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

causing financial loss C/S 20 ACA, 2009. The two are alleged to have irregularly approved and caused payment of UGX. 24,790,823,522= to Eutaw Construction Co Inc while aware of the short comings in the due diligence report on the company knowing or having reason to believe that loss would occur.

7. Count Seven: A2 and A3 are charged with Abuse of office C/S 11(1) ACA, 2009. They are accused of irregular approval and causing payment of UGX. 24,790,823,522= to Eutaw Construction co Inc in abuse of authority while aware of the short comings in the due diligence report.

8. Count Eight: A4 is charged with causing financial loss C/S 20 ACA, 2009. He is accused of misadvising UNRA to sign the contract with Eutaw Construction Co Inc before carrying out due diligence on the company knowing or having reason to believe that financial loss would occur.

9. Count Nine: A4 is charged with Abuse of office C/S 11(1) ACA, 2009. He is accused of tendering advice in abuse of authority before due diligence was done which caused financial loss of UGX. 24,790,823,522= to the GOU.

10. Count Ten: A3 and A7 are charged with causing financial loss C/S 20 ACA, 2009. The two are accused of omitting to properly verify a performance guarantee and an advance payment security from HFB Ltd knowing or having reason to believe that financial loss would occur.

11. Count Eleven: A3 and A7 are jointly charged with Corruption C/S 2(i) ACA, 2009. The two are

16. Count Seventeen: A5 is charged with Uttering false documents C/S 351 and 347 of the PCA, Cap 120. He is accused of knowingly and fraudulently uttering a false performance bond for UGX.24,790,823,522 to UNRA purporting it was issued by SWICO whereas not.

17. Count Eighteen: A5 is charged with Uttering false documents C/S 351 and 347 of the PCA, Cap 120. He is accused of knowingly and fraudulently uttering a false bid guarantee for UGX. 16,528.000,000 to UNRA purporting it was issued by KCB (U) Ltd whereas not.

18. Count Nineteen: A5 is charged with Uttering false documents C/S 351 and 347 of the PCA, Cap 120. He is accused of knowingly and fraudulently uttering a false bank guarantee for UGX. 1,900,000,000 to UNRA purporting it was issued by KCB (U) Ltd whereas not.

19. Count Twenty: A5 is charged with obtaining the execution of a Security by False Pretences C/S 306 of the PCA, Cap 120. He is accused falsely pretending that no advance payment had been received by Eutaw Construction Co Inc from UNRA and with intent to defraud induced ICEA to execute and issue a performance bond for UGX. 16,527,215,618= in favour of UNRA

20. Count Twenty One: A5 is charged with obtaining the execution of a Security by False Pretences C/S 306 of the PCA, Cap 120. He is accused of falsely pretending that no advance payment had been received by Eutaw Construction Co Inc from UNRA and with intent to defraud induced UAP Insurance (U) Ltd to execute and issue advance payment bond for UGX. 24,790,823,522= in favour of UNRA.

21. Count Twenty two: A5 and A6 are charged with Conspiracy to defraud C/S 309 of the PCA, Cap 120. The two are accused of fraudulently conspiring to defraud UNRA of UGX. 24,790,823,522= the property of GOU for upgrading Mukono-Katosi/ Kisoga-Nyenga Road.

22. Count Twenty three. A6 is charged with abetting the offence of causing financial loss C/s 52(c) of the ACA, 2009. He is accused of abetting the offence of causing financial loss when he fraudulently confirmed to A7 that the performance guarantee and advance payment security were authentic and from HFB Ltd whereas not.

PROSECUTION CASE

The prosecution adduced evidence of 23 witnesses. Their evidence is essentially circumstantial. It is heavily reliant upon documents and human conduct of the accused persons. The gist of their evidence is that a company called Eutaw Construction Company Inc of Florida was awarded a contract for the construction of Mukono- Katosi-Kisoga -Nyenga Road yet the bidder for the job was Eutaw Construction Company of Mississippi both found in USA. The prosecution contends that this was illegal since the bidding company was different from the one awarded the contract.

The prosecution evidence is that this discrepancy between the bid and the final award was the subject of due diligence which was not concluded.

Further, that the securities which were supposed to secure the advance payment were fake as well as forged.

An advance payment of UGX 24,790,823,522= was made against forged or unenforceable securities.

This money was withdrawn and spent. A company called CICO was given half of the funds and mobilized to start construction of the road.

When the IGG learnt that the bidding company was different from the one awarded the contract and that the company executing the works was also different from the one awarded the contract, coupled with information that the securities provided by the bidder were not genuine, she stopped further works until investigations were conducted.

The prosecution contends that this order was disobeyed. The prosecution further contends that the money paid as advance was lost since it was paid to a different company that never bid for the job. Since the security guarantees were false it meant that the money was not recoverable.

The prosecution contends that the accused persons are culpable in facilitating the award of the contract to a wrong company against false securities. It is also alleged that as a result, this advance payment was stolen.

DEFENCE CASE

Each of the accused persons denied the charges and

Construction Company, Florida.

As regards the various securities presented to support the advance payment, it was his evidence that he did not forge or believe the same to be forged. He asked Mayimuna (PW.13) to procure securities which she did only to be told they were forged.

He contacted MARSH Insurance brokers who provided other securities from ICEA and UAP Insurance companies.

Except for SWICO, UAP and ICEA securities, he denied presenting the others to UNRA. It was his evidence that Eutaw Florida had an office on plot 85 Jinja road with staff who must have delivered the other questioned securities.

He denied conspiring with A6 to defraud UNRA contending that A6 only opened the account for Eutaw construction company Inc in Housing Finance Bank as relationship manager. Their relationship was that of customer/banker only.

A6 denied conspiring with A5 to defraud UGX 24,790,823,522=. He just acted as a relationship manager for the account opening for which he was credited and applauded by his employer for bringing in good business.

He denied providing A5 with any blank bank forms and also denied communicating with A7 to give false assurances about the securities from HFB Ltd.

A7 denied causing financial loss and neglect of duty. It was his evidence that it was not his schedule to verify securities. He contended that his contract appointment did not include verification of securities.

He denied communicating with A6 about the HFB securities and denied owning the emails found in UNRA attributed to him on grounds that his IP address was not traced on the offending electronic mails nor was his computer imaged to identify the disputed communications. He also denied using the email address on exhibit P53 because he does not use upper case addresses yet exhibit P53 contained upper case addresses.

