Ssimbwa & Another v Uganda (Criminal Appeal 78 of 2024) [2024] UGHCCRD 63 (28 October 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

**(CRIMINAL DIVISION)**

**CRIMINAL APPEAL NO. 78 OF 2024**

**(ARISING FROM THE CHIEF MAGISTRATE’S COURT OF NABWERU AT MATUGGA CRIMINAL CASE NO. 099 OF 2024)**

1. **SSIMBWA PAUL KAGOMBE** 2. **MUYIMBWA FRED ….……..…………….………………………………. APPELLANTS**

**Vs.**

**UGANDA ……………………..…………………...………………………..… RESPONDENT**

**JUDGEMENT**

**BEFORE HON. JUSTICE GADENYA PAUL WOLIMBWA**

1. **Introduction.**

Ssimbwa Paul Kagombe and Muyimbwa Fred (the Appellants) are dissatisfied with the decision of H/W Nahirya Esther (Senior Principal Magistrate Grade 1) delivered on 12th June 2024 at the Chief Magistrate’s Court of Nabweru at Matugga and have appealed against conviction and sentence.

1. **Background to the Appeal**

On June 7, 2024, the first Appellant was charged with two counts, while the second Appellant was charged with one count. The first count was for obtaining money by pretences, contrary to Section 305 (currently Section 285) of the Penal Code Act. The second count was for conspiracy to commit a felony, contrary to Section 390 (currently Section 363) of the Penal Code Act.

In Count 1, the Prosecution stated that sometime in June 2023, at Nakakokolo Cell in Wakiso District, the first Appellant, intending to defraud, obtained UGX. 22,500,000 (Twenty-Two Million Five Hundred Thousand Shillings) from Muhwezi Samuel by falsely pretending to sell him land when he was not selling any. On Count 2, the Prosecution case was that sometime in June 2023, at Nakakokolo Cell in Wakiso District, the first and second Appellant conspired to commit a felony to defraud Muhwezi Samuel of his UGX: 22 500,000/= (Twenty-Two Million Five Hundred Thousand Shillings).

The Appellants pleaded guilty to the charges and were convicted based on their pleas. For Count 1, the first Appellant was sentenced to 12 months of imprisonment, and for Count 2, both Appellants received a sentence of 12 months’ imprisonment. Additionally, each Appellant was ordered to compensate the Complainant a sum of UGX. 11,250,000. For the first Appellant, the sentences were ordered to run concurrently.

The Appellants now seek to Appeal against the decision of the lower court because:

1. The Learned Trial Magistrate erred in law and fact when she failed to follow the right procedure of taking and recording the plea of guilty, thus reaching a wrong decision. 2. The Learned Trial Magistrate erred in law and fact when she failed to read to the accused persons the ingredients of the offences charged before convicting them, causing a miscarriage of justice. 3. The Learned Trial Magistrate erred in law and fact when she relied on incorrect information to state that the accused persons knew that the land they were selling was the subject of a court case, whereas not (the land was sold in June 2023, and a court case was filed in court on 10th July 2023) thus reaching a wrong decision. 4. The Learned Trial Magistrate erred in law and fact when she proceeded with the case, yet the charge sheet was signed by the police officer rather than by the Director of Public Prosecutions, as required by law.

The Appellants prayed that the lower court's judgment and sentence be set aside, they be acquitted of the charges, and released from prison.

1. **Representation.**

The appellant was represented by the firms of M/s Stoneridge Advocates and M/s Byamukama Kaboneke & Co. Advocates. The respondent was represented by Ms. Apolot Joy Christine, a Senior State Attorney at the Office of the Director of Public Prosecutions.

1. **Arguments of the Parties.**

Both Parties filed submissions on record and shall not be reproduced herein; however, the court shall closely refer to them.

1. **Resolving the Appeal.** * 1. **The Law on Appeals from Convictions.**

Section 34 (1) of the Criminal Procedure Code Act empowers an Appellate court to only interfere with the sentence passed by the trial court if it appears that the court acted on the wrong principle or overlooked some material facts, the sentence is illegal, or it is manifestly excessive as to amount to a miscarriage of justice.

