Wanyaka v Uganda (Miscellaneous Application 18 of 2020) [2021] UGSC 62 (4 October 2021)

### THE REPUBLIC OF UGANDA

$\epsilon \geq 1 - \epsilon$

## IN THE SUPREME COURT OF UGANDA AT KAMPLA

#### MISC. APPLICATION NO. 18 OF 2020

### (ARISING OUT OF CRIMINAL APPEAL NO.75 OF 2018)

CORAM: OWINY DOLLO, CJ, ARACH AMOKO, MWONDHA, MUHANGUZI, **CHIBITA J. ISC.**

WANYAKA SAMUEL HUXLEY....................................

**VERSUS**

**UGANDA** $\textbf{(IGG)}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\textbf{.}\$

#### **RULING OF COURT**

This Application was brought under Section 16 of the Judicature Act and Rule 2(2) of the Judicature (Supreme Court) Rules SI 13-11. It was seeking orders that:

- (i) The Notice of Appeal referred to as criminal Appeal No. 75 of 2019, Uganda (IGG) Versus Wanyaka Samuel Huxley be struck out. - (ii) That the intended appeal against the applicant be dismissed.

The application was supported by an affidavit deponed by the applicant (the intended respondent) which contained the grounds of the application. Briefly, the grounds are as follows:

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- $i.$ That the respondent has not filed any appeal in this court by way of filing a memorandum of appeal - That the respondent has not taken any further steps to pursue the ii. intended Appeal. - iii. That the respondent filed a notice of appeal to delay and deny justice to the applicant and to abuse court process. - That it is in the interest of justice that the application is allowed. iv.

The respondent filed an affidavit deponed by Philip Munaba and stated as follows inter alia:

- i. That he was of sound mind, adult and a lawyer attached to the prosecution unit in the Directorate of legal affairs of the IGG, the respondent herein. - ii. That the applicant was first prosecuted by the Inspectorate of Government before the High Court at Kampala in Criminal Case No.

024 of 2014 with the offence of embezzlement contrary to section 19, abuse of office contrary to section $11(1)$ & (2) and false accounting by a public official contrary to section 22 of the Anti-Corruption Act, 2009

- iii. That the applicant was convicted on all counts and ordered to refund shs. $822,965,000/$ = to the government of Uganda and in addition to not hold any public office for a period of ten years. - That being dissatisfied with the decision of the High Court, the iv. appellant appealed to the Court of Appeal in Criminal Appeal No. 281 of 2015 against both conviction and sentence - That on the 31<sup>st</sup> October 2019, the Court of Appeal overturned the $\mathbf{v}$ . judgment of the High Court, quashed the conviction on all counts and set aside the sentences. - The respondent was dissatisfied by the decision of the Court of vi. Appeal, the respondent herein filed a Notice of Appeal on the 13<sup>th</sup> November 2019, notifying the Registrar of its intention to appeal against the whole decision and also requesting for a typed record of proceedings to be availed to enable it to formulate the most appropriate grounds of appeal. - That the said Notice of Appeal was registered as Supreme Court vii. Appeal No. 9 of 2019 pending disposal. - That this Application is not only misconceived but it is also frivolous viii. and in bad faith. - ix. That he was aware that the time within which to file a memorandum of appeal starts to run after the Registrar has duly served an appellant with the typed record of proceedings from the lower courts. - That the applicant has not attached any proof that the respondent X. was duly served with a typed record of proceedings of the lower court and has neglected or failed to file a memorandum of appeal within the stipulated time. - \*R That it will not be prejudicial to the interests of the respondent if this xi. application is granted.

## Representation

At the hearing, the applicant was present and represented by Sebugwawo Andrew. The respondent and counsel were absent.

### **Submissions**

Counsel for the applicant filed written submissions. He argued that on 13<sup>th</sup> November 2019, the respondent lodged a Notice of Appeal in this Court against the acquittal of the applicant. The applicant lodged this Application seeking to strike out the Notice of Appeal. The reasons were that:

1) The respondent has not filed any appeal in this Court in that there is no memorandum of appeal filed in this court.

2) The respondent has not to date taken any further step to pursue the intended appeal.

