Masaba v Uganda (Criminal Appeal No. 294 of 2010) [2023] UGCA 51 (15 February 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OIT UGANDA AT KAMI'ALA CRIMINAL APPEAL No. 294 of 2010 (CORAM: Musoke, Bamugemereire & Musota, ]|A)

## MASABA HIIIBEI{T APPI,LLANI' VERSUS

## UGANDA ITESPONDENT (Appeal from the Decisiotr of lrene Mulyagonja l, as she then zoas, in Crininal Appeal No. 7 of 2007 at deliaered on 7tt' October 2010 at <sup>10</sup> linja High Court)

# IUDGMENT OF THE COURT

15 This is a second appcal against thc decision of thc I Iigh Court in Criminal Appeal No. 7 of 2007 delivcrcd on 7th Octobcr 2010, arising from Criminal Casc No. 77 of 2004 at the Chief Magistrates Court of Mukono.

20 2s The appellant (A3) and two others werc charged with offcnccs of Causing Financial Loss (in Count 1) contrary to sections 269 (1) and 270 of the Penal Code Act, Abusc of Officc (in Count 2) contrary to section 87 of the Penal Code Act and ljmbezzlcmcnt contrary to section 268 (a) and (S) of the Penal Code Act (in Count 3). 'l'hey wcrc tried in thc Chief Magistratcs Court of Mukono and accordingly convictcd. I lowever, the appcllant was convicted of a lcsscr offcncc of theft. FIe was sentenced to lyear imprisonment or a fine of UGX 1,000,000/= for thc offencc of Abuse of Office and to 3 years' imprisonment for Causing Iiinancial Loss and anothcr 3 ycars' imprisonment for 'Iheft and was furthcr ordcred to pay

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compensation to Kayunga District Local Govcrnment of UGX 2,000,000/ = ('fwo Million shillings).

5 In his appeal to the I Iigh Court vide Criminal Appcal No. 7 of 2007, the appcllant appcalcd against conviction and scntcncc. 'l'hc I ligh Court uphcld his conviction and sentencc for Causing Iiinancial Loss and Abuse of Officc. I Iowevcr, the court substituted his conviction for 'fheft with a conviction of Ilmbezzlcmcn! scntcncing him to imprisonment for 5 years, to run concurrently with Count No.-l and 2. The court and also enhanced the compensation due to Kayunga District Local Governmcnt to'l 6,000,000/ = (Sixtcen Million Shillings).

- Dissatisficd, the appcllant appealed to this court.'l'he lst and 2nd appellants' appeals wcrc heard and concludcd in 2019 and thcy wcre acquitted. It should also bc notcd that thc appcllant servcd and completed his sentence but he has reinstated his appeal in this court. 10 - Background 15

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'l'he background to this appeal as ascertaincd from thc Court rccord is that thc appellant was employed by Kayunga District Local Government as an Accounts Assistant. 'l'hat sometimc in 200-1, the Inspector Gcneral of Governmcnt (IGG) rcccivcd a complaint that some employees in the health facilities in Kayunga District hacl not bccn paid part of thcir cmolumcnts and as a rcsult, thc IGG initiated inquiries which cstablishcd that UGX 48,000,000/= that was supposed to be returned to the Commissioner I'rcasury Off icc of Accounts (C'I'OA) ncvcr reachcd the trcasury and was bclievcd to bc lost. It was discovercd that a chcque was prcparcd to return thc said

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monies $(48,000,000/=)$ to the Treasury but it was instead diverted to the appellant's personal account in Uganda Commercial Bank and it was withdrawn. The report of the Inspector General of Government recommended that the appellant be prosecuted over the loss and as a result, he was charged and convicted with Abuse of Office, Causing Financial Loss and theft in the Magistrates Court and on first appeal to the High Court, his conviction and sentence on count 1 and 2 were confirmed while the conviction on the $3<sup>rd</sup>$ count was substituted with

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Embezzlement and he was sentenced accordingly. It is from this appeal of the High Court that this second Appeal arises. $10$

In his Memorandum of Appeal, the Appellant raised the following Grounds;

- 1. The Learned Appellate Judge erred in Law when she upheld the conviction of the Appellant based on a charge sheet that 15 was bad in law and was not endorsed by the Inspector the Director $of$ **Public** General $of$ **Government** or Prosecutions as required by law. - 2. The Learned Appellate Judge erred in Law when she sentenced the Appellant on all three counts thereby punishing him thrice for the same offence contrary to Section 18 of the Penal Code Act. - The Learned Appellate Judge erred in Law when she $3.$ substituted the Appellant's conviction for theft with a conviction for embezzlement without evidence of conversion

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of ownership and without prior warning or a cross appeal by the state thereby occasioning a miscarriage of justice.

