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Verbatim: Kazinda Appeal Judgement

The appellant submitted in regard to sentence that the trial Judge failed to consider the appellant's remand period while passing sentence. That the award of fines would have been sufficient instead of a custodial sentence.
13 Mar 2019 18:31
THE REPUBLIC OF UGANDA   IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 083 OF 2013 

(Arising from High Court (Anti:CorruptionDivision) HCT-00-AC-SC- s                                                   0138-2012) 

GEOFFREY KAZI..NDA .•..•..............................................• APPELLANT   VERSUS   UGANDA·••••.••·•.•......·........·.·..·.·.·•·•·•·•·•·•·.·.·.·.·.·•·•·.·.·.·•·•·••·•·••··..·•·.·.·. RESPONDENT       10        CORAM: HON. JUSTICE GEOFFREY KIRYABWIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA HON. JUSTICE PERCY NIGHT TUHAISE, JA    

JUDGMENT OF COURT   

The appellant was indicted and convicted of the offences of Abuse of Office contrary to section 11(1) and  (2) of the  Anti-corruption Act 2009  and  sentenced to 5 years  imprisonment; Forgery cjs 342  and 347 of the Penal Code Act and sentenced to 2 years imprisonment on each   of the  37  counts; Making  documents without  authority c/ s 20  355(a) of the Penal Code Act and sentenced to 5 years imprisonment; unlawful possession of government  stores cjs 316(2)  of the  Penal Code  Act and  sentenced to  2  years  imprisonment. All sentences imposed were to run concurrently.   The  appellant  appeals to  this  court  against both  conviction   and 25        sentence on the following grounds;   

1.     The learned trial Judge erred in law and  fact when  he failed to properly evaluate the whole evidence and  relied on insufficient, uncorroborated   and   incredible    evidence   to   come   to   a   wrong                              conclusion that  Exhibits P3,  PS(a-f),  PlO  and Pll  were  recovered from  the  room  of Peter  Lubulwa in Teopista Nanfuka's home. 2.      The learned trial Judge erred in law and fact when he applied a lower burden of proof in cases hinged upon circumstantial evidence 5        to make a wrong finding that the  appellant exercised dominion over exhibits P3, PS(a-f), PlO and Pll. 3.   

The learned trial Judge erred in law and fact when he convicted the  appellant of constructive possession of documents in  Teopista Nanfuka's home  without making a finding of whether the  appellant 10      was  aware of the  presence and  character of the  documents in  the house. 4.    The  learned trial  Judge erred  in law and fact  when he  made a fmding that PW9's signature on Exhibit P.3 was forged. 5.      The  learned trial  Judge erred  in law and fact  in  convicting the 15      appellant of forgery  and  abuse of office, based on the  wrong premise that the  appellant possessed the documents allegedly  recovered from the  home of Teopista Nanfuka.

6.      The learned trial Judge erred  in law and  fact when he convicted the  appellant of creating a document without authority whose facts 20       are  akin to the offence of forgery. 7.      The  learned trial  Judge erred  in  law and fact  when he  did  not resolve ambiguity as to whether PW9 authorised addition of the two companies in  Exhibit P-3 in  favour  of the  appellant, and convicted him  as such. 25       8.    The  learned trial  Judge erred  in  law  and  fact  when he  used wrong   aggravating  circumstances   to   outweigh   the    appellant's mitigating factors and thereby imposed harsh and excessive prison terms. 9.    

 The learned trial Judge erred  in law and fact when he punished 30      the  appellant more  than once  for the same act. 10.    The learned trial  Judge erred in law and fact when he based on wrong sentencing principles to sentence the  appellant severely.          


Background   

The  appellant  was   employed  by  the   Government  of  Uganda  as Principal Accountant in the Office of the Prime  Minister between July 2oo7  and    July  2012.  Mid-May   2012,  the    appellant's  health s     deteriorated and  was  granted sick  leave  ending 9th July 2012 but before    his    return,   he    was    replaced   with    another   Principal Accountant.

On  18th  July 2012, in  a complaint to  the   Inspector General of Police  (PW9), the  appellant was  declared away  without leave. On 22nd July 2012, in absence of the  appellant a search was 10      conducted in the house of Teopista Nanfuka (the appellant's mother) and  it was alleged  that government documents belonging to Office of the  Prime  Minister were  recovered in  the  room  of Peter Lubulwa {appellant's  nephew). 

