[2024] UGHCCRD 56

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

HCT-00-CR-CN-0116-2023

(ARISING FROM CRIMINAL CASE NO. 650/2020)

...................................... SSALI MAJID....................................

#### **VERSUS**

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

## JUDGMENT OF HON. LADY JUSTICE. MARGARET MUTONYI JHC.

- 1. Ssali Majid here in after referred to as the Appellant being dissatisfied with the judgment and orders of Her Worship Lorna Patience Tukundane dated 10^th May, 2022 filed an appeal against the whole of the said ruling and orders before this court. - 2. The appellant was represented by learned Counsel Rogers Kamulegeya while the Respondent was represented by the learned state Attorney Caroline Tabaro. - 3. Both parties were fully represented in this appeal which proceeded by way of written submissions which this court examined very well.

The grounds of Appeal were as follows:

- 4. The learned trial magistrate erred in law and fact when she convicted the appellant in disregard of the glaring inconsistencies in the prosecution evidence thereby occasioning a miscarriage of justice. - 5. The learned trial magistrate erred in law and fact when she held that the accused's alibi had been broken by prosecution thereby occasioning a miscarriage of justice. - 6. The learned trial magistrate erred in law and fact when she wrongly rejected the accused's electronic evidence thus occasioning a miscarriage of justice. - 7. The learned trial magistrate erred in law and fact when in evaluation of evidence she held that the ingredients of the offence had been proved beyond reasonable doubt.

$\mathbf{1}$


- 8. The learned trial magistrate erred in law when she was biased in reaching a verdict of guilty and the consequent conviction thus occasioning a miscarriage of justice. - 9. The learned trial magistrate erred in law and fact when she issued an order for compensation of USD 20,000. - **10. Prayers on Appeal** - He prayed for the following orders: - a) That the appeal be allowed .b) The judgment and sentence be set aside.

## The brief background of the case.

- 11. The Appellant was charged with the offence of obtaining money by false pretences C/S 305 of the Penal Code Act Cap 120 as amended, Laws of Uganda. - 12. To prove its case, the prosecution led the evidence of 6 witnesses including the complainant. - 13. The trial magistrate made a finding that the prosecution had proved all the ingredients of the case to the satisfaction of the court and as a result the accused person was convicted as charged. The trial magistrate sentenced the accused to a fine of $2,500,000/$ = and in default to serve a custodial sentence of 3 years. The convict was also ordered to compensate the complainant 20,000 USD upon release. - 14. The Appellant was not satisfied with this decision and the orders of the trial magistrate hence this appeal

#### The duty of the first Appellate court.

15. It is trite law that the duty of the first Appellate court is to look at the proceedings and evidence on record and reappraise it afresh by subjecting it to exhaustive scrutiny. It is at liberty to draw its own inferences of fact and arrive at its own independent conclusions as to whether it should maintain the decision of the lower court or there is need to vary it and overturn it all together.

$\overline{2}$


- 16. The Appellate court has the duty to re-examine the record, from the time of plea taking, taking and recording evidence, evaluation of evidence, application of the law to the evidence or facts and any decision made therefrom. - 17. The role of the first Appellate court was well stated in the case of Pandya VR [1957] E. A 336 and has been followed in a plethora of cases such as *Kifamunte* Henry vs. Uganda SCCA NO 10/1997, Okeno vs. Republic [1972] E. A 32 and Charles B. Bitwire vs. Uganda SCCA NO 23/1985.

It basically reevaluates the evidence bearing in mind that it did not witness the demeanor of the witnesses and arrives at its own conclusion.

Legal principles.

- 18. It is a requirement of the law that the prosecution must prove its case beyond reasonable doubt because the accused has no duty to prove his innocence. Article 28(3) (a) of the Constitution of the Republic of Uganda is very clear on this legal principle which is premised on the common law principle of presumption of innocence until proven guilty or until one pleads guilty. See the case of Woolmington versus DPP [1935] AC 462. - 19. The standard of proof expected in criminal trials was stated in the case of *Miller* versus Minister of Pensions (1947) 2 ALL E. R 372 at page 373 by Lord Denning as follows: - 20."That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the *community if it admitted fanciful possibilities to deflect the course of justice.* If the evidence is so strong against a man as to leave only a remote possibility of his favor which can be dismissed with the sentence "of course it is possible," but not in the least probable" the case is proved beyond reasonable doubt but nothing short of that will suffice."

Scanned with CS CamScanner

$\overline{3}$

# **Resolution**

21. The major ground of appeal That the learned trial magistrate erred in law and fact when she convicted the appellant in disregard of the glaring inconsistencies in the prosecution evidence thereby occasioning a miscarriage of justice.

