Tomusange v Uganda (Criminal Appeal 32 of 2023) [2023] UGHC 405 (8 August 2023)

#### **THE REPUBLIC UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **CRIMINAL APPEAL NO. 32 OF 2023**

## **(ARISING FROM CRIMINAL CASE NO. 331 OF 2021 KLG CRB NO. 133/2021)**

**TOMUSANGE PETER :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

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

#### **JUDGMENT**

#### *Before the Hon. Lady Justice Victoria N. N. Katamba*

#### **BACKGROUND**

The Appellant was charged with the offence of malicious damage to property contrary to section 335 (1) of the Penal Code Act cap 120 as amended on count 1 and theft contrary to section 254(1) and 261 of the same Act as Count 2.the particulars were that the accused person on the 1st day of November 2020 at Lwanswera Village in Kalungu District Willfully and unlawfully destroyed young growing eucalyptus trees of Kisakye Michael and at the same time stole 717 eucalyptus poles valued at approximately 4,302,000/= the property of Kisakye Micheal .

The accused pleaded not guilty to both charges.

The prosecution produced 8 witnesses to prove their case while the defence produced two witnesses. The Appellant raised a defence of claim of right, stating that he is the one who planted the trees on his land/Kibanja. He further stated that he had previously litigated over the same Kibanja with a one Ssalongo Mukasa John over the Kibanja successfully. He sought to have the Orders and Judgment of court tendered onto the court record as exhibits in vain. He was convicted and sentenced to 18 months' imprisonment for commission of the offences. He was aggrieved by the findings of the court and thus the instant appeal.


# **Representation**

The Appellant was represented by **Ms. Brender Oinomugisha of M/s Kaliba Associated Advocates**

The Respondent was represented by **Ms. Nanziri Charlotte Jackie, a Senior State Attorney**.

At the institution of the Appeal, the Appellant raised two grounds of appeal to wit;

*Ground 1. That the learned trial Magistrate erred in law and fact when she failed to take into account the appellants defence of an honest claim of right there by convicting the appellant.*

*Ground 2. That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record hence convicting the appellant.*

The parties filed written submissions in this appeal and the same have been considered in the writing of this Judgment.

# **APPELLANT'S SUBMISSIONS**

The Appellant argued both grounds concurrently.

The Appellant argued that for the prosecution to prove the offence of malicious damage, it was required to prove three elements beyond reasonable doubt which include; (a) tangible property belonging to the complainants was damaged or destroyed, (b) the said property was damaged or destroyed through willful and unlawful actions, and that (c) the property in issue was damaged or destroyed by the accused.

For the offence of theft, the prosecution had to prove Taking of property belonging to another, Unlawfully and without claim of right, with intention to permanently deprive and that the accused participated in the commission of the theft.

To support his claims, the Appellant submitted that **PW1, Kisakye Micheal,** testified that he was contacted on the 1/11/2020 and was informed that trees were being cut and when he went to the scene he took the photos and informed the agricultural officer. That PW1 further stated that he owns a land title regarding the suit Kibanja and the land is comprised in 223 plot 84 having


purchased the said land in 2019 and that the trees that were allegedly cut by the Appellant/ then accused person were about 3 years and the person who sold to him is the one who planted them.

The Appellant further submitted that during cross examination PW1 testified that he purchased the suit land from John Mukasa

The Appellant further submitted that **PW3 Kamya Nsubuga David** testified he is a biological father to **PW1** and that a one Serunjoji Ddungu called him and he found the Appellant cutting his trees. That they purchased the suit land with trees. The first trees were 68 and last bunch was 717 trees.

In cross examination **PW3** hinted at the availability of a judgment in which it's the Appellant/ accused person that emerged the winner.

The Appellant further submitted that even in his defence, he testified that he purchased the suit land from Keresip Damulira and that later on one John Mukasa un lawfully trespassed onto the suit land. That the Appellant further testified at the trial that he is the one who planted the eucalyptus trees and that as such he did not steal the trees because they are his.

The Appellant also submitted that he had documentation to prove ownership which among others included a court order dated 6/3/2014 and order dated 22/7/2015. These included a court order vide Civil suit No.84/2013 pertaining to a land dispute between the appellant/Accused person and Mukasa John, the same Mukasa from whom the complainant testified that he purchased the suit land from.

That according to the said court order court, court ruled that the appellant /Accused person was the rightful owner of the suit Kibanja .

*Section 7 of the Penal Code Act provides that A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.*

The Appellant's Advocate criticized the trial magistrate for finding in her judgment stated that the appellant was guilty of the offences charged because according to her, the accused person failed to provide sufficient evidence that the land and trees were actually his.


The Appellant argued that its now trite that an accused person shall not be convicted on weaknesses of the defence but on the strength of the prosecution.

