[2025] UGHCACD 8

# THE REPUBLIC OF UGANDA IN THE ANTI-CORRUPTION DIVISION OF THE HIGH COURT CRIMINAL APPEAL NO OOO1 OF 2025

# (Arising out of Criminal Case No 0130 of 2019)

LORIKA YUSUF ATEK alias AHMED ALI JAWABU ABAS alias ABDUL ABAS 1ST APPELLANT 2ND APPELLANT VERSUS

UGANDA (URA) RESPONDENT

# BEFORE: Okuo jane Kajuga, I

# JUDGEMENT

This is an appeal from the decision of the Magistrate Grade 1 sitting at the Anti-Corruption Division delivered on 30,h January 2025 in which the appellants were convicted as follows:

- Both appellants were convicted of the offense of Causing the making of ^a false document c/s 203 (b) of the East African Community Customs Management Act, 2004 under Count ¹ I - 2. The 1't appellant was convicted of Causing the making of a false document c/s 203 (b) of the East African Community Customs Management Act,2004 under Count 2 - 3. Both were convicted of Obtaining money by false pretenses, c/s 305 of the Penal Code Act, Cap 120 under Count 3 - 4. Both were convicted of Conspirary to Defraud c/s 309 of the Penal Code Act, Cap 120 under Count 4

They were sentenced as follows:

- 1. Each appellant was sentenced to two years' imprisonment on Count ¹ - 2. The 1{ appellant was sentenced to one year's imprisonment on Count ²

- 3. The l.tappellant was sentenced to two years and six months' imprisonment while the 2"d appellant was sentenced to two years and three months' imprisonment on count 3 - 4. Both convicts received a sentence of a caution on count 4

#### The facts of the case:

The complainant, Mahmood Othman, travelled to Uganda on 7719/2079 to trade in gold, on the invitation of a friend, Samir Ahlad, although he had not obtained any license to do so. He was taken to an office by the persons selling him the gold, and shown gold nuggets. He was satisfied that it was a genuine transaction, upon which he was advised that he was supposed to pay customs dues. He was taken to Diamond Trust Bank, under the guise of paying the said dues where he was defrauded of the equivalent of Ushs 768,914,000/: in US Dollars. The appellants were implicated as being part of the scam, in conspiracy with lady employees of Diamond Trust Bank, one of the banks authorized to receive tax payments. The complainant was handed payment receipts which were later discovered to be false. The payments he made were never reflected in the Uganda Revenue Authority system as having been paid. In fact, the PRNs under which the payments were allegedly made were found to relate to totally different transactions.

The complainant, realizing that he had been defrauded, reported the matter to customs officials, who arrested the two appellants and the bank staff involved in the fraudulent transactions. They were all initially charged in cour! but subsequently, charges were withdrawn against the employees of Diamond Trust Bank.

Following the trial and conviction of the appellants, they filed this appeal on the following eleven ( 11) grounds:

#### Ground 1:

The Learned Trial Magistrate erred in law when she convicted the appellants of the offense in Count 1 of Causing to be made a false document c/s 203 (b) of the East African Community Customs Management Act, whose ingredients were not proved beyond reasonable doubt

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# Ground 2:

The learned trial magistrate erred in law and fact when she wrongly held that the appellants had caused to be made a false document as charged in count 1, when the said document was not admitted in evidence or proved as required by law

# Ground 3:

The learned trial magistrate erred in law when she convicted the l"tappellant of the offense in count 2 of causing to be made a false document c/s 203 (b) of the East African Community Customs Management Act, whose ingredients were not proved beyond reasonable doubt

# Ground 4:

The leamed trial magistrate erred in law when she convicted the 1{ appellant of the offense in count 2 of causing to be made a false document when the said document was not admitted in evidence or proved as required by law

# Ground 5:

The learned trial magistrate erred in law and fact in holding that the offense of obtaining by false pretense had been proved against the appellants, yet there was no evidence to support all the essential elements of the offense.

