Ddegeya v Uganda (Criminal Application 9 of 2021) [2021] UGSC 19 (5 November 2021)

### THE REPUBLIC OF UGANDA

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# IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### BEFORE HON. JUSTICE MUHANGUZI, JSC. **CORAM:**

# **CRIMINAL APPLICATION NO. 9 OF 2021**

DDEGEYA HASSAN :::::::::::::::::::::::::::::::::: $\mathsf{S}$

#### VS.

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UGANDA :::::::::::::::::::::::::::::::::::

## **RULING OF MUHANGUZI, JSC.**

- This application was brought under Articles 23(6)(a), 126(1), Rules $10$ 6(2)(a), 42 and 43 of the Judicature (Supreme Court Rules) Directions for orders that the applicant be granted bail pending the hearing and determination of his Criminal Appeal. No. 36 of 2021 before this court. - The grounds of the application contained in the Notice of Motion, 15 the affidavit in support of the Notice of Motion sworn by the applicant are briefly as follows: - - The applicant has a fundamental right to apply for bail under 1. Article 23(6) of the Constitution of the Republic of Uganda. - The Applicant is a first offender and the offence of which he 2. 20 was convicted did not involve personal violence. - The appeal that has been filed by the Applicant is not $3.$ frivolous and has a high probability of success. - The Applicant has complied with the bail terms and conditions $4.$ granted by the High Court and later by the Court of Appeal. - 5. The Applicant has a fixed place of abode with the jurisdiction of this court.

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That the Applicant has substantial sureties also living in areas 6. within the jurisdiction of the court.

It is just and fair that the applicant is granted bail pending his 7. 30 appeal.

The application was opposed by the Respondent who filed an affidavit in reply sworn by Ms Harriet Angom, Chief State Attorney in the office of the DPP, stating as follows: -

- 1. "1. That I am a female adult Ugandan of sound mind and I am 35 employed by the Office of the Director of Public Prosecutions (ODPP) as a Chief State Attorney. - 2. That I handled the applicant's appeal vide Court of Appeal Criminal Case No. 11 of 2015 from which this application arises. I am therefore well conversant with the evidence, hence competent to swear this affidavit. - 3. That I have studied and understood the contents of this application and the affidavit in support filed by the applicant in this honourable Court. - 4. That paragraphs 1, 2, 3, 5 and 6 of the affidavit in support are noted. - 5. That paragraph 4 of the affidavit in support is speculative and no evidence has been adduced to prove the averments therein.

6. That in further reply to paragraph 4 of the affidavit in support, 50 I have had opportunity to study the judgment of the Court of Appeal and I verily believe that the applicant's second appeal has no merit. A copy of the judgment of the First Appellate **Court is attached and marked 'Annexture A.'**

7. That in reply to paragraph 8 of the affidavit in support, I know 55 that the offences with which the applicant was convicted are

serious financial crimes, commited with impunity and resulted into a financial loss of UGX. 102, 146, 453 property of Safety Way Pharmacy (2003) Ltd.

- 8. That in response to paragraph 9 of the affidavit in support, no evidence has been adduced to show that the applicant complied with the bail terms in the High Court and Court of Appeal. - 9. That in further reply to paragraph 9, the circumstances under which the applicant complied with bail terms in the High Court and Court of Appeal have changed following his conviction by the High Court and the subsequent confirmation of his conviction by the Court of Appeal, which also upheld his sentence of 8 years, as well as the compensation order in the sum of UGX 102,146,453/ $=$ - $10.$ That it is in the interest of justice that the applicant is denied bail pending appeal and instead, the appeal is expeditiously heard, determined and disposed of on merit. - $11.$ That I swear this affidavit in reply in objection to the application to release the applicant on bail pending the disposal of his appeal. - That whatever I have stated herein is true and correct to $12.$ the best of my knowledge and belief."

