[2024] UGHCCRD 72

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CRIMINAL DIVISION)**

**CRIMINAL APPEAL NO. 39 OF 2024.**

**(**Arising from Mwanga II Court Criminal Case No. 766 of 2023**)**

**MAWANDA PAUL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**JUDGMENT BY JUSTICE GADENYA PAUL WOLIMBWA**

This is an appeal against the judgment of HW Adams Byarugaba, Principal Magistrate Grade I at Mwanga II. The appeal is against conviction and sentence.

The brief facts of the case are as follows: Mawanda Paul (referred to as the Appellant) and Nalukenge Sandra, referred to as A1, were accused of forging a national identity card belonging to Sheila Victoria Mukyala and using it to defraud. The prosecution alleged that the duo, armed with the identity card, claimed ownership of the land in Busiro registered in the names of Sheila Victoria Mukyala and sold it for UGX 40M to Mulindwa Godfrey and Nankumba Mary. The buyers paid UGX 25M, leaving a balance of UGX 15M.

The buyers later discovered that the Appellant and A1 had defrauded them as the land did not belong to them. The Appellant hid after the fraud was discovered, while A1 was arrested at home. The Appellant and A1 were charged with forgery contrary to sections 347 and 348 of the Penal Code Act; uttering a false document contrary to section 351 of the Penal Code Act; conspiracy contrary to section 390 of the Penal Code Act; and obtaining money by false pretenses contrary to section 305 of the Penal Code Act.

A1 denied the offences, explaining that she assisted the Appellant in obtaining a loan. The Appellant denied defrauding the buyers, stating that he acted as a broker and received a commission of UGX 3M. The Appellant and A1 were found guilty of all the offences. They received various custodial sentences and were ordered to compensate the land buyers. A1 chose to serve her sentence, while the Appellant was dissatisfied with the conviction and sentence. He filed the present appeal.

The grounds of appeal are: -

1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on the record. This led to the erroneous finding that the prosecution had proved a case of obtaining money by false pretenses against the appellant beyond reasonable doubt. 2. That the learned trial Magistrate erred in law and fact by imposing a manifestly excessive and harsh sentence on the appellant.

**Representation**

The Appellant was self-represented. Ms. Joanita Tumwikirize, a Senior State Attorney in the Office of the Director of Public Prosecutions represented the Respondent.

**Submissions**

The parties filed written submissions. I will refer to them in the consideration of the Appeal.

**Duties of an appellate court.**

This is a first appeal. In **Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997) [1998] UGSC 20 (15 May 1998)**, the Supreme Court guided that:

*The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanor, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on the credibility of witnesses which the appellate Court has not seen. See Pandya vs. R. (1957) E. A. 336 and Okeno vs. Republic (1972) E. A. 32 Charles B. Bitwire ys Uganda - Supreme Court Criminal Appeal No. 23 of 1985 at page 5.*

*Furthermore, even where a trial Court has erred, the appellate Court will interfere where the error has occasioned a miscarriage of justice: See S. 331(I) of the Criminal Procedure Act.’ It does not seem to us that except in the clearest of cases, we are required to reevaluate the evidence like is a first appellate Court save in Constitutional cases. On the second appeal, it is sufficient to decide whether the first appellate Court, on approaching its task, applied, or failed to apply such principles: See P. R. Pandya vs. R. (1957) E. A. (supra) Kairu vs. Uganda (1978) FI. C. B. 123.*

In line with the Supreme Court’s decision above, I shall evaluate the evidence of the Trial Court bearing in mind that I never had the chance to observe the demeanour of the witnesses.

**Consideration of the Appeal.**

This appeal will be considered under two distinct headings sufficient to cover the grounds of appeal laid out by the Appellant.

The grounds are:

1. Whether the Appellant was rightly convicted of the fences of forgery, uttering a false document, Conspiracy and obtaining goods by false pretenses. 2. Whether the learned trial Magistrate erred in law and fact by imposing an illegal and manifestly harsh sentence on the Appellant.

**Ground 1: Whether the Appellant was rightly convicted of the fences of forgery, uttering a false document, Conspiracy and obtaining goods by false pretences.**

The main argument of the Appellant was that the trial Magistrate convicted him of four offenses without satisfying himself that all the ingredients of the offenses had been proved. Therefore, in dealing with this ground of appeal, I shall deal with each offense separately to determine whether the Trial Magistrate arrived at the right decision.