# Ground 5:

The learned trial magistrate erred in law and in fact when she convicted the appellants for the offense of obtaining money by false pretenses and ignored the prosecution evidence of PW1 and PW5 which pointed at Namara Catherine Doreen and one Ismail as the recipients of the said money

# Ground 7:

The learned trial magistrate erred in law and in fact when she wrongly held that the offense in count 4 of conspiracy to defraud, c/s 309 of the Penal Code Act, had been proved against the appellants without evidence to support the necessary ingredients

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#### Grounds 8:

The learned trial magistrate erred in law when she failed to evaluate the whole evidence of the prosecution together with the evidence for the defense, and hence arrived at an erroneous decision that the appellants were guilty of all the offenses and convicted them as charged

#### Ground 9:

The learned trial magistrate erred in law and fact when she erroneously exercised her discretion and passed a harsh and excessive custodial sentence without giving the appellants an opportunity to pay fines provided by law in the circumstances of the case

#### Ground 10:

The learned trial magistrate erred in law and fact when she imposed an illegal sentence against the 2"d appellant by failing to deduct and or take into account the period spent on remand of 2 months and 27 days

#### Supplementary ground of appeal:

The learned trial Magistrate erred in law and in fact when she convicted the appellants of the offense of obtaining money by false pretenses in count 3 while the charge was incurably defective hence occasioning a miscarriage of justice

#### The framine of the srounds of appeal:

Before I address the merits of the appeal, I find it necessary to point out deficiencies in the drafting of the grounds of appeal in an endeavor to address the challenge of poor drafting, even though the respondents did not raise any objections.

The Criminal Procedure Code Act, Cap 116, Section 28(4) thereof provides as follows;

'Whcre the appellant is represented by an adaocate or the appeal is prefened by the Director of Public Prosecutiotts, the grounds of appeal shall include particulars of the mflttcrs of lau or of fact in rt,xnrd to zdrich the court aupcaled from is allesed to hazte crrcd'

It is trite that the grounds of appeal must be concise, without argument or narrative, and specify the points which are alleged to have been wrongly decided. A ground must challenge a holding or ratio decidendi. Grounds which are too general allow

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the appellant to go on a fishing expedition to the detriment of the respondent. Vague and generalized grounds cause speculation and require courts to search for the gaps in all the evidence tendered, instead of referencing the errors. Sukuton Ali versus Kapkwonyongo and 2 others, CACA 11.7 /20L2; Arim Felix Clive versus Stanbic Bank (u) Ltd CACA 1011201,3; National Insurance Corporation versus Pelican Series CACA 5l2OO3.

In the case of Biryomumisho versus Uganda, Criminal Appeal406 I 2019, the court of appeal dealt with a ground which faulted the trial court for convicting the appellants "where the ingredients of the offense were not proved". They observed that this ground was too general and did not point out any missing evidence for which the court found any particular ingredient proved. This ground required the court to peruse the evidence to find the possible errors concerning every ingredient for consideration. Accordingly, the offending ground was struck out.

I have considered grounds 1,3,5,7 and 8 and find that they offend the rules for framing of charges as they are too broad, speculative and do not point out specifically and concisely the points of law or fact where the trial magistrate erred. I accordingly strike them out.

#### Representation:

Advocates Evans Ochieng and Opira Ambrose appeared jointly for the 1d appellant, while the latter appeared for the 2"d appellant alone.

Advocates Tony Kalungi, Amanya Mishambi and Thomas Davis Lomuria represented the respondent.

Both parties made oral submissions, which I have considered in this appeal.

## The dutv of this court on aDDeal:

The duty of a first appellate court is to carefully and exhaustively reevaluate the evidence as a whole and come to its own decision on the facts, being mindful of the judgement appealed from and the fact that it did not have the opportunity to see the witnesses testify. See Kifamunte Henry V Uganda SCCA No, 1,0 of 1.997; Bogere Moses and Anor V Uganda, Supreme Court Criminal Appeal No. 1 of 1997; and Pandya versus R (1957) EA 336).

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In Selle and another versus Associated Motor Boat Co Ltd and others (1968) EA ¹²³it was held that the appellate court is not bound to follow the trial Judge's findings of fact if it appears tl.rat he either faiied to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally.

Mindful of the above principles, I proceed to subject the evidence to fresh and exhaustive scrutiny without ignoring the judgment that has been appealed from.

I am also mindful that the burden to prove the charge against any accused person lies on the prosecution. Woolmington V DPP [1935] AC 452. This right stems from the presumption of innocence principle enshrined in Article 28 (3) (a) of Uganda's Constitution. Any conviction must be based on the strength of the prosecution's case and not the weaknesses of the defense case (Ssekitoleko V Uganda [1967] EA 531). The law is that the accused does not bear any burden to prove his innocence except in a few statutory exceptions. I am further mindful that the standard of proof to secure a conviction is well settled as proof beyond a reasonable doubt. This standard was elaborated in Miller V Minister of Pensions 1194712 All ER 372 as being satisfied once all the evidence suggesting the innocence of the accused, at its best, creates a mere fanciful possibility but not any probability that the accused is innocent.

In the consideration of this appeal, the testimonies of the witnesses and the tendered exhibits will be reevaluated in light of the grounds aforementioned, while considering whether the prosecution met the burden of proof to the requisite standard, and whether, therefore, the conviction of the appellant by the trial court was ProPer.