He submitted on ground (1) that according to section 28(2) (b), (3) & (4) of the Criminal Procedure Act, Cap 116 and Rules 62(1) and 62(2) of the Judicature (Supreme Court Rules) Directions, the appellant has to file within 14 days after service on him or her of the record of appeal, lodge a memorandum of appeal with the Registrar and shall also among others give the grounds of objection to the decision appealed against. He added that according to the facts, the notice of appeal was lodged one year and weeks back and up to now, the respondent has not filed a memorandum of appeal and neither has he made an application for extension of time for the same in this court. He relied on the case of **Uganda Vs Ntambi Vincent Criminal** Application No. o8 of 2019, where this court dismissed an application for extension of time to file a Notice of Appeal brought after eight (8) months by the DPP since it had taken too long.

Another case counsel relied on was Kasibante Moses Vs Electoral Commission Electoral Petition Appeal No. 7 of 2012, where the Court of Appeal struck out the Notice of Appeal because the memorandum of appeal had been filed one day out of time.

He submitted that there was no appeal since the memorandum of appeal was never filed at all in this Court and the Notice of Appeal was therefore rendered useless. It should be struck out.

On the second ground, counsel for the Applicant submitted that the respondent had failed to take further active steps to pursue the intended appeal. He submitted that the respondent never served the Notice of Appeal to the applicant or his lawyers. He argued that according to Section 28 (2) (b) (3) and (4) of the Criminal Procedure Act Cap 116 and Rule 62(1) of this $\mathbb{R}$ Court's Rules, the respondent has to file a memorandum of appeal but was not filed by the respondent. He further submitted that under Rule 58(2) of this Court Rules, the respondent shall issue a notice of the date of hearing to the respondent. He cited the case of Nalukenge Vs Uganda (Criminal Appeal No.67 of 2008 (2014) CA 27 where Court stated that the duty to prosecute an appeal lies squarely on the appellant's shoulders and not on that of his or her advocates. Section 44 of the Criminal Procedure Act provides among others for the appellate court to dismiss an appeal for want of prosecution and the appellate court still may dismiss an appeal if the appellant fails to take any necessary step in prosecuting his or her appeal within the time allowed and has not made an application for extension of time to file a memorandum of appeal as provided in Rule 5 of this Court's Rules. Counsel prayed that the notice of appeal be struck out and the intended appeal dismissed.

Counsel for the respondent filed submissions which were not signed. This court cannot rely on such a document which is not authentic. We take it that there were no submissions and consider only the affidavit evidence in reply to the application.

We hasten to add that the averment in the affidavit in reply like in paragraph 11 fell short of demonstrating how this application was misconceived, frivolous or made in bad faith because of lack of submissions.

The averment in paragraph 13 to the effect that the respondent was aware that the time within which to file a memorandum of appeal starts to run after the Registrar has duly served an appellant with the typed record of proceedings of the lower courts among others.

In paragraph, the respondent deponent stated that it will be prejudicial to its interests if this application is granted.

## **Consideration of the Application**

In this Application, there are two issues to be resolved for its determination:

- 1) Whether the applicant filed a memorandum of appeal in this Court - 2) Whether the respondent has not taken active steps to persue the appeal

### **Resolution of Issue one:**

According to the affidavit deponed by the applicant in support of the application and the reply thereto in the affidavit of Phillip Mawanda of the Inspectorate of Government (respondent), it was not in dispute that the respondent having been dissatisfied by the decision of the Court of Appeal filed a Notice of Appeal on the 13<sup>th</sup> November 2019 notifying the Registrar of its intentions to appeal against the whole decision and requested for the typed record of proceedings to facilitate it to formulate the appropriate grounds of appeal. The affidavit of the applicant state that the respondent has never served him or his lawyer M/s Nakagga & Co. Advocates with a Notice of Appeal.

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The applicant further stated in the affidavit in support that he was advised by his lawyers Ms Nakagga & Co. Advocates that the Notice of Appeal does not constitute any appeal in law.

It is very clear from the affidavit in reply by the respondent that, "he was aware that the time within which to file a memorandum of appeal starts to run after the Registrar has duly served an appellant with the typed record of proceedings from the lower court."

