[2024] UGHCCRD 77

| | $\ddot{\cdot}$<br>1 | |----------------|------------------------------------------------------------------------------------------| | 1 | <b>REPUBLIC OF UGANDA,</b> | | $\mathbf{2}$ | IN THE HIGH COURT OF UGANDA, | | 3 | $\ddot{\cdot}$<br>HOLDEN AT KAMPALA, | | $\overline{4}$ | HCT-00-CR-CN-0004-2024 | | 5 | (Arising from BUGANDA ROAD CHIEF MAGISTRATE'S COURT CRIMINAL CASE | | 6 | No.3837of 2023) | | $\overline{7}$ | NASSOZI REBECCA ALIAS | | 8 | NDAGIRE==================================== | | $\overline{9}$ | <b>VERSUS</b> | | 10 | <b>UGANDA ===================================</b> | | 11 | | | 12 | | | 13 | BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC. | | 14 | JUDGMENT | | 15 | 1. Introduction | | 16 | NASSOZI REBECCA ALIAS NDAGIRE here in after referred to as the Appellant being | | 17 | dissatisfied with the sentence of Her Worship Nassozi Rehema Ssebowa, senior | | 18 | Principal Magistrate Grade One at City Hall Magistrates court passed on 31 ^st | | 19 | January 2024 appealed against the said sentence and orders. | | 20 | The appellant was represented by Counsel Nshemereirwe Peruth from M/S | | $21$ | Nshemereirwe, Arigye & Co Advocates while the respondent was represented by | | 22 | the learned Senior State Attorney Ms. Tabaro Caroline Ahereza. | | 23 | Both parties proceeded by way of both oral and written submissions that were filed | | 24 | shortly after the memorandum of appeal was filed. Court has put both submissions | | 25 | into consideration. | | 26 | 2. The grounds of Appeal were as follows: | | 27 | 1. That the learned trial Magistrate erred in law and fact when she failed to | | 28 | consider the Appellant's commitment to pay the complainant and ignored | | 29 | her request for leniency thereby occasioning a miscarriage of justice. | | 30 | 2. That the learned trial Magistrate erred in law and fact when she failed to | | 31 | consider the Appellant's Apology to the complainant and the Court thereby | | 32 | occasioning a miscarriage of justice. | | | | | | |

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- - 3. That the learned trial Magistrate erred in law and fact when she found that the appellant was part of a racket that mastered the art of pleading guilty thereby occasioning a miscarriage of justice. - 4. That the learned trial Magistrate erred in law and fact when she omitted to deduct the period spent on remand from the sentence and imposed against the Appellant thereby occasioning a an illegal sentence miscarriage of justice. - 5. That the learned trial Magistrate erred in law and fact when she imposed 41 a manifestly harsh and excessive sentence of 5(five) years imprisonment 42 against the Appellant thereby occasioning a miscarriage of justice 43 - The prayers

The appellant prayed for the appeal to be allowed and that sentence and orders of the trial court be set aside and further that the court considers the time spent on remand by the Appellant and also the sentence period already served and acquits the Appellant.

4. The brief background of the case.

The Appellant was charged and convicted on her own plea of guilty of the offence 50 of obtaining money by false pretence contrary to section 305 of the Penal Code Act 51 laws of Uganda after understanding the charge and facts of the case. 52

While sentencing the appellant, the magistrate among others, held that: 53

The accused person has done a very great disservice to the complainant and his 54 family. He has been taken back to zero..... She has no plans of paying back even a 55 single penny in the near future. I find that she is part of a racket that have 56 mastered the art of either pleading guilty for leniency or pleading family and 57 disease to escape long sentences. The offence of defrauding land and estates is 58 on the high and many people have lost livelihoods...while the racket grows. It is 59 even worse now that women who many perceive as trusted have increasingly 60 joined the trade, netting more and more people into their trap. 61 I find that the above accused does not deserve any leniency and should serve as 62

a deterrent to others..... I do sentence the accused to five years imprisonment 63 and make an order that she compensates the victim 105,000,000/= defrauded 64

