Nkojo v Uganda (Criminal Appeal 2 of 2000) [2000] UGHC 39 (4 May 2000)

Full Case Text

## THE REPUBLIC OP UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT PORT PORTAL CRIMINAL APPEAL NO. DR. 2/2OOO NKOJO MURRO (Original Criminal Case J78 of 1996) APPELLANT

### VERSUS

UGANDA RESPONDENT . BEFORE: THE HONOURABLE MR. JUSTICE ELDAD EWMGUSYA

# JU D G ME N T

The appellant, EBENEZER NKOJO MURRO was formerly a Headmaster at. the Penal Code Act, Causing Financial Loss Contrary to Section 258 the Penal Code Act. and Abuse of Office Contrary to Section 8?(l) of the Penal Code Act. The teacher, RWIJA NORBERT was acquitted on all the countscharged while th« appellant was convicted on all the three counts charged and sentenced to three years imprisonment on each Count. The sentences were to run concurrently. The learned trial Chief Magistrate also made an order that the appellant refunds shs. 995>0OO/= to the affected students^ \* oince the money they had paid for the Uganda Certificate of Educate Examinations, yae not remitted to UNEB". Kibiito Secondary School, Kabarole District. He was charged with one of his teachers for the offences of Embezzlement Contrary to Section 257(a) -of

The appellant was dissatisfied with the decision of the trial Chief Magistrate and appealed to this Court against both conviction and sentence. The grounds of appeal contained in Kanyunyuzi and Company Advocates are as follows a memorandum of appeal filed by M/S

1. The learned trial Ag. Chief Magistrate erred in Law in convicting error occassioned a miscarriage of justice. the appellant relying on the evidence of the prosecution without properly scrutinizing and/or give due weight to the evidence for the defence which

the appellant's failure to. notice the requirement of payment of extra fees miscarriage of justice considering all the for a change of a centre and Late registration to be the basis for the conviction of the appellant for the offences with which he was charged, thereby occasioning a 2. The learned trial Ag. Chief Magistrate erred in fact when he relied on

<iireruns-of the case.

3. The learned trial Ag. Chief Magistrate erred in Law and fact when he failed, to appreciate presence of a lacuna in the prosecution's evidence i.e. non production of evidence to show that the appellant had not remitted the shs. 995\*000/=" to Uganda National Examination Board the alleged owners of the money, which failure and/or oversight occasioned a miscarriage, -ef jerstica to the appellant.

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4. The learned Ag. Chief Magistrate erred in Law and. fact when he failed to appreciate that the prosecution had failed to prove the necessary ingredients of the offences against the appellant.

5. The learned Ag. Chief Magistrate erred in tew and when he sentenced the appellant to a term of 5 years imprisonment on each of the Counts and ordered that ho refunds she. 995-,OOO/= to the affected students yet the chargeshoot alluded to the money being the- property xrf Uganda National Examinations Board.

The facts giving rise to the conviction of the appellant are fairly straightforward. The prosecution ease is entirely dependant on the evidence of eight witnesses all of whom were former students of Kibiito Secondary School the appellant was -a Headmaster. In 1996 all the Students who testified were students at the said School -find all of them were -Candidates for the Uganda Certificate of Education Examinations. All of them missed sitting their examinations because their names were missing from the Uganda National Examination Board (UNEB) Computer sheets although they had paid the requisite examination fees. When they discovered that their names were missing they confronted the appellant who according to Nyikiriza Julius (P. W.1), Rubamba Jana Julius (p. W.4), Baguma Ephraim (P. W. 5) and Tumuhairwe Tukwasibwe Amos (P. W.j) and Tweheyo Herbert (p. W.7) testified that the appellant threatened to shoot them when they went to ask him why their names did not appear on the Computer sheet. Patrick (P. W.8) Undertook to refund their money.

In his defence the appellant testified that he received shs. 2.898.000/= for payment to Uganda National Examination Board. Out of this amount shs. 116,000/= was spent' on travel, accommodation and maintainance while shs. 2.782,000/= was for Registration of only 110 students when 150 had paid

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for Registration. He also found that he required ahs. 6.000/= per student for late registration and change of a centre. This created a shortage in the total amount required for registration of all the 150 students..

