Mutabazi v Uganda (Criminal Appeal 39 of 2022) [2023] UGHCCRD 89 (4 September 2023)

THE REPUBLIC OF UGANDA. $\mathbf{1}$ IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA. $\overline{2}$ CRIMINAL APPEAL NO.0039 OF 2022 $\overline{3}$ (Arising out of Crim. Case No.0999 OF 2022 from the Chief Magistrates Court of $\overline{4}$ **Buganda Road Holden at City Hall)** $5$ MUTABAZI ERIC:::::::::::::::::::::::::::::::::::: $6$ **VERSUS** $7$ <table>

UGANDA::::::::::::::::::::::::::::::::::: 8 JUDGEMENT OF HON. LADY JUSTICE. MARGARET MUTONYI JHC. 9

1. MUTABAZI ERIC herein after referred to as the Appellant being dissatisfied with 10 the decision of His Worship Tuhimbise Valerian, senior Grade One Magistrate at $11$ City Hall, in the Chief Magistrates Court of Buganda Road, delivered on 14<sup>th</sup> April $12$ 2022 filed an appeal against the said decision. 13

2. The appellant was first represented by counsel from Datum Advocates who later 14 abandoned him after filing the written submissions. He was later represented by 15 Counsel Paul Julius Ssekadde on pro bono after court realized that his appeal raised 16 technical issues that he would not ably address as a lay person. The respondent $17$ was represented by the learned Senior State Attorney Ms. Tabaro Caroline 18 Ahereza. 19

3. Counsel Ssekade prayed to amend the MOA which prayer was granted. $21$

The amended memorandum of appeal had only one ground to wit, $\overline{22}$

That the learned trial Magistrate erred in law and fact when he pronounced an $\overline{23}$

illegal sentence upon the appellant by virtue of its ambiguity. $\overline{24}$

## 4. Prayers on Appeal 26

The appellant prayed that this honorable court allows the appeal, and sets aside $\overline{27}$ the sentence and orders of the magistrate's Court. And that this honorable court 28 pronounces a new and lenient sentence upon the Appellant.

- 29 I must state that court found the prayer equally ambiguous. 30 - 31 - 32

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## 5. The brief background of the case. 33

The Appellant was charged with the offence of obtaining money by False pretense 34 contrary to section 305 of Penal Code Act where it was alleged that in the year 35 2019 at Bukoto in Kampala District, the Appellant with intent to defraud, obtained 36 money worth Uganda shillings 10.000.000/= (ten million) from Tumanye Irad by 37 falsely pretending that he was going to take him abroad (United Kingdom) whereas 38 not. 39

He was convicted and sentenced as follows: 40

"I therefore sentence him to a fine of Uganda shillings 4,800,000/= (Four 41 million eight hundred thousand but of which Uganda shillings. 300.000/= 42 (three hundred thousand) is payable to URA and Uganda shillings 43 $4,500,000/$ = (Four million five hundred thousand is compensation or 23 44 months of imprisonment. I further order compensation of Uganda shillings 45

- 4.500, 000/= Four million five hundred thousand to the complainant." 46 - 47

The appellant was dissatisfied with the ambiguity and alleged illegality of this 48 sentence hence this appeal. 49

## 6. The duty of the first Appellate Court. 51

It is trite law that the duty of the first Appellate court is to look at the proceedings 52 and evidence on record and reappraise it afresh subjecting it to exhaustive scrutiny. 53

It is at liberty to draw its own inferences of fact and arrive at its own independent 54 conclusions as to whether it should maintain the decision of the lower court or 55 there is need to vary it and or overturn it all together. 56

The Appellate court combs the record right from the time of plea taking, taking and 57 recording of evidence, evaluation of evidence, application of the law to the 58 evidence and or facts, judgment, the verdict, sentencing process and the final 59 sentence given. 60

This role of the first Appellate court was well stated in the cases of Pandya V R 61 [1957] E. A 33 which has been followed in a plethora of cases. It basically 62 reevaluates the evidence bearing in mind that it did not witness the demeanor of 63 the witnesses. 64

Section 34 of the Criminal Procedure Code Act, provides for the powers of the 65 appellate court where there has been a conviction like in the instant case in the 66 following words: 67

