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Lutoti v Uganda (criminal Appeal 765 2014)

Court of Appeal · [2020] UGCA 2171 · 2020 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from High Court conviction (which reversed an acquittal by the trial Magistrate's Court)
Decision
Convictions quashed, sentences set aside, fines refunded and prosecution permanently stayed

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Holding

The Court of Appeal quashed the appellant's convictions under the National Drug Policy and Authority Act. It held that count 2 (supplying restricted drugs without a certificate) was not proved because no actual supply was established. More significantly, the court found that the prosecution, founded on the National Drug Authority's own unexplained failure to issue a licence after Ambition Pharmacy had paid all fees and met every requirement, was both oppressive and an abuse of the process of the court, violating the appellant's right to a fair hearing under article 28(1) of the Constitution. The court ordered a permanent stay of prosecution and a refund of fines paid.

Facts

The appellant and Mwigo John Banobere, both registered pharmacists, were directors of Ambition Pharmacy Ltd in Mbale. On 12 April 2010 the company applied to the National Drug Authority for a licence to operate a pharmacy. PW1, the National Drug Authority inspector for the Eastern Region, advised that the application was successful and that fees should be paid. The fees were paid and a receipt issued on 14 April 2010. The Authority did not, however, issue the printed licence. On 18 May 2010, about five weeks later, police and National Drug Authority officials inspected the premises, found a nurse but no displayed licence, and impounded all the drugs on the basis that the pharmacy was operating while unlicensed and possessed classified drugs without a certificate. The appellant and others were charged with four offences. The trial court acquitted them; the High Court on appeal reversed the acquittal and convicted, imposing fines. The appellant appealed to the Court of Appeal.

Issues

  1. Whether a registered pharmacist in private practice is required to have a licence before possessing and supplying restricted drugs under the National Drug Policy and Authority Act.
  2. Whether the prosecution proved the offence of supplying restricted drugs without a general or limited certificate.
  3. Whether Ambition Pharmacy Ltd had been issued a licence by the National Drug Authority.
  4. Whether the prosecution, arising from the National Drug Authority's failure to issue a licence after the applicant met all requirements, was an abuse of the process of the court and a violation of the appellant's right to a fair hearing.

Orders

  • Convictions of the appellant and his co-accused on all charges quashed.
  • Sentences imposed by the High Court set aside.
  • Refund to the appellant and co-accused of any fines paid on account of the convictions and sentences.
  • Stay of prosecution of the appellants against the charges originally brought ordered.

Key headnotes

Statutory Interpretation — Subsidiary Legislation Cannot Vary the Parent Act
A regulation, being subsidiary legislation, cannot vary the provisions of the main Act; the exemption under Regulation 16 SI 206-1 permitting registered pharmacists to possess and supply narcotics without licence cannot override the offence in section 16 of the National Drug Policy and Authority Act of carrying on the business of supplying restricted drugs without a certificate.
Statutory Interpretation — National Drug Policy and Authority Act — Scope of Pharmacist Exemption
The exemption in Regulation 16 SI 206-1 authorising 'any registered pharmacist' to possess and supply drugs applies to all registered pharmacists without distinction between those in public service and those in private practice; courts may not read into the provision an exclusion of pharmacists in private practice.
Criminal Law & Procedure — Proof of Offence — Supplying Restricted Drugs Without Certificate
The offence under section 16 of the National Drug Policy and Authority Act requires proof of actual supply of restricted drugs to a person; merely stocking restricted drugs in preparation to start business, without evidence of any supply, does not establish the offence.
Administrative Law — Statutory Discretion — Duty to Issue Licence Within Reasonable Time
A statutory authority's discretion to grant licences must be exercised lawfully and reasonably and does not permit arbitrary action; where an applicant has met all prerequisites and paid the prescribed fees, the authority is obliged to issue or reject the licence in a timely manner.
Criminal Law & Procedure — Abuse of Process — Inherent Power to Stay Prosecution
Courts have an inherent power to prevent abuse of their process, including the power to stay a prosecution that is oppressive, vexatious, or commenced for an improper purpose; a prosecution founded on the complainant authority's own failure to perform a statutory duty constitutes such an abuse.
Human Rights — Right to a Fair Hearing — Article 28(1) Constitution
Where it is unfair in the circumstances to commence a charge against a person, the prosecution violates the right to a fair hearing under article 28(1) of the Constitution; prosecuting a pharmacy operator for lack of a licence that the regulator itself failed to issue despite full compliance breaches that right.

Legislation cited (16)

  • National Drug Policy and Authority Act Cap 206 s.14(1)
  • National Drug Policy and Authority Act Cap 206 s.14(3)
  • National Drug Policy and Authority Act Cap 206 s.16(1)
  • National Drug Policy and Authority Act Cap 206 s.27(2)
  • National Drug Policy and Authority Act Cap 206 s.47(1)
  • National Drug Policy and Authority Act Cap 206 s.60
  • National Drug Policy and Authority Regulations SI 206-1 Regulation 16
  • National Drug Policy and Authority (Issuance of Licences) Regulations SI 206-3 Regulations 3 and 7
  • National Drug Policy and Authority (Licensing) Regulations 35 of 2014 Rule 11
  • Constitution of Uganda 1995 article 28(1)
  • Constitution of Uganda 1995 article 40(2)
  • Evidence Act s.57
  • Judicature Act s.10
  • Criminal Procedure Code Act Cap 116 s.45(1)
  • Judicature (Court of Appeal Rules) Directions Rule 32(2)
  • Judicature (Court of Appeal Rules) Directions Rule 66(1)

Cases cited (6)

  • [2018] UGSC 4
  • [1998] UGSC 20
  • Connelly v DPP [1964] AC 1254
  • Mills v Cooper [1967] OB 459
  • Hunter v Chief Constable of the West Midlands Police, [1982] AC 529
  • R v Derby Crown Court ex parte Brooks, [1985] 80 Cr App R 164
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.