## **Background**

The brief background to this application is that Hassan Ddegeva (the 80 applicant) was charged on two counts of the offence of embezzlement contrary to Section 96(b) of the Anti-Corruption Act. 2009, three counts of the offence of forgery contrary to Section 342 and 347 of the Penal Code Act and three counts of uttering false documents contrary to Section 351 of the Penal Code Act. He was 85 accordingly sentenced to 8 years' imprisonment on each of the

counts 1 and 2; and 2 years' imprisonment on each of counts 3 to 8, all sentences to run concurrently plus an order to refund UGX.102,146,453/= to his employers to wit: Safeway Pharmacy (2003) Limited.

Being dissatisfied with the decision of the High Court, he appealed to the Court of Appeal against both conviction and sentence which confirmed the decision of the High Court. He lodged a Notice of Appeal and a Memo of Appeal in this court under Criminal Appeal No. 36 of 2021 hence this application.

#### **Representation**

At the hearing of this application, the applicant was represented by Mr. Twaha Mayanja and Kassim Kikonyogo from M/S Mayanja, Nakibuule & Co. Advocates while the Respondent was represented by Ms. Gloria Inzikuru, Chief State Attorney. The applicant, who was at Kitalya Min Max Prison, attended court via video link. Both parties filed written submissions which they adopted at the hearing.

## Submissions for the applicant.

Counsel for the applicant submitted that this court is vested with both jurisdiction and discretion to grant bail pending appeal under 105 rule 6(2) of the rules of this court. He relied on the case of Arvind **Patel Vs. Uganda, SCCA No.1 of 2003, where this court set guidelines** for grant of bail pending appeal and for the preposition that all the conditions need not be present in every case and as such a combination of two or more criteria may be sufficient because each 110 case must be decided on its facts and circumstances.

Counsel submitted that the applicant is a first offender, a family man with a wife and two children, a Muslim cleric involved in proliferation of Islam faith amongst his community and contributes positively to his family and community and he is law abiding as recommended by his local authorities in annexure B.

Counsel argued that the applicant's appeal has a possibility of success and therefore not frivolous. He pointed out that this court can determine whether or not the appeal has a likelihood of success from the attached annexures A, B, C, and D to wit: Judgment of the 120 High Court, Judgment of the Court of Appeal, the Notice of Appeal and the Memorandum of Appeal respectively. Counsel argued that if the grounds of the appeal are properly argued and heard by this court, the appeal is likely to succeed.

Counsel contended that the applicant obeyed previous bail terms 125 granted by the Court of Appeal. He argued that since the applicant never jumped bail in the lower court, he would still obey the terms imposed if the application is granted.

Counsel submitted that the applicant has substantial sureties who understand their duties and have undertaken to ensure that the 130 applicant attends court whenever he is required to do so. He introduced the sureties as follows: -

- 1. Shamira Nabbaale, a wife to the applicant, a mother of three and a resident of Church Zone Nateete, Lubaga Division, Kampala district. - 2. Kabaalu Katibu, a biological father to the applicant and a resident of Bbuye-Kikumbi Cell, North-Ward, Busimbi Division, Mityana Municipality. - 3. Mrs. Mayiga Lukia Nambooze, a mother in-law to the applicant and a resident of Luteete, Wampeewo Ward, Kasangati Town Council. Wakiso District.

Counsel prayed that this court be pleased to grant the applicant bail on such terms as court may deem fit.

$\mathsf{S}$

#### Submissions for the respondent.

Counsel for the respondent relied on the case Arvind Patel and submitted that the grant of bail pending appeal is discretionary and it depends on the circumstances of each case and in this case, the circumstances do not favour the grant of the application.

Counsel cited Henry Bamutura Vs. Uganda, Supreme Court Miscellaneous Application and contended that the applicant is no longer presumed innocent given the fact that he has been convicted and sentenced by the High Court and confirmed by the Court of Appeal.

Counsel submitted further that the applicant has not pleaded any exceptional or unusual circumstances that would warrant the grant of his application as was expounded in the case of **Nakiwuge Racheal** Muleke Vs. Uganda, Supreme Court Criminal Reference No. 12 of 2020.

Counsel argued that the applicant's good character is no longer in issue since he has been convicted of corruption related offences and he cannot be said to be of good character.

