Bahati and 3 Others v Uganda (Criminal Appeal No. 20 of 2013) [2022] UGHCCRD 18 (23 March 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CRIMINAL APPEAL NO. 0020 OF 2013; CRB MSD 76/2013**

(Arising from Crim. Case No.0018 of 2013)

- **A1. BAHATI ALI** - **A2. OBOKO VINCENT** - **A3. OPARA VINCENT alias VESSA** - **A4. ODONGO ONEGI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **JUDGMENT**

# **BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA**

- [1] This is an appeal against the decision of **H/W Japyem Gaudence Okongo,** the Magistrate Grade One at Biiso-Buliisa, Masindi Chief Magistrate's Court dated 24/9/2013 in which the Appellants were convicted and sentenced to 4 years and 1year term of imprisonment respectively for the offence of **Threatening Violence C/s 81 PCA** and **Criminal Trespass C/s 302 PCA.** - [2] The Appellants' appeal is against both sentence and conviction and the grounds of appeal contained in the Memorandum of appeal are; - *1. The learned trial magistrate erred in law and fact when he failed to properly evaluate evidence on record, thereby arriving at a wrong decision against the Appellants, hence occasioning a miscarriage of justice.* - *2. The learned trial Magistrate erred in law and fact when he accepted and admitted documents as exhibited in court by the prosecutor who was not a witness and used the same documents and evidence from the bar to convict the Appellants thereby occasioning a miscarriage of justice.*

- [3] The appeal was filed back on 26/9/2013 and it remained pending until 21st February, 2022 when it was cause listed among other criminal appeals for hearing on 21/2/2022. When the appeal came up for hearing, **Ms. Nakaggwa** for the state/Respondent addressed court that due to the long lapse of time, the State Attorney's office were unable to proceed with the appeal. The Appellants had however long back on the 23/7/2014 filed their appeal submissions through counsel **Odhiambo David** of **Joel Cox Advocates, Kampala,** in compliance with the directions of court dated 4/7/2014 that were issued in the presence of the State Attorney then **Ms. Bigabwa Anna** for the Respondent. - [4] On record, there are no submissions filed by the Respondent. This court therefore, shall, despite the long lapse of time since when the appeal was instituted proceed to determine the appeal without their input in form of submissions by the Respondent.

#### **Duty of the 1st Appellate court**

[5] The duty of the first appellate court was stated in the case of **KIFAMUNTE HENRY VS UGANDA S. C. CRIM. APPEAL NO.10/1997** as follows;

> *"…the first appellate court has a duty to rehear the case and to reconsider the material before the trial judge, the appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it…"*

**Ground 1: That the learned trial Magistrate erred in law and in fact when he failed to properly evaluate the evidence on record, thereby arriving at a wrong decision against the Appellants hence occasioning a miscarriage of justice.**

# **Charge of Threatening Violence**

- [6] Counsel for the Appellant submitted, **firstly**, that the learned trial Magistrate considered the evidence of the prosecution in isolation of the evidence of the defence which is contrary to the principles of evaluation of evidence; **KATUSIIME ROY VS UGANDA H. C. CRIM. APPEAL. NO.12 OF 2000.** - [7] **Secondly,** that the learned trial Magistrate did not properly evaluate the evidence because the words of **A1** about the "red Ants" was explained at P.52 of the record of proceedings as

*"when they came to us they wanted to attack us like red ants. According to the statement the red ants are Businge and Hannington."*

That this was however misinterpreted and the defence explanation was completely ignored by the learned trial magistrate who found and ruled that **A1** and **A2** were the "red ants" who were potentially dangerous to **PW2** and **PW4.**

- [8] **Thirdly**, that the trial magistrate totally ignored the testimonies of the defence witnesses who were at the scene of the crime. That all the witnesses of both the prosecution and defence testified that there was no alarm made by the **A2** and that there was peace throughout interactions. - [9] Then **fourthly**, that there were no weapons exhibited allegedly used by the accused persons against the complainants. That there was therefore no basis for the learned trial magistrate to believe that there were weapons used at the scene. - [10] Counsel concluded that had the learned trial magistrate properly evaluated the evidence on record, he would have come to the conclusion that the accused persons did not threaten violence against the complainants.

