THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATE’S COURT OF ENTEBBE AT ENTEBBE
CRIMINAL CASE NO. 0173 OF 2022
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION
VERSUS
RODEL TAYAG CASUGA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED
ACCUSED’S SUBMISSIONS ON A NO-CASE TO ANSWER
BRIEF FACTS:
Uganda Air Cargo Corporation (UACC) filed a criminal case against Rodel Tayag for theft of
the Corporation’s funds after he received double payment of salary arrears amounting to US
Dollars 27, 588.03 (United States Dollars Twenty-Seven Thousand Five Hundred Eighty-Eight).
Rodel had sued UACC in the Industrial Court in 2017 over nonpayment of salary arrears, and a
garnishee order was executed against the Bank account of UACC on the 15 th of December 2020,
and cash worth USD 27,588.03 was paid off the Corporation Account No. 8705610772500 to the
Law Firm of Mr. Bazirengede Mohammed, the then Counsel to the Accused.
Around June 2021, UACC Corporation Secretary, Colonel Timothy Nabanda called the Accused
(Rodel) to sign an “important document” and when Rodel requested for his lawyer to be present,
he (Corporation Secretary) refused insisting that the lawyer would end up eating his (Rodel’s)
money. The Deed of Payment Settlement & Release, however was not registered in Court by the
time of payment and the Corporation paid USD 20,849 (United States Dollars Twenty Thousand
Eight Hundred Forty-Nine) on the 30 th of June 2021, which was paid through the account of
Rodel’s friend, Mr. Antonio Ebina in Equity Bank.
After a period of about one year, when the accountant was reconciling the accounts, he
discovered that money had been debited from the corporation Account and paid to Rodel.
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The Accountant informed management and they reported this matter to Police hence this
Criminal Case.
RESOLUTION:
Your Worship,
Article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995, as amended, provides
for the presumption of innocence of an Accused person until proven guilty. It is a cardinal
principle of criminal law that the burden of proving the guilt of an Accused person solely lies on
the Prosecution.
Section 101 of the Evidence Act Cap. 8 states that;
“Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he or she asserts
must prove that those facts exist.”
Sub-section 2 provides as follows;
“When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.”
Your Worship, the above principle was enunciated in the case of Woolmington Vs. DPP [1935]
AC 462, which was cited with approval in Uganda v Tumukunde Sula High Court Criminal
HCT-01-CR-SC-148 of 2014, Page 1, where the Court held that in criminal cases, the burden of
proof lies solely on the Prosecution, which must prove all the ingredients of the offence beyond
reasonable doubt because the Accused has no duty to prove his innocence. The Court further
held that any doubt in the evidence should be resolved in favor of the Accused.
In the case of Uganda V Maliya Yassin (H.C Criminal Case No.143 Of 2012), Page 1, the
Court, while noting the Decision of Wabiro Alias Musa V R (1960) EA 184, held that;
“Where at the close of prosecution case a prima facie case has not been
made out, the accused person would be entitled to an acquittal…. that a
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prima facie case could not be established by mere scintilla of evidence or
by any amount of worthless, discredited prosecution evidence.”
There are mainly two considerations justifying a finding that there is no prima facie case made
out as was held in Uganda V Alfred Ateu (1974) HCB 179, which was cited with approval in the
case of Uganda v A.M & Another HCT-00-CR-JSC- 610 of 2022, Page 2, as follows;
1) Where there has been no evidence to prove an essential ingredient in the alleged offense.
2) When the evidence adduced by the prosecution has been discredited as a result of cross-
examination or is manifestly unreliable that no reasonable court could safely convict on
it.
OFFENSE
THEFT
The offence of theft is stipulated under Section 244 of the Penal Code Act Cap 128. Section
237 (1) of the Act defines theft to include;
1) A person who fraudulently and without claim of right takes anything capable of being
stolen, or who fraudulently converts to the use of any person other than the general or
special owner of anything capable of being stolen, is said to steal that thing.
The ingredients of the offence of theft were stated in the case of Ssetabi Justus v Uganda High
Court Criminal Appeal No. 06 of 2022, Page 6, as follows;
1. That at the material time, the complainant owned property that was capable of being
stolen.
