IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable
Criminal Appeal No. 0007 of 2019
In the matter between

UGANDA APPELLANT

And

1. OBUR RONALD
2. ODEM GABRIEL
3. ONONO CHARLES
4. OYELLA MARIAM RESPONDENTS

Heard: 23 June, 2020.

Delivered: 14 August, 2020.

Criminal law— Forgery C/s 342 and 347 of The Penal Code Act. — this offence entails
the making of a false document, with intent to defraud or deceive and proof that the
document was made by the accused person. It involves making a document purporting
to be what in fact it is not or making a material alteration to a document.t — Forgery is
the false making of an instrument purporting to be that which it is not; it is not the
making of an instrument which purports to be what it really is, but which contains false
statements —The false document must be clearly stated in the charge sheet and
identified at the trial. The prosecution cannot expand its case to rely on the falsity of
other documents that are attached or annexed to the document specified in the charge
sheet.

Criminal Procedure — Prima facie case — is established when the evidence adduced
is such that a reasonable tribunal, properly directing its mind on the law and evidence,
would convict the accused person if no evidence or explanation was set up by the
defence but the prosecution is not required at this stage to prove the case beyond
reasonable doubt. —A prima facie case is made out when there has been no evidence

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to prove an essential ingredient in the alleged offence, or When the evidence adduced
by prosecution has been so discredited as a result of cross examination, or is manifestly
unreliable that no reasonable court could safely convict on it.

Evidence — Best evidence rule— sections 60 and 61 of The Evidence Act — the
contents of documents may be proved either by primary or by secondary evidence.
Primary evidence means the document itself produced for the inspection of the court —
sections 64 of The Evidence Act — For secondary evidence to be admissible it requires
proof one of the following; when the original is shown or appears to be in the
possession or power of the person against whom the document is sought to be proved,
or when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved, or when the original has
been destroyed or lost, or when the original is of such a nature as not to be easily
movable.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:
[1] The respondents were jointly charged with the offence of Forgery C/s 342 and
347 of The Penal Code Act. It was alleged that the respondents and another still
at large, on 24th December, 2014 at Pece Prison sub-ward, Laroo Division in
Gulu District unlawfully forged a letter of recommendation purporting it to have
been written by the Chairman L.C.1 of Pece Prison sub-ward whereas not. All the
respondents were acquitted upon a finding of no case to answer.

[2] In his ruling at the close of the prosecution case, the trial magistrate found that
the document allegedly forged by the respondents was never tendered in
evidence. P.W.1 Yahaya Farajal Opira testified about a stamp impression that
was procured by trickery. P.W.3 Sebuwufu Elisa testified about handwriting
based on pieces of documents. The letter said to have been forged was not
produced. The person purported to have written the letter never testified to deny
authorship. The evidence adduced is worthless and does not support the charge
preferred. The prosecution having failed to establish a case to answer against

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 any of the respondents, each of them was acquitted of the offence of Forgery C/s
342 and 347 of The Penal Code Act.

[3] Counsel for the appellant filed a notice of appeal but did not file a memorandum
of appeal nor submissions in support of the appeal, despite having been notified
and given a month’s period to do so. Consequently, neither did the respondents
file submissions. However, considering that under section 28 (1) of The Criminal
Procedure Code Act, a criminal appeal is commenced by a notice in writing
signed by the appellant or an advocate on his or her behalf, it was incumbent
upon this court to consider the merits of the appeal, despite the lapses of the
appellant.

Duties of a first appellate court.

[4] This being a first appeal, this court is under a duty to reappraise the evidence,
subject it to an exhaustive scrutiny and draw its own inferences of fact, to
facilitate its coming to its own independent conclusion, as to whether or not, the
decision of the trial court can be sustained (see Bogere Moses v. Uganda S. C.
Criminal Appeal No.1 of 1997 and Kifamunte Henry v. Uganda, S. C. Criminal
Appeal No.10 of 1997, where it was held that: “the first appellate Court has a
duty to review the evidence and reconsider the materials before the trial judge.
The appellate Court must then make up its own mind, not disregarding the
judgment appealed against, but carefully weighing and considering it”).