- 4. The Learned Appellate fudge erred in Law when she confirmed the Appellant's conviction for causing Financial Loss without prosecution having proved all the ingredients of the offence thereby occasioning a miscarriage of justice. - 5. The Learned Appellate |udge erred in Law when she confirmed the appellant's conviction for Abuse of office without prosecution having proved all the ingredicnts of the offence thereby occasioning a miscarriage of justice. - 6. The Learned Appellate ]udge erred in Law when she upheld the conviction of the Appellant after heavily relying on documents that had not been admitted as exhibits thereby occasioning a miscarriage of justice. - 7. The Learned Appellate Judge erred in Law when she convicted the appellant after heavily rclying on evidence of prosecution witnesses whom the appellant had been denied an opporfunity to cross-examine thereby occasioning <sup>a</sup> miscarriage of justice. t5

#### Represe4tation 20

The Appellant was self-reprcsented while the Respondcnt was represented by IJrncst Katwesigye a Principal Inspcctoratc Officcr togethcr with Sylvia Nabirye a Scnior Inspcctoratc Officer from thc office of the Inspectorate of Government. Both counscl relicd on written submissions that were adopted by this Court.



### Submissions of both partics

Ground No. 1: The Learned Appellate |udge erred in Law when she upheld the conviction of the Appellant based on a charge sheet that

5 was bad in law and was not endorsed by the Inspector General of Government or the Director of Public Prosecutions as required by law.

'l'hc appellant submittcd that hc took plca on a chargc shcct signcd by an investigating officer who was not authorized to prosecutc such

- charges beforc thc Chief Magistrate. I Ic contcnded that the charge shect containcd the offcncc of Abusc of Officc, which madc it mandatory under section 88 of the Penal Code Act, for thc Inspcctor Gcncral of Govcmment or a Deputy Inspector of Governmcnt or Dircctor of Public Prosccutions to conscnt to thc chargc shcct in 10 - Person. 15

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Counsel for the appellant submitted that this anomaly was brought to thc attention of the prosccutors who prcparcd an amcndcc{ chargc shcet and attempted to have the accuscd take plea on the amcnded charge sheet after the judgment was rcady but this action was not allowcd by thc court.

LIc also relied on Uganda v Ndodo & Ors [1985] HCB 3, and Abdulla Suleiman El Hearth & Ors v R [1955] 22BACA404.

In reply, counsel for the respondent submitted that thc chargc shcct was not bad in law sincc it was cndorscd by an officer from thc Inspectorate of Govemment. Counsel contended that whercas the


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appellant was charged undcr the Penal Code Act which rcquircs the consent of the Director of Public Prosecutions, the same did not require thc consent of thc Inspector Gcncral of Govcrnmcnt or Director of Public Prosecutions to validate the charge sheet, in cases

- 5 where the Inspector General of Govemment was the prosecutor. Counsel referred to section 14 of the Inspectorate of Government Act, 2002, on powers of thc Inspectoratc of Government. Counscl cited section 14 (5) of the Act, which givcs the Inspcctoratc of Government power to invcstigate, arrcst, prosecutc and cause - prosecution in cases involving corruption and abusc of officc. Further, that section 1a (8) is to the effect that the Inspcctoratc of Government shall not rcquirc the conscnt or approval of any person or authority to prosecute, or discontinue proceedings institutcd by the inspectorate. Counsel cited Charles Mwanja v Uganda CACA 10 - No. 35 of 202L where this court held that; 15

"Our understanding of thc above provisions of the IG Act is that the Inspectorate does not rcquire the conscnt of the DPI' to institute criminal proceedings or discontinue thcm. 'I'he IG works independcntly of the DI'l) and to use Section 88 of thc I')CA that requires the consent of the DI'P is not applicable to thc IG and the charges were properly prcferred against thc Appellant."

It was counsel's submission that the chargc sheet upon which the appellant was tried was properly before Court and not bad in law.

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Ground No. 2: The Learned Appellate |udge erred in Law when she upheld the conviction and sentence of the appellant on two counts both arising from the same act contrary to section 18 of the Penal Code Act thereby occasioning a miscarriage of justice.

