THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HIGH COURT CRIMINAL APPEAL NO. 10 OF 2008
(Arising from City Hall Criminal Case No. 352 of 2007)
MUHWEZI
JACKSON………………..…………………………………APPELLANT
VERSUS
UGANDA…..…………………………………………………………….RESPONDENT
Before:
Hon. Mr. Justice E.S. Lugayizi
JUDGMENT
This judgment is in respect of an appeal that the above-named
appellant preferred against a decision of a Magistrate Grade 1 of
City
Hall, Kampala (as she then was – Her Worship Ms. Esta
Nambayo -) dated 8th February 2008. Under that decision
the learned trial Magistrate convicted the appellant of the offence
of malicious damage to property
contrary to section 335 (1) of the
Penal Code Act (Cap.120). She, then sentenced him to pay a fine of
shillings 1,000,000/= or in
default thereof to suffer imprisonment
for 3 years.
The above decision and sentence aggrieved the appellant; and hence
the appeal herein, which seeks to overturn that decision and replace
it with an acquittal and Order setting aside the sentence.
Be that as it may, before this Honourable Court goes into the merits
of the appeal it is wise to acquaint oneself with the evidence
that
the learned trial Magistrate had before her as she made the above
decision. Court will begin with the State’s evidence
that is
briefly as follows:
Harriet Nakiberu (PW2 – the complainant) had been living since
childhood on a customary holding in Ntinda near Kampala. Such
customary holding is popularly known as “a kibanja”
in the central part of Uganda. The said kibanja had a house
(with ten rooms, boys’ quarters and other structures) built on
it.
That house was made of bricks. Nakiberu became a beneficiary
of the kibanja in question as the remaining child of the late Jackson
Kiberu who died in 1994. Initially, a one Wasswa was the registered
proprietor of the Mailo interest on which the above kibanja was
found. Subsequently, Wasswa sold his Mailo interest to the appellant.
At that point, in time, unease developed on the land; and Nakiberu
started receiving notices purporting to evict her from the kibanja in
question. She quickly notified the Administrator-General about
that
new development. In turn, the Administrator-General warned the
appellant against evicting Nakiberu from her kibanja without
compensating her. However, the Administrator-General’s warning
fell on deaf ears, for Nakiberu continued to receive threats
of
eviction. Finally, on 18th February 2007 a grader mauled
down all Nakiberu’s buildings that were standing on the above
kibanja; and completely destroyed
them. Nakiberu reported the matter
to the police. The police arrested the appellant and took him to the
lower court where he was
tried for the offence that is the subject of
this judgment.
In his defence the appellant denied having committed the above
offence. He explained that on the material day he was in Kabale; and
that he did not play any part (direct or indirect) in destroying the
complainant’s buildings.
After considering the above evidence the learned trial Magistrate
made a finding that the State had proved, beyond reasonable doubt,
that the appellant committed the offence in question. She, therefore,
convicted the appellant of the above offence; and sentenced
him
accordingly. The above decision and sentence aggrieved the appellant;
and hence the appeal herein.
At the time of hearing the appeal, Mr. Mutabingwa represented the
appellant and Mr. Byansi represented the respondent. Both counsel
agreed, then, that the appellant was the registered proprietor of the
land in question. They further agreed that the complainant’s
buildings which were standing on the above piece of land were
destroyed. Finally, both counsel also agreed that the appeal herein
raised three main issues, which Court duly recorded.
However, on second thought Court now believes that the appeal herein
can only be satisfactorily disposed of if two more issues were
added
to the above list. Therefore, in all, Court will below discuss five
issues; and they are as follows:
(a) whether the record of the lower court reflects that Nakiberu had
a genuine interest in the land in question;
(b) whether the record of the lower court shows that the destruction
of the property on the kibanja in question was unlawfully and
willfully brought about;
(c) whether the record of the lower court reveals that the appellant
was implicated in the destruction of the above property;
(d) whether section 7 of the Penal Code Act (Cap. 120) protects the
appellant; and
(e) the available remedies.
This Court will, below, address the above issues in turn.
With regard to the first issue (i.e. whether the record of the
lower court reflects that Nakiberu had a genuine interest in the land
in question) the testimonies of the following witnesses provide
the answer: i.e. Harriet Nakiberu (PW2) and Nasuru Nankya (PW7).
