[2018] UGSC 86

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Arach-Amoko; Mwangusya; Opio-Aweri; Mwondha; Tibatemwa-Ekirikubinza; JJ. S. C.

## CRIMINAL APPEAL NO. 11 OF 2017

#### **Between**

SEMPEBWA ERNEST ....................................

And

<table>

UGANDA ....................................

(Appeal from a decision of Court of Appeal of Uganda, Kampala: by Remmy Kasule, Balungi Bossa and Barishaki Cheborion, JJA Criminal Appeal No 0879 of 2014)

## **JUDGMENT OF THE COURT**

## **Introduction**

The Appellant, Sempebwa Ernest together with Nsereko Enock (A2) and Kabanda John (A3) were jointly indicted before the High Court (Anti-Corruption Division) for various offences for which they were convicted. In Count one the appellant was indicted for the offence of Embezzlement contrary to Section (19) (i) and (iii) of the Anti-Corruption Act, 2009. It was alleged in the particulars of the offence that between the 18^th and 19^th day of November, 2013 at Eco Bank, Oasis Branch, Kampala District, the appellant being employed as Head Teller and Vault Custodian, stole USD

390.000 (three hundred and ninety thousand United States Dollars), the property of his employer which came into his possession by virtue of his employment. In the second Count, Kabanda John (A3) was charged with theft contrary to Section 254 (1) and 261 of the Penal Code Act. It was alleged in the particulars of the offence that on the 19^th day of November, 2013 at Eco Bank Oasis Branch, Kampala District he stole USD 390,000 property of Eco Bank. In the alternative count he was indicted for receiving stolen property contrary to Section 314 (1) of the Penal Code Act. The particulars were that on the 19^th November, 2013 at Eco Bank, Oasis Branch, Kampala District he received USD390,000 from Sempebwa Ernest, knowing or having reason to believe the same to have been feloniously stolen or obtained.

In the third Count Kabanda John was indicted for purchasing forged bank or currency notes contrary to Section 357 of the Penal Code Act. The particulars of the offence were that on or about 11^th February 2014 at Makindye, Kampala District, without lawful authority or excuse, he had in his possession forged bank currency notes amounting to USD 401,400 (four hundred and one thousand, four hundred United States dollars and had knowledge that the said notes were forged.

In the fourth Count all the three accused we indicted for conspiracy to defraud contrary to section 309 of the Penal Code Act. The particulars of the offence were that the three accused, in November 2013 in Kampala District conspired to defraud Eco Bank of USD, 390,000.

#### **Background**

The facts of the case giving rise to the above indictment and as found by both the High Court and the Court of Appeal were that the appellant was an employee of Eco Bank Ltd at Oasis Mall Branch. He was employed as head teller and keeper of the vault. On the 18^th day of November 2013 the appellant received instructions to transfer some money inclusive of both local currency and a sum of USD 390,000 to the bank Headquarters.

He picked the money from the vault to which he had access. He remitted the local currency to the Headquarters but he withdrew the foreign currency from the vault which he kept in his drawer. He made several entries creating the impression that he had cancelled the dispatch and returned the money to the vault but investigations revealed that the money was neither in the vault nor at the Bank Headquarters where it was supposed to be remitted. He was alleged to have handed over the money to his co-accused, one Kabanda John. The appellant proceeded on leave without balancing the system and investigations by the Bank revealed that a sum of UDS 390,000 which had been removed from the vault for transmission to the Headquarters had not been transmitted.

At the trial the appellant denied having removed the USD 390,000 from the vault. Throughout the trial he maintained that what appeared as a shortage was as a result of a system imbalance and not a loss of physical cash. He denied having handed any money to Kabanda John and denied having made a charge and caution statement in which he admitted having

$\overline{3}$

planned to steal the money, a plan he executed with Kabanda who ferried it from the bank.

The appellant's co-accused opted not to say anything in their defence.

At the conclusion of the trial the trial judge convicted all the accused as indicted. He sentenced the appellant to six years imprisonment for embezzlement and Kabanda John to six years imprisonment for receiving stolen property. He sentenced all the three accused to two years imprisonment for conspiracy to defraud. The sentences for the appellant and Nsereko Enock were to run concurrently.

