[2021] UGHCACD 5

## THE REPUBLIC OF UGANDA I\ THE HIGH COURT OF UGANDA AT THE ANTI-CORRUPTION DIVISION, KOLOLO CRIMINAL APPEAL NO I. I OF 2O2O (Arising from HCT-00-ACD-00 CR. SC 0132 - 2019) Uganda::::::::::::::::::::::::::::::::::::::::::::::::::::::: Appellant Vs

Dr Benjamin Chebet : : :: : : : : : :: : : : : : :: : : : : : :: : : :: : :: : :: : :: Respondent

Before: Hon Lady Justice Margaret Tibulya.

## Judgm cn t

ry't

The Respondent was charged with Embezzlement contrary to Section l9 (a) and (iii) of the Anti-Comrption Act 2009 as amended. He was tried and acquitted by ^a Magistrate Grade One Court. The Appellant was dissatisfied with the decision of the lower couft hence this appeal.

The crux of the state case was that on 3lst May 2018 at about 5:00 am Pwl (Wamanga Sulaiman) saw the Respondent and a driver of Budadiri Health center's vehicle load suspicious luggage on the vehicle, and drive towards the gate. Prvl demanded to search the vehicle before they could exit the facility. In the process of conducting a search he came across a sack in which he suspected that there were human drugs. Pw2 (Nakanyolo Albert) joined Pwl at this point. Pwl off-loaded the suspicious sack, and in the process of searching it, the Respondent went to him and told him that it contained things he was taking to his children, and he physically struggled with them to block them from searching the sack.

The account of (Pw3) Godagi Muniru who operates a shop opposite the facility gate corroborates that of Pwl and 2 in material parliculars in relation to the above events. When (Pw3) Godagi Muniru saw the Respondent struggling with Pwl and 2 over the sack he went to the scene and held the sack. Upon touching it, he thought that it contained Coaftem drugs, but when he tried to check it, the respondent grabbed it and ran away with it, but Pwl, 2 and 3 followed him. According to Pw3, the respondent threw the sack at the Theatre and went back to the vehicle. By the time P wl, 2 and 3 went back to the gate the respondent and the driver had left the facility. Pwl and 2 watched over the sack until the Police and District officials came to the scene Qt

When Pw7 (Naguli Amunon), the first police responder and investigating officer in this case got to the scene, Pwl informed him that he grabbed the drugs from the vehicle and took them to his (Pwl's) house. Dw3 (Imenen Angella Rose) and Dw4 (Muyomba Simon) similarly testified that the Askari told them that he had taken the drugs to his (the Askari's) house. According to Pw7, he with others went to Pwl's house and recovered the drugs.

Fumbala Davis (Pw4) was called to the police station where he found a half-full sack containing Coartem drugs totaling to 1485 doses. He determined that the drugs were part of those he had delivered to Budadidiri Health Center on 30'h May 2018 on the basis of the expiry date and the batch number (No. QK 71971) he saw on them.

According to Betty Edea (Pw5) after the drugs were recovered, a stock taking exercise was conducted and it was established that the Coartem drugs in the store were less than those which had been delivered the previous day.

Dw4 (Muyomba Simon) however stated that when they entered the store, they found that all drugs were still in the store.

According to Betty Edea (Pw5) and Pw6 (Maloba Gertrude) the Respondent had a copy of the key to the store, a fact Dwl(Dr Chebet) and Dw3 (Angella lmenen) refute.

The Respondent denied the allegations and maintained that the prosecution witnesses bore a grudge asainst him and planted the drugs on him at the behest of the District Health Officer (Wabomba Nicholas).

## The appeal is premised on the following grounds;

- ^I. The Leamed Trial Magistrate erred in law and fact when he found that there were grave inconsistencies in the prosecution evidence, thereby wrongly acquitting the Respondent. l'r - 2. The Learned Trial Magistrate erred in law and fact when he believed the defence case ofa grudge in total disregard to the evidence on record thereby erroneously acquitting the Respondent. - 3. The Learned Trial Magistrate erred in law and fact when he engaged in speculation and imported extraneous matters into the case thereby arriving at a wrong decision. - 4. The Learned Trial Magistrate erred in law and fact when he wrongly found that the accused didn't have access to the drugs by virtue of his office, thereby occasioning a miscarriage ofjustice.

It is now settied that the role of a first appellate court is to reappraise the evidence and subject it to an exhaustive scrutiny before drawing its own conclusions, bearing in mind that it did not see the witnesses testifo (Kifamute Henry Vs Uganda (Criminal case No l0ll997). The prosecution bears the burden of prool, and must prove all ingredients ofeach of the offences beyond reasonable doubt.

