[2021] UGSC 30

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KOLOLO

$\mathcal{L} = \mathcal{L}$

# Criminal Application No. 02 of 2021

(Arising out of Criminal Appeal No. 46 of 2020)

| <b>Major Joel Babumba</b> | $\cdots \cdots \cdots$ | Applicant | |---------------------------|-------------------------------|------------| | | Versus | | | <b>Uganda</b> | $\cdots \cdots \cdots \cdots$ | Respondent |

**Before Lady Justice Percy Night Tuhaise, JSC (single Justice)**

### **Ruling**

This application was brought under Rules 6 (2) (a), 42 (1) & 43 (1) of the Judicature (Supreme Court Rules) Directions SI 13-11, for orders that:-

- 1. The Applicant be released on bail pending the hearing and determination of his Criminal Appeal No. 46 of 2020 by this Honourable Court. AN - 2. The costs of this application be provided for.

The grounds of this application are contained in the Notice of Motion and in the affidavit in support of the application sworn by the Applicant, but briefly, are that:-

1. The applicant is legally aggrieved with the decision of the Court of Appeal in Criminal Appeal No. 422 of 2016 reversing his acquittal on an indictment for murder by the High Court at Masaka, and has filed an appeal (Criminal Appeal No. 46 of 2020) in this honourable Court against the decision and orders of the Court of Appeal.

- 2. The Applicant has since obtained the certified copy of the proceedings and judgment of the Court of Appeal, has prepared and filed the appeal in this honourable Court in accordance with the Rules of this honourable Court. - 3. The Applicant's prayer to be released on bail, pending determination of his appeal is further premised on the following special circumstances, namely:- - The Applicant's appeal filed before this honourable $\dot{\mathbf{1}}.$ Court is not frivolous and has formidable grounds and a high likelihood of success. - The Applicant was previously granted bail and ii. complied with the bail terms and conditions imposed by the High Court including attendance of Court and undertakes to do the same should this Court grant him bail. - The Applicant is a first time offender with no prior iii. conviction. - The offence with which the Applicant was indicted and iv. convicted is bailable by this honorable Court. - The Applicant has sound and substantial sureties and $\mathbf{V}.$ will comply with the conditions set by Court for his release on bail. - 4. That it is just and equitable that this honorable Court exercises its discretion in favour of the Applicant by releasing him on

bail pending the hearing and determination of his appeal before this honourable Court.

#### **Background**

The brief background of this case, as deduced from the record, is that the Applicant, together with Baguma Alex, were charged with the murder of Kazungu Moses (deceased) in 2012. The deceased was a resident of Bwanyi Village in Kalungu District where his family owned a huge chunk of land. In 1984, the deceased's siblings sold part of the family land measuring 154 acres to Major Noel Nuwe (Rtd) who in turn sold the same to the Applicant, Major Joel Babumba.

Upon acquisition of the said piece of land which was adjacent to that of the deceased, the Applicant established a Diary Farm thereon comprising chiefly of cows and goats. The deceased later became embroiled in a bitter feud with the Applicant who often accused the deceased of permitting his cows to stray into his farm and infecting his animals in the process.

During the wee hours of 31^st July, 2012, the body of the deceased was discovered by the road side bearing multiple head injuries and lying in a pool of blood. Next to it was his motor cycle Reg. No. UDH 709T whose front lamp assemblage was extensively damaged and many of his personal belongings including his mobile phone were missing. The post-mortem report attributed the deceased's cause of death to; "... severe closed head injury not *compatible with life, secondary blunt trauma to the head..."*

The Applicant and Alex Baguma were arrested, charged and tried for murder contrary to sections 188 and 189 of the Penal Code Act, but were acquitted by the High Court. The State, being dissatisfied with the acquittal, appealed the High Court decision to the Court of Appeal. By a majority decision of two (Owiny-Dollo DCJ, as he then was, and Cheborion JA) to one (Musoke JA), the Court of Appeal overturned the judgment of the High Court, set aside the acquittal, and entered a conviction of murder. The same Court ordered that the Applicant be sentenced before the High Court. On 30^th December 2020, the Applicant was sentenced to 20 (twenty) years imprisonment. The Applicant filed Criminal Appeal No. 46 of 2020 in this Court and it is pending hearing. The current application originates from the said appeal.