[5] An appellant on a first appeal is entitled to expect the evidence as a whole to be

submitted to a fresh and exhaustive examination, (see Pandya v. Republic [1957]
EA. 336) and the appellate court’s own decision on the evidence. The first
appellate court must itself weigh conflicting evidence and draw its own
conclusion (see Shantilal M. Ruwala v. R. [1957] EA. 570). It is not the function
of a first appellate court merely to scrutinize the evidence to see if there was
some evidence to support the lower court’s finding and conclusion; it must make

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 its own findings and draw its own conclusions. Only then can it decide whether
the magistrate’s findings should be supported. In doing so, it should make
allowance for the fact that the trial court has had the advantage of hearing and
seeing the witnesses, (see Peters v. Sunday Post [1958] E.A 424).

[6] At the close of the prosecution case, sections 127 and 128 (1) of The Magistrates
Courts Act, requires the trial court to determine whether or not the evidence
adduced has established a prima facie case against the accused. It is only if a
prima facie case has been made out against the accused that he should be put
to his or her defence (see section 128 (1) of The Magistrates Courts Act). Where
at the close of the prosecution case a prima facie case has not been made out,
the accused would be entitled to an acquittal (See Wabiro alias Musa v. R [1960]
E.A. 184 and Kadiri Kyanju and Others v. Uganda [1974] HCB 215).

Prima facie case.

[7] A prima facie case is established when the evidence adduced is such that a
reasonable tribunal, properly directing its mind on the law and evidence, would
convict the accused person if no evidence or explanation was set up by the
defence (See Rananlal T. Bhatt v R. [1957] EA 332). The evidence adduced at
this stage, should be sufficient to require the accused to offer an explanation, lest
he runs the risk of being convicted. It is the reason why in that case it was
decided by the Eastern Africa Court of Appeal that a prima facie case could not
be established by a mere scintilla of evidence or by any amount of worthless,
discredited prosecution evidence. The prosecution though at this stage is not
required to have proved the case beyond reasonable doubt since such a
determination can only be made after hearing both the prosecution and the
defence.

[8] There are mainly two considerations justifying a finding that there is no prima
facie case made out as stated in the Practice Note of Lord Parker which was

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 published and reported in [1962] ALL E.R 448 and also applied in Uganda v.
Alfred Ateu [1974] HCB 179, as follows:-
a) When there has been no evidence to prove an essential ingredient in
the alleged offence, or
b) When the evidence adduced by prosecution has been so discredited as
a result of cross examination, or is manifestly unreliable that no
reasonable court could safely convict on it.

Ingredients of the offence of Forgery.

[9] For a prima facie case to be made out with regard to the offence of Forgery C/s
348 (1) of The Penal Code Act, the prosecution had to lead credible evidence on
each of the following essential ingredients;
1. The making of a false document.
2. With intent to defraud or deceive.
3. The document was made by the accused.

1st issue; whether a false document was made.

[10] Forgery is the creation of a false document or material alteration of a document.

It involves making a document purporting to be what in fact it is not or making a
material alteration to a document, i.e. taking a genuine document and changing
it, in some significant way by making of a material alteration in or addition to a
document which is genuine. A person "makes" a new document when he or she
alters an existing document (see R v. Ondhia [1998] 2 Cr App R 150). Altering, or
dealing with a document so that the whole of it or a material part of it purports to
be what in fact it is not; or purports to be made, altered or dealt with by a person
who did not make, alter or deal with it.

[11] According to section 2 (b) of The Evidence Act, “document” means any matter
expressed or described upon any substance by means of letters, figures or
marks, or by more than one of those means, intended to be used, or which may

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 be used, for the purpose of recording that matter. Therefore, a "document"
includes: any book, map, plan, graph or drawing; any photograph; any label,
marking or other writing which identifies or describes anything of which it forms
part, or to which it is attached by any means whatsoever; any disc, tape, sound
track or other device in which sounds or other data (not being visual images) are
embodied so as to be capable (with or without the aid of some other equipment)
of being reproduced therefrom; any film (including microfilm), negative, tape or
other device in which one or more visual images are embodied so as to be
capable (with or without the aid of some other equipment) of being reproduced
therefrom; and anything whatsoever on which is marked any words, figures,
letters or symbols which are capable of carrying a definite meaning to persons
conversant with them.

