[2023] UGCA 213

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

(Coram: R. Buteera, DCJ, C. Gashirabake, JA, O. Kihika, JA.)

# CRIMINAL APPEAL NO. 0472 OF 2O2O

(Arising from Criminal Session No. HCT-1)-CR-CS 07 32/2020)

#### BE'|WEI]N

KASULE ABDUL RAZACH APPELLANT

#### AND

# UGANDA.... RESPONDENT

(Appeal from the Judgment of the tligh Court of Ugando Ilolden at Kompalo, by,l.ll/ Kwesiga, J. delivered on 27th Octoher, 2020) 15

### JUDGMENT OF COURT

#### Introduction

l.l 1'he appellant was indicted for Aggravated Defilement c/s 129(3)(4)(a) and (c) ofthe Penal Code Act Cap 120.

2.] The facts as established from the lower court were that the appellant was a head teacher as well as English teacher of Abuduirair primary school in Namulanda Buzzi.ln the month of October 2018, the appellant performed ^a sexual act with S M a pupil in the same school. The victim was aged l3 years old. During the trial the appellant denied the charge and denied being ^a teacher at the said school. Ile was tried, convicted and sentenced to 20 years' imprisonment. 1 year and 10 months were deducted as the time spent on remand.


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- 3.] The appellant being aggrieved with the decision of the High Court lodged an $\mathsf{S}$ appeal in this court. The appeal is premised on four grounds set out in the Memorandum of Appeal as follows; - 1. *That the learned trial Judge erred in law and in fact when he failed* to adequately evaluate all the evidence adduced before him thus arriving at a wrong conclusion that the charge of aggravated defilement had been proved against the Appellant whereas not. - 2. That the learned trial Judge erred in law and fact when he held that the prosecution had proved the participation of the appellant whereas not. - 3. That the learned trial Judge erred in law and fact when he held that prosecution had destroyed the defence of alibi adduced by the appellant whereas not. - 4. That the learned trial judge erred in law and fact in sentencing the appellant to 20 years' imprisonment which sentence was deemed illegal, manifestly harsh and excessive in the circumstances.

#### **Representation**

4.] At the hearing of the appeal, the appellant was represented by Mr. Emmanuel Muwonge. While the respondent was represented by Ms. Immaculate Angutoko, Chief State Attorney, and Mr. Anthony Muzige, Senior State Attorney.

Grounds $1$ , $2$ and $3$

#### **Submissions for the appellant**

- 5. Counsel for the appellant jointly argued grounds 1,2 and 3. - 6. Counsel submitted that the burden of proof in criminal cases rests on the - prosecution. He cited **Woolmington vs. DPP**, (1935) AC 462. He further

- ⁵ submittcd that thc prosecution must provc cach ingrcdient ol the ollcncc chargcd. - 7.] lt was submittcd lor the appellant that thc prosecution casc was lull ol contradictions. Counsel submittcd that thc prosccution provcd the ingrcdicnt o[ thc age of thc victim bcyond reasonable doubt. Ilowever, that thc ingredicnts of thc scxual act having bccn pcrlormed on the victim and thc appcllant bcing rcsponsible was not provcd bcyond rcasonablc doubt by thc prosecution. - 8.] On whcther thc prosecution provcd the ingrcdient of scxual act, it was submitted that thc prosccution rclicd on thc cvidcnce olPW I and PW4, which in counscl's opinion was bascd on hcarsay. IIc submittcd that thc tcstimony of the victim is vcry unreliablc as it was not backed up by any other cvidcncc ol the prosecution. Counsel also submittcd that the sccnc of thc crimc was unrcliable bccausc it was ncvcr visitcd and rcconstructed by thc policc. - ²⁰ It was submittcd that thesc inconsistcnccs go to thc root olthc mattcr. - 9.] 'l'o buttress his arguments counsel citcd Ndyaguma David vs. Uganda, CACA No. 236, Apca Moses vs. Uganda CACA No. 0653 of 2015, whcrc court hcld that in cascs wherc thc victim ola scxual ollcncc is not brought to testily in court, evidcncc by pcrsons called as witncsscs that thc victiln told them that the accuscd defiled hcr is hearsay cvidcncc and is inadmissiblc. - ^I0.1 Counsel cited Candiga Swadick vs. Uganda, CACA No. 23 of 2012, whcrc this honourablc court hcld that thc law on contradictions and inconsistcnccs will usually result in the cvidcncc of thc witncsscs bcing rcjcctcd unlcss thcy arc satislactorily cxplaincd away. Minor oncs, on thc

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⁵ other hand will only lcad to rejcction ofthe cvidcnce ifthey point to deliberate untruthlulncss on thc part ol thc witnesscs.

