[1994] UGHC 89

## THE. REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO. 66 OF 1993

(Arising out of Cr. Case No. MN 231/93 of Nakawa Court)

WA LAKIRA LAWRENCE :::::::::::::::::::::::::::::::::::

## VERSUS

U G A N D A :::::::::::::::::::::::::::::::

Before: The Hon. Lady Justice M. Kireju

## $Ju$ d g e m e n t:

$\cdots \cdots$

The appellant was convicted by Magistrate Grade I Nakawa Mengo Magestrial Area of theft contrary to Section 252 of the Penal Code on 16/22/93. He was sentenced to pay a fine of shs. 1,000,000/= or to 30 months imprisonment in default. He now appeals against conviction and sentence.

At the hearing of the appeal the appellant was represented by learned counsel. Mr. Kityo of M/S Kityo & Co. Advocates and the state was represented by learned counsel, Mr. Wamasebu, Senior State Attorney.

After hearing the appeal on 27/5/1994 I ordered the release of the appellant from the prison for the reasons which I reserved for to-day.

The memorandum of appeal contained the following grounds:-

- The trial magistrate misdirected imself when he $1.$ convicted the appellant of theft of shs. 800,000/= at Greenland Bank Jinja Road, when in fact the prosecution did not adduce evidence of theft. - The trial magistrate did not direct himself as to the $\overline{2}$ . ingredients of the offence. - The sentence was excessive. 3.

The marticulars of the offence as stated in the charge sheet

wore:-

**State**

$\frac{1}{2}$

Walakira Lawrence on the 28th day of February,<br>1993 at Greenland Bank, Jinja Road in Kampala District stole shs. 800,000/= the property of Mr. Ivan

Biryomumaisho"

$: 2$

argued

Mr. Kityo, the first two grounds of appeal together. $\qquad \qquad \text{He}$ submitted that there was no evidence to prove the offence as laid down in the charge sheet, namely that the accused fraudulently took shs. 800,000/= on 28/2/93 at Greenland Bank. He contended that the evidence of PWL page 3 and 4 of the record of proceedings show that PWI, the complainant and the appellant agreed to enter into a joint venture of buying beer from farmy barracks Entebbe. The commlainant provided the money which was used to buy the 50 crates of beer. The beer was deposited at the appellant's home for the purpose of finding a buyer. The complainant claimed the beer was sold but the appellant never paid him. On his part the annellant testified that the beer was impounded by the anti-smuggling unit. Counsel submitted that what was in issue was the beer and not the money. He further submitted that the ingredients of theft were not proved. On sentence, counsel submitted that it was excessive $nnt$ and the appellant should have been penalised on behalf of other commen. He argued that it was wrong for the trial Magistrate to award compesation as this was a Criminal case and not a civil case. Counsel prayed that the annellant be acquitted on all the grounds.

Mr. Wamasebu counsel for the state did not support conviction he agreed with what counsel for the appellant submitted on grounds 1 and 2 of the appeal. He added that the trial magistrate failed to distinguish the theft of money from that of beer. The trial magistrate also misdirected himself on the appellant's right to make unsworn statement. On Sentence counsel submitted that if the annellant had been properly prosecuted one year imprisonment would have met the ends of justice as he had admitted stealing in the alloctus.

The prosecution evidence was led by PW. I Ivan Biryomumaisho and the complainant in the case. He testified that he knew the the appellant before the matter complained about happened. The

from at the army shop

before he was retrenched from the army\* After he was retrenched the witness trot him ^a job as ^a security officer. When the appellant went to collect bis appointment letter he told the witness that someone had offered him ⁵⁰ crates of b^er but he had ^a problem of capital to purchase the said be°r. The appellant informed the witness that he anticipated ^a profit of shs. 150,000/=,he would take shs. 100,000/= and th^ appellant would take shs. 50,000/=. They calculated and found that beer would cost shs. 775»OOO/= and transport was estimated at shs. 25,000/=.

The witness decided to go with the appellant at Katabi Army barracks to confirm whether the beer was available. nfter confirmation the witness went to Greenland Bank and drew shs. 700,000/= as he already had shs\* 100,000/= in his bag. They drove back to Entebbe and paid the money shs. 775^000/= to the appellant's friends, the beer was loaded on the pick-up and taken to the appellant s home at Baitababiri for the purpose of finding ^a buyer, this was on 2/4/1993• ^he beers a were eventually taken b^ brown woman who was brought by the appellant. When the witness caught up with the appellant, he was told that the b^rs had been sold to Sekamate of Kasubi and he promised to bring th» money to the witness on a Wednesday but the appellant did not show up. ^mh« witness decided to have the appellant arrested he? was taken to Jinja "Road Police Station. The parents of the appellant had wanted to nay th^ witness the said money in instalments but the appellant refused his father to•intervene. The appellant never paid the witness his money•

Road PW.2 was D/CPL Kayemba ^a police officer attached to Jinja^Police station who investigated the case'and said that Nsubuga and Magola admitted that they had received shs. 800,000/= from the complainant and the appellant.