Additionally, Section 34 (2) (a) (b) (c) of the Criminal Procedure Code Act empowers an Appellate Court to:

1. Reverse the finding and sentence, and acquit or discharge the appellant, or order him or her to be tried or retried by a court of competent jurisdiction; 2. 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 by law for the offence; or 3. With or without any reduction or increase and with or without altering the finding, alter the nature of the sentence. * 1. **The Appeal Grounds.**

**Grounds 1 & 2: Failure to Follow Proper Procedure While Recording the Plea**

The Appellants argue that the procedure for taking a plea, as outlined in **Adan v Republic [1973]** **EA 445**, was not followed. They claim this constituted an illegality and led to a miscarriage of justice. The Appellants further assert that reading the essential elements of an offence to the accused is a requirement of law. However, the Trial Magistrate failed to read these elements to the Appellants before they pleaded guilty. As a result, they contend that they pleaded guilty to offences they did not fully understand, which contributed to a miscarriage of justice.

In response, the Respondent argues that the Trial Magistrate complied with the plea-taking procedures in Section 124(1) of the Magistrates’ Court Act. The Respondent maintains that the Appellants understood the charges they were pleading to, as the record shows that they were read and explained to them. After entering a plea of guilty, brief facts were also read and clarified for them, and they acknowledged the facts as correct. Additionally, the Respondent argues that the Appellants' admission of the offences was unambiguous, supported by their statements during Allocutus. Consequently, the Trial Court was right to conclude that the Appellants had understood the charges and facts when it convicted them of the two offences.

According to Black's Law Dictionary (8th ed. 2004), a plea *" is an accused person's formal response to a criminal charge, which may involve either an admission or denial of the charge.*

In addition to Section 124 of the Magistrates' Court Act, the case of **Adan v The Republic [1973] EA 445** outlines the procedure for plea taking, which includes the following steps:

*1. The charge and all essential ingredients of the offence should be explained to the accused in a language he understands.*

*2. The accused’s own words should be recorded; if they admit to the charge, a plea of guilty should be noted.*

*3. The prosecution should then state the facts of the case, giving the accused an opportunity to dispute, explain, or add any relevant facts.*

*4. If the accused disagrees with the facts or raises any questions regarding their guilt, their response must be recorded, and a change of plea must be entered. The trial would then proceed.*

*5. If there is no change of plea, a conviction should be recorded, along with a statement of facts relevant to sentencing and the accused’s response before a sentence is passed.*

The detailed process of plea taking ensures that the trial judge takes precautions to confirm that the accused fully understands the charge before entering a plea. It helps the court verify that the plea of guilty is unequivocal and that the accused has no defence, thereby minimising the possibility of subsequent complaints or miscarriage of justice.

In this case, the lower court record indicates that the charges were read and explained to the accused individuals in Luganda. Following this, the Trial Magistrate recorded their responses, where both stated, "It is true.” Based on this response, the court accepted the plea of guilty, and the prosecution subsequently stated the facts of the alleged offence, to which the Appellants agreed by saying they were “correct and true." Their responses were recorded, followed by Allocutus, and they were finally convicted.

For ease of reference, I will reproduce the relevant court record to determine whether the appellants' guilty pleas were taken properly and whether they fully understood the charges they pleaded to.

*26/6/2024.*

*2 Accused in court.*

*Agnes Kiconco for State.*

*Nabwire Oliver – Clerk/Interpreter.*

*State: Accused in court for plea taking. We are ready.*

*A1: I understand Luganda.*

*A2: I understand Luganda.*

*Court: Charges read and explained to the accused persons in Luganda.*

*Count 1:*

*A1: It is true.*

*Court: Plea of guilty entered.*

*Count 2:*

*A1: It is true.*

*Court: Plea not guilty entered.*

*A2: It is true.*

*Court: Plea of guilty entered.*

*Brief facts:*

*A2 the chairperson LC.1 Nakakokolo Cell together with A1 connived to defraud Muhwezi Samuel of Ugx 22,500,000/= pretending to sell the land to them which was not true. The complainant having been shown the land paid the money and was told to use the land. He started to use the land by planting beans however in the month of January 2024 he was informed that the RDC went to the land and ordered that all activities on the said land be stopped. The complainant called A1 and asked what was happening to which A1 told him that the land was his but its issues were in court which was not a big problem. The complainant further called A2 but he also told him that the land belongs to A1 but its issues were still in court. The complainant waited for the issues to be resolved but there was no good report so we went to police and reported the case hence this case. The accused were arrested and charged.*

