[2023] UGCA 224


THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Buteera, DCJ; Egonda-Ntende & Mugenyi, JJA)

# CRIMINAL APPEAL NO. 297 OF 2022

- 1. CISSY GGIBWA KALIBBALA - 2. ANNET NABIWOKO - 3. DEODANTA NABAGESERA - 4. BENIGN NABIYONGA ....................................

# **VERSUS**

UGANDA ...................................

(Appeal from the High Court of Uganda at Masaka (Tweyanze, J) in Criminal Appeal No. 31 of 2021)


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# JUDGMENT OF THE COURT

#### A. lntroduction

- 1. This is a second appeal from a decision of the High Court in exercise of its appellate jurisdiction that upheld the conviction and sentence of Cissy Ggibwa Kalibbala, Annet Nabiwoko, Deodanta Nabagesera and Benign Nabiyonga ('the Appellants'). The prosecution case as accepted by both the trial court and the first appellate court is that on 19th December 2020 al Byesika village in Sembabule District, the Appellants and Dennis Sempagala Kalibbala damaged the farm fence of Solomon Edward Amanya, and were subsequently arraigned for the offence of malicious damage to property contrary to section 335 ofthe Penal Code Act, Cap. 120. - 2. Mr. Kalibbala was convicted on his own plea of guilt and cautioned, while the Appellants (against whom he testified) underwent full trial, were convicted and each sentenced to custodial sentences of 2 years. Dissatisfied with the decision of the trial court, the Appellants lodged Criminal Aooeal No. 31 of 2021 in the High Court of Uganda at Masaka challenging their conviction and sentence, and proffering the following grounds of appeal: - The learned trial magistrate erred in law and fact when he relied on the testimony of PW2 to convict the appellants with an offence of malicious damage to propefty without proper evaluation of the evidence on record thus occasioning a miscarriage of justice. - ll. The learned trial magistrate erred in law and fact when he declined the appellants' defence of alibi thus occasioning a miscarriage of justice. - lll. The learned trial magistrate erred in law and fact when he gave a manifestty harsh and unjust sentence of 2 (two) years in the circumstances of the Appellants hence occasioning a miscarriage of justice. - 3. ln their written submissions, however, the Appellants argued the following grounds of appeal: - The learned trial magistrate erred in law and fact when he failed to evaluate the entire evidence. - ll. The learned trial magistrate erred in law and fact when he failed to consider the evidence of bona fide claim by the Appellants.

- lll. The learned trial magistrate erred in law and fact when he did not afford the Appellants the defence of alibi thus occasioning a miscarriage of justice. - lV. The learned trial magistrate erred in law and fact when he gave a manifestly harsh and unjust sentence of two years imprisonment to each of the Appellants. - 4. The High Court rejected the amended grounds of appeal for having been introduced without leave of the court, and confirmed the Appellants' conviction and sentence on the basis of the original grounds of appeal as laid out in the memorandum of appeal, hence the present second appeal that is premised on the following grounds: - l. The learned appellate judge ened in law when he failed to carry out his duty to evaluate the evidence on record as the first appellate coutl. - ll. The learned appellate judge erred in law when he did not appreciate that the grounds of appeal had been amended. - 5. At the hearing of this Appeal, Mr. John Paul Baingana represented the Appellants while Mr. Simon Peter Ssemalemba, Assistant Director of Public Prosecutions, represented the Respondent.

# B. Determination

- 6. Under Ground 7 of the Appeal, the appellate judge is faulted for his failure to reevaluate the evidence on record as is required of a first appellate court. ln a veiled reference to Ground 2 of the Appeal, it is argued that the appellate judge's refusal to consider most of the grounds on appeal had the effect of occasioning ^a miscarriage of justice since no adjudication was made on material objections that had been raised on appeal. This position is buttressed by the observation in Boqere Moses vs Uqanda (1998) UGSC 22 that without necessaril y prescribing a format for judgments, 'where a material issue of objection is raised on appeal, the appellant is entitled to receive an adjudication on such issue from the appellate court in its judgment, even if the adjudication be handed out in summary form.' - 7. On that premise, Counsel for the Appellants urges the determination of this ground of appeal in the affirmative and invites this Court to re-evaluate the evidence on