^ILl Counscl also cited Lugcmwa vs Uganda, CACA No. 216 of 2017, which cited thc casc of Obwalatum Francis vs. Uganda, Supreme Court Criminal Appcal No. 30 of 2015, where the court hcld that;

"thc law on inconsistcncy is to thc cllcct that whcrc thcrc arc inconsislcncies and discrcpancics/ conlradictions bctwcon thc witncsscs which arc minor and o[ a trivial naturc, thcsc may be ignorcd unlcss thcy point to thc dcliborato untruthlulncss. Ilowcvcr. whcrc contradiclions and discrcpancies arc gravc, this would ordinarily lcad to thc rcjcclion ol'such tcslimony unlcss satislaclorily cxplaincd"

12.) Counscl submittcd that thc contradictions on when the act of dcfilcment took place and whcthcr the act rcally took placc are vcry major and grave and go to the root ofproving a major ingredient olthc offencc.

- l3.l On the participation of thc appellant, counscl submittcd that on PI'3 the victim was found to be scxually activc. [iurthcrmore, that thc appellant put up an alibi that hc has ncvcr bccn a tcachcr in Abudurari Primary school. Ilut that hc was thc hcadmastcr of'Lona Junior school. Counscl cited llogcre Moses and Anor vs. Uganda, SCCA No.l of 1997 20 - l4.l Counscl submittcd that the abovc lailures couplcd with thc inconsistencics and contradictions in the prosccution cvidencc espccially mcdical evidence and the tcstimony of thc victim are major and go to the root olproving thc participation olthc appellant. 25 - l5.l IIe praycd that court should takc notc of the contradictions and inconsistcncics that lcd to a miscarriage ofjusticc.


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#### Submissions for the respondent $\mathsf{S}$

$16.1$ Counsel for the respondent raised a preliminary objection on the ground that the first ground contravenes the provisions of rule $66(2)$ of this court. In his view, the ground failed to specify exactly the point of law or fact or mixed law and fact or the evidence that the Appellant contended was wrongly decided and is very argumentative. Counsel cited Sseremba Denis vs. **Uganda, CACA No 480 of 2017,** where this court struck out two grounds for offending the said rule.

In the alternative, counsel for the respondent submitted that the trial $17.1$ Judge properly and adequately evaluated all the evidence adduced at the trial and thus arrived at the correct conclusion that all ingredients of the offence were proved to the required standard.

- On the participation of the appellant, counsel for the respondent $18.$ contended that the prosecution proved the participation of the appellant beyond reasonable doubt. That PW2 testified that she was a pupil at Abudurari primary school where the appellant was the head teacher as well as the English teacher to the victim for two terms in 2018. As a class monitor she would take books to him for marking. They became close and on the fateful day the appellant led the victim behind the Kiwempe, removed her under wear and had sexual intercourse with her. - PW1, the father to the victim stated that the victim was born on $12^{th}$ $19.$ January 2006, as a parent she knew and saw the appellant as the head teacher of the victim's school. That PW1 heard about the love relationship between the appellant and the victim. The appellant called and met PW1 at a washing bay. The appellant requested PW1 to allow him marry the victim. PW1 handed him over to police.

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- 20.1 I)W3 mcdical clinical officer statcd that hc confirmcd that thc victim was l3ycars o[ agc by thc timc of thc incidcncc and thc hymen had becn rupturcd. PIr3 was admittcd as PEI. - 2l .l Counscl submitted that thc necd lor corroboration in scxual ollcnces was dispcnscd with by thc Suprcme Court in Ntambala Frcd vs. Uganda, SCCA No.34 of 20I5, in which court hcld that a conviclion can be solely based on the testimony of thc victim as a singlc witncss provided thc court finds hcr to bc truthlul and rcliablc. - 22.1 Counscl citcd Sewanyana Livingstone vs. Uganda' SCCA No l9 of 2006, whcre it hcld that;

" It is corrcct lhut lhere i.v rut numbcr of u'itness rcquircd by lau' to prova a criminul cu.sa. 'l'hc avidence in lhe appaul before c'ourt l.r.'as su.//icient. "

It was thc submission of counscl that thc viclim's cvidcnce was cogcnt and truth lul.

