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Lutoti v Uganda (criminal Appeal 765 2014)

Court of Appeal · [2020] UGCA 2172 · 2020 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from High Court conviction on appeal (the High Court having reversed an acquittal by the trial court)
Decision
Convictions and sentences set aside; fines to be refunded; prosecution stayed

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Holding

On a second criminal appeal, the Court of Appeal quashed convictions under the National Drug Policy and Authority Act. It held the offence of supplying restricted drugs under section 16 was not proved as no supply to any person was established. While operating without a licence was technically an offence under section 14, the National Drug Authority had accepted the appellant's application and licence fees but failed, without explanation, to issue the licence. The Court held that prosecuting the appellant in these circumstances was both an abuse of the court's process and a violation of the right to a fair hearing under article 28(1) of the Constitution. All convictions and sentences were set aside and prosecution stayed.

Facts

The appellant and a co-director, both registered pharmacists, ran 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 regional drug inspector, advised that the application was successful and that licence fees should be paid. The fees were paid and a receipt issued on 14 April 2010, but the Authority never printed or issued the licence. On 18 May 2010, police and National Drug Authority officers inspected the premises, found a nurse, and, finding no displayed licence, impounded all drugs on the ground that the pharmacy was operating unlicensed and held classified drugs without a special certificate. The appellant and others were charged with four offences under the National Drug Policy and Authority Act. The trial court acquitted them; the High Court reversed and convicted on all counts. No evidence established any actual supply of restricted drugs to any person.

Issues

  1. Whether a registered pharmacist in private practice requires a licence before possessing and supplying restricted drugs under the National Drug Policy and Authority Act.
  2. Whether the offence of supplying restricted drugs without a licence under section 16 was proved against the appellant.
  3. Whether Ambition Pharmacy had been issued a licence by the National Drug Authority.
  4. Whether prosecuting the appellant where the National Drug Authority had failed to issue a licence despite payment of fees amounted to an abuse of court process and a violation of the right to a fair hearing.

Orders

  • Ground 1 allowed; conviction on count 2 quashed and sentence set aside.
  • Ground 2 of the appeal allowed.
  • Convictions of the appellant and his co-accused by the High Court 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 on the charges originally brought.

Key headnotes

Subsidiary Legislation — Cannot Vary Provisions of Principal Act
Subsidiary legislation cannot vary the provisions of its parent Act; regulation 16 of the National Drug Policy and Authority Regulations, which authorises registered pharmacists to possess and supply drugs without a licence, cannot override the principal Act's prohibition on carrying on the business of supplying restricted drugs without a general or limited certificate.
National Drug Policy and Authority Act — Regulation 16 Applies to All Registered Pharmacists
The exemption in regulation 16 authorising registered pharmacists to possess and supply narcotics and psychotropic substances applies to all registered pharmacists without distinction, and cannot be read as limited to those in public service or employment to the exclusion of those in private practice.
Drugs Offences — Supply of Restricted Drugs — Proof of Actual Supply Required
To prove the offence of supplying restricted drugs without a licence under section 16 of the National Drug Policy and Authority Act, the prosecution must establish actual supply of restricted drugs to a person; mere stocking of drugs in preparation to commence business does not constitute the offence.
Discretionary Powers — Duty to Act Lawfully and Within Reasonable Time
Although the National Drug Authority has discretion to grant licences, that discretion must be exercised lawfully and reasonably and does not permit arbitrary action; where an applicant has met all prerequisites and paid the licence fees, the Authority is obliged to issue the licence within a reasonable time.
Abuse of Process — Inherent Jurisdiction to Stay Oppressive Prosecution
Courts possess an inherent power to prevent abuse of their process; where a prosecuting complainant takes unfair advantage of its own default to prosecute, the court may stay the prosecution, dismiss the charges and discharge the accused.
Right to Fair Hearing — Article 28(1) — Unfair Commencement of Charges
The right to a fair hearing under article 28(1) of the Constitution is infringed where, in the circumstances of a case, it is unfair to commence charges against a person, such as where a regulatory authority prosecutes an applicant for operating without a licence that the authority itself failed to issue despite the applicant's compliance.

Legislation cited (17)

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

Cases cited (6)

  • [2018] UGSC 4
  • [1998] UGSC 20
  • [1964] AC 1254
  • [1967] QB 459
  • [1982] AC 529
  • [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.