THE REPUBLIC OF UGANDA
CRIMINAL APPEAL N0. 12 OF 2009 (Arising from criminal case N0. NAK –CO- 603 of 2006)
UGANDA :::::::::::::::::: RESPONDENT
JUDGMENT OF HON. MR. JUSTICE JOSEPH MURANGIRA
Hence this appeal against Uganda, (hereinafter called the respondent). The respondent is represented by the Department of Director of Public Prosecutions as by law required.
The facts of the case as they can be gathered from the record of appeal are that the 1st and 2nd appellants were charged on two counts with criminal trespass and Malicious damage to property contrary to sections 302 (a) and 335 (1) of the Penal Code Act, respectively. The appellants pleaded not guilty to both charges. The respondent called two prosecution witnesses who testified against the appellants. The appellants gave evidence in defence, but never called any witnesses to testify on their behalf. The trial Magistrate was Her Worship Agnes Nkonge. And Her Worship Nabafu Agnes wrote the judgment, after the former had been transferred to Entebbe Chief Magistrate’s Court, at Entebbe.
The trial of the appellants started in mid 2006 and after a prolonged trial, the appellants were acquitted of the offence of criminal trespass; but convicted of the offence of malicious damage to properly contrary to section 335 (1) of the Penal Code Act, sentenced to 12 months imprisonment, and each appellant ordered to pay Shs. 5, 000, 000/= to the victims of the crime as compensation for their loss caused as the result of the damage to the suit property described in the charge sheet.
The appellants, who are represented by Simon Tendo-Kabenge Advocates, filed this appeal based on the following grounds; that:-
2. The learned Magistrate erred in law and in fact when she held that the evidence of PW2 was not hearsay and she thereby relied upon the said evidence to convict the appellants.
3. The learned Magistrates erred in law and in fact when she failed to properly evaluate the evidence on record and the defences of the appellants and thereby convicted the appellants.
4. The learned Magistrate erred in law and in fact when she ordered the appellants to pay compensation to the complainant yet she had not resolved the issues of ownership of the land in question, and the damage to land had not been proved by the complainant.
Counsel for the appellants and that of the respondent filed Written Submissions for and against the appeal. The appellants’ counsel argued grounds 1 and 2 together, grounds 3 and 4 separately. And the respondents’ Counsel argued all the grounds of appeal together.
In his submissions, Mr. Waninda Fred, Principal State Attorney, Counsel for the respondent raised in his submissions some complaints about the record of appeal; that:-
The failure by the appellants to include this amended charge sheet on the record of proceedings in our view is deliberate and intended to mislead court. On this point alone, the respondent submits that the record of proceedings is not proper or complete and we invite court to direct a proper record of proceedings be prepared by the Deputy Registrar so that it is availed to the respondent for preparation of its case.
Secondly, the appellants in their submissions alluded to defence exhibits. The said exhibits have not been made part of the record of proceedings. Even the index the appellants’ record of appeal, makes no reference to the said exhibits.
We humbly submit that this is also done deliberately to deny the respondent a fair trial as facilities and opportunities are not accorded to the respondent, by denying the respondent material exhibits. Moreso, the respondent has been given a very short notice to make a reply to the submission made on 6th May, 2006 and filed in Court.”
However, with due respect to the Senior Principal State Attorney, the respondent is the one who tendered in court an amended charge-sheet on 5th September 2006. Logically, therefore, a copy of the same amended charge sheet must be on his prosecution file. Thus, there would not be any cause for an alarm as alluded to by counsel for the respondent. His submission in that regard is misplaced.
It should be noted, further, that an appeal from the Judgment and decision of the Magistrate Grade 1 or Chief Magistrate, when the record is incomplete, the respondent is enjoined to make a supplementary record of appeal; and files it in court. In this instant appeal, counsel for the respondent never bothered to prepare a supplementary record of appeal whereby he could have included the amended charge sheet of 5th September 2006 and the defence exhibits.
Furthermore, the respondent/State should have gone the trial court or this to court to peruse the original Court file before making any reply to the submissions by the appellants to enable it look at the said amended charge sheet and the defence exhibits. That was not done by counsel for the respondent. Therefore, he should not transfer any blame to any person. He is to blame for his failure to prepare a supplementary record of appeal.
Consequently, Counsel for the respondent/State is complaining that the respondent was given a very short notice to make a reply to the submission made on 6th May 2009 and filed in court. This complaint was raised by Mr. Paul Lakidi, a State Attorney with the respondent on 15th June 2009, and the same was overruled. On court record, there is an affidavit of service, sworn by Baale Jackson of C/o M/s Simon Tendo-Kabenge Advocates, P.O Box 30330, Kampala Uganda, which inter alia reads:-
I, now turn to consider the merits of the appeal. I am considering grounds 1, 2 and 3 together because they do overlap when considering the evaluation of the evidence on record. I will treat ground 4 separately. And then conclude with the findings and orders that will embody the decision of the court.