S.28(1) of the Criminal Procedure Act provides:

Every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behalf and shall be lodged with the Registrar within fourteen days of the date of judgment or order which the appeal is preferred.

I have emphasized the words "commenced by a notice". It means that the notice is the start of the appeal process. In Supreme Court Criminal Application No. 08 of 2019 Uganda Vs Ntambi Vincent, Mwangusya JSC stated interalia that the filing of a Notice of Appeal is the first step an intending appellant must do in the process of appealing. We agree with the above.

Rule 61 of the Rules of this Court provides for service and transmission of record of appeal

# (1) As soon as the record of appeal has been prepared, the Registrar of the Court shall cause a copy of it to be served on the appellant and a copy on the respondent..."

The words "shall cause a copy to be served on the appellant is not the same thing as "duly serve" as was stated. The Registrar has to ensure that the record is available and accessible in our view for first collection by the appellant.

Since there are two phrases; "cause a copy of it to be served on the appellant", and "service on him" both cannot be construed literally but read together to get the intention of the legislature. There is specific time period to lodge a memorandum of appeal with the Registrar. This calls for vigilance, diligence on the part of the appellant. See Rule 62(1) of this Court's Rules.

From the respondent's own assertions in the affidavit, it is apparent that the respondent has never lodged a memorandum of appeal. The Notice of Appeal cannot be substituted for memorandum of appeal. Again Rule 62(2) provides for the contents of the memorandum of appeal which are different from the contents of the Notice of Appeal.

$\mathcal{R}$

It is also apparent, that since 13<sup>th</sup> November 2019, the respondent had never lodged a memorandum of appeal. In the result, the first issue is resolved in the negative.

## **Resolution of Issue two**

Whether the respondent has not taken any active steps to persue the appeal. According to the affidavit in reply, it is very clear from the following that since the Notice notifying the Registrar of the intention to appeal, the respondent institution and its officers just sat to wait for the Registrar to look for them and serve them with the typed record of proceedings. The findings in Issue 1 would dispose of this second issue but for completion, we would discuss it.

It is amazing that the affidavit in reply criticised the applicant that he had not attached proof that the respondent was duly served with the typed record of proceedings. We are of the view that the respondent ought to have attached evidence to show court that they had taken active steps to pursue the appeal but they did not. This could have offset the resolution of Issue 1.

Mere averment that they were not served without demonstrating the steps taken to get the record of proceedings to facilitate filing the memorandum of appeal could not salvage the situation. In the case of Nalukenge Vs Uganda (supra) relied on by the counsel for the applicant, the Court of Appeal citing S.44 of the Criminal Procedure Act which provides that "the appellate court may dismiss the appeal if the appellant fails to take any necessary steps in prosecuting his or her appeal within the time allowed and has not made an application for extension of time.

The above provision shows that a notice of appeal in itself is not an appeal but the 1<sup>st</sup> step to prepare an appeal as already discussed earlier in this Ruling. Also, Rule 58 (2) governs Notice of Appeal in acquittals. It provides interalia:

If the DPP (in this case IGG) gives notice of appeal in writing within fourteen days after the decision, the Director (IGG) shall notify Court of the address of the accused person for service by the Registrar of the notice of appeal upon the accused person, and notice of the date of hearing which notice shall be substantially in the form prescribed in **respect of appeals against conviction.** (emphasis added)

Because of the dilatory conduct of the respondent, Rule 58(2) was not complied with. It is evident that the respondent failed completely to take any active steps to prosecute the appeal and yet the appeal was arising from an acquittal, so also the second issue is resolved in the negative. The respondent is guilty of dilatory conduct.

In the result, since both issues have been resolved in the negative, we accordingly grant the Application and order that the Notice of Appeal be struck out.

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day of $C$ lohe Dated at Kampala this 2021.

Justice Owiny Dollo

**CHIEF JUSTICE**

Justice Arach-Amoko JUSTICE OF THE SUPREME COURT

istre 4th

Thuenano

Justice Mwondha JUSTICE OF THE SUPREME COURT

Justice Muhanguzi JUSTICE OF THE SUPREME COURT

like Pelate

Justice Chibita JUSTICE OF THE SUPREME COURT

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Delivered by the Registran 4 km<br>Oct 2021 Poortifin