(1)"The appellate court on any appeal against a conviction shall allow the 68 appeal if it thinks that the judgment should be set aside on the ground that 69 it is unreasonable or cannot be supported having regard to the evidence or 70 that it should be set aside on the ground of a wrong decision on any 71 question of law if the decision has in fact caused a miscarriage of justice, or 72 on any other around if the court is satisfied that there has been a 73 miscarriage of justice, and in any other case shall dismiss the appeal; except 74 that the court shall, notwithstanding that it is of the opinion that the point 75 raised in the appeal might be decided in favor of the appellant, dismiss the 76 appeal if it considers that no substantial miscarriage of justice has actually 77 occurred. 78

(2)Subject to subsection (1), the appellate court on any appeal may— 79 (a)reverse the finding and sentence, and acquit or discharge the appellant, 80 or order him or her to be tried or retried by a court of competent 81 jurisdiction; (b)alter the finding and find the appellant guilty of another 82 offence, maintaining the sentence, or with or without altering the finding, 83 reduce or increase the sentence by imposing any sentence provided by law 84 *for the offence; or(c)with or without any reduction or increase and with or* 85 without altering the finding, alter the nature of the sentence." 86

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7. The appellant filed written submissions while the learned state senior state 88 Attorney made oral submissions which have been put into consideration while 89 writing this judgment. 90

Whereas the appellant's case was that the sentence was ambiguous and should be 91 set aside and declared illegal, the learned state attorney conceded that it was 92 ambiguous but this court is possessed with power to set aside the ambiguous 93 sentence and substitute it with a proper sentence since there was justification for 94 the sentence. 95

Following the above law and the Pandya case, I perused the proceedings of the lower court to ascertain the propriety of the decision that was arrived at by the 97 98

The trial Magistrate properly laid down the legal principles pertaining to 99 adjudication of criminal cases to wit, the burden of proof that lies on the 100 prosecution and rightly quoted the case of Woolmington versus the DPP (1935) 101 AC 462, and the standard of proof that is beyond reasonable doubt, quoting the 102 103

Miller versus Minister of Pensions (1947) ALL ER 372. 104

He also stated the ingredients of the offence of obtaining money by false pretences 105 contrary to section 305 of the PCA which the prosecution had to prove as follows: 106

That the accused made a false representation by words, writing, or $1)$ 107 conduct to the complainant. 108

That the accused knew that the misrepresentation was false or did not $2)$ 109 believe it to be true. 110

- That the complainant parted with money on the basis of the false $3)$ 111 representation. 112 - That the false representation was intended to defraud the complainant. $4)$ 113 - 114

The trial Magistrate had the duty to take the evidence and evaluate it properly to 115 see if it discloses the criminal intent or mind which is commonly referred to as the 116 mens rea of the accused person and whether he actually received 10,000,000/= ( 117 Ten million Uganda shillings) from the complainant.

118 119

The prosecution called 3 witnesses to prove its case. 120

Basically, the prosecution case was that the appellant was connected to the 121 complainant, one Tumanye Irad by his sister, Nyesigomwe Phiona on the 122 understanding that the appellant was to get him a security job in the UK. That on 123 3<sup>rd</sup> December 2019, the appellant and complainant started having conversations 124 on the same and Irad accordingly made the first deposit of Uganda shillings 125 1.000.000/= (one million) to the appellant, another Uganda shillings 2.025.000/= 126 (two million twenty-five thousand) was paid and later another Uganda shillings 127 1.552.000/= (one million five hundred fifty-two thousand). That further on $6^{th}$ 128 March 2020 when the complainant returned to Uganda he sent him Uganda 129

shillings. 2.990.000/= (two million nine hundred ninety thousand) via mobile 130 money and they later met physically and he handed him Uganda shillings. 131 1,840,000/= (one million eight hundred forty thousand). That in total, the 132 complainant paid him Uganda shillings. 8.800.000/= (eight million eight hundred 133 thousand), and Uganda shillings. 1.200.000/= (one million two hundred thousand) 134 to the police to arrest the appellant making it a total sum of Uganda shillings. 135 $10.000.000/=(\text{ten million}).$ 136

In addition, they called 2 witnesses. PW2 Nyesigomye Fionah, his sister and PW3 137 Bira Evelyn, the arresting officer to corroborate the complainant's case and closed 138 their case. 139

For the Defence, the appellant led his testimony on oath wherein he admitted to 140

knowing the complainant and his sister and having dealings with them and in fact 141

taking money from PW2 to render her some assistance with taxes at URA. 142

Having heard all the evidence, the trial magistrate found that the prosecution had 143

proved its case beyond reasonable doubt and accordingly convicted and sentenced 144