[12] Forgery is the false making of an instrument purporting to be that which it is not;
it is not the making of an instrument which purports to be what it really is, but
which contains false statements. Telling a lie does not become a forgery because
it is reduced into writing (see Ex parte Windsor (1865), 10 Cox C.C. 118 at 123).
The document must "tell a lie about itself." To be "false", the document must
purport to be something which it is not (see Brott v. R (1992) 173 CLR 426). The
material included must have been fabricated or altered significantly in order to
represent something it is actually not. It is possible for some lines or words or
even letters to be subsequently added, deleted, erased or obliterated from
original text changing the meaning or value of the original document
considerably. A document which is false in reference to the very purpose for
which the document was created is certainly one which is false in a material
particular.

[13] A document is "false" if it purports:- to have been made in the form in which it is
made by a person who did not in fact make it in that form; or to have been made
in the form in which it is made on the authority of a person who did not in fact
authorise its making in that form; or to have been made in the terms in which it is

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 made by a person who did not in fact make it in those terms; or to have been
made in the terms in which it is made on the authority of a person who did not in
fact authorise its making in those terms; or to have been altered in any respect
by a person who did not in fact alter it in that respect; or to have been altered in
any respect on the authority of a person who did not in fact authorise the
alteration in that respect; or to have been made or altered on a date on which, or
at a place at which, or otherwise in circumstances in which, it was not in fact
made or altered (for example a valuation of non-existent goods (as the goods
needed to exist before the valuation could properly be made, see R v. Donnelly
[1984] 1 WLR 1017 - or a document that purported to be made in the presence of
people who were not present, see R v. Warneford [1994] Crim LR 753); or to
have been made or altered by an existing person who did not in fact exist (this
does not include documents made using a false identity, an alias or nom de
plume, - see R v. More [1987] 1 WLR 1578 and Brott v. R (1992) 173 CLR 426 at
446).

[14] The false document must be clearly stated in the charge sheet and identified at
the trial. The prosecution cannot expand its case to rely on the falsity of other
documents that are attached or annexed to the document specified in the charge
sheet (e.g., supporting documentation for a loan application).

[15] I the instant case, P.W.1 Yahaya Farajal Opira, the L.C.1 Chairman testified that
he was made to stamp a blank document that he did not know, upon a
misrepresentation that it was required to enable the 1st respondent obtain money
for children’s school fees from BRAC. Later he discovered that the document
bore the handwriting of the L.CII Chairman and it had been used by the 1 st
respondent Obur Ronald, to sell the witness’ father’s land at Pece. P.W.2 Acan
Hilder testified that he was given instructions to survey two plots of land owned
by the 1st respondent Obur Ronald. There was no dispute over the land
expressed during the survey. She had no knowledge of any forged document.
P.W.3 Sebuwufu Elisa testified that he examined the questioned document. He

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 examined a photocopy of a letter dated 14th December, 2014 addressed to the
District Staff Surveyor, Gulu District. He found that the author of the specimen
handwriting, the 3rd respondent Onono Charles, was the author of the questioned
document. He did not analyse the signature and stamp. He tendered his report
24th July, 2017 as exhibit P. Ex.1. Whereas the charge sheet stated that a stamp
impression had been forged, the handwriting analysis done was in respect of
handwriting.

[16] According to sections 60 and 61 of The Evidence Act, the contents of documents
may be proved either by primary or by secondary evidence. Primary evidence
means the document itself produced for the inspection of the court. For private
documents, secondary evidence includes; (i) copies made from the original by
mechanical processes which in themselves ensure the accuracy of the copy, and
copies compared with those copies; (ii) copies made from or compared with the
original; (iii) counterparts of documents as against the parties who did not
execute them; and (iv) oral accounts of the contents of a document given by
some person who has himself or herself seen it.

[17] However for such evidence to be admissible, sections 64 of The Evidence Act,
requires proof one of the following; when the original is shown or appears to be
in the possession or power of the person against whom the document is sought
to be proved, or when the existence, condition or contents of the original have
been proved to be admitted in writing by the person against whom it is proved, or
when the original has been destroyed or lost, or when the original is of such a
nature as not to be easily movable, etc. Those provisions combined state the is
called the “best evidence rule,” also referred to as the “original writing rule,” a
principle of evidentiary law which underscores the need for production of original
document that was allegedly forged.

