[2025] UGHC 297

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE CRIMINAL APPEAL NO. 03 OF 2024 (ARISING FROM CHIEF MAGISTRATES COURT OF PALLISA AT PALIISA)

# CRIMINAL CASE NO. 0084 OF 2020

**OTUKOL PATRICK ::::::::::::::::::::::::::::::::::::** VERSUS

**UGANDA :::::::::::::::::::::::::::::::::::**

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### JUDGMENT

#### 1. Introduction

2. This is an appeal against the judgement and orders of His worship Owino Paul Abdonson, the learned Chief Magistrate, Pallisa Chief Magistrates court wherein he convicted the Appellant with the offence of obtaining money by false pretence, sentenced him to 12 months' imprisonment and ordered him to refund Ugx $15,000,000/$ = to the complaint within a period of six months after the completion of service of the custodial sentence.

#### 3. Background

- 4. The Appellant was charged with the offence of obtaining money by false pretences contrary to section 305 of Penal Code Act Cap. 120 as it was then, [now section 285 of Penal Code Act Cap. 128]. It was alleged that the Appellant with intent to defraud a one Odomel Mary Magdalene falsely obtained Ugx $15,000,000/$ = pretending that he was selling to her a piece land well as not. - 5. The Appellant was convicted and sentenced to 12 months' imprisonment and also ordered to pay Ugx. $15,000,000/$ = to the complainant within 6 months after the completion of service of the custodial sentence. - 6. Being dissatisfied with the judgement, orders and sentence of the trial court, the appellant lodged the instant appeal.

### 7. Grounds of appeal

- 8. According to the notice of appeal filed by the Appellant on the 31^st day of January, 2024, the grounds of appeal are set out as follows - a. The trial Chief Magistrate erred in law and fact when he held that the ingredients of an offence of obtaining money by false pretence had been proved against the appellant hence occasioning to substantial miscarriage of justice; - b. The trial Chief Magistrate erred in law and fact when the he ignored the evidence of the appellant that the land sold to the complainant was his property and he had a right to sell it hence occasioning a miscarriage of justice; - c. The trial Chief Magistrate erred in law and fact when he convicted the appellant with the offence of obtaining money by false pretence yet the transaction between the appellant and the complainant was purely in civil nature hence occasioning to substantial miscarriage of justice.

### 9. Representation

Christine Kituyi, State Attorney represented the Respondent while Counsel $10.$ Kiyaga Ivan represented the Appellant.

#### **Submissions** 11.

At the commencement of the hearing of this appeal, both parties were given 12. schedules to file written submissions. Only the Appellant complied and the same have been considered in the determination of this appeal.

#### Duty of the first appellate court 13.

14. The duty of the first appellate court is to review and re-evaluate the evidence as it was before the trial court and reach its own conclusions, taking into account the fact that, it did not have the opportunity to hear and see the witnesses testify. See Birungi Moses Vs Uganda Criminal Appeal No.177 of 2024

#### **Analysis of court** 15.

- I will determine grounds 1 and 2 concurrently since they both rotate 16. around failure to evaluate evidence by the trial magistrate, and deal with ground three separately. - The appellant submitted that the trial chief magistrate gravely ignored the 17. appellant's evidence regarding ownership of the disputed land that he sold to the complainant thereby reaching at an erroneous conclusion of convicting the appellant for the offence obtaining money by false pretence. - The offence of obtaining money by false pretences is provided for under 18. Section 285 of the Penal Code Act, Cap. 128 It thus provides that-

"Any person who by false pretence, 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."

- The ingredients of the offence of obtaining money by false pretence were 19. stated in the case of Natenza Vs. Uganda (Criminal appeal No. 033 of 2023) as follows: - *a)* A false representation of a material fact, past or present. - *b) The person who made the representation knew that it was false.* - *c) The representation was made to defraud the other person.* - *d) The victim relied on the presentation.* - *e) The victim passed ownership of their property to the statement maker.* - *f) The accused person is responsible.* - False pretence is defined under Section 284 of the Penal Code Act, Cap. 20. **128.** It is thus defined 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."

