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Odele v Uganda (Criminal Appeal No. 85 of 2018)

Court of Appeal · [2022] UGCA 113 · 2022 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for embezzlement, forgery and uttering false documents
Decision
Conviction confirmed; all custodial sentences ordered to run concurrently from the date of conviction; compensatory orders upheld

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Holding

The Court of Appeal dismissed all grounds of appeal against conviction. It held that a trial judge's failure to give effect to a Constitutional Court bail order did not render the trial a nullity where the fault lay solely with the judicial officer and not the prosecuting organs, and occasioned no failure of justice. Section 19 of the Anti-Corruption Act applies to employees of private as well as public bodies. DPP consent is required only at the charge sheet/committal stage, which was satisfied. Joinder of offences founded on the same facts was permissible. The appeal partly succeeded only on sentence: the court ordered all custodial sentences to run concurrently from the date of conviction.

Facts

The appellant was employed by the African Centre for Global Health and Social Transformation (ACHEST), a company limited by guarantee, as Manager Finance and Administration from January 2009 to September 2011. He was responsible for managing all financial transactions and was a joint signatory to ACHEST's bank accounts. Following his forced resignation, the Executive Director discovered unauthorized withdrawals from ACHEST's Bank of Baroda accounts and that statutory remittances to URA (PAYE) and NSSF had not been made though money had been withdrawn for them. An investigative audit by Carr Stanyer Sims & Co. established that the appellant stole approximately UGX 456,677,347 and USD 175,547 using cheques bearing the forged signature of the Principal Signatory, Professor Omaswa. The appellant was indicted on 11 counts of embezzlement, 30 counts of forgery and 62 counts of uttering false documents. The trial court convicted him on 100 counts, acquitting on three, and sentenced him accordingly with a compensatory order.

Issues

  1. Whether the trial judge's failure to recuse herself on alleged bias vitiated the trial.
  2. Whether the trial judge's disregard of a Constitutional Court order to admit the appellant to bail rendered the trial a nullity entitling the appellant to acquittal.
  3. Whether the prosecution under the Anti-Corruption Act was validly instituted with the consent of the DPP.
  4. Whether the offence of embezzlement under section 19 of the Anti-Corruption Act applies where the complainant is a private body rather than a public body.
  5. Whether the trial judge erred in correcting apparent defects in the particulars of the indictment.
  6. Whether the trial judge properly evaluated the evidence in convicting the appellant.
  7. Whether joinder of offences under the Penal Code Act and the Anti-Corruption Act arising from the same facts was permissible.
  8. Whether the sentences imposed were ambiguous and manifestly excessive.

Orders

  • The conviction of the appellant by the High Court is confirmed.
  • The custodial sentences imposed by the High Court are upheld subject to the condition that all sentences shall run concurrently with effect from 4 November 2017, the date of conviction.
  • Any period after the date of conviction during which the appellant has been on bail pending appeal shall be excluded from the computation of the sentences under s.106(3) of the Trial on Indictments Act.
  • The compensatory orders of the trial court are upheld.

Key headnotes

Criminal Procedure — Judicial Recusal — Test for Apparent Bias
An allegation of bias warranting recusal must demonstrate a real likelihood of bias in the eyes of reasonable people; firmness by a trial judge in taking charge of proceedings and making unfavourable decisions does not establish bias, and inconsistent shifting grounds of bias amount to conjecture.
Fair Trial — Disregard of Constitutional Court Bail Order — Whether Trial a Nullity
Where the fault complained of is solely that of a judicial officer who disregarded a Constitutional Court bail order, rather than abuse of power by police or prosecuting authorities, and the omission did not occasion a failure of justice or deny a fair trial, the trial will not be nullified and the accused will not be acquitted on that ground alone.
Anti-Corruption Act — Embezzlement — Application to Private Bodies
Section 19 of the Anti-Corruption Act applies to both public and private sector employees; an employee of a private company who steals property of his employer to which he has access by virtue of his office commits embezzlement, regardless of whether the complainant is a public body.
Anti-Corruption Act — Consent of DPP — Stage of Institution of Proceedings
The consent of the DPP required under section 49 of the Anti-Corruption Act is required at the time of committal initiated by a charge sheet before the magistrate, not at the indictment stage in the High Court; past actions of a person unconstitutionally holding the office of DPP remain valid under the doctrine of prospective annulment.
Indictment — Correction of Defects in Particulars
A trial judge may correct apparent omissions in the particulars of an offence where it is evident the accused fully understood the nature of the offence charged and suffered no prejudice, as section 22 of the Trial on Indictments Act requires only reasonable information as to the nature of the offence.
Joinder of Offences — Charges Under Different Enactments
Offences founded on the same facts may be joined in the same indictment under section 23 of the Trial on Indictments Act even where they are creatures of different enactments such as the Penal Code Act and the Anti-Corruption Act.
Sentencing — Concurrent Sentences for Offences Arising From the Same Transaction
Where an accused is convicted of a series of offences arising from the same transaction, the established practice is to direct that the sentences run concurrently; a failure to do so may render the aggregate sentence harsh and manifestly excessive, warranting appellate correction.

