THE

REPU
BLIC
OF
UGAN
DA
IN
THE
SUPR
EME
COUR
T OF
UGAN
DA AT
KAMA
PALA

CRIMI
NAL
APPE
AL
N0.03
OF
2018

{Cora
m:
Arach-
Amoko
,
Mwan
gusya,
Opio-
Aweri,
Buteer
a,
JJSC
&
Nshim
ye, Ag.
JSC)
Betwee
n
SARA
H
KULA
TA
BASA
NGW
A .................................................................................................................. APPELLANT
Versus
UGAN
DA ......................................................................................................... RESPONDENT
[Appea
l from
the
judgem
ent of
the
Court
of
Appeal
at
Kampal
a
(Kavum
a,
Bossa
and
Kakuru
, JJA.)
dated
15th
Januar
y, 2018
in
Crimin
al
Appeal
No. 02
of
2012]
JUDG
MENT
OF
THE
COUR
T
This is
a
second
appeal.
It
arises
from
the
judgm
ent of
the
Court
of
Appea
l
which
revers
ed a
ruling
by
which
a High
Court
Judge
discon
tinued
crimin
al
procee
dings
institut
ed by
the
Inspec
torate
of
Gover
nment
against
the
appell
ant.
The
ground
upon
which
the
procee
dings
were
discon
tinued
was
that
the
IGG
was
barred
from
investi
gating
and/or
prosec
uting
the
case in
view
of the
fact
that a
Civil
suit
No.25
1 of
2010
and
Miscel
laneou
s
Applic
ation
No.
107 of
2010 f
iled by
the
compla
inants
against
the
appella
nt and
others
on the
same
subject
matter
was
pendin
g in
Court.

Backgr
ound;

The
facts
as
found
by
both
the
High
Court
and the
Court
of
Appeal
are
that on
28th of
Novem
ber
2011,
the
respon
dent
who at
the
time
was a
Comm
issione
r for
Land
Registr
ation
was
charge
d with
Abuse
of
office
contrar
y to
Sectio
n 11 of
the
Anti-
Corrup
tion
Act of
2009.
It was
alleged
that
the
appella
nt
betwee
n the
9th of
July,
2010
and 4th
of
August
,2010
at the
Land
Registr
y in
Kampa
la
while
perfor
ming
her
duties
as
Acting
Comm
issione
r for
Land
Registr
ation
did, in
abuse
of the
authori
ty of
her
office,
arbitrar
y acts
which
were
prejudi
cial to
M/S
Lakesi
de City
Ltd
when
she
hastily
and
unlawf
ully
registe
red
M/S
Kikon
yogo
Invest
ment
Ltd as
the
Proprie
tor of
land
compri
sed in
FRV
429
Folio 5
Block
537
Plot
103
Wakis
o,
Busiro
, FRV
432
Folio
23
Block
537
Plot
102
Wakis
o,
Busiro
, FRV
380
Folio 6
Block
697
Plot
103
Lubow
a
Estate
Wakis
o, FRV
356
Folio
12
Block
1073
Lubow
a
Estate
Wakis
o, to
the
detrim
ent of
M/S
Lakesi
de City
Ltd,
the
true
purcha
sers
and
owners
of the
land
describ
ed
above.
Before
the
respon
dent
could
take
plea, a
point
of law
was
raised
by her
Learne
d
Couns
el, Mr.
Micha
el
Okech
a
conten
ding
that
the
Inspect
orate
of
Gover
nment
was
barred
from
investi
gating
the
matter,
as the
compla
inant
in that
crimin
al case
had
also
filed
two
civil
matters
at the
Civil
Divisio
n of
the
High
Court
vide
High
Court
Civil
suit
No.25
1 of
3010
and
Misc.
Applic
ation
No.
107 of
2010
arising
therefr
om.
The
Learne
d
Magist
rate
decide
d to
refer
the
matter
to the
High
Court
for an
Opinio
n
under
Sectio
n 206
of the
Magist
rate
Court
Act.
The
questio
n
reserve
d for
interpr
etation
was set
as
follow
s
“
W
h
et
h
e
r
u
n
d
e
r
S
e
ct
io
n
1
9(
l)
(c
)
of
t
h
e
I
n
s
p
e
ct
o
r
at
e
of
G
o
v
e
r
n
m
e
n
t
A
ct
,
t
h
e
I
n
s
p
e
ct
o
r
G
e
n
e
r
al
of
G
o
v
e
r
n
m
e
n
t
is
b
a
r
r
e
d
fr
o
m
in
v
es
ti
g
at
in
g
a
n
d
p
r
o
se
c
u
ti
n
g
t
hi
s
c
a
se
in
li
g
h
t
of
C
iv
il
s
ui
t
N
o.
2
5
1
of
2
0
1
0
a
n
d
M
is
c.
A
p
pl
ic
at
io
n
N
o.
1
0
7
of
2
0
1
0
fi
le
d
b
y
t
h
e
c
o
m
pl
ai
n
a
n
ts
a
g
ai
n
st
t
h
e
a
c
c
u
se
d
a
n
d
ot
h
e
rs
o
n
t
h
e
s
a
m
e
s
u
b
je
ct
m
at
te
 r.
”

