[1995] UGHC 41

I^t ^c\O'"\cA^g

## THE REPUBLIC OF UGANDA

### IN THS HIGH COURT OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO, ¹¹ OF 19%

EZA SEBUFU ::::::::::: APPELLANT

# VRS.

# UGANDA : ² ² ::::::: ² RESPONDENT

••/2,

BEFORE: IHE HON, HR. JUSTICE G. M. OKELLO

#### JUDGMENT:

This is an appeal against the conviction. and son-tonco vhnrp.b^ a Magistrate Grade ¹ of Mongo Magistrate\*s Court convicted the appellant of Embezzleraont contrary to section 257 (d) of the penal code Act and sentenced him to a fine of shs. *^OOfOOO/=x* or in default to 12 months imprisonment. The Judgment and sentence wore delivered by the trial Magistrate on 14/2/95\*

The facts of the case as gathered from the evidence admitted by the trial court were that:- The appellant was employed by Sparkle Dry Cloanor, between 18/\$/93 and 24/2/94 as a Cashier• His duties included receiving customer's clothes brought in for laundry, receiving monies paid in by customers and issuing receipts to customers for any monoies paid and keeping Balance book in which ho recorded all balance of payments duo from customers.

The established procedure of work at tho company was that, when a customer brought his clothes for laundry, tho cashier received it, charged tho laundry foe and issued receipt to the customer, for any monies paid by the latter. Tho receipts wore written in triplicate:- tho original copy was handed to tho customer, while tho duplicate was attached to tho customer's clothes for identifications the triplicate copy was retained in tho receipt Book. 'Where a customer paid in part only the balance was recorded in tho balance book. Thon when tho customer later paid the balance, that payment was reflected in tho balance book, Thon tho cashier

retrieved the part payment receipt earlier issued to the customer and acknowledged full payment before handing to the customer his clothes. The effect of that procedure is that no customer's clothes was collected by the customer before ho fully paid for thoir laundry.

Suspicion began to build up when business appeared brisk as many customers brought in thoir clothes for laundry, promptly collected them after laundry and electricity bill shot up to confirm the rise in business but the revenue received did not correspond to the rise in business. It was little. When the books of accounts were audited, it was discovered that money amounting to shs. 437,200/= was not accounted for. For that, the appellant was arrested, charged and tried for Embezzling that money. Ho denied the offence but he was convicted and sentenced as stated above. Hence this appeal.

Four grounds wore preferred for this appeal. They were:—

- (l) The learned trial Magistrate erred in law and in fort in disbelieving and rejecting the appellant's defence inspite of the overwhelming evidence on record\* - (2) The learned trial Magistrate erred in law when he misguided himself upon the legal burden of proof thereby shifting the same upon the appellant by requiring him to prove his innocence - (3) The learned trial Magistrate grossly erred in law when ho failed to deal with the evidence on record and instead substituted it with his own hypothesis\* - (4) In the alternative but without derogation from the above grounds heroin contained, the sentence passed against the appellant was manifestly harsh and grossly excessive.

At the hearing, Mr. T-Iuwayiro-Hakana counsel for the appellant argued grounds ¹ and 2 together, then ground 3\*. Ho abandoned ground 4 which concerned sentence.

Those two grounds go to the very core of the case. Thoy questioned whether the evidence on record on a proper evaluation provod tho charge against tho appellant. They also challenged tho trial Magistrate's direction on tho principle of burden of proof.

Hr. IXiwayiro-Uakzma attacked the. judgment of tho trial Magistrate for his failure to evaluate tho evidence on record before ho rejected tho dofcnco in-profexonco. for tho prosowtion The learned counsel pointed out that though tho trial Magistrate stated on page 2 of his judgment that he had evaluated tho evidence- of both the prosecution and defence of PW1, their record did not rovoal that there was any such evaluation, Ho submitted that because of that failure of the trial Magistrate ' to evaluate tho evidence on record, tho learned magi&trato wrongly ^ound that the evidence of Hitt wa-a- corroborated by "tho evidence, of PW2, W3? and PW5 that tho appellant stole. ±ho of employer yot thoro. was no such corroboration.

tszq stat®- Attorney who represented tho Respondent in this appeal though conceded that tho- tri-vi did h4 n judgment evaluate tho evidence, supported the conviction. She contended that if tho judgment had been properly written, there was ample evidence to support tho conviction.

It is trite law that a trial court must evaluate the prosecution and dofcnco evidence together before deciding which one to believe. What matters here is not tho more inclusion in a judgment of the rhetorical words of "1 evaluated", That is not enough. Tho important thing is that tho evidence must actually be evaluated. This must bo rofloctod in tho judgment. This is what is required of a trial court.