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As I deal with this appeal I am alive to the duty of a first appellate Court as restated in the Case of QKE. VO VERSUS REPUBLIC (1972) BA 32 at page 56 as fallows:-

" Ail appellant on whale to be submitted to a fresh and exhaustive examination (Paddya V\*. R. (1957) EA. 5%) and to the appellate Court's own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwale V. R. (1957) EA 570). It is not the function of the first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions; only then can it decide whether the Magistrate's findings should be supported. In doing so it should make allowance for the fact that the trial Court has had the advantage of seeing and hearing the witnesses --- " a first appeal is entitled to expect the evidence' as a

In this particular case the main issue is whether or not on the evidence, adduced the prosecution proved any offence of the three charged. From my discussion of the grounds of appeal raised and submissions of Counsel for the appellant that issue and any other that may arise shall be determined. By discussion of the 1st ground may in fact dispose of this appeal.

On the first ground of appeal Counsel for the appellant submitted, that the trial Chic-f Magistrate relied on the evidence of the prosecution witnesses who were students who missed their exams and did not properly analyse the evidence as he never considered the accountability for the funds received from trie Bursar by the appellant. I will deal with this part of Counsel's submissions straight away. It is not correct to assert that the trial Chief Magistrate did not properly analyse the evidence of the defence because he did. At page 11 of his judgment he sets out the appellant's defence which he proceeds to analyse on page 12 and 13 of the same judgment. Whether or not he came to right conclusion is a matter that will be determined by this Court but it suffices to say that his decision to disbelieve the appellant's story will be discussed in the bourse of this judgment.

Considering that the appellant is entitled to a fresh scrutiny of the evidence. I will analyse the appellants defence and come to my own conclusion.

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*ft-'*

Mr.- Kanyunyuzi further submitted that the prosecution evidence did not show how the amount allegedly embezzled was arrived at. He submitted that calculations should have been mrde to prove the figure embezzled which was not done in this case. He stated that the receipts which all the witnesses talked about and were recovered by the Police should have been produced. First • there is no dispute about the appellant receiving this money for transmission to Uganda National Examination Board. What is in dispute is whether this money was embezzled and how much of it was. Only eight of the students who missed their exams testified and what they paid does not come anywhere near the amount allegedly embezzled. To me the most important issue is whether any money was embezzled or lost. If the prosecution proved embezzlement students would constitute the offence if the other ingredients were proved. of all there is ho dispute about the money paid and receipted. So the non production of the receipts was not fatal to the prosecution case. Secondly or Causing Financial Loss even the small amounts received from the eight

This brings me to the most crucial of Er. Kanyunyuzi1*&* submissions. That is that the failure by the prosecution to call a witness or witnesses from Uganda national'Examination Board was fatal to the prosecution case.

The prosecution did not adduce any evidence from Uganda National Examination Board who were supposed to be the victims of the alleged embezzlement and Causing Financial Loss. From the record it is not clear why evidence from Uganda National Examination Board was not adduced. There January 1957 the prosecution intended to call more witnesses presumably including those from Uganda National Examination Board, Indeed an adjournment was sought for the purpose of calling more witnesses. The ca«e dragged on with numerous unnecessary adjournments until the 16th July 1992 when the defence opened its case. No other witness was called by rhe prosecution . for a period of more than two years. Mr. Bwiruka State Attorney who appeared for respondent in this appeal also appeared for the prosecution during the last stages of the trial. During the hearing of this appeal he was asked why no evidence was adduced from Uganda National Examination Board and he did are indications .that when the last prosecution witness testified on 14th

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not have a clear reason apart from stating that the omission by the prosecution was not fatal to the prosecution case. As to whether or not the omission was fatal to the prosecution case will be determined after examination of the ingredients of the offences charged which I proceed to do.

To begin with S. 257(a) of the Penal Code defines Embezzlement as follows:- Any person who being, (a) an employee, servant or officer of the government or Public body.