The
Hon
Justice
Paul
Mugam
ba, J
(as he
then
was)
deliver
ed his
opinion
on the
matter
on 20th
Decem
ber
2011,
in
which
he
answer
ed in
the
affirma
tive
and
militate
d the
discont
inuance
of the
crimina
l
procee
dings
against
the
appella
nt. The
Inspect
orate of
Govern
ment
being
dissatis
fied
with
the
above
decisio
n of the
High
Court,
filed an
appeal
to the
Court
of
Appeal
. The
Court
of
Appeal
reverse
d the
decisio
n of the
High
Court
and
held
that
instituti
on of
crimina
l
procee
dings
against
the
appella
nt by
the
respon
dent
did not
in any
way
amount
to
questio
ning or
reviewi
ng of
civil
procee
dings
before
the
Civil
Court.
The
appella
nt
being
dissatis
fied
with
the
judgem
ent of
the
Court
of
Appeal
, has
appeale
d to
this
Court
raising
five
ground
s
namely
:-

1. T
h
a
t

t
h
e
L
e
a
r
n
e
d
J
u
s
t
i
c
e
s

o
f

C
o
u
r
t

o
f
A
p
p
e
a
l
e
r
r
e
d
i
n

l
a
w
w
h
e
n

t
h
e
y

f
a
i
l
e
d

t
o

p
r
o
p
e
r
l
y
a
p
p
l
y
t
h
e

l
a
w
t
o

t
h
e
f
a
c
t
s
t
h
e
r
e
b
y
r
e
a
c
h
i
n
g

w
r
o
n
g

d
e
c
i
s
i
o
n

h
e
n
c
e

o
c
c
a
s
i
o
n
i
n
g

m
i
s
c
a
r
r
i
a
g
e

o
f

j
u
s
t
i
c
e
.
2. T
h
a
t

t
h
e

L
e
a
r
n
e
d

J
u
s
t
i
c
e
s

o
f

C
o
u
r
t
o
f

A
p
p
e
a
l

e
r
r
e
d

i
n

l
a
w

w
h
e
n
t
h
e
y

m
i
s
i
n
t
e
r
p
r
e
t
e
d
s
e
c
t
i
o
n
1
9
(
1
)
(
c
)

o
f
t
h
e

I
n
s
p
e
c
t
o
r
a
t
e

o
f

G
o
v
e
r
n
m
e
n
t

A
c
t
t
h
a
t

i
t
d
o
e
s

n
o
t

b
a
r
t
h
e

I
n
s
p
e
c
t
o
r
a
t
e

G
e
n
e
r
a
l

o
f
G
o
v
e
r
n
m
e
n
t

f
r
o
m

i
n
v
e
s
t
i
g
a
t
i
n
g

c
i
v
i
l
m
a
t
t
e
r
s

b
e
f
o
r
e

t
h
e

C
o
u
r
t

w
h
e
r
e
a
s

n
o
t

h
e
n
c
e

o
c
c
a
s
i
o
n
i
n
g
a

m
i
s
c
a
r
r
i
a
g
e
J
u
s
t
i
c
e
 .

3. T
h
e

L
e
a
r
n
e
d
J
u
s
t
i
c
e
s

o
f

C
o
u
r
t

o
f
A
p
p
e
a
l
e
r
r
e
d

i
n

l
a
w

a
n
d

f
a
c
t
w
h
e
n

t
h
e
y

f
a
i
l
e
d

t
o
p
r
o
p
e
r
l
y

a
p
p
l
y
t
h
e

f
a
c
t
s

a
n
d
h
o
l
d
i
n
g

i
n

c
a
s
e

o
f

G
o
r
d
o
n

S
e
n
t
i
b
a
&

o
t
h
e
r
s

v
s

T
h
e

I
n
s
p
e
c
t
o
r

G
e
n
e
r
a
l

o
f

G
o
v
e
r
n
m
e
n
t

(
S
u
p
r
e
m
e
C
o
u
r
t
C
i
v
i
l

A
p
p
e
a
l

N
0
.
0
6

o
f
2
0
0
8

a
n
d

o
t
h
e
r

c
a
s
e
s
r
e
f
e
r
r
e
d

t
o
,
t
o

t
h
e
p
r
e
s
e
n
t
c
a
s
e

t
h
e
r
e
i
n
a
r
r
i
v
i
n
g

a
t

a
w
r
o
n
g

d
e
c
i
s
i
o
n
h
e
n
c
e
o
c
c
a
s
i
o
n
i
n
g

a
m
i
s
c
a
r
r
i
a
g
e

o
f
j
u
s
t
i
c
 e
.

4. T
h
e
L
e
a
r
n
e
d
J
u
s
t
i
c
e
s

o
f

C
o
u
r
t

o
f
A
p
p
e
a
l
e
r
r
e
d
i
n

l
a
w
w
h
e
n

t
h
e
y

d
e
t
e
r
m
i
n
e
d
t
h
e

a
p
p
l
i
c
a
b
i
l
i
t
y

o
f
s
e
c
t
i
o
n
1
9

(
1
)
(
c

b
y

c
o
m
p
a
r
i
n
g

i
t
t
o

p
o
w
e
r
s

o
f
D
i
r
e
c
t
o
r

o
f

P
u
b
l
i
c

P
r
o
s
e
c
u
t
i
o
n

(
D
P
P
 )

5. T
h
e

L
e
a
r
n
e
d
J
u
s
t
i
c
e
s

o
f

C
o
u
r
t

o
f
A
p
p
e
a
l
e
r
r
e
d

i
n

l
a
w

w
h
e
n

t
h
e
y

p
r
o
n
o
u
n
c
e
d

t
h
e
m
s
e
l
v
e
s

w
i
t
h
o
u
t

i
n
p
u
t

o
f

d
i
s
s
e
n
t
i
n
g

j
u
d
g
 e
m
e
n
t

When
the
appeal
was
called
up for
hearing
on 24th
July,
2018,
Mr.
Okech
a
Michae
l of
Okech
a,
Baryay
anga &
Co
Advoc
ates,
appear
ed for
the
appella
nt
while
Mr.
Kinobe
Rogers
,
Senior
Inspect
orate
Officer
represe
nted
the
Respon
dent.
In his
submis
sions,
counsel
for the
appella
nt
argued
ground
s one
and
two
togethe
r and
the rest
separat
ely.
The
respon
dent
followe
d the
same
order.

