[2024] UGCA 269

## THE REPUBLIC OF UGANDA

## IN THE COURT OFAPPEAL OF UGANDAAT KAMPALA

lCoram: Egonda-Itltende, Barishaki Cheborion & Mugenyi, JJAI

#### Criminal Appeal No. 157 of 2018

(Arising.fro\* High Court Criminal Session Case l"lo. 150 of 2017 at Mpigi)

#### BETWEEN

| | Ayebare Eric | | Appellant | | |--|--------------|--|-----------|--| |--|--------------|--|-----------|--|

#### ANT)

Uganda Respondent

(On Appeal-fro\* the judgment of the High Court of Uganda (Alividza, J.,) delivered on the 27'hApril 2018 at Mpigi)

## JUDGMENT OF THE COURT

#### Introduction

- tl] The appellant was convicted of the murder of his wife contrary to sectionsl88 and 189 of the Penal Code Act. The particulars of the offence were that the appellant on 28'h October 2015 at Kiyanja zone, Nabingo in Wakiso district, with malice aforethought, unlawfully set fire on Zawede Faridah, thereby causing her death on 31't October 2015. He was sentenced to 3 5 years imprisonment. He appealed against both conviction and sentence. - l2l 3 grounds of appeal have beeen put forth by the appellant and we shall set them out below.

'1. That the learned trial judge erred in law and fact when she convicted the appellant of murder of his own wife (deceased), basing on hearsay evidence, thus causing a travesty ofjustice.

2. That without prejudice to (1) above the trial judge erred in law and fact when she overlooked the appellant's defence of intoxication.

3. That the learned trial judge erred in law and fact when she imposed a manifestly excessive sentence of 35 years very harsh in the circumstances.'

t3] The respondent opposed the appeal and supported the judgement of the court below.

## Representation and Submissions of Counsel

- l4l Ms Barbara Kawuma, Assistant Director of Public Prosecutions in the Office of the Director of Public Prosecutions, holding brief for Ms Innocent, Senior State Attomey, appeared for the respondent while the appellant was represented by Ms Sheila Kihumuro, on state brief. - t5l Ms Kihumuro submitted on ground I that the testimony of PWI and PW2 was essentially hearsay as it was a dying declaration and needed to be treated with care, and in practice needed corroboration. She referred to Tindiswih ura Mbahe v ljsanda Supreme Court Criminal Appeal No. 009 of 1998 (unreported) in support thereof. - t6] Counsel contended that it was possible for the dying declaration to be falsified, as the deceased had to explain her injuries to obtain treatment. The children who were present in the house were never interviewed by the police officer who investigated the case, PW2. The deceased never told her story to the neighbours or the landlord. She just fled the scene. This was to be contrasted with the explanation on oath by the appellant that it is the deceased who lit the fire in an attempted suicide. She had previously attempted to commit suicide by other means. - t7l Turning to ground2, if ground I did not succeed, counsel submitted that on the facts available on record showing that the deceased and the appellant had returned home after a drinking spree the appellant should not have been convicted of murder but manslaughter as the prosecution had failed to prove that he acted with malice aforethought. There is evidence that the appellant and deceased were drinking alcohol from about 4.00pm to 8.30 pm in a bar. Returning home both the deceased and the appellant were drunk. - t8] In support of this ground counsel referred to Ekusasi Joseph v Uganda Court ofAooeal Crimi Appeal No. 13 5 of 2010 (unreported) where a

conviction for murder was substituted with one for manslaughter. Unfortunately counsel did not provide a copy of the decision to us and we have not been able to trace the same. He prayed for a commensurate sentence for manslaughter and proposed that this court follows Livinestone Kakooza v Usanda l.1994.l UGSC 17.