PW. J R/i 13176 Sgt. Turyahebwa Geoffrey, attached to NRA General headquarters Mbuya, testified that the complainant PV7. I reported ^a case on 24/5/1993 involving shs.\* 800,000/= which he alleged to have

Piven to the accused "falakirh who rm - - - the appellant was arrested from Abaitababiri and token to Jinja Road • 3 Police Station on the ground that the offence was committed in Nakawa.

. After th^ above evidence the trial Magistrate found that theie was a case to answer and the appellant was cal'led to his defence and he elected to make an unsworn 'statement. He said that he had never gone to Nile Bank to get money from there, probably he meant Greenland Bank. He said he knew the complainant when he was working in the army shop as a security officer where the complainant used to come\* In December, 1992 he applied to leave the army so that he could look for something else to do. On 18/2/93 he took an application for a job as security officer to G. M. Co. where the complainant was working. The complainant suggested to ?nim that they should deal in army beer, thnt he buys and the appellant sells. ^xhey both went to Katabi Army . barracks, the annellant told P. W. I to call one Nsubuga. When Nsubuga came he went back in the barracks with PWI who had money in a polythene bag with ^a Nile Bank label. Later PWI and the appellant got a pick-up^T tW crates or beer were loaded and taken to the appellant's place. PWI told him to look for ^a market. He took the beer to Ms Jane who promised to pay but when h« wont back to check on the money, she told him that the beer had been confiscated by the anti-smuggling unit. The beer was for army and not meant for sale. Ho informed PWI of what had happened. However, in May 1993, PWI camo with other men arid they arrested him and took him to police. He said that he was just a commission agent and denied the charge.

In his brief submission, counsel for the accused, Mr. Kityo prayed that the accused be acquitted as there was no evidence that he had. taken the money.

The prosecution left the matter to court to decide\*

Trom th^ above evidence 'it is clear that the- charge brought a^inst the. apnellant was not supported by evidence. There is no evidence to show that the anpellant handled th~ shs. 800,000/= at any one moment whether at Greenland bank or else where. The evidence on record

low that it was the complainant who handled the money unorpaid at Katabi barracks. The appellant received in his possession 50 crates of beer which he was supposed to find a market. There is no evidence to confirm that the appellant got any proceeds from the sale of beer apart from the fact that he got back 50 empty crates of beer.

However, on page 8 of judgement the trial magistrate based his conviction on his conclusion that the appellant sold the beer and converted the money to his own use. I quote from the judgement 2nd paragraph on page $8$ .

"From the accused's evidence it appears that he does not know that woman Jane, and one could tell that accused never sold Jane

> any beers on credit, a person he did not know before. If it was to be true at all, accused would have endeavoured to make a small commitment in writing with Jane that she has taken his beers on credit. All this indicates that he sold the beers on credit. All this indicates that he sold the beers to another person for cash, and converted the money to his own use with the necessary intent to permanently deprive Ivan Biryomumaisho or sha. 800,000/m.

Also on page 9 middle of 3rd paragraph:

$\bigcirc$

$\cdots \quad \cdots$

"Justice is that the accused sold the beers, got the proceeds and converted the money into his own use."

This was a misdirection on the part of the trial magistrate because the appellant was not charged with pocketing the proceeds from the sale of beer but the money he received at Greenland bank. $\scriptstyle\rm The$ trial magistrate also failed to appreciate the nature of the trasaction between the complainant and the appellant which was a business deal or a joint venture. The complainant provided the financing while the annellant identified the goods and was responsible for selling and they were to share the profits. Later when the appellant failed to perform his part of the deal PWI decided to report the matter to Police which was not correct as this was a Civil matter which could have been handled by bringing a civil suit.

The trial magistrate withough he directed himself on the law relating to the unsworn statement by the accused which is a legal right, he went to comment on it as if he was not happy with the law. On page

$...16...$

9, 4th paragraph he had this to sav:

"Consquently, the significance of giving<br>an accused person the right to make an unsworn statement at his trial is, perhaps, not clearly understood. Is this a licence for him to tell a lie in court? And what is the evidencial value of such unsworn statement? These are some of questions which irresistably call for answers."

$\mathbf{I}$

After posing these questions he went on to state the law relating to an unsworn statement by an accused. On page 10 of his judgement last paragraph he wrote:

$\mathbf{6}$ $\mathbf{t}$

"There are no contradictions or discrapancies in the prosecution evidence. I discussed the prosecution evidence and compared it with the defence evidence not on oath and hold that the accused has no defence to the charge against him."

