Wakilii

Uganda v Byandala & 6 Ors (Session Case 12 of 2015)

High Court · [2018] UGHCACD 1 · 2018 Convictions and Acquittals Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial in the High Court Anti-Corruption Division
Decision
Four accused acquitted and set free. Three accused convicted and to proceed to allocutus for sentencing.

Observed later treatment

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Holding

The High Court Anti-Corruption Division acquitted four accused (A1, A2, A4, A6) on all charges. A3 and A7 were convicted of neglect of duty (corruption under ACA s.2(i)) for failing to verify securities. A3 was additionally convicted of abuse of office for falsely confirming verification. A5 was convicted of theft, uttering multiple false documents, and obtaining execution of a security by false pretence. The court held that due diligence concurrent with contract execution was legally permissible; that actual financial loss was not proved; and that A5 orchestrated a fraudulent scheme to obtain advance payment without valid securities.

Outcome

Four accused acquitted and set free. Three accused convicted and to proceed to allocutus for sentencing.

Facts

UNRA called for bids in 2010 for construction of Mukono-Katosi-Kisoga-Nyenga Road. Eutaw Construction Company Inc of Mississippi submitted a bid through A5, who listed his address in Florida. The procurement stalled for lack of funds but resumed in 2013. A5 opened a bank account for Eutaw Construction Company Inc at Housing Finance Bank, presenting securities that were later found to be forged. The contract was awarded, and UNRA paid an advance of UGX 24,790,823,522 in January 2014. A5 disbursed the funds, including UGX 12.2 billion to CICO (U) Ltd, a sub-contractor. Due diligence revealed the bidding company (Eutaw Mississippi) differed from the contracting company (Eutaw Florida), and securities were invalid or forged. The IGG halted works in July 2014 pending investigation. A1 was the Minister of Works, A2 was acting Executive Director of UNRA, A3 was Director of Finance, A4 was Legal Counsel, A5 presented himself as Eutaw's representative, A6 was a relationship manager at Housing Finance Bank who opened the account for A5, and A7 was a finance official at UNRA. Prosecution alleged that A5 orchestrated a fraudulent scheme to steal funds using a fictitious contractor.

Issues

  1. Whether A1 acted arbitrarily in directing the immediate signing of the contract before due diligence was concluded.
  2. Whether A1 acted arbitrarily in directing the formalization of the sub-contract between Eutaw Construction Co Inc and CICO (U) Ltd.
  3. Whether A1 disobeyed the IGG's order dated 17th July 2014 halting all transactions on the road works.
  4. Whether A2 acted arbitrarily in communicating the award of the contract within five days instead of ten days.
  5. Whether A2 acted arbitrarily by signing the contract before due diligence was completed.
  6. Whether A2 and A3 caused financial loss by approving and causing payment of UGX 24,790,823,522 while aware of identity issues in the preliminary due diligence report.
  7. Whether A2 and A3 abused their office by causing payment of UGX 24,790,823,522 while aware of shortcomings in the due diligence report.
  8. Whether A4 caused financial loss by misadvising UNRA to sign the contract before due diligence was concluded.
  9. Whether A4 acted arbitrarily by tendering advice before due diligence was done.
  10. Whether A3 and A7 caused financial loss by omitting to properly verify the performance guarantee and advance payment security.
  11. Whether A3 and A7 committed corruption by neglecting to properly verify securities presented by Eutaw Construction Co Inc.
  12. Whether A5 stole UGX 24,790,823,522 the property of the Government of Uganda.
  13. Whether A5 obtained money by false pretence by fraudulently presenting himself as a country representative of Eutaw Construction Co Inc.
  14. Whether A5 uttered false performance guarantees, advance payment securities, bid guarantees, and bank guarantees to UNRA.
  15. Whether A5 obtained execution of securities from ICEA and UAP by false pretence.
  16. Whether A5 and A6 conspired to defraud UNRA of UGX 24,790,823,522.
  17. Whether A6 abetted the offence of causing financial loss by fraudulently confirming that securities were authentic.