- t9] Counsel for the appellant submitted in relation to ground 3 that the law in relation to an appellate court interfering with a sentence of the lower court is expressed in Kyali\*pu Edward v Uganda Supreme Court Criminal Appeal No. l0 of 1995 (unreported) and Livingstone Kakooza v Uganda (supra). He contended that applying those principles we should find that a sentence of 35 years' imprisonment for the offence of murder was harsh and manifestly excessive. The learned trial judge wrongly applied the range for sentencing provided by the sentencing guidelines when she upped the starting point to be 55 years' imprisonment. There was no evidence that the offence was premeditated. There was also an element of intoxication which factors ought to have been considered. The appellant was only 3l years old at the time of the offence. - ll0l Counsel referred us to Kidesa Francis v Ue ^aCourt of Aooeal Criminal Appeal No. 570 of 2015 (unreported); Francis Bwalutum v Uganda Court of Appeal Criminal Appeal No. 49 of 201 I (unreported); and Kasaiia David v Usanda Court of Appeal Criminal Appeal No. 128 of 2008 (unreported); for comparative sentences. He suggested a sentencing range of 10 to l5 years' imprisonment to which would be applied article 23 (8) of the Constitution and the period spent in remand be deducted. - [11] Counsel for the respondent opposed the appeal. In relation to ground ^I she submitted that the evidence of PW I and PW2 was a dying declaration which was properly admitted by the trial judge. She submitted that the trial judge was alive to the law in relation to dying declarations, properly directing the assessors and herself to the same. She contended that any suggestions that the dying declaration was not truthful and was an attempt by the deceased merely to explain her injuries so as to obtain treatment was not consistent with the evidence in

the case. The dying declaration was made as to the cause of death of the deceased and the circumstances of the transaction of events which resulted in her death. It stated clearly that the appellant poured paraffin on the deceased and set fire to her.

- U2l She fumher submitted that the trial judge analysed the evidence for both the prosecution and the defence and properly rejected the version of events put forward by the defence in preference to the prosecution and provided reasons at to why she did so. She prayed that in our reevaluation of the evidence we should arrive at the same conclusion as the trial judge as to the cause of the death of the deceased. - [ 3] Turning to ground 2 counsel for the respondent submitted that while intoxication was a complete defence and could also be a mitigating factor in sentencing the appellant neither raised the defence of intoxication at the trial nor was the same proved at trial. It was thus negate d and could not arise. She referred to Dembere Samson v Uganda 120231UGCA 2l and Musisi Jackson v Usanda 12003. I UGSC 24 in support of her submission. - ^Il4] Counsel further submitted that the dying declaration pointed to the appellant as the perpetrator of the offence in question and it had been corroborated by the conduct of the appellant after the offence was committed by reporting a case of arson and not visiting the deceased in Mulago hospital while she was receiving treatment. - [ 5] In relation to ground 3 counsel for the respondent submitted that the sentence imposed upon the appellant was neither harsh nor manifestly excessive. She cited a plethora of authorities that show sentences for murder that exceed 35 years' imprisonment. She submitted that there was no ground established by the appellant for interfering with the sentence imposed upon the appellant. She prayed that this ground should be rejected for lack of merit.

## Duty of a first appellate court

[ 6] It is the duty of a first appellate court to review and re-evaluate the evidence before the trial court and reach its own conclusions,

considering of course, that the appellate court did not have the opportunity to hear and see the witnesses testiff. See Rule 30(l) of the Court of Appeal Rules; Pandya v R [1957J EA 336; Ruwala v R F957 EA 570: Okethi Okale v Republic [l 965I EA 555 and Bosere Moses v Ueaada, [1998] UGSC 22. We now proceed to do so.

