Mabirizi and Another v Uganda (Criminal Appeal 9 of 1995) [1995] UGSC 23 (28 July 1995)

# REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., & TSEKOOKO, J. S. C.)

## CRIMINAL APPEAL NO. 9 OF 1995

#### BETWEEN

| NELSON MABIRIZI | | | | | | | | | | | 1:::::::::::::::::::::: APPELLANTS | |---------------------|--|--|--|--|--|--|--|--|--|--|------------------------------------| | 2. SULAIMAN MAYANJA | | | | | | | | | | | |

### A N D

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

> (Appeal from judgment of the High Court of Uganda at Kampala (Okello J.) dated 29th August, 1994.

#### I N

#### HIGH COURT CRIMINAL APPEAL NO. 73 OF 1993

### JUDGMENT OF THE COURT:

This is a second appeal from the appellants convictions by a Magistrate Grade I sitting at Nakawa. Their appeals to the High Court were heard and dismissed by Okello, J. The second appeal to this Court only lies on points of law.

The facts as found by the trial Magistrate are these. The two appellants together with one Godfrey Sebuliba were employees of Esso Standard (Uganda) Ltd ("hereinafter referred to as "Esso"). By 1992, the first appellant was working as a Stock Assistant. His duties included keeping records of goods received and transactions such as Sales, transfers, borrowing and loaning between Esso and other sister Petroleum Companies. The second appellant had been employed by Esso for 26 years and by 1992 was the Depot Manager

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based in Kampala. As Depot Manager his major responsibilities included safety of operations in the depot, freight operations, credit control, depot staff supervision and control of the quality of products.

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The first appellant and Godfrey Sebuliba were among members of Staff working directly under the second appellant.

In early May, 1992, Abebe Guibricht, (PW2) Accounting And Financial Manager of Esso, reviewed returns and or reports from Kampala Depot for the month of January, 1992; He noted some irregularities. As a result Esso carried out detailed investigations for the period $1/1/1991$ to April, 1992. Those investigations allegedly revealed that Esso had lost a lot of its products valued at Shs. 54,000,000/=. Consequently the two appellants and Godfrey Sebuliba were arrested and charged with various offences in Makawa Magistrate's Court. In the first count all the three were jointly bharged with embezzlement contrary to S. 257 (b) of the Penal Code. In count two the two appellants were jointly charged with the offence of fraudulent false accounting C/S 305 (a) of the Penal Code. Godfrey Sebuliba alone was further charged with four counts of Forgery $C/S$ 326 of the Penal Code. These were counts 4,5,6 and 7.

The three were acquitted of the charge of embezzlement but were convicted of the minor and cognate offence of simple theft C/S 252 of the Penal Code for which the two appellants were each sentenced to imprisonment for 48 months. The appellants were also convicted on the second count of fraudulent false accounting and were each sentenced to 30 months imprisonment. The appellants' appeals against both the convictions and sentences were dismissed

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by the High Court. Hence this appeal.

In his memorandum of appeal to this Court, the first appellant preferred four grounds of appeal but his counsel, Mr. John Kityo, abandoned the first ground which was objected to by Mr. Micheal Wamasebu, learned Principal State Attorney, appearing for the state. Mr. Kityo also abandoned ground three during his submissions. The second appellant preferred six grounds of appeal but grounds two and five were abandoned by his counsel, Mr. P. Ayigihugu. because of objection raised by Mr. Wamasebu.

Because the submissions of Mr. Kityo and Mr. Ayigihugu overlap we shall consider the two memoranda of appeal together.

The residue of the grounds of appeal by the first appellant state as follows:

- "2. The respondent did not prove the charge in COUNT 2 beyond reasonable doubt. - $4.$ The sentence on both count No. 1 and 2 is illegal"

The residue of the grounds in the memo of the second appellant state that $-$

- "1. The learned appellate judge erred in law to dismiss the appeal after he had held that the trial Magistrate had shifted the burden of proof to the appellants. - 2. The learned appellate judge erred in law to uphold the convictions against the appellant without evidence to prove the charge against him.

3. ...............

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- 4. The learned appellate judge erred in law in failing to consider the case of the appellant separately and also failed to consider the evidence in respect of each count. - 5. ...................

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The learned appellate judge erred to 6. uphold the sentences imposed on the appellant in view of the fact that he was convicted of simple theft."