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record given the first appellate court's failure to do so. He cites the following opinion in Boqere Moses vs Uqanda (supra) in support of his proposition:

> Except in the clearest of cases, we, as a second appellate court, are not required to reevaluate the evidence like a first appellate court. ln our view, the instant case is one of such clearest of cases which make it incumbent on this Court to re-evaluate the evidence. This is so because it is apparent from its Judgment lhat the Court of Appeal did not evaluate the evidence as a whole, and an particular in respect of the said material issues, with the result that it cannot be ruled out that a different result would have been arrived at if that evidence had been duly considered and evaluated. Needless to say, that failure by a first appellate court to evaluate the material evidence as a whole constitutes an error in law.

- 8. Counsel argues that had the appellate judge in this matter undertaken a reevaluation of the evidence on record, he would have come to a different conclusion. He also faults the trial magistrate for determining the matter on the basis of the doctrine of common intention then provides his own re-evaluation of the evidence. ln a nutshell, it is his contention that there cannot have been any damage to property whatsoever as the poles that were allegedly uprooted from the fence were never installed in the first place. Furthermore, the evidence contradictorily points to the alleged uprooting having occurred on 20th December and not 19th December as stated in the charge sheet. - 9. ln what would appear to be an alternative argument, Counsel further contends that the property in question belonged to the Appellants' father (a one Kalibbala), therefore as persons with a beneficial interest in it, the Appellants would be protected from criminal prosecution under section 7 of the Penal Code Act-Deference is made to this Court's decision in Jackson Muhwczirs U,sanda (2009) uGcA 54, where section 7 of the Penal Code Act was purportedly invoked to set aside a conviction in malicious damage to property. The appellate judge is faulted for making no reference whatsoever to this statutory provision despite it having been brought to his attention. The learned judge is further criticized for relying on the uncorroborated evidence of an accomplice (PW3) to convict the Appellants.

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- 10. Conversely, State Counsel contends that the learned first appellate judge did evaluate the evidence before the trial court and came to the conclusion that the Appellants had been correctly convicted. ln any event, in his view, even if the first appellate court had not properly evaluated the evidence on record, this Court would have a duty to re-evaluate the said evidence and come to its own conclusion. He too cites Boqere Moses vs Uoanda (supra) for that proposition. - 11. Counsel argues that the appellate judge did re-evaluate the evidence that was before the trial court to the extent that he stated that he had studied the evidence of Eden Mbuga Sendagala (PW2) pursuant to which he agreed with the trial magistrate's finding that the said eye witness found the Appellants uprooting poles that belonged to Solomon Amanya (PW1). The rest of the Respondent's legal arguments on this ground of appeal are in tacit agreement with the findings of the trial court on the Appellants' participation in the offence, which negates the purported alibi, as well as the ownership of the land in question. - 12. ln Counsel's view, the contradictions between the evidence and the charge sheet as to the actual date of the damage to the fence were minor and did not occasion a miscarriage of justice given the evidence of Dennis Sempagala Kalibbala (PW3) that he had met his aunts, the Appellants, at the scene of crime on 19th December 2020 to which they all returned the next day and uprooted the poles. PW3 went ahead to plead guilty to the offence. lt is further opined that given the Appellants' failure to prove that the land in issue had belonged to their father or that there was a pendlng civil suit in respect thereof, the trial magistrate cannot be faulted for his conclusion that they had no claim over it. - 13. ln relation lo Ground 2 of the Appeal, Counsel for the Appellants faults the judge for recognising that the law is silent on the procedure for amendment of grounds of appeal but nonetheless failing to consider a prayer made in submissions for the amendment of the memorandum of appeal sufficient for the grant of leave therefor. On the other hand, learned State Counsel opines that the supposedly amended grounds of appeal were not materially different from the original grounds therefore the appellate judge's recourse to the original grounds of appeal did not occasion a miscarriage of justice.

14. First and foremost, Article 126(2)(e) of the Constitution enjoins courts to administer substantive justice without undue regard to technicalities. That constitutional provision is buttressed by section 39(2) of the Judicature Act, Cap. 11, which posits a solution to the appellate judge's apprehension on the lacuna in the procedure for the amendment of grounds of appeal. lt reads:

> Where in any case no procedure is laid down for the High Court by any written law or by practice, the Court may, in its discretion, adopt a procedure justifiable by the circumstances of the case.