- him as highlighted above. 145 - 146

From simple arithmetic, the figures mentioned by the witnesses add up to 147 $7,855,000/=$ . 148

Then there was a figure of $1,200,000/$ = allegedly paid to the police to have the 149 accused/appellant arrested which would add up to 9,055,000/=. 150

The trial magistrate did not consider the fact that the alleged money that was 151 obtained was 10,000,000/= vet evidence before him was of $9.055.000/$ = 152

The trial Magistrate did not consider the fact that $1,200,000/$ = was actually a bribe 153 allegedly paid to the police officer because no police officer testified that they 154 received officially the facilitation of arresting the accused person who was actually 155 a serving army officer according to his evidence and therefore easy to be arrested 156 by his own bosses and handed over. 157

The Appellant did not deny knowing the complainants but went ahead and stated 159 that he was helping them to follow up their tax issues with URA. 160

The trial Magistrate went ahead and convicted him, but what stunned this court is 161 his orders. 162

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In fact in his judgment he shifted the burden of proof to the accused now Appellant 163 for failing to produce any documents from URA but surprisingly made an order that Uganda Shillings 300,000/= should be paid to URA out of the fine of Uganda shillings 164 165 $4.800.000/=$ 166

No single witness from URA testified about Uganda sh. 300.000/= and how it 167 accrued. It is not mentioned anywhere in the proceedings which has made this 168 court wonder whether some information that formed his decision concerning the 169 award was extraneous and not stated in court. 170

It is incomprehensible that a senior Magistrate grade one would make such an 171 order without the backing of the evidence on record. 172

If I may look at the sentence again: 173

"I therefore sentence him to a fine of Uganda shillings 4,800,000/= (Four 175 million eight hundred thousand but of which Uganda shillings. 300.000/= 176 (three hundred thousand) is payable to URA and Uganda shillings 177 4,500,000/= (Four million five hundred thousand is compensation or 23 178 months of imprisonment. I further order compensation of Uganda shillings 179

- 4,500,000/= Four million five hundred thousand to the complainant." 180 - 181

The question to be asked is, how many complainants are in this case"? 182

- How does URA come in? 183 - Who is to be compensated in the first amount of Uganda Shs. 4,500,000/= or he 184 - suffers imprisonment of 23 months? 185 - Why is he making a second compensation order of 4,500,000/=? 186

All the above vague orders shows that the trial magistrate arrived at an erroneous 187

judgment in the first instance that was not backed by evidence. 188

Court is doubting the source of his information and as such doubting the entire 189

- proceedings. 190 - 191 - With the above said, was the sentence illegal and ambiguous? 192 - Any sentence that does not arise from a proper conviction is illegal. 193 - There was no evidence that the appellant received 10,000,000/= from the 194 - complainant for the facilitation of getting him a job in the U. K. 195

There was no single document from the U. K that was adduced in court to prove that he uttered it to the complainant to convince him to part with the 196 197

- In cases of obtaining money by false pretenses, the accused must do some 198 false overt act that convinces the complainant to believe him or her to part 199 with his or her money. It is not just a word of mouth as that is difficult to 200 201 prove given the high standard of proof beyond reasonable doubt. - 202 I looked for the evidence that would have convinced the complainant to part 203 with Uganda shillings 10,000,000(Ten millions) in vain. - 204 The prosecution had to prove receipt of Uganda Shillings 10,000,000/= which 205 was also not done. The alleged facilitation of shillings 1,200,000/= paid to 206 the police was not proved at all because no recipient of that money ever 207 acknowledged it. The order of payment of Uganda shillings 300,000/= ( 208 three hundred thousand to URA without any legal justification in terms of 209 evidence on record supports the evidence of the accused that one of the 210 witnesses had some relationship with him concerning URA which issue was 211 not given much attention. The trial magistrate instead shifted the burden to $212$ the accused to produce documentation while at the same time making 213 orders for payment of money to URA making his final decision very 214 ambiguous. - In the result, I found the conviction erroneous and therefore allow this 215 216 appeal with the following orders: 217 - Quash the conviction as all ingredients of the offence were not $1)$ 218 proved. 219

Set aside the ambiguous sentence and orders therein. $2)$

- 220 The appellant should be released unless held over other lawful $3)$ 221 charges. 222 - The state is free to appeal against this decision within 14 days if not satisfied. 223 - Dated at Kampala this 4<sup>th</sup> day of September 2023. 224 - 225 - 226 Judge Margaret Mutonyi. 227 - Appellate Judge. 228