**Forgery**

The Appellant was convicted of forgery c/s 347 & 348 of the Penal Code Act. The conviction of the Appellant was in error because he was not charged with the offence. Only A1 was accused of forgery. Given this, the conviction and sentence of the Appellant for committing forgery is set aside.

**Uttering a false document.**

Section 351 of the Penal Code Act provides that:

*“Any person who knowingly and fraudulently utters a false document commits an offence of the same kind and is liable to the same punishment as if he or she had forged the thing in question*.”

To prove the offence of uttering a false document, the prosecution must prove the following ingredients:

1. Uttering of a document; 2. Knowledge that the document is false or fraudulent; and, 3. The utterer has the intention to use it as genuine. 4. The accused person is responsible for uttering the document.

See **Kazibwe Elisha and Ssalongo William Kulumba, Criminal Appeal No. 013 of 2019 (High Court at Masaka).**

Section 2 of the Penal Code Act defines the word “Utter” to mean and include using or dealing with, attempting to use or deal with, and attempting to induce any person to use, deal with, or act upon the thing in question. Simply put, uttering a forged instrument is a legal term for intentionally creating a fake or altered document and circulating it to the public.

The Appellant told the court that the prosecution failed to prove some of the elements of the offence. However, the Appellant did not specify which elements were not proven. The Respondent, did not also address this point.

The evidence before the court shows that the Appellant recruited A1 into the transaction. He presented A1 as his wife and, most importantly, as Sheila Victoria Mukyala, who owned the land for sale. The Appellant went with A1 to the Mr. Bwanika, (PW3) an advocate and presented themselves as sellers of the land in question. They gave Mr. Bwanika a Certificate of Title for the land. A1 presented and gave Mr. Bwanika a national identity card in the names of Sheila Victoria Makayla to convince him that she was indeed, the owner of the said land. In all these transactions, the Appellant knew that A1 was not his wife and was also not Sheila Victoria Mukyala. He also knew that the identity card A1 was carrying was a forgery. The Appellant could only sell the land if A1 participated and cooperated with him by holding out as Sheila Vitoria Mukyala, who was named in the certificate of tittle. PW1 and PW2 purchased the land on the strength of A1s identity as the land owner. Therefore, the evidence on the record shows that the Appellant knew that the National Identity Card presented by A1 to Mr. Bwanika, and the purchasers was a forgery. The Appellant understood that the National Identity Card was part of a scheme to defraud PW1 and PW2 of their money. The Appellant was present when A1 presented the national ID to Mr. Bwanika and the buyers. Through the Appellant's active participation, PW1 and PW2 parted with UGX 25,000,000 as part payment for land that did not exist. The evidence as laid out by the prosecution brings out all the ingredients of uttering a false document contrary to section 351 of the Penal Code Act. The only question for resolution is whether the Appellant committed the offense.

Section 19 (1) (c) of the Penal Code Act states:

*When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it —*

*(c) Every person who aids or abets another person in committing the offence.*

The Appellant actively participated in recruiting and using A1 in the commission of the offense. The Appellant was actively present at every stage in the commission of the offense and in fact without his presence and participation, A1 would not have succeeded in committing the offense. The Appellant therefore, aided and abetted A1 in committing the offence of uttering a false document. The Trial Magistrate was therefore, right when he convicted the Appellant.

**Obtaining money by false pretenses**

Section 305 of the Penal Code Act provides that:

*Any*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*who by any false pretence, and with intent to defraud, obtains from any other*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*anything capable of being stolen, or induces any other*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*to deliver to any*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*anything capable of being stolen, commits a*[*felony*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-felony)*and is liable to imprisonment for five years.*

Section 304 of the Penal Code Act defines a false representation 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.*

In **Nanteza v Uganda (Criminal Appeal 33 of 2023) 2024 UGHCCRD 10 (15 February 2024)**, the High Court summarized the ingredients of the offence of obtaining money by false pretence as follows:

1. There was a false representation of a material fact, past or present. 2. The person who made the representation knew that it was false. 3. The representation was made to defraud the other person. 4. The victim relied on the presentation. 5. The victim passed ownership of their property to the statement maker. 6. The accused person is responsible.

The evidence from PW1 and PW2 established that the Appellant presented himself as the land owner comprised in Block 379, Plot 1153 at Katale. The Appellant claimed that the land was his but registered in his wife's name, Sheila Victoria (A1).