#### **Representation**

At the hearing of this application, the Applicant was represented by Ronald Muhwezi and Ronald Tumusiime both of M/S Bashasha & Co. Advocates while the Respondent was represented by Odiit Andrew, Senior Assistant Director of Public Prosecutions (DPP). WRY

The Applicant was in Court at the hearing of this application. Counsel Ronald Muhwezi informed this Court that the Applicant is now Lieutenant Colonel Joel Babumba, but no evidence was availed to that effect.

### **Applicant's submissions**

Counsel for the Applicant highlighted the grounds as contained in the Notice of Motion. He submitted that the Applicant was granted bail by the High Court of Masaka; that he abided by the conditions right through the Court of Appeal process; that when his acquittal was reversed, he presented himself to court to be taken to prison in compliance with the decision of the Court of Appeal; and that he did not abscond.

Counsel also submitted that the Applicant's appeal is arguable and not frivolous; that his acquittal was reversed by a majority decision of 2 to 1, Musoke JA dissenting; and that the record shows there were several errors in the majority decision in respect to identification evidence especially by a single identifying witness, on alibi, and on circumstantial evidence. Counsel further submitted that there is an existing appeal; that the notice of appeal marked annexure D and the memorandum of appeal marked annexure H were attached to the application; and that the Applicant is a first time offender, a father with children and a home to fend for, and a place of abode as indicated in his charge sheet. AN

Counsel introduced four people to this Court to stand surety for the Applicant in the event the application is granted. These were:-

- 1. RO/07935 Col. Charles $\mathbf{M}$ . Kayemba Director Administration Chieftaincy of Military Intelligence; a professional colleague to the Applicant; and his direct boss. - RO/0771 Col. Allan T. Kyangungu Commander National $2.$ Vital Assets and Strategic Installation Unit; a professional

colleague in the Army; and a maternal cousin to the Applicant.

- Mrs. Alice Kyatuka a resident of Nalumunye Village $3.$ Kasenge Parish, Kyengera Town Council Wakiso District; a maternal aunt of the Applicant. - $4.$ Ssanyu Philippina Babumba - a resident of Kiwanataka LC 1 Bukoto 2 Parish in Nakawa Division; a biological sister to the applicant.

Counsel relied on the authorities of Arvind Patel V Uganda, Supreme Court Criminal Application No.1 of 2003 and Ochepa Godfrey V Uganda, Supreme Court Miscellaneous Application No. 07 of 2020. He submitted that in the case of Ochepa Godfrey (supra), Mwondha, JSC stressed that conditions may be many but one or two may suffice to grant bail. He also relied on the case of John Muhanguzi Kashaka V Uganda, Supreme Court Miscellaneous Application No. 18 of 2019 where Tibatemwa-Ekirikubinza, JSC stated that the likelihood of success can on its own provide exceptional circumstances for grant of bail.

He submitted that the Respondent's affidavit in reply does not appear to oppose the application. He prayed that the Applicant be granted bail on conditions this Court will deem fit.

#### **Respondent's submissions**

Counsel for the Respondent opposed this application, and relied on the case of **Arvind Patel V Uganda** (supra).

Regarding the Applicant's submissions that the appeal is not frivolous and has a reasonable possibility of success, Counsel submitted that pages from 87 to 121 of his record of appeal were missing and so it was not easy for him to determine whether there is any possibility of success of this appeal, but that, going by the majority decision of the Court of Appeal, the appeal lacks merit as the Applicant had not proved to the satisfaction of court that this appeal has any chance of succeeding.

Regarding the Applicant's submissions that the Applicant has complied with bail conditions granted after the conviction, Counsel for the Respondent submitted that it was not true, because the Applicant absconded a number of times. He submitted that the Applicant has only been serving his sentence for about four months; that he is a young man of 46 years and he can satisfactory withstand the prison conditions. M

Regarding the sureties presented in Court, Counsel objected to sureties No. 3 Alice Kyatuka and No. 4 Sanyu Philippina in that these are civilians. In addition, he stated that surety No. 3 is of advanced age of about 56 years while No. 4 is a young girl of about 20 to 30 years. According to Counsel, the two would not ensure the attendance of the Applicant in court.