[18] In order to prove forgery, the original document is the best evidence but in this
case, neither the original nor admissible secondary evidence of it was produced

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 in evidence. Accordingly, I find that the prosecution failed to lead any credible
evidence to prove this essential ingredient of the alleged offence.

1st issue; whether the false document was made with intent to defraud or deceive;

[19] Whereas acts of destroying, alteration, or mutilation, of any original document are
considered as falsification, the act is not unlawful if it occurred out of negligence,
without an intention to deceive. "To deceive is ..... to induce a man to believe that
a thing is true which is false, and which the person practicing the deceit: it is by
deceit to induce a man to act to his injury. More tersely it may be put, that to
deceive is by falsehood to induce a state of mind; to defraud is by deceit to
induce a course of action" (see R v. Bussey (1931) 22 Cr App R 160 at 162; See
also: Attorney – General's Reference No. 2 of 1980 (1981) 72 Cr App R 64;
[1981] 1 All ER 493 and R v. Turner (1981) 72 Cr App R 117). The intention to
deceive commonly arises as the way to trick people into parting with money or
some other property. Forged documents are commonly used to substantiate
false claims, for financial or extraneous gains usually causing wrongful loss to
others.

[20] For purpose of this offence, the accused must have the intention that someone
be induced to accept the document as genuine (see R v. Utting [1987] 1 WLR
1375). The prosecution must prove that this intention existed at the time the
accused made the document (see R v. Ondhia [1998] 2 Cr App R 150 and R v.
Tobierre [1986] 1 WLR 125). To defraud is to deceive by deceit and to deceive is
to induce a man or woman to believe that a thing is true which is false. Shortly
put, to deceive is falsehood to induce a state of mind; to defraud is by deceit to
induce a course of action (see R. v. Wines [1953] 2 ALL E.R ER1497). It is not
necessary to show that the accused achieved his or her intended purpose. The
gist of the offence lies in intention, rather than consequence (see Attorney-
General’s Reference (No 1 of 2000) [2001] 1 WLR 331and R v. Garcia (1988) 87
Cr App R 175).

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[21] The only evidence led on this ingredient is that of P.W.1 Yahaya Farajal Opira,
the L.C.1 Chairman who testified that he was tricked by A2 Odem Gabriel whom
he trusted as his General Secretary, to stamp a blank sheet of paper. St the time
he stamped the blank piece of paper, it was upon a misrepresentation that it was
required to enable the 1st respondent obtain money for children’s school fees
from BRAC. Later he discovered that the document bore the handwriting of the
L.CII Chairman and it had been used by the 1 st respondent Obur Ronald, to sell
the witness’ father’s land at Pece. However, he was unable to identify the
document produced in court as the one he stamped. Having failed to establish
the falsity of the document produced in court, the intention behind its creation
could not be proved either. Accordingly, I find that the prosecution failed to lead
any credible evidence to prove this essential ingredient of the alleged offence as
well.

3srd issue; whether the false document was made by the accused;

[22] A person "makes" a document if he or she is ultimately responsible for it coming

into existence. Making of a document is different from causing it to be made. A
charge of forgery cannot be imposed on a person who is not the maker of the
same.

[23] The evidence on this element came from the testimony of P.W.1 Yahaya Farajal
Opira, the L.C.1 Chairman who testified that it is the 2 nd respondent Odem
Gabriel who brought him the document claiming it was required to enable him
obtain money for his children’s school fees from BRAC. He was made to stamp a
document that he did not know. P.W.2 Acan Hilder testified that the two plots she
surveyed belonged to the 1st respondent Obur Ronald. P.W.3 Sebuwufu Elisa
testified that the author of the specimen handwriting, the 3rd respondent Onono
Charles, was the author of the questioned document.

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[24] Had the three been credible evidence regarding the other two elements, this
evidence would have implicated the 2nd and 3rd respondents only. But since that
is not the case, I find that the trial court came to the correct conclusion when it
found that none of the respondents had a case to answer since the prosecution
failed to establish a prima facie case against any of them.

Order:
[25] In the final result, for the above reasons, there is no merit in the appeal, and it is
accordingly dismissed.

Delivered electronically this 14th day of August, 2020 ……Stephen Mubiru…………..

Stephen Mubiru
Resident Judge, Gulu

Appearances
For the appellant :
For the respondents :

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