2. That the Accused had no claim of right to that property.
3. That there was asportation of the property.
4. That the Accused had a fraudulent intent to permanently deprive the owner of that
property.
5. That the Accused participated in commission of the theft.
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Your Worship, we submit that the Prosecution has not made out a prima facie case against the
Accused person. The evidence of the Prosecution does not prove all the ingredients of the
offense charged in specific participation.
ANALYSIS OF THE EVIDENCE ADDUCED
Ingredient One.
That at the material time, the complainant owned property that was capable of being
stolen.
It was not in dispute that UACC had money in its Bank Account, as the same was proven by
PW1, the Director of Finance, who testified that the corporation received funding from the
government in August 2020. The same was confirmed by PW2, an Accountant with UACC, who
testified that the Corporation received capitalization from the government.
Ingredient Two.
That the Accused had no claim of right to the property.
We submit that the Accused, who was an employee of UACC, had a claim of right for unpaid
salary and allowances. This was proven by the Prosecution witnesses as follows: PW1 testified
during examination in chief that UACC had not paid its employees' salaries and that the Accused
had, through Bazirengede & Co. Advocates, taken the corporation to court to have his salary
arrears paid. PW2 also testified during examination in chief that the Accused had taken the
corporation to court for non–payment of salaries and allowances to the tune of USD 42,256 and
that by November 2020, the corporation had cleared all salaries and was remaining with USD
20,849. Additionally, when PW2 was cross-examined, he confirmed that the corporation still
owed the Accused money.
Section 7 of the Penal Code Act Cap 128 incorporates the defence of claim of right as follows;
“A person is not criminally responsible in respect of an offense 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.”
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Thus, in the case of Angala Francis v Uganda High Court Criminal Appeal No.0013 of 2014,
the Court while interpreting Section 7 of the Penal Code Act held that it involves a genuine
honest belief, regardless of whether it is well founded in fact or law. The Court went on to hold
as follows;
“The defence allows for a subjective belief in a claim of right which if established negatives the
required mental element of property related offences. It should be noted that this defence is not
limited to situations in which an accused believed he/she owned the property. Rather, it includes
those situations in which the accused honestly, although not necessarily correctly, believed that
he/she had either the right or the authorisation to receive, take, acquire, or dispose of the
property. The existence of such a claim may constitute an answer to a property related crime in
which the issue as to whether the accused had a genuine belief in the legal right to the property
rather than a belief in a legal right to employ the means in question to recover it, is relevant to
the determination of culpability. Once the defence is successfully raised on the evidence, it is
then for the prosecution to negative it (see Astor v Hayes (1998) 38 A Crim R 219).
The elements constituting the defence of claim of right were established in the case of R v Fuge
(2001) 123 A Crim R 310 at 314-315, which was cited with approval in the case of Angala
Francis v Uganda High Court Criminal Appeal No.0013 of 2014, as below;
“The authorities relating to a claim of right were reviewed by the New South Wales Court of
Criminal Appeal in R v Fuge (2001) 123 A Crim R 310 at 314-315. The principles relating to
this defence were stated to be as follows:
1. The claim of right must be one that involves a belief as to the right to the property or
money in the hands of another.
2. The claim must be genuinely, that is, honestly held, whether it was well founded in fact or
law or not.
3. While the belief does not have to be reasonable, a colourable pretence is insufficient.
4. The belief must be one of a legal entitlement to the property and not simply a moral
entitlement.
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5. The existence of such a claim, when genuinely held, may constitute an answer to a crime
in which the means used to take the property involved an assault, or the use of arms, the
relevant issue being whether the accused had a genuine belief in a legal right to the
property rather than a belief in a legal right to employ the means in question to recover
it.
6. The claim of right is not confined to the specific property or banknotes which were once
held by the claimant, but can also extend to cases where what is taken is their equivalent
in value, although that may be qualified when, for example, the property is taken
ostensibly under a claim of right to hold them by way of safekeeping, or as security for a
loan, yet the actual intention was to sell them.
7. The claim of right must, however, extend to the entirety of the property or money taken.
Such a claim does not provide any answer where the property or money taken
intentionally goes beyond that to which the bona fide claim attaches.