Regarding the character of the Applicant, Counsel submitted that his character does not warrant this honorable Court to exercise its discretion and release him on bail; that while the Applicant was serving sentence, he was sponsoring some unknown persons to harm the complainant in this case; that a general inquiry file,

$\overline{7}$

Kireka SIU GF No.0472021 was opened in that respect; and that the suspects were arrested and are pending appearing in court.

Counsel prayed that this Court finds that the Applicant has not proved to the satisfaction of this honorable Court that he deserves to be released on bail pending his appeal. He invited this Court to dismiss this application.

## Applicant's Submissions in Rejoinder

Counsel for the Applicant submitted that bail is not about capacity to withstand prison conditions, but about being granted temporary freedom as you prove your rights. According to Counsel, if this honorable Court finds the Applicant innocent, there can never be any payment to atone for the days he will have served in prison. Regarding surety Nos. 3 and 4, Counsel submitted that both being blood relations, they can ensure that the Applicant will observe the bail terms; that the Applicant, being a responsible citizen, cannot wish that the two blood relatives get into problems by absconding; and that it is all the more reason why he would comply to the bail conditions to safeguard himself and his family.

Regarding threats by the Applicant against the complainant, Counsel submitted that the submissions were from the bar; that there was no affidavit in reply to suggest that the Applicant intends to harm the complainant who is the Government of Uganda. Counsel maintained that if there is any other complainant, that complainant has not sworn an affidavit to state so. Counsel prayed that the submission in question be ignored.

#### **Consideration of the application**

Rule 6 $(2)$ (a) of the rules of the Judicature (Supreme Court) Rules, hereafter referred to as the "Rules of this Court", which applies to applications for bail pending hearing and determination of an appeal, states:-

$(2)$ Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may-

in any criminal proceedings, where a notice of appeal has been $(a)$ given in accordance with rules 56 and 57 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of *the appeal;"*

The Applicant is the appellant in *Criminal Appeal No. 46 of 2020* pending before this Court. He thus complied with the above rule, as shown by a copy of the Notice of Appeal annexed as " $D$ " to his affidavit in support of the application.

The grant of bail, whether pending trial or pending appeal, is at the discretion of court, which discretion must be exercised judiciously, with each case being determined on its own merits. See John Muhanguzi Kashaka V Uganda (supra); Arvind Patel V Uganda (supra); and Ochepa Godfrey V Uganda (supra).

The consideration for release of an Applicant on bail pending appeal hinges on whether there are exceptional and unusual circumstances warranting such release. This is because the

Applicant is no longer wholly shielded by the presumption of innocence espoused in Article 28 (3) of the Constitution of Uganda. Secondly, the position is that whenever an application for bail pending appeal is considered, the presumption is that when the Applicant was convicted, he or she was properly convicted.

In the instant application, the presumption of innocence is rebutted by the fact that the Court of Appeal has already convicted the Applicant ( $1^{st}$ Respondent then). This infers that there are factual findings by the Court of Appeal, based on the adduced evidence, that he committed the offence he was charged with, thus rendering him outside the ambit of persons envisaged in Article 28 (3) (a) which refers to persons in respect of whom a court of law is yet to make a verdict on allegations against them.

Thus, a person applying for bail pending appeal must be subjected to a more stringent test than one who is not yet convicted.

However, the fact that the law, as implicit in Article 132 (2) of the Constitution, Section 5 of the Judicature Act cap 13, and the rule 6 (2) of Rules of this Court, makes provisions for appeal, and for bail pending appeal, would infer that the law appreciates the possibility of a conviction being erroneous or the punishment being excessive. $\omega$

In Arvind Patel V Uganda (supra), this Court laid down guidelines to be considered to justify the grant of bail pending appeal, that is:-

- *the character of the applicant;* $i)$ - ii) *whether he/she is a first offender or not;*

- whether the offence of which the applicant was convicted iii) *involved personal violence;* - $iv)$ the appeal is not frivolous and has a reasonable possibility of success; - $v)$ the possibility of substantial delay in the determination of the appeal; - whether the applicant has complied with bail conditions $v_i$ granted after the applicant's conviction and during the pendency of the appeal (if any).