Mr. Bwanika (PW3), an advocate who managed the conveyance, testified that the Appellant approached him to render legal services in preparing a conveyance for the land in question. On the appointed day, the Appellant and A1 together with PW1 and PW2- the buyers presented themselves before the Advocate. The Advocate drafted the Sales Agreement, herein marked as Exhibit PE.01, A1, acted as vendors while PW1 and PW2 were the buyers. The Appellant signed as a witness for the vendor. Mr. Bwanika drafted a sales agreement, marked herein as (Ex PEO), which PW1 & PW2 signed A1 received the money but passed it over to the Appellant.

According to PW1 and PW2 the Appellant initially evaded using the LCs in the transaction but later on showed the purchasers the land. But as the purchasers tried to take over possession of the land, another person claimed the land because it never belonged to the Appellant and A1. When the purchasers confronted the Appellant about the land, the Appellant showed hem another alternative plot of land in Zirobwe, which they declined.

He then turned off his phone. It took the authorities some time to trace him and was arrested. The Appellant's disappearance and breaking off communication was not the conduct of an innocent man. The Appellant knew the land had a different owner and disappeared to evade responsibility.

The Appellant asserted that he was merely a broker in the transaction, but this cannot be true. Firstly, he contacted PW1 & PW2 to inform them he had land for sale. Secondly, he engaged Mr. Bwanika, a conveyancing lawyer, to assist him in drafting the sale agreement. Thirdly, he is the one who proposed alternative land to the buyers when the first transaction failed. Fourthly, A1 testified under oath that the land belonged to the Appellant. She stated that the Appellant used the land as collateral to borrow money. Fifthly, the prosecution proved that the Appellant knew he did not own the land. They provided evidence that the Appellant took A1 as his wife solely to facilitate the sale of the land to PW1 and PW2. Furthermore, the prosecution presented evidence from PW1 & PW2, demonstrating that they paid the Appellant and A1 UGX 25M. UGX 20M was paid to A1, while UGX 5M was given to the Appellant. Lastly, the Appellant asserted before Mr. Bwanika, that the land was his.

The evidence above establishes that the Appellant made a material fact that he was the owner of the land comprised in Block 379 Plot 1153 at Katale. The Appellant knew that he did not own the land. The Appellant and A1 made the representation to PW1 and 2 that they owned the land and had the authority to sell it whereas not. PW1 and 2 believed and acted on the false presentation by the Appellant and A1. Regrettably, PW1 and PW2 trusted the Appellant and parted with UGX 25M. The Appellant and A1 received the funds. These set of adjudicative facts confirm that the Appellant was rightly convicted of the offense of Obtaining money by false pretenses contrary to section 305 of the Penal Code Act.

**Conspiracy.**

The Appellant was convicted of conspiracy to commit the offence of obtaining money by false pretenses contrary to Section 305 of the Penal Code Act. I found the conviction redundant since the Appellant was ultimately convicted of obtaining money by false pretenses contrary to Section 305 of the Penal Code Act. The Appellant is, therefore, acquitted of the offence. The sentence imposed against him is also set aside.

**Ground II: W**hether the learned trial Magistrate erred in law and fact by imposing an illegal and manifestly harsh sentence on the Appellant.

The appellant informed the court that he received a harsh, excessive, and illegal sentence. This sentence failed to consider mitigating factors such as the appellant's status as a first offender and the lengthy remand period he experienced. He also stated that the sentencing did not adhere to the Sentencing Guidelines and did not consider his age. The respondent supported the Trial Magistrate's sentence, claiming it was fair and below the maximum penalties stipulated by law.

Sentencing is best left to the Trial Court, which better understands the convict. In **Kyalimpa Edward Vs Uganda Supreme Court Criminal Appeal No. 10 of 1995, the Supreme Court,** while quoting **R vs Haviland (1983) 5 Cr. App. R(s) 109** with approval stated that:

*An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents distinct facts that inform the judge's discretion. It is customary for this appellate court not to interfere with the sentencing judge's discretion unless the sentence is illegal or there is a clear demonstration that the trial judge's sentence was excessively unjust.*

I have reviewed the record and the sentence imposed by the Trial Magistrate. The Trial Magistrate *prima facie* adhered to the sentencing principles when sentencing the appellant. However, he violated Article 28 (3) of the Constitution by failing to mathematically deduct the period the Appellant had spent on remand from the sentence. Instead, he said that he had considered the period spent on remand in sentencing the Appellant.