- [11] As to whether the learned trial magistrate considered the evidence of the prosecution in isolation of the evidence of the defence, on perusal of the record, I find at **pages 65-70**, the learned trial magistrate considered the definition and the ingredients of the offence of **"Threatening violence" C/s 81 PCA** while relying on the authority of **ALUPO STELLA VS UGANDA H. C. CRIM. APPEAL NO.2/2012** and proceeded to evaluate the prosecution evidence on record. - [12] From **pages 70-75 of the record,** the trial magistrate considered the defence submitted trial bundle and then proceeded to evaluate the defence evidence to the extent of framing and considering the issue of *"whether the evidence is adequate to sustain the charge against each of the accused persons."* - [13] Upon further evaluation of the total evidence of both the prosecution and the defence, the learned trial magistrate examined the **A3** defence of **alibi** and concluded that the prosecution failed to place him at the scene of the crime and he found **A3** not guilty of the offence of **Threatening Violence C/s 81 PCA** and acquitted him. He was however satisfied that the rest of the accused persons; **A1, A2** & **A4** each directly uttered the words, used gestures and possessed pangas, knives, sticks, bows and arrows which they used to commit the offence in their bid to a claim of right over the land of a one **Kaahwa Francis** (PW1) which was being care taken by the 2 complainants (PW2 & PW4). Each of the accused persons were in my view correctly found guilty of the offence of **Threatening Violence C/s 81 PCA** and were convicted accordingly. - [14] It is therefore not correct as per the foregoing, that either the learned trial magistrate considered the evidence of the prosecution in isolation of the evidence of the defence or that he totally ignored the testimonies of the defence witnesses who were at the scene of the crime.

[15] It should be recalled that the attack on the 2 complainants, **PW2 & PW4** with sticks, pangas, arrows & bows and other weapons occurred in the absence of police. The accused persons and the commission of the offence were reported to police. Police visited the scene later and therefore could not recover the weapons. **Sgt. Wambale Saul** (PW5) however, upon visiting the scene at **Itukwe Ward known as Namasoga** examined the scene, drew a sketch map and was able to observe grass thatched houses, some of which were incomplete and others of about 9 months to a year or two thus proof of recent occupation.

The failure by the police therefore to recover the weapons used to commit the offence was not fatal to the prosecution case since by the time police came to the scene, the offence had long been committed. Police and the complainants managed to place the accused persons at the scene of the crime as found by the trial Magistrate.

- [16] On the Issue of the "Red Ants", or "black Ants" introduce by **A1** while cross examining **PW2** and the comment by the learned trial magistrate that appeared to justify and corroborate the prosecution case, I do find the interpretation by the trial magistrate consistent with the actual events of the day. "Red Ants" by their ordinary meaning are stinging numerous insects living in a social colony (Definition from Oxford Language Dictionary). - [17] In the instant case, the evidence of **Rugongeza Hannington** (PW2) and **Businge Ali** (PW4) is to the effect that upon visiting the scene of crime, while with the chairperson a one **Orogi** upon receiving reports that **PW1's** land had been invaded by unknown people, they found the accused persons who attacked them with knives, sticks and arrows & bows. The accused persons made an alarm which attracted many young boys thus, they formed a colony of "Ants" against the complainants.

- [18] **A1** therefore told lies to court to state that by "Red Ants" he was referring to the complainants **Businge** (PW4) and **Hannington** (PW2) and not themselves, the accused persons/Appellants. There was therefore no misinterpretation of the phrase by the trial magistrate as claimed by counsel for the Appellants. - [19] In conclusion, I find that the trial magistrate properly evaluated the evidence on record and came to a correct conclusion that **A1, A2** and **A4** threatened violence against the complainants. They were therefore rightly convicted and sentenced accordingly.

# **Charge of Criminal Trespass**

[20] Again counsel for the Appellants submitted that on this charge, the trial magistrate considered the evidence of the prosecution in isolation of the defence which is contrary to the principles of evaluation of evidence; **KATUSIME ROY VS UGANDA H. C. CRIM. APPEAL NO.12 OF 2012** where Justice Lameck Mukasa quoting the case of **James Suwabin Vs Uganda S. C. Crim. Appeal. No. 5 of 1990** held,

> *"This court has frequently inveighed against the practice, surprisingly continuing in some judgments, of considering in isolation the prosecution evidence or defence evidence. This practice gives the impression, particularly when the prosecution evidence is considered first and accepted as true, that the mind of the trial judge is already made up by the time he turns to consider the defence evidence."*

[21] Secondly, that the trial magistrate considered the fact that the accused did not provide any proof of ownership of the disputed land to hold that the suit land belongs to **PW1**, that this was an error as the accused is not required to prove ownership of the disputed land; **SSEBINA & ORS VS UGANDA H. C. CRIM. APPEAL NO.488/2003[2006] UGHC 21.** That the defence on their part testified that the land of the complainants is found in **Itukwe "K"** village and the documents tendered by **PW1** confirm the same position but the disputed land is located in **Nyamasoga** village. That the trial Magistrate failed to consider the fact that **NYAMASOGA** and **ITUKWE. "K".** are different villages. The complainants are located in **Itukwe "K"** village and the accused occupy another land located in Nyamasoga village and that this was confirmed by the prosecution witnesses that the accused that the land of the accused persons is in **Nyamasoga village** and not **Itukwe. "K". village**.