Counsel also opposed the ground that the appeal has a possibility of success and argued that since the applicant has not attached the 165 record of proceedings on the application, this court cannot be able to determine the possibility of success of his appeal.

In addition, counsel contended that the circumstances under which the applicant was granted bail in the lower court have since changed following his conviction and confirmation by both the High Court and 170 the Court of Appeal respectively. She argued that this being the last appeal, the risk and temptation to abscond are higher than it was before in the lower courts.

Counsel relied in John Kashaka Muhanguzi Vs. Uganda, SC Misc. **Application No. 18 of 2019, wherein the learned justice prof.** 175 Tibatemwa-Ekirikubinza, JSC held that the requirement for personal violence in granting bail pending appeal should not be applied to corruption and corruption related cases and prayed court that it upholds the same position in this case. She also cited Segujja Danny

& Anor Vs. Uganda, SC Misc. App No. 5 of 2019, for the same 180 preposition.

Counsel therefore prayed court to find that the factors favouring the grant of bail pending appeal are not applicable in the instant case and court should dismiss the application. In the alternative, counsel argued that if this court is inclined to grant bail to the applicant, 185 stringent terms should be imposed. That is; the applicant be made to deposit a certificate of title, a hefty monetary deposit equivalent to the amount on the charge sheet be deposited in court and also deposit his passport with court in addition to reporting to the Registrar of the supreme court every after 2 weeks till the 190 determination of his appeal.

## Consideration of the grounds of the application.

Rule 6 (2) (a) of the rules of the Judicature (Supreme Court Rules) Directions, hereafter referred to as the "Rules of this Court", which applies to applications for bail pending hearing and determination of an appeal, states: -

> $"(2)$ Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may-

(a) in any criminal proceedings, where a notice of appeal has 200 been given in accordance with rules 56 and 57 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal;"

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The Applicant intends to appeal before this Court. He filed a Notice 205 of Appeal in this court on 10/6/2021, he thus complied with the above rule, as shown by a copy of the Notice of Appeal annexed as 'C" to her affidavit in support of the application.

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The grant of bail, whether pending trial or pending appeal, is at the discretion of court, which discretion must be exercised judiciously. 210 with each case being determined on its own merits. See John Muhanguzi Kashaka Vs. Uganda, Supreme Court Miscellaneous Application No. 18 of 2019; Arvind Patel Vs. Uganda (supra); and Ochepa Godfrey Vs. Uganda, Supreme Court Miscellaneous Application No. 07 of 2020. 215

The consideration for release of an Applicant on bail pending appeal hinges on whether there are exceptional and unusual circumstances warranting such release. This is because the Applicant is no longer wholly shielded by the presumption of innocence espoused in Article 28 (3) of the Constitution of Uganda. Secondly, the position is that whenever an application for bail pending appeal is considered, the presumption is that when the Applicant was convicted, he or she was properly convicted.

In the instant application, the presumption of innocence is rebutted by the fact that the High Court and the Court of Appeal have already 225 convicted the Applicant. This infers that there are factual findings by both courts, based on the adduced evidence, that she committed the offence she was charged with, thus placing her outside the ambit of persons envisaged in Article 28 (3) (a) which refers to persons in respect of whom a court of law is yet to make a verdict on 230 allegations against them.

Thus, a person applying for bail pending appeal must be subjected to a more stringent test than one who is not yet convicted.

However, the fact that the law, as implicit in Article 132 (2) of the Constitution, Section 5 of the Judicature Act Cap 13, and the Rule 6 (2) of the Rules of this Court, makes provisions for appeal, and for bail pending appeal, infers that the law appreciates the possibility of a conviction being erroneous or the punishment being excessive.

In Arvind Patel Vs. Uganda (supra), this Court laid down guidelines to be considered to justify the grant of bail pending appeal, that is: 240

i) the character of the applicant;

ii) whether he/she is a first offender or not;

iii) whether the offence of which the

applicant was convicted involved 245 personal violence;

> iv) the appeal is not frivolous and has a reasonable possibility of success;

v) the possibility of substantial delay in the determination of the appeal; 250

> vi) whether the applicant has complied with bail conditions granted after the applicant's conviction and during the pendency of the appeal (if any).