- (b) a director, officer or employee of a company corporation - (c) a clerk or servant employed by any person, association or a religious or others organisation; or - (d) a member of an association, religious or other organisation Steals any chattel, money or valuable security being the property of his employerj Company, association religious or other organisation received or taken into possession by him for or on account of his employer, association, religious or other organisation or by virtue of his office, shall be guilty of the offence of embezzlement-

It is my view that under this Section the prosecution had to prove that the appellant was an employee of Uganda National Examination Board that he stole money or valuable security belonging to his employer (UNEB) and that the money or valuable security stolen came into the possession of the appellant in the course of his employment on account of his epjiboyer. Without adducing evidence from Uganda National Examination Board the crucial relationship between the appellant as an employee of Uganda National Examination Board was not established and from the evidence on record no other relationship between Uganda National Examination Board and the appellant was established. The other ingredients stem from this ingredient and without evidence from Uganda National Examination Board there was no way those other ingredients would be proved. For example I do not see how the appellant can be said to have embezzled Uganda National Examination Board's money'unless Uganda National Examination Board testified to the circumstances leading to the embezzlement as they were alleged victims of this embezzlement. So Contrary to Mr. Bwiruka's assertion the omission to call a witness from Uganda National Examination Board was fatal to the prosecution case as far as the Count of Embezzlement was concerned and that offence was not proved.

Similary as far as the offence of Causing Financial Loss wan concerned, it was essential to call a witness from Uganda National Examination Board to prove the loss, 1 will sot out the provisions of S. 258 of the Penal Code Act for case of appreciation of my assertion• S. 258(1) of the Penal Code Act, Under which the appellant was charged provides ns follows:-

" Any person employed by the government, a bank, a credit institution, an insurance Company or Public Body who in the performance of his duties does an act knowing or having reason to believe that such an act or omission will cause Financial Loss to the Government, bank or credit institution insurance Company, Public body or customer of a bank or credit institution shall be guilty of the offence of Causing Financial Loss **it**

The ingredients of the offence under the said provisions that the prosecution had to prove are as follows

(i) the accused is employed by the Government.

(ii) he does an act or omits to do an act and it occassions loss

(iii) he has knowledge or reason to believe that tiie omission or commission would cause Financial Loss.

In the case of KASSIM NFMGA .ffiKSUS UG. AJLA SUPItW COURT 01' UGANDA Criminal Appeal No. *JO* of 1994 (unreported) the Supreme Court in dealing with the above ingredients had this to say:-

**it** The operative word here is loss

The word "loss" as used in Section 258(1) is not defined. We must therefore assign it the plan and ordinary meaning. The shorter Oxford Dictionary defines from deprivation. Put differently, to suffer loss is to cease to possess soothing, to be deprived of or part with some, thing of one's possession. "loss", inter alia as detriment or disadvantage resulting

Black Laws Dictionary 5 Ed. page 851 stated that loss is generic and relative term. It signifies the act of lossing or the thing lost; it is not a word of limited, hard and fast meaning and has been held to be synonymous "deprivation" "detriment" "injury" and "privation" ii with or equivalent to "damage"

In this particular case I do not see how damage, deprivation detriment injury or ceasure to possess something could be proved without evidence of the victim of the "loss" testifying to that loss. Therefore in my conclusion the

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offence of causing financial loss Ehxxgxd was also not proved by the prosecution.

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The last offence charged was that of Abuse of oft ice Contrary to Section 8j(l) of the Penal Code Act. It is defined as followsh-

" A person who, being employed in a Public body or Company in which the government has shares, does or directs to be done an arbitrary act prejudicial to the interests of his employer or any other person, in abuse of authority of his office, commits an offence and shall be liable on conviction to imprisonment to a term not exceeding seven years."