The   said   documents were   recorded  on   the search certificate which  was exhibited P8.   15      The prosecution case was that the documents recovered were in three categories; cash withdraw forms marked exhibit P.10  which  are used by government departments  to withdraw cash from Bank of Uganda. The second  category were security papers marked exhibit P3 and  PS (a-f) which are documents used by government departments to effect 20       funds from one  account to another. 

The  third  category were  letters addressed to  the   Director Banking marked as  exhibit P.ll. The prosecution case  was  that the  signatures attributed to  Pius Bigirimana from  the  recovered  documents were forged  and as such taken to a forensic examiner, PWll, who  confirmed the  suspicion. 25      Following these events, the  appellant was indicted and convicted of the above offences.

  Representations  

At the hearing of this appeal, the appellant represented himself while the respondent was represented by Mr. Jonathan Okello Senior State 30      Attorney with the  Director  of Public Prosecutions (DPP).   The parties filed written submissions.            

                         Submissions of the  appellant   

The appellant submitted that  ground 1 has a number of issues for this court to resolve including whether the documents were  recovered from one location, the issue of why the items where  not shown to any 5      member of the search party during examination in chief; the tendered documents' appearances differ from  the  descriptions of  documents allegedly   recovered  and   the   failure   to  bring   key   witnesses. 

He submitted that the learned trial Judge ignored  grave  inconsistencies and  contradictions in the search certificate (exhibit P8) which goes to 10      the  root  of the  case.  PW8 stated that he  did  not  read   the  search certificate even  though he  signed  it.  PW10  Wamala   Fredrick also stated that he did not see any cash withdraw authority form and  yet it  was  included in  Exh.P8  by  the  prosecution. PW10 also  simply signed the search certificate as directed. The appellant contends that 15      the said  items were not actually recovered  from the home  of Teopista Nanfuka as alleged  by  the  prosecution but  were  planted there  to strengthen the  prosecution case.   

PW3 tendered in exhibit  P.3 as a document served  on te the  Office of the Prime Minister  by Bank of Uganda  not as one recovered  from the 20      home  of Nanfuka Teopista as was misconstrued by the learned trial Judge. In  addition, that  there   were  tendered  documents  whose appearances differ from the description of documents allegedly recovered. According  to  exhibit  P.8,  the  recovered   cash  withdraw forms had  both  signatures of Geoffrey Kazinda,  the appellant herein 25                        and  that  of  Pius   Bigirimana  and   a  stamp.  

However,   the   cash withdraw  authorization  forms   tendered  in   court  had   only   the signature of Pius  Bigirimana which meant these were different documents altogether.   In regard  to the  photographic evidence, the appellant submitted that 30      what  was    alleged   to   have   been    recovered    was    not    actually photographed and   there   is  no  photograph of what  was  recorded. PW14 could not  have taken the photographs at the scene yet he was never   there. 

That   the   documents  reflected   in   the   photographic evidence in exhibit P.lS related to the documents of transfer of funds 35      which  were  a continuation of search which  PW14 did  not  witness.   The failure to produce key witnesses like Peter Lubulwa and Nanfuka  Teopista  who  had  to  explain  how  the  said  documents reached their house was a big gap in the evidence of the prosecution. 

In regard to ground  2,  the appellant  cited the case of Padala  Veera  Reddy  Vs State of Andhra  Pradesha and  others AIR  1990 SC 79  in which it was  held  that  when  a case  rests  upon  circumstantial evidence   the  circumstances from  which  an  inference  of guilt  is  sought  to'  be drawn  must  be cogently and  firmly established. 

That exhibit P3 did not feature in any of the photographs exhibited  and its 10      descriptions    was    disowned    by    PW8   and    PWlO.    That    it    was unreasonable for the trial Judge  to infer that the appellant's personal letter was co-mingled with the exhibits yet it was not included in the search certificate.   Further that  there  was no evidence on record  to find  the  appellant 15      guilty  of  constructive    possession    of   the   documents    basing    on dominion  of the  appellant to the  home  of Nanfuka  Teopista. 

That whereas  the  home was rented  by the  appellant for his  mother, the prosecution had to prove that he had knowledge of existence of such documents. That according to the case of Dawkins Vs State 313 Md 20       1988, an individual  would not be deemed  to exercise  dominion and control over an object he is unaware of. Knowledge of presence of an object is normally a prerequisite for exercising dominion and  control.   