We will first consider a preliminary matter by Mr. Wamasebu. He objected to ground two of the memorandum of the second appellant contending that it offended S. 337 (1) of the Criminal Procedure Code in that the ground raised a point fact. In reply $Mr.$ Ayigihugu submitted that the ground raised a point of law only and was therefore properly before us for consideration. We upheld the objection and promised to give our reasons later. We now give the reasons.

Section $337$ (1) reads as follows -

"Either party to an appeal from a Magistrate's Court may appeal against the decision 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 on a matter of fact or of mixed fact and law."

The subsection is very clear. It prohibits raising grounds of appeal on second appeal to this Court which grounds entail the re-evaluation of the evidence by this Court on second appeal. In our view the ground to which objection is made requires this Court to re-evaluate the evidence as if we are the first appellate Court. We could not do that. We accordingly upheld Mr. Wamasebu's objection and struck out ground two from the memorandum of the

second appellant.

We now consider the submissions on the remaining grounds of appeal. The complaints of the 2 appellants as contained in their memoranda and the submissions of counsel broadly stated are that -

- (a) The trial Magistrate shifted the burden of proof to the appellants. Although the appellate judge in the Court below accepted that the trial Magistrate misdirected himself on the burden of proof, the judge failed to give effect to this finding. - (b) That since the evidence against the appellants was circumstantial evidence, it was insufficient to found convictions of the appellants. - (c) In particular there was no evidence proving the second count. - (d) That the learned appellate judge erred in upholding the convictions and sentences.

Ground one in the appeal before the learned judge in the Court below was concerned with shifting the burden of proof. Grounds 2,3, and 6 concerned lack of evidence. These were the substantial complaints.

We find it pertinent to reproduce ground one which states:-

"The krial Magistrate occasioned very serious miscarriage of judtice when he shifted the burden of proof from the prosecution to the defence as per page 33 of the judgment."

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During the hearing of the appeal in the Court below, counsel for the appellants drew the attention of the learned judge to the offending passages on the burden of proof contained in the judgment of the trial Magistrate. Mr. Mugenyi, the Principal State Attorney, who appeared for the respondent in the Court below conceded the misdirection. Among the passages in which the trial Magistrate misdirected himself is the following -

> "In defence as herein above explained $A1$ and $A2$ never raised a reasonable explanation in order to escape the charge against them."

Because of this fundamental misdirection by the Magistrate, the learned judge rightly referred to the principles on the burden of proof as set forth in decisions such as Murimbi Vs.. Republic (1967) EA 543 and Okethi Okale Vs. Republic (1965) EA 555. The learned judge then made the following observations: -

> "It is thus true to say that the quoted observation made by the trial Magistrate in the instant case is a misdirection. He thereby fell into the same error as was in Okethi Okale and Ndege Maragwa above. He first believed the prosecution case and then cast the onus on the appellants to rebut or throw doubt on the prosecution case. On the authorities stated above, that is a wrong approach. A correct approach is to consider the prosecution and the defence cases together. The problem of the trial Magistrate appears to have started on page 23 of his judgment when he said.

'In such regard, when the prosecution established a prima facie case, the accused must raise a reasonable explanation in order to escape the charge against him.

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- $\mathbb{I}(a)$ ...... ....... - $(b)$ ..... ....... - (e) Whether the accused persons have defences against the charge against them."

That 'issue' was raised before the trial Magistrate had alluded to any evidence. Since he chose to raise "issues" for consideration by him in the case it surprises us that instead of first asking whether the prosecution had proved its case, the Magistrate first asked himself whether the accused had any defences. The Magistrate's misdirection quoted by the learned judge and reproduced above came much later in the Magistrate's judgment and was preceded by reproduction by the Magistrate of S. 100 of the Evidence Act. The Section states that -

> "Wheever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist......."

Clearly this provision is irrelevant to the criminal charge preferred against the appellants. The trial Magistrate was obviously influenced by the section (which is more approapriate in Civil Cases) and consequently grossly misdirected himself in that he required the appellants to raise a reasonable explanation before they could "escape the charge." He made this fundamental error immediately after he had summarised the evidence in the case and before he had subjected the evidence of any prosecution witness to scrutiny and even before he had decided on the credibility of any witness.

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We cannot but infer that having administered to himself a fundamental misdirection on the burden of proof which is contrary to our system of justice the trial Magistrate was obviously prevented from making a fair adsessment of the evidence against each occused before he convicted them. This is apparent from the fact that he repeated the same misdirection towards the end of his judgment.