*A1: Facts are correct and true.*

*A2: facts are correct and true.*

*Court: A1 and A2 are each convicted on their own plea of guilty.*

*Mitigation:*

*The past criminal records of the convicts are unknown. I pray they are treated as first offenders. However, the offences they are charged with are rampant within court’s jurisdiction. The complainant paid Ugx. 22,500,000/- believing that he was buying land however, he got to find out that the said land had issues in court. The convict (A1) knew that the land he was selling had issues but insisted and got money from the complainant. This was the same thing with convict (A2) the LCI chairperson who knew the facts surrounding this land but did not advise the complainant not to buy this land. The premeditated actions of the convicts were high and they knew that what they have done was wrong. The complainant after paying his hard earned money was not able to use the land and the convicts have not paid back the Ug. 22,500,000/- to the complainant. We pray for a deterrent sentence for the convicts not repeat such actions further, we pray for compensation to a tune of Ugx. 22,500,0000/-.*

*We so pray.*

*Allocutus:*

*Convict 1:*

*The land had issues and the matter is in the High Court. I pray that court allows me time to pay back this money to the complainant. I will be keen in all the other actions I take. I pray for a lenient sentence since I have a family to take care of.*

*Convict 2:*

*I pray for leniency this being my first time to commit such an offence and for the 20 years I have been in leadership, I have never been involved in such activities. I have a lot of responsibilities back home.*

*That is all.*

The record shows that the First Appellant Pleaded Guilty to Counts 1 & 2, i.e. Obtaining Money by False Pretenses and Conspiracy to Commit a Felony. The Second Appellant is shown to have pleaded guilty to only Count 2, i.e. Conspiracy to Commit a Felony. After pleading guilty to the charges, the prosecution read out the brief facts they stated were correct and true. In order to enter a conviction, the facts surrounding the commission of the alleged offenses should lay out the ingredients of the offenses of obtaining money by false pretenses contrary to section 305 of the Penal Code Act and conspiring to commit a felony contrary to section 390 of the Penal Code Act.

**For the record, the ingredients for Obtaining Money by False Pretenses are:**

*1. False representation of a material fact.*

*2. The person making the representation knew it was false.*

*3. The representation was made with the intent to defraud.*

*4. The victim relied on the misrepresentation.*

*5. The victim transferred ownership of their property to the perpetrator.*

*6. The accused is responsible for the offence.*

The facts indicated that the First Appellant pretended to sell a parcel of land to the Complainant for UGX 22,500,000, fully aware that the land had issues. In his scheme, he showed the Complainant the land, and upon viewing it, the Complainant paid the money. After the transaction, the Complainant was informed that he could use the land, which he did. However, sometime later, the RDC stopped any activities on the land. When the Complainant called and inquired from the First Appellant, he was told that although the land belonged to him, there were ongoing court issues that were not a major concern. These facts illustrate that the accused made a false representation knowingly, intending to defraud the Complainant of UGX 22,500,000. The Complainant relied on this misrepresentation and transferred ownership of the property to the accused.

Regarding Conspiracy to Commit an Offense, the ingredients of the offense are:

*1. The presence of an agreement.*

*2. An agreement made between two persons.*

*3. The agreement has a criminal objective.*

*4. The accused persons are responsible.*

To conspire is to plan and act together secretly, especially to commit a crime. It is also to combine or work together for any purpose or effect. It is to act together towards the same result or goal.

Before delving into the merits of the case, I wish to observe that the decision of **Adan (Supra)** provides a two-merit test, whose overall objective is to ensure that no one is convicted of a criminal offence without their full knowledge and understanding. The first test is that the charge must be read in a language the accused person understands. The second test is that the facts constituting the offence must be laid out sufficiently to enable the accused person to understand or appreciate the offence's ingredients. The duty to do so lies on the shoulders of the court, i.e., to explain to the accused person the charge and ensure that they have understood all the ingredients of the offence and that in agreeing to plead guilty, they are accepting all the ingredients of the offence. The key words are that the accused pleads to the charge with an informed mind. It is akin to medicine, where the party should give informed consent.