It is trite law that the duty of the first appellant court, among other things, is to re-evaluate the record of the proceedings so as to make its own findings and conclusions in the case. This court has a duty to review the entire evidence on record including that which it may decide to admit, re-evaluate it and to make its own findings of fact. I should note here, that, in doing so however, I must give allowance for the fact that I did not have the opportunity which the trial Magistrate had, of seeing the witnesses testify and observe their demeanours. In this regard, this court must give great weight to the impression of the trial court as to where credibility lies based on the demeanours and the manner the witnesses gave evidence.
However, in this instant appeal, the Magistrate, Her worship Nabafu Agnes who wrote the judgment being appealed against by the appellants did not hear any witness testify in court against the appellants, nor did she hear the defence witnesses. Therefore, she did see the Witnesses testify in court. According to the record of the lower court, the trial Magistrate was Her Worship Nkonge Agnes. She should have written the judgment in the case. There is no reason given, according to the record of appeal why she never wrote a judgment in the case she had heard. The practice in such instance is that trial Magistrates ought to write and pronounce a judgment in all trials that are conducted before them. This practice should always be observed by all Magistrates; unless the trial Magistrate is no longer in service of the Judiciary or, she is indisposed for one reason or the other.
The guist of grounds of appeal 1, 2 and 3 is that the learned Magistrate is being critised for her failure to consider the evidence on record and hence came to the Wrong conclusion, when she convicted, the appellants of Malicious damage to property. The learned Magistrate when resolving issue number 2, of whether the accused persons (appellants) willfully and unlawfully damaged or destroyed any property on the land in question, she stated in her judgment; that:-
(b) That the said property was damaged or destroyed through willful and unlawful actions.
(c) That the property in issue was damaged or destroyed by none other than the accused persons in the dock.
The only two prosecution witnesses’ evidence does not show that it is the appellant’s who were extracting marrum from the suit property. A2 (2nd appellant) was exonerated from the crime by PW1 and Pw2. There is also no evidence on record to pin down the 1st appellant with the offence of malicious damage to property belonging to PW1. PW2 stated in his evidence that the agents of A1(1st appellant) were the ones extracting murram, from the suit land. And that he got that information from Sempebwa, his farm Manager. Sempebwa was not called as a prosecution witness. And as such the information purportedly to have come from Sempebwa and testified by PW2 amounts to hearsay. The trial court should not have relied on it. Otherwise there is no evidence to link the damage of the suit property with the appellants. From the prosecution evidence on record, the trial learned Magistrate also is taken to have erred in law and fact when she held that the appellants had a case to answer. The appellants would have been acquitted at that stage. That failure by the trial magistrate clearly shows that she never bothered to look at the entire prosecution witness’s evidence on record to ascertain whether there was a case to answer or not. Her ruling that there was a case to answer leaves a lot to be desired.
Further, the offence the appellants were convicted of requires that the property damaged or destroyed must be of the complainant. On page 10, line 1 of the record of appeal, PW1 gave evidence that he sold the land to Mugisha, but that Mugisha never got a title. That was during cross-examination. Then on the same page 10, lines 13 and 14 of the record of appeal, PW1, in re-examination, stated that he no longer has interest on the land because the accused took it, hence no caretaker other than Mugisha he sold it to.
According to the amended charge sheet, the particulars of offence state that the property (land) is the property of Micheal Tempora Bisase (PW1). The evidence of PW1 is very clear. The property in issue is not his. Therefore, the first ingredient of malicious damage to property as charged was never proved by the prosecution. And if there is any dispute the same could be between the appellants and other persons, other than the complainant Micheal Tempora Bisase. He must be acting for someone else. Otherwise, he (PW1) did not have any cause to complain against the appellant to the Police at Jinja Road Police Station, Kampala.
In her judgment, the learned Magistrate stated that:-
The evidence of the defence clearly shows that the appellants put up the defence of a claim of right over the suit property. I, therefore, agree with the finding of the learned magistrate in her judgment, at page 3, last paragraph, when she stated that;
Wherefore, grounds 1, 2 and 3 of appeal are answered in the affirmative in the following terms:-
(b) The learned Magistrate erred in law and fact when she held that the prosecution had proved the offence of malicious damage to property beyond reasonable doubt against the appellants.
(c) The learned Magistrate erred in law and fact when she held that the evidence of PW2 as regards to the information that was allegedly obtained from one Sempebwa was not hearsay.
I so order.