## Analysis

- ll7) On the fatefully day and night the deceased and the appellant, who were husband and wife, met in a bar, at about 4.00 pm. They drank alcohol until about 8.30 pm when they left to return home. DW2 gave them a Rwenzori bottle with paraffin and asked them to take it to his home. He was their landlord. Apparently, they were with their 2 children, aged 3 and I % years old. They went back home. The children were put to sleep. The appellant locked the house. - [ 8] What is in contest is what happened that night apparently after the children went to sleep. There are basically 2 versions. The prosecution version is basically what has been called a dying declaration by the deceased told to PWl. PWI visited the deceased at Mulago Hospital where she was being treated. The deceased told PWI that the appellant poured fuel on her and lit her with a match. Fire erupted on her and then the appellant doused her with water, and the fire was extinguished. She finally got out of the house and went to clinic. - [ 9] The clinic the deceased ran to for treatment reported the matter to the police who came and transferred the deceased to Mulago Hospital. She died a day after telling her story to PW I . - l20l The defence version as stated by the appellant on oath is that after returning from the bar a quarrel broke out with the deceased insisting that she wanted to go back. The appellant objected and she threatened to drink the paraffin. He turned and the deceased started drinking the paraffin. He tried to stop her and knocked the bottle out of her hand. She got a match and lit herself with fire. He tried to put out the fire, getting burnt in the process himself. He poured water on her and the fire was extinguished.

- l2l) He had locked the door and struggled to find the key which he found and opened the door. The deceased ran out. He went to a neighbour with the children. Later he reported to the police what had happened. He was subsequently arrested. He explained that he did not visit the deceased at hospital as he was looking after the children and he himself had been injured. - 122) DW3, a neighbour to the appellant stated that on the fateful night at about midnight he heard the appellant's wife telling him to open the door so that she goes out. She stated that she would pour paraffin and die. There was silence for some time. Thereafter the deceased cried out to neighbours for help. He saw the appellant opening the door and the deceased came out and ran off. - [23] The learned trial judge, while initially stating that the accused's story appeared to be very credible, concluded that the prosecution had proved the case beyond reasonable doubt based on the dying declaration and the conduct of the appellant after the crime. - 124) We shall proceed to analyse the evidence in the case in line with the grounds of appeal raised.

## Ground I

- [25] Under this ground the complaint is that the learned trial judge relied on hearsay evidence to find a conviction against the appellant. The hearsay evidence in question is obviously the testimony of PWI who recounted what has been referred to as the dying declaration by the deceased as told to PWl. PWI recounted what the deceased told her when she visited her in Mulago Hospital which we have already set out above. - 126l The law with regard to dying declarations is fairly well settled. Though dying declarations are admissible as evidence against an accused and at law require no corroboration courts have consistently required as a matter of practice that there must be corroboration given the multilayered weaknesses that are inherent in this nature of evidence.

# l27l In Ouininto Etum v Uganda [1990J UGSC 8 the Supreme Court noted,

!t

'Dying declarations however, must always be received with caution, because the test of cross examination may be wanting and particulars of violence may have occurred circumstances of confusion and surprise. Further as a matter of practice, corroboration must always be sought for though corroboration is not necessary as a rule of law. See: Okale v Republic (1965) E. A 555 and Tuwamoi v Usanda (1967\ E. A.84.'

## [28] In summing up to the assessors the learned trial judge stated,

'The case against the accused depends on what she told her relatives versus what the accused told the people of what happened. The law on dying declarations does not require corroboration. Court can safely convict on the evidence. Therefore advise the court accordingly.'

- 129) In our view this was a misdirection to the assessors as the learned trial judge did not draw the attention of the assessors to the inherent weaknesses in dying declarations. Much as there is no requirement at law for corroboration courts have held consistently that as a rule of practice there must be corroboration. This misdirection must have influenced the assessors in determining their own opinion in the matter. - [30] Notwithstanding the foregoing in her judgment the learned trial judge appreciated the need for corroboration. The learned trial judge stated in part,

'From the evidence as a whole, there was a violent confrontation between the deceased and the accused in a domestic setting. The narration by the deceased to PW2 sounds credible especially in light of DW3, the neighbour who heard the deceased crying for the door to be opened. I note that even if the couple had a toxic or violent relationship , the defence witnesses produced to court never told Court that they witnessed the suicidal acts by the deceased but were told by the Accused. Whatever the accused told them was hearsay.