Legislation cited (24)

  • Anti-Corruption Act 2009 s.19(b)(iii)
  • Anti-Corruption Act 2009 s.49
  • Penal Code Act Cap.120 s.342
  • Penal Code Act Cap.120 s.347
  • Penal Code Act Cap.120 s.351
  • Trial on Indictments Act s.2
  • Trial on Indictments Act s.22
  • Trial on Indictments Act s.23
  • Trial on Indictments Act s.106
  • Trial on Indictments Act s.126
  • Trial on Indictments Act s.139
  • Evidence Act Cap.6 s.63
  • Evidence (Bankers' Books) Act Cap.7 s.2
  • Evidence (Bankers' Books) Act Cap.7 s.6
  • Magistrates Courts Act Cap.16 s.42
  • Magistrates Courts Act Cap.16 s.225
  • Constitution of the Republic of Uganda 1995 Article 23(6)
  • Constitution of the Republic of Uganda 1995 Article 28
  • Constitution of the Republic of Uganda 1995 Article 44(c)
  • Constitution of the Republic of Uganda 1995 Article 126(1)
  • Accountants Act Cap.266 s.20
  • Judicature (Court of Appeal Rules) Directions Rule 30(1)(a)
  • Judicature (Court of Appeal Rules) Directions Rule 74(a)
  • Judicature (Court of Appeal Rules) Directions Rule 86(1)

Cases cited (23)

  • Baguma Fred v Uganda (Supreme Court Criminal Appeal No. 7 of 2004)
  • Kifumante Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandva Vs R [1957] EA 336
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Supreme Court Civil Appeal No. 19 of 1998)
  • Albanus Mwasia Mutua Vs Republic (Kenya) Court of Appeal Criminal Appeal No.120 of 2004
  • Dr. Kizza Besigye & Ors v Attorney General (Constitutional Petition No. 7 of 2007)
  • Uganda v Kizza Besigye (Constitutional Reference No. 20 of 2005)
  • Livinqstone Mukasa & Others Versus Uqanda [1976] HCB 117
  • Odele Patrick v Attorney General (Constitutional Application No. 26 of 2015)
  • Bob Kasango v Attorney General (Constitutional Petition No. 16 of 2016)
  • Jim Muhwezi & 3 Ors v Attorney General (Constitutional Petition No. 10 of 2008)
  • Nakiwuge Rachael v Uganda (Court of Appeal Criminal Appeal No. 248 of 2015)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
  • Kisugu Quarles v Administrator General (Supreme Court Civil Appeal No. 10 of 1998)
  • Uqanda vs Rose Mary Tibiwa Session Case No.HCT-00-sc 90/2013
  • Ndege & Another v Uganda (Criminal Appeal No. 12 of 1978)
  • Wepukhulu Nyuguli v Uganda (Supreme Court Criminal Appeal No. 1 of 2011)
  • Chemonges Fred v Uganda (Supreme Court Criminal Appeal No. 12 of 2001)
  • Opolot Justin and Another v Uganda (Court of Appeal Criminal Appeal No. 155 of 2009)
  • Hudson Jackson Andrua & Anor v Uganda (Supreme Court Criminal Appeal No. 17 of 2016)
  • Oglala s/o Owoura Vs R. (1954)1 E.A.C.A. 270
  • R. Vs Mohamedali Jamal [1948]1 E.A.C.A 126
  • Rex Vs Sawedi Mukasa S/O Abdullah Aligwaisa, Criminal Appeal No.182 of 1945, [1946] EACA 1
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.