Kabojjamu Nsubuga Anthony v Uganda (Criminal Case 13 of 2022) [2025] UGHC 560 (20 February 2025)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

## HCT-15-CR-CN-0013 OF 2022

# KABOJJAMU NSUBUGA ANTHONY: :::::PROSECUTION

## VERSUS

:::::ACCUSED

### BEFORE HON. MR. JUSTICE OYUKO ANTHONY 0JOK

### JUDGEMENT

This is an Appeal from the judgment of the Chief Magistrate of Mpigi at Nsangi Criminal Case No. 196 of 2020 delivered by Her Worship Byakutaga Kabugho Caroline on the 29™ day of September, 2022.

#### Background

The Appellant was charged with Criminal Trespass Contrary to Section 302 (a) of the Penal Code Act Cap 120. In the alternative, he was charged for obtaining money by False Pretense, contrary to Section 305 of the Penal Code Act. It was stated that between 2015 and 2019, at Kyengera Town Council in Wakiso District he entered into or upon land in possession of Jjaggwe Kisakye Andrew. In the alternative count, it was alleged that the Appellant between 2015 and 2019 in Kyengera Central Zone, Kyengera Town Council in the Wakiso District with the intent to defraud, falsely obtained ground rent money of approximately 10 million Shillings from the tenants meant for Jjaggwe Kisakye Andrew. The accused was convicted and sentenced to five (5) months in prison.

The appellant being dissatisfied with the Judgment, appealed to this court against t%é Sentence and Conviction.

Counsel for the Appellant raised one ground of appeal for disposal by this Honourable court;

- 1. That the learned trial Magistrate erred in law and fact by holding that the - appellant was guilty of Criminal Trespass,' thereby occasioning an injustice.

#### Representation:

Namutebi Racheal appeared for State and Foundation for Human Rights Initiative represented the Appellant.

#### Appellant's Submission

Counsel for the Appellant abandoned the ground of Appeal and instead submitted on elements of Criminal Trespass which are;

1. Possession of the property by the Complainant.

2. Entry into the property by the Accused person(s).

3. An intent to intimidate, insult or annoy or to commit a crime or offence.

#### Element 1. Possession of the property by the Complainant.

Counsel submitted on this element that the prosecution's case hinges on the assertion that the complainant, Jjagwe Kisakye Andrew, rightfully possessed the disputed land. To support this claim, the prosecution presented a purported land sale agreement as evidence of ownership, however, several crucial discrepancies undermine the authenticity and reliability of this agreement;

Lack of essential signatures. The alleged agreement presented by the prosecution lacks the signature of the complainant, Jjagwe Kisakye Andrew. Furthermore, the document does not bear the signatures of the supposed witnesses, which are crucial for validating any legal agreement.

Discrepancy in testimony. Although the accused's brother claimed to have signed the document, there is no conclusive evidence supporting this assertion. This inconsistency casts doubt on the credibility of the document and the prosecution's claim of rightful possession by the complainant.

Prosecution witness testimony. The prosecution's own witness. The chairperson, testified that the agreement was executed in the office of the LC I Chairman in Kyengera. However, he did not conduct a thorough search before purchasing the [i%

nor did he make a physical inspection. This oversight further questions the legitimacy of the possession claim by the complainant.

Exhibit PE1. Despite being adduced in Court, Exhibit PE2 did not bear any signatures, thus failing to substantiate the claim of rightful possession by the complainant. This critical piece of evidence contradicts the prosecution's narrative and suggests that the complainant never possessed the said land.

Coercion in obtaining signatures. In re-examination, the appellant admitted that he signed the document at Kyengera Police Station under coercion. This revelation further undermines the credibility and voluntariness of the agreement presented by the prosecution. During examination-in —chief and re-Examination. PW2 gave evidence that he was indeed coerced into appending his signature to the said land sale agreement at police.

PW3, Nasuna Hilda, the sister of the appellant testified that the accused signed and the buyers signed. However, there is no signature that speaks to the fact that the alleged buyer, sellers and witnesses signed on the said Exhibit PE J which did not bear any signatures, thus failing to substantiate the claim of rightful possession by the complainant.

This claim is further brought into question, during examination —in-chief, when she falsely claimed that they signed the agreement and yet it only bears one signature (appellant's signature). The trial Court relied on the testimony of the Appellant's own siblings that the accused appended their signatures on the purported land sale agreement and yet in reality, the said agreement did not bear any signature except for the appellant's signature.