- The High Court of Kenya in the case of Gerald Ndoho Munjuga v 21. Republic, Criminal Appeal NO. - 213 OF 2011 [2016] eKLR stated that-22. - "A false pretence has been held to be a representation by the accused person which to his knowledge is not true." - The prosecution evidence in the trial court through PW1/complainant as 23. shown on pages 5, 6, 7 & 8 of the record of proceedings was that the appellant approached her with view of selling to her, his land near culture market That the road. along Mbale Pallisa in Puti-Puti within Boliso accused/Appellant told PW1 that he acquired the land from the estate of his father, but later it was discovered that it was not true that appellant was the owner of the disputed land as was claimed by the appellant/accused. - On pages 11 and 12 of the record of proceedings PW2- Agwan John 24. Michael testified that prior to the PW1 purchasing the disputed land, they visited and inspected the land, consulted from the Local Council 1 and the clan leaders who all confirmed to them that the disputed land belonged to the appellant. - The impression created here is that the appellant made a representation 25. to the victim that the disputed land was his own having acquired the same from his father. - According to the record of proceedings at page 31, the Appellant's mother $26.$ who testified for the prosecution as PW7-Otukol Gladys informed court that the land which the appellant sold to the victim form part of the family land of the late Clement Otukol. - In his defense as shown on pages 40 and 41 of the record of proceedings, 27. the appellant testified that the land he sold to the victim was given to him by his mother as his share from the family land, and that he had been utilizing the said land for over a period of 10 years without interference from any family member. DW1 further stressed that prior to selling the disputed land to the victim/complainant, he had earlier alone sold a portion of land out of his

beneficial share to a one Yonah Omoria five years before the impugned transaction, but no family member challenged that transaction.

- PW7-Otukol Gladys' evidence confirmed the appellant's statement when 28. she stated in cross-examination that the appellant annoys her because he illegally sells land. - My comprehension of these facts is that, the land which the appellant sold 29. to the complainant is a family land which forms part of the estate of his father the late clement Otukol. It is not in doubt that the Appellant is a biological son of the late Clement Otukol, thus a beneficiary to his estate as was confirmed by PW7. - The Appellant stated that the said land is his beneficial share from the 30. estate of his father the late Clement Otukol. There is no evidence which was led to the effect that the estate of the late Clement Otukol has ever been legally administered or distributed. Be as it may, the beneficial interest of the Appellant in disputed land cannot be denied. - In any case, it was revealed through the testimonies of both prosecution $31.$ and defence witnesses that the Appellant had been in possession of, and utilizing the disputed land for over a period of ten (10) years without interference from any person. The evidence of DW1 indicating that he had earlier sold a portion of land out of his beneficial share was not disputed by his family members, meaning that indeed the Appellant had an honest belief of a beneficial interest/right in the disputed land. - The question whether or not the estate of the late Clement Otukol had $32.$ been legally distributed in order to confer the appellant with authority to dispose of the said land does not suffice because the representation which the appellant made to the victim/ complainant prior to the impugned transaction was that he acquired the disputed land as his beneficial share from the estate of his father. - The Court of Appeal in the case of Dr. Diana Kanzira Vs. Herbert 33. Natukunda Rwanchende & Anor, CACA No. 82 of 2020 expounded that-

"A beneficiary under a trust possesses the same power of alienation or disposition with respect to his equitable estate or interest under the trust as a legal owner has over his legal estate or interest in the property, and he can exercise it by similar instruments and with similar formalities."

- On page 3 of the trial court judgment, while determining this issue, the 34. trial magistrate stated that since the PW7, the Appellant's mother did not sign on the agreement purportedly were the Appellant acquired the disputed land, it was conclusive that PW7 never gave the appellant/ accused the land in dispute. - With due respect, the trial magistrate misdirected himself on this issue 35. because the land in dispute does not belong to the appellant's mother neither was she introduced as the administrator of the estate of the late Clement Otukol to which the appellant has a viable interest as a beneficiary. - The operative phrase under section 284 of the Penal Code Act, Cap. 128 36. which defines a false pretence is that a person who makes a representation to qualify it to be false, the maker of the statement must have knowledge of it to be false, or must not believe in it to be true. In the present case, I pick from the record of proceedings in the trial court that the appellant informed the complainant/ victim that he acquired the land from his father's estate as his beneficial share. - The evidence in trial court further reveals that the appellant is a biological 37. son of the late Clement Otukol, meaning that the appellant had an honest belief that he had interest in the disputed land. However, I am also alive to the decision the Court of Appeal in the case of John Kihika & Kaidoli William Vs Absolom Tinkamanyire, Civil Appeal No.0086 of 2014, where it was held that-

"Without a grant of letters of administration, no person has any right whatsoever to sell or otherwise deal with property of a deceased Person."