- from him (pending confirmation of sentence). 65 - 66

This was after she admitted holding out as the owner of land comprised in Busiro 67 block 302 plot 365 at Kigoma measuring 0.0480 hectares with its developments 68 and executed a land sale agreement dated 23^rd January 2023 with the victim 69 Musisi Akileo where she held out as Ndagire Sandra, attaching her photograph on 70


- the agreement, and transfer forms from the purported registered proprietor one 71 Muhereza Oscar and a certificate of Tiltle with a copy of his national identity card. $72$ She received 105,000,000/= cash from the victim who upon believing that he had 73 bought and acquired a home, only to realize he had been defrauded as the property 74 never belonged to the accused/appellant. 75 - In a moving submission to court by the victim who was present in court, he stated 76 $77$

"I sold my home to buy a new house in a convenient place. Right now I am a 78 tenant I was affected together with my family. What I want is the accused to get 79 my money..... I have tremendously suffered. I was a soldier, I went to Somalia. to 80 Iran and now I am back to zero" 81

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The above could have influenced the discretionary powers of the magistrate 83 while sentencing. 84

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## 5. Role of first Appellate court.

It is trite law that the duty of the first Appellate court is to look at the proceedings 87 and evidence on record and reappraise it afresh subjecting it to exhaustive scrutiny. 88 It is at liberty to draw its own inferences of fact and arrive at its own independent 89 conclusions as to whether it should maintain the decision of the lower court or 90 there is need to vary it and or overturn it all together. 91

This role of the first Appellate court was well stated in the cases of Pandya V R 92 [1957] E. A 33 which has been followed in a plethora of cases. It basically 93 reevaluates the evidence bearing in mind that it did not witness the demeanor of 94 the witnesses. 95

## 6. Submissions

- MS Nshemereirwe for the Appellant submitted inter alia that the convict was 97 brought before this court by way of Appeal to consider setting aside the 98 decision of the lower court of HW Nassozi Rehema where she was convicted 99 on her own plea of guilty and ordered that she serves 5 years imprisonment 100 and compensates the victim. 101 - That the decision of the lower court is pending confirmation which has not 102 been done. 103 - This would mean the appeal is pre mature. The convict had no ability to 104 ensure that the file is forwarded to the High Court. 105 - She submitted it was the duty of the lower court, therefore, she had to reach 106 out by way of appeal. 107


| 108 | That Article 126 (2)(e) of the Constitution enjoins courts to grant justice. | |-----|---------------------------------------------------------------------------------| | 109 | Even though the appeal was brought before confirmation, she prayed that | | 110 | for the justice of this case, court should look at the plight of the appellant | | 111 | and determine her appeal whose effect is to reduce the sentence basing on | | 112 | her reasons already contained in the memorandum of appeal and explained | | 113 | in written submissions. | | 114 | She prayed that the court be pleased to reduce the accused's sentence and | | 115 | be given an opportunity to enter into <i>plea bargain agreem</i> ent on Appeal. | | 116 | | | 117 | On the other hand, MS Tabaro Caroline for the Respondent state, prayed for | | 118 | the appeal to be dismissed on the following grounds. | | 119 | That an appeal is a creature of statute that arises from a final judgment. In | | 120 | this case, the appeal was prematurely instituted since the sentence of the | | 121 | Appellant is pending confirmation. | | 122 | It was on that ground that she re iterated her prayer for the appeal to be | | 123 | dismissed. | | 124 | In rejoinder, counsel for the Appellant submitted that where as it is true an | | 125 | appeal is a creature of statute, it must be instituted within the prescribed | | 126 | time. | | 127 | It was explained to the convict/ appellant and she instituted the appeal | | 128 | before that time. That the issue of confirmation was not within her | | 129 | knowledge because it was an administrative function of the trial court. | | 130 | She prayed that it is not visited on the appellant and prayed court determines | | 131 | her appeal. | | 132 | | | 133 | | | 134 | Issue before court. | | 135 | From the submission of both counsel, the issue that court has to resolve | | 136 | are 2. | | 137 | Whether the appeal is pre mature | | 138 | 2. What remedy is available to the Appellant. | | 139 | | | 140 | 8. Resolution of the issues. | | 141 | | | 142 | I will start with the first issue of whether the Appeal is premature. |

