[1991] UGHC 32

The Hon. Mr. Justice Soluade

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO.22/91 ORIGINAL CASE NO. U940/90

STEPHEN OPOROCHA :::::::::::::::::::::::::::::::::::: VERSUS

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UGANDA ::::::::::::::::::::::::::::::::::: The Hon. Mr. Justice G. M. Okello: **BEFORE:**

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**SENTE**

The appellant, Stermen Oporocha, was charged and convicted on two counts respectively of aiding a prisoner to escape from lawful custody contrary to section 104(1) of the Penal Code Act in Count 1 and of Destroying evidence contrary to section 96 of the Penal Code Act in count2. Subsequently he was sentenced to a fine of Shs.50,000/= in count 1 and to a fine of Shs.100,000/= in count 2. He now appeals to this court against both convictions and sentence.

The background to this appeal appears to be as follows:-The accused and the complainant Francis Eolu were at the material time employed by the Railways Corporation as security guards. The accused was a Senior security Guard and the immediate boss of the Complainant to whom the latter reports. They were both: stationed at Kasese Railway Station.

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It was stated that on 1.4.89 at about 11.00 a.m at Kasese Railways Station/'the'complainant was on guard duty when he allegedly arrested^ \* uspe< suspect who was seen coming from- the direction of a lock shed within that Railways station carrying a Jerrycan .which was later found to contain engine oil no»4p. This type of Engine oil is used in the locomotive engine. That when asked, the suspect failed to give satisfactory explanation as to how he came by the oil and so the complainant arrested him. But that when the complainant was escorting the arrested suspect to Kasese Police station, the accused was alleged to have intervened and directed;-the -complainant to take'the suspect first to the office of the accused. The cor^ l^inant complied with this directive but that subsequently the accused released the suspect together with the Jerrycan of oil. This apparently angered the complainant who later complained to the Police against the accused for releasing the suspect togehter with the jerrycan of oil. On this complaint, the accused was arrested and the above charges were preferred against him. He denied both charges but he was convicted on both counts and sentenced as stated above.- Hence this appeal.

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The appeal was based on eight grounds which were framed as under:-

- (l) That the learned trial Magistrate erred in law in allowing the charges to stand and in convicting the appellant as charged when there was no evidence led by the prosecution proving the ingredients of the said offences charged. - (2) That the learned trial Magistrate erred in convicting the appellant on the only evidence of P'.71 which evidence was pulpably incredible, suspect, discredited and contradicted by the defence. - (3) ^hat the learned trial Magistrate erred in law in believing and relying on .the evidence of PW1 to convict the appellant without any corroboration and/or consistency. - ■(4) That owing to the motive of PW1 to tell lies against the appellant, the learned trial Magistrate should have ' treated the evidence of PV/1 with the greatest caution which was not done.

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- (5) That the learned trial Magistrate erred in believing the un corroborated and discredited evidence of pWj in preference to the evidence of the'appellant which was consistent and well corroborated. - (6) That the learned trial Magistrate misdirected himself and erred in appraising the evidence of DV/1 and DW2. - (7) That the learned trial Magistrate misdirected himself as to the buiuern of proof by the prosecution and by the accused. - (8) That the abo \*e errors, ommissions misdirections and irregularities constituted and occasioned a substantial miscarriage of justice to the appellant.

grounds On these g ' ' the appellant prayed that his appeal be allowed with the result that the convictions on both counts be quashed and the sentences set aside..

In .my view the above gro nds greatly overlap and could safely be summarised into two grounds namely?-

- (l) that the learned trial Magistrate erred in law in convicting the appellant of these offences when there was no sufficient evidence to prove beyond reasonable doubt all the ingredients of the offences charged. - (2) that the learned trial Magistrate misdirected himself on the burden of proof.

Be that as it may, it is an established principle on the law of this country that a fi^st appellate court is duty bound to subject the entire evidence on record to a.fresh and exhaustive scrutiny and to make its own findings on the issues. But that in doing so^ it must make allowance for the fact, that it had no opportunity to see witnesses as they testified. There are numerous authorities for this proposition. See PANDYS -vs- R (1957) EA 330 and OKENO -v- R (1972) EA 32 to mention but a few.

