Gahenyi v Uganda (Criminal Appeal 152 of 2009) [2015] UGCA 2020 (22 May 2015)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CRIMINAL APPEAL NUMBER 00152 OF 2009**

GASHENYI JOHN WYCLIFFE ...................................

## **VERSUS**

...................................... UGANDA .......................

(An appeal arising from the Judgment and decision of the High Court (Anti Corruption Division Criminal Appeal No 10 of 2010) Original Kiboga Chief Magistrate's Court CR. Case No 12 of 2010)

Hon. Justice Steven B. K. Kavuma, DCJ Coram:

Hon. Justice Eldad Mwangusya, JA

Hon. Lady Justice Solomy Balungi Bossa, JA

## **JUDGMENT**

This is a second appeal from the decision of the High Court in exercise of its appellate jurisdiction.

The appellant, Gashenyi John Wycliffe who was employed as a Town Clerk by Kiboga Town Council was, on 5th February 2010 charged before the Chief Magistrate Court, Kiboga for the offence of Abuse of office contrary to Section 87(I) and (2) of the Penal Code Act. It was alleged that on or about the $21^{st}$ day of December 2005, being employed by Kiboga District Local Government as the Town Clerk Kiboga Town Council did, in abuse of authority of his office, an arbitrary act prejudicial to Kiboga Town Council in that he sold and transferred Kiboga Town Council Land comprised in Plot 534 Block 655 in favour of Haji Sekitoleko Sulaiman without authority from Kiboga Town

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Council and thereby unlawfully passed on Council Land to Haji Sekitoleko Sulaiman.

The appellant was tried by His Worship Emmanuel Baguma, Magistrate Grade I of the Anti Corruption Division and in a Judgment delivered on 16ft day of June the appellant was convicted as charged and sentenced to a line of Shs2,00O,OO0/= or two years imprisonment in default of payment of the hne. He paid the fine.

Subsequent to his conviction and sentence he appealed to the High Court of Uganda where his appeal was heard and dismissed by His lordship Justice Paul Mugamba of the Anti Corruption Division. In addition to the sentence imposed by the trial Magistrate the appellant was ordered to pay compensation of Shs5,00O,0O0/= to Kiboga Town Council for the loss of the piece of land. This appeal is against the dismissal of the appeal before the High Court and against the order to pay compensation which the trial Court had not ordered.

According to the Memorandum of appeal filed by the appellant the following grounds are raised:-

- The Learned Appellate Judge erred in Law when he failed to properly reconsider and evaluate the evidence on record and came to a wrong conclusion. t - 2. Th,e Learned Appellate Judge erred in [,aw and fact when he held that there was overwhelming evidence on which to confirm the decision of the karned trial Magistrate. - burden of@-r 3. The learned trial Judge erred in Law when he shifted the proof to the Appellant.

4. The Learned Appellate Judge erred in Law when he ordered for compensation yet there was no cross appeal.

The appellant prayed that the appeal be allowed and he be acquitted.

When the appeal was called for hearing, Mr. Abeine Jonathan appearing for the appellant applied for leave to amend ground 4 to read that the Learned trial Judge erred in Law when he upheld the conviction and sentence of the trial Court and further ordered for compensation. He also applied for Leave to amend the prayer to add that in the alternative the sentence be varied. Ms Sarah Birungi, Counsel appearing for the respondent did not raise any objection to the proposed amendments which were effected under Rule 45(2) of the Judicature (Court of Appeal Rules) Directions SI. $13 - 10$ .

Our observations of the memorandum of Appeal is that the second ground offends S. 45 (I) of the criminal Procedure Code Act which provides that

"Either party to an appeal from a Magistrates Court may appeal against the decisions of the High Court in its appellate jurisdiction to the Court of Appeal on a matter of Law, not including severity of sentence, but not a matter of fact or of **mixed fact and Law**." (Underlining provided)

The ground in question raises a matter of mixed fact and law the consequence of which is that the ground of appeal is incompetent and it will be struck out. See NALUKENGE MILDRED VERSUS UGANDA (COURT OF APPEAL CRIMINAL APPEAL NO 67 OF 2008 (un reported) and P. C. WABWIRE ANTONY VERSUS UGANDA (COURT OF APPEAL CRIMINAL APPEAL NO 00152 OF 2009 (unreported) where the Memoranda of appeal were struck ou for non compliance with the above provision.