The Learned Trial Magistrate erred in lat'and fact when he found that there \r'ere grave inconsistencies in the prosecution evidence, thereby' rvrongll' acquitting the Respondent. o(

## The L:rn

The Black's law dictionary defines an inconsistency in the following terms:

"not consisten\ two or more items that are not the same or ore contradictory, Mutually repugnont or contradictory: Conlrary, tlre one to lhe other so thot bolh cannol stand but the occeptonce or eslablishment of tlre one implies the abrogation or abandonment of the otlrer: in speaking of inconsistent defences or the repeal b), o stotute of all laws inconsistent herewith" (2"d Edition "https://thelawdictionary.org/inconsistent/"title="INCONSISTENT">INCONSIST ENT<ia>).

Consistent jurisprudence however makes a distinction between minor and grave inconsistencies and points to the fact that only grave inconsistencies will be fatal to the case. A grave inconsistency was defined in Richard Munene vs The Republic (CA NO 74 OF 2016) in the following terms;

"it is a settled principle of law hou,ever, that it is not evety tri/ling contradiction or inconsistencl, in the evidence of the prosectdion v'itness that v'ill be fatal to its case. It is only v'hen such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubts in the mind of the trial court (emphasis added) that an accused person *will be entitled to benefit from it.*"

In their submissions, the Appellant assailed the lower court's judgment on the ground that the Trial Magistrate erroneously categorized four aspects of evidence as major contradictions. In his reply the respondent highlights eight aspects of the state evidence (including the four which the appellant cites), and invited the court to find that they were grave and warranted his acquittal by the lower court.

The court determines that only a few of the eight aspects of evidence cited by both parties are contradictory as will be shown shortly. The only issue in relation to the contradictory aspects of evidence is whether the contradictions were grave as to $\gamma$ support the lower court findings.

I am persuaded by the *ratio decidendi* in the case of **Uganda Vs Kavuma Crim** session case 819/2016, that the gravity of a contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case, and that the question is whether or not the contradictory elements are material to the determination of the case.

The court will now proceed to determine whether the eight aspects of evidence which form the basis of the complaint in the first ground of appeal are contradictions indeed.

1. Pw1 (Suleiman Wamanga) stated on page 6, paragraph 1 of the record of proceedings that "... I reported on duty at 8.00 am on $30^th/5/2018...$ , I kept watching it (vehicle) the whole day and night", while Pw2 (Nakanyolo Albert) stated on page 10 paragraph 2, line 9 that "... my duty ended on $30^th/5/2018$ at 6pm, my colleague (**Pw1**), came and took over.

The courl detennines that Pu l and 2 indeed contradicted themselves as to u,ho was on duty on the 30th/5/2018, but that the contradiction cannot by any standards be categorized as grave, being that the issue of whether or not Pwl and Pw2 were on duty on 30'h/5/2018 is not relevant to the key issue in the case; whether the respondent stole the drugs on 31" May 2018.

2. While Pw2 (Nakanyolo Albert) at page l3 of proceedings, states that the Doctor was present on 30th May 201 8, and was part of the stock taking exercise of the new delivery of drugs around 3pm, Pw'l (Suleiman Wamanga) does not state so. In cross examination (page 7 of the record of proceedings) Pwl states thus "...they verified drugs on 30'h May 2018, I was around, people present were Nasar, Giso, chairman, Edea Betty, David Fumbula, I was present....and if drugs were not verified on 30rh may 2018, court should take me as a liar.." 1/

In my vieu, the fact that a witness mentions somethine which another witness does not mention is not a contradiction. The fact that a witness doesn't mention the occurrence or existence of a fact or set of facts can be accounted for by the possibility that he was not specifically asked about that fact (as seems to have been the case here) or that he simply forgot to mention it. I find that there was no contradiction in this instance.

³. At page 10 of the record of proceedings Pw2 (Nakanyolo Albert) states thus "....my duty ended on 30'h May 2018 at 6:00 pm, my colleague Pwl carlte. . .

On the other hand, Pwl stated that he was at the health facility on 30l5l20l8 at 3:00 pm and witnessed the verification of drugs.

On the basis of Pw2's evidence above, the respondent maintains that there was ^a contradiction since Pwl could not have been at the health facility on 3015/2018 at 3:00 prn and witnessed the verification of drugs.

The court however determines that there was no contradiction in this regard either. The evidence that Pw2 (Nakanyolo Albert)'s duty on 30'h May 2018 ended at 6:00 pm "and Pwl came" does not contradict Pwl's evidence that he witnessed the verification of drugs at 3:00 pm on the same day. The two witnesses were clearly testiffing about two separate occurrences.

