Musinguzi v Uganda (Criminal Appeal 60 of 2023) [2024] UGCA 279 (27 September 2024)

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion & Mugenyi, JJA]

# Criminal Appeal No. 0060 of 2023

(Arising from High Court (Anti-Corruption Division) Criminal Session Case *No. 2 of 2022 at Kololo*)

#### **BETWEEN**

$=$ Appellant Musinguzi Godfrey=

### AND

$-$ Respondent Uganda=

(On Appeal from the judgment of the High Court of Uganda (Gidudu, J.,) delivered on the 17th May 2023 at Kololo)

## JUDGMENT OF THE COURT

#### **Introduction**

- The appellant was indicted and convicted of the offence of abuse of $[1]$ office contrary to section 11(1) of the Anti-Corruption Act, 2009. The particulars of the offence were that in the year 2019, the appellant being an employee of Kagadi District Local Government as Principal Human Resource Officer, in abuse of the authority of his office, did an arbitrary act, prejudicial to the interests of his employer, by placing on the district pay roll 60 names, without following the requisite procedures for accessing the district pay roll. He was sentenced to 3 years imprisonment. - He appealed against conviction and sentence on the following 6 $[2]$ grounds:

'(1) The learned trial judge erred in law and fact when he failed to properly direct his mind on the application of the twin doctrines of 'reasonable doubt' and the 'benefit of doubt' on every issue raised in the defence thus arriving at a wrong decision of convicting the appellant thereby occasioning a miscarriage of justice.

(2) The learned trial judge erred in law and fact when he failed to properly weigh and evaluate evidence on record and ignored the grave contradictions, inconsistencies and discrepancies in the prosecution testimony / evidence thereby occasioning a miscaniage ofjustice'

(3) The leamed trial judge erred in law and fact when he failed to properly evaluate and weigh the evidence as a whole and isolated the defence case thus arriving at a wrong conclusion thereby occasioning a miscarriage of justice.

(4) The leamed trialjudge erred in law and fact when he convicted the appellant well aware that his role as a Principat Human Resource Officer was entering the names ofpersons on payroll issued appointment letters and submitted to him under the hand' sanction and directive of the Chief Administrative Officer's office thus reaching at <sup>a</sup>wrong decision thereby occasioning a miscarriage of justice.

(5) The leamed trial judge erred in law and fact when he wrongly admitted, relied on and based his decision on a biased Audit report sanctioned by the Chief Administrative Officer thereby occasioning a miscarriage ofjustice.

(6) The leamed trial judge erred in law and fact when he imposed an arbitrary, harsh and manifestly excessive prison sentence, and without an option for a fine against the appellant thereby occasioning a miscarriage ofjustice '

t3l The respondent opposed the appeal.

## Representation and Submissions of Counsel

- t4l At the hearing Mr Abbas Bukenya and Mr Faisal Barikurungi from Kabega, Bogezi and Bukenya Advocates appeared for the appellant while the respondent was represented by Ms Happiness Ainebyona, Chief State Attomey, in the Office of the Director of Public Prosecutions. - tsl counsel for the appellant in their written submissions combined grounds I and 3 together. It is contended for the appellant that it was the duty of the prosecution to prove the case against the appellant beyond reasonable doubt. They referred to article 28 (3) (a) ofthe Constitution that establishes presumption ofinnocence and section l0l (2) ofthe Evidence Act that establishes burden ofproof. In addition they referred to Walakira Abas & Anor v usanda 120041 UGSC 28 Ueanda v Oloya S/O Yovan <sup>119971</sup> HCB <sup>4</sup> Sawoabiri & Anor <sup>v</sup>Ueanda tI99I] UGSC

1; Uganda Revenue Authority v Stephen Mabosi [1996] UGSC 16; John Ndagire v The Editor, Monitor Publications Ltd Supreme Court Civil Appeal No. 5of 1994 (unreported); Zariwa v Noshir [1963] EA 239; Abdul Ngobi v Uganda Supreme Court Criminal Appeal No.10 of 1999 (unreported); and Walakira Abas & Others v Uganda [2004] UGSC 28 in support thereof.