This leaves this Court with only three grounds to resolve and in resolving them it is guided by its decision in the case of **MUHWEZI JACKSON VERSUS UGANDA (CRIMINAL APPEAL NO 149 OF 2008** (unreported) where the duty of this Court on a second Appeal was re defined as under:-

"This being a second Appeal Rule 32 (2) of the Judicature (Court of Appeal Rules) Directions SI 13 - 10 gives this Court power to appraise the inferences of fact drawn by the trial Court. This Court does not have powers to subject evidence to fresh scrutiny unless it is clear that the first Appellate Court failed to perform its duty - see KIFAMUNTE HENRY VS. UGANDA CRIMINAL APPEAL NO 10/97 (SC)." (Underlining provided)

The Supreme Court of Uganda in the case of ONGOM JOHN BOSCO VS UGANDA (SUPREME COURT CRIMINAL APPEAL NO 21 OF 2007) had also defined the role of a second Appellate Court in the following words:-

"The above arguments of Counsel raise the issue of the role of a second appellate Court. This is not a new point. It is an issue which has had judicial considerations before. In REX VS HASSAN BIN SAID ALIAS KIMANI SOMALI (1942) 9 EACA 62, the former Eastern Africa Court of Appeal considered the role of a second Appellate Court and held that an appeal to a second appeal is purely on a question of Law. See also S.5 (a) of the Judicature Act and the case of Kifamunte (infra).

A second Appellate Court is precluded from questioning the concurrent finding of fact by the trial and first Appellate Court, provided that there was evidence to support those

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findinss though it mav think it is Possible or even probable that it would not have come to the same conclusion.

A second Appellate Court can only interfere with such finding where there waa no evidence to support the frnding because this is a ouestion of Law. Inference lesitimatelv drawn bv proved fact by the trial and first aDDellate Court must establish the cuilt be nd reasonable doubt."

The above principles were echoed by the former Court of Appeal for East Africa in OI(EI{O VS REPT BLIC lL972l EA 32 where it said:-

## "It is appropriate on a second appeal only to decide whether a judgment can be supported on the facts found by the trial and the first Appellate Court as this is purely a question of Law."

We are guided by the above principle to determine this appeal where the imposing question is as to whether or not there was evidence to support the concurrent findings of the trial and the first Appellate Court that the appellant sold and transferred Council land without the authority of the council and that he did so in abuse of authority of his office. The findings of the trial were premised on the evidence of three Councilors namely; Kltaka MayanJa (Ptrll), Johr Sealka Kisaka (FW2), Kabuye Martia (PW3) all of whom testified that at no time did the Kiboga Town Council discuss the transfer of Land to Sekitoleko Sulaiman. They all testified about a Council meeting held on 11.04.1996 where it resolved to purchase an acre of Land at Kattanjovu and that the Land had no squatters. Me Nalubega Mildred PW4) who was the Minute Secretary of the If .04.1996 meeting supported the evidence of the three Councillors that what the Council discussed was purchase of Land at Kattanjonvu which had no squatters and denied having signed minutes where the Council discussed compensation of encroachers or squatters. GOLOOB

HARITilA IPWS) a Registrar of Titles and KAKUMBA ROBERT (P. UI.6) a surveyor testified that the Land in question was transferred to Haji Sulaiman Sekitoleko on the strength of Transfer Forms signed and stamped by the appellant as vendor. According to PWS Shs.30O.000/= was filled in the transfer Form as the consideration for the transfer of the land.

The appellant admits having transferred the land to Sulaiman Sekitoleko but denies having sold it to him. He testified that he transferred the land on the authority of the Council meeting held on 1 1.04.1996 which resolved to purchase an acre of land at Kattanjovu but because there were squatters he, on the recommendation of ALI MUTAYIMBWA (DW3) transferred a piece of that land to Sekitoleko.

According to Mutayimbwa, the piece of land was useless to the Council and he recommended its transfer to the Town Clerk.

On ground one of the appeal Mr. Jonathan Abeine faulted the appellate Judge for failure to re evaluate the evidence on record and come to his own conclusion because if he had done so, he would have found that the offence of Abuse of Office was not established. He submitted that contrary to the finding of both the trial and Appellate Courts that there was a sale of land, there was no sale but only a transfer of the piece that had been encroached on by Sulaiman Sekitoleko and was of no use to the Council. He submitted that the Council, which had resolved to purchase the land had also resolved that any developments which encroached on the land, but did not affect the purpose for which the land was bought, should be left to the developer and that was the position of the piece that was transferred to Sulaiman Sekitoleko. He submitted that the appellant was only implementing the decision of the Council and even if there had been an omission on his part, it did not ^-ount-\$- 86'

to criminal culpability but a disciplinary offence for which Council would sanction him.