It was held in the same case of Arvind Patel and, later, in Ocepa **Geoffrey V Uganda (supra)** that not all conditions for bail have to exist, that two or three can suffice since each case is decided on its own facts and circumstances.

In this application, it is contended for the Applicant that the appeal is not frivolous and has a reasonable possibility of success. The Respondent's Counsel did not seriously rebut this but maintained that, going by the majority decision of the Court of Appeal the appeal lacks merit. $\sqrt{Q}$

The likelihood of success of an appeal, would on the face of it, presuppose that court appreciates the merits of the appeal on which the application for bail hinges. However, as a matter of fact, court does not at this particular point in time delve deeply into the merits of the appeal. The criteria, in my considered opinion, would rather be whether the appeal is *prima facie* arguable or presents serious issues for court's consideration.

It was held in the case of Arvind Patel (supra) that:-

"the only means by which court can assess the possibility of success of the appeal is by perusing the relevant record of proceedings, the judgment of the court from which the appeal has emanated and the *Memorandum of Appeal in question."*

I have perused the record, particularly the Notice of Appeal, the Memorandum of Appeal, and the judgment of the Court of Appeal from which the appeal pending before this Court arises. All these form part of the Applicant's evidence which he annexed to his supporting affidavit. I am alive to the fact I am not sitting as an appellate court and cannot therefore delve into the merits of the appeal.

The decision challenged by the Applicant in the appeal mainly evolve around the areas of identification of the Applicant by a single identifying witness and the circumstances under which the identification was made (at night, when the witness was hiding); the Applicant's alibi; and circumstantial evidence. The Court of Appeal decision was by a majority of 2 to 1 that the respondents were correctly identified by a single identifying witness and that the circumstances favoured correct identification which placed them at the scene of crime. The dissenting Justice of Appeal, however held a contrary opinion, and, in her opinion, would have upheld the High Court's acquittal of the respondents.

In my considered opinion, in the circumstances of this case, the appeal may not be frivolous and it presents serious arguable issues for consideration before this Court. van

The second consideration presented by the Applicant to justify grant of bail evolves around his conduct or character. The Applicant has been presented to this Court by his Counsel, based on his affidavit evidence, as a first time offender, a father with children and a home to fend for, plus a place of abode indicated in his charge sheet. The Respondent's Counsel did not challenge the said attributes. He only maintained, based on the affidavit in reply, that the Applicant absconded a number of times.

The position of this Court, as held in **Kashaka V Uganda** (supra), is that good character alone can never be enough because there is nothing exceptional or unusual in having good character. Thus factors which go to the applicant's credit, like being a first time offender, or of good character, or a breadwinner of his family, and although he may have offered sureties of sound character, would all such recede to the background when weighed with the seriousness of the offence and whether or not there is likelihood that the appeal would succeed.

Be that as it may, one of the grounds relied on by the Applicant is that he has complied with bail conditions granted to him by the High Court through to the Court of Appeal, and that he presented himself to Court after his acquittal was reversed. This was opposed by the Respondent who, in the affidavit in reply sworn by Nabulobi Annet Janet, Senior State Attorney in the office of the Director of Public Prosecutions (DPP), averred that the Applicant, though he was granted bail by the High Court, absconded on some occasions. VIRI

It is the Applicant's evidence in paragraph 5 of his supporting affidavit that he had been granted bail by the High Court at the time of delivery of judgment by the Court of Appeal. The record of

proceedings at trial shows that the Applicant (A1) was on bail at some point during trial but his co accused (A2) was not on bail. The same record at page 187 (bottom page) also shows that the Applicant and his co accused did not attend court on 16^th August 2016 to continue with the defence, as a result of which the trial court concluded they had lost interest in the case and closed their case. This was after the defence had applied for adjournment to adduce more evidence (page 186 bottom page).