BURDEN OF PROOF

Once the Accused persons deny the charges, the Prosecution assumes the duty to prove the guilt of the Accused.

STANDARD OF PROOF

The Prosecution is required to prove all the essential elements of the offence against each of the accused persons beyond reasonable doubt. Beyond reasonable doubt means that the evidence adduced must carry a reasonable degree of probability of the accused’s guilt leaving only a remote possibility in his favour.

INGREDIENTS OF THE OFFENCES CHARGED

1. Abuse of office C/S 11(1) ACA, 2009: The prosecution is required to prove the following elements against each accused.

1. Employment in a public body or a company in which the Government has shares.

2. Doing or directing an arbitrary act to be done in abuse of his/her authority.

3. The arbitrary act must be prejudicial to th

ii

with or in relation to them. It is evidence at times regarded to be of higher probative value than direct evidence which may be perjured or mistaken.

It is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. See: Akbar Hussein Godi Vs Uganda Criminal Appeal 3 of 2013 (SC).

In this regard I shall examine the following circumstances in relation to the respective defences raised against them by each of the accused on each count and draw conclusions based on the standard required of circumstantial evidence explained above. I consider the following species of circumstantial evidence.

1. Letters written by A1 to sign the contract and to proceed with the sub-contract.

2. Letter written by A4 advising that the contract be signed.

3. Decision by UNRA to proceed with the contract and do due diligence concurrently with execution of works.

4. The causal manner in which securities were handled resulting in the receipt of several invalid securities to secure one bid.

5. The relationship between A5 and A6.

6. The electronic mails attributed to A6 and A7

7. The conduct of each of the accused persons in

this procurement.

8. All efforts made to execute this contract. Was in good faith or was it for criminal intentions?

Count One.

A1 is accused of abuse of office for writing a letter exhibit D3 which directed the immediate signing of the contract.

The prosecution submission is that A1 had no business directing UNRA on what to do except in abuse of his authority. It contends that what followed was signing of a contract with a fictitious company.

A1 denied any wrong doing. His testimony is that he was mandated to supervise UNRA in absence of the board and as a politician he wanted the road done now that funds were available. This road had been promised to the people for a long time. It was his view that the UNRA technocrats were supposed to follow the law while implementing his orders. He also stated that he was comforted to write the letter because the Solicitor- General had cleared the contract and legal counsel,A4, had advised that due diligence can go on anytime.

In the circumstances of this case, did A1 act arbitrarily in asking A2 to sign the contract or not?

An arbitrary act is an action, decision or rule not seeming to be based on reason, system, or plan and at times seems unfair or breaks the law.

Ms Sarah Birungi, the Director legal Affairs in the Inspectorate of government submitted that the act of writing exhibit D3 directing A2 to sign the contract was arbitrary because A1 was aware that the identity of the contractor was questionable. It was her view that a due diligence mission commissioned by A2 was supposed to clear the air but before it could be done A1’s letter

The accused tendered exhibit D36 which granted a waiver by PPDA from 10 to 5 days.

The letter from PPDA (exhibit D36) dated 7^th November 2010 granting the waiver renders charges in count four to be misconceived. If exhibit D36 had been produced before A2 gave his defence, the charges would have collapsed at the closure of the prosecution case. A2 is not guilty on count four.

Count Five

A2 is accused of abuse of office by signing the contract before doing due diligence an act the prosecution considered prejudicial to the government.

It was submitted for A2 that signing the contract was inevitable because it was urgent. The procurement had stalled from 2010 and now that funds were available in 2013 it was necessary to kick start the work.

Further, it was A2’s defence that he was alive to the need for due diligence that is why he set up a committee to do both the preliminary and the detailed due diligence.

I was asked to consider that the identity of the contractor had been an issue from 2010 even before A2 became acting Executive Director. Whilst Eutaw Mississippi was the bidder, a letter (D15) by Ayelew Belew, the director procurement UNRA, was addressed to Eutaw Florida instead of Eutaw of Mississippi.

Indeed the bid documents of 2010, particularly Form ELI-1.1 called the Applicant Information Form’ copies of which are found in exhibits P8 and P13 contain the following info.

1. Legal Name: Eutaw Construction Company Inc.

2. Country: USA

3. Legal address in USA: Commercial Street 109W

Aberdeen Mississippi, USA

4. Authorized Rep: Apollo Senkeeto of 622 Beach

Land Blvd Suite 201 Vero Beach, Florida, USA All correspondences after the submission of the bid were to Florida at the address of A5, who was the authorized representative.

It was submitted that by the time A2 was appointed Ag Executive Director in June 2013, the discrepancies in the identity of the bidder was already known to UNRA. The Minutes of the contracts committee that awarded the contract contained in exhibit D23 advised that due diligence should be done concurrently with the progression of the contract.

On this basis and given this history A2 denied acting arbitrarily. He also relied on the legal advice of A4 and directive of A1 to sign. That is his defence.

I have already examined the circumstances of this procurement in respect of the actions of A1 in regard to signing the contract and found that there was nothing illegal or criminal about the decision to sign it and continue with due diligence after. This is based on the fact that due diligence is permissible under the law to be done concurrently with performance of the contract. Further, any payments under the contract are supposed to be secured by guarantees for advance payment.

A2’s decision to sign the contract was proper in law. I accept the submissions that A2 tried his best to do due diligence. He set up a team to investigate the contractor and made consultations including chairing meetings to sort out this matter of identity. It has not been shown to me that A2 was reckless or even arbitrary. He inherited a confused procurement that had dragged on for three years. He upon getting advice from A4 and a directive from A1 put pen to paper. He did not act alone or criminally with others. As accounting officer A2 does not sit on the contracts committee to select or even evaluate bidders. He is prohibited to do so.

The submission that he signed a contract with a company that did not bid is not for him to answer but the procurement director, Eng Ayelew and the contracts committee.