It was held in the same case of **Arvind Patel** and, later, in **Ocepa** Geoffrey Vs. Uganda (supra) that not all conditions for bail have to 255 exist, that two or three can suffice since each case is decided on its own facts and circumstances.

The Applicant contends that the appeal is not frivolous and has a reasonable possibility of success. This was mainly brought out in his affidavit in support of the Notice of Motion, as well as in his submissions. The Respondent's Counsel however maintains that the fact that the Applicant's conviction by High Court, and the upholding

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of the conviction by Court of Appeal, shows that the Applicant's appeal has little or no chance of success.

- The likelihood of success of an appeal, would on the face of it, 265 presuppose that court appreciates the merits of the appeal on which the application for bail hinges. However, as a matter of fact, court does not at this particular point in time delve deeply into the merits of the appeal. - It was held in the case of **Arvind Patel (supra)** that: -270

"the only means by which court can assess the possibility of success of the appeal is by perusing the relevant record of proceedings, the judgment of the court from which the appeal has emanated and the Memorandum of Appeal in question."

- In Kyeyune Mitala Julius Vs. Uganda, Supreme Court Criminal 275 **Application No. 09 of 2016, it was held that it is impossible to gauge** the success of the appeal in the absence of the record of proceedings. - I have perused the record of this application. It contains the Notice of Appeal, the proposed Memorandum of Appeal, the affidavits and 280 the annexures, the Applicant's written submissions and copies of the authorities sought to be relied on by the Applicant. However, the record of proceedings was never attached.

Thus, in my considered opinion, and based on the foregoing authorities on this matter, lack of the relevant record of proceedings 285 would not enable me determine the possibility of success of the appeal, or to determine whether the appeal is frivolous or not.

Regarding the Applicant's character, his Counsel presented him to this Court, as a first time offender, a husband and a father of 2 children, also that he has a place of abode as indicated in his LC introductory letter. The Respondent's Counsel challenged the

character of the applicant by stating that his character cannot be said to be good, since he is now a convict of corruption related cases.

The position of this Court, as held in Kashaka Vs. Uganda (supra), is that good character alone can never be enough because there is nothing exceptional or unusual in having good character. Thus factors which go to the applicant's credit, like being a first time offender, or of good character, or a breadwinner of his family, and although he/she may have offered sureties of sound character, would all recede to the background when weighed with the 300 seriousness of the offence and whether or not there is likelihood that the appeal would succeed.

Be that as it may, one of the grounds relied on by the Applicant is that he has complied with bail conditions granted to her by the lower Courts. Counsel for the Respondent did not challenge it, but 305 she argued that the bail was prior to her conviction and now the Applicant is a convict and may be tempted to abscond. This being the final appeal, I am of the view that an applicant in an application for bail pending appeal is more prone to abscond because he is already a convict. 310

As already noted above, conditions for a grant of applications for bail pending appeal are more stringent than those for bail pending trial. Court should therefore be more cautious in granting such applications. The applicant should therefore prove exceptional or unusual circumstances.

Section 15 (3) of the Trial on Indictment Act, Cap. 23 defines exceptional circumstances to include: -

"In this section, "exceptional circumstances" means any of the following—

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(a) grave illness certified by a medical officer of the prison or other 320 institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;

(b) a certificate of no objection signed by the Director of Public **Prosecutions; or** 325

## (c) the infancy or advanced age of the accused."

The applicant has not pleaded any of the above circumstances. I emphasize that conditions for bail pending appeal are slightly higher than those required for bail pending trial. The applicant in an application for bail pending appeal has to plead and prove 330 exceptional and unusual circumstance for the grant of his/her application. The applicant has not pleaded and proved exceptional and unusual circumstance for the grant of bail pending appeal.

In the result, I decline to grant the application for reasons discussed above. 335

Dated at Kampala this........ $\overbrace{\text{Maxpermear}}$ 2021.

EZEKIEL MUHANGUZI JUSTICE OF THE SUPREME COURT.

Between by the Registrar 5/u/2,