*"fa.*

In the instant case, the trial Magistrate stated on page 2 last paragraph of his judgment as followss-

"This leads me to the second sk ingredient of the offence whether the accused stole money of the complainant company, -having considered the prosecution case and the defence and evaluated hoth- \* •. of them, I believe the evidence of Kijamanyi Moses (PW1) which was clearly corroborated by that of Ronald Lutaro (PW2) James Mulindwa (PW3), ITasanairi Bossa (PW4) and Serwanga-Andrew PW5 that ±lu> accused fttale the said sum of money\*' ,

'-Mnferrtunately no . where in the judgment was the evidence -evaluated. It is not enough to rhetorically state that "I have evaluated the evidence" ^f The evaluation must be roflooted in the judgment as is required. As this was not done, it was an error on tho part of the trial Magistrate^

Mr. Muwayiro—Makana contended that because of that failure to evaluate the evidence on record, the trial Magistrata wrongly found that the evidence of Pl'H was corroborated by the evidence of PI'12^ PtQ-y PW4 and PW5 that tho accused stole tho money of tho complainant company yet there was no such evidence of theft and tho alleged corroboration.

hand

Ms, ITkwasibwo on tho other / submitted that in cases of Embezzlement there was no need to prove direct theft since that can bo discovered from books of accounts. She pointed out that in tho instant case, tho evidence of PW1, PW2, PW3 and PW4 all indicated that tho accused tos the cashier with the complainant company at tho material time. That tho evidence of PW5 showed that the cashier received the money but did not forward it to the right authorities\*

It is established by loading authorities that a first appellate court has a duty to subject tho entire evidence on record to a frosh and exhaustive scrutiny and to make its ovm findings of facts on issues

L/5.

while *bf* course giving allowance for tho fact that it had not soon witnesses as they testified.

See Pandya vs. R. (1957) EA 336 Okeno Vs. R (1957) EA 336. As a first appellate court therefore this court will subject tho evidence on record to a frosh scrutiny to find out whether on a proper evaluation tho evidence on record can sustain tho conviction\*

PW1 was tho Director of tho complainant company. His testimony was that tho appellant was employed by tho company as a cashier between September 1-993 ^-nd 23/2/94\* His evidence described tho duties of the cashier in that company as staled earlier, in this judgment. Tho evidence- -also described the- Established procedure of work followed by the cashior. Tho effect of that procedure was that no customer\* ^s clothes was to bo collected before its laundry charges were fully paid off.

PW1\*s testimony further indicated that between January and February 1994? tho witness detected a decline in revenue collection in the company yot the business appeared brisk. Many customers "brought clothes for laundry, promptly collected their clothes after laundry and Eloctricity bills shot up to confirm a rise in the laundry work but the revenue collected did not correspond. So ho became suspicious. When ho chocked some Receipts, ho discovered anomallios. Thore were Receipts showing balances still duo from customers but such customers clothos wore not on the shelves. They wore already collected yet the balance book did not reflect any payment of such balances. That was contrary to tho established procedure. PW1 listed such Receipts. They were issued between October 1993 and February 1994 when tho accused was tho cashior. In view of tho above, PW1 reported the appellant matter to the police and the / was arrested. Thon PW1 engaged an auditor to audit the complainant company\* s books of Accounts.

../6.

The ovidono of PW2 indicated that ho was going to town in tho evening of 24/2/94 when he found PW1 checking through tho Receipts of his company. On seeing tho witness, PW1 requested tho witness to assist him in tho chocking. PW2 accepted and assisted PW1, Later that day, PW1 recruited PW2 to work as a cashier. Before that\* PW2 was employed at Botonicul Gurdon Entebbe. Ho knew that tho accused was a cashier with tho complainant company.

Tho evidonco of PW3 and Ph'4 wore to the effect that they wore employees of Sparkle Pry Cleaners. They know tho Appellant who was a cashier in tho same company. They both confirmed that tho Appellant was arrested over this issue on 25/2/94 when ho reported for duty.

PTI5 was tho auditor. His testimony indicated that at tho request of PW1, he audited the books of accounts covering tho period between September 1993 and February 23rd 1994 of Sparkle Dry Cleaners. His finding was that a total of shs. 437,200/= was received by the cashier but did not hand over to the management of tho company.

PW6 was a police officer. His testimony was a formal evidence of arrest. It is not disputed.

