Uganda v Katunakukye Bensious

FINAL SUBMISSIONS

The Accused person 0stands charged in Count one with Threatening Violence c/s 81 (a) of the PCA, and
in Count 2 with Malicious Damage to property c/s 335(1)of PCA.

BRIEF FACTS

On the 11/07/2022, at Kagorora II Cell in Ntungamo District, the Accused (Katunakukye Bensious) went
with a panga to the banana plantation of the complainant (Kyohirwe Joventa) and cut down her banana
plantations while threatening to kill her if she does not give him the land. On the 21/07/2022, again the
Accused went with a panga and cut down the complainant’s coffee plantations and when the
complainant went there the Accused threatened to kill her if she does not give him the land.

INGREDIENTS OF THE OFFENCE:

COUNT 1: THREATENING VIOLENCE

Under section 81 (a) of The Penal Code Act, the offence is committed by any person who with intent to
intimidate or annoy any person, threatens to injure, assault, shoot or kill any person, or to burn, break or
injure any property. Mere words are not enough; it is constituted by utterances coupled with actions
causing imminent threat of harm (see Mugyenyi James v. Uganda [1974] H.C.B 83 and Uganda v.
Racham Daniel [1977] 52). There must be a threat to assault coupled with intention to intimidate (see
Ofwono Benedicto v. Uganda[1977] H.C.B 210). It must be shown that words were uttered or that at
least there were gestures made that could clearly be interpreted as a threat (see Uganda v. Onyabo
Stephen and three others [1979]H.C.B39). The intention to intimidate may be gathered from the
utterances, conduct, and surrounding circumstances (see Uganda v. No.39 PC Lochoro [1982] H.C.B. 80).

Therefore prosecution will prove each of the following essential ingredients of the offence of
Threatening Violence C/s 81 (a) of The Penal Code Act;

1. Words or conduct that threatened another.

2. The words or conduct were expressed with intent to intimidate.
3. The accused uttered such words or engaged in such conduct.

COUNT2: MALICIOUS DAMAGE TO PROPERTY.

Under Section 335(1) of the Penal Code Act, the offence Malicious damage to property is committed by
any person who wilfully and unlawfully destroys and damages any property belonging to another.

According to the case of Asega & 4 Ors Vs Uganda, H.C. Crim. Appeal No. 48 of 2011, the ingredients of
the offence of Malicious Damage to Property are as follows:

(i) Destroying or causing damage to property

(ii) The property belongs to the Complainant or other person
(iii) The destruction or damage is done maliciously, wilfully or unlawfully
(iv) Identification evidence confirming the participation of the Accused in the incident
(v) The Accused does not have a legitimate defence or legal justification for his or her actions
BURDEN OF PROOF AND STANDARD OF PROOF.

As a matter of law, in Criminal law, it is incumbent on the Prosecution to prove the guilt of the Accused
person as charged.

As seen in the Woolmington vsD.P.P. [1935] A.C. 462, The burden of proof perpetually rests on the
Prosecution, and does not shift to the Accused person; except where there is a specific statutory
provision to the contrary (see Okethi Okale & Ors. vs Republic [1965] E.A. 555). The standard or threshold
required to prove the case against the Accused person is that the proof must be beyond reasonable
doubt. This does not necessarily mean proof with utmost certainty, or 100% proof. Nonetheless, the
standard is met only when, upon considering the evidence adduced, there is a high degree of probability
that the Accused in fact committed the offence. ( see Uganda v Hussein Hassan Agade HC Crim Session
Case No.1 of 2010)

In Miller vs Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374, Lord Denning stated quite
succinctly that:–

"The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the
course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour,
which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is
proved beyond reasonable doubt; but nothing short of that will suffice."

The Prosecution produced four (4) witnesses ( PW1 Kyohirwe Joventa, PW2 Saidat Komworeko, PW3
Ainomugisha David, and PW4 No.38966 D/CPL Atwau Peter) in order to discharge this burden.
Prosecution intends to prove each and every ingredient of the offence in order to discharge the burden
to the required standard which beyond reasonable doubt.

COUNT1: THREATENING VIOLENCE

INGREDIENT 1 & 2: Words or conduct that threatened another, and intention to intimidate.

The Prosecution recognises that; Mere words are not enough for this offence; they must have been
uttered under circumstances that reasonably tend to produce a fear that the threat will be carried out.
The law requires that the words must have been used in a way that constituted a believable threat. The
offence is usually constituted by utterances coupled with actions causing imminent threat of harm, as
was stated in Mugyenyi James v. Uganda [1974] H.C.B 83 and Uganda v. Racham Daniel [1977]. There
must be a threat to assault coupled with intention to intimidate according to the case of Ofwono
Benedicto v. Uganda [1977] H.C.B 210.

