THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
ANTI CORRUPTION DIVISION CR.CA 30 OF 2011
1ST INZIKU PAUL CLAY ::::::::::::::::::::::::::::
2ND ADERUBO VINCENT APPELLANTS
3RD TOKO ALENI
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON. JUSTICE P. K. MUGAMBA
Inziku Paul Clay, hereinafter called the first appellant, Aderubo Vincent, hereinafter called the second appellant, and Toko Aleni, hereinafter called the third appellant appeal to this court against the decision of the Chief Magistrate’s court whereby they were on 1st November 2011 convicted on three counts under the Anti Corruption Act. The charges were Embezzlement, contrary to section 19, Causing Financial Loss, contrary to section 20 and Abuse of Office, contrary to section 11 of the Act. In consequence each of the appellants was sentenced to 1½ years’ imprisonment, on each of the counts, the sentences to run concurrently. Each of the appellants were disqualified by court from holding a public office for a period of 10 years from the date of conviction. In addition each of the appellants was to pay shs.2, 000,000/= as a refund of the lost money to Arua Municipal Council.
The memorandum of appeal contains four grounds which read as follows:
1. The learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on court record and thus arrived at a wrong verdict.
2. The learned Trial Chief Magistrate erred in law and fact when she held that the appellants committed the offence of embezzlement, causing financial loss and abuse of office when the ingredients were not proved.
3. The learned Trial Chief Magistrate erred in law and fact when she convicted the appellants for offences without supporting evidence on court record.
4. The learned Trial Chief Magistrate erred in law and fact when she passed a very harsh sentence against the appellants given the circumstances of the case.
The appellants prayed that their appeal be allowed, convictions be quashed and that the sentences and orders dispensed be set aside.
This being the first appellate court in the matter it is duty bound to re-evaluate the entire evidence on record and come to its own conclusions, bearing in mind that it did not have the opportunity to see the witnesses testify.I have looked at the first three grounds of the memorandum and the synthesis is the trial court’s evaluation of the evidence on record and eventual application of that to the charges.
The three appellants were charged jointly in all the three counts. In count 1 the particulars read:
INZIKU PAUL CLAY, ADERUBO VINCENT AND TOKO ALENIbetween 21st to 22nd April 2006 at Arua Municipal Council offices and Stanbic Bank Arua Branch, being employed in public service as Ag.Town Clerk, Accountant, Senior Accounts Assistant all with Arua Municipal council respectively, stole shs 6,000,000/= (shillings six million) from Arua Municipal Council salary account No.0192420801 which money they had access to by virtue of their employment.
The learned trial Chief Magistrate addressed her mind to the elements of the offence such as that the person charged was an employee of the Government, which was not in controversy regarding the three appellants herein since they were all employees of the Arua Municipal Council. There is the imperative that the property in issue should have been received or taken into possession by the accused for or on account of the employer of the accused. Finally the accused must have had access to the impugned property by virtue of accused’s office. In the instant case the property in issue is money the shs 6,000,000/=. Who received or took into possession that money? Evidently, the third appellant did. He it was who cashed the cheque.There is no evidence the third appellant passed on any of the money to the first appellant. The third appellant alone testified that he eventually passed the money on to the second appellant. This the second appellant denied. The paper trail ends with the third appellant. Available evidence shows he received the money and there is nothing to show he passed it on to the third appellant or to anyone else. In the circumstances I do not agree with the finding of the trial court that there is evidence to show the first appellant or the second appellant embezzled the money in issue. There is however evidence the third appellant, acting as bank agent of his employer, had access to the shs 6,000,000/= which he took and never accounted for. He was correctly convicted of embezzlement. Both the first and second appellants are acquitted on count 1 and the sentences imposed on them therein are set aside.
I have addressed my mind also to the trial court’s evaluation of evidence relating to count 2 and count 3 as urged by counsel for the appellants. Respectfully, I find no ground to disturb the findings of the learned Chief Magistrate which I find well founded.
In the result this appeal partially succeeds as regards count 1 where the first appellant and second appellant are acquitted and their sentences set aside. I consider the sentences imposed elsewhere lenient and the orders apt. There is to be no variation.
P. K. MUGAMBA
28TH March 2012