Court name
High Court of Uganda
Case number
HCT-09-CR-CRIMINAL APPEAL-2012/7
Judgment date
31 October 2012

Alupo v Uganda (HCT-09-CR-CRIMINAL APPEAL-2012/7) [2012] UGHC 218 (31 October 2012);

Cite this case
[2012] UGHC 218

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT SOROTI

HCT-09-CR-CRIMINAL APPEAL NO. 0007/2012

(Arising from Kumi Criminal Case No. 54/2011)

 

ALUPO STELLA...................................................................APPELLANT

VERSUS

UGANDA..............................................................................RESPONDENT

 

BEFORE:       HON. JUSTICE MUSOTA STEPHEN.

JUDGMENT

 

This is an appeal from the judgment and orders of the Magistrate Grade 1 Kumi.  The appellant Alupo Stella represented by M/s Anukur Cheptoris & Co. Advocates was dissatisfied with the conviction and sentence of 14 months imprisonment by the learned trial Magistrate for offence of threatening violence c/s 81 (a) of the penal code act.  The appeal is against the whole decision.

The grounds of appeal are that:-

  1.  The Learned trial Magistrate erred in law and fact when he failed to dismiss the case of threatening violence for lack of evidence
  2.  The trial Magistrate failed to properly evaluate the evidence on record and hence arrived at a wrong decision occasioning a miscarriage of justice.
  3. The trial Magistrate erred in law and fact by not considering the evidence as a whole.
  4. The trial Magistrate erred in fact and law in finding the accused guilty of the offence charged.
  5. The trial Magistrate erred in law and fact when he let his opinion emotions, feelings wishes take precedence over the law.
  6. The trial Magistrate erred in law and fact that the judgment is biased based on information whose source is unknown and not evidence on record and law (Sic).

 

The appellant proposed that the appeal be allowed, the lower court judgment be quashed, sentence set aside and appellant be set free.

 

The back ground to this appeal is that the appellant was charged with the offence of threatening violence contrary to section 81 (a) of the penal Code Act.  Prosecution alleged that the appellant, on 23rd day of December, 2010 at Kumi Town Council in Kumi District with intent to intimidate or annoy Iganyu Recho Esiru, threatened to kill her.

 

At the hearing of the case the appellant denied the offence.  Prosecution had the duty to adduce sufficient evidence to prove all the ingredients of the offence of threatening violence against the appellant beyond any reasonable doubt.  In doing so, prosecution called evidence of six witnesses and defence called the appellant only.

 

During the hearing of this appeal both Mr. Anukur for the appellant and Ms Alleluya submitted in support of their respective cases.

 

According to Mr. Anukur the ingredients of the offence of threatening violence were not proved beyond any reasonable doubt.  That the learned Magistrate should have found no case to answer.  That the trial Magistrate relied on wrong ingredients to constitute the offence charged because threats do not include a plot.  That the correct ingredients should have been:-

 

  1.  Intent to intimidate or annoy or alarm any person.
  2. The threat must be by the accused person.
  3. There must have been intent to alarm a person, discharge a firearm or commit any other breach of peace.

 

That there is nothing in the prosecution evidence by both PW.1 and PW.2 to prove any of the above ingredients.  Further that there was no direct confrontation between the appellant and complainant.  That the threats were comprised in hearsay.

 

On the other hand, the learned Resident State Attorney Kumi submitted that the offence of threatening violence was proved against the appellant beyond any reasonable doubt.   She acknowledged that they relied on a phone talk and that the husband of the appellant recognized the voice of the appellant.  The state Attorney further submitted that the law is silent on whether a plot can amount to a threat.  That the trial Magistrate properly evaluated the evidence.  The state urged court to dismiss this appeal.

 

The offence of threatening violence is created under S.81 of the Penal Code Act. Under paragraph (a) thereof:-

 

              “Any person who ...........

             (a) with intend to intimidate or annoy,

              threatens to injure, assault, shoot or kill any person, or

              to burn, break or injure any property..........................

Commits an offence and is liable to imprisonment for a

period not exceeding four years.

 

As rightly submitted by Mr. Anukur, learned Counsel for the appellant the ingredients the prosecution must prove are contained in the wording of S. 81 (a) of the Penal Code Act.  The accused must have had the intent to:-

  1.  Intimidate;

 

  1.  Annoy.

This intimidation or annoying must be communicated to the complainant through threats to injure, assault shoot or kill any person or burn break or injure any property.  Intimidate means to frighten a person in order to persuade them to do something against their will or wishes. 

 

Annoy means to make someone angry because of repeated actions.

Threatening means that one suggests that something unpleasant will happen unless a particular action or order is followed.

 

What runs through the definition of the offence of threatening violence is that the accused must personally communicate the threats direct to the victim in order to constitute the offence.  The victim must receive and perceive the threats as real and intended to annoy, injure result in assault or being shot or killed by the culprit or that any property of the victim is going to be burnt, broken or destroyed.

 

It cannot amount to threats if the message is communicated through a third party.  That was both the meansrea and actus reus of the offence would not come out to pin an accused person.

 

 I agree with the submission by Mr. Anukur that by wrongly framing the ingredient of the offence he was trying, it led to faulty findings against the appellant by the learned trial Magistrate which led to a miscarriage of justice. In his judgment, the learned trial Magistrate stated the ingredients of the offence as follows:-

 

“The following ingredients must be proved:-

  1. .Threats by words of mouth or by gestures must have been uttered or a plot must have been orchestrated with intention to intimidate, annoy or kill the complainant.

 

  1. . The said threats must have been uttered by the accused or the plot must have been conceived and executed by the accused person himself/herself or by another person with her consent approval and facilitation.  It is immaterial whether the mission (plot) was accomplished or not”.

 

The above was a grave misdirection on the part of the learned trial Magistrate and it appears he did it deliberately to suit into the evidence adduced by the prosecution which evidence could not prove the legal meaning of the offence.  The intent envisaged under S. 81 of the penal Code Act is personal and not delegated.  Therefore by using the word “plot” which means a secret planed made by several people to do something wrong or harmful, the learned trial Magistrate misfired abinitio.  Neither was it accurate for the trial Magistrate to expand the meaning of the offence to include “consent, approval or facilitation” of the accused person.

 

It is my findings that the judgment by the learned trial Magistrate was for a non existent offence which he created and not threatening violence.  I am unable to agree with the learned state Attorney that all was well despite the above glaring commissions.  My finding on the ingredients of the offence of threatening violence is enough to dispose of the appeal.  The evidence on record would have been relevant.  If the appellant had been charged with conspiracy to commit a felony C/S 390 of the Penal Code Act.  I have therefore not found it necessary to revaluate the entire evidence on record.

 

I will consequently allow this appeal.  I will quash the conviction of the appellant and set aside the sentence imposed by the lower court.  The appellant will be acquitted of the offence of threatening violence c/s 81 (a) of the Penal Code Act.  She is set free.

 

 

Stephen Musota,

JUDGE.

31/10/2012