- 20 25 23.1 In rcsponsc to lailurc ol'indicating the datc of occurrcnce, Counsel submittcd that this does not amount to an inconsistency. Counscl cited Makabugo Christophcr vs. Uganda, CACA No. 348 of 2015, wherc thc actual datc ofallcgcd occurrcncc was not includcd in the indictment, thc court held that cven in thc abscncc of thc spccific datc, thc accused could be convictcd if thcrc was othcr strong evidcnce that thc offence was committed. - 24.1 Counscl citcd Kalyesubula Andrcw and 3 other, vs. Uganda, CACA No. 103 of 20I8 which citcd with approval Candiga Swadick vs. Uganda, CACA No. 23l 2012, on contradictions and inconsistcnces.

25.1 On thc dclcncc of alibi, the rcspondcnt's counscl submittcd that the prosecution placcd the appcllanl at thc sccne of the crime. Counsel subrnitted that PWI and PW2 as parcnts knew thc appellant as the hcad tcacher olthe

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⁵ victim's school in Abudurari prirnary school. PW I saw thc appcllant at school on the opcning day and mct him at Mulanda washing bay whcn thc appellant requcstcd him to marry PW2.

26.1 'l'hat PW2 thc victim propcrly kncw thc appcllant as hcr hcad teachcr and l:nglish tcacher at Abudurari I)rimary school for 2 terms.'l'hc victim narratcd how it was thc appcllant who lcd hcr to the Kiwcmpc and dcfiled hcr on the Iatcful day. 'l'hat was sufficicnt 10 ncgatc thc alibi. Counscl citcd Remigious Kiwanuka vs. Uganda, SCCA No. 4l of 1995 and Alfrcd Bumbo and PRS VS. Uganda SCCA No. 28 of 1994.

### Ground 4

# Submissions frr r thc appcllant

- 27.) Counscl contcndcd that the trial court failcd to takc into consideration the mitigating lactors whcn scnte ncing. 'l'hat thc appcllant was a lamily man with children, he was only 25 years ol imprisonmcnt with a lot olchancc to reform. 'l-hat thc appellant had spent I ycar and l0 months on rcmand and this pcriod was not arithmctically dcducted as requircd by law. Counsel citcd Moses Rwabugande vs. Uganda SCCA No. 25 of 2014 and Articlc 23(8) ol the 1995 Constitution of thc Itepublic o[Uganda. Counscl citcd Kiwalabyc Bernard vs. Uganda, Suprcmc Court Criminal Appcal No. 143 of 200I whcrc it was hcld that Appcllatc Cou( is not to intcrl'crc with thc sentcncc imposed by thc trial court which has cxcrcised its discrction unless thc cxercisc ofthe discrction resulted in a harsh or manilcstly cxcessivc scntcncc or whcrc the scntcncc imposed is so low as to amount to a miscarriagc of justice or whcrc thc sentcncing Judgc procecdcd on a wrong principle. - 28.] Counsel invitcd court to invoke its powcrs in scction I I of thc Judicaturc Act. to grant an appropriatc sentcncc.

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- ⁵ 29.1 Counscl citcd paragraph 6( I ) of thc Constitution (sentencing Guidclincs lor Court ol'Judicaturc (Practicc) (Dircctions), 2013, which requircs court to take into account any circumstances rclcvant for sentencing. Counscl also considcred thc principle ol consistcncy and citcd Kizito Senkula vs. Uganda SCCA No. 24 of 2001, whcrc coutl rcduced thc scntcncc lrorn l5 years to l3 years. In Bikanga Daniel vs. Uganda, CACA No. 38 of 2000 where c<lurt rcduccd thc scntcncc l'rorn 2l ycars to 12 ycars Katcnde Ahamed vs. Uganda, CA No.06 of 2004, where 10-ycar sentcncc was confirmcd. 10 - 30.1 Counscl citcd Aharikundira Yustina vs. Uganda Supreme Court Criminal Appeat No. 27 of 2015, whcrc it was hcld that onc way of confirming whcthcr thc scntencc was manilcstly harsh or excessive is by applying the consistency principlc. 15

### ^Submissions for thc rcsnondcnt

- 3l.l Counscl in rcsponsc argucd that the appcllatc court will only interferc with thc discrction of thc trial coun if it followed wrong principlcs ol'thc law. Counscl citcd Kiwalabyc llcrnard vs. Uganda SCCA No. 143 of 2001. - 32.1 Counscl lurther Citcd Kyalimpa Edward vs, Uganda SCCA No. l0 of 1995, wherc it was hcld that an appropriate scntcnce is a mattcr of discrction for thc scntcncing Judgc. Dach casc prcscnts its own lacts upon which the Judgc cxcrciscs discrction. - 33.] Counsel submittcd that thc ollence ol aggravatcd defilcmcnt attracts maximum scntcncc oldcath under scction 129(4) ofthc penal codc act. That thc trial Judgc took into considcration thc mitigating factors and aggravating factors.