On
Groun
d 1
and 2,
Counse
l for
appella
nt
conten
ded
that
while it
was
commo
n
knowle
dge
that the
respon
dent
has
wide
statutor
y
powers
as the
govern
ment
ombud
sman
to
investi
gate
and
prosecu
te
matters
includi
ng
abuse
of
authorit
y as
provide
d under
Article
225 of
the
Constit
ution
of
Republ
ic of
Uganda
and
Section
8 of the
Inspect
orate of
Govern
ment
Act,
there
were
certain
excepti
ons to
the said
powers
provide
d under
section
19(1)
(c) of
the
Inspect
orate of
Govern
ment
Act.
Counse
l
submitt
ed that
under
this
law
which
is very
explicit
and
mandat
ory, the
IGG
shall
not
questio
n any
matter
which
is
before
Court.
Counse
l
conten
ded
that the
crimina
l
procee
ding
sought
to be
brought
by the
respon
dent
were
already
subject
in a
civil
matter
vide
Miscell
aneous
Cause
No.
107 of
2010 in
the
High
Court
of
Ugand
a at
Kamp
ala,
Lakesi
de City
vs The
Comm
issione
r Land
Registr
ation
and
three
others.
Counse
l
accordi
ngly
submitt
ed that
the
IGG
was
preclud
ed by
section
19(1)
(c)
from
investi
gating
or
questio
ning
anythin
g in
regard
to the
said
matter.

Citing
Section
175 of
the
Registr
ation of
Titles
Act
Cap
230,
counsel
also
submitt
ed that
the
alleged
crimina
l act by
appella
nt was
perfor
med in
her
capacit
y as the
Commi
ssioner
Land
Registr
ation,
making
her
immun
e to
any
action
or
procee
ding in
regard
to the
same.
Counse
l
conten
ded
further
that the
act was
bona
fide
becaus
e it was
done in
accorda
nce
with
the
registra
r’s
known
statutor
y duty
of
which
the
registra
tion of
proprie
tors
and
caveats
on
propert
y are
among
the said
cardina
l
respons
ibilities
.
Counse
l
further
conten
ded
that if
the
respon
dent
had
good
reason
to
bring
crimina
l
procee
dings
against
the
appella
nt, it
should
have
accorde
d her
an
opportu
nity to
be
heard
as is
provide
d under
section
25 (2)
of the
Inspect
or
Genera
l of
Govern
ment
Act.
Counse
l for
the
appella
nt
faulted
the
Learne
d
Justices
of
Appeal
for
misinte
rpretin
g the
law
and for
failure
to
properl
y apply
the
facts at
hand as
they
noted
in their
judgme
nt that
instituti
on of
crimina
l
procee
ding
against
the
appella
nt did
not in
any
way
amount
to
questio
ning or
reviewi
ng civil
procee
ding
before
the
High
Court
yet
they
acknow
ledged
the fact
that
both
matters
arise
from
the
same
facts.

In his
reply,
Counse
l for
the
respon
dent
conten
ded
that the
charges
of
abuse
of
office
preferr
ed
against
the
appella
nt as
disclos
ed in
the
charge
sheet
did not
in any
way
intend
to
questio
n or
review
the
Miscell
aneous
Cause
No.
107 of
2010 in
the
High
Court
of
Uganda
at
Kampa
la
Lakesi
de City
Ltd vs
the
Commi
ssioner
Land
Registr
ation
and
three
others.
Counse
l
conten
ded
that
Article
230 of
the
Constit
ution
and
Section
14(4)
of the
Inspect
orate of
Govern
ment
Act
2002
amongs
t
others,
mandat
e the
Inspect
orate of
Govern
ment to
investi
gate
and
prosecu
te cases
involvi
ng
corrupt
ion and
abuse
of
authorit
y or
public
office.
Counse
l
submitt
ed that
the
case
against
appella
nt was
founde
d on an
alleged
abuse
of
office
which
is
within
the
mandat
e of the
respon
dent to
investi
gate
and
prosecu
te
without
interfer
ing
with
the
hearing
of the
civil
suit.
On
immuni
ty,
Counse
l for
the
respon
dent
submitt
ed that
section
175 of
the
Registr
ation
of
Titles
Act is
not
applica
ble. He
conten
ded
that the
Commi
ssioner
Land
Registr
ation is
only
protect
ed
when
his or
her
action
is done
in good
faith
and not
when
the
action
is
wrong
and is
done
knowin
gly and
deliber
ately in
which
case it
amount
s to a
crimina
l act.
Counse
l cited
the
case of
Attorn
ey
Gener
al and
Anothe
r vs.
Afric
Co-co-
operati
ves
Miscell
aneous
Applic
ation
No.6 of
2012,
Where
court
observe
d that
allegati
on of
fraud
and
forgery
are
serious
allegati
ons and
no
court
of law
should
allow
its
process
to be
used to
enable
a party
benefit
from a
clear
fraud.
Counse
l
further
submitt
ed that
this
Court
emphas
ized
that the
IGG’s
power
to
investi
gate
forgeri
es are
wide.
The
pendin
g civil
suit
betwee
n two
parties
cannot
be a
bar to
crimina
l
prosecu
tion,
that the
civil
suit
was
against
the
Commi
ssioner
Land
Registr
ation
and not
the
appella
nt in
person
and
that the
remedy
offered
in civil
action
was not
in
contrad
iction
with
the
remedi
es the
prosecu
tion by
IGG
intende
d to
achieve
.
Counse
l
conten
ded
that no
evidenc
e was
adduce
d to
show
how
the
appella
nt was
denied
the
right to
be
heard
as
mandat
ed
under
section
25 (2)
of the
Inspect
orate of
Govern
ment
Act.

