[1998] UGHC 17

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL 55/97

## FLORENCE JOYCE OKELLO ....................... APPELLANT

#### - VERSUS -

**RESPONDENT** UGANDA ...................................

(An appeal from a judgment of the High Court of Uganda at Kampala by (Justice V. F. Musoke-Kibuuka) dated 23-10-97 in

#### CRIMINAL APPEAL NO.23 OF 1997

## JUDGMENT OF THE COURT:

This is an appeal against the judgment of the High Court acting in its appellate jurisdiction. The appellant, Florence Joyce Okello, was charged before the Chief Magistrate of Buganda Road Court with the offence of corruptly receiving gratification as an inducement contrary to the provisions of sections 1(a) and 5(1) of the Prevention of Corruption Act 1970. She was convicted and sentenced to 2 years imprisonment. She appealed to the High Court where her appeal was dismissed. Hence this appeal.

The brief facts of the case are as follows: Before her trial the appellant was employed as Senior Immigration Officer. The case for prosecution was that sometime in early 1995 the appellant demanded from Ruth Natembo 500,000/= as a bribe so that she (the appellant) could process citizenship application for one Muhamad Hassanali Mavani. But PW4's employer only raised

shs.400,000/= which PW4 gave to the appellant on $28/4/95$ . When the appellant was opening the envelope where the money was she was arrested by a C. I. D officer by the name of Claver Byamugisha (PW1). She was later on charged. At the trial the appellant denied the charge. She contended that she had been framed up due to conspiracy between PW1 and PW3 and that her schedule of work did not involve issuing or processing of citizenship certificates or applications.

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Three grounds of appeal were presented in this appeal. They are:

- (1) That the learned Judge on first appeal erred in law, in that he failed to adequately evaluate and put to fresh scrutiny the evidence adduced at the trial, thereby occasioning substantial prejudice to the Appellant and wrongly dismissing her appeal. - $(2)$ That the learned Judge on first appeal erred in law and substantially prejudiced the Appellant in that he failed to find that the learned trial Magistrate had wrongly imposed the burden of proof on the appellant. - That the learned Judge on first appeal erred in $(3)$ law and substantially prejudiced the Appellant in that he failed to find that the learned trial Magistrate was wrong in not applying the provisions $of$ section $142(1)(b)$ $of$ the Magistrates' Courts Act 1970.

Mr. Tibaijuka, the learned counsel for the appellant, argued the 3 grounds in the descending order, starting with ground three and ending with ground one. We shall deal with the matter in the

same order. His main argument on the third ground of appeal was that it was wrong for the learned trial Magistrate to have taken into account the demeanour of prosecution witnesses in coming to her decision since she had not seen most of those witnesses in court as the case had been partly heard by another Magistrate. He submitted that the new trial Magistrate, Mrs. Munaba, should have applied the provisions of section 142(1)(a) of Magistrates' Courts Act and recalled the witnesses He further submitted that the appellate Judge should have exercised his powers under section 142(1)(b) of Magistrates' Courts Act and set aside the conviction.

Section 142(1)(b) of the Magistrates' Courts Act reads as follows: -

> "142(1)(b) the High Court may, whether there has been an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if it is of the opinion that the accused has been materially prejudiced thereby and may order a new inquiry or trial."

The power given to the High Court by the above provision is obviously discretionary. At page 14 of his judgment the learned judge dealt with this matter in the following way:

> "Lastly, counsel for the appellant pointed out the fact that on page 6 of her judgment, the learned trial Magistrate assesses the prosecution's witnesses, (sic) that is to say Pw1, PW2 and PW3 and concludes that they were steady and truthful witnesses. Counsel argues that there was no basis for the trial Magistrate to state so and that by so doing the trial Magistrate prejudiced the appellant. He urged this

court to react to that argument in accordance with the provisions of section $142(1)(b)$ of the Magistrates' Courts Act 1970. I do not think by merely stating that she believed the witnesses to have told the truth and that she found that PW4 had given her testimony in steady manner the learned trial Magistrate actually prejudiced the appellant. True, the Magistrate did not take all the evidence. She was only reacting to what she found on the record. If there was any produced at all, I do not consider it to have been so material as to necessitate the invocation by this court of the provisions of section 142(1)(b) of the Magistrates' Courts Act." (sic)