Determining it will dispose of the other grounds as well.

In essence the Appellant was not content with the evaluation of the evidence and the trial process.

- 22. Before the Appellate court exercises its discretion, it has to carefully study the lower record of proceedings, the decision or orders and subject everything to fresh scrutiny. - 23. After reading through the certified court proceedings and the judgment, with a view of satisfying myself about the propriety of the proceedings and the final outcome of the lower court, I strongly formed an opinion that this was a proper case for this court to re-evaluate the evidence and subject it to fresh scrutiny. - 24. In this case, the Appellant was charged with obtaining money by false pretenses contrary to sections 305 of the Penal Code Act as amended. - 25. Section 305 of the Act provides that: Any person who by any false pretense, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, commits a felony and is liable to imprisonment for five years. - 26. False pretence was defined then under section 304 then (now section 284 of the Penal Code Act) as "Any representation made by words, writing, or conduct of a matter of fact either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true, is a false pretence"

$\Lambda$

Scanned with CS CamScanner

- 27. This Section brings out the elements of the offence that must be proved by the prosecution. - 28. In Kavuma Davis vs. Uganda C. A No. 38 of 2021 (High Court Kampala), the **High Court held that:** - 29."For court to convict an accused person of the offence of obtaining money by false pretense the following elements must be proved beyond reasonable doubt: - - a) Obtaining or taking away something capable of being stolen. - b) Taking must be by false pretense - c) There must be intent to defraud - d) That the accused person participated in the commission of the offence." - 31 The prosecution in this case had to lead evidence to prove that 20,000 (Twenty thousand USD) that is capable of being stolen was obtained from the complainant by the Appellant/Accused by falsely pretending he was selling to her gold knowing that what he was purporting to be gold was actually fake. - 32 In an effort to prove the above ingredients, the prosecution led evidence of 6 witnesses. Out of the six, PW3 Kike Kenneth's evidence was very irrelevant. He was not even cross examined. - 33 PW1 Salma Mohammad, the complainant's evidence was to the effect that the Appellant was her friend with whom they had been working together. That on the 10^th day of July, 2019, the complainant PW1 together with Aisha Ismail (PW2) and Hassan Ali met with an Arab businessman called Saidi Abudallah at Palm Hotel on Entebbe Rd. between 7 to 8 pm. The business man had come to buy quality tea leaves and so PW1 called the appellant to come and help because he lived in Fort Portal and knew the business of tea. He joined them and they discussed the business of buying tea. - 34 That the appellant introduced the topic of gold as well. He gave calculations and told them that the business was more profitable than tea business which impressed the Arab. The appellant had a sample of gold which he showed to

the Arab. The Arab asked how many kilos he could deliver and the appellant said 2 kilos at a cost of 25,000 USD together with paper work. The Arab gave 20,000 USD to PW1 and said that the remaining 5000 USD would be paid after delivery. PW1 said that she handed the money over to the appellant in the presence of PW2 and a one Hassan Ali.

- 35 The appellant delivered the gold after 2 days behind grand imperial as you are heading to Sheraton. He gave the box containing the gold to PW1 and she took it to Communications house on the 6^th floor for testing were she was informed that it was not genuine gold. - 36 PW1 then called the accused and informed him and he denied but later accepted and told PW1 to return the box and he told her he would take it back to the Congolese and get real gold. She took a handful of the grains before giving back the gold. - 37 The accused said he would get the money or the gold back and she would send him money for facilitation each time he travelled. - 38 In cross examination PW1 said that you can't transport gold without paperwork and she trusted the appellant to do the paper work. She also stated that she went with Aisha and Hassan to communications house and paid to have the gold tested but had no receipt of payment. - 39 She communicated with the Arab through WhatsApp and informed him that the gold was fake. She said she did not have his number but had the number she communicated with him on WhatsApp. She also stated that she had the conversation with the Arab on WhatsApp. - 40 PW2 Aisha Ismael, a cousin to the complainant gave evidence that on 10^th July, 2019 they met with their Arab friend a one Said Abdullah at Pearl Hotel to discuss tea business and they called the appellant who had a home in Kasese and Fort Portal. When the appellant came he brought a sample of gold and introduced the idea of gold to Said Abdullah. He told him to bring the gold but the appellant asked for a deposit of 25000 USD. That Said paid 20,000 USD to PW1 who passed on the money to the appellant. The gold was delivered after 2 days around grand imperial. The appellant delivered the gold in a blue box and when they looked inside there were small particles. They took it to communications house for testing and it was found to be fake gold. They contacted the appellant and met with him after a week at the same place the gold was delivered. They gave him the gold after taking out a sample to give to the police and the appellant asked for facilitation to return the gold.