The
questio
n
whethe
r the
acts of
the
appella
nt were
bona
fide or
not is a
triable
issue in
the
crimina
l trial
itself.
What
we are
called
upon to
determi
ne is
whethe
r the
instituti
on of
the
crimina
l
procee
dings
by the
respon
dent
are
barred
by
section
19 (1)
(c) of
the
Inspect
orate of
Govern
ment
Act
and we
shall
determi
ne that
without
going
into
merits
of the
would
be
crimina
l case.
The
Cour
t of
App
eal
dealt
with
the
issue
givin
g
rise
to
grou
nd
one
and
two
in
the
follo
wing
pass
age

“
I
n
t
h
e

c
a
s
e

b
e
f
o
r
e

u
s

t
h
e

f
a
c
t
s

a
r
e

c
l
e
a
r
l
y
d
i
f
f
e
r
e
n
t
.

T
h
e
a
p
p
e
l
l
a
n
t

i
s
n
o
t

s
e
e
k
i
n
g

t
o
q
u
e
s
t
i
o
n

o
r

r
e
v
i
e
w

t
h
e

c
i
v
i
l

m
a
t
t
e
r
s

b
e
f
o
r
e

c
o
u
r
t
.

B
u
t
r
a
t
h
e
r
h
a
s

i
n
s
t
i
t
u
t
e
d
s
e
p
a
r
a
t
e

l
e
g
a
l

p
r
o
c
e
e
d
i
n
g

i
n

c
r
i
m
i
n
a
l

C
o
u
r
t
,

a
g
a
i
n
s
t
t
h
e

a
p
p
e
l
l
a
n
t
i
n

p
e
r
s
o
n
.

W
e
d
o

n
o
t
a
c
c
e
p
t
t
h
e

a
r
g
u
m
e
n
t

t
h
a
t

t
h
e
i
n
s
t
i
t
u
t
i
o
n

o
f

c
r
i
m
i
n
a
l

p
r
o
c
e
e
d
i
n
g
a
g
a
i
n
s
t

a
n

i
n
d
i
v
i
d
u
a
l

p
u
b
l
i
c

o
f
f
i
c
e
r

b
y

t
h
e

I
G
G
a
m
o
u
n
t
s
t
o

q
u
e
s
t
i
o
n
i
n
g

o
r

r
e
v
i
e
w
i
n
g
a

c
i
v
i
l

m
a
t
t
e
r

b
e
f
o
r
e

C
o
u
r
t
,

n
o
r

d
o
e
s

i
t
a
m
o
u
n
t
t
o

i
n
t
e
r
f
e
r
e
n
c
e

w
i
t
h
t
h
e

i
n
d
e
p
e
n
d
e
n
c
e

o
f

t
h
e

j
u
d
i
c
i
a
r
y
.
T
h
e

I
G
G
i
n

t
h
e
c
a
s
e

b
e
f
o
r
e

u
s

i
s

n
o
t

s
e
e
k
i
n
g

t
o

i
n
v
e
s
t
i
g
a
t
e

a
n
y
c
i
v
i
l
m
a
t
t
e
r
b
e
f
o
r
e
a

C
o
u
r
t
o
f

l
a
w
b
u
t

r
a
t
h
e
r

s
e
e
k
s

t
o
c
o
n
t
i
n
u
e

i
n
v
e
s
t
i
g
a
t
i
n
g

a
n
d

p
r
o
s
e
c
u
t
i
n
g

c
r
i
m
i
n
a
l
m
a
t
t
e
r
b
e
f
o
r
e
a
n
o
t
h
e
r

c
o
m
p
e
t
e
n
t

c
o
u
r
t

i
n
e
x
e
r
c
i
s
e

o
f

i
t
s

l
e
g
a
l
m
a
n
d
a
t
e
.