The Courts have in cases such as Eng Samson Bagonza Vs Uganda Cr App 2 of 2010 (COA) held that where an accused implements decisions taken after consultative meetings, such a person cannot be held to have acted arbitrarily or capriciously because meetings are by their nature consultative and decisions arising out of meetings are collective rather than individual. There is abundant uncontroverted evidence by A1 and A2 that they held several meetings to discuss this matter. The decision to sign the contract and continue with further due diligence was a result of those meetings. Even the contracts committee reached a similar decision. Meetings bring in transparency and collective decision making. Meetings are a vital tool in the management of public affairs. The prosecution evidence from witnesses such as PW1, PW3 and PW5 is that those meetings were held. The signing was a culmination of those meetings. In absence of evidence that those meetings were for conspirators held with intent to defraud, A2 has not been proved to have acted arbitrarily. A2 could be a victim of taking over a manipulated procurement. The director procurement and the contracts committee should be held responsible for awarding a contract to a wrong bidder and not A2. He is not guilty of abuse of office on count five.

Count Six

A2 and A3 are jointly accused of Causing Financial Loss for approving and causing payment of UGX 24,790,823,522= while aware of the identity issues of the contractor contained in the preliminary due diligence report. (Exhibit P8)

The prosecution contends that the two had knowledge or reason to believe that such approvals of payment would cause financial loss to government.

The prosecution case is that the two should not have endorsed the advance payment until the final due diligence report had been made.

In their defence, A2 contends that the memo written by the project manager, PW4, in exhibit P9 was clear that the payment was not only due but was secured by guarantees. This means that if anything went wrong UNRA would enforce the securities against the guarantors.

For A3 it was submitted that he was not aware of the preliminary due diligence report because it was not shared with the finance department. Further, it was submitted that A3 was not an accounting officer to approve payments. It was the contention of learned counsel for A3 that there was no proof of actual loss because some work had been done on the road amounting to approximately 6.1 billion before they

indicate later on in this judgment. The prosecution should have commissioned an engineering audit of the road works or obtained and led evidence from the contract supervising consultant to establish the actual value of work done. It is the actual value of work done plus assets if any, minus the advance payment that would establish the actual loss. Loss is that value that is not recoverable by any measures considering that fake securities were used.

Ms Birungi submitted that as long as there is evidence of loss then loss is proved. With respect to learned counsel, I am unable to accept that argument for two reasons. The first is that the charges speak of loss of 24,790,823,522= yet evidence adduced shows that it is less than that. If evidence adduced is contrary to the charges in court then the case is not proved beyond reasonable doubt. The variance creates doubt which is resolved in favour of the accused.

Secondly, on the authorities of Kassim Mpaga (supra) and Walubi (supra) I am unable to accept the argument that loss means any loss. Loss under section 20 of the ACA, 2009, means actual loss computed or established by specific evidence. This being a key ingredient which is missing means that the charges in count six have not been proved beyond reasonable doubt.

It is my finding that financial loss has not been proved against A2 and A3 in count six. They are not guilty of causing financial loss in count six.

Count Seven

A1 and A2 are accused of abuse of office. The prosecution contends that by approving and causing payment of UGX 24,790,823,522= the two acted arbitrarily in abuse of the authority of their office. It is said that these acts were prejudicial to government.

It was submitted that by processing and approving payment before ascertaining the identity of the contractor exposed government to loss.

For A2 it was submitted that at this stage due diligence was not in issue because once the contract was signed, advance payment became due. All that was required were valid securities to back up the payment. PW4 gave the assurance against which payment was made. It was argued that there was no abuse of office. All they did was what they were expected to do under the contract. For A3 it was submitted that he was led by a draft prepared by A7, his junior to assure that the securities were proper. He relied on A7 as the person charged with verification of securities. I was referred to initials “S.W” on exhibit P131 which A3 signed confirming that the HFB Ltd securities were genuine. These initials are said to be the names of Senjako Wilberforce who is A7.

The advance payment became due upon signing the contract. I have found that the mere signing of the contract was not illegal or criminal. Due diligence was not reason enough at the time the contract was signed to stop the procurement. Any risks that would arise would be covered by valid securities.

This particular payment was caused by PW4 who initiated a claim as project manager for the road works. He wrote exhibit P9 addressed to A2. PW3 the director Audit raised a red flag about the identity of the contractor. A meeting was held in A2’s office on 7^th

January 2014 to address that concern. According to the minute of A3 on exhibit P9, this meeting agreed that due diligence goes on concurrently with payment. PW3 later cleared the payment which A2 approved as accounting officer.

Exhibit P9 which was written by PW4 is clear that the payment being sought is secured by authenticated and verified securities. This verification is contained in an assurance letter prepared by A7 (Identified by his initials SW) and signed by A3. See exhibit P131 dated 24^th December 2013.

Approval is by the accounting officer while causation was by PW4 who initiated the process as project manager. PW3 endorsed it for approval once A3 gave the justification in his minute of 7^th January 2014.

It is strange that the prosecution picked out A2 and A3 for charging yet the payment was initiated by PW4 and endorsed by PW3 an Auditor. These two were treated as witnesses. The payment was a process involving more people.

Since the payment was secured on the strength of A3’s letter of 24 December 2013 which lied about the validity of the securities he cannot run away from responsibility. A2 approved the payment knowing his directorate of finance had secured the payment in case something went wrong. In business processes, risks are insured. A3 confirmed that the Authority had been insulated from risk by a bank guarantee. His assurance is in exhibit P131. A3 testified that he also relied on A7. One would have expected both A3 and A7 to be on this count. A2 was wrongly joined.

The action of A2 in approving payment was not arbitrary.

It was proper. The action of A3 in causing the approval was arbitrary because he as the technical financial adviser to UNRA and ipso facto to A2 (Executive Director), should have protected the Institution by verifying that advance payments are secured by valid guarantees. It was his duty as director of finance to mitigate the risk of UNRA payments. To allow UNRA to pay UGX 24,790,823,522= without security given the issues discussed in the meeting he attended on 7th January 2014 showed total abuse of his function.

Perhaps I should note that A2 relied on A3 who had written a letter guaranteeing payment. PW4 also relied on the letter signed by A3 confirming that the payment is secured. PW3 also relied on A3’s note that payment should go on with due diligence. A3 was the finance professional in this transaction. A3 and A7 should have appeared jointly on this count.

While the decision to pay and do due diligence concurrently was a group decision by top management and the contracts committee, the verification of the security which turned out to be false verification was the responsibility of A3 as head of finance and A7 as action officer.

These two failed in their duties and exposed their employer to prejudice. There was no verification of the security from Housing finance bank. If it had been done, this matter would not be in court. The payment would not have been made.