The essential ingredients of the offence that the prosecution needed to prove can be broken down as follows

(a) the accused was employed by the government

- (b\$) the accused did an arbitrary act - (c) the act was in abuse of authority of his office - (d) the act was prejudicial to the interest of his employer or any other

These ingredients are expounded in the case of Kassim Ep;inga (Supra) and I have underlined the clause fact that unlike in the cases of Embezzlement and Causing Financial Loss the students are the victims of the arbitrary act if from the evidence, the appellant's act amounted to an arbitrary act. " or any pthers person" to signify the

The arbitrary act complained of is that the money paid by the students for their examination fees was not paid to Uganda National Examination Board leading to their missing from the computer sheets and thus missing their examinations. In other words their money was diverted by the appellant. The appellant gave an explanation as to how the students whose names started with Letter "M" of the alphabet and beyond missed on the Computer sheets from Uganda National Examination Board. He testified that the money given to him to pay for examinations of his candidates was not enough because of the shortage created by ' the&lt; money.- spent on his travel and maintainance and the shs. 6,000/= levied on each student for late Registration and change of Centre.

Mr. Kanyunyuzi on the appellant's explanation aa to what

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caused the shortage and stated that the money given to the appellant was eaten up by the Levy. He also submitted that there was so much tension centre that there was no tine to sit down with the Bursar and make calculations of the money that was required for the Registration of candidates. 1 do not buy the appellant's \ O'-planation and Mr. Kanyunyuzi.arguments. First of all I do not believe that the money for the examination .fees was mixed up with the money for the appellant's travel and subsistence. The money for registration was earroaked for that purpose and was given to the appellant specifically for that. Secondly if there was any shortage created by the levy on each student the appellant would not have sat on that information till the confrontation by the affected students after production of the Computer sheets by Uganda National Examination Board. Thirdly one of the students, Baguma Ephraim-(P . W. 5) testified that he paid in his money in September 1996 and if the appellant had problems registering students who paid in June/July 1 do not see why the appellant should have accepted this Student's money, promise him that he was going to fill his formsx in Kampala and even tell him that he had filled his forms. To me this act destroys the argument that the non-registration of the candidates was caused by a shortage of funds created by the levy imposed by Uganda National Examination Board. It is also noteworthy that when the Students confronted the appellant on their non-registration he undertook to refund their money. This of course would not in my any way alleviate their plight because the damage was already done. They were going to miss their examinations. But the point is that if the appellant had paid the money to Uganda National Examination Board the question of a refund would not arise. The appellant had diverted the funds. That is why he undertook to refund them. My conclusion on Count 111 of the charges is that the prosecution proved the ingredients of the offence of Abuse of Office. The diversion of funds of the sxel students who had paid examination fees constitued the arbitrary act which was to the prejudice of these students in that they missed their examinations as a result of the diversion of funds. In reaching this conclusion I an fully aware of the wording of the chargesheet where it is stated in the particulars of the offence that the arbitrary act was to the prejudice and hurry in trying to secure a

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**4**

of Uganda National Examination Board. But in the circumstances of this case, i.e. the evidence adduced By the prosecution and that by the appellant my finding that the arbitrary act was to the prejudice of the Students rather than Uganda National Examination Board would not occassion any miscarriage of justice to the appellant.

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My discussion of this case so far effectively disposes of all the ^rounds raised by the appellant in his memorandum of appeal with the following resuits

(l) The appeals against conviction on counts 1 and 2 are allowed. The convictions will be. quashed and the sentences set aside.

(2) The appeal against conviction on count J of the chargesheet is dismissed. I will not interfere with the sentence either because it was not illegal or manifestly excessive. The trial Magistrate gave reasons for imposing the sentence and I see no reason for interfering with it.

On the Order for compesation the learned trial Magistrate did not specify the convictions in respect of which he made the compesation order nor Under which Law he made it. It is also difficult to ascertain how he arrived at the figure of shs. 995.000/=.

S. 259 of the Penal Code provides for compesation where a person is convicted Under Sections 257 and 258 of the Penal Code since th convictions under these sections have been quashed the order for compesation cannot stand and will be set aside. To that extent the appeal against sentence is allowed.

JUDGE Sgd. ( ELWJiy&jfGUSYA )

4. 5. 2000.

## 4/5/2000: Appellant present.

Mr. ^-anyunyuzi for appellant.

Mr. Bwiruka State Attorney for respondent.

Mr. Gamukama Court Clerk.

Court:

Judgment signed and delivered! in\_~open Court.

Sgd.(ULDAbji;aiWUSYA ) **J fl) G E** 4.. 5. 2C'~