$\hat{\pmb{\mu}}_i$

It is our considered opinion that the judge exercised his discretion correctly when he declined to set aside the conviction on the basis of provisions of section $142(1)(b)$ of the Magistrates' Courts Act. We agree with his finding that the appellant had not been prejudiced by the remark of the trial Magistrate to the effect that she had found PW4 to be a steady and truthful witness although she had not recorded all her evidence. It is immaterial that some of the evidence had been recorded by another magistrate; the fact remains that the convicting magistrate also had the opportunity to assess the demeanour of the witness. Her observation was not the only reason why she convicted the appellant. We find no merit in the third ground of appeal. It is accordingly rejected.

We now turn to the second ground of appeal. In it the learned counsel for the appellant complains that the trial Magistrate shifted the burden of proof to the appellant and that the judge was wrong in not holding so. The passage which

allegedly shifts the burden of proof reads as follows:-

citizenship denied handling accused "Although the applications even in the absence of Gashi, there was evidence to the effect that during Gashi's absence, the accused indeed processed a citizenship form. I believe that Natembo was telling the truth when she stated that the matter was being handled by the accused. No evidence has been led to show that some other officer was assigned Gashi's absence and the logical Gashi's duties in conclusion from the circumstances is that the accused was handling this particular application."

The judge made an observation on the matter at page 16 of his judgment in the following words:

> "Taking the statement in its proper context it appears to be quite clear that when the learned trial Magistrate said that no evidence had been led to show that some other officer was assigned Gashi's duties during Gashi's leave, she was certainly not saying that the appellant had not adduced that evidence. That evidence could have been adduced by the prosecution as well."

After making that observation, the learned judge proceeded to consider the law concerning the burden of proof in criminal cases and he concluded that the trial magistrate had not shifted the burden of proof to the appellant. We agree with his conclusion on the matter. The second ground of appeal cannot be sustained.

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That leads us to the first and last Abound of this appeal, which Mr. Tibaijuka considered to be his main ground. The gist of this ground is that the judge failed to discharge his duty as ^a first appellate court of appraising the evidence as adduced in the court below and come to his own conclusion.

The substance of Mr. Tibaijuka's submission on this point was that had the judge adequately evaluated the evidence on record he would have found that PW1, PW3 and PW4 had told lies about the whole matter and that there was conspiracy between PW1 and PW3 to implicate the appellant in this case. According to him it was the failure by the judge to properly evaluate the evidence that led him to wrongly hold that the appellant had been rightly convicted.

We have no doubt that the learned judge was fully aware of his duty as first appellate court to evaluate evidence of the lower court and come to his own conclusion: This view, to which Mr. Tibaijuka conceded, is supported by the following statement in the judge's judgment:

> "This court, being ^a Court of Appeal of first instance, it can determine the question whether the learned Chief Magistrate's omission to properly evaluate the prosecutions evidence in light of the defence occasioned miscarriage of justice, by exercising the duty incumbent upon it to treat the evidence as ^a whole to ^a fresh and exclusive scrutiny and draw its own conclusion."

The pertinent question which must be answered is: did the learned judge put into practice what he stated in the above

passage? Looking at his judgment as ^a whole, we are satisfied that the judge critical ly and exhaustively evaluated the evidence and came to ^a correct conclusion. We are satisfied that there was enough evidence to support the conviction. The first ground of appeal must also accordingly fall.

In the result this appeal cannot succeed, it is accordingly dismissed.

Dated at Kampala this ... Apt'... day of A?1?6.' ¹ 998.

S. T. MANYINDO DEPUTY CHIEF JUSTICE

C. M. KATO JUSTICE OF APPEAL

J. P. BERKO JUSTICE OF APPEAL

I certify that this is the true copy of the original.

legistrar Court of A-vpeal.