A3 acted unreasonably or deliberately gave a false assurance to allow the contractor dodge paying for the guarantee because a bank guarantee attracts interest

A3 abused the authority of his office by writing a false letter to release a payment of UGX 24,790,823,522=. That was criminal for a director of finance to do. The two gentlemen assessors advised me that A3 like A2 relied on a letter exhibit P9 written by PW4 assuring that the securities had been verified and so the two are not guilty. With respect the gentlemen assessors did not appreciate that the verification PW4 was referring to was the letter signed by A3 which is exhibit P131 written on 24^th December 2013, two weeks before PW4 wrote P9.

It is also worth noting that it is A3 who wrote introducing A5 to the bank to open an account for Eutaw construction company Inc on 18^th December 2013 (exhibit P90). He was a sort of referee for Eutaw construction company Inc. yet he could not verify the securities which according to PW4 who authored exhibit P9 were provided by A3’s directorate. A3 is guilty of abuse of office on count seven.

I find no proof of incriminating evidence against A2 on count seven. He is not guilty.

Count Eight.

A4 is accused of causing financial loss of UGX 24,790,823,522= for misadvising UNRA to sign the contract before due diligence was concluded.

The prosecution contended that A4 participated in the negotiations and should have advised better with hind sight about the potential risk if the contract was signed. He is alleged to have been in contact with A5 and matched him to A2. He is said to have bought the idea of a special purpose vehicle (SPV) from A5 based on unverified Powers of Attorney. The prosecution accused A4 for inserting a repudiation clause in an agreement already cleared by the Solicitor General because he was aware that the identity of the contractor was fictitious.

In his defence A4 contended that the advice he gave was the correct common law position. A party who misleads another purporting to be what it is not leads to cancellation of the contract. Further, he cited the law in Regulation 31 of SI 2014 No 7 which permits doing due diligence at anytime during contract execution. Technically speaking that is the position of the law. However, it was submitted that be that as it may, A4’s advice was just guidance to the accounting officer who would be free to take it or leave it.

It was submitted that the insertion of a repudiation clause in the contract was meant to add value and not to alter its terms.

I was asked to consider that whatever advice A4 rendered, there was no evidence to suggest that he knew or had reason to believe that loss would occur.

It was also A4’s testimony that if the advance payment had been backed up by valid securities, UNRA would have just enforced the guarantee without much ado. His evidence is that the verification of securities was removed from his docket despite his protest that the finance directorate cannot do the payments and verify the securities without a conflict of interest.

I have already found on the authorities cited when evaluating evidence in count four that the prosecution did not adduce evidence of the exact loss which the accused caused. Various sums were presented by prosecution witnesses such as PW4 (Eng Olwa), PW8 ( Eng Nuo Hong) and PW22, Ms Mwagale, investigating officer as the value of work on the ground. Their values ranged from 5.8 to 6.1 billion out of 24.7 billion. None of these witnesses had an audit report of the value of the road works done in order to determine the loss. The cases of Kassim Mpanga (supra) and Walubi (supra) require that the loss be total in that it is not recoverable and the amount lost be quantified. It should not be assumed or anticipated. It must have occurred. The most logical way of proving financial loss is to tender an audit report that details what the loss is.

It is not true that UGX 24,790,823,522= was lost in this case. The figure is less than that but there is no evidence of what it is. The charges against A4 on this count have not been proved beyond reasonable doubt.

I have also found that signing the contract was not itself illegal or irregular because the procurement laws in regulation 31 of SI 2014 number 7 permitted contract performance while due diligence continues. No crime can be founded on what the law permits.

A4 was also faulted for inserting a repudiation clause in the contract which stated that if the contract^rns to be what it is not then the contract would be repudiated. Frankly, that is the law of contract. A4 just fortified the contract. He did not weaken it. A4 is being prosecuted using hind sight but at the time of the contract unless there was evidence that he knew about the fake securities, there was no reason to stop the procurement process. Risks are part of successful business provided mitigation measures are taken such as demanding advance payment and performance guarantees. A4 is not guilty on count eight.

Count Nine

A4 is accused of abuse of office by misadvising A2 to sign a contract before completion of due diligence. This was said to be arbitrary use of the authority of his office. It was submitted that the context of this case based on the information at his disposal, A4 should have advised that due diligence be completed before the signing the contract. It was the view by the prosecution that since the securities were bogus advice to sign was prejudicial to the government. The time for due diligence according to the prosecution was at the time A4 advised to sign and not the future given the circumstances surrounding this procurement.

A4 denied acting arbitrarily because his advice was sought by A2. It was not voluntary. It was submitted that his advice is the correct legal position and there was no evidence to show that he acted with fraudulent intent to commit a crime.

Did A4 act unreasonably or illegally in the circumstances of this case?

Was A4 armed with information which should have caused him to advise that due diligence be done before contract signing? Was A4 aware of the invalidity of the securities at the time he gave advice?

I would answer all these questions in the negative. There is evidence that A4 was relieved of his role in verification of securities in 2012 despite his protests in writing. There is evidence by PW4 that the securities were given to him by the directorate of finance and administration. A4 was not proved to have had knowledge of the false securities before advising to sign the contract. Had he known and went ahead to advise that it be signed then he would be guilty. His evidence that the securities verification function was removed from him despite his warning that there would be conflict of interest by the finance directorate was not challenged. No wonder his written warning came to pass.

A4’s taking A5 to A2 and buying the idea of a special purpose vehicle are all not material provided there were valid securities. In fact if the securities were valid, UNRA officials would not be in court. The business environment is full of risks. It is imprudent to only transact when very sure that it is safe to do so. That may be true of small proprietors but not for business organizations such as UNRA. What is important is to mitigate risks by requiring guarantees or take out insurance policies.

The advice A4 rendered was solicited by his boss. It was correct. It was not arbitrary. A4 is not guilty of abuse of office.

Count Ten

A3 and A7 are accused of causing financial loss when they omitted to verify the Housing Finance Bank securities thus causing loss of UGX 24,790,823,522= to GOU.

It is not in dispute that verification of securities was the mandate of the Finance and Administration directorate headed by A3. A7 was the action officer. Both A3 and A7 avoided responsibility with each pushing verification roles to the other.

The prosecution faulted the two for accepting securities and failing to verify them even when they are signed by middle level staff.