4. Pwl (Suleiman Wamanga) at page 9 of the record of proceedings states that "... the main gate was not open except the small gate..." and again states on page 7 paragraph I that the Doctor disappeared and left with the vehicle and the driver. q'

The respondent wonders hor,r,the Doctor could have left the facility when Pwl had not opened the gate. The court again determines that there is no contradiction in Pw I 's evidence in this regard. The submission that this piece of evidence is contradictory seems to be premised on the narrative that the respondent was not at the scene on the material day. The respondent however (at page 56 par I line 2 of the proceedings), states that \*the actual truth is that when I reached the gate there was an incident between driver, and the Askari's and me", meaning that he was actually at the scene u,hen the occurrences complained about took place. The fact that there is no evidence as to how he managed to exit the facility is ofno consequence since he obviously exited at some point.

5. Pw5 (Edea BetQ) states on page 2l that "... we did stock-take, there were discrepancies in coartem tablets, anticunet, and RDT for payment tests." Pw7 (Naguli Amunon) in cross examination at page 38 of the proceedin-es states thus; "...we counted the drugs... begun with the neu, stock, and we were told the new stock was intact". Pw8 (Sgt Egwangu) also stated that they were informed that the drugs in the new stock were intact.

The court again finds no contradiction in this evidence, principally because Pw 7 and 8's evidence that the drugs in the new stock were intact was clearly hearsay and points to the possibility that they did not participate in the reconciliation of the amount of drugs they got in the store with the amount that had been there before the theft. This is the reason they both say that they were told that the new stock was intact. The only direct evidence about the reconciled amount of drugs was that of Pw5 (Betty Edea) who was clear that there was a discrepancy between the amount of drugs which had been in the store, and those found when the stock taking exercise took place. The alleged contradiction in this regard was there only imaginary Ctt

6. The respondent maintains that there r.l,as a contradiction as to who informed the authorities about the theft of the drugs at 5.30 am on the 311512018. Pwl (Wamanga Suleiman) stated that he called the DHO first and then other District Officials (page 7 paragraph I line 3), while Pw2 (Nakanyolo Albert) stated that he communicated to Pw7 (Naguli Amunon) who was the OC Busulani police station (page I I par I line 9). Pw7 however states that it was not Pw2 but the District CID officer (page 34 par 5 line I of the record ofproceedings) who informed him about the theft.

The court determines the above evidence is contradictory indeed but that the contradiction is minor since the issue of who informed Pw7 about the theft is not central to the determination of the key issues of whether the respondent

stole the drugs in issue. The contradictory elements are therefore immaterial to the determination of the case. There is moreover no evidence pointing to deliberate dishonesty by any of the concemed witnesses.

7. It is contended that there u,as contradictory evidence about the colour of the bag in which the drugs were found in that at page 6 paragraph 2 lines 8-9 Pwl(Sulaiman Wamanga) stated that the bag was brown in colour,, at page l0 paragraph 3 line 7 Pw2 (Albert Kanyolo) stated that the bag was yellow, while Pw3 (at page 15 paragraph 2 line 3) stated that it was cream in colour. Q'

The court fully agrees with the respondent that this was contradictory evidence, but determines that the contradiction is minor since the existence of the bag is not contested. What its color was is not central to the detenrination of the key issues in this case. The contradictory elements are therefore not material to the determination of the case. There is moreover no evidence pointing to deliberate dishonesty by any of the concerned witnesses. The Trial magistrate was in error when he discounted the evidential value of the bag on account ofthose contradictions.

8. There is the alleged contradiction in the testimonies of Pwl (Wamanga Suleiman) and Pw2 (Nakanyolo Albert) about when each of them was on duty. Pwl stated that onthe 30/0512018 he reported for duty at 8:00 am and was on duty the morning of 3115/2018 at 5.30am (page 7 paragraph 4 line2), while Pw2 states that on 3O/512018, he u,as on duty till around 5.30 pm and that his duty ended at 6: 00 pm.

The court considers that the contradiction is not grave principally because the presence of both witnesses at the scene and their participation in the apprehension of the respondent is not contested. The exact time each of them reported for duty on the material days is not central to the determination of the key issues in this case, and it is immaterial to the determination of the case. There is moreover no evidence pointing to deliberate dishonesty by any ofthe two witnesses.

On the whole the court is in agreement with the Appellant that any contradictions in the state evidence were minor as I have demonstrated. I find that the leamed trial magistrate indeed ened in law and fact when he found that there were grave inconsistencies in the prosecution evidence, and therefore wrongly acquitted the respondent. The first \_eround of appeal succeeds q

## Grounds 2 and 3

2. The Learned Trial Magistrate erred in law and fact when he believed the defence case of a grudge in total disregard to the evidence on record thereby erroneously acquitting the Respondent.