When refering to the misdirection the appellase judge continued to observe that -

> "The above statement tends to shift the onus of raising reasonable explanation onthe accused once a prima facie case has been established. This can be misleading. The burden of proof in criminal proceedings lies on the prosecution throughout. At the end of the trial, the Court has to consider the evidence before it together. If there is a reasonable doubt as to the guilt of the accused, then he must be acquitted. That doubt need not be created by the evidence or explanation of the accused. It may come from within the prosecution evidence itself. For the above reasons, I find that the trial Magistrate misdirected himself on the burden of proof."

The learned judge clearly accepted the complaint by the appellants that the trial Magistrate had occasioned a misdarriage of justice by in effect requiring the accused to prove their innocence. Notwithstanding that finding on the burden of proof, the learned judge did not state whether or not the ground succeeded and if so what was the effect of the misdirection. With respect we agree with appellants counsel that the learned judge erred. With respect we do not accept Mr. Wamasebu's submission that this error was cured

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by the judge's subsequent statement at page 11 of his judgment that there was overwhelming evidence against the appellants. That statement was in any case made after the learned judge had considered grounds 2 and 3 of the appeal before him implying thereby that it referred to those grounds as he had dealt with the first ground separately. As first Court of appeal, the learned judge was duty bound to make conclusions in consequence of his re-evaluation of the evidence and give effect to his conclusions particularly so as the misdirection was a fundamental one. Accordingly the complainants ground one of second memorandum of appeal must succeed.

Regarding the grounds on lack of evidence and consideration of each appellant's case separately, as connsel for the appellants submitted before us, the learned judge did not point out the overwhelming evidence against each appellant on each of counts one and two.

The prosecution called six witnesses, including a handwriting expert, Apollo M. Ntarirwa (PW6). This witness whose evidence is normally valueable in fraud cases did not incriminate any of the appellants. He actually exonorated them.

While a Court is not bound to accept evidence of an expert witness, there must normally be cogent reasons for refusing to accept evidence of an expert.

In ground 5 of appeal in the Court below the appellants complained that there was no evidence to prove theft of property valued at Shs. $54,000,000/=$ .

As we understand the case against each of the appellants, the key prosecution witnesses in so far as the case against the appellants is concerned were Muyanja (PW1) who was the Operations Manager, Abebe Geberchwot (PW3) the Accounting and Financial Manager and

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PW4, Hobbie Travis Muzeyi, the Manager of a Petrol Station in Masaka.

The particulars of offence in count one alleged in brief that the appellants and others between $4/1/1991$ and $30/4/1992$ . stole lubricant Oils and greases all valued at Shs. $54m/=$ None of the key witness or any witness for that matter gave details to prove how Shs. $54m/$ = was arrived at. A charge of general deficiency must be dupported by evidence. The learned judge obseverved that PW3 was not challenged on the total of Shs. $54m/=$ . With respect we think that that is a misdirect on the evidence because the record shows that when PW3 was challeged in cross-examination by Mr. Nsubuga Mubiru DW3 replied - in a management with a minimum state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the

## "But we have not broken down the figures"

The assumptions of PW1, PW3 and PW4 are to the effect that the appellants together with Godfrey Sebuliba must have stolen the items between $4/1/1991$ and $31/1/1992$ . PW1 and PW3 based their assumptions on the discorvery of what they all called "manipulation of stock registers and apparent arithemetical errors." The evidence of PW1 is basically *hearsay* because it is based on reports of PW3 and others. Then there was the evidence of PW4 who claimed that he was made to carry some packaged items by A2 between 25/5/1991 and $30/11/1991$ three or four times. He specifically referred to items mentioned in invoices No. 2968 dated 25/5/1991, No. 1990 date 16/9/91, No. 2098 dated 11/10/91 and No. 4997 dated 30/11/91. The trial Magistrate listed the amounts on the five invoices. This amounts to Shs. 2,040,300/=. But what is significant here is

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that according to PW4's evidence the theft must have occured before the end of 1991. But then this conflicts with the audit reports. Two witnesses PW1 and PW3 testified that the company's accounts for 1991 were audited by firms of external auditors called Price Water House. PW1 suggested that in 1991 there were about three audits. According to PW3 the auditors made physical checks on stocks during the actual auditing exercise and yet the auditors did not mention in their audit reports for 1991 any discrepancies discovered. When PW3 was cross examined after his recall, he stated that -

> "It is not my responsibility to take stock. Monthly stock taking is the duty of the depot Manager, sales invoicing clerk and the accounts clerk. They could be audited on a surprise basis. But we do physical inventory at the end of every year. At the end of 1991 we had Price Water House. These are our auditors and they never reported discripancies between the records and the physical stock. They never made any complaints to us. They did not tell whether they were satisfied with the stock or not. These external auditor did not discover anything at this stage .........."