- 15. ln this case, after carefully considering both sets of grounds of appeal as reproduced earlier in this judgment, we do agree with State Counsel that they are materially the same. Grounds 1 and 2 of the amended grounds raise the question of re-evaluation of evidence that is addressed in ground 1 of the original grounds of appeal, while grounds 3 and 4 of the amended grounds are substantially the same as grounds 2 and 3 of the original grounds of appeal. Consequently, even if the appellate judge had addressed the amended grounds of appeal that would not have changed the conclusions arrived at in his judgment. Thus, in conformity with thepropositionin@(supra)thatanappellantisentitled to receive adjudication on the issues or objections raised on appeal, the Appellants in this case did receive adjudication on all the issues they raised before the first appellate court, the appellant judge's omission notwithstanding. - 16. We are alive to section 45(6) of the Criminal Procedure Code Act, Cap. 116 (CPC) that mandates this Court to dismiss an appeal where it is of the view that no substantial miscarriage of justice has actually occurred. That provision reads as follows:

On any appeal brought under this section the Court of Appeal may, notwithstanding that it may be of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

17. ln this case, the failure by the appellate judge to address the amended grounds of appeal did not in itself occasion a miscarriage of justice so as to warrant our

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interference with the first appellate court's judgment. We would therefore dismiss Ground 2 of this Appeal.

- l8. Turning lo Ground 7, the main bone of contention between the parties is whether the first appellate court discharged its duty of re-evaluation of the evidence and addressed all the issues raised by the appellants, or its failure to do so would necessitate such a re-evaluation by this Court. - 19. Section 34(1) of the CPC is instructive on when an appellate court may allow or dismiss an appeal against conviction. lt reads:

The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, 01 on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; exc6pt that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred,

20. The import of that statutory provision with regard to questions of fact is that an appellate court ought to allow an appeal if it thinks that the judgment of the trial court is not sustainable in view of the evidence on record. This is reflected in Henrv Kifamuntu vs Uoanda (supra), where the re-evaluation required of a first appellate court was clarified as follows

> The length or brevity of a judgment is not evidence of the quality of that judgment. There is no standard form ofjudgment of a Court of Appeal. lt has been held that a first appellate Court does not have to write a judgment in a form appropriate to a Court of first instance. lt is enouqh, an questions of if. after the first aDoellate Court havinq itself considered and evaluated the evidence and havinq testellthe conclusions of the trial Court drawn from the demeanour ol lvitnesses a-sa the whole of their evidence, it is satisfi that there was evidence uoon which the trial Court could properlv and reasonablv find as it did. That the appellate Court's conclusions are merely expressed in such terms, in itself, is no indication that

it has failed to make a critical evaluation of the evidence: See S. M. Ruwala vs R. (1957) E. A.570. (my emphasis)

- 21. On the other hand, section 45 of the CPC delineates the law governing second appeals to this Court. The provisions pertinent to this Appeal are reproduced below. - (1) Either party to an appeal from a magiatrate's court may appeal against the decision of the High Court in its appellate jurisdiction to the Court of Appeal on a matte. of law, not including severity of sentence, but not on a matter of fact or of mixed fact and law. - (2) On any such appeal, the Court of Appeal may, if it thinks that the judgment of the magistrate's court o. of the High Court should be set aside or varaed, make any order which the magistrate's court or the High Cou( could have made, or may remit the case, togothot with its judgment or ordet on it, to the High Court or to the magistrate's court for determination, whether or not by way of rehearing, with such directions as the Court of Appeal may think necessary. - (3) Notwithstanding subsection (2), in the case of an appeal against conviction, if the Court of Appeal dismisses the appeal and confirms the conviction appealed against, it shall not, except as provided in subsection (4), increase, reduce or alter the nature of the sentence imposed in respect of that conviction, whether by the magistrate's court or by the High Court, unless the Court of Appeal thinks that the sentence was an unlaMul one, in which case it may impose such sentence in substitution for it as it thinks ptoper. - (4) lf it appears to the Court of Appeal that a party to an appeal, though not properly convicted on some count, has been properly convicted on some other count, the Court of Appeal may, in respect of the count on which the court considers that the appellant has been properly convicted, either affirm the sentence passed by the magistrate's court or by the High Court, or pass such other aentence, whether more or less severe, in substitution for it as it thinks proper. - 22. As a second appellate court from a decision of the High Court, this Court would not be required to re-evaluate the evidence on record like a first appellate court should save in the 'clearest of cases.' See Henry Kifamuntu vs Uoanda (19981 UGSC 20. As quite correctly argued by both parties, Booere Moses vs Uqanda (supra) advances the view that a second appellate court may undertake a re-evaluation of