#### Resolution of Grounds 2 and 4 of the appeal:

I will address these grounds together since they are related. Counsel for the appellants fault the trial magistrate for convicting their clients of the offense of causing to be made a false document under Counts 1 and 3 when the said documents were not admitted in evidence or proved as required by law. The documents in issue are Uganda Revenue Authority Receipts Nos. 2200000224979 and2200000225957 dated 21't September 2019 and 26'r'September 2019 respectively. The said receipts are for the sums of Ushs 383,250,000/= and Ushs 385,665,0001=. The charges in counts 1 and 2 are brought under Section 203(b) of the East African Community Customs Management Act, 2004.

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It was submitted that the two documents they were alleged to have caused to be falsely made were never tendered in court as exhibits. They remained on record as identification documents marked PID I and PID 2 and consequently were never proved. That being the case, the trial court was wrong to rely on them to convict the appellants.

They cited Byamugisha David versus Kebirungi Venny, HCT-01-cv-ca-002-2022 where the Judge relied on the decision in the Kenyan cases of Kenneth Nyaga Mwige versus Austin Kiguta and 2 others (2015) eKLR, and Sofie Feis Caroline Lwanga v Benson Wafula Ndote (2022) eKLR to hold that a document only forms part of the evidence when exhibited and when it has been tested. They submitted further that this was a grave error that occasioned a miscarriage of justice and the conviction based on it should not be allowed to stand.

Counsel for the respondents conceded that the documents were indeed not tendered in court as exhibits; however, they argued that this was not fatal to the prosecution's case since PEX 1 and 2, which are related payment registration slips, make up for the non-tendering of the documents cited above. I took their submissions to mean that PEX1 and 2 could be substituted for PID 1 and 2, and that PEX1 and PEX2 validated PID 1 and PID 2 as authentic and legally reliable. I further take their submission to suggest that in a case under Section 203 (b) of the EACCMA, it is unnecessary to tender the alleged false document in court as an exhibit, and that the offense charged can be proved without the admission of the same in evidence.

In resolving this ground, I have considered the judgment of the lower court to establish how the court treated the identification documents. Concerning PID 1, court found as follows:

"Although a photocopy of this document was identified, it was never exhibited. However, in her testimony, PW 3 told the court that although the PRN existed, the payment was made through DFCU for payment of university fees, and not through DTB as a URA payment. These findings are detailed in a letter by PW 3 to the Assistant Commissioner, Enforcement of the URA, accepted as PEX 3.

PW 3's testimony was corroborated by PW1 Kuluthum Nalwanga, a former teller at DTB.... Therefore, based on the evidence of PW1, PW3 and PEX 3... I find that URA payment Receipt No 2200000224979 dated 21^st September 2019 for UGX 383,250,000/= for a transaction purportedly carried out at DTB Kampala was a false document.

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$\overline{7}$ Concerning PID 2 the court observed as follows:

"The document in issue is a Uganda Revenue Authority payment receipt No 2200000225957 dated 26^th September 2019 for Ushs 385,665,000/= purportedly carried out at DTB. Similar to the one under count 1, while a photocopy of this document was identified, it was never exhibited."

She then went on to analyze the evidence of PW 1, the CCTV Footage admitted as PEX 4(d) and the testimony of PW 3, after which she concluded as follows:

"Therefore, for purporting to be what it is not, I find that the DTB receipt in the names of Mottwala Gold TRDG LLC for Ushs 385,665,000 dated 26^th *September 2019 was a false document."*

It is clear from the judgement that the trial court chose to treat PID 1 and PID 2 as if they had been admitted on the court record, effectively implying that it did not matter whether the alleged false documents themselves were tendered or not. The court found that documents not admitted were falsely made and that they related to customs.

The law regarding documents not received in evidence as exhibits has been settled. In the case of **Byamugisha David versus Kebirungi Venny** (supra), the Judge, quoting from the Kenyan Kenneth Nyaga case (Supra), held as follows:

The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence *for the case? Any document filed and/or marked for identification by either* party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document *becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the* final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone

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but it would take into consideration all facts and evidence on record.

The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not *proved merely because it has been marked for identification.*

Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.

In conclusion, therefore, until a document marked for identification is formally proved, it is of very little, if any, evidential value. A trial court that relies on the same in arriving at its conclusion, errs in law.