None of the key witnesses explained why the auditors who are experts could not **find** deficiencies after the physical auditing. This seriously affected PW4's credibility as a witness. The auditors' report therefore supports the appellants who testified on oath that there were at least two audits in respect of the relevant period and nothing wrong was found.

Neither the trial Magistrate nor the learned appellate judge considered this very important aspect of the evidence. Instead the trial Magistrate relied on A3's challenged admission to police by speculating that - $-12 -$

"On this note and holding, I infer that very many lubricants and greases were stolen from the company."

From the passages that follow this apeculation by the Magistrate, we are left in no doubt that the appellants were convicted because of "arithmetical errors."

It is unfortunate that defence counsel mever made submissions to trial Magistrate before he wrote his judgment. This compunded problems for Magistrate.

On the basis of the auditors report there was no loss during 1991. During the proceedings in the Court below, the evidence on the auditors' report was drawn to the learned judge but he did not comment on it. We think, with respect, that the learned judge erred in that regard.

In their evidence on oath both appellants denied any theft during 1991. Therefore the evidence of PW4 in the context of the case is highly suspect particularly since the gate registers which would reveal and alleged excess taking were not available.

For the period between January 1992 and $30/4/1992$ neither PW1 nor PW3 or any other witness Pinpointed any of the appellants. The guilt of the appellants was thus founded on "arithemetical arrors." Both PW1 and PW3 and the trial Magistrate repeatedly used the J expression "arithemetical errors" in reference to alleged discrepancies and loss. Clearly arithemetical errors could not be a substitute for evidence to prove the charges preferred against the appellants.

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Further in their evidence both the appellants stated that there were trainee employees in the depot who must have made the "arithemetical errors" in entries in the stock books.

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Both counsel who appeared in the Court below rightly agreed that the evidence against the appellants was circumstantsal. Here we would like to restake what has been stated before that inorder to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosocation and never shifts to the accused: See R. Vs. Kipkering Co-op. Kaske & Avother (1949) 16 EACA 135. Thus the ovidence against the appellaris raised only suspecials but control or addepable doubt about the guilt of the appellants.

Instead of giving the appellants the benefit of the doubt, the trial Magistrate relied on "arithemetical errors" to convict them because they had not explained away the prima facie case " raised against them.

We think with respect that had the learned judge sufficiently ro-evaluated the evidence as he was bound to do, he would have held that the misdirections of the trial Magistrate occasioned a

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miscarriage of justice and would have allowed the appeals.

Again Mr. Kityo and Mr. Ayigihugu submitted that there was no proof that each of the appellants committed the offence in count two. When submitting in the Court below, counsel for the Respondent appears to have conceded this.

In brief the particulars of offence in count two alleged that the appellants on 20th day of January, 1992 falsefied documents, i.e., stock sheet records by making entry therein purporting to show that ten cartons of lubricant oils had been purchased from Esso Standard whereas not.

PW3 in his testimony stated that the second appellant was on computer course during January, 1992. He did not say on which days in January, 1992 A2 was at the Station on duty. A2 denied preparing any stock sheets. A1 likewise denied writing the sheets in question.

PW6 testified that he could not tell who wrote exh. P.3. Exh. P.3 is a stock sheet dated $20/1/1992$ which was relevant to count 2. Since PW6 a handwriting expert, proved that neither A1 nor A2 or both wrote that stock sheet, there was clearly no basis for convicting the appellants on the count of fraudulent false accounting. The speculation by the trial Magistrate that the appellants had the opportunity to make the entries is fallacious. In the circumstances with respect we agree with counsel for the s appellants that the conviction on this count was bad. The grounds on lack of evidence must therefore succeed.

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In the result we allow the appeal, quash the convictions set aside sentences.

Before we take leave of this case we wish to express surprise that an important case like this, involving a huge sum of money was left to be prosecuted by the police. We think that the Director of Public Prosecution'should have taken over and prosecuted the case. In the event the case was badly investigated and badly prosecuted.

Dated at Mengo this $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\math$

raugmil S. T. MANYINDO.

DEPUTY CHIEF JUSTICE.

A. H. ODER, JUSTICE OF THE SUPREME COURT.

J. W. N. TSEKOOKO,

JUSTICE OF THE SUPREME COURT.