Whereas the  handwriting expert  was  required   to  examine various signature                     specimens,  he   demonstrated   that    he   came    to   his 25       conclusion by use  of a magnified  laboratory printout. It  was  thus wrong for the trial judge to find that  the signature on exhibit P.3 was a forgery. He argued that  the said  documents were not  in the  house and  as such, the  trial  Judge had  no  basis  to  infer  forgery  on  the appellant basing  on documents he was not aware  of.   30     

In regard  to the offence of abuse of office, the  trial  Judge based the conviction   on   the   documents  recovered   at   Nanfuka's  home.  As already submitted, the appellant contends that the  said  documents were not in Nanfuka's home  and  as such, the  appellant did  not  do any act prejudicial to his employer.       


The appellant submitted in regard to sentence that the trial Judge failed   to consider the   appellant's remand period   while   passing sentence. That the award of fines would have been sufficient instead of a custodial sentence.   s     Submissions of the  respondent   In reply, the respondent submitted that grounds 1, 2, 3, 4 and 5 have one cross cutting issue for this court to determine which  is whether the  appellant was  properly  convicted  of the  offences  of forgery  and abuse  of  office. 

Regarding   the   offence  of  abuse  of  office,   the 10      respondent submitted that  the first  ingredient was not  disputed as the  appellant was  employed  in  the  office of the  Prime  Minister as Principal Accountant.  That the appellant's claim  that  exhibits P3, PS (a-f), P10  and  P11 were planted  at  the  home of Nafuka  Teopista by police was made in bad faith.  

That there  was credible evidence showing that  the appellant willingly kept  sensitive OPM documents bearing  forged signature of PW9 in the  private residence of his mother. From the evidence of PW1, PW2, PW3,  PW4,  PWS and   PW6, all  employees  of  Office  of  the   Prime Minister, it  was  asserted that  exhibits P3,  PS(a-f) and   P10  were 20                         sensitive documents used  in OPM to pay and transfer huge  amounts of  public   and  donor  funds from  Treasury General Accounts and Crisis  Management Project Accounts. 

The evidence on record  showed  that the only two signatories to the security papers and  cash withdrawal forms  are  the  appellant and 25  PW9. Further, that  the evidence pointing to the appellant as the only person keeping security papers and  cash withdrawal forms in a safe in his  office  was  never  challenged. PW8,  the   Local  Council (LC) Defense secretary and  neighbor  to the appellant led PW12, PW13 and PW14 to the appellant's home in Bukoto  to carry  out a search.   30      PW10,  a  brother to  the   appellant confirms that  a  search  was conducted in his mother's house and  was carried out in his presence at the  room which was locked but  broken into by PW7. A laptop and documents were recovered from there  and this evidence corroborated the  evidence of PW12 and  PW13 who conducted a search. 

That the photographic evidence simply  offered  additional corroboration since the photos were admitted in evidence unchallenged.   In regard  to the  offence of forgery, the  respondent submitted that the trial Judge rightly evaluated the evidence on record and convicted the s     appellant  accordingly. The   said   documents with   the   questioned signatures  of  PW9  were   submitted  to  PWll  and a  report was accordingly submitted  confirming that  the   said signature was   a forgery. This  was  corroborated by the  evidence of PW9 who  testified that he never signed the  questioned document.  

1o    On  grounds 6  and   7,  the  respondent submitted  in  reply to  the appellant's argument that  the   trial   Judge  wrongly convicted  the appellant of the  offence  of making documents without authority on the  same facts as those of forgery,  that there was  no  ambiguity or contradiction    regarding  the    appellant's  lack    of   authority.   

The 15                   document in  question was  forged  and  was  made with  intention  to defraud and having been   recovered from  the  appellant's mother's home, the  appellant was held  responsible.   In  regard to  the  allegation of double punishment,  the   respondent argues that the  offences with  which  the  appellant was  indicted and 20       convicted of are  distinct offences as per the indictment. The  elements in each of the  offences are  different and these offences are not  minor and cognate but distinct. Further, that any  offence,  whether a felony or  misdemeanor may  be charged together in  the  same indictment if the  offences charged are  founded on the  same facts or form part of a 25       series of offences of the  same or similar character and each offence is set  out in separate counts as was  the  case herein.  

Lastly, that the  sentence imposed by the  trial Judge was lawful and lenient enough considering the  circumstances of  the  offence. That the   trial  Judge  did   not   ignore  the    mitigating factors  but  the 30      aggravating factors outweighed the  mitigating factors. The trial Judge considered the  period spent on  remand while  imposing the highest sentence of 5 years and the  lowest sentence of 2 years.    

