Lt. Moro and Another v Uganda (Criminal Appeal No. 370 of 2017) [2023] UGCA 32 (30 January 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# [Coram: Musoke, Gashirabake & Luswata, JJA]

# CRIMINAL APPEALS NO.37O OF 2OI7 AND IO4 OF 2O2O

(Arisingfrom Criminal session No. 006 of20l7)

#### I. LT. AUGUSTINE MORO 2. PTE KALOKWERA KENNETH...... ..................,..... APPELLANTS 10

### VERSUS

# UGANDA .............. RESPONDENT

LArising from the decision of the Hon. Elly Turyamubona, Col. Mark Kodil and Col. Micheal Kagambirwe, Criminal Appeal No.006 of20l7, dated 25th September 2017J 15

### JUDGMENT OF COURT.

## Introduction.

The Appellants were indicted before the General Court Martial at Makindye and tried and convicted for the offences relating to security contrary to Section 130(lXf)

#### of the Uganda Peoples Defence Forces Act, 2005 (UPDF Act). 20

It was the prosecution's case that the Appellants in the company of others on the 4th day of March 2013 between 0l00hrs and 0200hrs while armed with a fire arm attacked the IIPDF guards on duty at Mbuya barracks with the aim of acquiring guns, an act intended to prejudice the security of the defence forces.

The prosecution led evidence of 12 witnesses in a bid to prove their case. The Appellants gave sworn testimonies but did not call any witnesses. At the conclusion ofthe trial, the Appellants were convicted on count I for offences relating to security contrary Section 130 (1)(f) and sentenced each to 15 years imprisonment. ,(

Being aggrieved by the decision of the General Court Martial, they lodged Criminal Appeal No.006 of 2017, before the Court Martial Appeal Court which was

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- 5 dismissed. Dissatisfied with the dismissal, the Appellants appealed to this court on grounds that: - L The honourable members ofthe court martial appeal erred in fact and in law by failing to properly evaluate the evidence thus arriving at a wrong decision. - 2. The honourable members of the court martial appeal erred in fact and in law when they confirmed manifestly harsh, excessive and illegal sentences

# Representations

The Appellants were represented by leamed counsel Samuel Nsubuga holding brief for Mr. Henry Kunya. The Respondent was represented by leamed counsel Joseph Kyomuhendo Chief State Attomey holding brief for Mr. Sam Oola. The Appellants

Kalokwera and Moro were in Murchison bay and Gulu prison respectively and appeared via video link. 15

# Preliminary Objection

The Respondent raised a preliminary objection, opposing the appeal on the ground of incompetence. Counsel submitted that this court does not have the jurisdiction to

hear and entertain this appeal. 20

> Counsel for the Respondent submitted that an appeal is a creature ofstatute. Counsel cited Attorney General vs. Shah, No. 4 of (1971) EA 50, where Spry held that,

> > "lt has for long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. There is no such thing as inherent appellate jurisdiction."

Counsel submitted that Article 134 of the Constitution of the Republic of Uganda 1995and Section l0 of the Judicature Act, Cap 13, conferred appellate Jurisdiction on the Court Appeal from matters arising from decisions of the High Court.

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- 5 Counsel further submitted that under the Uganda People's Defence Force Act and the Regulations thereof UPDF (Court Martial Appeal Court) Regulations, SI 307-7,the Court Martial Appeal Court is the final court of appeal. Counsel cited PTE Muhumtza Zepha vs. Uganda, CACA No. 031 of 2016, where court found that this court has no jurisdiction to handle matters from Court Martial Appeal Court. - Counsel for the Appellants did not make any submissions with regard to the preliminary objection raised by the Respondent. 10

# Consideration of court.

Since this preliminary objection has the effect of disposing of the whole matter, we proceed to address it. We have carefully considered the submissions of counsel for

the Respondent. 15

It is not in dispute that appellate jurisdiction is a creation of statute and cannot be just imposed by consent of parties or court on its own. For any person aggrieved by a decision of court to find redress from the appellate court, there must be a statute that creates that avenue. Jurisdiction is everything, and absence of it makes the proceedings a nullity. We agree with the position of the law in Attorney General vs. Shah, (No. 4) I l97l1E. A 50, where court held that:

> "it has long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. There is no such thing as inherent appellate jurisdiction"

In the absence ofsuch a statute court cannot just impose jurisdiction on itself. There is need to establish which statute gives that jurisdiction. 25

Regulation 20 of the Uganda People's Defence Forces (Court Martial Appeal court) Regulations SI 307-7, on appeals from the Courl Martial Appeal Court, provides that;

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"( I ) except as provided in regulation (2) ofthis regulation, any determination by the court of any appeal or other matter which the court has power to determine under the provisions of the act or of these regdations shall be Jinal, and no appeal shall lie from lhe court to any other court.

(2) in the case of an appeal against the conviction involving the sentence of death or life imprisonment that has been upheld by the court, the Appellant shall have the right to further appeal to the Court ofAppeal"

The general rule is that decisions from the Court Martial Appeal Court are final. The exception to this general rule is where the Court Martial Appeal Court upholds a conviction involving a sentence of death or life imprisonment, the Appellant will have a further right to appeal to this court. The Appellants in this case do not have

15 that further right of appeal because they were convicted to l5 years imprisonment which is not catered for under Regulations 20 (2) as an exception.

This Court in PTE Muhumuza Zepha vs. Uganda, Criminal Appeal No 031 of 2016, exhaustively handled this issue to the effect that under the current law which is the TIPDF Act 2005, this courl has no jurisdiction to entertain an Appeal from Court Martial Appeal Court. Court held that:

> "as we have found that this court has no jurisdiction under the current law to entertain the current appeal, it follows that as the facts of the cument appeal are quite similar to the facts of Lt Ambrose Ogwanga vs. Uganda, we are unable to intervene in this matter"

In essence, the court was stating that despite the pleadings, submissions and admissions made before it, it could not interfere because its decision would be non consequential. Any award or judgment or orders arising from such proceedings of court without jurisdiction would be a nullity. Most importantly jurisdiction issues override all matters of the proceedings. See Pastoli vs. Kabale District Local

Government council and others, (2008) 2 E. A 300.

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5 The total lack ofjurisdiction goes to the root of the case and cannot be cured by Rule 2(2) of the Rules of this court. Neither can it be cured by Article 126(2) (e) of the Constitution of the Republic of Uganda 1995, for it is not a mere technicality.

With the above reasons the appeal is incompetent and is hereby struck out.

| 10 | u i | |----|-------------------------| | | Dated at Kampala this | | | | | | ELIZABETH MUSOKE | | 15 | JUSTICE OF APPEAL | | | t | | | CHRISTOPHER GASHIRABAKE | | 20 | JUSTI APPEAL | | | EVA SWATA | | | CE OF APPEAL | | | |