In the Byamugisha David case, the Judge found that the trial magistrates' failure to exhibit the report of the agricultural officer was fatal as it did not form part of the evidence presented by the respondent to court, and he could not rely on it. He set aside the lower court's award pegged on the erroneous report. Similarly, in the Kenneth Nyaga case it was held that it was a fatal error on the part of the respondents not to call any witness to produce the documents marked for identification. The trial judge erred in evaluating the evidence on record and basing his decision on a document not formally produced as an exhibit.

The above decisions are on all fours with the current appeal. I add, however, that in cases related to forgery of documents or causing to be made false documents, the documents must be tendered in court as exhibits. In **Senfuka Abubaker versus** Uganda, Civil Appeal No 179 / 2021, the Justices of the Court of Appeal dealt with a second appeal where the original sale agreement alleged to have been forged had not been tendered in evidence. They held that:

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"It is our considered oiezu that the absence ofthc original sale agreement in qucstiotr created reasonable doubt as to tuhether the sane uas the actual documurt that the handtoriting expert examined and made a report thereof. The oiginal sale agreement is the center of the cortentiotr on urhether it is forgcd or not. Thc document shoulil hatse been tendered in court by the author, the Handuiting expert uho examine d it, or thc inaestigating officer tuho took it to proae that it uas forged. This diil not happen."

The above decision illustrates the need to have had the original contested document tendered and proved in court. The court found that the judge on l" appeal had come to the wrong conclusion that the appellant was guilty of forgery c/s 342 of the Penal Code Act and guilty of uttering a false document. The conviction and sentence were quashed.

In Wanzama and four others versus Uganda, Criminal Appeal No. 12 / 2000, the Supreme Court held that normally a negative inference is made when a party in possession of relevant evidence fails or omits to adduce the available evidence. They pointed out that the standard in criminal cases is very high, proof beyond a reasonable doubt. They further observed that documentary evidence is very important because it's the best form of evidence. Documents speak for themselves.

A document marked for identification and never proved in evidence and whose authenticity and contents were not formally proved cannot be relied upon by the court. It remains unclear why the prosecution failed to tender the same.

In conclusion,, PIDI and PID2 were never tendered or admitted in evidence as exhibits, they therefore did not form part of the record and the trial magistrate erred in treating them otherwise and in finding that they had been proved as having been falsely made. In line with the authorities discussed above, the conviction of the appellants based on the same in counts 1 and 2 of the charge sheet is improper.

Contrary to the submissions of the respondents, the non-production of the receipts in issue in evidence cannot be validated by the oral evidence of prosecution witnesses about the same, or even other related documents admitted in evidence.

The above holding, in my view, effectively disposes of grounds 2 and 4 of the appeal; however, for completeness, I will address other pertinent legal issues raised in submissions by the appellant's counsel relating to charges brought under Section 203 (b) of the East African Community Customs Management Act. This section requires the prosecution to prove that the matter in which the false document is made or caused to be made related to customs.

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The section reads:

"A person who in any matter relating to customs makes or causes to be madc nny declaration certificate, applicatiotr or other document tohich is false or inconect in anu p4yt4ul4r comnits an offense and shall be liable on conaiction to impisonment for a tcrm not exceecling three years or to a fine not exceeding ten thousand dollars."

The trial court was faulted for convicting the appellants when there was no evidence tendered that the matter related to customs. She held in her judgment that "The matter uniloubtedly relates to customs" without referring to any evidence to support her conclusion, and that "By the nature of these particulars relating to a URA receipt I find this ingreilient uas prooed"

It was submitted for the appellants that there was no matter pending or related to customs, and that even the Customs Officer Icoot Ezekiel who testified for the prosecution as PW 5 never stated that there was any such matter. The evidence demonstrated that tricks were being played by officials to purport that there was a matter in customs, whereas not. Further, that it was incumbent upon the prosecution to demonstrate that there was a matter being handled relating to customs payments, and in that process, a false declaration was made. There was nothing requiring tax to be paid.

In reply, counsel for the respondents submitted that the entire case revolved around the fact that the complainant was alleged to be paying export duty whereas not, and that therefore this ingredient was satisfied. They explained that the procedure for payment of customs is that the taxpayer makes a self-assessment, a PRN is generated, and he or she then proceeds to designated banks and pays the same to the Uganda Revenue Authority.

I have carefully considered the judgment appealed from. I note that the court summarily made a finding that the matter in respect of which a false document was made related to customs and there was no evaluation of this essential element. It would appear that the court presumed this was an obvious matter.

The question raised in this appeal, in my considered view, is what amounts to "a matter relating to customs" and whether, for a prosecution under Section 203 (b) of EACCMA to stand, there must be a genuine and valid transaction requiring payment of customs, as submitted by counsel for the appellants.