The Appellant's Advocate further criticized the learned trial Magistrate for having omitted to admit the Appellant's documents which included Orders and a Judgment as exhibits. She criticized the trial Magistrate for opting to instead admitted them for Identification only merely because the prosecution objected to admission of a sketch map for an undisclosed reason.

In conclusion, it was prayed for the Appellant for this Appeal to be allowed, the orders of the learned trial Magistrate be set aside and that the Appellant be acquitted.

# **RESPONDENT'S SUBMISSIONS**

# **Preliminary point of law**

The Respondent opened its submissions with a preliminary point of law that there is no substantive appeal before this honorable court.

The Respondent submitted that there can only be a proper appeal before court when the same is filed in time, this being within 14 days of the date of judgement as provided *in section 28(1) of the criminal procedure code act or if there is leave of court to extend/ enlarged the period within which to file the appeal. The procedure for which is provided for under section 31(1) of the criminal procedure code act.*

That the judgment in the instant case was delivered on 24th October 2022 yet the memorandum of appeal was received in the High court registry on the 21st day of March 2023, the five months' period between the date of judgment and the date when memorandum of appeal was filed. In conclusion on the preliminary point of law, the Respondent prayed that the appeal be dismissed.

# **Ground 1**

**That the learned magistrate erred in law and fact when she failed to take into account the appellant's defense of an honest claim of right thereby convicting the appellant.**

The Respondent conceded that it's trite that; *a person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person in respect to the property was done in the exercise of an honest claim of right and without intention to defraud".*


The Respondent submitted that during the trial, PW3 informed court that the appellant has a kibanja next to the suit land.

That PW5 also informed court that the suit land was originally apart of his land which was sold to Mukasa John and eventually was acquired by PW1.

The Respondent also submitted that PW7 D/ Cpl. Mbabazi Robert informed court that he went to the scene and drew a sketch plan which was admitted as PE2. That in the said sketch, he indicated the boundaries, and the portion owned by the appellant as that which was next to the suit land.

That the appellant relied on I. DW1 which included a court order in the civil suit between the appellant and Salongo Mukasa John. In the said order it can be deduced that the subject land (x and y) is a kibanja and was different from the suit land in this appeal.

That further, the Appellant in his defence informed court that he had a certificate of title yet the same was never tendered in court to confirm his assertions, rather what was relied on was the documents admitted as group I. D DW1.

That once a document is marked an identification document, it does not become an exhibit or part of the evidence until it is formerly tendered and admitted and so marked by court. This position was held by his Lordship **Kwesiga J. W in Kiraza Paul -Vs- Musa Sekeba HCCivil Appeal No.**

# **58 of 2012**

In conclusion on this ground, the Respondent submitted that in the premises, since the Appellant lacked documentary proof of ownership of the suit land, the defence of claim of right was not made up.

# **Ground 2**

**That the learned trial magistrate erred in law and fact when she failed to properly to properly evaluate the evidence on record hence convicting the appellant.**

The Respondent submitted that Pw1 – Kisakye, was informed that the Appellant by Pw2 that the Appellant was cutting his trees. That the complainant has a certificate of title to the land and that moreover the appellant in his submissions does not deny cutting the trees. That what remains to be considered is if the act was unlawful the trees not belonging to him which has been submitted upon in ground 1.


The Respondent submitted that the learned trial Magistrate properly evaluated the evidence and concluded that the Appellant stole trees that did not belong to him and willfully occasioned damage to the Respondents property.

In conclusion, the Respondent prayed that the appeal be dismissed.

#### **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions was as stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

#### **Preliminary objection:**

The Respondent raised an objection that the appeal was instituted when the time allowed for filing of appeals had long run out. The Respondent argues that appeals must be instituted within 14 days from the date of delivery of the judgement as provided in section 28(1) of the Criminal Procedure Code act or if there is leave of court to extend/ enlarge the period within which to file the appeal. That the procedure for this is provided for under section 31(1) of the Criminal Procedure Code Act.

The Respondent prayed that the appeal be dismissed for the above omissions.

This court is alive to the position of the law on institution of appeals however it will not construe the omissions on the Appellant in this particular case because he was unrepresented in the trial court. Secondly, whereas it is indicated in the Judgment of Her Worship Jalia Basajjabalaba that the right to appeal was explained to him, this court cannot tell whether he was informed that the appeal has to be instituted within fourteen days.

More also, the Appellant's current position of imprisonment also comes with financial challenges that could have placed a limit on his ability to instruct counsel to fulfill the preliminary legal requirements to institution of an appeal out of time.

In the premises, the objection is overruled.