5 'I'he appellant submittcd that thc chargc shcct containcd thrce counts; Abuse of Officc, Causing Financial Loss and Iimbczzlcmcnt whcrcin the particulars show that they arose from a single act which is thc transfer of UGX 48,000,000/= from Kayunga District Local Governmcnt account number to that of Masaba I{erbert. I Ic contended that a sentencc on all thc threc scts of counts contradicts the provisions of Article 28 (9) of the Constitution and section 18 of 10

the Penal Code Act, which prohibit punishing somcone twicc for thc same offence. I Ie cited Marjani v Uganda l96n EA 111. I lc also referred to Seifu s/o Bakari v R [1960] EA 338 whcrc it was hcld tha|

"Where sevcral charges are founded on the same facts the grcater offence includes the lesscr of fcnce and a sentcnce on both wou ld contradict scction 18 of thc I'cnal Code Act." 15

'Ihe appellant prayed that this Court strikcs down counts 2 and 3 in the indictmcnt.

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In reply to Ground No. 2, Counsel contendcd that the appcllant misinterprctcd sc'ction 1 8 of thc Penal Codc Act to arguc that charging him with thrce chargcs basing on thc samc facts amountccl to doublc jcopardy. Counscl relicd on section Magistrates Courts' Act, which providcs that; 86 (r.) of the

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"Any offences, whether felonies or misdemeanors/ may be charged together in the same charge if the offences charged arc founded on the same facts or form or are a part of a scries of offcnccs of the samc or a similar character."

- 5 Counsel submitted that the offences in question arc creatcd by diffcrcnt scctions of the law, and havc different ingrcclicnts, thus arc diffcrcnt offenccs. lt was counsel's submission that thc appcllant was rightly charged and duly convicted, thus ground 2 should fail. - Grounds No. 3: The Learned Appellate |udge erred in Law when she substifuted the Appellant's conviction for theft with <sup>a</sup> conviction for embezzlement without evidence of conversion of ownership and without prior warning or a cross appeal by the state thereby occasioning a miscarriage of justice. l0 - Ground No. 7: The Learned Appellate judge erred in Law when she convicted the appellant after heavily relying on evidence of prosecution witnesses whom the appellant had been denied an opporfunity to cross-examine thereby occasioning a miscarriage of justice. 15 - The appellant argued Grounds No. 3 and No. 7 together. I Ic submitted that therc wcrc no concurrc'nt findings of fact by thc two lowcr courts with rcgarcl to thc chargc of 'l'hcft ancl l;.mbczzlcmcnt. 'fhe appcllant contcnc.lcd that thc Chicf Magistratc's court convictccl him of 'l'hcft and on appeal to thc I Iigh court, thc Appellate Juclgc' substitutcd the conviction of 'fhcft with Ilmbczzlcmcnt and cnhancccl 20 25

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the sentencc and compcnsation duc to government yct State had not cross-appealed.

5 Further, the appellant contended that the prosecution's evidence was shrouded with grave inconsistencies and contradictions that it could not be relied upon. IJe argued that whilc the bank managcr, PW4 testified that two bank drafts were used to transfer the money, they produced a single deposit slip showing that the moncy was deposited using a single transaction of UGX 48,000,000/--as scen on the bank statement hence making their actions suspect and thcir evidence untruthful. In addition, that thc Lcarncd Appellatc Judgc erroneously concluded that it was the appcllant who dcpositcd thc bank drafts on his account in Mbale, yet the deposit slips did not bear the appellant's name, a fact which PW4 admitted during his cross examination. Further, that thc withdraw vouchcr did not bcar thc name of the person who withdrew the money. The appellant submitted that the private handwriting expert brought by thc prosccution was complctcly discrcditcd during cross-examination and his evidence was rendered worthless. 10 15

He further submitted that exhibits were collected from Mbale by PW8, Acidri Victor, but the appellant was dcnicd an opportunity to cross-examine him rendering all the exhibits he collected worthless and expugnable from the record. It was the appellant's praycr that in light of the above errors, this court should find that both grounds 3 and 7 succeed and acquit him. 20


**Regarding Grounds No. 3 and 6** above, the appellant argued them jointly but counsel for the respondent opted to argue them separately.

In response to Ground No. 3, counsel for the respondent submitted that the learned Appellate Judge was empowered under section 34 of $\mathsf{S}$ **the Criminal Procedure Code Act** to substitute and also increase the sentence without warning or cross appeal, since these issues were covered by the trial Magistrate thus had to be re-evaluated.

