[2012] UGCA 57

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

(Coram: Richard Buteera, DCJ, JA, Irene Mulyagonja, JA, Eva K. Luwasta, JA)

#### CRIMINAL APPEAL NO. 0149 OF 2011

#### **BETWEEN**

KASAGALA JOSEPH ::::::::::::::::::::::::::::::::::::

#### AND

**UGANDA :::::::::::::::::::::::::::::::::::**

# (Appeal from the Judgment of the High Court sitting at Mubende in Criminal Session Case No. MME 05/08 by Lady Justice Faith Mwondha delivered on $01/07/2011$ )

## JUDGMENT

#### **Introduction**

1] This as an appeal from the decision of the High Court of Uganda sitting at Mubende in which the trial judge convicted the appellant of the offence of murder, contrary to Sections 188 and 189 of the Penal Code Act and sentenced him to 25 years' imprisonment.

2l As far as we could discern from the record, the facts admitted at the trial are that on an unspecified date, the appellant invited the deceased, his native doctor to live with him in Busunju Mapenge LCI. Subsequently during the month of July 2008, disagreements developed between the two in connection with the appellant's wife or a loan that the deceased claimed the appellant owed him. As a result, the appellant ordered the deceased to vacate his home. Owing to lack of transport to return to his home in Mubende, the deceased sought temporary shelter in the home of one Kyewa Boniface, the appellant's neighbor. On an unspecified date, the appellant communicated to one Florence Wampa his displeasure over Kyewa's decision to allow the deceased to stay in his home. On 28/9 /2008, Kyewa and Wampa discovered the deceased lying dead across the path of their home. They in addition saw the appellant's white sandal commonly known as nigina near the deceased's body. Kyewa informed the LC1 of Lusundo about the incident who in turn called the Chairman of Naama, and the matter was reported to police. The Appellant was arrested and indicted for murder. He offered no defence to the charge, preferring to remain silent during the trial. He was convicted and sentenced.

#### Grounds of aDDeal

3l The appellant being aggrieved with the decision of the High Court lodged an appeal to this court premised on four grounds set out in the Memorandum of Appeal as follows:

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- ^I That the learned Trial Judge erred in law when he proceeded with the trial without having the assessors sworn which occasioned a miscarriage of justice to the appellant - That the learned Trial Judge erred in law when she proceeded with receiving the assessors' opinion when no summing up to the assessors opinion was done which occasioned a miscarriage of justice to the Appellant. 1l - That the learned trial Judge erred in law and fact by convicting the appellant on the basis of unsatisfactory uncorroborated circumstantial evidence thereby leading to a miscarriage of justice. 111. - That the learned trial Judge erred in law in sentencing the Appellant to a harsh and manifestly excessive sentence of 25 years' imprisonment in the circumstances. lv.

### Representation

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4] At the hearing of the appeal, the appellant was represented by Counsel Cosma A. Kateeba while the respondent was represented by Harriet Adubango a Chief State Attorney. Counsel for the parties applied and were allowed to adopt their written submissions which this Court will consider to decide the appeal. Submissions were collectively made for grounds one and two.

### Grounds one and two

## Submissions for the aDDellant

5] Appellant's counsel submitted that a perusal of the record indicates that the assessors were selected on 1 I /4l2Ol1 , the day trial commenced, and on 5/5/2011, a preliminary hearing was held wherein prosecution exhibits were admitted. He submitted that the hearing proceeded immediately with all prosecution witnesses testifying, and with closure of the defence case on the same day. He continued that submissions were recorded on ⁷/6/2011 after which the Judge reserved the assessor's opinion for a/6/2Oll.

- 6l It was counsel's contention that there was no record that the assessors were sworn in or evidence of being summed up by the Judge, and in fact that, there were no summing up notes on the record. Counsel then referred to Section 3 of the Trial on Indictment Act, Cap 23 (TIA) which makes it mandatory for criminal trials in the High Court to be conducted with assessors and Section 67 of the TIA which makes it mandatory after the preliminary hearing for every assessor to take oath impartially to advise the court to the best of his or her knowledge, skill and ability on the issues pending before the court. - 7] Counsel contended that failure to swear in the assessors, who also constitute the Court, was a fatal irregularity which gravely affected the proceedings that followed. He cited the case of Byamukama Francis v Uganda, CA Cr Appeal No. 397 of 2015 and Alenyo Marks vs Uganda, SC Cr Appeal No. O8 of 2OO7, where this court held that the assessors' participation and role in criminal trials is vital and their role goes to the legality of the trial so that a trial which proceeds without the assessors taking oath, is a nullity.