The conduct of the Accused after the offence is also very revealing. He made no effort to save his wife and find out what happened to her. This would have corroborated his testimony that the wife poured paraffin on herself in a bid to commit suicide. Instead the Accused goes to the police and reports a case of arson. There was no attempt made to visit the wife in hospital or inform her family of what happened.

After considering all the evidence as a whole, I find that the Accused was the person who killed the deceased. The Prosecutions' evidence points to his participation in the murder. And as result I find the Prosecution has this ingredient proved beyond reasonable doubt.'

- [3 1] It appears to us that the learned trial judge made some conclusions in relation to the conduct of the appellant that are contrary to the evidence on the record. The assertion that the appellant did not attempt to save his wife is not borne out by available facts. The dying declaration itself is clear that it was the appellant that put out the fire by dousing her with water. The appellant got injured in the process himself. He opened the door for her to leave the house. The appellant is accused not to have informed the deceased's family. The appellant stated on oath in cross examination that he had informed the deceased's sister in Mukono by phone. He also stated that he was not able to go to Mulago Hospital to see his wife because he was looking after their children and himself had been injured. - [32] The appellant's reporting to the police a case of arson was viewed by the trial judge adversely against the appellant. Firstly, this would be consistent with the appellant's version of what happened. Secondly no evidence was adduced of the exact nature of the report to show that it was inconsistent with the appellant's version of events. - t33] In our view what the learned trial judge took as 'the revealing conduct' of the appellant could not amount to corroboration of the dying declaration as revealed by PWl. We find no evidence available on record to provide corroboration for the dying declaration in this case and

t

in our view a conviction based only on the dying declaration was unsafe given the inherent nature of the weaknesses of evidence of this nature.

134) The learned trial judge stated that she was guided by the following quote.

a

'I am further guided by the Simbwa's case that "as a general rule on which the evidence of dying declarations is admitted is that the are declarations made in extremity when the party is at the point of death, and when every hope of this world is gone. When every motive of falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so awful, which is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered by a Court..."

- [35] Firstly, no evidence was established that the deceased in this case by the time she made her statement to her relatives held the belief that death was inevitable and that all hope of this world was gone so as to induce 'the most powerful considerations' to tell the truth and silence any possibility of falsehoods. The threshold for converting the deceased's statement to PW I into a dying declaration would appear not to have been met. No evidence of belief of imminent death was adduced. It was merely presumed by the learned judge, we assume, in light of the death of the deceased. - t36] Apart from the absence of any evidence to corroborate the 'dying declaration' the learned judge had described at some stage the appellant's version of events as 'appears very credible'. The burden of proof is always on the prosecution and the standard of proof is proof beyond reasonable doubt. If an accused in his defence provides ^a probable version of events to contradict the prosecution version of the case this would suggest that the prosecution has failed to prove its case beyond reasonable doubt. The defence would have succeeded to create sufficient doubt in the prosecution's case.

- $[37]$ The appellant testified on oath, providing his version of the events of that evening and night. The trial judge's initial view at some point was that this version was 'very credible'. Against this version is the evidence for the prosecution offering a different version of what happened that night. The prosecution contends that there is a valid dying declaration. Much as it may be questionable whether the threshold for qualifying that evidence as a dying declaration was reached there is no evidence to corroborate the same. In those circumstances we are satisfied that the prosecution did not discharge its burden to prove the case against the appellant beyond reasonable doubt. - $[38]$ In light of the foregoing, it is unnecessary to consider the other grounds of appeal.

## **Decision**

$[39]$ We would quash the conviction and set aside the sentence imposed on the appellant. We order the immediate release of the appellant unless he is held on some other lawful charge.

Signed, dated and delivered at Kampala this day of

$\mathcal{A}^{\mathcal{A}}$

redrick Egonda-Ntende **Justice of Appeal**

Barishaki Cheborion **Justice of Appeal**

Dr Asa Muger

**Justice of Appeal**