The threat must have been so clear, immediate, unconditional, and specific that it communicated to the
person being threatened a serious intention and the immediate prospect that the threat would be
carried out. (See. Holbert v. Noon, 260 P.3d 836; PGE v. Bureau of Labor and Industries, 317 Or. 606, 611,
859 P.2d 1143 (1993) and Devine v. State, 786 S.W.2d 268).

In the case of Nyeko Anthony v Uganda (Criminal Appeal No 18 of 2017) 2020 UGHC 132, The words
must be intimidating, unequivocal, unconditional, immediate, and specific as to convey to the
complainant a gravity of purpose and an immediate prospect of execution of the threat. An act which
causes another person to apprehend immediate and unlawful violence of itself constitutes a threat. It
also includes words calculated to instil apprehension of; (a) inflicting physical harm on the person
threatened or any other person; (b) subjecting any person to physical confinement or restraint; or (c)
committing any felony against another person.

The threat must have actually caused the person to be in sustained fear for his or her own safety or for
the safety of his or her immediate family. (see. Nyeko Anthony v Uganda(supra)).

PW4 testified that the he received a call from the complainant that the suspect again went there
recorded statements from the witnesses who confirmed that the suspect was threatening to kill the
complainant.

INGREDIENT 3: That the Accused uttered such words or engaged in such conduct.

PW4 testified that the Accused was very violent even at police which prompted the order for his
detention.

COUNT2: MALICIOUS DAMAGE TO PROPERTY

INGREDIENT 1: Destroying or causing damage to property

PW2, Saidat Komworeko testified that they went to the complainant’s coffee plantation and saw the saw
the cut coffee trees .

PW4 testified that he and some other police officer went to the scene and found some coffee trees cut,
that they took some photos of the destroyed coffee trees, which were about 3 coffee trees cut(PE1)

INGREDIENT 2: The property belongs to the Complainant or other person

PW1, PW2 and PW3, all testified that the coffee plantation that was damaged belongs to the
Complainant, however, prior to the offence, the Accused together with other people had tried to force
the complainant to share her land with the Accused, which she refused to do, and they went ahead and
forced her to sign certain documents which she neither understood nor consent to.

PW1 testified that when they forced her to sign on the Agreement (giving away her land), she went and
reported to police.

The prosecution witnesses (PW1, PW2,and PW3) testified that the land on which the damaged coffee
plantations were was given to the complainant and her two children when her late husband divided the
land between his two wife that is to say, the complainant and the Accused’s mother, whereby the late
husband and the Accused’s mother sold their share and moved to a different location where they bought
some other land.

INGREDIENT 3: The destruction or damage is done maliciously, wilfully or unlawfully

Maliciously, Wilfully or Unlawfully in S.335(1) signifies intention or mens rea that the accused person
destroyed or damaged the property in issue intentionally without any claim of right or legal justification;
Muhwezi Jackson Vs Uganda, H.C. Crim. Appeal No. 10 of 2008.All that has to be proved in that a
wrongful act was done, without cause or excuse. Mere knowledge that it is likely to cause wrongful loss
to owner of the property is sufficient”. (See also Regina Vs Pembliton [1874-80] ALL ER. 1163.)

From the testimonies of PW1, PW2, and PW3, the complainant refused to share her land with the
Accused and the accused connived with some other people, forced the complainant to sign some
documents and the Accused went ahead and destroyed the complainant’s coffee plantation.

PW4, during cross examination testified that the way the Accused cut the coffee was not pruning, it was
maliciously.

INGREDIENT 4: Identification evidence confirming the participation of the Accused in the

incident

PW 4 testified that when he received a phone call from the complainant reporting the Accused of
threatening violence and destroying of her coffee plantation, he advised the complainant to report to
Nyakyera police, that the police responded and went to the scene, they found the Accused still there
and stopped him from whatever he was doing (that is to say, cutting the coffee trees).

INGREDIENT 5: The Accused does not have a legitimate defence or legal justification for his
or her actions

PW1, testified that the Accused was given land by his grandparents and Uncle, however he sold his land
and came to claim the complainant’s land. That the Accused together with other people forged a
document (Agreement) which they told the complainant to sign but she refused, so they forced her to
sign it with menaces.

The complainant’s testimony was confirmed by the testimonies of PW2 and PW3 who both testified that
the land belongs to the Complainant, given to her when her late husband divided the land between his
two wives, the complainant and the Accused’s mother.

Having given evidence to prove all the ingredients of both offences the Accused is charged with, the
Prosecution therefore prays that the Accused be found guilty and convicted of the offences as charged.