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- 8] Counsel invited court to find that the proceedings in the instant case which proceeded without the assessors being sworn, resulted into the trial being a nullity. - 9] In addition, appellant's counsel considered the absence of summing up notes for the assessors on the record, as an impediment for this court to determine whether the learned trial judge summed to them in accordance with the law. He referred to Section 82 of the TIA which imposes a mandatory obligation on the trial Judge to sum up to the assessors the evidence and the law in the case. In that regard, counsel relied on the case of Adiga Johnson David vs Uganda, CA Cr Appeal No. O157 of2O1O that followed the decision of the Supreme Court in Sam Ekolu v Uganda, SC Cr Appeal No. 15/ 1994 where this Court found that failure by the Judge to sum up to the assessors, is a fatal irregularity.

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1Ol Counsel asserted that where a conviction by a lower court is quashed due to a fundamental irregularity in the proceedings, the interest of justice would demand a retriai. However, he conceded that it still remains within the discretion of court to order a re trial and in doing so cited the decision in Nenyo Marks vs Uganda (supra), cited in Abdu Komakech vs Uganda, SC Cr Appeal No. 1 of 1998, where the Supreme Court held that the court has discretion to order a retrial but the discretion must be exercised in a judicial manner.

111 In Counsel's view, ordering a retrial in this case would amount to a miscarriage of justice as the appellant has served approximately 16 years of imprisonment. He invited the court to find that in the circumstances, the period spent on remand so far serves the ends of justice and the court should instead of a re trial, order for the immediate release of the appellant.

#### Respondent's submissions

- 121 In response, respondent's counsel conceded that although the original record indicates that the assessors were not sworn in and those proceedings were not recorded, at page 11 of the same record, there is an indication that the summing up was done, but the notes are missing. Counsel invited Court to consider the original handwritten trial proceedings for verification. He added that such procedural irregularity do not affect substantive justice reached by the trial Judge and that in this particular case, the omission did not occasion a miscarriage ofjustice to the appellant. - 131 Counsel relied on Section 34 (11 of the Criminal Procedure Code Act (CPC) and in addition the case of Byaruhanga Fodori vs Uganda COA Cr Appeal No 24 of 1999 where court held that

"... their fihe assessor's) importance of aduising a trial Judge on matters of fact cannot be under estimated. Howeuer, their role is merelg aduisory and not binding on the trial Judge... failure to record their particulars and tuhether or not theg were sworn in does not cause a miscariage of justice. The Judge could obtain their a

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partianlars and euen swear them in but fail to record the fact. Where the defense is represented bg counsel and no objection is raised, the acansed cannot be said to haue been prejudiced when he onlg remembered to raise such matter on appeal".

l4l Respondent's counsel argued that the appellant was ably represented and no objection was raised at the point of appointing the assessors and commencement of the trial, neither was any objection raised at the time of receiving their opinion. In her opinion, there was no miscarriage of justice. She prayed that the two grounds should fail.

## Decision of court

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151 We have carefully studied the court record, considered the submissions for either side, and the law and authorities cited therein. A first appeal from a decision of the High Court requires this Court to review the evidence and make its own inferences of law and fact. See: Rule 3O (1) (a) of the Judicature (Court of Appeal Rules) Directions. We do agree with and follow the decision of the Supreme Court in Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 1O of 1997, where it was held that on a first appeal, this Court has a duty to:

". . . .reuieuL the euidence of the case and to reconsider the materials before the trial pdge. Tlrc appellate Court must then make up its own mind not disregarding the judgment appealed from but carefullg uteighing and consideing it." - 161 Before we delve into the grounds of appeal, we want to point out the fact that counsel should take extreme care and diligence in drafting pleadings and all court documents. Appropriate drafting of court documents is a form of proper and professional representation. In the submissions of this case, appellant's counsel indicated facts not related to this case at all. Although the charge on trial was for murder, counsel mentioned facts of defilement. We accordingly encourage advocates to take keen interest in their work and pay attention to the same to avoid embarrassment before court and their clients. - l7l T\rrning to the appeal, we shall first consider the ground raised that failure to have the assessors sworn in by the trial Judge, was fatal to the trial. - 181 Section 3(11 of the Trial on Indictment Act underscores the importance of assessors by making a mandatory requirement that all criminal trials in the High Court be conducted with at least two assessors. It therefore follows that assessors' participation and role in a criminal trial is vital. Their roie goes to the legality of the trial and in a significant way, ensures the participation of the people in the administration of justice. Both counsel provided ample authority to support this argument and we shall not repeat them here. - 191 The Appellant faults the trial Court for proceeding with a trial without swearing in the assessors. Appellant's counsel contended

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that the trial proceeded without the assessors taking oath which led to a miscarriage of justice. Respondent's counsel conceded that when she perused the original file, swearing in of the assessors was not recorded. We have likewise reviewed the record ofappeal and have not seen anyproofofthe assessors takingoath.

2Ol According to Section 67 of the Trial on Indictment Act, the taking of oath is a mandatory pre-requisite in the trial process. The section provides as follows:

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" At the commencement of the tial . . . . . . afier the preliminary hearing has been concluded, each assessor shall take an oath impartially to aduise the court to the best of his or her knowledge, skill and ability, on the issues pending before the court."

2ll Nonetheless, Section 34 (1) of the Criminal Procedure Code Act permits this court to ignore procedural errors and omissions if no substantial miscarriage of justice has been caused. The section states as follows:

"The appellate court on anA appeal against conuiction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported hauing regard to the euidence or that it should be set aside on the ground of a wrong decision on anA question of law if the decision has in fact caused a miscarriage of justice, or on anA other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notuLithstanding that it is of the opinion that the point raised in the appeal might be decided in fauour of the appellan| dismiss the appeal if it considers that no substantial miscarriage of justice has actuallg ocanrred. "

## 221 Again, Section 139 of the Trial on Indictment Act dictates

that not all omissions and errors are fatal. It provides as follows:

(1) "Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or *misdirection has, in fact, occasioned a failure of justice.* (2) In determining whether any error, omission, irregularity or *misdirection has occasioned a failure of justice, the court shall*

have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings."

$23|$ In Agaba Lilian and Amutuheire Patrick v Uganda, CA Cr Appeals No. 239 & 242 Of 2017, the Court of Appeal cited **Ndaula vs Uganda [2002] 1 EA 214,** in which, at Page 217, the Court stated that:

"it is undoubtedly erroneous for a criminal trial in the High Court to" proceed without the assessors taking oath as required under section 65 of the Trial Indictment Decree of 1971. That section provides that at the commencement of the trial, after the preliminary *hearing, if any, has been concluded, "each assessor shall take an* oath impartially to advise the court to the best of his knowledge. skill and ability on the issues pending before the court". It follows that to omit the oath and proceed to trial with unsworn assessors constitutes an irregularity in the proceedings of the trial. The omission, however, ...... does not go to competence or jurisdiction. *An assessor does not become an assessor by reason of taking the* assessor's oath. Rather, he takes that oath because he is an assessor, duly listed and selected to serve as such, under the

Assessors Rules. In our uieut, the irregulaitg falls within the ambit of section 137 of the Trial on Indictments Decree uhich reads that . . . . . . .. In the instant case it has not been suggested that there was a failure of justice by reason of the assessors nol hauing taken oath at the tial. We are satisfi"ed that no such failure of Justice utas occasioned."

24] The above decision is on all fours with the facts at the trial. We are of the view that the failure to swear in the assessors was a mere irregularity. It was not shown that the omission affected the trial in any substantial manner. The appellant was represented by counsel but and no complaint was raised at the material time. We are satisfied that in this case, the failure by the trial court to swear in the assessors did not result in any injustice to the Appellant. We conclude then that the trial was not a nullity, and that as such, the hrst ground must fail.