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the evidence on record where (as transpired in that case), it is not apparent that the first appellate court 'subjected the evidence as a whole to scrutiny that it ought to have done. And in particular it is not indicated anywhere in the judgment that the material issues raised in the appeal received the court's due consideration.'

23. ln the appeal before us, the first appellate court discharged itself as follows:

Ground 1: That the Learned Ttial Magistrate errad in law and fact when he relied on the testimony of PW2 to convict the Appellants/ Accused with an offence of malicious damage to proparty without proper evaluation of the evidence on record thus occasioning a miscarriage of justice.

I have carefully studied the record of proceedings and the judgment of the tial Coutt regarding PW2's evidence. I have no reason to fault the tial Magistrate for the decision based (sic) the PW2's evidence. I note that he was an eye witness, who found the Appellants/ Accused uprooting tne poles belonging to PW1, the Complainant. I find no meit in this ground of Appeal.

Ground 2: That the Lqarned Trial Magistrate erred in law and fact when he declined the Appellants'/ Accusdd defence of alibi thus occasioning ^a miscarriage of justice.

O, ttle,ssue of Alibi, I have carefully studied the evidence of PW2 and PW3 and the judgment. I am persuaded that the Appellants/ Accused were placed at the scene of crime by the above mentioned witnesses. / am not persuaded that the tial Magistrate erred in law and fact in holding that the Appe ants/ Accused were guilty of the offence of Malicious damage to propefty contrary to Section 335 of the Penal Code Act, Cap. 120. There was ample evidence to suppott the conviction. I find no merit in this ground of Appeal too.

24.lt is apparent that the learned appellate judge adopted a re-evaluation that was skewed to the prosecution evidence only, rather than the totality of the evidence as proposed in Boqere Moses vs Uqanda (supra). This approach does also run afoul of the position advanced in Abdu Nqobi vs Uqanda. Criminal Aopeal No. 10 of 1991 (Unreported), where it was held:

> (The) evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has

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() been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. lf the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identifled the appellant as the person who was at the scene of the incidents as charged.

- 25.|n any event, he did not re-evaluate the evidence with a view to resolving the contradictions surrounding the actual date the offence was committed or within the contelit of the Appellants' criminal responsibility given the express provisions of section 7 of the Penal Code Act. These issues were raised in the first appeal and have been raised again in this second appeal. We do therefore find that the first appellate court did renege on its duty to re-evaluate the evidence on record and arrive at its own independent conclusions. We would therefore answer Ground ¹ in the affirmative. - 26. lt thus behoves this Court to re-evaluate the evidence in this matter. ln so doing, we are alive to Rule 32(2) of the Judicature (Court of Appeal Rules) Directions, Sl 13-10 ('the Court of Appeal Rules'), which succinctly mandates this Court sitting as a second appellate court to 'appraise the inferences of fact drawn by the trial court.' ln addition, we abide the scope of re-evaluation on second appeal highlighted in Henrv Kifamuntu vs Uqanda (supra), where it was observed:

Once it has been established that there was some competent evidence to support a finding of fact, it is not open, on second appeal to go into the sufficiency of that evidence or the reasonableness of the finding On second appeal the court of Appeal is precluded from ouestionino the findinos of fact of the trial court. provided that there was evidence to support those findinos. thouoh it mav think it possible. or even Drobablv. that it would not have itself come to the 6ame conclusion: it can onlv interfere where it considers that there was no evidence to support the findino of fact, this beino a ouestion of law: R. vs. Hassan bin Said (1942) I EACA ⁶² (my emphasis)

27. lt is apparent on the record that neither the trial court nor first appellate court addressed the alleged contradictions in the date the offence was committed. This Court's re-evaluation of the evidence reveals that PW2, an eye witness, attested

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to having found the Appellants uprooting lhe 'fence of poles'on 19th December 2020. His evidence is corroborated by that of PW5, an investigating officer, who attested to having been directed by the District Police Officer to respond to violence in Byesika on 19th December 2020 and, upon arrival at the scene of crime, found that poles meant for a fence had been uprooted.