Nakiberu testified that she was born at the kibanja in question,
which kibanja had been her home for over 43 years. She, then, pointed
out that she finally became the beneficiary of the interest in that
kibanja when her father (the late Jackson Kiberu) and her two
brothers died. Nankya (a State Attorney, working in the
Administrator-General’s office) confirmed the correctness of
Nakiberu’s
testimony. She pointed out that her office was aware
of Nakiberu’s beneficial interest in the said kibanja, which is
found
on the land in question.
Indeed, the record of the lower court clearly shows that the
appellant did not challenge the above areas of evidence in
cross-examining
Nakiberu and Nankya. Besides, the appellant’s
defence did not dispute Nakiberu’s interest in the above
kibanja.
All in all, therefore, this Court is satisfied that the record of the
lower court reflects that the complainant had a genuine interest
in
the land in question.
With regard to the second issue (i.e. whether the record of the
lower court shows that the destruction of the property on the kibanja
in question was unlawfully and
willfully brought about) it is
first of all very important to understand the meaning of some key
words in this area. The key words in this area are the words
“unlawfully” and “wilfully”.
The word “unlawfully” is an adverb; and it is
derived from the word “unlawful”, which is
an adjective. WORDS AND PHRASES legally defined
(Third edition (R-Z) at page 359, agrees that the more
accurate use of the word “unlawful” conveys
this meaning: i.e. “contrary to law”.
Therefore, when a person has done something “unlawfully”
it means that he or she has does that thing in a manner that
is contrary to the law.
At page 435, the above book also defines the word “wilfully”
to mean an act “done deliberately and
intentionally, not by accident or inadvertence, but so that the mind
of the person who does the act goes
with it”.
According to Peter Mubogwe (PW1), Harriet Nakiberu (PW2) and
Katongole Makumbi (PW8) the person who demolished the buildings in
question
had no court order authorizing him to do so. In addition,
that person did not demolish those buildings accidentally. He came
with
a grader in broad day-light and deliberately knocked down the
said buildings.
Again the respondent did not challenge the above areas of the above
witnesses’ testimony during cross-examination nor did
he
contradict those areas in his defence.
All in all, therefore, this Court is satisfied that the record of the
lower court shows that the destruction of the property on the
kibanja
in question was unlawfully and willfully brought about.
With regard to the third issue (i.e. whether the record of the
lower court reveals that the appellant was implicated in the
destruction of the above property) Court has this to say: As
already pointed out the appellant is the registered proprietor of the
Mailo interest on which the kibanja
in question is found. However,
Nakiberu testified that as soon as Wasswa (the original registered
proprietor of the above Mailo interest)
sold his interest in the land
to the appellant, she received threats of eviction from the kibanja
in question. She, then, reported
the matter to the
Administrator-General, but she subsequently lost the said kibanja;
and all her buildings on it were destroyed.
Nankya, the
Administrator-General’s representative confirmed the
truthfulness of Nakiberu’s testimony. Nankya further
pointed
out that her office responded to the above threats by warning the
appellant against evicting Nakiberu without compensating
her.
In cross-examining the above witnesses, the appellant did not
challenge them in respect of the above areas. In addition, even in
his defence the appellant did not deny that he was the moving force
behind the threats that preceded Nakiberu’s eviction from
the
kibanja in question.
In all, therefore, the above evidence sets up a collection of strong
circumstantial evidence implicating the appellant in the eviction
of
Nakiberu from her kibanja and the destruction of the buildings
thereon. In any case, when one considers all the important events
preceding the said eviction (including Wasswa’s demise in 2006
- i.e. Wasswa the former owner of the Mailo interest in question)
this burning question inevitably comes to mind: Who else had an
interest in evicting Nakiberu from the said kibanja? The answer to
that question is very simple; and it this: No one else, except the
registered proprietor of the Mailo interest on which that kibanja
was
standing i.e. the appellant.
Consequently, although there is no direct evidence implicating the
appellant in the eviction of Nakiberu from her kibanja and
destruction
of all her buildings thereon, the circumstantial evidence
available irresistibly points to him as the moving force behind that
mayhem.
((See Simon Musoke v R [1958] E.A. 715 and Teper v R. (2)
[1952] A.C. 480 at page 489).) In short, the appellant cannot
escape criminal liability in respect of the offence under
consideration.