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25]1 Secondly, the Appellant faulted the trial Judge for failing to sum up to the assessors. Section 82 (11 ofthe TIA provides that:

When the case on both sides is closed, the judge shall sum up the la ut and the euidence in the case to the assessors and shall require each of /he assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note ofhis or her summing up to the assessors. "

261 We note from page L4 of the record that after the submissions of both the state and the defence were closed, the trial Judge recorded a heading indicating the summing up for the assessors. However, there are no summing up notes on record, yet the assessors proceeded to give their opinion on 816/2Oll.

- 271 It is clear, and in this we agree with the appellant's counsel, that Section 82(1) is couched in mandatory terms. During a trial, assessors form part of the Court and play an important role in the proper functioning and do give legitimacy to criminal trials. However, save for rare cases, they are not trained in the law and must be fully and properly guided by the Court on the ambit of the law and how it applies to the particular facts before them. It can never be assumed that they know the law. Without summing up to them up, the legitimacy of the trial is compromised even in those cases when the Court does not rely on their advice when making a decision of whether to convict or acquit. Thus when the trial Judge failed or neglected to sum up to the assessors, the trial is rendered a nullity. We would as a result set aside the trial and quash the sentence, arrived at after such a fundamental irregularity. - 281 Where a conviction by a lower court is quashed for being based on a fundamental irregularity in the proceedings which resulted into a mis-trial, or where by reason of an error material to the merits of the case a miscarriage of justice has occurred, the interest ofjustice normally demands that a retrial be ordered. The purpose of a retrial as stated in the case of Reu. Father Santos Wapokra u Uganda, CA Cr Appeal No.2O4 of 2o72,is to ensure that the cause of justice is served in a case before Court. A serious error committed during the conduct of a trial to render it defective or illegal or the discovery of new evidence, which was

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not obtainable at the trial, are the major considerations for ordering a retrial. See also Fatehali Manji V R (1966) EA 342. The Court that has tried a case should be able to correct the errors made during the conduct of the trial, or to receive other evidence that was then not available. We emphasize however that a retrial should not result into the accused person being subjected to doublejeopardy, by way ofexpense, delay or inconvenience.

291 In arriving at a just decision, we are persuaded to consider some of the authorities provided by appellant's counsel, and the circumstances of this case. We note that the offence that is the subject of this appeal was committed on 28 /9 I 2OO8, the appellant was charged and his trial commenced on 17l4l2Ol1. Judgment was delivered on l/7120 1 1, in which the appellant was convicted and sentenced. His committal to prison must have followed suit immediately after sentencing. It has been eleven years since that date. Taking into consideration the lapse of time, the likelihood that it might pose diffrculty in tracing the witnesses and the possibility that the evidence might not be available at the new trial, it is our considered view, that ordering a retrial would occasion a miscarriage ofjustice. We a-lso note that the appellant has been in lawful custody for over 15 years now which period, we hnd, has served the ends of justice given the parity of sentences in similar offences as illustrated here below in some of the previous decisions of this Court.

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301 In Epuat Richard vs Uganda, CA Cr Appeal No. 0199 of 2OLL, the appellant was convicted of murder and sentenced to 30

years. On appeal, this court set aside the sentence and substituted it with 15 years. Yet in **Ariko Francis vs Uganda, CA** Cr Appeal No. 241 of 2011, this court confirmed a sentence of 17 years' imprisonment for murder. In **Anguyo Robert vs Uganda, Cr Appeal No. 48 of 2009, the appellant was convicted** of murder and sentenced 20 years' imprisonment. On appeal to this court, the sentence was set aside and substituted with 18 years

- 31] For the above reasons, we are inclined not to order a re-trial. Instead, we order for the immediate release of the appellant unless he is held on some other lawful charges. - We accordingly find no reason to consider the other two 321 grounds of appeal.

HON. RICHARD BUTEERA, DCJ **JUSTICE OF APPEAL**

HON. IRENE MULXAGONJ **JUSTICE OF APPEAL** HON. EVA K LUSWATA JUSTICE OF APPEAL

$12/302a$