It is clear from tho above ovidonco that tho prosecution caso basically depended on circumstantial evidence. Tho testimonies of PW1, PW3 and PW4 indicated that at tho material tino tho Appellant was the cashier of tho Sparkle Dry Cleaners. This fact was not disputed. The evidence of PW2 was to tho effect that ho assisted PW1 in chocking through tho Receipts and clothes brought for laundry. This too was not disputed.

Tho testimony of P^5 is very crucial in this caso. Ho audited the books of accounts covering tho period between September 1993 and February 23rd 1994 of Sparkle Dry Cleaners and found that a total of shs. 437,200/= was received by the company cashier but never

handed over to tho management of the company. Thon ho made his Report which was received in evidence and marked Exh. Pivi The Report gave details of how tho above figure was arrived at. According to the Report,

- (1) Deposit received end recorded but not handed over to tho management - 65,150/= amounted to - (2) Cash Balance Collected and recorded but somo of it not handed over " >330/= to Management. - (3) Cash Balance Collected and recorded but not handed over at 11 to management amounted to 46,500/= - (4) Cash Balance collected by neither recorded nor handed over to 325,220 Total management amounted to

The Report contained a list of the serial number of tho relevant supportive Receipts against tho above figures. I noto however, that the Receipts were not exhibited as I should have expected them to for court to cross-check those informations if it wished to. Be that as it may, that is not a fatal omission since the Receipts had been specified. Any information regarding them which needed cross-checking could very easily bo ascertained.

The defence challenged the accuracy of the findings of PW5< In his unsworn statement of defence, the accused complained that sone Receipts whore tho clothes which had balances of payment on their laundry charges still duo, and had not boon collected wore also wrongly included on tho list from which he was alleged to have embezzled money.

In my view the above is not a moritous dofonco bocauso the elaborate list given in the Report Exh. P111 could have boon cross checked in cross-examination if the defence cared. But this was not done.

The Appellant further complained that PW1 himself gave out to some customers clothes whose laundry charges had not boon fully\* paid and never endorsed the balance book. In support, the Appellant cited Receipt No. 429 as an example of the above. In my view this defence was a second thought because it was not put to the witness in cross-examination at the trial. In any case, the Receipt No. 429 which was cited by the appellant was even not one of the Receipts listed cither by PW1 or by PWJ in Exh. P1ll»

As I had said above, the prosecution case depended entirely on circumstantial evidence. The law on this is clear. It is that the inculpatory facts must be incompatible with tho innocence of the Appellant and incapable of explanation upon any other reasonable hypothesis than that if guilty, (see Musoke V. R. (1%8) EA 7^5)• In the instant case, the evidence of PN1, PW3, PW4 2nd PW5 put together indicated that the Appellant was the cashier who received the said sum of money on behalf of the company but did not hand it over to the management of tho company. There was therefore sufficient evidence to support the conviction. The trial Magistrate therefore camo to a correct decision. He was justified in rejecting the defence. This disposes of grounds Nos\* 1, 2 and 3\* For tho reasons given the appeal must fail\*

Mr. Muwayire - Nakana abandoned tho ground about sontenco, Bospite that abandonment however, J^/s Nkwasibwe submitted that the sentence imposed on the accused by tho trial Magistrate was illegal for failure to comply with tho mandatory requirements

in sections 257 and 259 of the Ponal Code Act.

Section 257 of the Penal Code Act as amended by Statute lie. ¹ of ¹ \$87 provides for a mandatory minimum sentence of 3 years and a maximum sentence of not more than 14 years imprisonment. Section 259 provides for a mandatory order for compensation against a person convicted under sections 257 ond 258 of the Ponal Code Act in favour of r-ggricsoxl. person in the offence^ Tho court hoc discretion, as to tho amount to award.

In tho instant coco, tho trial Ifo^istrato- -cantenood the appellant to a fine of shs. *500,000/=* or in default to twelve. months imprisonment. Tho sentence is clearly illegal as it did not impose- the mandatory minimum penalty of 3 years imprisonment Similarly, tho omission to award compensation against tho accused in favour of tho aggrieved person in the offence was illegal because that order for compensation is- a rinr^atmry i> tho section.

There was no cross-appeal by the Respondent a^ins^^aentoncc. But I think tho end of justice will not bo mot by leaving the illegal sentence on tho record because tho Respondent did not file a Cross—appeal, It is therefore sot aside.

Orders- The filo is remitted to the trial Magistrate to comply with sections 257 nnd 259 of the ponal code Act as amended by statute ¹ of ¹ \$87\*

> G. M. OKELLO JUDGE. 15/9/95.

Julgnont delivered in Court in the presence of Appellant Mr. Muwayiro - llaknna for Appellant and Nkwesibwa for Respondent.

G. M. OKEIjLO JUDGE.-

15/9/55.