            

Resolution of the appeal   This   is a first   appeal  and   this   court  takes  cognizance of  the established principles regarding the role of a frrst appellate court. The cases of  Kifamunte Henry v Uganda Supreme  Court  Criminal s     Appeal No. 10 of 1997 and  Pandya v. R (1957] EA 336, and  Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. 1 of 1997 in essence have established that a frrst appellate court must reviewf rehear the   evidence and   consider all the   materials which  were  before  the  trial  Court, and  come  to its own  conclusion 10      regarding the  facts, taking into  account that it has neither seen nor heard the  witnesses; and  in this  regard, it should be guided by the observations of the  trial  court regarding demeanour of witnesses.  

Rule 30 of the  Judicature  (Court of  Appeal Rules) Directions SI 13-10 is also  relevant. It provides that;   15       "30. Power to reappraise evidence  and to take  additional evidence   (1)  On  any  appeal  from a decision  of the  High Court  acting  in  the exercise of its original jurisdiction, the court may-   (a) Re-appraise the evidence  and draw inferences of fact; and   (b) In its discretion,  for sufficient  reason,  take additional evidence 20       or direct  that  additional  evidence  be taken by  the  trial court  or by  a commissioner."   We have borne the  above  principles in mind  in resolving this appeal. We  consider that the  logical  way  to  proceed is  to  re-evaluate the evidence in regard to  the  offences with  which the appellant was 25       convicted as laid  out in the  memorandum of appeal.        

Abuse  of Office   The offence of abuse of office is provided for under Section 11 (1) and (2) of the Anti-Corruption Act and provides that;   30        "11. Abuse of office.         Page I8
(1) A person who, being employed  in a public body or a company in which the Government has shares, does or directs to be done an arbitrary act prejudicial to the interests of his or her employer or of any other person, in abuse of the authority of his or her office, commits an 5        offence  and  is  liable on  conviction to  a  term  of imprisonment  not exceeding seven  years or a fine not exceeding one hundred  and sixty eight currency points or both.  

(2) where a person is convicted of an offence under subsection (1) and the act constituting the offence was done for the purposes of gain, the 10      court shall, in addition to any other penalty it may impose, order that anything  received as a consequence  of the  act, be  forfeited to the Government."   The ingredients for the offence of abuse of office are;   (a)    The  appellant at  the  time  of the  commission of  the  alleged 15      offence,  was  employed  by a public  body or  company in  which  the government has shares.   (b)    The  appellant does  or  directs   to  be  done  an   arbitrary act prejudicial to  the  interests of his  or her  employer  or  of any  other person.   20       (c)     The act was done in abuse of authority.  

On the  1st ingredient, it is not a disputed fact that  the appellant was, at the time the offence was committed, employed  by the Uganda government as  a Principal  Accountant in  the  Office of the  Prime Minister.   25      A search was carried out on the 22nd of July  2012  at  the appellant's mother's  home   and   a  number of  items   were,  according  to  the prosecution case,  found  in one of the rooms. This was testified  to by a number of prosecution witnesses including PW7, a carpenter, who testified  that  on the said date,  he was approached by PW8 to open  a 30      certain locked  door  in the  presence of policemen  who  had  come  to conduct  a  search. 

PW8,  the  area   Local  Council   (LC.l)   Defense secretary, also  testified  that  he  was  asked by  police  to  witness a search they intended to carry  out at  the  home of the appellant. The     Page  19
..                   search led  them to  a locked  door  to  a room  in  the  house and the police  recovered a laptop and   a number of  documents. PW10,  a biological brother  to the  appellant, testified that the  police  searched the  house in  his  presence and stated that one  of  the   rooms was 5      locked  and a carpenter was  brought to  open the  door. On  opening the  door, a laptop was  found together with  some  documents after which he signed on the search certificate. PW14 testified that he took photos of some of the documents and some parts of the  house while at the  search and they were exhibited as Exhibit P.15.   10      Regarding the   recovered documents,  the  appellant contends  that they were  planted at the home  of Nanfuka Teopista. 

The  prosecution led evidence of various witnesses that witnessed the search. PW8 was the   LC1 Defense secretary and  neighbor to  the  appellant who  led PW12,  PW13  and PW14 to the  appellant's home  and witnessed the 15      search. PW10,  a brother to the  appellant also  testified that a search was carried out  in  his  presence and his  mother, Teopista Nanfuka, told  him  to take  the  policemen around the  house. He testified that a laptop and documents were recovered from the  room. PW10 however testified aten page 297 of the record  that when  the search team came, 20       they had bags and  envelops with  them.   