Counsel also submitted that the handwriting expert, (PW3) showed

- through his report, Exhibit P10 that the specimen handwritings and $10$ signatures of the appellant bore so much resemblance to the deposit and withdraw forms which led to a conclusion that it was the appellant who signed both the deposit and withdraw forms. Counsel submitted that the Appellate Judge rightly found that the appellant - had embezzled UGX $48,000,000/$ = from his employer, the 15 Government of Uganda.

**In reply to Ground No. 7**, counsel for the Respondent submitted that the Appellant was not unfairly denied an opportunity to crossexamine PW8, the investigating officer.

It was counsel's argument that there was never an application to 20 recall the witness as the appellant had intimated in court, thus he cannot visit his forfeiting of his right on the trial Magistrate. Counsel prayed that this Court finds that the appellant was given ample opportunity to cross-examine the witnesses.


The appellant argued Grounds No.4, 5 and 5 together and submitted that the learned Appellate Judge conlirmed the appellant's convictions for Abuse of Office and Causing Financial l,oss without evidence to support key ingredients of the respective offenccs. I{e contended that the key piecc of evidence of the above two offcnccs was never admitted into cvidence and was only an identification document which should never have been relied upon. I{e cited Des Raj Sharma v R [1953] 20 EACA 310 and Okwang Anthony v Uganda SCCA No. 20 of 2000 on the issue of documents admittcd for identification.

The appellant prayed that the appeal succeeds, the judgment and orders of the lower courts be set asidc and an order be made by this court compensating him with 350,000,000/= in atonement for false imprisonment.

In response to Grounds No.4, 5 and 6, counsel for the Rcspondcnt argued that the appellant while submitting on these grounds dealt with mattcrs of fact rather than matters of law. Counsel submitted that the role of re-evaluation of evidence belongs to the first Appellate Court as guided by rule 30 of the Court of Appeal Rules. 15

Counsel argued that whereas it's true that the draft application form remained an idcntification document that was never tendered in court, the said application form was not thc key piccc of cvidcncc against the appellant. It was counsel's submission that the Appcllatc Judge judiciously re-evaluated thc cvidence against the appcllant, and basing on thc oral cvidcncc of witncsses and exhibits, shc came 20 Z5

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to a right conclusion that the appellant was guilty in both Counts'l and 2. Counsel thus prayed that this Court dismisscs Grounds 4, 5 and 6. In conclusion, counsel for thc respondent prayed that this Honorable Court finds that all grounds of this appcal fail, and duly dismisses it.

Consideration of the Court

This bcing a sccond appcal it should be hcard bcaring in mind section 45 (1) of the Criminal Procedure Code Act, Cap 116. 'l'he section is captioned second appcals and statcs as follows:

45. Second Appeals

"1.. Either party to an appeal from a Magistrate's Court may appeal against the decision of the High Court in its appellate jurisdiction to the Court of Appeal on a matter of law, not including severity of sentence, but not on a matter of fact or of mixed fact and law."

'Ihe duty of this court 6s 6lnd appcllatc court bccomcs clcarcr whcn compared with thc duty of thc first appcllatc court whosc duty extends to re-hearing the matter and rc-appraising all the facts and law. 'Ihc Supreme Court clearly distinguishcd thc duties cast on cach

court in Kifamunte Henry v Uganda SCCA No. 10 of 1997, thus;

"'Ihe first appellate court has a duty to review the evidcnce of the case and to rcconsider the materials bcforc the trial judge. 'l'he appellate Court must thcn make up its own mincl not disregarding the judgment appealed from but carcfully

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weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanor, the appellate Court must be guided by the impressions made on the judge who saw the witnesses..."

Except in the clearest of cases, we are not required to re-evaluate the evidence the way a $1<sup>st</sup>$ appellate Court would. Clearly, the duty of a $2<sup>nd</sup>$ appellate court is to examine whether the principles, which a first appellate Court would have applied, were properly applied.

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## Ground No. 1

Regarding ground No. 1, counsel for the appellant contended that the charge sheet was defective since it was endorsed by an officer who was not authorized by law. This matter was reported to the office of

the Inspectorate of Government (IG). A file was opened at the 15 agency and investigations were commenced by the IG. The question whether a charge sheet was consented to by the requisite officer in order to bring charges of Abuse of Office and Embezzlement needs to be answered since it goes to the root of the entire trial. From the court record, the charges preferred against the appellant were brought 20 under the Penal Code Act, Cap 120.