- 41 PW2 stated that the accused/appellant asked for money for facilitation to take back the gold and they gave it to him. She stated that in January, 2020. The Arab was demanding money from PW1, Hassan and herself and he said he would sue them. - 42 In cross examination she said that they met with the appellant at 3 P. M at grand imperial. - 43 PW4 DC Draga James attached to Nalumunye Police Station informed court that on 1^st July 2020 he received a complaint from PW1 for obtaining money by false pretenses. PW1 directed him to the home of the appellant and he went to his home with other officers under his command and arrested the complainant, then handed him over to the Investigating Officer. - 44 In cross examination he said that the complaint was received on 30/06/2019 around 9:00pm. - 45 PW5 No 65597 DC Ojoko Ojara's evidence was to the effect that he received a complaint from PW1 on 18/06/2020 about obtaining money by false pretenses to wit USD 20,000 against the appellant and he opened up a case vide (84/18/2020). When the accused was brought to the station, he proceeded with other police officers to search for any relevant exhibits, but they didn't get any. They were looking for fake gold. - 46 He also found out that the appellant had been receiving money to follow up on the person who had sold him the fake gold. - 47 He said that he exhibited the fake gold and submitted it to the directorate of survey and mines for examination. The fake gold was admitted into evidence as P. E. X.1 (33 gravel particles) - 48 PW6 Grace Lajwe a chemist by profession and the Principle chemist at the Ministry of Energy and Mineral Development under the directorate of

geological surveys and mines gave evidence that on 27^th July she received a sample in an envelope which contained nuggets that were golden in color. They took them to the laboratory and weighed them. Gold had a specific gravity of 10.32gm and the nuggets weighed 9.9gm the nuggets were put in concentrated nitric acid and it released gases. She stated that if it were gold there would not be any burning.

- 49 They found that the materials had a high concentration of copper. They generated a report which was admitted as P. E. X.2. - 50 That was the end of the prosecution case. - 51 The trial magistrate ruled that there was a case to answer after evaluating the evidence on the court record, and the accused was put on his defense. - 52 This court finds that the trial court did not evaluate evidence before making a ruling on a prima facie case. - 53 The Learned Magistrate Grade One did not take into consideration the definition of a prima facie case as defined in the case of RAMANLAL TRAMBAKLAL BHATT V R [1957] 1 EA 332 "As one on which a reasonable tribunal properly directing its mind to the law and evidence could convict if no explanation is offered by the defense". - 54 It is also trite that at this stage, the court is not required to decide finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively as that final determination can only properly be made when the defence has been heard. - 55 Much as the court cannot make a final decision on the matter, at least the prosecution that has a burden of proof, with a high standard of proof should not rely on a mere scintilla of evidence. The evidence presented to court must be worthy, proving all the essential ingredients of the offence such that should the accused fail to put up any defence to raise doubt, the court would find him guilty and convict him accordingly. - 56 In the same Case, it was held that a prima facie case cannot be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence.

- 57 Let me consider the first ingredient of Obtaining or taking away something capable of being stolen: - 58 From the evidence of PW1 and PW2 that has been reproduced above, the owner of the money was mentioned as a one Said Abdullah. - 59 There was no evidence whatsoever furnished to court about his existence, no phone contact, no written correspondences or recordings of the same, no call logs or WhatsApp conversations even though PW1 said during cross examination that she knew the Arab as they had done business together in labor export. She also said that she didn't have his number but she had the number she communicated with him on WhatsApp. The source of 20,000 USD was therefore never proved at all. - 60 The alleged Said Abdallah never recorded any statement to police neither was there any intention to call him as a witness. - 61 Giving PW1 20,000 USD dollars to hand over to the accused/Appellant did not in any way turn Salimah Mohamad into the owner of the money. - 62 The particulars of the offence in the charge sheet dated 3^rd July 2020 reads: - 63 "Ssali Majid alias Christopher on the 10^th day of July 2019 at Pearl Hotel alona Entebbe road, Rubaga Division in the Kampala District, with intent to defraud, obtained money USD 20,000 (Twenty thousand USA Dollars) from Salimah Muhamad by falsely pretending he was going to sell to her gold, whereas not" - 64 The particulars do not mention **Said Abdallah** as the person who was to buy the gold and who parted with his dollars to buy gold. PW1 in her evidence does not say anywhere that she was the one who was buying the gold but the Arab friend who never recorded a statement. - 65 The investigating officer DC Ojok Ojara was just a joke. He exhibited his ineptness in investigation. He never bothered to find out anything about the said **Said Abdallah the purported** owner of the 20,000 dollars. He actually told court hearsay evidence about alleged negotiations where the accused/ appellant purported to hand his certificate of title to the complainant which he claimed he never attended or participated in any way. Besides, the law in Uganda regulates dealings in minerals like gold and a purchaser would be caught by the common law rule of " buyer be aware"