I
t

c
a
n
n
o
t

b
e

c
o
r
r
e
c
t

p
r
o
p
o
s
i
t
i
o
n

o
f

t
h
e

l
a
w
t
h
a
t

w
h
e
r
e

c
i
v
i
l

s
u
i
t

i
s

p
e
n
d
i
n
g
b
e
t
w
e
e
n
t
w
o

p
a
r
t
i
e
s
,
n
o

c
r
i
m
i
n
a
l

p
r
o
c
e
e
d
i
n
g
s

m
a
y
b
e

i
n
s
t
i
t
u
t
e
d
a
g
a
i
n
s
t
o
n
e

o
f
t
h
e

p
a
r
t
i
e
s

a
r
i
s
i
n
g
f
r
o
m

t
h
e

s
a
m
e
f
a
c
t
s
.
I
t

i
s

n
o
t

c
o
r
r
e
c
t

t
o
s
u
g
g
e
s
t
t
h
a
t

w
h
e
n
e
v
e
r
c
r
i
m
i
n
a
l

p
r
o
c
e
e
d
i
n
g
s
a
r
e

i
n
s
t
i
t
u
t
e
d

i
n

r
e
s
p
e
c
t

o
f

m
a
t
t
e
r

t
h
a
t
i
s

a
l
s
o
a

s
u
b
j
e
c
t

o
f
c
i
v
i
l

l
i
t
i
g
a
t
i
o
n
,

t
h
a
t

a
l
o
n
e
a
m
o
u
n
t
s

t
o

i
n
t
e
r
f
e
r
e
n
c
e

w
i
t
h

t
h
e

i
n
d
e
p
e
n
d
e
n
c
e

o
f
t
h
e

j
u
d
i
c
i
a
r
y
 .
.
.
Nowhe
re in
the
Gordo
n
Sentib
a case
(supra
) does
the
Supre
me
Court
sugges
t that
the
IGG
cannot
comm
ence
crimin
al
procee
dings
agains
t any
person
in
respec
t of
matter
that is
subjec
t of
civil
procee
dings.

In that
case
Odoki
CJ (as
he was
then)
who
wrote
the
lead
judgm
ent
stated
as
follow
s; “in
this
case
nothin
g
preven
ted the
respon
dent
from
investi
gating
officer
s it
consid
ered
had
abuse
d their
power
and
take
appro
priate
action
accord
ing to
its
well
laid
down
proced
ure”

That
is
exactl
y what
happe
ned in
the
case
before
us.
The
Inspec
torate
of
Gover
nment
has
not
sought
to
questi
on,
review
or
even
investi
gate
the
pendin
g civil
matter
s
mentio
ned
above
but
rather
has
chosen
to take
the
route
sugges
ted by
the
Supre
me
Court
agains
t
them...

We
find
that
section
19(l)(c
) of
the
Inspec
torate
of
Gover
nment
Act
does
not
bar
the
Inspec
torate
of
Gover
nment
from
institu
ting
crimin
al
procee
ding
agains
t
appell
ant or
any
other
person
by
reason
that
there
are
subsist
ing
civil
procee
dings
arising
from
the
same
facts

Our
own
unders
tandin
g of
section
19(l)(c
)
(Supra
) is
that it
bars
the
inspec
torate
of
govern
ment
from
questi
oning
or
review
ing
procee
dings
before
a
Court
of law.
The
IGG
cannot
for
examp
le
inquir
e into
the
nature
or
proces
s of
Court
procee
dings
or
questi
on
their
validit
y or
appro
priate
ness...
”
We
find
no
reas
on
to
depa
rt
from
the
abov
e
reas
onin
g of
the
Justi
ces
of
Cou
rt of
App
eal.
Sect
ion
19
(1)
(c)
only
forbi
ds
the
IGG
from
ques
tioni
ng
or
revi
ewin
g a
matt
er in
the
civil
Cou
rt,
and
in
this
case
, the
IGG
was
not
in
any
way
revi
ewin
g or
ques
tioni
ng
the
said
civil
matt
er.
We
are
in
agre
eme
nt
with
the
Cou
rt of
App
eal
that
crim
inal
proc
eedi
ngs
may
ema
nate
from
the
sam
e
facts
but
it
does
n’t
dete
r
pros
ecut
ors
to
insti
tute
crim
inal
proc
eedi
ngs
beca
use
the
facts
are
simi
lar
to
that
of
civil
case
.