The record of proceedings at the Court of Appeal (page 10 to 14 bottom page) also shows that the Court of Appeal judgment was read on 7^th July 2020 in the absence of the Applicant (1^st Respondent then). The Court Registrar ordered that criminal summons be issued for him to appear in Court on 10^th July 2020. On 8^th July 2020 Paul Rwahigi the complainant came to the same Court where it was recorded as follows:-R

"**Paul Rwahigi:** We have information that the $1^{st}$ Respondent plans to hide yet you ordered the lawyer to bring him on Friday. I have UPDF officers who can help me arrest him and bring him before Court.

**Court:** To avoid absurdity, the warrant of arrest is hereby issued. Let any lawful means be devised to have the $1^{st}$ Respondent apprehended to answer the charges. The warrant should be *transmitted to the DPP for follow up."*

On 10^th July 2020, the Applicant did not appear in Court and the Court Registrar directed that security personnel be alerted to apprehend him. It was after he appeared in Court on 14^th July 2020 that the warrant of arrest was cancelled and he was committed to Kitalya Prison.

Thus, based on the foregoing, it is my considered opinion that, having eluded courts earlier, it cannot be said that the Applicant previously complied with bail conditions as he would want this Court to believe. This would put his conduct in question.

Counsel for the Respondent's submissions that the Applicant was threatening the complainant through unknown persons, are not supported by any evidence, let alone the affidavit evidence on record. I have therefore not considered them since they tantamount to giving evidence from the Bar.

Counsel for the Applicant did not submit on the nature of the offence the applicant was convicted of, but the record shows that he was convicted of murder. AN

It has to be noted that, even before conviction, courts in Uganda have to exercise a high degree of caution while considering grant of bail to a person awaiting trial on a charge of murder. Although Section 14 of the Trial on Indictment Act provides that the High Court may at any stage in its proceedings release an accused person on bail, Section 15 (1) & (2) (a) of the same Act sets a higher standard for bail pending trial on a charge triable only by the High Court, which includes the offence of murder. In such a situation, the Applicant must prove to the satisfaction of the court that exceptional circumstances exist to justify his or her release on bail.

It follows therefore that, where the application is for bail pending appeal, extra caution is required.

Secondly, the findings of the Court of Appeal based on the post mortem report and the testimony of PW 10, are that the deceased sustained severe injuries on the head, a large bruise in the middle of his head, the skull bones were broken and there was a wound below his eye (89 & 90 bottom page). This, combined with the Court of Appeal's findings of the Respondents' culpability would suggest the crime the Applicant was convicted of involved personal violence.

Counsel further submitted that if this honorable Court finds the Applicant innocent there can never be any payment to atone for the days he will have served in prison. However ground 2 of this application, states that:-

"2. The Applicant has since obtained the certified copy of the proceedings and judgment of the Court of Appeal, has prepared and filed the appeal in this honourable court in accordance with the Rules of this honourable Court."

The record of appeal in *Criminal Appeal No.* **46** *of* **2020** attached to the Applicant's supporting affidavit and marked "F" shows the Applicant's preparedness to go for trial. R

In the given circumstances, the "delay" in disposing of the appeal should be assessed in light of whether there is a real risk that the sentence, or a considerable portion of it, will have been served before the appeal is heard.

In the instant application, the Applicant, by his own evidence in paragraph 2 (v) of his supporting affidavit, was sentenced to $20$ years' imprisonment by the High Court on $30/12/2020$ , meaning he has served about four months of that term. The sentence will certainly not have expired by the time the appeal is heard. As stated in **Kashaka V Uganda** (supra), delay can only alone be an unusual or exceptional circumstance if it is unusual itself. There is no basis in the circumstances of this application therefore, for speculating that the Applicant's appeal will be subjected to an unusual delay.

For the reasons given above, based on the adduced evidence and the applicable law on bail pending appeal, and all the circumstances of this application, I would, in exercise of my discretion, decline to grant the application. However, in the interests of justice, this Court should fix the hearing of the appeal expeditiously.

The application is hereby dismissed.

$\mathcal{I} = \mathcal{I}$

The Registrar of this Court should cause list this appeal in the next convenient Criminal Session.

Dated at Kampala this $\frac{29}{3}$ and $\frac{29}{3}$ and $\frac{29}{3}$ ...day of $\frac{29}{3}$ ....................................

MON

**Percy Night Tuhaise Justice of the Supreme Court**