THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA.
CRIMINAL APPEAL NO.20/98.
CORAM: HON. MR. JUSTICE G.M. OKELLO,JA.;
HON. LADY JUSTICE A.E.
MPAGI-BAHIGEINE,JA
HON. MR. JUSTICE A.
TWINOMUJUNI ,J.A.
PETER DHOUR IYOUK………………………………………………… APPELLANT
VERSUS
UGANDA……………………………………………………………… RESPONDENT
JUDGMENT OF THE COURT
This is a second appeal. It arises from an appellate decision of the
High Court dated 26-6-98 whereby Tinyinondi,J. acquitted the appellant and
confirmed the order of condemnation of the goods.
The appellant Peter Dhour lyouk was originally charged before the Chief
Magistrate Y. Bamwine,Esq. on three counts of knowingly using counterfeit
documents cls 148(h) of the East rican Customs and Management Act, as amended
by Decree No.13 of 1997, in respect of about 800 cartons of sportsman
cigarettes made in Tanzania purportedly consigned to him whereas not.
On the alternative count he was charged with Importing prohibited goods c/s
146(a) 1 of the Act.
The Chief Magistrate convicted the appellant on the three main counts
and sentenced him to the maximum fine of Shs.200,000= or 12 months in jail in
default.
The learned Chief Magisttrate also ordered forfeiture of the goods under Section 180 (1) of the Act. He however acquitted the appellant, under Section 131 of the Magistrates Court Act; on the alternative count.
On appeal to the High Court, the learned judge allowed the appeal,in part. He quashed the conviction, acquitted the appellant and set aside the sentence. He however upheld the order for the goods to be condemned.
The appeal to this court is agains such order of condemnation and is based on 4 grounds:
- The learned judge erred in Law and in fact in holding that the Appellant was not the owner of the goods by reason of his acquittal or importing prohibited goods and which acquittal was itself irregular in Law.
- The learned judge erred in Law and in fact in holding that the Appellant did not validly import the goods into the country on transit to Sudan when the Appellant was found not to have known that the documents he used to claim th goods from Uganda Revenue Authority were counterfeit.
- The learned judge erred in Law and in fact in believing the evidence of PW8 who was incompetent and his evidence inconsistent with that of PW2 and PW4.
- The learned judge erred in Law and in fact in condemning the goods.
Mr. Eric Muhwezi for the appellant argued them together.
He firtst dealt with the issue of acquittal on the alternative count. He
stated that the learned Chief Magistrate erred in making a finding on the
alternative count on which he based the order of condemnation In his view the
goods would not have been condemne had the correct proceur been followed.
Having convicted on the three main counts, the Chief Magistrate should not have
made any finding on the alternative count. He submitted that the acquittal was
illegal and the finding based on such acquittal that the appellant did not
import the goods and that the goods did not belong to him, irrogular and
erroneous.
The State did not canvass this point, neither before the High Court or
before us. In view of the evidence on record it would make no difference.
We agree that the learned trial Magistrate was not correct to make a
tnding on the alternative count after convicting on the main counts. In R. v.
Seymour 38, Cr. App. R.68, the evidence was consistent with both larceny and
receiving, but no count on larceny was included in the indictment. It was held
that the Indictment shot.ld contain both counts, and that If a conviction is
entered on one of th€ alternative counts, no finding should be made on the
other.
We do not agree however that it was this finding that influencea the
learned appeal Judge to order condemnation of the goods.
After convicting the appellant on the three main Counts, the Chief
Magistrate proceeded to invoke Section 160(1) of the Act to order ‘forfeiture
on account of the conviction.”
The learned judge similarly remarked:
“The reason for the forfeiture in the lower court was the conviction.”
The acquittal therefore did not influence either the lower or High Court in passing their orders.
Mr. Muhwezi’s other submission was that the appellant had proved ownership of the goods and did not know the documents were false. He mainly challenged the evidence of PW8 whom he said was not he author of the documents and was therefore not competent to testify as to their authenticity. He said that the authors were available but were never called to testify as to their authenticity. He said that the authors were available but were never called to testify.
