On 30th April 2025, Justice Gidudu Lawrence delivered judgment in the case of Uganda v Oscar B. Baitwa and Geofrey Bihamaiso Criminal Session Case No.1 of 2019 (Ant-Corruption Division of High Court) in which he acquitted the accused holding that the fact that the accused were signatories to an account where stolen money was deposited does not of itself make them thieves. This judgment has sent shock waves to the entire business industry in Uganda as it justifies theft of company property in the hands of the person having possession of this property under the sheer argument that they did not actively participate in the theft.
In this case, the two accused, Oscar Baitwa and Geoffrey Bihamaiso are brothers, shareholders and directors Three Ways Shipping Services Ltd, a company that was contracted by MTN (U) Ltd to provide forwarding and clearing services for MTN’s equipment sourced from overseas. However, in the course of business, MTN alleged that the company had been paid money based on false invoices supported by fake airways bills and false delivery notes which totaled USD 3, 800,000. The prosecution alleged that two employees of MTN processed payment to the accused’s company using 125 fake invoices purporting that the company had issued them for payment. These fake invoices used to be missed with the genuine company invoices to avoid detection. The two were charged with theft, receiving money by false pretense and conspiracy to defraud MTN. The accused were faulted because they were the only signatories to the company accounts on which the stolen funds were deposited. As the only signatories, the prosecution alleged that they were the beneficial owners of the money which they must have withdrawn and given some to employees of MTN in order to motivate them to continue forging invoices for about three years.
The accused denied the charges contending that they were not aware of any fraud against MTN (U) Ltd and only learnt of it when the complaint was raised about fictitious invoices being mixed with genuine invoices for payment to the company. It was their defense that upon learning of this complaint, they engaged MTN Management to reconcile the accounts and even paid USD 300,000 to show their good faith in resolving the dispute but MTN insisted on going to Court.
The matter was heard by Justice Gidudu who delivered judgment on 30th April 2025 acquitting the accused on all counts contending that there was no evidence showing the accused’s direct active participation in stealing money from MTN.
The Judge first set out the issue for determination as; at what stage did the theft occur? Was it on the MTN (U) Ltd side or was it after the disputed funds had been credited on the accused’s company accounts.
The Judge found that money of MTN (U) Ltd could only be stolen from its bank account and the theft was complete as soon as money moved or was caused to move out of the MTN account. That it is not in dispute that money moved out of MTN (U) Ltd account in Stanbic Bank. It means that what was deposited in the accused’s company account was stolen money. The deposit was of stolen money.
However the judge rejected the prosecution submission that when money was deposited in the company accounts of the accused, that was asportation that completed the chain of theft. The Judge reasoned that the law is that when money moves out of the original account with a fraudulent intent, the offence is committed. The one responsible for causing it to move is the thief.
After analyzing the evidence, the Judge found that; It is clear, therefore, that money was stolen or caused to be moved from the accounts of MTN (U) Ltd by its own employees assisted by employees of the accused’s company. What was credited on the accused’s company was already stolen money.
The Judge further agreed that it is a prima facie correct argument that since the accused were signatories to the destination account where stolen funds were deposited, it means that they were beneficiaries otherwise the MTN (U) Ltd employees would not be motivated to steal money over a period of three years if the accused were not cooperative.
However, the Judge did not find the accused liable on grounds that there was no evidence linking the accused to the theft. He reasoned that the persecution withdrew charges against two employees of the accused’s company who would have connected the accused to the scheme to steal money from MTN (u) Ltd. But since these two were not called as witnesses, it is mere speculation that the accused were in the scheme. There was no permission required from the accused before the rogues in MTN (U) could process money to their company account. This is because there was a running contract on which MTN (U) Ltd was paying the money. That without the evidence from employees of MTN and the accused’s company, it is speculative that the accused Chairman and CEO of the accused company respectively were active participants in the theft of money from MTN (U) Ltd merely because they had a bank account where they were signatories. Moreover, the signature mandates were such that any of the two could withdraw money from the account.
Strangely, the learned trial judge then engage in speculative arguments by himself which arguments had not been fronted by the Defense. He argued that; If MTN employees could connive to steal money from MTN (U) Ltd without the knowledge of their bosses, why should it be strange that employees of the accused company could steal from the accused’s company without the knowledge of the accused? This argument applies to both companies. Its employees could have fooled management and the boards and obtained for themselves money using the authorized signatures of MTN and authorized signatures of the CEO of Three Ways Shipping Company.
The Judge held that the moment the prosecution opted to discharge employees of the accused’s company and decided not to use them as witnesses to pin their bosses, the case for the prosecution became a matter of guesswork.
The Judge then relied on the defense evidence to the effect that they were only made aware of the fraud when they were contacted and took positive steps to settle by committing USD 300,000 and asked for an accounts reconciliation which MTN (U) Ltd refused. The Judge concluded that this evidence raises reasonable doubt in the prosecution case and held;
That there is a missing link to connect the accused to the crime and that link is the evidence of the employees from MTN and Three Shipping Ways who were vital witnesses to implicate not just the accused but any other signature mandates in either MTN or Three Ways Shipping Company.