The Supreme Court in **Guster Nsubuga & Another v. Uganda SCCA No. 92 of 2018**, however, emphasized that, “*substantive justice requires that the anomaly pointed out in the process of plea taking be overlooked in favour of the wider cause of substantive justice ; that it would be overlooked in favour of the wider cause of substantive justice; that it would be expecting too much to demand that all the trials must run like clockwork, short of which they would result in nullification of the entire trial.*”

The same Supreme Court in **Uganda v. Hajji Elisa Namunyu (RIP) and five others [2024] UGSC 1(17 January 2024),** the Supreme Court held that:

“We however maintain that plea taking is essential in a criminal trial because it forms the basis upon which the accused person gets to know the details of the case against him or her to enable such an accused person got prepare his or her defense. In this appeal, substantive justice was clearly administered , as deducted from the face of the record which shows that the Respondent pleaded not guilty to a charge of murder, that they all raised their defense of alibi, in effect challenging their participation in the murder; that they proceeded to cross examine the prosecution witnesses through their Counsel; that they went ahead and gave evidence as defense witnesses without at any stage objecting t to the conduct of the trial…If there were errors during plea taking process, such errors would be covered by the legal provisions and principles cited above, but that would not in any way mean that the Respondent did not take plea. “

The import of the above decisions is that anomalies in the plea-taking process that do not undermine the accused’s right to a fair trial and, therefore, do not occasion a miscarriage of justice should not automatically lead to a plea of guilty being annulled simply because the trial Magistrate omitted or committed errors in taking the plea. What is important is that the accused person(s) fully understood the substance of the charge.

Furthermore, section 34(1) of the Criminal Procedure Code Act provides that:

*“The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”*

The import of this provision is that an appellate court can ignore procedural errors unless there has been a substantive miscarriage of justice.

Having laid out the law on plea taking, I will now consider the merits of the case. The Brief Facts also revealed that the Second Appellant, serving as the LC1 of Nakakokolo Cell, connived with the First Appellant to defraud the Complainant. It was only after the Complainant called the Appellants well after the purchase that they disclosed the existence of a dispute concerning the land. These facts indicate that the Appellant knew the land was subject to a land dispute at the time of sale. But because he wanted to sell, he concealed this material fact from the Complainant, which, if he had not concealed, the Complainant would have perhaps acted differently. The Appellant, by his action, held out that the land was available, and that he had the right to sell- meaning that his title was perfect, and that the Complainant would enjoy quiet possession thereof. Unfortunately, this was not to be.

Therefore, although the Trial Magistrate did not explain in detail each of the ingredients of the offence of obtaining money by false pretenses contrary to section 305 of the Penal Code Act, there were sufficient materials in the brief facts that were again read out to the first Appellant in Luganda, his mother dialect from which it can be safely assumed that he fully understood the offence to which they were pleading guilty to. To avoid doubt, the 1st Appellant, in his allocutus, unequivocally said – ‘the land has issues, and the *matter is in High Court. I pray that court allows me time to pay back this money to the complainant. I will be keen in all other actions I take.’* Therefore, the Trial Magistrate was correct in convicting the 1st Appellant of obtaining money by false pretenses contrary to section 305 of the Penal Code Act.

With regard to the second count of conspiracy, the prosecution had a duty to show that the Appellants knew that the 1st Appellant did not have the right to sell the land and that, armed with this knowledge, the two concealed this fact from the Complainant and sold him the land. It was also important for the prosecution to show that the Appellants had a meeting of the mind or agreement to defraud the Complainant. The facts, however, say that the second Appellant knew that the land belonged to the 1st Appellant but had issues. The relevant facts of the case are:

‘*The complainant further called A2 but he also told him that the land belongs to A2 but its issues were still in court. The complainant waited for the issues to be resolved but there was no good report so we went to police and reported the case hence this case.’*

Given that the 2nd Appellant knew that the 1st Appellant owned the land, it would be unsafe in the absence of fully explained ingredients of the offence of conspiracy to convict the 2nd Appellant of the offence of conspiracy to commit a felony contrary to section 390 of the Penal Code Act. It would be unsafe to convict the first Appellant of this offence since an individual cannot conspire alone. Therefore, the appellants are acquitted of the conspiracy charge of committing a felony contrary to section 390 of the Penal Code Act.

In light of these considerations, this ground of appeal succeeds and fails in part.

**Ground 3:** **The Trial Magistrate relied on incorrect information to assert that the accused persons knew the land they were selling was subject to ongoing court cases, which is untrue.**

The appellants argue that additional illegality in the trial proceedings occurred when the recorded statements of facts read out to them contradicted the particulars contained in the two counts/charges of the charge sheet.