**Section 88 of the Penal Code Act stated that;**

"A person shall not be prosecuted for an offence under sections 85, 86 or 87 without the written consent of the **Director of public Prosecutions.**"(Emphasis added)

Counsel for the respondent in his submissions argucd that the consent of the Director of Public Prosecutions was not requircd since the Inspector General was the prosecutor. Counsel made reference to section 14 of the Inspectorate of Government Act, 2002 which empowers the Inspectorate of Government to prosecute offcnces of corruption without the conscnt of the Dircctor of Public Prosecutions. Section 14 (5) provides that; "'l'he lnspectoratc shall havc powcr to investigate, cause investigation, arrest, causc arrest, prosccutc or cause prosecution in respect of cases involving corruption, abusc of authority or of public officc."

Section 14 (8) provides that; "Notwithstanding any law, the Inspectorate shall not require the consent or approval of any person or authority to prosecute, or discontinuc proceedings institutcd by the Inspectorate."

- It is our vicw that the import of scction 14 of the Inspcctoratc of Government Act is to the effect that only the Inspcctor of Governmcnt and any of thc two Deputy Inspcctor Gcncrals havc power to consent to a charge sheet or indictmcnt preferrcd in offences of corruption and not any other person including other 15 - officers in his office. Thc composition and constitution of the lnspectorate is provided for under section 3 (2) of the Act as follows; PARTII -'I] IIJ INSPEC'I'ORA'II] OII GOVIIRNMIINT 20

- 3 (1) 'Iherc shall bc an Inspc.ctoratc of Govcrnmcnt. (2) lhe Inspcctoratc shall consist of- - (a) the Inspector-Gcneral of Governmcnt; and &, <sup>25</sup>

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(b) two Deputy Inspectors-General.

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The appellant's contention was that the charge sheet was consented to by junior officers in the office of the Inspector General of Government who had no capacity to consent since they were neither the IGG nor any of the Deputy IGG. The facts of this case critically differs from Prof. Gilbert Balibaseka Bukenya v IGG Petition 30 of **2011** where the court decided as follows:

"whether the Acting IGG has authority to perform the functions of IGG under Article 223. Section 2 of the Act No. 5/2002 provides that: "Inspector-General" means the Inspector- $10$ Government appointed under section General $3 \text{ of}$ $\quad\text{ of }\quad$ the Act and includes a Deputy Inspector General. It is correct that the Inspectorate is manned by the IGG and such number of Deputy Inspectors General as Parliament may prescribe. There is no position designated as Acting IGG currently. However, 15 the current IGG, Mr. Raphael Obudra Baku is substantively a deputy IGG who now happens to be carrying out the duties of IGG since the position of the substantive IGG has not yet been filled. This, however, does not nullify his position and powers as Deputy IGG who is capable of prosecuting offences. We do 20 consider this to be an internal administrative arrangement which does not affect the capacity of the officer to perform his constitutional duties. At any rate, the charge sheet " $A$ " being impugned by the petitioner was also co-signed by the Director, Legal affairs, Inspectorate of Government, Mr. Asubo. We 25 received no objection to the effect that the latter officer had no capacity to sign the said charge sheet."

We have considered the **Mwanja** (supra) cited by the respondent and find it distinguishable on the facts and the grounds cited above. In **Mwanja** supra the contention on appeal was that the Inspectorate of Government instead of the Director of Public Prosecutions had

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consented to charges of Abuse of Office contrary t<l section SU of thc Penal Code Act. 'Ihe court in intcrpreting thc Constitution and thc law emphasized that the Inspector General of Government was an independent office and did not requirc permission from thc Dircctor

5 of Public Prosecution to institutc criminal procccdir.rgs or discontinuc them.

'I'he matter in contcntion is that thc chargc shcct was conscntcd to by officers in the office of thc Inspcctor Gencral of Govcrnmcnt who had no capacity to do so. The Constitution Article 223 and the

- 10 Inspectorate of Government Act 2002 (IG Act) which creatcs thc Inspectorate of Government (lG)and in section 14 of thc IG Act empowers the Inspector General of Governmcnt (the IGG) and thc Deputics and also cmboclics thcm with thc samc authority as it docs the Dircctor of Public Prcsccutions (DPP) to pcrsonally conscnt to - charge sheets, in writing, before commenccmcnt of prosecution in corruption and corruption related offences. In our view, the powcrs of the Inspcctor General of Govcrnment and thc two Dcputics in consenting to charge shccts and indictmcnts is non-dclcgablc'. No provision is made to pass the same authority to other staff in thc 15 - mentioned officcs. Thc I-atin maxim Delegata potestas non potest delegari, stand for a principle in constitutional and administrativc law, that "no dclegated powers can be further dclcgatcd also statcd as delagatus non potest delegare. No other officcr othcr than thc onc to whom the power is givcn can cxcrcise such powcr. 'l'he powcr to consent to chargcs related to acts of corruption cannot be delegatcd 20 25