Orders

  • A1 acquitted on counts 1, 2, and 3.
  • A2 acquitted on counts 4, 5, 6, and 7.
  • A3 acquitted on count 6 (causing financial loss).
  • A3 convicted on count 7 (abuse of office).
  • A3 convicted on count 11 (corruption by neglect of duty).
  • A3 acquitted on count 10 (causing financial loss).
  • A4 acquitted on count 8 (causing financial loss).
  • A4 acquitted on count 9 (abuse of office).
  • A5 convicted on count 12 (theft).
  • A5 convicted on count 14 (uttering false performance guarantee from HFB).
  • A5 convicted on count 15 (uttering false advance payment guarantee from HFB).
  • A5 convicted on count 16 (uttering false advance payment bond from SWICO).
  • A5 convicted on count 17 (uttering false performance bond from SWICO).
  • A5 convicted on count 18 (uttering false bid guarantee from KCB).
  • A5 convicted on count 19 (uttering false bank guarantee from KCB).
  • A5 acquitted on count 20 (obtaining execution of security from ICEA).
  • A5 convicted on count 21 (obtaining execution of security from UAP by false pretence).
  • A5 acquitted on count 22 (conspiracy to defraud with A6).
  • A6 acquitted on count 22 (conspiracy to defraud).
  • A6 acquitted on count 23 (abetting causing financial loss).
  • A7 convicted on count 11 (corruption by neglect of duty).
  • A1, A2, A4, and A6 set free.
  • A3, A5, and A7 proceed to allocutus.

Rules and key headnotes

Abuse of Office — Ministerial Directive to Sign Contract During Due Diligence
A Minister's directive to sign a contract while due diligence continues is not arbitrary where statutory procurement regulations permit concurrent due diligence at any time during contract execution and the Minister acted on legal advice.
Causing Financial Loss — Proof of Actual Loss
In charges of causing financial loss, the prosecution must prove the exact quantum of actual loss by credible evidence such as an audit report. Loss is not a matter of assumption or speculation and should not be presumed to equal the full advance payment where road works of unvalued extent were completed.
Abuse of Office — Reliance on Legal Advice and Collective Decisions
Where an accused implements decisions reached in consultative meetings and acts on legal advice, such actions are not arbitrary. Meetings bring transparency and collective decision-making; decisions arising from meetings are collective rather than individual.
Corruption by Neglect of Duty — Verification of Securities
A director of finance who confirms verification of securities without actually verifying them, thereby exposing the employer to financial risk, is guilty of neglect of duty constituting corruption under ACA s.2(i). Genuine securities mitigate financial risk; their verification is a critical function of the finance directorate.
Theft — Fraudulent Taking of Money Under Invalid Contract
Where an accused obtains an advance payment against forged securities and without a valid bid, and exercises control over the funds as sole signatory, the accused steals those funds. Theft is complete once money is fraudulently moved from the original account; how the money is subsequently spent is irrelevant. The use of a company as a smokescreen does not shield the accused from liability.
Circumstantial Evidence — Standard of Proof
In cases depending exclusively upon circumstantial evidence, the court must find that inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The evidence must carry a reasonable degree of probability of the accused's guilt, leaving only a remote possibility in favour of innocence.
Electronic Evidence — Integrity and Authentication Under Computer Misuse Act
When assessing the evidential weight of electronic data, the court must have regard to the reliability of the manner in which the data was generated and maintained. Electronic evidence retrieved casually without deploying digital forensic tools and not sourced from exchange servers lacks integrity and is of diminished value. Data that has been modified or edited does not meet the authentication standard.

Legislation cited (18)

Cases cited (6)

  • Teper v R (1952) AC 480
  • Simon Musoke v R (1958) EA 715
  • Akbar Hussein Godi v Uganda (Criminal Appeal 3 of 2013)
  • Eng Samson Bagonza v Uganda (Criminal Appeal 2 of 2010)
  • Kassim Mpanga v Uganda (Criminal Appeal 30 of 1994)
  • Godfrey Walubi & Another v Uganda (Criminal Appeal 152 of 2012)

Full judgment

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

Uganda v Byandala & 6 Ors (Session Case 12 of 2015) [2018] UGHCACD 1 (29 August 2018)
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.