- Counsel contended that in light of the evidence for both the prosecution $[6]$ and the defence it was clear that it was Balamezi, the Deputy Chief Administrative Officer who signed the appointment letters in question and the appellant only entered the names on the payroll given that the responsible officer had issued the appointment letters. These letters were verified by the Internal Auditor whose responsibility it was to verify the same. The responsibility should therefore lie with those officers rather than the appellant. The appellant had no role in the verification process. - The appellant had not done or directed to be done any arbitrary act. He $[7]$ ought to have been acquitted by the trial court for lack of sufficient evidence. - Turning to ground 2 it was submitted for the appellant that the learned [8] trial judge ignored a series of contradictions, inconsistencies and discrepancies in the testimony of prosecution witnesses which rendered their testimony as unworthy of belief. The learned trial judge erroneously found that it was the duty of the appellant to ensure that only persons appointed by a minute of the District Service Commission access the payroll. The duty of the appellant was simply that of a data entrant, who entered staff to the pay roll system, that had been verified by the Internal Auditor and approved by the Chief Administrative Officer. - Counsel submitted that the testimony of PW1, PW2, PW3 and PW4 did $[9]$ not corroborate each other and neither does it establish that it was the duty of the appellant to ensure that only persons appointed by a minute of the District Service Commission access the payroll. With regard to the testimony of PW1 he submitted that this evidence was not reliable or creditworthy as the witness claimed that the matters complained of were done in his absence. It was further contended that the evidence of PW2 corroborated the testimony of the appellant in so far as the process of staff accessing the payroll was concerned. He testified that the appellant would prepare a file that the internal auditor would verify and forward to

the Chief Administrative Officer for approval after which it would be returned to the appellant to enter the approved employee on the payroll.

- With regard to the evidence of PW3 counsel for the appellant submitted $[10]$ that it was contradicted by the testimony of PW2 with regard to the approval process. Secondly PW3 stated that the matters complained of were not done in his time. Those matters were committed after he had left. This testimony was therefore not useful to the prosecution's case. - Turning to the testimony of PW4 counsel for the appellant submitted $[11]$ that this evidence did not contain any iota of incrimination against the appellant on the charges brought against the appellant. - Counsel for the appellant referred to Obwalatum Francis v Uganda $[12]$ [2017] UGSC 81; Alfred Tajar v R EACA Criminal Appeal No. 167 of 1969 (unreported) and DPP v Oscar Leonard Pistorious Appeal No. 96 of $2015$ (unreported) in support of his submissions. - With regard to ground 4 counsel for the appellant submitted that on the $[13]$ evidence the role of the appellant in the process of employees accessing the payroll was that of a data entrant and once the internal auditor verified an employee and the Chief Administrative Officer sanctioned the entry of the name on the payroll the appellant was only fulfilling his duty as a data entrant in entering such employee's name on to the payroll. He was thus wrongly convicted for just carrying out his duty. - Under ground 5 the thrust of the complaint is that the learned trial judge $[14]$ relied upon an internal audit report that was biased against the appellant in so far as the author was an actor in the matters complained of. As internal auditor he had the responsibility to verify the files from the appellant and forward them to the Chief Administrative Officer for approval. In this matter he had therefore to transfer responsibility for the short comings upon the appellant and shift the blame away from himself. It was further contended that the special audit report contravened the appellant's mandatory rights under articles 28, 42 and 44 of the Constitution. He referred to Ojangole Patricia and 4 Others v Attorney General [2014] UGCCD 58 in support of his submissions. - In relation to ground 6 the appellant contended that the sentence $[15]$ imposed upon the appellant was harsh and manifestly excessive. In their submissions counsel contended that given the mitigating factors the appellant ought to have been given the option of payment of a fine in lieu of imprisonment. Counsel further referred to guideline no. 9 (5) of

the Sentencing Guidelines which provided that for a first offender in respect of a minor offence imprisonment was not desirable.

- He also referred to the Kiwalabye v Uganda Supremc Court Criminal $[16]$ Appeal No.143 of 2001 (unreported); Uganda v James Mulwana; [2018] UGHCCRD 32, and Lwamafa Jimmy and 2 others v Uganda Court of Appeal Criminal Appeal No. 357 of 2016 (unreported). - The respondent opposed the appeal and supported the judgment of the $[17]$ court below on both conviction and sentence. In reply to grounds 1 and 3 counsel for the respondent submitted this raised basically 2 issues. Firstly, whether or not the appellant did or directed to be done an arbitrary act. Secondly whether the trial judge failed to consider the defence of the appellant. - Counsel submitted that the issue in this case as distilled by the learned $[18]$ trial judge was who was the officer responsible for ensuring that whoever had an appointment letter had been duly appointed by the District Service Commission. The appellant contended that he did not participate in the appointment process. The trial judge considered this evidence together with the testimonies of PW1, PW2, PW3 and PW4 and concluded that it was the duty of the appellant to ensure that those that were appointed had been appointed by a minute of the District Service Committee. The appellant committed a dereliction of duty and had been rightly found to be responsible for the failure in this case. - Regarding ground 2 counsel for the respondent submitted that the $[19]$ testimonies of the 4 prosecution witnesses did not contradict each other in anyway. Neither was it full of inconsistencies as claimed. - In relation to ground 4 counsel for the respondent submitted that this $[20]$ was in substance what had been raised in ground 1 and 3 and he would rely on his submissions in relation to ground1 and 3 to answer this ground to avoid repetition. - In relation to ground 5 counsel for the respondent submitted that the $[21]$ claim that PW2 had a conflict of interest in the matter to be able to conduct a special audit did not bear water. PW2 did not have a private interest in the matter. None was put to him in cross examination and neither was the report shown to be biased. Secondly the learned trial judge did rely only on this report. He holistically considered all the evidence adduced in this case and rightly came to the conclusion that the appellant had committed an arbitrary act.