The prosecution relied on the testimony of PW11 who retrieved electronic mails from the Housing Finance Bank Ltd servers. This evidence showed communication between A5, A6 and A7. In that triangle, the prosecution contends that a blank sheet was sent to A5 and verification correspondences are traced between A6 and A7.

The prosecution contended that A7 was acting criminally by purporting to verify securities through electronic mails to A6 who was not a CEO of Housing Finance Bank Ltd for such a colossal sum of money.

It was further contended that the whole amount need not be proved to have been lost provided there is evidence that there was loss. PW 22 testified that only 6.1 billion worth of work had been done before tax while PW4 who was the project manager put the value at 5.8 billion. According to the prosecution, out of 24,790,823,522= only 6.1 or 5.8 billion is accounted for leaving the rest as proven loss.

For A3 it was submitted that the actual loss was not proved before court. PW8 admitted to taking 12.2 billion for mobilization and actual construction out of which 6.1 billion according to PW22 or 5.8 billion according to PW4 was expended. It was counsel’s view that since what was actually done on the road was not valued and reported upon, there is no evidence of actual loss.

For A7 it was submitted that he could not cause financial loss when he had no role to verify securities. It was contended that the chief accountant was not called to testify about the duties of A7 beyond what is contained in his employment contract.

The two denied the electronic mail in exhibit P53 claiming their email addresses do not have upper case letters and that their IP addresses are not shown rendering the email suspect.

The law is that the prosecution must prove actual loss. I have already faulted the prosecution for assuming that the court should find that there is some loss and find the accused guilty.

The prosecution should lead evidence to prove the amount of loss. The evidence given by PW4 as project engineer was his guess work. The figure of 5.8 billion which he testified about was not a result of an audit. He was clear in cross examination that the consulting engineer did not audit the work done.

On the other hand the figure of 6.1 billion given by PW22, Ms Mwagale, the investigating officer was hearsay which she got from PW8 and others on the site. The manner in which the IGG stopped the work and the style of chasing away everybody from the road meant that no audit could be done to establish the value of the road works in order to determine the actual loss.

Financial loss is a technical offence usually requiring expert auditors to establish the actual loss. It is not proven by assumptions or popular beliefs that there must be loss. Audit reports are usually the basis of proof of loss. This was not done. Even if there is strong suspicion that there was loss, the law is that suspicion however strong cannot prove the guilt of an accused. Investigations in this regard were not adequate. The evidence itself is wanting. It falls short of the standard of proof. A3 and A7 are not guilty on count

Count Eleven

A3 and A7 are charged with Corruption contrary to Section 2(i) of the Anti Corruption Act, 2009.

Essentially the two are charged with neglect of duty. The prosecution contends that they had a duty to verify securities which they neglected to perform as a result of which government lost money to a company that had obtained advance payment against invalid securities.

For A7, it was argued that one cannot neglect a duty that is not his. And one must know of the existence of that duty before neglecting it. A3 admits signing letters confirming verification because it was his mandate to sign letters going out of the directorate but the same are prepared by his juniors such as “SW” or Senjako Wilberforce.(A7)

For A7 it was submitted that he was not aware of the short comings in the due diligence report and neither was he involved in processing the advance payment. A7 admits only being a custodian of securities which he had no duty to verify.

It is not in dispute that the two accused worked in the finance directorate whose mandate since 2012 was to verify securities as well as process payments against those securities. In court they each shifted blame to one another leaving me curious as to whether there was any verification of securities at UNRA at the time.

A7 testified that he was only a custodian of securities but was not responsible for their verification. He did not say who used to give him securities to keep.

A3 admitted writing exhibit P131 dated 24^th December 2013 which confirmed that the securities from Housing Finance bank had been verified. He adds that that letter was drafted by A7 whose initials appear at the bottom as “sw”. These initials represent the names Senjako Wilberforce. According to A3’s testimony it was A7’s role to verify securities and once he was done he would draft letters for A3 to sign since it was a policy that only the head of the directorate would send out letters. It was also a policy of UNRA that whoever drafts a letter should put the initials on it for identity of the source. PW16, Hajat Mutalaga, an Insurer from SWICO insurance company stated that A7 went to her office with what turned out to be fake SWICO securities. He was inquiring if they were genuine. She told him they were not. It was PW16’s evidence that A7 went to her office with exhibit P54 a letter purporting to come from SWICO which she told him was a forgery. What would be A7’s mission if he was not charged with verifying securities? A7’s denial can only be as false as the securities in his custody.

I also believe that A7 drafted the letter that A3 signed.

I also believe as a fact based on evidence from witnesses from Housing Finance Bank such as Dorah Kiyaga, PW10 and Mary Kansiime Nyende, PW12, that the Housing Finance Bank Ltd securities which A3 signed confirming to be valid were actually forged.

There is abundant evidence from PW12 that they had guaranteed clients of UNRA before and got verification requests addressed to the CEO. Evidence of PW16 also states that they had dealt with UNRA verifications before.

Both, A3 and A7 are qualified accountants. They are educated professionals who just to look the other way to allow Eutaw construction company obtain advance payment using fake securities obtained from the street of Kampala.

The two neglected their duty of care to their employer and caused a huge risk of paying out billions of shillings without security.

It is strange that A3 who said it was his duty to sign all letters going out of the directorate would sign exhibit P131 which confirmed the securities without checking to find out if he had sent out the original request for verification. The casual manner by which A3 and A7 conducted UNRA business showed how negligent they were. Their conduct was criminal. Neglect is defined in Black’s Law Dictionary, 8^th edition as the omission of proper attention to a person or thing whether inadvertent or negligent or willful; the act or condition of disregarding.

It is my finding that A3 and A7 omitted to perform a very critical function of the finance directorate which was to ensure that securities against which payments are demanded and made are genuine. Genuine securities mitigate financial risk exposure of the Authority. There was total failure of duty by the two and the blame game by the two in court confirms their guilt.

The two gentlemen assessors advised me to find that it was A3’s duty to verify securities but advised me not to find him guilty. I was amazed by that advice. I respectfully find it contradictory to the evidence on record. The two assessors did not find A7 culpable. With respect that finding is against the weight of evidence. A7 could not admit to keeping securities he doesn’t verify. He was not a store keeper. He was an accountant. He went to PW16 to verify SWICO securities.

It is my conclusion that the prosecution has proved beyond reasonable doubt the charges in count eleven. I find A3 and A7 guilty of neglect of duty.