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I have considered the wording of this section, and given it the literal meaning ascribed to the words therein. The phrasc "a matter rclated to customs" means in simple English a matter "connected to linked to associated to." Contrar y to the submissions of the appellant's counsel, the wording places no limits or boundaries, does not categorize the matter, nor does it specifically state that the falsification should be made in respect of a genuine transaction where customs taxes are due and are being paid. It was submitted that there ought to be a matter pending in customs and that a false declaration is made in respect of that matter.

I have carefully studied the provision. It provides not only for false declarations, and applications, but also encompass other documents zohich are false or inconect in anq particular which are connected to or relate to customs

Whether there is a matter related to customs can only be determined when the facts of each case are considered. In the instant case, the receipts alleged to be falsely made are URA payment Receipts Nos 2200000224979 and 2200000225957 issued over non-existent transactions. The complainant alleges that he was informed that he needed to pay customs dues, and was taken to DTB in a fraudulent scheme relating to payment of the same. False documents are alleged to have been made conceming the same. The complainant suspected that he was duped and reported the matter to customs. The complainant believed that the payments he had made were for URA, even though it furned out that they were not. In the circumstances, the false documents made in the course of these specific transactions, can be said to relate to customs. There is in my view no requirement that the matter must be genuine, indeed that's what this provision is intended to address. Any false documents made in relations to anything pertaining to customs qualifies under Section 203 (b) of the Act.

To suggest that URA would have no right to investigate any such claims or even charge persons accused of making any such false documents or claims would be to curtail its duty to ensure compliance and adherence to the law. I do not see how URA would be faulted for investigating or even prosecuting the appellants for the alleged fraudulent transactions, since the claims related to payment of customs dues.

It was also pointed out that the particulars of counts 1 and 3 were badly framed and did not bring out clearly the fact that there was a matter relating to customs, contrary to the law. They submitted that such an omission would be prejudicial to the accused persons and cause a miscarriage of justice.

3 (-Lul.-.

It is important to reproduce the particulars of offense in issue. Count 1 reads:

"Lorika Yusuf Atek alias Ahmed Ali and Jawabu Abas alias Abdul Abas and others still at large between the 21^st and 26^th of September 2019 in Kampala caused to be made a false document to wit Uganda Revenue Authority Payment Receipt No. 2200000224979 dated 21^st September 2019 for a nonexistent transaction of Ushs 383,250,000/= purportedly carried out at Diamond Trust Bank"

Count 2 is similarly phrased, and I see no need to reproduce it here.

From the foregoing, the essential element of the offense under S. 203(b) of the Act that the false document was made in a matter related to customs is missing.

In Yozefu and another Versus Uganda (1969) 1 EA 236 it was held that a charge that does not allege the essential ingredients of the offense is defective. In an earlier decision of this Court in Sande Robert versus Uganda ACD Criminal Appeal No 132/2016, I held that the test as to whether the charge sheet is fatally defective is a substantive one. What should be in the mind is whether the accused is charged with an offense known in law and whether it has been disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges against him. If the answer is in the affirmative, it cannot be said that the charges defective. The provisions of the Magistrates Courts Act require that the particulars of offense should contain all the facts necessary to give reasonable information on the nature of the offense charged.

An accused person answering to a charge under Section 203 (b) of the Act needs to know from the outset that the false document he or she is alleged to have caused to be made, or made relates to customs. This enables him to prepare adequately to counter the charges against him. I agree with the appellants that omission of this essential element made the charges fatally defective.

## **Grounds 5, 6 and the supplementary ground of Appeal:**

Counsel for the appellants contended that the conviction on the charge of obtaining money by false pretenses under count 3 of the charge sheet was improper because the customs officer who preferred the charges, does not have the mandate to prefer charges for offenses outside tax laws. Counsel for the respondents conceded these two grounds, and agreed that a customs officer cannot prefer charges under the Penal Code Act. I too agree that to that extent, the charges were improper.

Helen

By this concession, these two grounds of the appeal succeed.

On the same rationale, the decision on the offense of Conspiracy to defraud brought under the same Penal Code act cannot stand.

In the conclusion, the convictions on all the counts cannot stand. It is therefore not necessary to address the grievances relating to the senterrces passed by the trial court, under Grounds 9 and 10 of the memorandum of appeal.

## ORDERS

- 1. The appeal succeeds - 2. The conviction and sentence of the appellants on Counts 7,2, 3 and 4 is set aside - 3. The appellants are to be set free forthwith

4. Bail moneys deposited by the appellants should be refunded to them.

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Jane Okuo Kajuga judge

Delivered in open court on 7.4,2025