PW12  was  the  police officer who  led  the  investigation and he  made the decision to have the room broken into. Thereafter, PW7 was called by  PW8  to  break into  the  said  room  to  carry out  the  search.  PW8 testified on  page 225  that when  the room was broken into, there was 25       a drawer and one   big  blue   bag  from   which   was   removed some documents and a laptop.   According to  the  search certificate exhibited as  P-8,  the  recovered cash withdraw forms had both  signatures of the  appellant and that of one  Pius Bigirimana. However, the cash withdraw forms tendered 30      in evidence only had the  signature of Pius  Bigirimana who  testified as PW9.  In addition, there was photographic evidence tendered in court by PW14, a scene of crime  officer. The appellant contends that PW14  did  not  participate in  the  search because he  did  not  sign  on the  search certificate. 

The  photographs exhibited did  not  show what 35      was  mentioned in the  search certificate. There were  no  photographs of the said  recovered  documents in the  drawers of the  room.  PW14 simply took photographs of the documents displayed on the  bed.   The appellant contends that  he was employed  by the  G vern et of Ugand a as  Principal Accountant in  the  Office of the  Pnme M1n1ster s      between  July 2007  and  July 2012.  His  health deteriorated and  as such  was granted sick leave from 2nd June 2012 to 9th July 2012. 

The search was carried out  on 22nd July 2012. The prosecution contends that  the appellant was grar1ted sick leave  from  4th June to 8th June 2012,  which  was  only 4 days  off. The  basis of the  prosecution case 10       was that  the  appellar1t  kept  sensitive documents of the  Office of the Prime Minister  bearing a forged signature of PW9. In addition were documents used  in  Office of the  Prime  Minister to  transfer huge amounts of public  and  donor  funds  from Treasury General Account and  crisis  management project  accounts and  this  was  testified to  by 15  P\Vl, PW3, PW4, PWS and  PW9.   PWl and PW4 testified  that  the signatories to the account at OPM are the Principal Accountarit and  the Permarient Secretary. 

That security papers are supplied from Bank  of Uganda  arid each account has  its own set of security papers serially  numbered and  are  only  supplied 20                 by Bank  of Uganda  on request. Once the  Permanent Secretary has approved  a requisition, it comes  back  to the  Principal Accountant who  would  direct   payment to  the  person handling  the   particular account.  PWS stated  that   cash   withdraw forms replaced cheque books and  he used  to fill in payment instructions on a security paper 25       upon  direction from  the  appellant after  which  he  would   hand the filled paper  back  to the appellant.   

PWIO testified  that  the search team came into  their home with a bag arid  envelops. The  appellant argued that  the  said documents were planted  in  the  room.  PWB was  the  LC Defense  secretary who  was 30       requested by the  police  to be part  of the  search at the  home of th appellant. PW8 did  not  specifically  mention the  items listed on  the search certificate during cross examination. The testimony of PW1 on  page 3,23 of the  record  was  that  when  the  search team entered Lubuu1was  room,  they  had   their  bags  but   he  did  not   know   the 35      content of the  bags.      

The question for this court to determine is whether all the documents in the search certificate were recovered from Busuulwa's room.   As already  noted  above,  the  search was carried  out  at the  home  of the  appellant  which  included   the   small   house  occupied by  the 5        appellant's children, the house  occupied  by the appellant's wife, one occupied  by the appellant which was also, according to the testimony of  PW12,  under  construction and   the  one  occupied   by  Teopista Nanfuka,  the appellant's mother,  in which the said  documents were recovered  from one Lubuulwa's room. 

The police officers carried out 10      the  search together  with PW8, the LCl secretary, PW7, a carpenter who  broke  into   the  room,  PW14,  a police  officer  who  took  the photographs of the searched room.   A search is defined in Justice Benjamin Odoki's 'A guide to criminal procedure in Uganda' as  an  inspection made  on a person or  in  a 15      building for the purpose of ascertaining whether anything useful in criminal investigation maybe discovered on the body of the person or in a building  searched. According to him, the occupant of the  place searched  shall   be  permitted   to  attend  the   search. In  addition, Section 27 of the Police Act Cap 303  provides that;   20                        (((6) The occupant of the place searched, or some other person in his or her behalf, shall, in every instance, be permitted to attend during the search; and where possible a local leader should  be present during the search.   (7)Notwithstanding the provisions of this section or the provisions 25                 of the Magistrates Courts Act relating to the search of premises, no police officer shall search any premises unless he or she is in possession of a search warrant issued under  the  provisions  of the Magistrates Courts Act or is carrying a warrant  card in such form as shall be prescribed by the inspector general."  