- Turning to the last ground in relation to sentence counsel for the $[22]$ respondent referred to Andrua and Anor v Uganda [2018] UGSC 28 and stated that the appellant had failed to show that the trial court acted on a wrong principle or did not take into account any matter it ought to have taken into account. He submitted that this ground had no merit. - Counsel prayed that this appeal should be dismissed for lack of merit. $[23]$

## Duty of a first appellate court

This being a first appeal, this court has a duty to re-evaluate all the $[24]$ evidence adduced at the trial and to make its own findings on all issues of law and fact, bearing in mind that we did not have the opportunity to observe the witnesses testify. We would not be able to determine their demeanour in assessing their credibility. See Rule 30 (1) Judicature (Court of Appeal Rules) Directions S. I 13-10 and Kifamunte Henry v Uganda [1998] UGSC 20.

## **Facts of this case**

- The uncontroverted facts of this case are that the District Service $[25]$ Commission of Kagadi District appointed 50 teachers who were brought into the service of the district. Another 60 men and women, not interviewed and not appointed to their jobs by the District Service Commission were issued letters of appointment, citing the said minute, 11 of 2019, and their names were entered on the District payroll. The letters of appointment for this second group of people were signed by Mr Balamezi, who had been jointly charged with the appellant and another person. Mr Balamezi pleaded guilty, was convicted and sentenced. He did not testify at the appellant's trial. - The appellant entered the names of the said 60 employees on the pay $[26]$ roll. They were in fact paid arrears dating back to the date of appointments on their letters of appointment. - Charged with the abuse of office by reason of doing an arbitrary act by $[27]$ entering the names of this second group of employees on the payroll the appellant responded in the court below that his duty was only that of a data entrant and that it was the responsibility of the Chief Administrative Officer and Internal Auditor to ensure that the persons who accessed the payroll had been properly appointed by the District Service Commission. He stated that he had no access to the minute appointing the employees in question. It was the Chief Administrative Officer that had this confidential information.

### **Analysis**

- The point in contention on this appeal is whether the act of the appellant $[28]$ in entering the said 60 employees on the payroll was an arbitrary act within the terms of section $11(1)$ of the Anti-Corruption Act. It is not in contention that the said 60 employees had not been appointed by the District Service Commission. However, they were given appointment letters that were signed by Mr Balamezi, the Deputy Chief Administrative Officer. Mr Balamezi pleaded guilty to the same charge of doing an arbitrary act contrary to section 11(1) of the Anti Corruption Act. However, he did not testify in these proceedings against the appellant. - The appellant's defence is that he entered the names relying the $[29]$ appointment letters issued by the Deputy Chief Administrative Officer, Mr Balamezi, and therefore he did not act in an arbitrary manner. His duty in this regard was only that of a data entrant. - From the evidence adduced in this case it is clear that for an employee $[30]$ of the district to access the payroll he or she must have been interviewed and appointed by the District Service Commission, which was the only legal authority for employing people. The District Service Commission minute would be passed on to the Chief Administrative Officer, who in turn would pass it on to the Head of Human Resource with instructions to prepare letters of appointment. The letters of appointment would be signed by the Chief Administrative Officer, or his deputy, if the Chief Administrative Officer had delegated that authority to him. - The first batch of 50 teachers was so appointed and PW3 the Chief $[31]$ Administrative Officer at the time, signed their letters of appointment, prepared by the Head of Human Resource, the appellant in this case. After the departure of PW3, he was replaced by PW1, who delegated this function to Mr Balamezi. Mr Balamezi signed the appointment letters of the new group of 60 employees, 53 of whom were teachers. The letters cited minute 11 of 2019 under which they were purportedly employed by the District Service Commission. This was false. - It was the duty of the Head, Human Resource, the appellant in this case $[32]$ to open files for these employees, accept acceptance letters, and forward the employees to the relevant office for deployment. Once deployed by the relevant department, and the employees reported for duty, the appellant would be notified that they had commenced duty including the

date of commencement, by the relevant officer. The appellant would then update the employee's file, forward it to the Internal Auditor, who would verify that all the correct steps had been completed and he would forward the file to the Chief Administrative Officer for approval for that person to access the payroll. Once the Chief Administrative Officer approved, the file would be returned to the Head, Human Resource, and the person's name would be entered on the payroll by the appellant, and the Chief Administrative Officer, would also approve on the electronic system.