It was his argument that the goods were validly imported through middlemen and were enroute to Sudan. He prayed court to quash the condemnation order and order the appellant to produce proper documentation.
Mr. Byabakama, Senior Principla State Attorney, supported the High Court decision and prayed for dismissal of the appeal. He submitted that the High Court having found that there was lack of knowledge on part of the appellant on the counterfeit nature of the documents he presented to prove ownership of the goods, the learned judge rightly quashed the lower court conviction and having done so the judge was required to consider the fate of the goods in question under Section 160 (2) of the Act. He pointed out that under Section 167 the onus of proving lawful importation was on the appellant, which onus he had faild to discharge.
Regarding ownership the learned Chief Magistrate after admirably scrutinizing the documents and analysing the evidenc of PW8 said:
“ They are all outright forgeries and therefore counterfeits.”
The learnce judge observed:
“The court
highlighted several discrepancies between the documents presented by the
prosecution exhibit “PVI” and the evidence, of PW8 as against the documents
presented by the appellant – Exhibit “P1” and “D11” to arrive at the conclusion
it did. The learned trial Chief Magistrates evaluation of the evidence cannot
be faulted on the issue. The discrepancies in the documents presented by the
appellant were several, they were glaring and fundamental. PW8 was in a
position to testify to the documents. He was best qualified by virtue of his
official position of certifying and numbering the documents before releasing
the goods as Resident Sales Tax officer in the Tanzanian Cigarette Company
Ltd.”
We would agree PW8’s competence to testify was based on or acquired by
practical experience. It has been held;
“All persons who
practice a business or profession which requires them to possess a certain
knowledge of the matter in hand are experts so far as experience is required.”
per Maule,J. in Vander Donckt v. Theiluson, (1849) 8 CB 812 cited in Gatheru s/oNjangware v. R.. – Cr. App. No.938 of 1954.
PW8 was not testifying as a handwriting expert as Mr. Muhwezi contended.
He was testifying as a person employed by the Tanzania Tobacco Company as a
Resident Sales officer for a long time sinGe 1988. His knowledge was based on
records kept by the company. He had handled genuine documents for a long time
as correctly pointed out by Mr. Byabakama. He could therefore easily isolate
false ones.
The learned Judge – referred to S.167 which casts – the burden of
proving ownership of the cigarette upon the appel lant,and said that this could
be done only by the production of genuine documents. Furthermore, the onus was
upon the appellant on first appeal to show that the findings of the Chief
Magistrate were unreasonable and could not be supported having regard to the
evidence on record.
Mr. Muhwezi maintained that the appellant did not know the documents were false and made a rather an untenable suggestion that the appellant be ordered to produce proper documents. This suggestion is rendered especially meaningless when considered in light of his earlier submission that the authors of the documents were available but were never called to testicy. It is not clear why the appellant himself never availed himself of this evidence at his trail. It is to be observed that when the appellant was asked to produce the documents to PW1 he promised to produce them and never did so. After some time, instead of returning to PW1, he produced counterfeits to PW2, which prompted investigations culminating into this case. He had more than ample opportunity to produce the correct documents at the trial. The onus was upon him to prove ownership, the documents which were presented by the appellant were forgeries and could not support his claim to the ownership of the goods. The learned judge condemned the goods because ownership thereof had not been established. Section 160 gives the court power either to release the goods to the person from whom they were seized, or to the owner thereof or to condemn them. They were seized from the compound of Lt. Col. Kazini who displayed surprise as to how they had found their way to his compound and he alerted the URA. The appellant failed to prove ownership thereof. This left the court with the one option of condemning them; indeed ti was the inevitable conclutiosn that the learned judge could come to, on the evidence and the law.
In these circumstances this appeal is dismissed. The order of condemnation is hereby upheld.
Dated at Kampala this 15th day of December, 1998.
G.M. Okello
JUSTICE OF APPEAL
A.E.Mpagi-Bahigeine
JUSTICE OF APPEAL
A.Twinomujuni
JUSTICE OF APPEAL