30      A police officer may search the  dwelling or place  of business of the person  so arrested or of the  person for whom  the  warrant of arrest has  been  issued and  may take  possession of anything which  might reasonably be  used  as evidence  in  any  criminal proceedings. See section 69 of the  Magistrates Courts  Act Cap16.     Page 112 

From  the  above  provtstons relating to  searches, there   must   be  a search warrant for a search to be carried out.   When  the search team  according to the  testimony of PW12 who led the search team,  they  arrived  at  the  home  of Teopista Nanfuka, the 5        appellant's mother, and  found  was  around but  for health reasons, she  told PW10  to take  them  around. PW10  testified  on  page 323  of the record  that;   'When  they  came to the place they  had the bags  and  envelops. When  they  entered  Lubuulwa's  room they  had  their bags.  I do 1o             not know what was in their bags.'   It was also  PWlO's testimony that  the search team  entered the  room and   came   out   with  a laptop and   documents relating     to  Peter Lubuulwa and  their  bags.  He was  then  told  to sign  on  the  search certificate which  was one paged.  

He testified  that;   15                                       ai signed  this  document.  Kazinda  did  not  sign.  He  was   not around. There are other three sheets  attached. I did not sign on them. These three sheets  were not attached  at the time I signed. There is PTO at the end of the second page, none on the 3'd page and  PTO on the 4th page. But there is no other sheet  after that. 20                   The 2nd, 3rd and  4th pages are not initiated by us.  I only saw a laptop. I do not know any of these other things written here. They did  not introduce  themselves. They  did  not show  us a  search warrant  or anything. Mr. Kazinda was  brought after the  search was  over.»   2s       The evidence on record shows that  a search was carried out without a search warrant and certain documents were  allegedly recovered from  the  Lubuulwa's room. PW10 took  the  search team around but did  not  enter the  room  when  it was opened. 

He just saw  the  officers coming out  with the alleged  recovered  documents. PW14 is the  police 30      officer     who     took    photos    of    the     recovered.    documents.    The photographic  evidence  marked  P.   15   did   not   show  any   of  the documents in  exhibit P. 8.  The  search certificate included a laptop having been  recovered from  the  room  during the  search however  no such laptop was photographed by PW14 according to his evidence on   Page  113
    page 460 of the record. PW14 testified during cross-examination that he did not take photographs of the recovered documents while in the shelf from which they were allegedly recovered. Exhibit  P.3 and  P.10 which     are    cash     withdraw     authorization    forms     were    not s     photographed.  The   photographs exhibited   were   selective   of  the search process. PW14's testimony was that  photograph P was a close range              shoot   exposing   some   of  the   recovered   documents  from Kazinda's house.  It included  a personal letter  to the appellant.   The learned trial Judge held that;   1o           

  ((Furthermore, the   letter  to  the   accused   was    a   personal possession of  the  accused.  This  letter  played   a  major  role showing ownership and therefore dominion and control from this which court can safely find that the accused was  in constructive possession of the documents found in his mother's house."   15      This finding was, in our view, an error on the part  of the learned trial Judge. Photograph P included the  personal letter to  the  appellant, however,  it was the testimony of PW14 that  photograph P was a close range  shoot  of  documents  recovered   from   Kazinda's house  not Teopista Nanfuka's house. Exhibits P3, PS (a-f), PlO  and Pll  from 20                  which  the  charge  against the  appellant was founded were  allegedly recovered from  Teopista Nanfuka's house and   not  the  appellant's house. 

This in essence means the  photograph of the  personal letter was  not  of Lubuulwa's room.   We must note  that photograph P was  not  included on  the  search 25                  certificate. The prosecution evidence  has  contradictions that cannot be ignored in proving  the  offence of abuse of office. The  appellant's case is that exhibits P.3,  P5 (a-f), PlO  and Pll were  not  recovered from   Lubuulwa's  room   as was   alleged   by  the   prosecution.  The appellant alleges that the  said  documents were  planted in  the  room 30                   by the  search team which  allegation we cannot rule  out considering the   evidence  of  PW10  who   testified that  the   search  team  had documents and a bag  with   them when they   entered  Lubuulwa's room.   We  find  that the   prosecution did   not   prove   that the   said                


' I           recovered  documents   were    in    constructive   possess10n  of   the nppellnnt.   14'urthcr,   the   learned trial Judge  held   that the   appellant's act   of k cping such important documents away from  office and away from s    hts  home amounted  to  hiding the  documents from  whoever might hnvc  come looking for them.   On  the   record is a letter from  the  Permanent Secretary, Pius Bigirin1ana, to the  Inspector General of Police requesting action to be token against the   appellant and reporting his  disappearance  from 10        office   after  he   had   been  transferred. There   is  a letter on   record marked 21  (v)  from   PW9  addressed  to  the   appellant about  his prolonged absence from  duty. 

