AIP ODONGO MOSES v UGANDA [2014] UGSC 404

Supreme Court · 2014 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from conviction by the High Court (Anti-Corruption Division) on charges under the Anti-Corruption Act

Decision

Appeal succeeded in part: count one conviction quashed and fines ordered refunded; counts two and three convictions and sentences upheld.

The full judgment

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Holding

The Court allowed the appeal in part. On count one (corruptly soliciting gratification), the Court held that where the evidence materially differed from the particulars in the charge sheet the charge was not proved; the money the appellants demanded was legally due to the first appellant, so no corrupt solicitation was established, and the trial judge erred in convicting. The Court held it is erroneous to presume an accused understood a charge despite a variance. On counts two (corruptly accepting gratification) and three (abuse of office), the Court found the offences proved beyond reasonable doubt, the appellants having opened a police file to extract money from the complainant. Convictions on counts two and three were upheld; count one was quashed.

Facts

The two appellants were police officers attached to Lira Central Police Station. The first appellant had been contracted by a non-governmental organisation to train paralegals for shs. 300,000/=, but learnt through a whistle-blower he was entitled to shs. 1,000,000/= and that payment documents had been falsified. When confronted, the NGO director (Pw1) paid the appellants shs. 700,000/=, claiming duress. The appellants filed a forgery complaint against Pw1 and were then alleged to have demanded shs. 1,000,000/= to drop it. Pw1 reported the matter to the Special Investigations Unit, which laid a trap, and the appellants were arrested receiving part of the money from Pw1's wife (Pw2). They were charged with corruptly soliciting gratification, corruptly accepting gratification, and abuse of office. The trial judge rejected the assessors' opinion and convicted on all three counts, imposing fines or imprisonment. The evidence on count one differed from the charge-sheet particulars, the solicited shs. 700,000/= being money legally due to the first appellant.

Issues

Whether a conviction can stand where the evidence adduced materially differs from the particulars of the offence set out in the charge sheet.
Whether the prosecution proved beyond reasonable doubt the offence of corruptly soliciting for gratification in count one.
Whether the prosecution proved beyond reasonable doubt the offences of corruptly accepting gratification and abuse of office in counts two and three.

Orders

The conviction of the 1st appellant on count one is quashed and the sentence set aside.
The respondent is ordered to refund the fine of shs. 200,000/= paid by the 1st appellant on count one.
The conviction of the 2nd appellant on count one is quashed and the sentence set aside.
The respondent is ordered to refund shs. 200,000/= paid by the 2nd appellant on count one.
The convictions of the 1st appellant on counts 2 and 3 are upheld and the sentences confirmed.
The convictions of the 2nd appellant on counts 2 and 3 are upheld and the sentences confirmed.

Key headnotes

Criminal Procedure — Charge Sheet — Variance Between Particulars and Evidence

Where the evidence adduced materially differs from the particulars of the offence set out in the charge sheet, the charge is not proved, and a court cannot cure the variance by presuming that the accused had an idea of what the charge was about.

Evidence — Burden and Standard of Proof — Particulars Must Be Proved as Charged

The burden of proving a charge lies entirely on the prosecution, which must prove beyond reasonable doubt the particulars of the offence exactly as they appear on the charge sheet.

Anti-Corruption — Corrupt Solicitation — Demand for Money Legally Due

A demand for money to which a person is legally entitled, even if made forcefully, does not amount to corruptly soliciting a gratification under the Anti-Corruption Act.

Anti-Corruption — Abuse of Office — Misuse of Official Authority for Private Gain

Police officers who irregularly open a police file solely to threaten a person with prosecution and extract money commit abuse of office and corruptly accept gratification under the Anti-Corruption Act.

Criminal Procedure — Memorandum of Appeal — Concise Grounds Under Rule 86(1)

Grounds of appeal must, under Rule 86(1) of the Rules of the Court of Appeal, be set out concisely and under distinct heads without argument or narrative, specifying the points alleged to have been wrongly decided; general grounds offend the rule and are liable to be struck out.

Legislation cited (5)

Anti-Corruption Act 2009 s.2(a)
Anti-Corruption Act 2009 s.26(1)
Anti-Corruption Act 2009 s.11(1)
Rules of the Court of Appeal r.30(1)
Rules of the Court of Appeal r.86(1)

Cases cited (1)

Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)

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