We
find no
merit
in
ground
s 1 and
2 and
we
uphold
the
reasoni
ng and
judgme
nt of
the
Court
of
Appeal
as the
true
positio
n of the
law.
On
Ground
3,
Counse
l for
appella
nt
relied
on the
case of
Gordo
n
Sentib
a &
Others
vs The
Inspect
or
Gener
al of
Gover
nment
Supre
me
Court
Civil
Appeal
No.6 of
2008
where
Justice
Odoki,
CJ,
stated
that to
investi
gate
civil
procee
dings
comme
nced or
comple
ted
before
the
respon
dent
comme
nces
investi
gations
violate
d the
principl
e of
indepe
ndence
of the
judiciar
y and
could
not be
sanctio
ned by
the
Court.
Counse
l
conten
ded
that the
respon
dent
preferr
ed
charges
against
the
appella
nt on
the 31st
day of
Octobe
r,2011
nearly
a
whole
year
after
the
civil
matter
was
institut
ed in
the
High
Court
of
Uganda
at
Kampa
la
which
action
violates
the
indepe
ndence
of the
judiciar
y.
Counse
l
further
criticiz
ed the
Learne
d
Justices
of
Appeal
for
relying
on the
case of
Attorn
ey
Gener
al and
Inspect
or
Gener
al of
Gover
nment
vs
Afric
Co-
operati
ves
Society
Limite
d
Miscell
aneous
Applic
ation
No.6 of
2011
and
submitt
ed that
it was
differe
nt from
the
instant
case as
the
former
was in
regard
to a
report
from
the
IGG
which
had not
been
disclos
ed to
the
respon
dent
thus
bringin
g
questio
ns of
fairness
and
natural
justice
In reply
Counse
l for
respond
ent
submitt
ed that
the case
of
Gordo
n
Sentib
a &
Others
vs. The
Inspect
or
Genera
l of
Gover
nment
(supra)
was
disting
uishabl
e from
the
present
case
because
while
in
Sentiba
’s case
this
Court
criticiz
ed the
Inspect
orate of
Govern
ment
for
attempt
ing to
investig
ate a
decisio
n that
had
been
made
by
Court
on
ground
that it
was
made
fraudul
ently,
in the
instant
case,
the
prosecu
tion of
the
appella
nt was
founde
d on an
alleged
illegal
action
by her
and it
did not
in any
way
interfer
e with
the
ongoin
g civil
case
against
her
office.
Counse
l
quoted
Justice
Odoki
CJ
where
he
observe
d that
in that
case
nothing
prevent
ed the
respond
ent
(Inspec
torate
of
Govern
ment)
from
investig
ating
officers
it
conside
red had
abused
their
powers
and
take
appropr
iate
action
accordi
ng to
its well
laid
down
mandat
e,
which
proposi
tion
support
s the
prosecu
tion of
the
appella
nt.
We
agree
with
counsel
for
respond
ent that
this
case is
totally
differen
t from
the case
of
Sentiba
, in that
while
in that
case,
the
Inspect
orate of
Govern
ment
was
attempt
ing to
investig
ate a
decisio
n of
Court
(consen
t
judgme
nt) that
had
been
made
by
Court
on
ground
that it
was
made
fraudul
ently,
in the
instant
case the
respond
ent
intends
to
prosecu
te the
appella
nt for
an
alleged
illegal
action
taken
by her
and
there is
no
interfer
ence
whatso
ever
with
the
civil
case,
which
may be
taken to
violate
the
indepen
dence
of the
judiciar
y. We
find no
merit in
this
ground.
On
Groun
d
4,Coun
sel for
appella
nt
submitt
ed that
the
positio
n of the
Directo
r of
Public
Prosecu
tions
which
is
created
under
Article
120 of
the
Constit
ution of
the
Republi
c of
Uganda
, 1995
and that
of
Inspect
orate of
Govern
ment
which
is
created
under
Article
223 of
the
Constit
ution of
Republi
c of
Uganda
are
distinct
with
differen
t
respons
ibilities
and
criticiz
ed the
Learne
d
Justices
of
Appeal
for
compar
ing the
DPP to
the
IGG
who is
restrict
ed
under
section
19(1) (
c) of
the
Inspect
orate of
Govern
ment
Act.
Counse
l for
respond
ent
submitt
ed that
the
observa
tion
was
plainly
seen
and did
not
constitu
te the
reason
to
uphold
the
appeal
against
the
appella
nt. He
contend
ed that
wherea
s the
Directo
r of
Public
Prosecu
tions
under
Article
120 of
the
Constit
ution
and the
Inspect
orate of
Govern
ment
under
Article
223 of
the
Constit
ution
are
distinct,
the
compar
ison did
not
influen
ce the
judgme
nt but
rather a
compar
ison
basing
on the
constitu
tional
functio
ns of
the two
offices,
implyin
g that
the
DPP
could
as well
have
institut
ed
crimina
l
proceed
ings
while
the
civil
case
against
the
commis
sioner
proceed
ed.

The
observa
tion of
the
Court
of
Appeal
on this
issue
was
that:-

“
W
e
n
ot
e
t
h
at
t
h
e
c
ri
m
in
al
p
r
o
c
e
e
di
n
g
s
a
g
ai
n
st
t
h
e
a
p
p
el
la
n
t
fr
o
m
w
hi
c
h
t
h
e
a
p
p
e
al
a
ri
se
s
c
o
ul
d
h
a
v
e
b
e
e
n
in
st
it
u
te
d
b
y
t
h
e
D
P
P.
T
h
e
r
e
is
n
o
p
r
o
vi
si
o
n
in
t
h
e
M
a
gi
st
r
at
es
A
ct
o
r
a
n
y
ot
h
e
r
la
w
t
h
at
r
es
tr
ic
ts
t
h
e
p
o
w
e
rs
of
t
h
e
D
P
P
in
t
h
e
s
a
m
e
w
a
y
a
s
se
ct
io
n
1
9(
1)
(a
)
(c
)
of
t
h
e
I
n
s
p
e
ct
o
r
at
e
of
G
o
v
e
r
n
m
e
n
t
A
ct
r
es
tr
ic
ts
t
h
e
p
o
w
e
r
of
t
h
e
in
s
p
e
ct
o
r
at
e
of
g
o
v
e
r
n
m
e
 n
t
“

