Nkcosolwana Funiwe v Uganda (Criminal Appeal No. 390 of 2017) [2022] UGCA 56 (1 March 2022)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT **KAMPALA**

CRIMINAL APPEAL NO. 390 OF 2017 **CORAM:**

Hon. Lady Justice Elizabeth Musoke, JA Hon. Lady Justice Catherine Bamugemereire, JA Hon. Mr. Justice Stephen Musota, JA

#### ABIGAIL NKCOSOLWANA FUNIWE ::::: APPELLANT $10$ **VERSUS**

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

(Appeal against the decision of the High Court of 15 Kampala before Hon: Justice Yasin Nyanzi in High Court Criminal Appeal No. 381 of 2017 delivered on 2<sup>nd</sup> October 2017. (Arising out of Criminal Case No.0743of16 **Chief Magistrates Court of Entebbe)**

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# JUDGMENT OF THE COURT Background

The facts of the case as ascertained from the lower court record are that on the $21^{st}$ day of November 2016, the 25 appellant was intercepted at the departures lounge of Entebbe International Airport and when searched she was found in unlawful possession of Narcotic drugs to wit 0.8 Kgs of Cocaine locally valued at UGX 221,520,000/ $=$ .

- The appellant was convicted on her own plea of guilty and 30 was sentenced by the Chief magistrate to a fine of UGX $150,000,000/$ = or in the alternative she was to serve10 years imprisonment in default. Dissatisfied with the magistrate's decision, she appealed to the High Court, which set aside the fine and sentenced her to a term of 10 years' 35 - imprisonment without the option of a fine.

The appellant being dissatisfied with the orders of the High court appealed to this honourable court against sentence only.

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# Ground of Appeal

1. That the learned trial fudge erred in law and fact by impoeing a manifeetly hareh sentence on the appellant.

#### Representation

At the hearing of the appeal, the appellant was represented by Ms Sarah Awelo from Nansubuga & Awelo Co. Advocates while the respondent was represented by Learned Chief State Attorney Ms. Anne Kabajjungu from the office of the Director of Public Prosecutions.

## Apprllant'r 9ubmlrrlonr

- Counsel for the appellant submitted that the sentence of 10 years was manifestly harsh. She further submitted that the Appellant pleaded guilty ancl did not waste court's time. She relied on the case of |ohnson Abaasa v Uganda Court of Appeal Criminal Appeal No. 33 2010 to submit that this court will only interfere with a sentence imposed by a trial 20 - court in a situation where the sentence is illegal or founded on a wrong principle of the law. Counsel invited this court to review the sentence because the sentence for the offence of trafficking in narcotic drugs is predicatecl upon the value of the clrugs. 25

#### Respondent's Submissions

Counsel for the respondent submitted that the law prescribing the offence provides for a term of imprisonment not less than 10 years and not more than 25

- 5 years. She contended that the learned 1't Appellate Court Judge sentenced the appellant to the bare minimum since the maximum sentence is 25years. Her submission was that both the aggravating and mitigating factors were taken into account and prayed that the sentence be upheld, and - 10 the appeal dismissed. She relied on the case of Alex Niuguna Kimani v R Criminal Appeal No. 65 of 2012 to propose that the punishment for drug trafficking is predicated upon the value of the drugs.

### Consideration of the Appeal

- 15 This is a second appeal and it's only against sentence. S. '1.32 (1) (b) of the Trial on Indictments Act, cap 23 provides that (1) Subject to this section- (h) nn accused persorl mny, tpitlr leate of tfu Court of Appenl, nppenl to tlrc Cottrt of Appenl ngainst tlrc sentence nlone imposed by tlrc High Court, other tlmn - 20 <sup>a</sup>sentence fted by lmu.

This case originally emanated from the Chief Magistrates Court of Entebbe and was appealed to the High Court at Kampala as the 1st Appellate Court. The Appellant pleaded guilty to the offence of Possession of Narcotic Drugs

25 contrary to section 4(1) and 2(a) of the Narcotic Drugs arrd Psychotropic Substances (Control) Act 2015.

The role of the second appellate court was explained by the Supreme Court in the case of Henry Kifamunte v Uganda Criminal Appeal No.10 of 97 where court stated tha| " On second appenl, the Court of Appeal is precluded frotn

5 questioning the fndings of fnct of the triol court, prottitled tlmt tlrcre uras et idence to support those findings, thottgh it may thirtk it possible or eaen probable that it toould not haue itself cone to tlrc snnre conclusion; it can only interfere ulrcre it considers thnt tlrcre rtns no ettidencc to strpport tlu fnding of fnct, this haing <sup>n</sup> 10 question of lmu."

" Either party to nn nppeal front a magistrate's court nmy nppenl agninst the decision of the High Court in its appellate

15 jurisdiction to tlrc Court of Appeal on a nmtter of laru, not irtchtdirrg saueritv of sentartce, ltrrt rrot on a mottar of fnct or of rtired fact atul Imp.