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From the submissions of both counsel, it is apparent the sentence of 5 years 143 imprisonment was pronounced by HW Nassozi Rehema Ssebowa a senior 144 Principal Magistrate Grade One. 145

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Section 173 (1) of the Magistrates Courts Act, Cap 19, provides that: 147

- "Where any sentence to which this section applies is imposed by a 148 magistrates' court (other than by a magistrate's court presided over by a 149 chief magistrate), the sentence shall be subject to confirmation by the High 150 Court. 151 - (2) This section applies to 152 - a) a sentence of imprisonment of two years or over 153 - Section 174 of the MCA further provides: 154 - 1) Whenever a magistrate's court passes a sentence which requires 155 confirmation, the court imposing the sentence may in its discretion. 156 release the person sentenced on bail pending confirmation or such other 157 order as the court confirming may make. 158 - 2) ...... - 3) If the person sentenced is not released on bail, he or she shall start to 160 serve his or her sentence, pending confirmation or other order of the 161 confirming court as from the date upon which he or she is sentenced by 162 the magistrate's court, unless he or she elects to postpone serving his 163 or her sentence until the confirming court confirms the sentence or 164 makes such other order, in which case the person shall be remanded to 165 prison pending that confirmation or other order of the confirming 166 court and the term of imprisonment shall run from the date upon 167 which the confirming court makes its order 168 - 4) Subject to section 50 (2) of the Criminal Procedure Code Act, the High 169 Court may exercise the same powers in confirmation as are conferred 170 upon it in revision by part 111 of that Act." 171 - 172

The purpose of confirmation of sentence by way of revision or review by the High 173 Court is basically to check the propriety and legality of the criminal process by the 174 grade one Magistrates Court. The court must also check on whether the sentence 175 was fair and just in the circumstance. 176


I am inclined to agree with the Appellant Counsel's submission that, the trial 177 Magistrate failed in her statutory duty to forward this file to the High Court for 178 confirmation. She however clearly indicated that her sentence was subject to 179 confirmation. The law is silent on the time within which to send the file to the High 180 court for confirmation, but ingenuity would dictate that the file should be sent to 181 the Chief Magistrate immediately with typed certified proceedings for onward 182 transmission to the Registrar of the High court for purposes of confirmation of 183 184 sentence.

This is not the only case that suffers this kind of injustice. It may be necessary for 185 the Judiciary to come up with guidelines on how the process of confirmation of 186 sentences as provided under section 173 of the MCA should be handled by the trial 187 magistrate grade one. It is not enough to mention it in the proceedings and send 188 the file to the archives as a completed file because it is only complete after the High 189 Court has confirmed or varied the sentence and or made any other orders. 190

191 However the above notwithstanding, in view of the mandatory provisions of section 173(1) of the MCA Supra, and the fact that trial Magistrate who handed 192 down a sentence of five years imprisonment was of the rank of senior Principal 193 Magistrate Grade one, I find that the sentence had to be confirmed by this court 194 first before any appeal could be preferred. The learned Counsel for the Appellant 195 as an officer of court is duty bound to advise her client on the best course of action. 196

Filing an appeal at this stage was not the best option as the sentence she is basically 197 appealing against is not yet confirmed and therefore not final as it could be varied 198 and or confirmed by the High court. 199

In the result I am inclined to agree with the submission of the learned senior State 200 Attorney that this appeal is pre mature. 201

- The first issue is resolved in the affirmative. 202 - What remedies are available? 203

- What next after holding that the appeal is premature" 204 - The learned senior state Attorney submitted that the Appeal process is the creature 205 of statute which comes into play after a complete judgment which is not the case 206 here and as such that the appeal should be dismissed, while counsel for the 207 - Appellant relied on Article 126(2)(c) of the Constitution which provides that: 208

Scanned with CS CamScanner " In adjudicating cases of both the civil and criminal nature, the courts shall 209 subject to the law, apply the following principles 210

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Substantive justice shall be administered without undue regard to $c)$ 211 technicalities "praying that this court determines this appeal. 212