Ground two was struck out.

On ground 3, Counsel submitted that there was no complainant because the l,ocal Council lll Chairperson who had raised a complaint with the IGG did so without the authority of the Council and after a finding by the Appellate Judge that there was no forgery of the Council Minutes of 11.04.1996, he should not have confirmed the finding of the trial Magistrate that the offence of Abuse of Office had been established because the Appellant implemented a Council decision.

On sentence the appellant's Counsel submitted that it was erroneous of the appellate Court to order for compensation when the trial Magistrate had made no such order and that there was no complaint that the land had been lost by the Council.

On behalf of the respondent, Ms Birungi submitted that both the trial Magistrate and the Appellate Judge had properly evaluated the evidence and come to the right conclusion that the appellant had committed the offence of Abuse of Office. She submitted that the Council Resolution captured in Minute 15.2 referred to purchase and not sell or transfer of land. The appellant did not have any authority to sell any land and if he wanted to transfer any piece of land, he had to go back to the Council to seek authority and by his action to transfer the l,and and omission to consult Council before the transfer, the offence of Abuse of office was established.

On compensation she submitted that the Appellate Court rightly exercised its discretion to order compensation in addition to the fine that had been imposed by the trial Court. She submitted further that the Council was entitled compensation for the loss of its land and the amount of Shs.5.000.000/= was reasonable considering that the land in issue was registered and situated in an urban area.

Having listened to the submissions by both Counsel and bearing in mind our duty as a second Appellate Court spelt out in the cases of MTIIIWEZI JACKSON VERSUS UGANDA AND ONGOM JOHN BOSCO VERSUS UGANDA (supra) we shall determine whether or not the concurrent findings of the trial and the first Appellate Courts are supported by evidence because if they are not, the Appellant is entitled to acquittal.

The concurrent frndings of the trial and first Appellate Courts were briefly that the appellant had sold and transferred land belonging to Kiboga Town Council without any authority from the Council. The appellant admitted having transferred a small piece of land to Sulaiman Sekitoleko in accordance with a Council resolution but denies that there was a sale. He admitted that he did not go back to Council before he signed the transfer.

After analysis of the findings of the trial Court this is what the appellate Judge found:-

"Sadly, by not going back to the Council for authorlzation the Appellant fell on hie own sword. He could act lawfully only on the authority of the Council. Section 3(5f of the Local Government Act provldes that the Local Government in a town is the Town Council and thie is buttressed by Section 9(Il of the Act ordaining a Councll as the highest polltlcal authority within the areas of jurisdiction of a local governtrent and that it has legislative and executive powers to be exercised ln accordance with the Constitution and tbe Act. To Cap it up Section 65(2) lcf of the Act states that the Town Clerk is the

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head of the administration of the relevant urbaa Council and is responsible for implementation lawful decisions taken by the Council. It is urged by the Appellant that he disposed of the property in issue following a resolution of 11. O4.1996. He quoted minute 15-2-1996. For one that minute is not a reeolution. Even if it were, disposal of the ProPerty is not therein contained let alone disposal to Sekitoleko. In fact there is no evidence of any authorization of the Council for the Appellant to act like he did contained anywhere on the record. I cannot say much more regarding the veracity of documentary evidence since it waa not subJected to scrutiny as should have been the case. Sufllce to say I would have reached the same conclusion I do that the Appellant acted without authorisation by Kiboga Town Council, which was unlawful. I see no reason why I should disturb the finding of the trial Court.