8. In the case of an offender charged as an accessory, what is relevant is the existence of a
bona fide claim in the principal offender or offenders. There can be no accessorial
liability unless there has in fact been a foundational knowing of the essential facts which
made what was done a crime, and unless the person who is charged as an accessory
intentionally aided, abetted, counselled or procured those acts.
9. It is for the Crown to negative a claim of right where it is sufficiently raised on the
evidence, to the satisfaction of the jury.”
The Court further held that this defence has successfully been applied to offences relating to
receiving, taking, acquiring, or disposing of property, mainly in the form of chattels and cited
decided case such as; Oyat v. Uganda [1967] EA 827.
Your Worship, the money was willingly and voluntarily paid into the Bank Account of the
Accused’s Friend’s by the Corporation. It was not disputed by the Prosecution that the Accused
claimed for unpaid salaries and allowances from UACC for the period that he had worked with
the Corporation since 2010, as was confirmed by PW2 during examination in chief.
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The Accused’s belief in his entitlement to the funds, arising from a lawful claim against UACC,
court action, and correspondence with the Corporation, negates the essential mental element of
theft under Section 244 of the Penal Code Act and he can therefore not be held criminally
responsible for theft of money.
Ingredients three, four, and five.
Your Worship, we shall submit on these ingredients concurrently. PW2 stated during cross-
examination that all the first money paid by UACC was transferred to his lawyer’s account,
while another payment was made to the account of the Accused’s friend. Additionally, when
PW2 was asked why, as an accountant with UACC, he didn’t have records to show that money
had already been paid, he stated that the accounts officer was different at the time the original
money was paid. However, he mentioned that he prepared the second payment voucher on 30th
June 2021. The time between the first and second payments would have been sufficient for PW2
to reconcile, since he took over from the former accountant. Furthermore, PW2 testified during
cross-examination that the second payment of 2021 was made voluntarily by the Corporation.
We submit that although there was movement of cash from UACC’s Bank Account, it was done
voluntary by the Corporation's Accountant. The second payment was the result of UACC’s
internal failure to reconcile accounts or adequately communicate among departments, and not
any overt act by the Accused. The absence of evidence demonstrating that the Accused deceived
or manipulated UACC into making the second payment rebuts any inference of fraudulent intent.
In the case of Uganda v Baitwa and Another (Criminal Session 1 of 2019) [2025] UGHCACD
12 (30 April 2025) the accused, brothers and directors of Three Ways Shipping Services Ltd,
were charged with theft and conspiracy to defraud MTN (U) Ltd of USD 3.8 million through the
use of fictitious invoices between 2009 and 2012. The prosecution alleged that the funds were
fraudulently paid into their company accounts with the help of two MTN employees—Naphtali
Were and John Paul Basabose—and employees of their own company. While one MTN employee
died and another pleaded guilty under a plea bargain, the key company employees (Farida
Senkumba and Waiswa Kafuko) were discharged following a Nolle Prosequi and never called to
testify. The prosecution relied on circumstantial evidence and the accused’s role as company
account signatories. The defence maintained that the accused were unaware of the fraud and
had taken steps to reconcile accounts and refund USD 300,000 upon learning of the anomalies.
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The High Court held that the prosecution failed to prove criminal intent or common intention,
and that theft had occurred within MTN (U) Ltd through insider manipulation. The absence of
testimony from crucial accomplices created a fatal evidentiary gap. The court found that the
accused could not be held liable solely on the basis of their position or account access, and
acquitted both on all charges.
The Honorable Justice Gidudu in defining what amounts to theft in relation to money held that
theft occurs when a person causes it to move from one account to another or otherwise out of the
original account. The learned Justice went on to hold that theft was complete as soon as it was
caused to move or moved out of MTN’s Bank account. The Judge disagreed with the submission
of the State that the chain of theft was complete when money was deposited into the accounts of
the accused. The Court held as follows;
“…The law is that when money moves out of the original account with fraudulent intent, the
offence is committed. The one responsible for causing it to move is the thief…” (bold for
emphasis)
The Judge further held that the omission of key witnesses by the prosecution which had initiated
the fraudulent invoices could not connect the accused persons to the offences. He held that
failure by the prosecution to adduce evidence of witnesses to explain how requisitions were
raised to exit money from the accused’s company bank accounts to benefit the thieves in MTN
created the missing link that would have connected the accused to the crime. Additionally, the
Court held that being signatories to the company account did not make the accused persons
culpable because the mandate holders in MTN (U) Ltd were not faulted for signing off the
payments.