Paragraph 4.0 of the  letter was  about the  appellant's  redeployment and   PW9  advised  the   appellant  to prepare the final accounts by 31st July 2012 and  handover office not 15  later than 30th August 2012. The search was carried out  on 22nd July 2012 before the expiry of the deadline for handover. DEXH 10 showed that the  appellant had  to handover on 31st August 2012 and  DEXH 11 shows that there was  already a Principal Accountant on  duty before the  handover of the  appellant.   20        

The  appellant testified on  page  478 of the  record  that;   ((When I reported to police I found the under secretary, my supervisor then  she  told me how will I supervise  two  principal accountants? The letter was  saying in paragraph 4 he had put a padlock  on my office door, he indicated  clearly that  he had  put 25       surveillance around  and this is the situation I found. I said  now there  is another  challenge  an accountant does  not hand  over a room an accountant hands over accounts, paper reconciliations, statements and now if I am not on the IFMS what will I handover as a professional  because at that duty  station  your role is gone 30                        you are cut off, 2. You are not a signatory to Bank of Ugandall those accounts if you call Bank of Uganda  you are unrecogmzed so I said what  am I going to handover..."   

According to  the evidence on  record, it  is clear  that the  appellant's handover deadline was still running at the  time  he was  arrested and   Page 115
'.                   as such, it cannot be said that he absconded from duty.. He was also blocked from his office and  as such could  not  handover office as an accountant.   Further, Public  Service Standing Order  (A-n) 19 states that;   5          ((in absence of any communication from the officer within 30 days, the officer shall be deemed  to have abandoned  duty"   

He could  only  be deemed  to have absconded after  8th  August 2012 which is 30 days after 9th July when his leave ought to have  expired. We do not find  that  the  offence of abuse of office was  proved  by the 10      prosecution.   In the Supreme Court of Appeal of South Africa case ofDPP VS Oscar Leonard Carl Pistorious Case  No. 96 of 2015, it was held  that;   ((The proper test  is that  an accused  is bound  to be convicted  if the evidence establishes his [her} guilt beyond reasonable doubt, and the 15      logical corollary is that he [she} must be acquitted if it is reasonably possible  that  he [she} might be innocent. The process of reasoning which  is appropriate to the application of that  test  in any  particular case will depend  on the nature of the conclusion which the court has before it..."   20        The  decision in  Justine Nankya  v.  Uganda  SCCR Appeal No.  24 of  1995 (Unreported)  citing    with    approval  Okoth   Okale    v. R. (1955) E.A. 555 emphasizes among  others that  an  accused has no obligation  to prove  his innocence. Even where  he  or  she  opts  to keep quiet  throughout the trial or offers a very incredible defence,  he 25       or she  can  only  be convicted  upon  the  strength of the  prosecution case   against  him  or  her.  

This  means that   before  an accused is convicted  the  trial  judge  has  to see  to it  that the  prosecution has proved its case  to the required standard.   We thus find that the  trial Judge erred  in finding that the  offence of 30        Abuse of Office was proved.   Grounds 1, 2, 3 and  5 therefore succeed.               


''    .'         Forgery The offence of forgery is provided  for under Sections 342  and  347  of the Penal Code Act;   "342. Forgery.   s     Forgery is the making of a false document with intent to defraud or to deceive.   347. General punishment for forgery.   Any  person who  forges any  document commits an  offence  which, unless otherwise stated, is a felony and is liable, unless  owing to the 10      circumstances of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment for three years.''   To  prove  the  offence  of forgery,  the  prosecution must  prove  the existence of;   (a)     Making of a false document 15      (b)    The intention to defraud  or deceive   The  prosecution relied on the handwriting expert  report which  was exhibited P.ll. The handwriting expert was required to examine and compare specimen signatures 81-85 against Ql, 02, Q3, QS, Q6, Q7, Q9, QlO, Q13, Ql4, QIS and Q17-Q20,  Q22-24,  Q27-Q34, Q41-Q49 20               and  Q52-Q53. According to PWll 's report,  he found  that there  were fundamental differences between the Q8 and 8s. 