All the convicts appealed against their convictions and sentences to the Court of Appeal. The Court of Appeal disallowed the appeal of the appellant for embezzlement but allowed his appeal for conspiracy to defraud. The appeals of his co-appellants against both conviction and sentence were allowed and were set free. The appellant being dissatisfied with the decision of the Court of Appeal dismissing his appeal and confirming his sentence of six years imprisonment for embezzlement appealed to this Court raising two grounds as follows:-

1. The learned Justices of Appeal erred in law by failing to reappraise and re-evaluate the evidence on record among others spot cash check report Exhibit PEX 2 to adequate scrutiny to find that the appellant did steal USD 390,000 equivalent to UgShs1,404,000,000 from his employer Eco Bank Limited occasioning a miscarriage of justice thereby appellants conviction on Count of wrongly upheld

Embezzlement contrary to Section 19(6) (i) and (iii) of Anti-Corruption Act 2009.

2. The learned Justices of the Court of Appeal erred in Law by dismissing appellant's appeal against a warrant to serve 6 years imprisonment instead of 2 years.

The appellant prayed that the appeal be allowed an the appellants contribution be quashed and sentence set aside.

## **Representation**

Mr. Henry Seth Rukundo represented the appellant while Mr. Maxim Elizooba, Senior State Attorney represented the Respondent.

We wish to observe that this memorandum of appeal does not comply with Rule 62 sub rule 2 of the Judicature (Supreme Court Rules) Directions S1. $13 - 11$ which we set out hereunder:-

## "62 Memorandum of Appeal

# $(1)$ ....................................

(2) the memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds objection to the decision appealed against specifying in the case of a constitutional appeal, the points of fact or law or mixed law and fact which are alleged to have been wrongly decided, and in third appeals the matters of law or great public or general importance wrongly decided.

| $(3)$ | | | | | | | | | | | |-------------------------------------------------|--|--|--|--|--|--|--|--|--|--| | $(4) \ldots \ldots \ldots \ldots \ldots$ | | | | | | | | | | | | $(5) \ldots \ldots \ldots \ldots \ldots \ldots$ | | | | | | | | | | |

It is difficult to follow what points both grounds of appeal are raising. The Court of Appeal raised a concern about the careless way particularly as to grammar the two memoranda of appeal filed before the Court had been drawn. Mr. Henry Rukundo, one of the Counsel who had filed a Memorandum of Appeal at the Court of Appeal is the same Counsel who filed the one before this Court.

He never heeded the caution by the Court of Appeal about badly drafted grounds and ended up with grounds of appeal that flout the rule of this Court as cited above. We contemplated striking out both grounds of appeal but guided by the authorities which define the role of this Court as a second appellate Court we opted to resolve the appeal instead of striking it out.

The authority of Kifamunte Henry Vs Uganda (SSCA No. 10 of 1997) which has been followed in numerous other decisions of this Court defines the role of this Court which is distinct from that of the Court of Appeal. While the Court of Appeal as a first appellate Court is required to re-evaluate the evidence and come to its own conclusion a second appellate Court is not required to re-evaluate evidence.

The following quotation from the case of Kifamunte Vs Uganda (Supra) is definitive about the role of this Court.

"Once it has been established that there was some competent evidence to support a finding of fact, it is not open, on second appeal to go into the efficiency of that evidence or reasonableness of the finding. Even if a Court of first instance has wrongly directed itself on a point and the first appellate Court has wrongly held that the trial Court correctly directed itself, yet if the Court of first appeal has correctly directed itself on the point, the second appellate Court cannot take a different view. R Mohamed All Hasham vs R (1941) 8 EACA 93.

On the second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was evidence to support these findings, though it may think it possible, or even probably, that it would not have itself come to the same conclusion. It can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law; R vs Hassan bin Said (1942) 9 EACA 62." (underlining is for emphasis)

## Submission of Counsel for the appellant

The main thrust of Mr. Rukundo's submissions on ground one was that there was no direct or circumstantial evidence to prove that the money allegedly stolen from Eco Bank was missing. He submitted that the Court of Appeal had failed to re-appraise the evidence of the spot cash report dated 21.11.2013 which did not show that the money in question ever left the strong room. Counsel attacked both Courts for relying on a charge and caution statement allegedly obtained from the appellant when, according to him it had been wrongly admitted. He submitted that the statement had been fabricated against the appellant because there was no indication of the date, time and place where it was recorded

Counsel submitted on the conduct of the appellant when he was called from Leave and he returned to explain what had happened instead of hiding or running away. He also submitted that the fact that the appellant was not asked to refund the money was clear indication that no money had been lost.

## Submissions of Counsel for the respondent

On behalf of the respondent Mr. Maxim Elizooba, Senior State Attorney submitted that the learned Justices of the Court had dutifully re-appraised the evidence the trial judge had relied on to convict the appellant and arrived at their own conclusion. On the argument that the spot check did not reflect the shortage of USD 390,000 the learned Senior State Attorney submitted that both the High Court and the Court of Appeal had dealt with the issue and on the basis of the evidence of what took place in the Bank and the charge and caution statement in which the appellant admitted having taken the money the two Courts rightly convicted the appellant.