- From the testimony of PW1 and PW3, we can conclude that entry on the $[33]$ payroll had a 3-tier control system. The first level was by the Head, Human Resource. He was responsible for the documentation and files for each employee once the District Service Commission made the appointment. Though it is the Chief Administrative Officer who received the minute of the District Service Commission he passed on this minute to the responsible officer, in this case, Head, Human Resource to commence the process. After the employee had reported for duty, the Head Human Resource, began the process for getting the employee onto the payroll. The Head, Human Resource prepares a file, which he forwards to the second tier, the Internal Auditor. The Internal Auditor is supposed to verify the information and if found correct and adequate, he would forward it to the Chief Administrative Officer for final approval. The Chief Administrative Officer formed the third and last tier of control. - In the instant case no level of control worked. The Deputy Chief $[34]$ Administrative Officer assigned responsibility to handle employment pleaded guilty to the offence of abuse of office contrary to section $11(1)$ of the Anti-Corruption Act, in respect of the matter at hand. PW2, the Internal Auditor, failed likewise to provide a check, when the files came through him for verification. A check against the details of the minute quoted in the appointment letter would have shown that the batch of employees were not appointed under the minute that purported to appoint them. This check is something that both the Head, Human Resource, and the Internal Auditor could and ought to have done by virtue of the responsibility assigned to their offices. In any case the said officers must have been aware of the first batch of 50 teachers who were recruited under the minute in question and had been processed. Quoting the same minute for a separate batch of 60 new employees should have been easily noticed by a conscious officer.

- We note the defence of the appellant that he only looked at the $[35]$ appointment letters signed by Mr Balamezi and acted on those letters without inquiring about the minute. He claimed that he was only a data entrant in the process. We reject this defence. He was the head of human resource and not a mere data entry clerk. In any case having processed the first batch of properly recruited teachers under minute 11 of 2019, he was aware of the 50 persons appointed under that minute. Processing entry on the payroll for another set of employees under the same minute was indeed an arbitrary act for which he was rightly found guilty of the offence under section 11(1) of the Anti-Corruption Act. - We are therefore constrained to reject grounds 1, 2, 3, and 4 of appeal as $[36]$ lacking merit. - In relation to ground 5 we wish to state that it is not necessary to rely on $[37]$ the reports made by PW2 to find the appellant guilty as charged. PW2 should probably have been in the same dock as the appellant for failing to do his work in this particular instance. The appellant admits in his testimony on oath that he entered the names of these 60 employees on to the pay roll without checking on the minute that appointed them. The appellant claims that it was not his duty to verify the appointment letters against the minute in question. We disagree. PW1 and PW3 contended that it was his duty to do so. We believe them. The appellant was not a clerk. He was the head of the human resource section of the district. He bears responsibility for omitting, or failing to verify that the appointment letters in question had a correct minute backing them. - In the result we reject the appeal against conviction. $[38]$

## The appeal against sentence

The law with regard to when an appellate court may interfere with a $[39]$ sentence of the trial court is well settled. Ordinarily an appellate court will not interfere with a sentence of the trial court, unless the trial court acted on some wrong principle, overlooked a material fact, or the sentence was manifestly harsh and excessive in the circumstances of the case. See Livingstone Kakooza v Uganda [1994] UGSC 17; Bernard Kiwalabye v Uganda SC Criminal Appeal No. 143 of 2001 (unreported); and Kyalimpa Edward v Uganda [2003] UGCA 8.

- The appellant was not charged with a minor offence or misdemeanour. It $[40]$ is a felony punishable with a sentence of imprisonment up to 7 years. He was sentenced to serve 3 years. It is not suggested that the learned trial judge ignored some factor he ought to have taken into account or took some matters into account when he ought not to have taken them into account. We find nothing that suggests that a sentence of 3 years' imprisonment is harsh or manifestly excessive. - We reject the appeal against sentence. $[41]$

## **Decision**

This appeal is dismissed. $[42]$

Dated, signed, and delivered at Kampala this 27 day of

September 2024

Fredrick Egonda-Ntende

**Justice of Appeal**

Barishaki Cheborion

**Justice of Appeal**

Dr Asa Mugenyi

**Justice of Appeal**