- 28. We do not accept the proposition by Counsel for the Appellants that PW3's evidence proves that the offence was committed on 20th December 2020. That witness testified that on 19th December he was with the Appellants, they agreed to go and uproot the complainant's poles and went back on 20th December with the media and removed poles. Reference in his evidence to having gone back to the disputed land on 20th December would suggest that the witness and the Appellants had been there the previous day and only returned on 20th December, this time with the media. Meanwhile, PW4 (an elder sibling to the Appellants) had attested to the complainant's disquiet with the Appellants' cutting of the fence and barbed wire on the land that his (PW4's) family had sold him, which destruction occurred over both 19th and 20th December 2020. His uncontroverted evidence corroborates that of PW3 that the Appellants were at the scene of crime on both days insofar as it confirms that PW3 and the Appellants having resolved on 19th December to go and uproot the complainant's pole, they did indeed effect their plan and destroyed the complainant's fence on both 19th and 20th December 2020. - 29. The /ocus c/asslcus on correct identification in a criminal trial was laid out in &d.e!.a Nabulere & Another vs Uqanda Crim. Appeal No. 9 of 1978 as follows:

The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness \Mith the accused. All these factors go to the quality of the identification evidence. lf the quality is good then the danger of mistaken identity is reduced. The poorer the quality, the greater the danger.

30. However, the correctness of the identification evidence is not directly challenged in this case, all four appellants simply setting up alibis as a defence to their having participated in the offence either on 1gth or 20th December.

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## 31.1n Festo Androa Asenua & Another vs Uqanda (199J)lJGSe23 the law on alibi was restated by the Supreme Court as follows

It is trite that by setting up an alibi, an accused person does not thereby assume the burden of proving its truth so as to raise a doubt in the prosecution case. See Ntale vs. Uganda (1968) E. A. 206. ln the case of R. vs. Chemulon Were Olancro (1973) 4 E. A. C. A, it was stated:

"The burden on the person setting up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible as to have committed the imputed act." See also Ezekia vs Republic (1972) E. A. 42 al 48 on proof of alibi.

- 32. Therefore, the defence of alibi would not negate the burden of proof upon the prosecution to prove its case to the required standard, neither does it place a burden upon an accused person to so prove its truth as to raise a doubt in the prosecution case. The only duty placed upon an accused person is 'to account for so much of the time of the transaction in question as to render it impossible as to have commitled the imputed act.' Thus, the accused person must account for his/ her whereabouts during the material time a crime was committed in such a manner so as to render it impossible for him/ her to have participated in its commission. See Rvs Chemulon Wero Olancro n\$7) 4 EACA 46. Accordingly, in support of their defence of alibi, the present Appellants would have been under a duty to account for the time during which the offence of malicious damage to property ensued. - 33. Furthermore, the alibi should be set up as promptly as possible. ln R vs Sukha Sinqh s/o Wazir Sinqh & Others (supra), the correct approach to the defence of alibi was clarified as follows:

lf a person is accused of anything and his defence is an alibi, he should bring forward the alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfaed as to its genuineness proceedings will be stopped.

34.|n that regard, the Supreme Court did in Festo Androa Asenua & Another vs Uqanda (supra) conclude as follows:

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We should point out that in our experience in Criminal proceedings in this Country it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to disclose his case prior to presentation of his defence at the trial, or any prohibition of belated disclosure .. . such belated disclosure must go to the credibility of the defence.