Count Twelve

A5 is charged with Theft of UGX 24,790,823,522= the property of Government of Uganda.

A person who without a claim of right takes anything capable of being stolen or fraudulently converts to the use of any person other than the general or special owner thereof, anything capable of being stolen is said to steal that thing.

It is the Prosecution’s case that A5 was not that person that UNRA contracted with. He had no right or claim to the money that was paid as advance. He only signed the contract as the country representative of Eutaw. He opened an account in the name of Eutaw construction company Inc at Housing Finance Bank and was originally a co- signatory with PW8 before becoming a sole signatory with his wife as a bank agent to that account.

He is accused of stealing the money because he was not the bidder and had no mandate from Eutaw Mississippi to do business in its name. PW 23 Thomas Elmore President of Eutaw Mississippi denied authorizing A5 to do business in their company name.

A5 was not a director of either Eutaw Mississippi or Eutaw Florida. He was a representative of Eutaw Florida but also claimed to be just a courier delivering documents yet he was a signatory to a company account where he disbursed billions of money including

mandating his wife to withdraw cash in millions as a bank agent.

He presented a bid in the name of Eutaw Mississippi but opened an account in the names of Eutaw Florida and signed the contract as a representative of Eutaw Florida. He received UGX 24,790,823,522= into that account and spent it. The prosecution contends that this was a fraudulent scheme to steal.

A5 denies stealing any money. It was submitted that once the contract was signed, what followed were contractual terms governing the parties that signed. Further, that due diligence could be done at anytime and there were powers of attorney mandating persons that transacted for Eutaw Florida.

A5 denies stealing the money because it was money advanced to a company pursuant to a contract. Mr Mulira learned counsel for A5 called it a form of loan to the contractor to mobilize equipment for the site which it did through A5.

Counsel also canvassed the view that A5 could not steal 24,790,823,522= when the prosecution itself called witnesses who testified that 12.2 billion was given to CICO while 4.6 billion was sent to the USA. This totals 16.8 billion out of 24.7 billion. He called this a contradiction. It was submitted that there was no evidence that A5 stole money for his own benefit.

Theft is defined in section 254 of the Penal Code Act

as reproduced below.

254. Definition of theft

A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing.

2. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he or she does so with any of the following intents—

1. an intent permanently to deprive the general or special owner of the thing of it;

2. an intent to use the thing as a pledge or security;

3. an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

4. an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

5. in the case of money, an intent to use it at the will of the person who takes or converts it, although he or she may intend afterwards to repay the amount to the owner, and “special owner” includes any person who has any charge or lien upon the thing in question or any right arising from or dependent upon holding possession of the thing in question.

2. A person shall be taken to use money at his or her own will for the purposes of subsection (2)(e), if that person deliberately or recklessly exceeds the limits of authority allowed to him or her, or deliberately or recklessly disregards any rules of procedure, prescribed by the owner in respect of the money.

3. When a thing stolen is converted, it is immaterial—

1. whether it is taken for the purpose of conversion or whether it is at the time of conversion in the possession of the person who converts it;

   
   

   
   

2. that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of it.

2. When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner and believes on reasonable grounds that the owner cannot be discovered.

3. A person shall not be deemed to take a thing unless he or she moves the thing or causes it to move.

4. Without prejudice to the general effect of subsection

6. , a person shall be taken to have moved money if that person moves or causes it to be moved from one account to another or otherwise out of the original account.

To steal one must take or move the item from one place to another. The slightest asportation is enough. This movement must be accompanied with a fraudulent intent.

The whole procurement process has to be taken into context to determine if A5 stole 24.7 billion from government or not. It commenced in 2010. Eutaw Mississippi put in a bid presented by A5 who also filed particulars as it representative based in Florida.

The bid was supported by a forged bid security from Housing Finance Bank dated 22^nd Sep 2009 (See exhibit P116). More forged securities dated 8^th June 2012, 28^th Nov 2013 and 9^th April 2014 were submitted to support the bid. All of tem forged because most were issued at a time when Eutaw Construction Company Inc had no account with HFB Ltd. The evidence of PW10 (Dora Kiyaga) and PW12(Mary Kansiime) is clear that HFB Ltd never issued those securities contained in P116.

Once the bid was successful, A5 opened an account with Housing Finance bank Ltd. He was co signatory with Michael Olvey and Niu Hong (PW8). See exhibits 56 to 63.

Prior to this Company form 7 had been filed at the URSB on 16^th December in which A5 and one Juliana Ndahendikire are stated as directors of Eutaw construction company limited (See exhibit P91). Two days later, company form 20 is filed on 18^th December 2013 where A5 and PW8 are stated as resident persons authorised to transact business on behalf of Eutaw Construction Company. (See exhibit P93). On same day another company form A19 is filed giving names of directors of Eutaw construction company Inc as Timothy Lee McCoy, Michael Olvey and Richard Pratt. (See exhibit P95)

When money hits the account, A5 and PW8 start the disbursements. First was 12.2 billion wired to CICO owned by PW8. A5 is said to have approached CICO to do the job. Another 4.6 billion was wired to the USA. After that A5 asked to remain sole signatory to disburse the balance of 7.9 billion. He did spend it until 10 million was left at the time of the investigations.

It is clear to me that the role played by A5 to formalize the flow of funds to an account where he was co signatory before becoming sole signatory is not a small one. It was beyond that of a messenger or courier. His

In his defence A5 contended that he used to deliver documents prepared by other people and he had no knowledge of the contents of these securities. That UNRA never suffered from the falsity of these documents. But the evidence of PW13 is that A5 was put on phone and instructed Patrick and Michael Kintu what should be contained in the bonds. It is A5 who supplied the content. He never challenged PW13 on this testimony which was lengthy and graphic.

The manner in which A5 transacted business to obtain the SWICO securities was suspect. He resisted requests by PW13 to go to the insurance company and preferred to deal with contacts that would prepare documents at his dictation.

The gentlemen Assessors advised me that A5 was conned and reported this matter to the police. He was, therefore, innocent. A5 was getting bonds in May 2014 to secure a payment he had already received and disbursed. He was just deceiving everybody. There was no advance payment to secure. He had already been paid. It was not possible any longer under any law or fact to get a genuine advance payment bond after the 24,790,823,522= had been paid.