The Supreme Court in **Rwabugande v Uganda (Criminal Appeal 25 of 2014) [2017] UGSC 8 (3 March 2017)** while dealing with this matter held that:

*It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused.*

*We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spent on remand is ambiguous. In such circumstances, it cannot be unequivocally ascertained that the court accounted for the remand period in arriving at the final sentence.****Article 23 (8) of the Constitution (supra)****makes it mandatory and not discretional that a sentencing judicial officer accounts for the remand period. As such, the remand period cannot be placed on the same scale with other factors developed under common law such as age of the convict; fact that the convict is a first time offender; remorsefulness of the convict and others which are discretional mitigating factors which a court can lump together. Furthermore, unlike it is with the remand period, the effect of the said other factors on the court’s determination of sentence cannot be quantified with precision.*

*We note that our reasoning above is in line with provisions of****Guideline 15****of the****Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013****which provides as follows:*

1. ***The court shall take into account any period spent on remand in determining an appropriate sentence.*** 2. ***The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account.****(Emphasis added)*

The Supreme Court also held that a sentence arrived at without mathematically deducting off the time spent on remand is illegal. Consequently, since the Trial Magistrate did not deduct the remand period from the sentences imposed on the appellant, all sentences rendered by him are declared illegal and thus set aside. The appellant will be sentenced afresh.

Count I- Forgery contrary to Section 347 and 348 of the Penal Code Act: The appellant was convicted and sentenced for an offence he was not charged with. Therefore, there is no need for sentencing him.

Count II: Uttering a false document contrary to section 305 of the Penal Code Act.

The appellant was sentenced to one year of imprisonment and overturned. In re-sentencing the appellant, I will take into account the following aggravating factors:

1. The offence was meticulously planned. 2. The appellant did not express remorse.

The appellant had the following mitigating factors:

1. He was a first offender.

Therefore, weighing aggravating and mitigating factors, I find a gross sentence of 12 months’ imprisonment suitable. I am required by Article 28 (3) of the Constitution to subtract the 6 months the appellant has spent on remand from the sentence. Thus, the appellant will serve a net sentence of 6 months’ imprisonment.

Count III: Obtaining money by false pretence contrary to section 305 of the Penal Code Act.

The Trial Magistrate imposed a sentence of three years’ imprisonment for this offence, which I have set aside set aside. In re-sentencing the appellant, I will consider the following aggravating factors:

1. The offence was meticulously planned. 2. Offences of this kind are widespread. 3. A significant sum of money was lost and has yet to be recovered.

The mitigating factor in this case is that the appellant was a first offender. Therefore, after assessing the aggravating and mitigating factors, I consider a gross sentence of forty-two months’ imprisonment appropriate. However, since the appellant has spent 6 months on remand, he will serve a net sentence of 36 months’ imprisonment.

Count IV: Conspiracy contrary to Section 390 of the Penal Code Act.

The appellant was acquitted of this offence. Consequently, there is no requirement for re-sentencing.

In accordance with the principle of totality and considering that the offences were committed in a single transaction, the appellant will serve the sentences concurrently. The order for compensation will remain unchanged and undisturbed.

**Decision.**

The Appeal is allowed and dismissed in part with the following orders:

1. The Appellant is acquitted of the offence of forgery c/s 347 & 348 of the Penal Code Act and Conspiracy c/s 390 of the Penal Code Act. 2. The sentence imposed on the Appellant for forgery and conspiracy are set aside. 3. The conviction of the Appellant of the offence of uttering a false document c/s 351 of the Penal Code Act, obtaining money by false pretences c/s 305 of the Penal Code Act are confirmed. 4. The Appellant is sentenced to a net sentence of six months’ imprisonment for the offence of uttering a false document. 5. The Appellant is sentenced to a net sentence of thirty-six months for the offence of obtaining money by false pretenses contrary to section 305 of the Penal Code Act. 6. All the custodial sentences will be served consecutively. 7. The custodial sentences are with effect from the date of conviction. 8. The order of compensation will remain undisturbed.

It is so ordered.


Gadenya Paul Wolimbwa

**JUDGE**

10th December 2024

I request the Assistant Registrar to deliver this decision on 12th December 2024.


Gadenya Paul Wolimbwa

**JUDGE**

10th December 2024