We
find
nothing
wrong
with
the
Court
of
Appeal
in
compar
ing the
mandat
e of the
DPP
and
IGG as
far as
instituti
ng
crimina
l
procee
dings
are
concer
ned.
Both of
them
derive
the
power
directly
from
the
Constit
ution.
We
have
explain
ed the
restricti
ons of
the
IGG
under
section
19. We
find no
merit
in this
ground.
On
Groun
d 5,
Counse
l for
appella
nt cited
Article
135 (1)
of the
Constit
ution
of
Republ
ic of
Uganda
which
provide
s that
the
Court
of
Appeal
shall be
duly
constit
uted at
any
sitting
if it
consist
s of an
uneven
number
not
being
less
than
three
membe
rs of
the
Court.
Counse
l
conten
ded
that the
judgme
nt of
Court
of
Appeal
of 15th
day of
January
, 2018
was
signed
by only
two
Honora
ble
Justices
of
Court
of
Appeal
instead
of the
require
d
minimu
m of
three.
Counse
l
submitt
ed that
it is
trite
law
that a
judgme
nt of a
dissenti
ng
justice
should
be
attache
d in the
way it
was
done in
the
case of
Wepuk
hulu
Nyung
uli vs
Ugand
a
Crimin
al
Appeal
No.21
of 2001
where
dissenti
ng
judgme
nt of
Justice
Muleng
a was
attache
d to the
rest of
the
judgme
nt of
the
Court
and his
reason
for
disagre
eing
with
the rest
of the
Justices
of
Suprem
e
Court.
Counse
l
submitt
ed that
there
was no
evidenc
e of the
third
Justice
particip
ating in
writing
of the
judgme
nt and
the
judgme
nt itself
is dated
on a
date
when
he was
no
longer
a
Justice
of the
Court
of
Appeal
.
Counse
l for
respon
dent
agreed
with
counse
l for
the
appella
nt that
under
Article
135(1)
of the
constit
ution
the
Court
of
Appeal
is duly
constit
uted at
any
sitting,
if it
consist
s of an
uneven
numbe
r not
less
than
three
membe
rs of
the
court
but
hastene
d to
add
that a
majorit
y of
the
court
constit
ute a
judgme
nt of
the
court.
Rule
33(3)
of the
Judicat
ure
(Court
of
Appeal
Rules)
Directi
on SI-
13-11
is to
the
effect
that, in
crimin
al
appeals
, one
judgme
nt shall
be
given
as the
judgme
nt of
the
court
but a
judge
who
dissent
s shall
not be
require
d to
sign
the
judgme
nt. It is
not
mandat
ory
under
the rule
for
dissent
ing
judge
to give
his/her
reasons
for
dissent
nor
does it
require
him or
her to
indicat
e his or
her
input
whatso
ever in
the
judgme
nt of
the
Court.
Counse
l
submitt
ed that
the
decisio
n of
Court
of
Appeal
constit
uted
majorit
y
decisio
n
withou
t the
need
for
having
signatu
re or
input
of the
dissent
ing
judge.

This
Court
has had
occasio
n to
discuss
the
conseq
uences
of
deliver
ing
judgme
nt
where
for one
reason
or
another
one of
the
judges
who
heard
the
case is
no
longer
in
jurisdic
tion.
This
was
Civil
Applic
ation
No. 17
of
2007
betwee
n
Orient
Bank
Ltd
and
Fredri
ck
Zaabw
e and
Mars
Tradin
g
Limite
d
where
it was
conten
ded
that a
case
heard
and
decide
d by a
Coram
of five
Justice
s is
invalid
if at
the
time it
is
deliver
ed one
of the
Justice
s has
ceased
to be
membe
r of the
Court.
Justice
Karoko
ra, JSC
had
retired.
The
Court
stated
as
follows
:-

“
It
is
a
tr
it
e
t
h
a
t
a
j
u
d
g
m
e
n
t
t
a
k
e
s
ef
fe
ct
fr
o
m

t
h
e
d
a
y
it
is
p
r
o
n
o
u
n
c
e
d
,
h
e
n
c
e
t
h
e
r
e
q
u
ir
e
m
e
n
t
i
n
s
u
b
-
r
u
le
(
9
)
t
h
a
t
it
b
e
a
s
o
f
t
h
e
d
a
y
it
’s
d
el
iv
e
r
e
d
a
n
d
n
o
t
n
e
c
e
ss
a
ri
ly
t
h
e
d
a
y
 it
i
s

s
i
g
n
e
d
,

t
h
o
u
g
h

m
o
r
e

o
f
t
e
n

t
h
a
n
n
o
t

t
h
e
t
w
o

a
r
e

d
o
n
e
a
t

t
h
e
s
a
m
e

t
i
m
e
.

O
n
t
h
e

o
t
h
e
r

h
a
n
d
,

t
h
e

r
e
q
u
i
r
e
m
e
n
t

f
o
r
t
h
e

j
u
d
g
m
e
n
t
t
o

b
e

i
n

w
r
i
t
i
n
g

a
n
d
s
i
g
n
e
d
i
s

t
o

e
n
s
u
r
e

i
t
s

a
u
t
h
e
n
t
i
c
i
t
y

a
n
d

v
a
l
i
d
a
t
i
o
n

a
s

t
h
e

j
u
d
g
m
e
n
t

o
f
t
h
e

J
u
d
g
e

/
J
u
d
g
e
s

m
a
k
i
n
g

i
t
.

I
n

t
h
e

c
a
s
e
o
f

r
e
s
e
r
v
e
d

j
u
d
g
m
e
n
t
s
,

t
h
e

w
r
i
t
i
n
g
a
n
d

s
i
g
n
i
n
g

a
r
e

i
n
v
a
r
i
a
b
l
y

d
o
n
e

b
e
f
o
r
e

t
h
e
t
i
m
e

t
h
e

j
u
d
g
m
e
n
t

i
s
d
e
l
i
v
e
r
e
d
,

a
n
d

i
t
s

a
u
t
h
e
n
t
i
c
i
t
y

a
n
d

v
a
l
i
d
i
t
y

a
r
e
t
h
u
s

p
r
e
s
e
r
v
e
d

u
p

t
o
i
t
s

d
e
l
i
v
e
r
y
.
W
h
e
r
e
a
t

a
n
y
t
i
m
e

b
e
f
o
r
e

i
t
s

d
e
l
i
v
e
r
y
,

t
h
e

j
u
d
g
m
e
n
t

i
s
a
l
t
e
r
e
d
b
e
c
a
u
s
e

t
h
e
r
e
i
s

c
h
a
n
g
e

o
f
m
i
n
d
,

t
h
e

a
l
t
e
r
e
d

j
u
d
g
m
e
n
t

h
a
d

t
o

b
e

s
i
m
i
l
a
r
l
y

a
u
t
h
e
n
t
i
c
a
t
e
d

a
n
d

v
a
l
i
d
a
t
e
d
.