- 66 The investigating officer did not establish what the complainant relied on to part with 20,000 USD which this court is doubting any way. She had never known him as a dealer in gold and the reason why they purportedly met, which the accused denied was tea business. There was nothing that the Investigating officer discovered through his investigations that proved the accused/ Appellant had fake gold which he gave to PW1 and that he received the dollars. - 67 He did not investigate the relationship between the Accused/Appellant and PW1 that would make her pay him 20,000 USD without any written document. - 68 My conclusion is that, he did not investigate this case at all. - 69 PW1 who seemed to have known that gold can be tested and verified, claimed the Arab opted to pay for it before even seeing and testing it. This is unbelievable in the absence of any credible evidence of money changing hands. - 70 There was no evidence whatsoever proving that the alleged sample that was taken for testing according to the evidence of PW6 the Government Chemist was got from the accused. - 71 Whether PW5 established that the accused was receiving money from the complainant, which was also not proved in court, there was no evidence that the money had any connection with the alleged offence. - 72 PW1 however confirmed to court that she is a business acquaintance with the Accused/Appellant in labor export. - 73 It is incomprehensible that a person can lose 20,000 USD to a fake deal in July 2019, continue to give the fraudster money and wait for almost a year before reporting to police. That a person can return the exhibit of fake gold to a person he or she has established has sold fake items to her or him. - 74 What made the trial magistrate believe that there was fake gold in the absence of the exhibit defeats any logic. - 75 The conduct of PW1 and PW2 her cousin is not a conduct of people with clean hands. - 76 There was no evidence whatsoever that they received from the accused any purported gold and took it for testing in the first place. - 77 There was no evidence whatsoever that the sample they took to police in 2020 and eventually to PW6 was from the Accused/Appellant.

$10$

- 78 The whole transaction involving a substantial amount of money is so casual that no reasonable tribunal could take it at face value without corroborating evidence. - 79 It is therefore this court's finding that the first ingredient of obtaining 20,000 USA (Twenty thousand United States of America dollars) by the accused/ Appellant was not proved because the alleged source of money was never proved since the prosecution failed totally to adduce any evidence pertaining to the identity of Said Abdallah, his travel and stay at Pearl Hotel Uganda, let alone entry in Uganda and exit from Uganda through Immigration, his communication with PW1 about the purported gold business deal and payment of the 20,000, USD. - 80 The prosecution departed from its particulars of the case and introduced a complete stranger to the case by merely mentioning names but failed to adduce any evidence about him thereby raising doubt about the whole alleged gold transaction. - 81 It is trite law that once an essential element of an offence is not proved, it cannot be said that a prima facie case has been established. - 82 It is therefore this court's finding that the trial magistrate failed to evaluate the evidence properly at the close of the prosecution case thereby putting the accused on defense without sufficient evidence on one of the essential ingredients of the offence of obtaining something capable of being stolen, the 20,000 USD. - 83 Whatever proceedings that followed thereafter were erroneous as the conviction was not based on any credit worthy evidence. - 84 In view of my finding, I allow the appeal with the following orders: - 85 The conviction is quashed and the appellant is hereby acquitted of the offence of obtaining with false pretence contrary to section 305 of the PCA as it was then. - 86 The order of compensation of 20,000 USD (Twenty thousand US dollars) made against the Appellant is hereby set aside. - 87 The fine of Uganda shillings 2.500.000/=(Two million five hundred thousand) should be refunded to the Appellant.

Dated at Kampala this 6^th day of September 2024

$\overline{C}$

Hon Lady Justice Margaret Mutonyi, JHC.

Criminal Division.

Scanned with $\textcolor{blue}{\textbf{\textcolor{blue}{CS}}}\ \textcolor{blue}{\textbf{CamScanner}}^\textcolor{blue}{\textcolor{blue}{\textbf{}}^\textcolor{blue}{\textbf{}}^\textcolor{blue}{\textbf{}}^\textcolor{blue}{\textbf{}}$