- [22] As regards whether the trial magistrate considered the prosecution evidence in isolation of the defence evidence, again, the perusal of the judgment at **pages 76-80 of the record**, it is clear that the trial Magistrate evaluated both the prosecution evidence and the defence and concluded believing the prosecution evidence and labelled, as he found the defence evidence to consist of lies. I find the complaint levied against the trial magistrate unjustified. - [23] As regards the trial magistrate's consideration of the fact that the accused did not provide any proof of ownership of the disputed land and therefore that the suit land belongs to **PW1**, the record clearly shows that the trial magistrate made the statement while weighing the evidence of the defence and that of the prosecution. I agree that the conviction must be based on the strength of the prosecution case and not on the weakness of the defence; **UGANDA VS MONDAY H. C. CRIM. CASE NO. 022 OF 2017** and **ISRAIL EPUKU S/o ACHIETU VS R [1934] EACA 166 at p.167.** - [24] In the instant case, the prosecution through **Kaahwa Francis** (PW1) presented evidence and documents to prove his ownership of the land, the scene of the crime. The documents were **P1-P10** and these were weighed against the defence wherein the accused persons were also claiming ownership. The trial magistrate cannot be faulted for the approach he considered while evaluating the evidence before him and the conclusion he reached. - [25] As regards whether the scene of the crime was in **Itukwe "K" village** or **Nyamasoga village**, it is apparent from the record that during

acquisition of the land by **PW1**, the scene was variously called **Itukwe-Nyamasoga village** and this was clearly explained by **PW1** and **James Tibelita** (PW3), the chairperson of the area land committee. Upon describing **PW1's** land and the sketch map of the land, he explained that the area was later gazetted as **Itukwe "K"** village which covers Nyamasoga village and concluded thus;

*"The real owner of the land is Kaahwa Francis. Any person who goes there is a trespasser… The case of trespass against the accused persons is rightly placed."*

While being cross examined by **A2**, he explained

*"Some of the names are new, during the time of inspection, it was Itukwe, the whole area."*

**D/Sgt. Wabale Saul** (PW5) also explained during cross examination by the defence counsel thus;

*"The area you hear Nyamasoga is a new name. I know that Itukwe Nyamasoga is a new name taking care of the place."*

[26] The above clearly show how the name of the scene of crime variously changed from **Itukwe "K"** to **Nyamasoga** and it is variously named so and indeed, whether the accused persons have land in **Nyamasoga** and PW1's land is in **Itukwe**, it is immaterial since what is clear is that the accused persons were found on **PW1's** land and this is amplified by **Ojella Peter** (AW1) who stated **at p.56** thus:

> *"Nyamasoga was Itukwe "B". That time it was Itukwe "K"… There was a village called Nyamasoga with chairperson L. C1 Lukumu Kadogoli, his children came in 1998 to ask for land for grazing…I was present on the day they were giving land to Kadogoli. I remember about the land agreement…We went inspected land where children of Kadogoli were to stay. It was roughly five hundred acres in the village of Itukwe "K"."*

[27] It should be recalled that **Kaahwa Francis** (PW1) derived his interest of the land through purchase from **Kadogoli.**

- [28] The totality of the above explain how the village names **Itukwe** and **Nyamasoga** have evolved and were being interchangeably used to refer to the same place. The villages are different now but during the acquisition of the land by **PW1,** the names referred to the same place. The accused/Appellants may have had their land/homes at the present Nyamasoga village but this does not mean that they cannot be found criminally trespassing on **Kaahwa's** land at Itukwe "K" village. The available overwhelming evidence placed the Appellants at the scene of the crime at **Itukwe "K"** village. - [29] I do find that the trial magistrate properly evaluated the evidence and concluded that the accused persons were criminal trespassers. - **Ground 2: That the learned trial magistrate erred in law and fact when he accepted and admitted documents tendered in court by the prosecution who was not a witness and used the same documents and evidence from the bar to convict the Appellants thereby occasioning miscarriage of justice.** - [30] The documents referred to here are statements by the accused persons made at police, **P.14.** The accused persons disowned them at trial but nevertheless they were admitted by the trial magistrate. - [31] I do agree that since police statements were denied, they should not have been admitted as exhibits save where they are proved strictly by calling a police officer who recorded the statements if they were to be used to discredit the defence; **OKWONGA VS UGANDA S. C. CRIM. APPEAL NO.20/2000.** Ground 2 accordingly succeeds. - [32] There was however other evidence on record to find a conviction of the accused persons and as a result, this appeal generally fails and the judgment, order and sentences of the trial magistrate are accordingly upheld.

Dated at Masindi this **23rd** day of **March,** 2022.

**Byaruhanga Jesse Rugyema JUDGE**