# Ground 1: **That the learned trial Magistrate erred in law and fact when she failed to take into account the appellants defence of an honest claim of right there by convicting the appellant.**

Having considered the evidence of the Appellant and the submissions he made after the trial, I am inclined to agree with the submissions of counsel for the Appellant that her client honestly believed himself to be the owner of the eucalyptus trees and the land on which they were.

*Section 7 of the Penal Code Act provides that A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.*

The Appellant just like any person who does not deem themselves an offender, did not conceal from the court the fact that he was at the scene of crime and that he cut and took away the eucalyptus trees. He admitted to these facts and categorically stated that he is the one who planted them on his land.

On the other hand, the complainant stated that he had bought the suit land with the eucalyptus trees in 2019.

Dw2, the area LC1 chairperson – Mr. Sebata Gerald testified that the Appellant had been on the suit kibanja since 1993.

In *Byekwaso Mayanja Sebalijja vs Uganda (1991) HCB 15, it was held that; "In the case under S. 315(1) of the Penal Code Act, an honest belief whether justifiable or not that the property is the Appellant's own would negative the element of mens rea. The Appellant's claim negatives the element of mens rea requisite under the section. The circumstances of the case could not sustain consideration under the section."* See also the Hon. Mr. Justice Byaruhanga Jesse Rugyema in *Muhumuza John & 2 Ors vs. Uganda Criminal Appeal No. 0007/2021 in the High Court of Uganda* at Masindi.

I find the reasoning in the above two cases, in pari materia to the instant case because the Appellant did not have the mens rea for both the alleged theft and malicious damage to property. Both these offences require proof that an accused person had an unlawful mental inclination for commission of the offence which we refer to in legalese as mens rea.


The learned trial Magistrate clearly erred when having appreciated that the Appellant had credible documents that he sought to tender on to the court record (which I believe were original copies) prevented their admission as exhibits. This conduct is contrary to the cannons of a fair hearing and defeats her objective of having stood over the hearing for ten minutes to enable the Appellant photocopy the said documents.

The record discloses the documents below as among those that the learned trial Magistrate declined to admit as exhibits but instead admitted them as a group exhibit for Identification purpose;

- a) A Judgment of the Hon. Mr. Justice John Eudes Keitirima in Civil Appeal No. 79 of 2013 between Ssalongo Mukasa John vs. Tomusange Peter dated 04/03/2016. The Appeal was dismissed in favor of the Appellant. - b) An Interim order of stay of execution in M. A No. 79/2015 (Arising from M. A No. 94/2014 & Civil Appeal No. 79/2013 and Civil suit No. 07 of 2004) between Salongo Mukasa John vs. Tomusange Peter issued by Hw. Acio Julia Lucy, in particular restraining the Appellant from cutting trees and disposing of the suit kibanja/land. - c) An Order in Civil Suit No. 007 of 2004 between Tomusange Peter vs. Ssalongo Mukasa John. issued by Hw. Amono Monica, a Magistrate Grade one vesting a disputed Kibanja in the Appellant as against Ssalongo Mukasa John dated 6th March 2014.

The documents that the learned trial Magistrate omitted to admit as exhibits are in the very category that courts are enjoined to take judicial notice of under S. 55 and 56(1) e of the Evidence Act.

S. 40 of the Evidence Act provides that Judgments, Orders and Decrees are relevant, if they relate to matters of a public nature relevant to the inquiry.

Clearly the learned trial Magistrate ought to have considered the above court documents that bear its seal. Had she expressed reservations over their authenticity, she could as well have applied for certified copies of the same which would have been availed to her.

It is apparent that the said Ssalongo Mukasa John who has had a checkered history of litigation over a kibanja is the same person who having failed to dislodge the Appellant from it through lawful means that decided to sell it to the complainant recently in 2019 after dismissal of his appeal.


The facts of the Kibanja notwithstanding, what is clear is that there has been a protracted dispute between Ssalongo Mukasa John and the Appellant which has now engulfed the complainants as purchasers. The fact of the disputed kibanja lends further credence to the Appellants defence of claim of right.

In conclusion, I find that the learned trial Magistrate erred when she misdirected herself by ignoring cogent evidence that supported the Appellant's defence of claim of right and then turned round to state that his defence had not been made out.

I have resolved the second ground in the affirmative, in passing. I need not revisit it again.

The appeal hereby succeeds on the above two argued grounds. The conviction is hereby quashed and the sentence is set aside.

Orders:

- 1. An order issues setting aside the Judgment and orders of the trial court. - 2. The Conviction of the Appellant is quashed and his sentence is set aside. - 3. The Appellant is hereby set free forthwith unless held on other charges.

Dated and delivered electronically this 8th day of August, 2023.

# \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **VICTORIA NAKINTU NKWANGA KATAMBA**

**JUDGE**