I have already stated that counsel for the appellant as an officer of court has the 213 duty to advise her client on the appropriate legal procedure. 214

Now that the file of the lower court is before the confirming court, is this court 215 barred from handling the confirmation process. The answer is in the negative. 216

Applying article 126 (2)(c), supra, as prayed by counsel for the Appellant, what does 217 it mean? 218

In my humble view, administering substantive justice without undue regard to 219 technicalities from the perspective of this case means that the focus of this case 220 should be on achieving a fair and just outcome, rather than getting bogged down 221 with minor administrative errors or procedural details where the file was not sent 222 to the High court immediately after the tentantive sentence of 5 years was passed. 223

Substantive justice refers to the actual fairness and merits of this case as opposed 224 to the procedural aspect where counsel for the appellant imagines that by this 225 court not allowing to go into the merits of the appeal, would be visiting it on the 226 appellant because she is not responsible for the administrative error of the trial 227 court. 228

In applying substantive justice, as prayed by counsel for the appellant, this court 229 has the statutory duty to consider the facts of the case, the rights and interests of 230 the parties that is the convict / appellant and the complainant / victim of the 231 criminal conduct of the Appellant, and the principles of justice and fairness. 232

On the side of technicalities, it refers to the procedural rules, forms and or 233 formalities that would govern cases that fall within the ambit of section 173 of the 234 MCA which are not really in place apart from consideration of bail and as to 235 whether the convict opts to start serving the sentence in which case the time on 236 pre trial remand would be included. Section 174 of the MCA supra refers. 237

While this technicalities are important for example granting the convict bail 238 239 pending confirmation or informing them of the right to be released on bail which is rarely exercised, for ensuring fairness and due process, they should never be 240 241 allowed to overshadow the pursuit of substantive justice which in this case is to


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consider the confirmation process of the sentence of 5 years imprisonment and the 242 compensatory order for 105,000,000/= million Uganda shillings. 243

The statutory and constitutionally obligation of the High court while presiding over 244 any case before it, entails focus on the merits of the case rather than being bogged 245 down with procedural and or administrative errors. 246

The court must be ready to be flexible within the law to achieve a just out come 247 and not rigidly adhering to technicalities. 248

The court should use its wide discretionary powers with sound judgment to avoid 249 prejudice. 250

And above all else, prioritize fairness, justice and the rights of the parties as 251 opposed to strict adherence to technicalities. 252

In view of the above, this being a court of justice, and applying article 126(2)(c) 253 supra ,I am going to resolve the pending issue of confirmation of the sentence of 254 5 years imprisonment. 255

- Should this court confirm or vary the orders of the lower court. 256 - On the issue of sentence of 5 years imprisonment, perusal of the lower court 257 reveals the appellant committed the offence. 258 - She admitted being part of the people who defrauded the complainant. 259

She held out as the owner of the land and received the money knowing very well 260 that the land was not there. She pleaded guilty twice. 261

- Her plea of guilty was unequivocal even if she claimed others were involved like the 262 - complainants lawyer, According to the facts she was the main actor in the fraud. 263 - Her conviction was therefore lawful and hence punishable. 264 - 265 She was sentenced to 5 years imprisonment years' imprisonment and no mention

was made about her period on pre trial remand. The maximum punishment for 266

obtaining money by false pretence is five years imprisonment. 267

- It is trite law that this period should be taken into account while imposing the term 268 of imprisonment. 269 - Article 23 (8) of the 1995 Constitution provides; "Where a person is convicted and 270

sentenced to a term of imprisonment for an offence, any period he or she spends 271

in lawful custody in respect of the offence before the completion of his or her trial 272 shall be taken into account in imposing the term of imprisonment." 273

In the case of Rwabugande Moses Vs Uganda, SCCA No.25 of 2014, the justices of 274 the court of Appeal gave the meaning of Article 28(8) in the following words; 275