- In the view of the above decision, the appellant's sell of the disputed land 38. could have been legally untenable, but the appellant's representations to the complainant prior to the transaction was not fallacious since he the appellant has a honest beneficial interest in the disputed land as a beneficiary to the estate of the late Clement Otukol. - In my view, the situation would have been different if the appellant was 39. only passing off as a beneficiary to the late Clement Otukol. This would qualify his representation to be false. - I believe that if the trial magistrate had properly directed himself on the 40. evidence and facts of this case, he would have appreciated that the appellant had a genuine interest in the dispute land though with no right to dispose it off, and this cannot form a basis for a conviction on a charge of false pretence. - The Nigerian Supreme Court in the case of **Dr. Edwin U. Onwudiwe vs** 41. Federal Republic of Nigeria, NSC.41 of 2003, the court stated that-

"The offence of false pretence could be committed by oral communication, or in writing, or even by conduct of the accused person. However, an honest belief in the truth of the statement on the part of the accused which later turns out to be false, cannot found a *conviction on false pretence.*"

- In sum, following my observations as stated above, I would answer 42. grounds one and two in the affirmative. - Ground three: The trial Chief Magistrate erred in law and fact when he 43. convicted the appellant with the offence of obtaining money by false pretence yet the transaction between the appellant and the complainant was purely in civil nature hence occasioning to substantial miscarriage of justice. - I have carefully addressed my mind to section 7 of the Penal Code Act, 44. Cap. 128 cited by the Appellant's counsel. The said provision provides that-"A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud."

7 | Page

- I observe that there is a thin line under section 285 of the Penal Code Act, 45. Cap. 128 which qualifies an act to be criminally indictable for the offence of obtaining money by false pretence. Like I have stated in the foregoing, a case of false pretence can be properly made out where the accused makes a false representation well knowing that such a representation is not true, and has made it with the purpose of defrauding the victim. However, where the accused makes a false statement, but with an honest belief of it to be true, or with an honest claim, a case of false pretence is unattainable against him at law. - I am alive to the common law principle that a false pretence made 46. knowingly to obtain money is indictable, though the money was obtained by means of a contract which the complainant was induced into. (See Regina V. Kenrick (1843) 5 Q. B. D. 49) - In that case the accused persons had conspired to make a representation, 47. knowing it to be false, that certain horses were the property of a private person, whereby inducing the complainant to buy the horse. It was held that- "proof of those facts was sufficient to sustain an indictment for obtaining money by *false pretence".* - Holding in mind the decision in Regina V. Kenrick (supra), I am aware 48. from the evidence on record that in the present case, the appellant sold land to the victim. The appellant had an honest belief that the land belonged to him as his beneficial share from the estate of his father. PW 7 testified that the disputed land is family land forming the estate of the late Clement Otukol, the appellant's father. There was no evidence adduced to suggest that the appellant has no interest in the said land. The only issue was that the estate of the late Clement Otukol had never legally administered and distributed the estate in order to confer to the appellant the right to sell. - To me, it was an agreed fact on concession of both the prosecution and 49. defence witnesses that the appellant has an honest beneficial claim in the disputed land. This makes him protected for criminal responsibility on the

impugned transaction with the complainant/victim by virtue of section 7 of the Penal Code Act (supra).

- In any case, I note on page 30 of the record of proceedings that the trial 50. magistrate observed that- "From the evidence adduced by prosecution, the facts disclose a claim of ownership which makes the matter purely civil." - In the view of the foregoing analysis, I would agree with the submissions 51. of the appellant's counsel that this matter would better be solved by a civil court rather than pursuing it in a criminal court which has no powers to make a pronouncement on the ownership of the disputed land. - For the reasons stated above, I would answer ground three in the 52. affirmative.

The upshot of this case is that, this appeal is allowed, the judgment and orders of the lower court are hereby set aside.

I so order

the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of t

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Judgment delivered in open court in the presence of the Appellant and the Advocates for both sides on the $19$ ^th day of May, 2025

$\mathcal{L} = \mathcal{L} \mathcal{L}$

දෙක්ෂය ය. ඔහු පොලිම් රටේ වෙත විතියක් විය. ලබල නිවැත් විසි ලෙලක්වියක් නිර්ධානය

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