In the present facts of the case before Court now, PW1, the Director of Finance testified that the
Corporation’s management had engaged with Accused’s former lawyer Bazirengede and had
requested him to remove the garnishee order, but he didn’t comply. During cross examination, he
testified that the Corporation Secretary is the one who received the email requesting that money
be paid into the account of the Accused’s friend, Antonio Ebina. This clearly infers that the
Corporation Secretary is the one who advised that the money be withdrawn from UACC’s Bank
account. The Corporation Secretary organized the meeting between the Accused, his former
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lawyer and the Director of Finance where, they agreed to stay the garnishee order pending the
out of court settlement and that the double payment was as a result of the Accused’s former
lawyer failing to honor the Agreement. Additionally in the last paragraph on Page 4 of his
statement, the Corporation Secretary states that he entered into a Deed of Settlement and Release
with the accused before release of the funds from the Corporation and that the only parties
involved were himself and the accused. This infers suspicion on the conduct of the Secretary as a
key factor in the second withdraw of monies from UACC.
The investigating officer who testified as PW3 stated that he retrieved documents to show that
USD 23, 489 (Twenty-three thousand four hundred eighty-nine dollars only) was debited on the
15th of December 2020, from the Account of Uganda Air Cargo. On the same date, USD 3,000
(Three thousand dollars was paid to the Accused’s lawyer, who did not issue a receipt. He further
stated that the Accused’s lawyer was interviewed and stated that he recovered all the money for
the Accused. PW3 alleged in his testimony that the Accused Confessed to have received the
money, but he no confession statement was tendered in court to that effect. Even if it had been
tendered, receiving money by the accused is not a crime per se. The witness (PW3) further stated
that the accused informed him (pw3) that he (Accused) was just called to receive the money.
Your worship this further negates the Prosecution’s assertion that the Accused stole the money.
As per the aforementioned case above, it is thus questionable as to how the Prosecution would
omit the testimony of the Corporate Secretary which was key in proving how the second
payment of money was withdrawn from UACC. The secretary’s involvement in the release of
funds should have held him culpable as he authorized a settlement with the Accused without
involving his former lawyer, moreover the Accused received the money in honest expectation
since he was still demanding UACC unpaid allowances and salary.
We submit that as per the holding in the above cited case of Uganda v Baitwa and Another
Supra, the responsible party for the double payment was the Corporation Secretary, who was
well aware of the garnishee order that had been issued against UACC but still went ahead to
process the release of additional monies from the corporation’s account even without informing
the Accused’s former lawyer. The “theft” had already occurred the moment the money was
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removed from the corporation’s bank account and the one who caused the money to move was
the thief.
Section 105 (1) of the Evidence Act Cap. 8 provides as follows;
“When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any exception or exemption from, or qualification to, the operation of
the law creating the offence with which he or she is charged and the burden of proving any fact
especially within the knowledge of that person is upon him or her, but-
“(b) the person accused shall be entitled to be acquitted of the offence with which he or she is
charged if the court is satisfied that the evidence given by either the prosecution or the defence
creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”
Your Worship, as per the above cited provisions of the Law and decided cases, we pray that this
Honourable Court finds the evidence adduced by the prosecution not sufficient enough to
warrant the Accused person to be put on his defense. The Prosecution has neither disproved the
Accused’s honest claim of right nor linked him to any fraudulent intent or action.
We thus pray that this Honorable Court finds that the Accused does not have a case to answer
and acquits him of the offense charged.
DATED at Entebbe this ………. Day of …………………., 2025.
………………………………………………………
NSHEMEREIRWE, ARIGYE & CO. ADVOCATES
(COUNSEL FOR THE ACCUSED)
Drawn and Filed By;
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Nshemereirwe, Arigye & Co. Advocates
Plot 20, Airport Road
Trust House Building, 1st Floor
P.O.BOX 804, Entebbe.
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