"Our appreciation of Article 23 (8) of the constitution, is that the 276 consideration of the court of the period spent on remand by a convict is 277 mandatory. A sentencing judge is under a duty to consider the exact period 278 spent on remand in upholding the provisions of the supreme law of the 279 land. For avoidance of imposing ambiguous sentences, we hold that the 280 period spent on remand must be arithmetically deducted. This renders 281 justice to the convict". 282

The trial Magistrate considered the amount of money involved and that was 283 105,000,000/= Uganda shillings. This amount was substantial. She also considered 284 the rampancy of the offence and handed her the maximum sentence in spite of her 285 plea of guilty. She did not find her plea of guilty as a sign of remorse. 286

Her decision was based on the conduct of the accused/convict who kept on shifting 287 from Plea of guilty to plea of not guilty and eventually to plea of guilty. 288

Given the level of craftiness of the convict, and substantial amount defrauded 289

Where she immediately switched off her phones and was only apprehended after 290 some months, she really deserved a deterrent sentence. 291

The aggravating factors in this case were more than the mitigating factors as I didn't 292 find any medical evidence of her HIV status or widowhood and family on the record. 293 In view of the above authorities therefore, it is incumbent upon every trial court 294 to arithmetically, calculate the period the convict has spent on remand from the 295 date of first remand all the way through to the date of sentence 296

The record shows that she was first arraigned before court in this case on 297 $11/12/2023$ and sentenced on $31/1/2024$ after spending one month and 20 days 298 which period should have been deducted leaving her with 4 years, 10 months and 299 10 days to be served of course subject to remission as at $31/1/2024$ . 300

301 Since she was not granted bail pending confirmation, this court takes it that she started serving her sentence pending confirmation which will be put into 302 consideration by this court. 303

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## **Compensatory order** 305

On the issue of compensatory order, it is trite law that where the victim has 306 suffered material loss, as a result of the criminal conduct of an accused person, the 307 court may make an order of compensation. 308

This is provided for under section 196 (1) of the Magistrates Courts Act cap 19 to 309 wit. 310

" When any accused person is convicted by a magistrate's court of any offence 311 and it appears from the evidence that some other person, whether or not he or 312 she is the prosecutor or a witness in the case, has suffered material loss or 313 personal injury in the consequence of the offence committed and that 314 substantial compensation is in the opinion of the court, recoverable by that 315 person by civil suit, the court may, in its discretion and in addition to any other 316 lawful punishment, order the convicted person to pay to that other person such 317 compensation as the court deems fair and reasonable." 318

As much as the trial magistrate did not quote the above section of the law, she 319 acted within the law to make the order of compensation for 105,000,000/= one 320 hundred and five million Uganda shillings the convict defrauded the complainant 321 in this case by falsely pretending she was selling him her land with a house whereas 322 not. He suffered material loss that can successfully be pursued and recoverable 323 under the civil court. 324

9. Final decision of court. 325

In view of the above, and applying article 126(2)(e) of the constitution as 326 proceed to exercise my discretion under explained herein above I 327 section 17 of the Judicature Act and declare as follows. 328

- 1) The appeal is dismissed for being pre mature. 329 - 2) In accordance with Article 28 (3) of the Constitution and section 17 (2) of the 330 **Judicature Act**, and section 174 (3) Of the MCA, I set aside the sentence of 331 5 years without deduction of the period spent on remand and replace it with 332 a sentence of 5 years less 1 year and 7 days leaving her with a balance of 3 333 years 11 months and 23 days to be served. 334 - 3) The order of compensation of 105,000,000/= (one hundred five 335 million) Uganda shillings to the victim / complainant Musisi Akileo 336 is upheld. 337


| 338 | 4) Execution of Order 3 above shall be in accordance with section 197 | |-----|----------------------------------------------------------------------------------| | 339 | of the Magistrates Courts Act. | | 340 | 5) No order is made as to costs. | | 341 | The parties are free to appeal against this decision if not satisfied within the | | 342 | statutory time of 14 days from to date. | | 343 | Dated at Kampala this 18 ^th day of December 2024. | | 344 | | | 345 | | | 346 | <b>MARGARET MUTONYI, JHC</b> | | 347 | <b>CRIMINAL DIVISION.</b> | | 348 | | | 349 | |

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