The manner in which the trial Magistrate kept referring to the accused's unsworn statement seemed to show that he was not happy with As I have already said this is the accused's constitutional right it. and the Magistrate should have desisted from making statements which appeared to show that the accused was probably not telling the truth by the mere fact that he made unsworn statement. The accused should not be penalised for making an unsworn statement, Lubogo & 2 others vs. Uganda 1967 EA 440 refer.

In view of the above findings I am of the considered view that the appellant could not have been convicted of the offence charged as it was not sunnorted by evidence. For the reasons which appear in this judgement, this appeal is allowed, the conviction is quashed and the sentence passed on the appellant is set aside. The appellant is already released by the order of this court.

Refore I take leave of this appeal, I would like to make an 🦠 observation that criminal proceedings should not be invoked to enforce civil claims. The basic objective of a criminal prosecution being the punshment of the offender and not the compesation of the complainant remains the object of Civil litigation although Compensation victim. in provided for/a limited way under the criminal law.

The proper machinery for recovery of Civil debts is by way of

sivil proceedings and not criminal proceedings and the magistrate should always be alert to ensure that the process of courts is not Tom Akoko vs. Uganda Crim. Appeal No. 44 of 1978 refer. abused.

The sentence imposed by the trial Magistrate also calls for comment. The reasons for sentence were stated on page 11 & 12 of the judgement to be as follows:

"This is because the accused is first offender. And in mitigation the accused prayed for<br>leniency. Ctherwise in passing the sentence<br>I had in mind the pertaining situation in Kampala City where commen of the accused's calibre are on the increase and that there is a need to pass harsh sentrace in order to fight this type of crime which is on the increase."

$\mathcal{I}$

I am of the considered view that the learned trial magistrate misdirected himself when he considered that in Kampala City conmen

of the accused's calibre were on the increase when there was no evidence on record to support such a conclusion. And although court is allowed to take into account prevelance of a particular Frime, the court must be careful not to punish the accused for others who have committed similar offences and have not been punished. The trial magistrate also said that', there was need to pass a 'harsh' sentence, I am sure what the Magistrate wanted to say was a 'deterrent' sentence. It is always safe for the Magistrate to use objective words which do not have the effect of reflecting his personal opinion in his judgement.

It is also important for the court to give reasons for sentencing in order to ensure that the decision involves proper application of the law and discretion, it also helps to explain to the offender the basis for the sentence imposed. The appeal court is also assisted in deciding whether the discretion has been properly exercised by the trial court, it also informs the general public the principles on which courts act.

The trial magistrate also misdirected himself when he fined the

$... / 8...$

accused shs\* 1.000,000/= without making any inquiry as to his ^z nr'51ity to nay contrary to S, 192 of Magistrates Courts Actt and *f* & 1.ally in view of the fact that the appellant was retrenched veteran withr/ut ^a job. The sentence was excessive considering the offence and thr fact that the appellant was ^a young and first offender. Tt ••."uid nr-nonr that the Hnrristrnte imposed the excessive sentence of a maximum fin^r un^<-r 0. 158(1) MCA in order to compensate the complainant. It ¹ a-- b'"^n hold that it was wrong in principle to impose ^a fine simply frr the purpose of providing ^a fund out of which the victim could be compensated. The proper procedure is for the ^oUrt to first decide that ^a fine is appreciate and then decide what the amount of the fine should be according to ordinary principles that govern sentence and only if ^a fine would otherwise be right in all the circumstances should the court turn to consider how much, if any of the fine should bo paid over as compesation - Eervs. Norman Godinho/19.5Q / ¹⁷ EAC^h l^.?^ ^ubst^mixal comnesation should usually be recovered by a Civil Suit. In the case — . — ■\* of Salemani Vs. Republic /1972EA 269» cited with approval in the Up-anda Vs. Matovu 197^ Eh 195¹ the court of appeal stated ³ elements which have to be present before compesation can be ordered under S. 176(1) of Tanzania Criminal Proceedings Code which is the same -as. -209/1) of MC\. First the person entitled should have suffe^d' material loss or Personal inquiry, secondly the comnesation would be recoverable by Civil Suit, and thirdly such compesation should be such as the 6ourt dooms fair and reasonable, which must connote an enquiry and the opportunity fivnn to the convicted person to present his case.

> 'H? ^&gt; M. Kireju Judge 10.6.199\*+

10/6/9- 9.15a.m. Appellant present. Mr. Kityo for the appellant excused himself, he had some urgent business to attend to with the police. No representative for the state. Mr. Wagaba - Court Clerk. Judgement delivered before the above.

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