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Ggibwa Kalibbala and 2 Others v Uganda (Criminal Appeal 297 of 2022)

Court of Appeal · [2023] UGCA 261 · 2023 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the High Court sitting in its appellate jurisdiction, which had confirmed a magistrate's court conviction for malicious damage to property.
Decision
Appeal allowed; the convictions and sentences of the lower courts quashed and set aside.

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Holding

On second appeal, the Court of Appeal held that the first appellate judge had re-evaluated only the prosecution evidence rather than the totality of the evidence, failing his duty and obliging the Court to re-evaluate. The Court found the alibi defence was rightly rejected and the appellants were placed at the scene. However, the appellants honestly, though mistakenly, believed they had a legal claim of right over the land as beneficiaries of their late father's estate. Under section 7 of the Penal Code Act such an honest claim of right negates the mens rea for malicious damage to property, and the prosecution failed to disprove it beyond reasonable doubt. The appeal was allowed and the convictions and sentences quashed.

Facts

On 19 December 2020 at Byesika village, Sembabule District, the four appellants, together with Dennis Sempagala Kalibbala (PW3), uprooted poles forming the farm fence of the complainant Solomon Edward Amanya, with destruction continuing on 20 December. They were charged with malicious damage to property under section 335 of the Penal Code Act. Dennis pleaded guilty; the appellants underwent full trial, were convicted by the magistrate and each sentenced to two years' imprisonment. The land had been sold to the complainant by registered proprietors holding it under a joint tenancy. The appellants' late father, Benedict Kalibbala, had been a predecessor in title and a co-proprietor until his deletion from the register in December 2020. The appellants believed the land formed part of their father's estate and that they held a beneficial interest as his children. Eyewitness PW2 and investigating officer PW5 placed the appellants at the scene; the appellants raised alibis. The High Court upheld their convictions on first appeal, prompting this second appeal.

Issues

  1. Whether the first appellate judge failed to discharge his duty as a first appellate court to re-evaluate the evidence on record.
  2. Whether the first appellate judge erred in failing to consider the appellants' amended grounds of appeal, thereby occasioning a miscarriage of justice.
  3. Whether the appellants' defence of alibi was properly disallowed.
  4. Whether the appellants' honest claim of right over the land under section 7 of the Penal Code Act absolved them of criminal liability for malicious damage to property.

Orders

  • Appeal allowed.
  • The decisions of the lower courts are set aside.
  • The Appellants' conviction and sentence are quashed.

Key headnotes

Criminal Procedure — Appeals — Duty of First Appellate Court to Re-evaluate Evidence
A first appellate court must subject the whole of the evidence to fresh scrutiny, weighing the prosecution evidence against the defence evidence; a re-evaluation skewed to the prosecution evidence alone is a failure of that duty and entitles a second appellate court to re-evaluate the evidence.
Criminal Procedure — Second Appeals — Scope of Re-evaluation of Evidence
On a second appeal a court is precluded from questioning the trial court's findings of fact where there was evidence to support them, but may itself re-evaluate the evidence in the clearest of cases, namely where the first appellate court has failed to evaluate the evidence as a whole.
Criminal Procedure — Amendment of Grounds of Appeal — Substantial Miscarriage of Justice
Where amended grounds of appeal are materially the same as the original grounds, an appellate court's failure to formally consider the amendment does not occasion a substantial miscarriage of justice warranting appellate interference.
Evidence — Defence of Alibi — Burden and Timing of Disclosure
An accused who sets up an alibi does not bear the burden of proving it, but must account for the time of the offence so as to render participation impossible; an alibi raised belatedly goes to the credibility of the defence.
Criminal Law — Claim of Right — Section 7 Penal Code Act
A person is not criminally responsible for an offence relating to property where the act was done in the exercise of an honest claim of right and without intention to defraud; the belief need only be honestly held and not well-founded in fact or law, and the prosecution bears the legal burden to disprove it beyond reasonable doubt.
Criminal Law — Malicious Damage to Property — Mens Rea
The offence of malicious damage to property under section 335 of the Penal Code Act requires wilful and unlawful destruction; an honest claim of right negates the unlawful and dishonest intent essential to the offence.

Legislation cited (9)

  • Penal Code Act Cap. 120 s.335
  • Penal Code Act Cap. 120 s.335(1)
  • Penal Code Act Cap. 120 s.7
  • Constitution of Uganda Article 126(2)(e)
  • Judicature Act Cap. 11 s.39(2)
  • Criminal Procedure Code Act Cap. 116 s.34(1)
  • Criminal Procedure Code Act Cap. 116 s.45
  • Criminal Procedure Code Act Cap. 116 s.45(6)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 32(2)

Cases cited (14)

  • Bogere Moses v Uganda (1998) UGSC 22
  • Jackson Muhwezi v Uganda (2009) UGCA 54
  • Henry Kifamuntu v Uganda (1998) UGSC 20
  • Abdu Ngobi v Uganda (Criminal Appeal No. 10 of 1991)
  • Abdala Nabulere & Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Festo Androa Asenua & Another v Uganda (1998) UGSC 23
  • Ntale v Uganda (1968) E.A. 206
  • R v Chemulon Were Olango (1973) 4 E.A.C.A.
  • Ezekia v Republic (1972) E.A. 42
  • R vs Sukha Sinqh s/o Wazir Sinqh & Others (supra)
  • Wasswa Jamada & 2 Others v Uganda (Criminal Appeal No. 817 of 2014)
  • R v Fuge (2001) 123 A Crim R 310
  • S.M. Ruwala v R. (1957) E.A. 570
  • R v Hassan bin Said (1942) 9 E.A.C.A. 62
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.