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Matembu and 3 Others v Uganda (Criminal Appeal No. 94 of 2018)

Court of Appeal · [2023] UGCA 89 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court (Anti-Corruption Division) convictions and sentences
Decision
All appellants' convictions and sentences set aside; appellants set free unless held on other lawful charges; 4th appellant to be paid the contract price of UGX 250,000,000.

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Holding

By majority, the Court of Appeal allowed all four appellants' appeals. The majority found the prosecution failed to prove that the 1st and 2nd appellants did an arbitrary act in abuse of office, holding the coffee-seedling procurement was lawfully conducted under NAADS community-based procurement guidelines, and quashed the related forgery and uttering convictions. The 3rd appellant's conviction for preparation to commit an offence was set aside as the indictment failed to give sufficient particulars contrary to the Trial on Indictments Act, rendering it defective and a nullity. The 4th appellant's conviction for attempt was set aside because the seedlings were in fact supplied. Justice Musoke dissented on the 1st and 2nd appellants.

Outcome

All appellants' convictions and sentences set aside; appellants set free unless held on other lawful charges; 4th appellant to be paid the contract price of UGX 250,000,000.

Facts

Manafwa District Local Government sought NAADS funds to procure 400,000 coffee seedlings. The 2nd appellant, the District's Chief Administrative/Accounting Officer, requested NAADS to provide UGX 250,000,000 for the seedlings. The 1st appellant was the District NAADS Coordinator; the 4th appellant was linked to supplier Mamayi & Co. Ltd. The procurement was said to have been conducted at sub-county level (Butiru Sub-County) under NAADS community-based procurement guidelines rather than PPDA regulations. The prosecution alleged the procurement was irregular and fraudulent, that distribution lists were forged to show seedlings had been received by farmers, and that payment was requested before supply. The defence contended the procurement followed NAADS guidelines and the seedlings were in fact supplied. Verification and monitoring reports indicated that more than the planned number of seedlings had actually been supplied.

Issues

  1. Whether the trial Judge erred in convicting the 1st and 2nd appellants of abuse of office where the procurement was said to follow NAADS community-based procurement guidelines.
  2. Whether the prosecution proved the ingredients of forgery and uttering a false document against the 1st appellant.
  3. Whether the indictment against the 3rd appellant for preparation to commit an offence sufficiently set out the particulars of the offence under the Trial on Indictments Act.
  4. Whether the conviction of the 4th appellant for attempt to commit an offence could stand where the coffee seedlings were found to have been supplied.

Orders

  • The 1st appellant's convictions and sentences for abuse of office, forgery and uttering a false document are set aside.
  • The 2nd appellant's conviction and sentence for abuse of office are set aside.
  • The 3rd appellant's conviction for preparation to commit an offence is set aside.
  • The 4th appellant's conviction for attempt to commit an offence is set aside, and the 4th appellant is to be paid the contract price of UGX 250,000,000 for the supply of 400,000 coffee seedlings to Manafwa District.
  • The 1st, 2nd, 3rd and 4th appellants be set free unless held on other lawful charges.

Rules and key headnotes

Abuse of Office — Ingredients — Arbitrary Act — Anti-Corruption Act s.11(1)
To sustain a conviction for abuse of office under section 11(1) of the Anti-Corruption Act, the prosecution must prove that the accused, being employed in a public body, did or directed an arbitrary act prejudicial to the interests of the employer in abuse of the authority of the office; where procurement was conducted in accordance with the applicable guidelines, no arbitrary act is established.
Public Procurement — NAADS Community-Based Procurement — Delegation to Sub-County
Under the NAADS Procurement Guidelines 2007, delegated community-based procurement may be conducted at sub-county level, and the guidelines do not bar a sub-county from carrying out a particular procurement on behalf of other sub-counties; the key factor is whether the prescribed procedure was followed.
Indictments — Sufficiency of Particulars — Trial on Indictments Act s.25(c)
The particulars of an offence in an indictment must give reasonable information as to the nature of the offence charged; an indictment which alleges that an accused assisted another to contravene procurement procedures without stating the form that assistance took is defective, and a conviction founded on such a defective indictment is a nullity.
Attempt to Commit an Offence — Failure of Underlying Factual Basis — Penal Code Act s.387
A conviction for attempt to commit an offence founded on an allegation of false pretence that goods were not supplied cannot stand where the court finds that the goods were in fact supplied.
First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court must review and re-appraise the whole of the evidence before the trial court and reach its own conclusions on the facts, bearing in mind that it has neither seen nor heard the witnesses and being guided by the trial court's observations on demeanour.

Legislation cited (18)

Cases cited (6)

  • Kazinda v Uganda (Criminal Appeal No. 83 of 2013)
  • Bagonza v Uganda (Criminal Appeal No. 102 of 2010)
  • Andrua and Another v Uganda (Criminal Appeal No. 17 of 2016)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Matembu and 3 Others v Uganda (Criminal Appeal No. 94 of 2018) [2023] UGCA 89 (17 March 2023)
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.