Specifically, the appellants argue that the charge sheet states they obtained money from Muhwezi Samuel in June 2023 by false pretences. Yet, during court proceedings, it was claimed that the appellants knew the land they were selling had legal issues and was already being litigated. The appellants insisted on selling the land to the complainant, a claim they argue is false. They further note that the land was sold in June 2023, while the court case was filed on July 25, 2023.

With all due respect to the appellants, the court finds no contradictions between the charge sheet and the brief facts read out to them during plea-taking. The only notable difference is that the charge sheet's content is concise, while the brief facts read in court are more elaborate. These facts clarify how the offences of obtaining money by false pretences and conspiracy to commit a felony were executed.

Although the appellants argue that the dispute arose only after the first appellant sold the land, they provide no proof to support this claim. The appellants were expected to attach a copy of the plaint to their submissions so that the court could assess the truthfulness of their statement.

In light of the above, the court dismisses this ground of appeal for lack of merit.

**Ground 4:** **The Trial Magistrate proceeded with the case even though the charge sheet was signed by a police officer and not by the Director of Public Prosecutions, as required by law.**

The court notes that the appellants initially abandoned this ground in their submissions. However, in their rejoinder, they changed their appeal ground from what was presented in the Memorandum of Appeal. They introduced a new one concerning the illegality of the charges and criminal proceedings.

According to the Appellant, the lower court's criminal proceedings were illegal because the appellants only recorded ordinary police statements instead of charge and caution statements, which are legally required before any charges can be preferred against a suspect. The appellants argue that proceeding without these statements violated their constitutional rights to a fair hearing and the principles of natural justice. The appellants prayed that the court finds them illegally charged, prosecuted, and convicted based on improperly commenced criminal proceedings. These should be set aside as illegal, null, and void.

As noted earlier, the appellants introduced a new appeal ground that should have been argued in the Memorandum of Appeal. The law prohibits arguing appeal grounds not stated in the Memorandum of Appeal without prior leave of the court. The appellants are reminded that this requirement ensures all parties are aware of the issues being argued, allowing them enough time to prepare responses. This upholds principles of fairness and due process within judicial systems. In this matter, no record shows that the appellants were granted leave to amend their Memorandum of Appeal or to file a Supplementary Memorandum of Appeal introducing the new ground argued in their submissions.

The essence of restricting arguments to those specified in formal documents is that it helps maintain clarity in appellate proceedings. Courts can focus on specific issues rather than being overwhelmed by new arguments introduced at later stages. Additionally, limiting arguments encourages efficiency in legal processes, as it prevents unnecessary delays caused by last-minute changes or additions to an appellant’s case. Since no substantive Justice will be prevented if the foreign ground is not resolved herein, the Court shall thus not consider the Appellant's submissions in this regard, which are based on a foreign ground not captured in the Memorandum of Appeal.

The Appellants, having argued under the foreign ground that their constitutional rights to a fair hearing were breached, they are more than welcome to explore the option of filing a Civil Suit under Article 50 of the Constitution, section 3 (1) of the Human Rights (Enforcement) Act; and, Rule 7(1) of the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules -SI 31 of 2019.

With regard to the Appellant's Original ground, i.e. that the Trial Magistrate proceeded with the case, yet the charge sheet was signed by the police officer and not by the Director of Public Prosecutions as required by law, the Court finds no merit in this argument. The correct position of the law and practice is that a criminal charge is drawn up either by a police officer or magistrate and signed by a magistrate to be used in a magistrate’s court as a basis for a trial or proceedings, while an indictment is signed by the Director of Public Prosecutions, to be used at the High Court for a trial. In light of the above, the Court dismisses this ground of Appeal for lack of merit.

1. **Decision.**

This Appeal succeeds in part and is substantially dismissed with the following order.

The conviction and sentence against the 1st and 2nd Appellant for the offence of conspiracy to commit a felony contrary to section 305 of the Penal Code Act are set aside. All other orders made by the trial Magistrate are left intact.

Gadenya Paul Wolimbwa

**JUDGE**

28th October 2024

I request the Registrar to deliver this decision today, 28th October 2024.

Gadenya Paul Wolimbwa

**JUDGE**

28th October 2024

Najjib for Court Clerk

Both Appellants in court

Byamugisha Joseph for the Appellants

None for the Respondents

Judgement delivered.

Salaamu Ngobi

Assistant Registrar

28th November 2024