In conclusion this Court has no choice, but to make a finding that
the record of the lower court reveals that the appellant was
implicated in the destruction of the above property.
With regard to the fourth issue (i.e. whether section 7 of the
Penal Code Act (Cap. 120) protects the appellant) Court has this
to say: For the sake of clarity, it is wise to take a good look at
the above law before going into a discussion touching
it. For that
reason Court will, below, reproduce that law verbatim:
“7. Claim of right.
A person is not criminally responsible in respect of an offence
relating to property if the act done or omitted to be done by the
person with respect to the property was done in the exercise of an
honest claim of right and without intention to defraud.”
Mr. Mutabingwa was of the opinion that because the appellant was the
registered proprietor of the Mailo interest on which the kibanja
in
question was found, section 7 of the Penal Code (Cap. 120)
effectively insulated him from culpability in respect of the offence
under consideration. Mr. Byansi thought otherwise. In his view, the
evidence on the record of the lower court showed that the appellant
intended to defraud Nakiberu by evicting her without compensating
her.
With respect, this Court does not agree with Mr. Mutabingwa’s
interpretation of the above law. In Court’s opinion, the
above
law does not apply where the property in question is the subject of
multiple interests. In the instant case, we have seen
that much as
the appellant had a registered interest in the land in question,
Nakiberu too had a legitimate interest on that land
as a kibanja
holder. Therefore, the appellant ought to have respected Nakiberu’s
said interest.
Secondly, Mr. Byansi was absolutely right in saying that the evidence
on the record of the lower court reveals fraud on the appellant’s
part in that he threw Nakiberu out of her kibanja without
compensating her. The Administrator-General’s file, which is
part
of the lower court’s record as (Exhibit P2) is clear. It
shows that the Administrator-General’s office warned the
appellant
against evicting Nakiberu from her kibanja without
compensating her. However, the appellant did not heed that warning!
He went ahead
to evict Nakiberu without compensating her. This was
not only dishonest, but it was also a serious breach of the law. (See
Article 26 of the Constitution.) Consequently, what better
evidence of fraud would one need than that? Yet, according to section
7 of the Penal Code Act (Cap. 120)
the presence of fraud would deny a
person protection despite a claim of right he or she might have in a
given property.
All in all, therefore, section 7 of the Penal Code Act (Cap. 120)
does not protect the appellant in the circumstances of this case.
To
hold otherwise, would be to encourage high-handedness and lawlessness
in cases of this nature.
With regard regard to the fifth issue (i.e. the available
remedies) Court has this to say: Since Court has resolved all the
five issues listed above against the appellant, it means that the
appeal
herein has failed. Therefore, that appeal is hereby dismissed.
The conviction of the appellant and the sentences the lower court
passed against him shall remain standing.
However it should be remembered that the appellant’s
high-handedness and lawlessness caused Nakiberu, a totally innocent
person,
to suffer material loss in that all her buildings were
completely destroyed. For that reason, it is only fair that the
appellant
pays Nakiberu some reasonable compensation in respect of
that loss.
Taking into account all, therefore, this Court hereby orders as
follows: The appellant shall also pay Nakiberu a sum of shillings
50,000,000/= as compensation in respect of all her buildings, which
the appellant destroyed on 18th February 2007.
The above amount of money is generally based on two things: (a) the
estimated value of the buildings destroyed; and (b) the estimated
cost of land in Ntinda, which is a popular residential area that is
very near the city. However, this Court must emphasize that the
above
figure is only a rough estimate that is supposed to place something
into the hands of Nakiberu for the time being. Indeed,
the true
amount in terms of money representing the actual loss Nakiberu
suffered could be very much higher than the above sum of
money; and
Nakiberu is free to seek other remedies to realize that figure.
The power to make the above Order is derived from section 197(1) of
the Magistrate’s Courts Act (Cap. 16) and section 34(2)(b)
of
the Criminal Procedure Code (Cap. 116).
E. S. Lugayizi (J)
2/12/2008
Read before: At 10.16 a.m.
Appellant
The complainant
Ms. Nakigudde for the DPP
Mr. Mutabingwa for the appellant
Ms. Aceng c/clerk
E. S. Lugayizi (J)
2/12/2008
R/A explained
E. S. Lugayizi (J)
2/12/2008