Shockingly, on the record, while PW2 during cross-Examination testified that he entered into a land sale agreement with the appellant, and his siblings. He lied on oath that he had indeed signed the agreement whereas not and embarrassingly court erred when it made a non-existent observation that it had seen the signature of the PW2 on the sales agreement whereas not. On proper examination of the said document, contrary to the findings of the lower court, it is not proper to conclude that the said doc'ument bears the signature of the complainant or those of other people alleged to have signed the same. For, clarity the court observed in the following words; /

"witness has shown court his signatures and those of the accused and his siblings on PED 1 the same agreement" because the forceful signing of the documents was done so hastily, the alleged buyer, and the two other alleged sellers (siblings) did not append their signature§ to the said agreemen't and yet given the deficiencies in the evidence presented by the prosecution, it is clear that the claim of possession by the complainant is not adequately supported. The agreement lacks necessary signatures and the testimonies provided are inconsistent and unreliable. Therefore, it is untenable to uphold the conviction for the offence of trespass based on the current evidence.

#### Element II: Entry into the property by the accused person(s)

Counsel submitted that this element of Criminal Trespass requires proof that the accused person(s) entered the property. The prosecution asserts that the appellant, Kabajjamu Nsubuga Anthony, unlawfully entered the land in question. However, this entry must be assessed in the context of the disputed ownership. If the complainant's possession of the land is not legally established, the entry by the accused cannot be deemed unlawful. The inconsistencies in the land sale agreement and the lack of credible evidence regarding the complainant's possession directly affect this element.

Counsel submitted that the validity of the accused's entry remains questionable and cannot be conclusively deemed as trespass.

## Element III: An intent to intimidate, insult or annoy or commit a crime or offence.

Counsel submitted on this element that it requires proving the intent of the accused to intimidate, insult, annoy, or commit a crime or offence. The prosecution must demonstrate beyond reasonable doubt that the accused had such intent at the time of entry. In this regard, the case of Okello Oris Atama and Ojok Richard V. Uganda, Criminal Appeal No. 0035/2013, is instructive. The High Court in that case refused to find that the element of intent to annoy had been proven, it was held that;

"The particulars of the offence were that the intention was to annoy or intimidate. In her evidence, the complainant did not say anywhere that .1:21':f

## was annoyed or intimidated by the accused in the legal sense as to constitute criminal intimidation."

Counsel went on further to submit that the pre&edent highlights the nécessity for clear evidence of intent to intimidate, insult, or annoy, which is absent in the current case. There is no evidence on record in form of examination —in —chief. Cross-Examination and re-Examination to indicate that the statements and or conduct of the Appellant towards the complainants were annoying or intimidated the Appellant.

Counsel submitted that given the unresolved issues regarding the legitimacy of the complainant's possession and the questionable legality of the accused's entry, establishing this intent becomes even more challenging. The evidence presented does not conclusively demonstrate that the accused acted with the intent to intimidate, insult, or commit any offence. The prosecution's failure to provide clear and credible evidence on possession and entry inherently weakens their argument on intent.

Therefore , the following reasoning in Okello Oris Atama and Ojok Richard V Uganda, court should find that the intent to intimidate or annoy has not been adequately, proven in this case.

Counsel for the Appellant submitted that given the deficiencies in the evidence presented by the prosecution, it is clear that not one of the three critical elements of trespass is adequately supported. The agreement lacks necessary signatures, the testimonies provided are 'inconsistent and unreliable, and the appellant's signature was obtained under coercion. Consequently, the conviction for criminal trespass is unsustainable based on the current evidence.

Counsel for the Respondent conceded to all the grounds of Appeal.

#### Court's resolution.

#### The duty of the Appellate Court

It is the duty of the Appellant Court to review the evidence of the case and to reconsider the material evidence before the trial Magistrate and make up its own ming\_—/ not disregarding the Judgment appealed from but carefully weighing and considering it. See. Kifamunte Henry Vs Uganda SCCA No. 10/1997.

'I have carefully read tpe submissions, author'ities cited before me agd looked at the record of proceedings.

The case was purely a civil matter that should have gone to a civil Court, not criminal in nature. I therefore quash the conviction and sentence of the trial Magistrate because you cannot try criminal trespass without determining the issue of ownership which is purely a civil matter. Unless there is any pending charges against the accused, he is hereby set free. Appeal allowed.

Oyuko Anthony Ojok

Judge