to wit 5.4 kgs of Heroin valued at Shs. 153.360.000= (One hundred fifty-three million three hundred sixty thousand). She pleaded guilty and was convicted on 14th December 2016 and sentenced to a line of Shs. 100,000,000= (One hundred million) or serve a sentence of 11 years imprisonment in default by the Chief Magistrate's Court of Entebbe. It was ordered that after serving sentence, she would be deported to her country, Nigeria. The appellant filed an appeal to the High Court which set aside the order to pay a fine but maintained the default sentence of <sup>1</sup>1-years imprisonment.

The appellant filed this appeal before us against sentence only on a sole ground that;

"The learned tial Judge erred in law and fact bg imposing <sup>a</sup> manifestlg harsh sentence on the appellant."

Leave to appeal against sentence only was granted under S. 132 (1) (b) of the trial on Indictments Act.

Due to the covid- 19 pandemic, the appellant attended court through video link and was in touch with her lawyer throughout the hearing.

### Representation

5 When this appeal came up for hearing, Counsel Sarah Awelo appeared for the appellant while Sherifah Nalwanga, Chief State Attorney, appeared for the respondent.

### Appellant's submissions

Counsel for the appellant relied on the decision in Abaasa Johnson

10 1f Vs Uganda Criminal Appeal No. 33 of 2O1O for the proposition that this court will only interfere with a sentence imposed by a trial court in a situation where the sentence is illegal or founded on a wrong principle of the law. That the appellant pleaded guilty and did not waste court's time and thus should have got a more lenient sentence. Counsel submitted further that punishment in drug traflicking is predicated upon the value of the drugs and in this case, there was no evidence adduced at all as to the value of the drugs.

### Respondents' submissions

20 Counsel submitted that the appellate court dealt with the issue of the value not having been determined and was alive to the principles of interference in a sentence and indeed found that there was no valuation certificate. That the court allowed the appeal in part and upheld the sentence of 11 years, which was not excessive since the maximum sentence for the offence is 25 years under Section aQl @l

of the Narcotic and Psychotropic substances (Control) Act. That the court considered both the aggravating and mitigating factors of the case and passed a sentence that was neither illegal nor excessive.

The case of Alex NJuguna Kimani Vs R Criminal Appeal No. 65 of

- 5 2OL2 held that punishment in drug traflicking is predicated upon the value of the drugs. However, Section aQ) @) of the Narcotic and Psychotropic substances (Control) Act 2015 provides that on conviction, the sentence can either be a fine or imprisonment and Section 91 provides for determination of a fine by the market value - of the narcotic drug. However, the imprisonment sentence does not depend on the market value of the drugs. The imprisonment sentence should not be less than 10 years and not exceed 25 years. 10

### Consideration of the Appeal

It has been consistently held in numerous cases, both by the Supreme Court and the predecessor Court of Appeal for East Africa, and more specifically in the case of Llvingstone Kakooza v Uganda SC Criminal Appeal No. 17 of 1993 [unreported] that: 15

> 'An appellate court will onlg alter q sentence imposed bg the trial court if it is euident it acted on a. wrong principle or ouerlooked some mateial factor, or if the sentence is manifestlg excessiue in uieu of the circumstances of the case. Sentences imposed in preuious cases orf similar nature, while not being precedents, do afford mateial for consideration: See Ogalo S/O Owoura u R (19s4) 27 E. A. C. A. 27O.'

The foregoing principles are equally applicable in the instant case.

In the present case, the appellant pleaded Cuilty at the trial court and was convicted and sentenced to a fine of 100,000,000/= or serve a sentence of 11 years imprisonment in default. The appellant filed an appeal to the High Court which set aside the order to pay a fine and maintained the 11 year imprisonment sentence.

On appeal to the High Court, the appellate Judge set aside the fine of 100,OO0,000/= for reasons that there was no valuation certificate for the drugs and under the Act, an order for a fine could not stand. The appellate Judge considered the aggravating and mitigating factors as considered by the tria-t Magistrate and found that the sentence of 11 years imprisonment was not excessive as the maximum sentence for the offence is 25 years imprisonment. The appellate Judge's order was as follows:

- 15 "iii) The sentence of 11 years imprisonment is maintained. Howeuer the appellant hauing spent 1 Aear on remand, court deducts the peiod spent on remand and sentence the appellant to 70 gears imprisonment without an option of a fine, effectiue from the date of conuiction and sentence in the trial cottrt." - The sentencing order of the leaned appellate Judge set aside the fine, for lack of a valuation certificate, but maintained the 11-year imprisonment sentence. We must note that the 11 year imprisonment sentence was given in default of payment of the 100,000,000 l= ftne. This was one sentence and it was therefore an error for the learned appellate Judge to set aside the fine but 20 t\

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maintain the default sentence of 11-years imprisonment. The appellate Judge should have gone ahead to exercise jurisdiction as a Iirst appellate court, set aside the sentence of the Chief Magistrate and re-sentence the appellant. We therefore set aside the sentence for being incomplete and proceed to resentence the appellant under Section 1 1 of the Judicature Act.

We note that there was no valuation certificate of the Narcotic drugs as stipulated under Sectlon 91(1) of the Narcotic and Psychotroplc substances (Control) Act 2O15. However, Sectlon aQl @l of the Narcotic and Psychotropic substances (Control) Act 2O15 states that;

4. Penaltg.,for possession of narcotic drugs and psgchotropic substances

(1) Subject to subsection (3) ang person who has in his or her possession any narcotic drug or psgchotropic substance commits an offence.

(2) A person tuho commits an offence under subsection (1) is tiable on conuiction-

(a) in respect of a narcotic drug listed in the Second Schedule Lo a fine ofnot less than fiue hundred afiTencu points or three times the market ualue of the drug, whicheuer is greater; or to impisonment of not less than ten gears but not exceeding twentg fi.ue gears, or both;

(b) ...lE,mphasis ours)

The appellant was charged and convicted under Section a(1) (2) (a) as stated above. This section gives .court the discretion to sentence an accused (appellant) to a fine of not less than 50O currency points or three times the market value of the drug, or imprisonment of not less than 10 years but not exceeding 25 years or both. We reiterate that there is no valuation certificate in this case to ascertain the value of the drugs. The section gives an option of a sentence of not less than 500 currency points, which in our view, is appropriate in the absence of a valuation certificate. According to the first schedule to

the Narcotic Drugs and Psychotropic substances (Control) Act 2015, a currency point is equivalent to Ugsh 2O,OOO|= (twenty thousand), with 500 currency points being equivalent to 10,000,000/=, we sentence the appellant to a line of Ugsh. 10,000,000/: (one million) and in default, to serve 10 years imprisonment. 10 15

We so order.

t

Dated this day of 2022 rlI TT,

Hon. Justice Elizabeth Musoke, JA


# Hon. Justice Catherine Bamugemereire, JA

Hon. Justice Stephen Musota, JA