I
n

e
i
t
h
e
r

c
a
s
e
,
t
h
e

j
u
d
g
m
e
n
t
i
s

d
e
l
i
v
e
r
e
d

a
s

t
h
e

v
a
l
i
d

j
u
d
g
m
e
n
t
o
f

t
h
e
j
u
d
g
e

w
h
o

p
r
e
p
a
r
e
d

a
n
d

s
i
g
n
e
d
.

W
e

a
r
e

n
o
t
p
e
r
s
u
a
d
e
d

t
h
a
t
t
h
e

s
i
t
u
a
t
i
o
n
w
h
e
r
e
t
h
e

j
u
d
g
e
,

h
a
v
i
n
g

s
i
g
n
e
d

r
e
s
e
r
v
e
d
j
u
d
g
m
e
n
t
,

d
o
e
s

n
o
t

a
l
t
e
r

t
h
e

j
u
d
g
m
e
n
t
,

c
a
l
l
s

f
o
r
s
p
e
c
u
l
a
t
i
o
n

w
h
e
t
h
e
r
i
t

i
s

b
y

c
h
o
i
c
e

o
r

b
e
c
a
u
s
e

t
h
e

j
u
d
g
e

c
e
a
s
e
d

t
o

b
e
a

m
e
m
b
e
r

o
f

t
h
e

C
o
u
r
t
.

W
e

s
a
y

t
h
i
s
b
e
c
a
u
s
e

i
n

o
u
r

v
i
e
w
,
m
u
c
h

a
s

t
h
e

d
a
y

o
f

d
e
l
i
v
e
r
y
i
s

t
h
e
d
a
y

i
t
t
a
k
e
s
e
f
f
e
c
t
,
i
t

i
s
n
o
t

t
h
e
d
a
y

t
h
e

d
e
c
i
s
i
o
n

i
s
m
a
d
e
.

W
e

t
h
i
n
k
t
h
a
t

n
e
i
t
h
e
r
t
h
e

i
n
t
e
r
e
s
t

o
f

j
u
s
t
i
c
e

n
o
r
p
u
b
l
i
c
p
o
l
i
c
y
w
o
u
l
d

d
e
m
a
n
d

t
h
a
t

d
e
c
i
s
i
o
n

o
f

f
i
v
e
j
u
d
g
e
s
b
e

i
n
v
a
l
i
d
a
t
e
d
b
e
c
a
u
s
e

o
n
e

o
f

t
h
e

j
u
d
g
e
s

w
h
o

p
a
r
t
i
c
i
p
a
t
e
d

i
n

t
h
e

d
e
c
i
s
i
o
n

r
e
t
i
r
e
d

o
r
d
i
e
d

b
e
f
o
r
e

t
h
e

d
e
c
i
s
i
o
n

w
a
s

p
r
o
n
o
u
n
c
e
d
.
”
(
e
m
p
h
a
s
i
s

a
d
d
 e
d
)

We
istinction between the
nt Bank where the fifth
etired after signing the
and this instant case
vuma, DCJ retired
ning the judgment.The
mely, Bossa, JA and
A signed it. The
ated that there was no
at the third Justice did
pate in writing of the
and there was no
any form to show that
hearing the said third
ame incapacitated to
unable to participate in
 the judgment or to
views to the two other
he panel.
Sub rule (3) of the
(Court of Appeal Rules)
provides that:-
33.
Judgm
ent.

1)This
rule
shall
apply
to
judgm
ents
and
orders
by the
 court.

2)….. ..........................

riminal appeals, one

shall be given as the
of the court, but a judge
ts shall not be required
judgment.

iding judge may, in any

case, direct that separate
be given.

…”

rovides for one judgment

ubmitted by counsel for
ndent. There is no
nt for a dissenting judge
issenting judgment.

of Wepukhulu Nyunguli
da (Supreme Court
Appeal No.21 of 2001)
ounsel for the appellant,
of the Supreme Court
ppeal. Rule 32 sub
r
the Judicature (Supreme
es) Directions which is
he above Court of Appeal
des that “in criminal
, other than an
heard by a single judge,
minal appeal, one Order
ent shall be given as the
udgment of the Court,
e who dissents shall not
d to sign the judgment;
t the presiding judge
y particular case, direct
ate orders or judgments
ent was signed by three
ive judges that heard the
e other two judges
Of the two judges who
only Justice Mulenga,
ned the reason why he
eld his signature from
 ty judgment. The other
Justice Oder, JSC
his signature without
his reasons for doing so.
in compliance with the
his case Hon. Justice
DCJ who was the head of
 withheld his signature
majority judgment. It is
o speculation as to why
d his signature. As the
e panel he also had the
direct that separate
be given which he did
a majority decision which
the judgment of the court.
ce of a third Justice’s
does not invalidate the
the court which was taken
earing of the case in
with the constitution. In
tances we find no merit in
which is also dismissed.
since all the grounds of
e been dismissed, the
dismissed for lack of
Dated at Kampala this 3rd day
December 2018
oko

F SUPREME COURT

a Eldad,
 JUSTICE OF
SUPREME
COURT

chard ,
 F SUPREME COURT

A.S
TICE OF SUPREME