3. The Learned Trial Magistrate erred in law and fact when he engaged in speculation and imported extraneous matters into the case thereby arriving at a wrong decision.

The Respondent's defence was that these charges were the result of a conspiracy between the prosecution witnesses and the District Health Officer (Dr. Nicholas Wabomba) because of a grudge the DHO held against him. Agreeing with the Respondent, the Leamed Magistrate noted that during the hearing he had observed a lot ofunease and negative emotions between the parties which he interpreted as a reflection ofbad blood between the accused and some of the prosecution witnesses

especially Pw5 (Bett\_v Edea) the stores officer and Pw6 (Gertrude Maloba) who at tilnes worked in stores. On the basis of his observations, the learned magistrate agreed u'ith the testimonies of DW3 and Dw4 (the chairman management committee) that in an effort for accused to improve the hospital services, some people were affected and they designed the mechanism to eliminate him.

(\ observations he had kept to himself and are not part of the record. I am alive to the fact that I did not see the witnesses testi!. The lower courts observations about the demeanor of witnesses which formed the basis for the leamed Magistrate decision are however not part of the record. Nowhere during the hearing did the leamed magistrate indicate that a particular witness exhibited negative emotions, and so it was irregular for the leamed magistrates to have relied on

Further to that, there is no evidence supporting the finding that the prosecution witnesses were used by the DHO to fight the Respondent. While defense exhibit l0 evidences some disagreements between the respondent and Dr Wabomba, it is understood that those disagreements were purely work related and cannot be the basis for the finding that Dr Wabomba colluded with any of the prosecution witnesses to frame the respondent. Exhibit D.7 relates to staff deployment and has nothing to do with Dr Wabomba.

P\*'l and Pw2 (at pages 9 Para I line 3, and 14 Para 2 line 2-5 of proceedings) maintain that they had no knowledge of a grudge between the Dr. Wabomba (DHO) and the Respondent. Pw8 doesn't also state that the Respondent had ^a grudge with Dr. Wabomba. Pw1 and Pw2 were clear that they were not part of any racket to frame the respondent (pages 9 Para 2 line 6, and 14 para 2-3 of proceedings).

In agreement with the appellant therefore, the court finds that the learned Trial Magistrate ened in law and fact when he believed the defence case of a grudge in total disregard ofthe evidence on record, and when he engaged in speculation and imported extraneous matters into the case thereby arriving at a wrong decision. The second and third grounds of appeal succeed. 1-

The Learned Trial Magistrate erred in law and fact when he wrongly found that the accused didn't have access to the drugs by virtue of his office, thereby occasioning a miscarriage of justice.

At page 13 para 2 of the Judgment the learned trial magistrate made a finding that the accused never had the store keys and that he never worked in the store. Pw5's (Betty Edea the storekeeper) evidence that the respondent handed to her one key of the store and that he kept a copy of the key so that in case of any emergency he could access the medicine was not challenged in cross examination.

Her evidence was lent credence by that of Plr, 1 and 2 that the Respondent had every key ofthe facility (page7 para I line 3 ofthe proceedings) and that he and Pw5 (Betty Edea the storekeeper) had keys to the store (pages 9 para I line 5, and I I para 2line l-2 of the proceedings).

The Respondent's assertion that the new store had only one key was rebutted by Pw5 (Betty Edea)'s evidence that the new store where drugs were stolen from is where the respondent would pick emergency items such as gloves and stiches (page 24 para 3 & 4 line of proceedings). Pw6 (Gertrude Maloba) supported the above account confirming that the Respondent and Pw5 were the only personnel with keys to the store (page 29 para 2 line l-2 ofthe proceedings).

The above evidence contradicts the lower courts finding that the respondent did not have access to the dru-qs by virtue of his office. The Appellant's complaint in ground 4, that the leamed Trial Magistrate erred in law and fact when he wrongly found that the accused didn't have access to the drugs by virtue of his office succeeds, and with it the whole appeal. ^q

ln conclusion, the court finds that the Appellant adduced suffrcient evidence to prove that on 3l't May 2018 at Budadiri Health centre IV, Sironko District while employed by Sironko District Local Government as a Medical officer the respondent stole 1485 blisters of Artmether Lumefamtrine (anti-malaria drugs), from the centre, worth 5,,833,822/= the property of Sironko District Local Govemment, to which he had access by virtue of his office.

In the result, the judgment and orders of the lower court are hereby set aside. An order ofconviction for the offence of embezzlement ofdrugs is entered against the respondent.

Hon L 1', stice Margaret Tibulya Jtr ^C 26'h August 2 I

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