He found  that there are  several  differences between  questioned signatures attributed  to the  Permanent Secretary in exhibits  Ql, 02, Q3,  QS, Q6,  Q7,  Q9, QlO, Ql3, Q14, QlS and Q17-Q20, Q22-24,  Q27-Q34, Q41-Q49 and 25      Q52-Q53 and  the specimen signatures provided in Sl-SS.   The appellant contends that the finding  of PW11 should have  been made with the exception of Q10 whose description was for exhibit P3. PW9 testified  that he never  signed  the questioned document. PW11 explained that   the  error  in  the  interchanged specimen signatures 30      811-812 was corrected on record.  He examined specimen signatures 811-812 of the  appellant against the  questioned  documents. 

The       ..    ,'                   respondent argues that  the  correction did not  occasion  any miscarriage of justice since the chain  of exhibits  was not broken.   Section 43 of the Evidence Act provides that;   ((When Court has to form   an opinion as to the identity  of handwriting 5        or  finger  impressions,  the   opinions  upon   that   point  of  persons specially skilled in questions as to the identity of handwriting  or finger impressions are relevant facts. Such persons are called experts."   The principles  of dealing with a handwriting   expert   were laid down in the  case  of Kimani vs Republic (2000)E.A  417, where  it was 10      held  as  follows: "  .......it is  now  trite  law  that  while  the  courts must   give  proper  respect  to the  opinion of expert, such   opinions are  not as it were, binding on the  courts.....such evidence  must be considered along with all other available evidence and if a proper and cogent  basis for rejecting the  expert   opinion  would  be   perfectly 15      entitled to do so.........."  

This   is   a case   was   based   purely   on   circumstantial   evidence considering the fact that  there was no eye witness  to the signing  of the forged documents. As already noted above, the search team came into  the home of Nanfuka Teopista with a bag and some documents 20         in an  envelope. To prove forgery, the prosecution has  to prove that the  appellant made  the false documents with intention to defraud. We cannot ignore the appellant's contention that  the  alleged documents were planted  in the room in Nanfuka's house. The photographic evidence relied on by the respondent was selective as it 25     did  not  capture all the  movements  right  from outside the  room  to immediately  after   the   room  was  broken   into   to  show   that   the documents were actually in the room when the search team entered. 

PWIO, who was  part  of the  search team  from the  start, incredibly could  not  identify  the  exact  documents that  were  recovered  from 30        Busuulwa's room.   We note that  the case of Simon Musoke Vs R (1958] EA 715:- held that;           Page 118
'.           "in a case depending  exclusively or partially upon circumstantial evidence, the Court must before deciding upon a conviction find that, the inculpatory facts are incompatible with the innocence of the accused   and    incapable   of   explanation   upon   any   reasonable 5      hypothesis than that of guilt."   See also Teper v. R. (2) AC 480  which held,   "itis necessary before drawing the inference of the accused's guilt from the circumstantial evidence to be sure that there are no other co­ existing circumstances which would weaken or destroy the inference."   

10  While Taylor     on     Evidence (11th  Edn.)    page 74 states     "the circumstances  must  be  such  as  to produce moral certainty  to the exclusion of every reasonable doubt."   It is  the  appellant's case  that  the  said  documents were  planted in Busuulwa's  room   by  some   members  of  the   search  team.    

The 15  handwriting expert's report   showed   that   there   were  fundamental differences between the QS and  Ss.  He found  that  there  are several differences      between    questioned  signatures   attributed   to    the Permanent Secretary in exhibits  Ql, 02, Q3, QS, Q6, Q7, Q9, QlO, Ql3, Ql4, Q15 and  Q17-Q20, Q22-24, Q27-Q34, Q41-Q49 and Q52- 20       Q53  and  the  specimen signatures provided in Sl-85. However, QlO was    not   among  the   documents  in   which   the   sighted   defects  manifested. PWll,  the  handwriting expert,   included  QlO  in  his  report that it was  among the  forged.  This  error  placed  doubt on PW11's evidence and as such, the prosecution failed to prove that the 25  appellant committed the said forgery.   

Ground 4 succeeds accordingly.       Making a document without  authority   Section 355  of the  Penal Code Act provides for the offence of making 30       a document without authority and it provides  that;   "355. Making documents without authority.   Any person who, with intent to defraud or to deceive-   Page 119 


"·               (a) without&