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As noted earlier, the appellant and thc two other officer with whom he was charged, among others werc, at all material timcs to this case, public officcrs holding various positions in thc Local Govcrnmcnt of Uganda. They wcre tried for the offences of Abuse of Officc contrary

- 5 to sections 87 and 88 of the Penal Code Act and Ilmbezzlement contrary to scction 268 of the Penal Codc Act. Thesc offcnccs wcrc brought under thc Pcnal Codc Act which was the law in placc at the time. Ihe Penal Code Act was later rcpealed and the samc offcnces were created undcr thc Anti-Corruption Act of 2009 as scctions 1l - and 19 respectively. 'l'he failure to conscnt to the charge shccts was brought to the attention of the leamed Chief Magistratc who was presiding over the trial. 'fhe learned Chicf Magistratc bccamc awarc of the request by the Prosecution to amcnd the charge shcct in ordcr to tender in a charge sheet which was consented to. The lcarncd Chief 10 - Magistrate declined the application to tcnder in a fresh chargc sheet at the close of thc trial. One of thc many rcasons for such dcnials is that the accuscd pcrsons must takc fresh plcas and witncsscs have to be recalled for cross-examination on thc amended chargcs. 'l'his oftcn leads to protractcd trials. In the proccss some witncsses may not 15 - return for cross-cxamination. 20

'fhe respondcnt did not dcny thc above turn of events but maintained that the charge sheet was not bad in law since it was cndorscd by an officer from the Inspectorate of Government. We have carcfully considered thc appellant and respondcnt's submission. Unfortunately, wc diffcr from counscl for thc rcsponclcnt. 'l'hc law

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requires that such chargc sheet and indictmcnts must be properly consentcd to. A chargc shcct other than onc conscntcd to by the' IGG, Deputy IGG or DPP, becomes incurably defective. It is tritc that any act done by a person without powcr becomcs ultra ztires. 'l'his means

- action takcn beyond the scopc or in exccss of lcgal power or authority of the actor. See His Worship Aggrey Bwire v Attorney General & Anor Supreme Court Civil Appeal 8 of 2010 whcrc it was held that the Minister has no power to to revokc, un-declarc or de-gazette what has already been dcclared and Kasule v Attorney General - (19n) EA 423 where it was held that a rule purported to be made by the Ministcr but outsidc thc powcrs of thc parcnt act is ultra vircs that Act and cannot stand. Finally, in Polycarp Sekiboobo v Clare Obonyo Supreme Court Civil Application 3L of 1993 whcrc the Supreme Court found that a registrar had irrcgularly clismisscd an appeal and that it there was no law enabling a registrar to dismiss such an appeal. Manyindo DCJ held; "It follows thcrcforc that his order was ultra vircs his powers. It must bc vacatcd. It is set 10 15

Drawing on the reasoning of the casc abovc, we find that thc entire trial was a nullity for rcason that thc officcr who conscntcd to thc charge sheet acted ultra vires.'l'he whole trial must as a rcsult, be set aside. We would have ordercd a retrial but given that it is almost two decades since the mattcr was heard, it would bc futilc to start the matter de nooo. 20

Ground No. 1 of the appeal therefore succeeds. Z5

aside."

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We shall not delve into the other grounds of appcal sincc resolving Ground No. -l resolvcd the whole appeal. IJaving found that the entire trial was based on a nullity, wc do not find it ncccssary to determine other grounds of appeal.

5 In conclusion, this appeal succeeds and the convictions and scntences passed against thc appcllant in the Appcllatc and 'l'rial Courts arc quashed and the orders for compensation are set aside. 1'he appe llant is set at liberty unless hcld on other lawful chargcs.

We so order

Hon. Lad ustice Elizabeth Musokc Justice of Appeal

\_-l^- Dated at Kampala this .1.)....day of 2023.

<sup>25</sup> Hon. Lady |ustice Catherine Bamugemereire |ustice of Appeal

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Hon. Mr. justice Stephen Musota Justice of Appeal