## **Analysis**

The case of **Kifamunte Henry Vs Uganda** (Supra) has laid down the circumstances under which this Court as second appellate

Court would interfere with the concurrent finding of the trial Court and the first appellate Court. The consideration is that there must be evidence to support the findings even if the second appellate Court would have come to a different conclusion.

We find no basis for Mr. Rukundo's submission that the Court of Appeal has failed to re-appraise the evidence of the spot cash report which did not show that the money in question left the strong room. In fact the Court of Appeal re-appraised the entire case and came to their own conclusion regarding the culpability of all the appellants before the Court leading to acquittal of the other two. The case against the appellant like those of his coconvicts was subjected to close scrutiny before coming to the conclusion that while the appellant was responsible for the theft of the money which came into his possession by virtue of his employment the other two took no responsibility.

The second consideration is whether there was evidence to support the concurrent findings of the two Courts below that the appellant had committed the offence. The two Courts below relied on two categories of evidence to come to the conclusion that the appellant removed the money from the vault and did not remit it to the Headquarters like he did with the local currency.

The first category of evidence consisted of the events in the Bank where the appellant as custodian of the second vault in the Bank accessed it and removed USD 390,000 which he failed to remit to the Headquarters. The CCTV cameras showed him moving to the vault from which he removed the money. He then proceeded to make entries which he reversed in an attempt to show that the money was not removed but the spot check showed that the money was missing. He had proceeded on leave but when he was recalled he explained that the shortage was due to the system failure but he could not balance the books.

The second category of evidence was the charge and caution statement recorded from the appellant by D/IP Okwakol Akol (PW8). Counsel for the appellant submitted that this charge and caution statement should not have been admitted in evidence because it bore no date, time and place where it was recorded. Before admitting the statement the trial Judge conducted a trial within a trial at the conclusion of which he held that the statement was properly recorded and was admissible. The Court of Appeal also considered the circumstances under which the statement was recorded and found that the omission to include the date, time and place where it was recorded was an irregularity and not such a fundamental defect that would render the statement inadmissible.

We have perused the statement in question and we have observed that it bore the appellant's name and signature on all the five pages and goes into detail of how the plan to remove the money from the bank was hatched and executed by the appellant and others. We agree with the finding of the Court of Appeal that the omission of the date, time and place it was recorded is an irregularity that does not affect the contents or substance of the statement in any way. The Court of Appeal rightly applied the principle in the case of **Tuwamoi Vs Uganda [1967] EA 84** that a Court will act on a retracted confession is the same it

some material particular by independent corroborated in evidence accepted by the Court. But corroboration is not a must in law and Court may act on a confession alone, if it is fully after considering satisfied all the material points and surrounding circumstances that the confession cannot but be true.

The contents of the charge and caution statement on their own were capable of sustaining a conviction. But there was also corroboration of the statement by the evidence of what happened in the Bank leading to the arrest of the appellant.

Counsel for the appellant raised the issue of the appellant's return to the Bank instead of escaping when he was recalled from his leave which according to Counsel is conduct of an innocent person. it is in our view that a person who thought that he had covered his tracks would return fully confident that he or she would not be caught.

On the issue of the sentence that did not include a refund of the stolen funds, we do not think that, that is a ground for finding that there was no theft. In fact we wonder as to why no order for a refund was made but that was within the discretion of the trial judge and we have not been given any reason why we should interfere with the discretion.

On the issue of sentence, the way the ground is framed does not raise any matter for consideration by this Court. The criteria for interfering with sentence by this Court is defined in the case of Kiwalabye Bernard Vs Uganda (SCCA No 143 of 2001) as follows:-

"The appellate Court is not to interfere with the sentence imposed by a trial Court which has exercised its discretion on sentence, unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial Court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle."

The appeal against sentence in the instant case does not meet the above criteria as a consequence of which ground two is also dismissed.

In the result the appeal against conviction and sentence is dismissed as having no merit.

Dated at Kampala this....................................

Arach-Amoko

JUSTICE OF THE SUPREME COURT

Mwangusya

JUSTICE OF THE SUPREME COURT

Opi-Aweri JUSTICE OF THE SUPREME COURT

Thuer Olif<br>Mwondha

JUSTICE OF THE SUPREME COURT

Prof. Tibatemwa-Ekirikubinza<br>JUSTICE OF THE SUPREME COURT