- 35. ln this case PWs testified that after witnessing the uprooted poles at the scene of crime, he recorded the police statements of the complainant and 'fhe uzilnesses.' The First Appellant's police statement 21st December 2020, a day after the incident, indicates that she and the Second Appellant were not at home or in Kampala as they had respectively testified, but did (together with their nephew, PW3) go to the complainant's land at Byesika village. At that early stage, neither of those Appellants raised the defence of alibi yet they clearly had the opportunity to do so. - 36.|n R vs Sukha Sinqh s/o Wazir Sinqh & Others (supra), it was opined that the belated raising of alibis raises connotations of a 'prepared defence, while the same practice was adjudged in Festo Androa Asenua & Another vs Uqanda (supra) as a matter that impedes the credibility of the defence. We are unable to disagree with those observations or their applicability to the present Appeal given the strength of the identification evidence as reviewed earlier in this judgment; which is inter alia corroborated by no less than PW3 whom the First Appellant admits to having been with at the scene of crime on the dates in question. Consequently, we would disallow the defence of alibi put forward by the Appellants, and agree with the trialjudge that the prosecution evidence correctly placed them at the scene of crime. - 37. We therefore find no contradiction in the date the offence in issue presently was committed, the evidence on record supporting the inference that the damage to the fence by the uprooting of poles ensued on 19th December 2020 and continued on 20th December 2020, this time with media coverage. Having thus found cogent evidence to support the findings of the trial court in relation to the Appellants'

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participation in the offence on the date cited in the charge sheet, we find no reason to interfere with the decision of the first appellate court on that account.

- 38. Turning to the question of Appellants' beneficial interest in the complainant's land, it is not in dispute that the Appellants were indeed the children of Benedict Kalibbala (now deceased), who was one of the predecessors in title to the land. There is also a certificate of title on record that indicates that Messrs. Edward Ssewanyana, Benedict Mulengera S. Kalibbala, Treshphoro Katumwa, Robert Kironde Mwogezi, John Bosco Kiwanuka and Eden Mbuga Ssendagala were the registered proprietors of the land from October 2014 to 22nd December 2020, when the deceased - Benedict M. S. Kalibbala - was deleted from the list of proprietors. A common thread in the Appellants' evidence is their belief that the land on which the damaged fence had been erected belonged to their deceased father and was therefore part of his estate. lndeed, the Second Appellant admitted to having only found out about the purchase of that land by the complainant during the trial. - 39. On this issue, the trial magistrate discharged himself as follows

The accused in their defence informed Coutt that the land that was sold to the complainant was land that belonged to their father and as sucl, they are beneficiaries and had interest. However, no evidence was adduced by the accused persons to prove that the land where the poles were uprooted belonged to their father as opposed to the evidence of PWl who informed Couft that he purchased land from Ssewanyana Edward, Katumwa Tresphoro, Mwoggzi Robeft Kironde, Bosco Kiwanuka John and Ssendagala Eden Mbuga and that the land he purchased from them is of joint tenancy. PW1's evidence was confirmed by evidence of PWz and evidence of PW4. A cedificate of title was tendered in Coutt to that effect and was admitted as PEX1 unchallenged by the accused persons which is a clear confirmation that the evidence of PWl is true. lt's also a clear confirmation that those who sold the land to the complainant were the ight owners of the land and therefore the accused claim of right does not suffice since they are not registered owners ot the land neither did they adduce evidence to prove that the land belonged to their late father.'

40. Section 7 of the Penal Code Act states as follows on the defence of claim of right

A person is not c.iminally 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

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property was done in the exercise of an honest claim of right and without intention to defraud

- 41. The term claim of ight is defined in Black's Law Dictionary, 8th Edition, p. 266 as 'a criminal plea, usually to a theft charge by a defendant, asserting that the property was taken under the honest (but mistaken) belief that the defendant had a superior right to the property.' - 42.|n Wasswa Jamada & 2 Others vs. Uqanda. Criminal Apoeal No. 817 of 2014 (unreported), a claim of right under section 7 of the Penal Code Act was clarified by this Court as follows:

This defence can only hold water if the person claiming it committed the act or acts in question in relation to the property in issue, honestly claiming a raght to the property, without an intention to defraud anyone else. lt is not enough to simply lay claim to property, remove boundary marks separating that property from yours, and take over someone else's land.