This is a first appeal tb this court.. It follows from the above legal principle that his court as a first appellate court in this case, is duty bound to subject the entire evidence on record to a fresh and exhaustive

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scrutiny and to make its own findings on tho issues while of course, making allowance for the fact, that it had no oppbrtunity to see the witnesses as they testified. This lack of opportunity to see the witnesses as they testified limits the ability of ta^j first appellate Court to properly assess on the demeavour of witnesses.

One important ground (7) raised in this appeal . that the learned trial Magistrate misdirected himself on tho burden of proof.

It is an established principle of our criminal procedure that to secure a conviction in any criminal charge, all the essential ingredients of the offence charged must be proved beyond reasonable doubt and that the burden of this proof lies squarely on the prosecution\* As to this principle, the trial Magistrate was alive and fully aware: when he set oat to write his judgment. He knew that the burden of proving these ingredients lies on the prosecution but not on the accused. This is shown on page 2 of his judgment when he said ;

"Before resolving tho above issues, it is imperative to note that in all criminal cases, the prosecution bears , tho burden to prove the'charges against a prisoner beyond reasonable doubt. The accused is not required to prove his innocence."

The above passage leaves no doubt as ten the state of mind in which the trial Magistrate was when ho set out to write his judgment. He was fully aware, as to who boars tho burden to provethe charges against the prisoner and to what standard. 1 cannot fault the trial Magistrate in his judgment on the direction on the burden of proof. For this reason this ground (7) of appeal must necessarily fail.

The-• next&r°und of this appeal is that the learned trial Magistrate erred in law in convicting the appellant of these offences when there was no evidence led by tho prosecution to prove all the essential ingredients of the offences charged.

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Referring to count 1, Mr. Emesu learned counsel for the appellant, listed the ingredients of the offence in that count as follows:-

(1) that the person whose escape was allegedly aided was a prisoner within the context of our law.

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- (2) that the person whose escape was aided was at the material time in a lawful custody and - $(3)$ that it was the accused who aided the escape of the prisoner.

Mr. Enesu argued that the trial Magistrate did not consider the above ingredients and that if he did, the trial Maristrate would have found that there was no evidence on record to prove beyond reasonable doubt all the above essential ingredients. He pointed out that there is no evidence to prove not only that the person whose escape was allegedly aided was a prisoner but also/that he was in lawful custody when-he-was allegedly released. He argued that the evidence of PW1 shows that PW1 was at best a private person. He submitted that as a private citizen, PW1 had power to arrest without warrant only where a person within his view commits a cognisable offence. Counsel pointed out that the evidence of PW1 shows that he arrested the suspect on suspicion of theft of engine oil. He submitted that PW1 as a private citizen had no power to effect an arrst without a warrant in such circumstances. That since the arrest was not lawful so the subsequent detention. of the suspect by PW1 was also not lawful when the accused allegedly intervened. He relied on the cases of Eneriko Safanyinga and 2 others -vs- Uganda Case No.40/64 Cases on the Fenal Code 1957 - 67; and Uganda -vs- Tiondi (1976) HCB 310.

For the State, Betty Nandawula learned state Attorney contended that $\mathbf{F}_{-}$ the convictions in both counts were proper. That the evidence of PW1 proves all the essential ingr.dients of the offences charged. She pointed out that the evidence of PW1 shows that PW1 arrested the suspect who was seen stealing the enging oil from the lock she within the Railways station: premises at Kasese. She submitted that P/1 as a private citizen was entitled to arrest without a warrant because theft being a comisable offence was committed in his seeing. The learned State Attorney submitted that

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this evidence is sufficient to prove this offence without any need for corroboration because corroboration is not a requirement of the lav; in the circusmtancos. That a case can. be proved by the evidence of a single witness. She relied on the case of Abdallah Bin Uendc- and Anor R (1953) EACA 166 - 168;

I d considered the above arguments of the learned counsels and I think it is pertinent to point out here that in a case of aiding a prisoner to escape from lawful custody, it is necessary vzhere the prisoner had not appeared before.any court to prove that hie arrest and subsequent detention were lawful.