I am not persuaded to believe that A5 did not know that the bonds from SWICO were not genuine. He never paid SWICO and never got any receipt from there. He paid street boys and when he learnt that UNRA was writing to verify those bonds, he called PW13 asking her to alert Patrick and Kintu to respond with the word “authentic”.

If they were authentic why would A5 alert PW13 and suggest what the reply should be? A5 orchestrated a scheme to cover the fraud he had committed at UNRA. He had already received an advance payment without security. In the process he lost money to fellow fraudsters. If a fraudster loses money to another fraudster does the original fraudster become innocent? PW16 from SWICO denied doing business with A5. Two hand writing experts SSP Sebuwufu, PW20 and SSP Chellangat, PW21 confirmed that the signatures on the securities from SWICO were forged.

The charges in count sixteen are proved beyond reasonable doubt. A5 is guilty of uttering a false advance payment bond to UNRA.

Count Seventeen

A5 is accused of knowingly and fraudulently uttering to UNRA a false performance bond No. 010/132/1/000299/2013 dated 21^st November, 2013 for UGX 16,528,000,000=

Again by May 2014 when A5 was seeking a performance bond for Eutaw construction company Inc, it was CICO performing the work. Such bonds whether genuinely issued or not could only be false. The reasons I have given in count sixteen apply with equal force to this performance bond. They were received at UNRA by A7. When verified they were found to be false. As I have already found, A5 could not get any genuine securities to cover an advance payment he had already received. He could not obtain a valid performance bond for Eutaw because it was CICO performing the job. A5 could only lie. A5 is guilty for uttering false performance bond from SWICO to UNRA. He did so knowingly and fraudulently

Count Eighteen

A5 is charged with knowingly and fraudulently uttering to UNRA a false bid guarantee No 0101600045 dated 1^st December,2010 for UGX 1,900,000,000= purporting it was prepared by Kenya Commercial Bank whereas not.(See exhibit P117)

The prosecution referred to the evidence of PW14, Gabura Edward, a relationship manager at KCB who testified that neither A5 nor Eutaw Construction Company had an account with KCB in order to qualify to apply for a security. Yet evidence of Akiiki, PW15 is that A5 delivered the KCB securities to UNRA at the time of bidding (see exhibit P123)

A5 denied presenting the KCB securities contending that their staff did so and he only got involved in withdrawing them from UNRA once they were found wanting. As regards the evidence of PW15, it was submitted that she concocted it.

The falsity of the KCB securities is not disputed. The bank denied issuing them. Besides, Eutaw had no account with KCB. Who presented them to UNRA? Exhibit P123 shows A5 attending the bid opening document on the day this bid security was received at UNRA. PW 15 testified that she received it from A5. It was her evidence that she even called A5 and advised him to take back the Housing Finance bank securities. That is when A5 presented the KCB securities to replace the Housing Finance Bank securities. She had also received the Housing Finance Bank securities from A5. When A5 cross examined her, she emphised that A5 used to deliver documents to UNRA as a representative of Eutaw.

I believe PW15. She did not change her position on who delivered these forged documents to UNRA. There was no material basis for concocting her evidence as was submitted for A5. There is strong circumstantial evidence pointing to A5 as the guilty person. He testified about his earlier association with A6 who worked with KCB and when A6 moved to Housing Finance Bank Jinja branch, A5 looked for him and what followed is on record.

Every security submitted to secure Eutaw Construction Company’s bid has a connection with A5. There is always a witness or two who identifies the security with A5. He is notorious for not only sourcing them but also submitting and even withdrawing some of them. It has been proved beyond reasonable doubt that A5 uttered these documents and the manner he sourced them from outside the entities that purport to issue them proves that he knew they were false. He is guilty of the charges in count eighteen. The two gentlemen assessors did not appreciate evidence that showed that A5 was the source of all the securities in this procurement. He operated from his home office and peddled one false document after another. I do not accept the advice that A5 is not guilty. In fact he is guilty on count eighteen.

Count nineteen

A5 is accused of knowingly and fraudulently uttering a false bank guarantee number 42664 dated 13^th December 2011 for 1,900,000,000= purporting it was issued by Kenya Commercial Bank (KCB) whereas not.

I have already discussed A5’s involvement with exhibit P117 in count eighteen, above. Exhibit P118 which is the subject of this count moved with exhibit P117.

because Eutaw had not provided a performance guarantee. It could be the reason that A5 was in June 2014 looking for documents he should have supplied before construction started. He wanted to cash on another 5 billion.

PW18 handed over the documents to A5. He was fully aware of the contents. He is guilty of falsely pretending that no advance payment had been made when he sought an advance payment bond from UAP through Insurance brokers. The prosecution has proved the charges in count twenty one beyond reasonable doubt. Again the gentlemen assessors found no fault in count twenty one advising that it is PW18 who got the securities from UAP and not A5. With respect, the two did not appreciate that insurance business is transacted through Insurance brokerage. Cases in this Division are sophisticated. We require assistance of experts to advise court on the nature of evidence adduced.

Count Twenty Two

A5 and A6 are accused of Conspiracy to defraud GOU of UGX 24,790,823,522=.

The prosecution case is that the friendship between the two resulted into an agreement to defraud GOU of the above funds through fraudulent means. The prosecution relied on the following species of circumstantial evidence.

1. That A5 and A6 had a previous relationship while A6 worked with Kenya Commercial Bank(KCB)

2. That A5 went looking for A6 at KCB and finally found him At Housing Finance Bank (HFB) from where A6 assisted A5 to open a corporate

I also note that the screen shots in exhibit P115 were first changed to word form before the headings were typed on them after which they were printed out. That amounts to already changing electronic data by way of modification. See Section 7 of the Computer misuse Act, 2011.

The manner in which electronic data was sourced and tendered was casual and non compliant with the provisions of the Computer Misuse Act, 2011. No digital tools were deployed to retrieve data from the UNRA and HFB exchange servers which would have been useful in connecting A5 to A6 as alleged by PW22, PW10 and PW11. Use of digital tools such as FTK ensures that the integrity of data is high. Such data speaks for itself.

For example if the UNRA exchange servers had been imaged it would have revealed whether A3 and A7 use upper case in their email addresses or not. This was not resolved. When PW22 picked exhibit P53 she just assumed that she had got evidence against A7 by reading his name on that mail. That was too casual. Investigators of digital crimes should deploy digital tools and not analogue methods to gather evidence.