43. Additionally, in R vs Fuqe (2001) 123 A Crim R 310, the New South Wales Supreme Court set out the elements of a claim of right at common law as follows (per Wood, CJ):

A review of the authorities shows that

- (a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another; - (b) the claim must be genuinely, ie, honestly held, it not being to the point whether it was well founded in fact or law or noti - (c) while the belief does not have to be reasonable, a colourable pretence is insufficient; - (d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement; - (e) the existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it; - (0 ... .

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- (g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches, - (h) in the case of an offender charged as an accessory, what is relevant is the existence ot a bona tide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts; - (i) it is for the Crown to negative a claim of right where it is sutficiently raised on the evidence. - 44.1n a nutshell, the common law defence in section 7 of the Penal Code Act is applicable to persons with an honest belief that they have a legal ownership, right or entitlement to property, not a merely moral right. lt does not matter if the accused's belief was based on a mistake of fact or law. lf the accused genuinely believed s/he had a legal claim of right, s/he will not have acted dishonestly and therefore lacks the mental element of mala fide intention (mens rea), a vital element to property-related offences. The accused bears the evidentiary burden to prove this honest belief at the time of the offence but the prosecution retains the legal burden of proof of the case against the accused and must refute the defence of claim of right beyond reasonable doubt. lt must prove that the accused did act deceitfully, dishonestly or fraudulently. - 45. We are mindful of the duty upon a second appellate court not to question findings of fact of the trial court but to only interfere with them 'where it considers that there was no evidence to support the finding of fact, this being a question of law.' See Henry Kifamuntu vs Uqanda (supra) and R. vs. Hassan bin Said (1942) I EACA ⁶² - 46.|n the present Appeal, far from negating their claims, support for the Appellants' genuine and well-founded belief that they had a claim of right over the claimant's land as beneficiaries of their father's estate is to be found in PW4's evidence that the deceased was in fact the sole proprietor of the land until 2014 when he incorporated five of his sons as co-proprietors. The fact that the land was held as

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a joint tenancy and therefore could not have been part of the deceased's estate would not negate that mistaken but honest belief. ln addition, the video evidence adduced at trial and admitted as Exhibit PE2 depicts a conflict over the estate of the late Benedicto Kalibbala from whom the Appellants claim as beneficiaries. This indeed would explain the caveat lodged on the land title by John Mary Vianney Ssendikadiwa and Vincent Nkata Kalibbala on 6th June 2017, following the deceased's death in 2016. The veracity of the family's concern about the deceased's estate is further supported by Exhibit PE1, which entails numerous sale agreements executed between the complainant and the surviving proprietors of the land on various dates between 11th November - 11th December 2020.

47. The offence of malicious damage to property with which the Appellants were charged includes the mental element ol wilful and unlanrful deslruction of property. Section 335(1) reads as follows:

> Any person who wilfully and unlawfully destroys or damages any property commits an offence and is liable, if no other punishment is provided, to imprisonment for five years.

- 48. Having found that they had acted under the genuine but mistaken belief that they had a legal claim of right over the claimant's land as beneficiaries to their father's estate; it follows that they cannot be adjudged to have damaged the property in issue herein in the knowledge that their actions were unlawful, neither were their actions proved to have been laced with dishonesty or fraud. The prosecution bore the legal burden to disprove the Appellants' defence of claim of right but fell short on this duty. - 49. Consequently, it is our finding that the defence of claim of right was duly established by the totality of the evidence on record and there was no evidence to support the finding of fact by the trial court that the Appellants' mens rea negated that defence. The provisions of section 7 of the Penal Code Act would thus absolve the Appellants of criminal liability for their impugned actions.

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Criminal Appeal No. 297 of 2022

## C. Disposition

50. In the result, having held as we have under the preceding ground of appeal, this Appeal is allowed and the decisions of the lower courts are hereby set aside. The Appellants' conviction and sentence are quashed.

It is so ordered.

Dated and delivered at Kampala this $\frac{1}{2}$ day of $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

**Richard Buteera**

**Deputy Chief Justice**

$\mathcal{Y}$ .

Fredrick M. S. Egonda-Ntende **Justice of Appeal**

surdingenyi

Monica K. Mugenyi **Justice of Appeal**