That since theft occurred when money was caused to leave MTN (U) Ltd Bank account, the charges of theft without proof of common intention cannot stand. The accused could have been charged with receiving stolen property if they had been implicated by their employees had they been called as witnesses. These two employees could have demonstrated hoe excess money from the fictitious invoices were paid out and to who. They would have explained how the fraud went on for three years and who the beneficiaries were.
He agreed with assessors that the case against the two accused cannot stand without evidence connecting them to the common intention or conspiracy to steal money from MTN (U) Ltd.
He thus concluded that the evidence adduced proves that theft of money from MTN occurred but was not stolen by the accused. It was stolen by insiders in MTN (U) Ltd with possible assistance from insiders in the accused’s company. Failure by the prosecution to adduce evidence explaining how requisitions were raised to exit money from the accused’s company accounts to benefit the thieves in MTN U created a missing link that would have connected the accused to the crime. That the accused could have been charged with receiving stolen property if there was evidence to confirm that they had knowledge or reason to believe that the money credited on their company account had been stolen. There was no such evidence. Being signatories to the company account does not make them culpable because the mandate holders of MTN were not defaulted for signing off the payments. The fact that the accused were signatories to an account where stolen money was deposited does not of itself make them thieves. The result is that the prosecution has not proved beyond reasonable doubt that the accused stole money from MTN.
With due respect to the learned trial Judge, his reasoning in acquitting the accused was erroneous and resulted in a travesty of justice. His entire reasoning is that there was no evidence connecting the accused to the theft contrary to the circumstantial evidence on record. Whereas the judge agrees that MTN employees could not have stolen the funds unless they were sure of an exit strategy of the money from the Company’s accounts, the learned trial judge instead shifts the blame to the prosecution to show money left the accused’s company account to the intended beneficiaries. This was erroneous because, the moment the prosecution presented evidence that money was deposited on the accused’s account, the burden of proof shifted to the defense to deny such deposit or show that they were legitimately entitled to the payment. The Judge’s speculative argument that even the employees of the Company could have forged the signatures of the accused and withdrew the money from the company account without the accused’s detection was not only speculative but was uncalled for as the defense did not present such evidence.
This was a simple case of where MTN said; I paid you more on wrong invoices and the accused immediately said; we are not sure but let us pay you $300k as we reconcile the books. However, the judge considers this payment of $300k as an act of good faith without considering the defense’s intention of escaping liability. Why would the accused run to pay MTN $300k unless they were part of the scheme? The accused did not present any evidence before Court that they were investigating any of their employees for conniving with MTN employees. The case remained for all intents and purposes that the accused are signatories to the Bank account on which MTN deposited money under fictitious cheques and the accused are the only people who knows the actual beneficiaries of that money. Without evidence that the accused themselves had been defrauded and coupled with their action of paying $300k, all points to one thing; the common intention to defraud MTN which amounts to theft.
It is unbelievable that the learned judge completely ignored the circumstantial evidence which showed that the accused were the beneficial owners of the funds deposited into their accounts for which they were signatories. It defeats logic for the accused to claim that they weren’t aware of the fraud yet this scheme had been ongoing for 3 years. As directors of the company they had an obligation to review and approve the financial statements of the company which should have revealed that they received more money from MTN than the services provided. Their failure to discover such fraud supposedly perpetuated by their employees is indefensible.
The judge’s finding that theft only occurred when money left MTN’s accounts and not when it was received by the accused is erroneous. The doctrine of recent possession of stolen property should have found the accused liable for receiving money from MTN for three years and failing to discover that MTN was making overpayments. Under evidence law, the accused’s conduct is relevant in establishing an element of an offence. In this case, their conduct of paying $300k to MTN cannot be evidence of just good faith but is an act made by a man with a guilty mind. A person who is innocent would not have rushed to pay MTN such money which is equivalent of UGX 1 billion. The accused’s payment of $300k was indeed an admission of liability and an attempt to avoid prosecution rather than good faith. The judge equally dismissed the evidence of PW11 that A2 attempted to bribe him to kill the case. In the entire judgment, there is no record that the accused denied ever meeting A2 and offering him a bribe. Such allegation could not be dismissed by the learned trial judge without further examination and considering the whole circumstantial evidence.
It should be noted that the learned trial judge had already found that the prosecution had established a prima facie case against the accused and put them to their defence. Surprisingly, the judge now turned around to blame the prosecution for not presenting evidence pinning the accused. The finding that there were missing witnesses and thus accused were not connected to the crime was done without properly evaluating the evidence on record in form of bank records, fake invoices and the accused’s control over the bank account. This evidence was sufficient enough to prove that the accused were in possession of stolen money or had parted with it and should have explained how they kept receiving stolen money for 3 years and waited until MTN raised the complaint. Without such piece of evidence, the accused failed to establish sufficient defense to have them exonerated.
In the premises, this is an absurd judgment that lets accused go free yet at the same time remain in possession of stolen money. By this Judgment, the judge signed a blank cheque to the accused to go ahead and withdraw the stolen money and enjoy their vacation to the Bahamas. It is a strange ruling that says that if your maid steals from your neighbor and keeps money in your suit case, your neighbor cannot get his money back and you are free to continue opening and closing your suit case without questioning where the extra money came from. This is unjust and justifies stealing and cheating in unprecedented ways. Lets hope that the DPP will appeal this absurd Judgment.