In Tigo Stephen v Uganda Supreme Court Criminal Appeal No.08 of 2009, it was stated that on a seconcl

- appeal, the appellant has a right of appeal only against the lesalitv of the sentence, not its severity. (Emphasis is mine) It is settled law that an appellate Court can only interfere with a sentence imposed by a trial Court where the sentence is either illegal, is founded upon a wrong 20 - principle of the law, or Court has failed to consic-ler <sup>a</sup> material factor, or is harsh and manifestly excessive in the circumstances. (see |ames v R (1950) 18 E. A. C. A 147; Ogalo L:'

Further, Section 45 (1) of the Criminal Procedure Code Act, Cap 116 provides that;

s/o Owoura v R. (1954) 24 E. A. C. A 270; Kizito Senkula v Uganda, SCCAppeal No. 24 of 200'1,; Bashir Ssali v Uganda, SCCA No. 40 of 2003, ancl Ninsiima Gilbert v Uganda, C. A. Criminal Appeal No. 180 of 20'10).

- 5 By way of providing context, the appellant contests being sentenced to 10 years imprisonment for possession of <sup>a</sup> narcotic drug. This sentence of 10 years is not necessarily discretionary since it is written into the law as the minimum sentence for the offence under s. 4 for Possession - 10 under the Narcotic Drugs and Psychotropic Substances (Control) Act 2015.

The Iaw on possession of narcotic drugs and psychotropic substances stipulates as follows:

4. Penalty for possession and psychotropic substances

15 (1) ... Any person who has in his or her possession any narcotic drug or psychotropic substance commits an offence.

(2) Any person who commits an offence under subsection (1) is tiable on conviction

- <sup>20</sup> (a) In respect of a narcotic drug listed in the Second Schedule to a fine of not less than five hundred currency <sup>P</sup>oints or three times the market value of the drug, whichever is greater; or to imprisonment of not less than ten years but not exceedins twenty five years, or both - <sup>25</sup> A close look at s.4 1r; and (2) (a) reveals that the offence attracts both a fine or in default thereof, a minimum custodial sentence of 10 years imprisonment. However,

while the sentence of 10 years imprisonment on the face of it appears to be larvful, the principles of law such as how, it is appliect to a first offender in lieu of a fine become imperative.

- 5 In view of the above law we took a granular look at the record of the lower courts and found that the learned Chief Magistrate sentenced the Appellant to a fine of UGX 150,000,000, Uganda Shillings One Hundred Fifty Million. On appeal to the High Court the learned 1.t Appellate - Court Judge found, and rightly so in our view, that the learned Chief Magistrate had no basis of sentencing the Appellant to a fine of that magnitude since the value of the drugs she was found in possession of was not ascertained as under s.91 of the Narcotics Drugs and Psychotropic Substances Control Act 2015. For purposes of clarity the section stipulates as follows: 10 15

### 91. Valuation of goods for penalty

(1) Where in any prosecution under this Act a fine is to be determined by the market value of the narcotic drug, psychotropic substance or prohibited plant, a certificate of the market value of the narcotic drug, psychotropic substance or prohibited plant, signecl by a proper officer, shall be accepted by the court as primn fncie evidence of the value of the narcotic drug, psychotropic substance or prohibited plant. 20 25

(2) In this section'/proper officer" means an officer authorised by the Minister, by notice published in the Cazette, for the purposes of this section.

We do agree with both counsel that in line with s.91 (1) of 5 the Act, a sentence of a fine for an offence of possession under s.4 is predicated upon the value of the drugs found. The section can be interpretecl to state that when the market value of the narcotic drug has been ascertained hy a proper officer, whose office appears in the Uganda Gazette,

10 a certificate of the market value can then be presented to the court. A market value cannot be a matter of guesswork, intuition or premonition. It must be scientifically arrived and fully certified by a specified officer.

The 1.t Appellate Judge was correct in setting aside the

- 15 sentence passed by the learned Chief Magistrate for lack of a valuation certificate. However, in sentencing the Appellant to 10 years' imprisonment he failed in his role. While the law provides this sentence as an alternative to the fine, the option of a fine should have been exercised. - 20 The ten years' sentence is in default of a fine especially where the appellant is a first offender. We find that the I't Appellate court dicl not correctly apply the law under s.4 (2) (a). We therefore set aside the sentence of 10 years' imprisonment and will proceed under s.11 of the - 25 Judicature Act to pass a fresh sentence.

S. 11 of the Judicature Act, Cap 13 provides that;

"For tlrc purpose of luning and determining an appeal, tlrc Court of Appeal slwll lmtte all the potpers, authoity and jurisdiction oested under any uritten lmo in the court fronr the

exercise of the oiginal jurisdiction of which the appeal oiginnlly emnnated."

The law under s. 4 (z) (a) provides for a fine of not less than five hundred (500) currency points or three times the market value of the drug, whichever is greater.

Since, in this case, the value of drugs was not ascertained, this court will rely on the sentence as provided for under the First schedule of the Act. The first schedule provides that a currency point is equivalent to twenty thousand shillings. This offence attracts a sentence of 500 currency points. A currency point weighs UGX 20,000. 10

We hereby sentence the Appellant to a fine of UGX 10,000,000. Uganda Shillings Ten Million in default of which she will serve a sentence of 10 years' imprisonment.

### rF/ 20 Dated at Kampala this day of <sup>2022</sup> f\^"^

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# ELIZABETH MUSOKE IUSTICE OF APPEAL


#### **CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL** $10$

$15$

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$20$ Involum.

**STEPHEN MUSOTA** JUSTICE OF APPEAL

$25$