THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CRIMINAL APPEAL NO. 1 OF 1995
(FROM JINJA MJ. 130/93)
BEFORE: THE HONOURABLE JUSTICE C.M. KATO
370 and 252 of the Penal Code Act, the second count was for giving false information to a person employed by the Public Service c/s 109(c) of the Penal Code Act. The appellant pleaded not guilty to all the 2 counts. He was tried and found guilty on both counts. He was accordingly convicted and sentenced to 12 months imprisonment on each count and the sentences were to run consecutively.
The gist of the case as established by prosecution at the trial was that the appellant was a business colleague of the complainant Dan Musoke (PW1) and that in the course of their business the appellant advanced 1.5m/- the complainant. The complainant then wrote a cheque for that amount due for payment on 28-5-93. Later on the appellant reported to Musoke (Pw1) that the cheque had been lost and Musoke informed his bankers about the loss meanwhile the appellant wrote a note to Dan Musoke requesting him to make payments to 3 people amounting to 700,000/=. An arrangement was also made whereby the appellant was paid by Musoke a sum of 200,000/= leaving a balance to be recovered from Musoke by the appellant amounting to 600,000/= out of 1.5m/= which the appellant lent to Musoke.
Meanwhile appellant proceeded to present the cheque for payment for the full amount sometime in October 1993 but the cheque bounced as there was no money from the account of Musoke at the Co-operative bank where the cheque was to be cashed. After the cheque had bounced the appellant went to Jinja police station and reported that Dan Musoke had committed a crime of issuing a bouncing cheque. It was on this ground that the police proceeded to investigate the matter and discovered that the appellant had actually been paid in respect of the cheque which had bounced and it was on that basis that the two counts were preferred against the appellant.
On the other hand the case for the appellant was that the complainant Musoke had in fact borrowed from him (appellant) a total of 1,850,000/= and he had issued him with a cheque for a sum of 1.5m/= which was post-dated and that is why he (appellant) had presented the cheque for payment. He denied ever having received 900,000/= from Musoke as part payment of the money he had lent him. He also stated that the information he gave to the police was not false at all.
The appellant gave 7 grounds of appeal in his amended memorandum of appeal. The 7 grounds are as follows: -
2. That, the learned trial Chief Magistrate erred in law in giving undue weight to the evidence of the handwriting expert which was not conclusive.
3. That the learned trial Chief Magistrate erred in law in believing the prosecution case before considering and rejecting the defence case.
4. That the learned trial magistrate erred in law in imposing harsh consecutive sentences upon the appellant without just cause and in total disregard of the mitigating factors advanced by the appellant.
5. That the learned trial magistrate erred in 1aw and fact by reaching a decision not reported by evidence on record thereby occasioning miscarriage of justice.
6. That, the learned trial Chief Magistrate failed to consider and/or resolve the inconsistencies, contradictions and lacuna in the prosecution case, in favour of the appellant/ accused.
7. The learned trial Chief Magistrate was biased: -
(i) In the conduct of the trial
(ii) In the formation of his judgment
Before I proceed to deal with these grounds of appeal it is important to point out here that this being a first appellate court it has the duty to evaluate and scrutinise the evidence as produced in the lower court and then come to its own conclusion bearing in mind however that the trial court had advantage of seeing the witnesses in the witness box, an advantage which the appellate court does not enjoy: Williamson Diamonds LTD v Brown (1970) EA 1 and D. Pandya v R (1957) EA 336.
Miss. Nakacwa who appeared for the appellant abandoned the 7th ground of appeal and she argued the 1st and 3rd grounds together, she also argued grounds 5 and 6 jointly then she came to grounds 2 and 4 in that order. I propose to deal with those grounds in the order she dealt with them.
On his part Mr. Okwanga the learned Resident Senior State Attorney supported the conviction and sentences on both counts. It was his view that the prosecution had proved its case beyond reasonable doubt, he said that the accused/appellant having received 900,000/= was wrong to claim the whole amount of 1.5m/=. He also contended that the learned trial magistrate had properly evaluated the evidence before him and had come to a correct decision.
My finding on the 1st and 3rd grounds of appeal is that although the learned trial magistrate misdirected himself as to the amount involved he certainly came to the right conclusion when he held that the appellant attempted to recover money from Musoke when he was not entitled to. Even if the learned trial magistrate had addressed his mind properly to the matter pointed out above he would still have come to the same conclusion but for a different sum of money.
That leads me to the 5th and 6th grounds of appeal. The learned counsel for the appellant Miss. Nakacwa bitterly attacked the judgment of the learned trial magistrate on the ground that some of his findings were not supported by evidence on record and that resulted in miscarriage of justice. She in particular expressed her misgivings,-in the paragraph appearing in the judgment of the trial court which reads as follows: -
“shortly afterwards the accused secured a scholarship or studies in U.K while in his process of arranging his departure he met Musoke in a taxi and asked the said Musoke to pay him 200,000/= which would be offset from the principal sum of 1.5m/=.”