In the case of ENERIKO SEBANYIGA and 2 others -vs- Uganda above, the appellants were convicted of aiding prisoner to escape from lawful custody contrary to section 104(1) of the Penal Code Act. A group of some 15 persons had attacked a Prison whereupon certain prisoners escaped. It was never proved at the trial that the prisoners were in lawful custody. On appeal it was argued for the state that once it had been proved that a prisoner had been detained in a place whore it was lawful for him to be be detained, he was if so fact; in lawful custody. That contention was rejected. It was hold that it was not justifiable to assume that any of the prisoners wore in lawful custody without proff of such, lecessaiy to That had a prisoner not yet appeared before a court, it would have been/ Drove that. hehad- , , , , , .. , . . been/^7\*'1^ aPPrehen,lG<1 311(1 subsequently detained.

> -• —In the instant -case, the. suspect had not yet appeared before ^a - - court. Following the above principle, it was necessary.to prove that he was lawfully arrested and subsequently detained.

Section 28(1) of the Criminal -Procedure Code empowers a private person to arrest without a warrant any person who in his view commits a conisable offence or whom he reasonably suspects of having committed a felony. In the case before us, the evidence of PW1 shows that P71 is a private person. That he arrested the suspect on suspicion of theft of Engine oil. Not because the suspect\* was seen stealing the engine oil as claimed by the learned State Attorney. This suspicion was based on the ground that the suspect- was found coming from a lock shed direction within the Railway Station at Kasese carrying a jerrycan which was later found to contain Engine Oil. That\* when asked the suspect failed to give satisfactory explanation as to how he came by the oil.

In my view, the above evidence if believed shows that the arrest of the suspect and his subsequent detention were lawful because the arrest was effected on a reasonable suspicion of commission of a felony of theft. To this ex this extent I disagree with Mr# Ernesu when he argued that a private person has power to arrest without a warrant only where a person commits in his view a cognisable offence. Section 28 of the Criminal Procedure Code empower a a private person to arrest without. warrant also where he reasonably suspects a person to have commited a felony. There was in fact evidence which if believed c believed could prove ingredients n^L's ¹ and 2 of the offence in count ¹ • The question of belief of this evidence is a matter of credibility of the relevant witness. I will deal with this issue here later.

The 3rd ingredient of that offence in count ¹ is that it was the accused who aided the escape of the prisoner.

On this point and on the question whether there was an arrest by the complainant of the alleged suspect whose escape was allegedly aided by the accused, there is a serious conflict btween the evidence of the prosecution and the evidence of the defence, PW1 testified that he arrested the suspect who was seen coming from the direction of a lock shed within Kasese Railway station premises carryin.^J a jerrycan which was later found to contain engine oil and that the accused later released the suspect. Accused denied that there was any such arrest by the accused. He also denied the alleged release by him (Accused) of a suspect. He asserted that the complainant's allegation against him (Accused) was false and a framed up, prompted by a grudge follov^ ing the accused's report to the Railways Corporation authorities of the complainant's persistent lotting unauthorised persons through a prohibited gate contrary to the express Management Regulation. The defence -version of the story was supported by the evidence of two Senior Officials of the Corporation (DW1 and 72)-but .the version of the prosecution story was not supported by any mother evidence.

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Mr. Efriesu attacked, the trial Magistrate for failure to give due consideration to the defence case. I agree with that criticism. The trial Magistrate did not adequately in my view consider the defence version of the story. He dismissed it as "a mere denial of the facts of the case to defeat the course of justice.'' He did not give due consideration to the evidence of DW1 and DW2\*

The evidence of Dj'1 shows that he (D'.7l) is a Senior Security Officer to whom all cases of theft or security matters occuring within that Railway Station premises must first be reported. He denied receiving the report of the alleged arrest by the complainant of a suspect on 1.4«89« This evidence ogjjgts doubt on the prosecution case as regards whether the ccmplainat really arrested a suspect who was later released by the accused.

In Bicareri Omurenyi -vs Uganda (1966) EA 170 the convicted of murder. There was acute conflict between and the defence version of the incident leading to the appellant -was the prosecution death of the deceased. There ^v^q®vi^ence to support both versions. On Appeal it was argued for the ^PPen-fhat the trial Judge did not adequately consider the evidence for the defence. This contention was upheld and the convic-/ In the instant case, I hold the view that the failureof the trial Magistrate to adequately consider the defence case, makes it unsafe to

allow the appellant's convictions to stand.

Secondly the accused claimed that the compalainat (PWl) had a motive to tell lies against him. This claim was supported by the evidence of B\/'¹ and DW2.