When assessing the evidential weight of a data message or electronic record, the court shall have regard to the reliability of the manner in which the data message was generated; and the reliability of the manner in which the authenticity of the data message was maintained. See Section 29(3)(a)(b) of the Computer Misuse Act, 2011.

Exhibit P115 was tampered with as far as the screen shots were concerned. The headings are clearly typed in word document form over the screen shots. That diminished their value. It is understandable from the testimony of PW11( Mr Mbabazi) that his support work in generating electronic data and modifying it was because he believed it was an internal audit report.

Indeed it is titled Internal Audit Report addressed to the Managing Director of HFB Ltd. It was for internal consumption in the bank but the investigating officer picked it up as she gathered all sorts of documents which she placed on the court record. The investigating officer should have done more investigations on the HFB and UNRA exchange servers using exhibits P115 and P53 as leads to generate credible digital forensic data. That is what she should have tendered in court as evidence. Not the hard copies of documents whose sources she did not verify.

Exhibit P53 was not subjected to examination to establish its source. It was merely assumed that it was a copy of what A7 sent to A6. These assumptions do not pass the test set in section 29 of the Computer Misuse Act, 2011.

The other evidence connecting A6 to A5 is the fact that A5 knew him before while A6 worked with KCB. It is also on record that A5 went looking for A6 to help him open a bank account. Indeed A6 provided A5 with the necessary information required to open an account and helped him do so as a relationship manager. A6 was even commended by his supervisors for bringing such a big business to the bank. There is nothing wrong with this relationship. The account opening was normal and approved by A6’s supervisors.

After examining the circumstantial evidence relating to the KCB securities and the electronic data whose integrity is questionable, I come to the conclusion that the conspiracy theory involving A6 to steal UGX 24,790,823,522 was not proved beyond reasonable doubt. A5 may have conspired with others to steal but the evidence fell short of joining A6 to the scam. Indeed A6 could have come on board much later but the investigations covering the electronic mails between him and A5 are wanting. The conspiracy theory has not been proved. A5 managed the process and only interacted with persons along the way who were critical to achieving his goal. If there were conspirators then they are Richard Pratt, Michael Olvey, Timothy McCoy, Michael Fiacco and Grant. They exploited the weak procurement directorate supervised by engineer Ayelew to steal money by purporting to bid for road jobs.

Count Twenty Three

A6 is charged with abetting the offence of causing financial loss when he fraudulently confirmed to A7 that the HFB securities were genuine whereas not.

It is the Prosecution’s case that the act of A6 sending confirmation electronic mails regarding the authenticity of the securities from HFB meant A6 and A7 had a common intention to abate the offence of causing financial loss.

I have already discussed at length that financial loss was not proved for reasons that the actual loss was not determined by any credible evidence.

Secondly, there was no credible evidence to prove that A6 sent the offending mails to A7. The integrity of exhibit P53 is suspect. More work was needed in investigating its source on the exchange servers. It does not speak for itself.

The result is that the charges in count twenty three have not been proved beyond reasonable doubt.

CONCLUSION

The fraud in the procurement of a contractor for the Mukono-Katosi-Kisoga-Nyenga road started in 2010 when a bid was presented to UNRA by A5 purporting to be a bid for Eutaw Mississippi but with Eutaw Florida tagged on A5 as its representative.

At the stage of bid opening, the Eutaw bid should have been rejected. The procurement unit allowed this bid to go through to evaluation stage and the contracts committee also strangely allowed it not only to pass but in fact to win the contract. The procurement officials and the contracts committee members are not in the dock. Yet officials such as A1 and A2 who came on board much later in 2011 and 2013 respectively were charged in court. This is long after the plot had been hatched to defraud UNRA of money.

It is true that red flags were raised by the preliminary due diligence team in 2013 but by then the process had advanced since a contractor had been selected. A5’s manipulative skills and tenacity which ensured that the agreement was sealed and an advance payment made without any security is phenomenal.

After evaluating the prosecution and defence evidence, it is my conclusion that the prosecution case against A1 and A2 has not been proved beyond reasonable doubt. Consequently, A1 is not guilty on counts 1, 2 and 3. He is acquitted on each of those counts accordingly.

A2 is not guilty on counts 4, 5, 6, and 7. He is acquitted on each of those counts accordingly.

As regards A3, the charges of causing financial loss were not proved beyond reasonable doubt. The reason for this is that no investigation was done to establish the actual loss. That loss that is not recoverable. Consequently, A3 is acquitted on count 6. I however, find A3 guilty of abuse of office C/S 11(1) ACA, 2009 for writing exhibit P131 on 24^th December, 2013 confirming a verification that never was which letter was eventually used to support a payment to the prejudice of his employer.

A3 is however, not guilty of causing financial loss in count 10 because of lack of evidence of actual loss.

A3 is jointly guilty of neglect of duty for failing to verify securities against which an advance payment was made. Securities are the reason money is advanced to a contractor. It is a form of collateral. For a whole director of finance to sign a letter lying that the securities are genuine whereas not is proof that he is guilty of neglect of duty. I convict him on count 11 A4 is not guilty of causing financial loss for lack of evidence of actual loss. He is acquitted of count 8.

A4 is also not guilty of abuse of office in count 9 because there was no evidence to prove that he was aware about the bogus securities. Advising to sign the contract and do due diligence latter is a perfectly correct legal position. If the securities supporting the payment were genuine as A3 falsely stated in his letter, then there would be no risk to the advance payment. A4 did not act arbitrarily. He is acquitted on count 9.

A5 is the manipulator of the entire procurement process facilitated by a weak procurement unit and a complicity contracts committee. He navigated around the directorate of finance and administration to present bogus securities and was able to get free money by fronting a company that had no capacity to construct even an inch of a public road on its own.

A5 was a document manipulator with exceptional skills. He could produce any document under the sun which turned out to be fake securities. He is guilty of theft and uttering false documents. He is also guilty of obtaining execution of securities by false pretence.

I convict A5 on counts 12, 14, 15, 16, 17, 18, 19, and 21. He is acquitted on counts 20 and 22.

A6 is not guilty and acquitted on counts 22 and 23.

A7 is guilty and I convict him on count 11.

For avoidance of doubt, A1, A2, A4 and A6 are acquitted and set free. A3, A5 and A7 are convicted and proceed to allocutus.

Gidudu Lawrence

JUDGE

29^TH AUGUST, 2018