On whether or not there was a sale, denial by the Appellant flies in the fact of the consent (Land Form 6l which the Appellant does uot deny signing. It is manifest therein the transfer was for a consideration of shs,3OO,OOO/="

The finding of the Appellate Court is based on evidence including that o Councillors who testified that there was no Council resolution authorizing sale of the land. Both the trial Court and the first Appellate Court found that there was a sale and this finding was based on the Transfer Form which was signed by the Appellant as vendor and the consideration was given as Shs.3O0,000/= We do not see any basis for departing from the concurrent conclusion of both Courts that without the authority of the Council, the appellant's dealing in ttre W land was in abuse of authority of his oflice. StD

The appellant's explanation that the small piece of Land was of no use to the Council and that the transferee did not pay any money for it is not believable in view of the above evidence. It should be observed that even if the explanation should have consulted the Council before any was true the Appellant transaction on the Land because he had no authority over it and neither did Ali Mutayimbwa (DW3), on whose recommendation he allegedly transferred the land. We find no merit in the appeal against conviction which is dismissed.

faults the Appellate Court for ordering On sentence the Appellant compensation when the trial Court had made no order for it.

Compensation is provided for under Section 197 (I) of the Magistrates Court Act as follows:-

"When any accused person is convicted by a Magistrate's Court of any offence and it appears from the evidence that some other person, whether or not he or she is the prosecutor or a witness in the case, has suffered material loss or personal injury in consequence of the offence committed and that substantial compensation is in the opinion of the Court, recoverable by that person by a Civil Suit, the Court may, in its discretion and in addition to any other lawful punishment order the convicted person to pay to that other person such compensation as the Court deems fair and reasonable."

In the case of **JACKSON MUHWEZI VERSUS UGANDA** (supra) this Court was faced with a similar situation where the Appellate Court awarded compensation when the trial Magistrate had not. This Court had this to say:-

"This section gives a trial Magistrate and not an Appellate Judge power to award compensation to any person who appears to have suffered material or personal injury as a result of the offence which has been committed. This Order of compensation is over and above any Lawful Punishment which the Court might impose."

Under to S. 34(2) of the Criminal Procedure Code, the Appellate Court on any appeal may

"(a) Reverse the finding and sentence, acquit or discharge the Appellant, or order him or her to be tried or retired by a Court of Competent Jurisdiction.

- (b) Alter the finding and find the appellant guilty of another offence, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence by imposing any sentence provided for by Law for the offence; or - (c) With or without any reduction or increase and with or without altering the finding, alter the nature of the sentence."

The above section was discussed in the case of **JACKSON MUHWEZI VERSUS UGANDA** (Supra) where it was held as under:-

"This section gives power to the Appellate Court to alter the finding of the trial Court and reduce or increase the It does not give the Appellate Court power to sentences. order compensation which had not been ordered by the trial Court.

In the appeal now before us, the trial Magistrate did not order the Appellant to pay any compensation to the complainant. No evidence was led as to the damage allegedly caused by the

acts that were complained of and the parties did not address Court on the matter. We eccePt the submiselons of Counsel for the Appellant that the Appellant was uever given an opportunity to be heard and there waa tlo basls on whlch the order wag made. The Order would be set aslde"'

We stand by the above position stated by this Court. From the above decision an Appellate Court can only consider compensation if the trial Court has awarded it and there should be a basis for the award. The prosecution would have to establish the value so that the accused gets an opportunity to say something about it. The appellant must be given an opportunity to be heard on the matter. Court should not award an arbitrary amount without hearing the appellant or without affording an opportunity to the appellant to be so heard as was done by the Appellate Court in the instant case. The order for compensation would therefore be set aside.

There is an aspect of the sentence that was not raised on appeal that we consider worth our comment. This is the Order for the accused "to pay a fine of two million shillings (2,000,000) or in default to serve Two years (2 years) imprisonment."

The Order to serve two years in default of payment of the fine rs in contravention of S.18O (d) of the Magistrates Courts Act, Cap 16 which provides a scale for determining the maximum periods of imprisonment in default of payment of a fine. These range from seven days for an amount not exceeding Shs2,000 and twelve months for an amount exceeding ShslOO,OOO/= which is the maximum. So the maximum period for a line of Shs.2,000,000/= should have been twelve months and not two years which (ig-nmakes the period of lVo years illegal. It will be set aside and substituted with -t(Eo\*. one of twelve months.

In the result we find no merit in the appeal against conviction which we dismiss. On sentence we set aside the default sentence of two years which is substituted with one of twelve months. The order for compensation is also set aside.

?a Dated at Kampala day of 2015 /L

Hon. Justice Steven B. K. Kavuma, DEPUTY CHIEF JUSTICE

Hon. ce Mwangu Eldad, JUSTICE OF APPEAL

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Hon. Lady Justice Solomy Balungi Bossa, JUSTICE OF APPEAL