It was a principle of the law that once a prosecution witnesshas been shown to haveprovod motive to tell lies against an accused, the evidence of such a witness must be treated with caution and £nuld not be believed unless it is corroborated.

This view was held in the case of KASIMIRI'-vs- R (1951) &EACA 148.

tion was quashed^/

In the instant case, the trial Magistrate should have treated the evidence of the complainat (P"J1) with caution given the testimony of D'./1 and DW2 which shows that he had motive to tell lies against the accused. . Such evidence should not have been be.liey.ed unless. there was corroboration. There ⁷ is no such corroboration. There was no reason why DW1 and D'J2 should have told lies against the D771 •

With this type of evidence of PVH, the -ingredients of the offences charged cannot be said to have been proved beyond reasonable doubt.

with a caution ^&lt; ;■ Failure of the trial Magistrate to treat that evidence of P;71/in my view occasioned to the Appellant a miscarrieage of justice.

> For the reasons given above, I am of the view that it is dangerous to allow the conviction of the Appellant in this count ¹ to stand.

In count 2, the appellant was convicted of destroying evidence contrary to section % of the Penal Code Act. The ev.idoncehe was alleged to have destroyed was a jerrycan of. Engine Oil which he was alleged to have allowed the suspect to go away with.

Mr. Emesu for the appellant contended first that section % of the Penal Code Act following the Ejusdem Generis Rule of interpretation of Statute does not cover things like jerrycan of Engine Oil buttthat it is limited to documentary evidence. For the state it was contended that the section is wide enought to cover any type, of evidence.

I have sympathy for Mr. jlnesu's argument. My sympathy for this view is supported by Sir Gilbert Jackson, the learned author who in his book entitled "Maxwel on Interpretarion of Statute" 9th Edition at pages 336-7 section 5 on the topic Ejusdem Generis says;

"In the- abstract, general vzords like all others receive their full and natural meaning though they, should not be extended so as to confine matters to which they are obviously., not germane . .

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Bjrt the general V7ord which follows particular and specific words of the same nature as itself, takes its meaning from them and is presumed to be restricted to the same genus as those words • •••«.••• unless of curse there be something to.show that a wider sense was intended."

In deed general word which follows particular and specific word s of the same genus as itself must be presumed tobe restricted to the same genus as those words.

Section % of the Penal Code Act reads as follows;

"Any person who co knowing that any book, document or document or things of any kind whatever is or may be required in evidencein a judicial proceedings, removes or destroys or in <capa.be> of identification with intent thereby to prevent it from being used in evidence is guilty of an offence and is liable to imprisonment for a term not exceeding seven years."

Clearly in the above section the general word "thing of anv kind ',70rds relating ------ ^J------ \*----- to document- whatsoever"follow particular and specific^ is presumed to be restricted ary evidence op same genus as books or document and does net include general and/ things like Jerrycan of Engine Oil. There is nothing in the section which suggest that a wider interpretation of such general word is intended.

> Secndly Mr. . Emesu argued that there is no sufficient evidence-to prove all the essential ingredients of the offence in this count 2. I agree with this view. The evidence in support of the offence in this count 2 is only that of P\$1. But the credibility of this evidence was doubted.on the account of PWl'.s proved motive to tell lies against the accused.

It is the law that where a prosecution witness is shown to have a proved motive to tell lies against an accused, the evidence of that witness must be treated with a caution and must not be believed unless there is corroboration (See Bicareeri Omureny -v- Uganda above) •

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In this case, there was^no such corroboration. Such evidence is^T in'my view, got sufficient to prove beyond reasonable doubt all the ingredients^of the offences charged. Like in couBt^l, it is dangerous to allow the conviction in this count 2 to stand. In the s circumstances the appeal is allowed. The convictioryin both counts are quashed and the sentences are set aside.

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Q P D E P -

v Any money whichjnight have been paid by the Appellant as fine should be refunded to him forthwith.

G. M. OKELLO

J U D G E.

## 18.6.91

2.00p.m.

Mr. Emgsu for the Appellant,

Mr. George Bamugemereire State Attorney for the State.

## Judgment

Court: judgment read in open Court.

F. WABYOMEPE ASSISTANT PEGISTPAP (CPIME) 18.-6.1991.