- $\cdot$ 34.] Counsel submitted that the trial Judge complied with the provisions of $\mathsf{S}$ Article 23(8) of 1995 of the Constitution by deducting the one year and $10$ months spent on remand. Counsel cited **Ntare Augustine vs Uganda**, **Criminal Appeal No. 053 of 2011** where the appellant was convicted for aggravated defilement of a victim of 11 years old by the trial court, this court found that the sentence of 25 years was permissible. He also cited **Seruyange** Yuda Tadeo vs. Uganda, Criminal Appeal No. 080 of 2010, where this court found a sentence of 27 years appropriate. - Counsel prayed that this appeal be disallowed and conviction and 35.] sentence upheld.

**Consideration of Court** 15

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36.] We are bound by the legal principles laid down in **Kifamunte Henry** Vs. Uganda, SCCA No 10 OF 1997, citing R V Pandya, 1957 EA 336 with approval, where it was stated that;

The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should *be believed rather than another and that question turns on manner* and demeanour the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and *demeanour, which may show whether a statement is credible or not* which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen.


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- ⁵ 37.1 Our rolc as the first appcllate court is to re-evaluatc thc cvidence on rccord.'I'hc appcllatc court is rcquircd to comb thc lowcr court rccord looking lor the allcgcd lcgal crrors and omissions that are statcd to have caused ^a miscarriage ofjusticc to thc appellant. - 38.] 'l'hc appcllatc court may, dcpcnding on its findings, quash, or uphold thc decision olthc lower coun, comc up with its own decision, addrcss legal issucs olunl'airncss or irrcgularity that arc not contained in thc mcmorandum but are glaring on thc record which rcsultcd into a miscarriagc ofjustice and ordcr lbr a rctrial in thc intercst of .iusticc, bearing in mind that litigation whether civil or criminal must comc to an cnd. - 39.1 It is also tritc that cvcn whcrc thc trial court has crrcd, the Appcllate court can only intcrlerc with thc dccision of thc lowcr court whcrc therc has been a miscarriagc oljustice to any of thc parties in thc procecdings. 1'he appellate court while rc-cvaluating thc cvidcnce has to bear in mind thc prcsumption of innoccnce olan accuscd pcrson and thc burdcn ofproolthat rcsts on thc prosccution. Scc Ll/oolmington Versus The DDP 1936 AC 462. - 40.1 Wc notc as submittcd by counsel lbr thc rcspondcnt that thc first ground ollends rulc 66(2) ol'thc rulcs olthis court, lor failurc to spccily thc actual law or principlc that was offendcd. In thc casc of Muhercza llosco and anothcr, CACA No. 66 of 201 I' thc Court of Appcal hcld: -

"lhe second grountl ofappeol is loo gencral and vtas nol evan argued by counr'al .fbr thc uppellanls. ln any evenl il i.t superfluous as lhis c'ourl has a duly lo re-cvtluale lhe etidence us a.first aPpcllale court. lle v'ould slrike it out as it o/funds Rule 66 (2) o./ the Rulcs ol this ('ourt u'hich requircs thut o memorarulttm o/'appeal sets .firth concisely and wilhottl argument lhe grounds o/'ohjection to the decision uppealed ugainst speci/ically the points


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- of law or mixed fact and law which are alleged to have been wrongly decided" - $41.]$ We accordingly strike ground 1 out. - The major issue to be determined is whether the appellant participated $42.]$ in the sexual act in this matter. In finding the appellant guilty as charged, the learned trial judge observed as follows: -

Who was the responsible culprit? The victim in this case is the best witness of the act of sex and the culprit. she was '13 years old *a teenager in primary seven who stated that her teacher was new in the school had taught her for half - year. The sexual act was by* a person she knew so well and I am satisfied that she was not mistaken when she said it is the accused person. The accused person was a person superior to the victim in age and had responsibility over the girl as her teacher and headmaster. She was venerable by virtue of her age and inferiority in the circumstances she was in. She was impressive and required minimum prompting to describe how the accused secured his *scene of crime. He created a curtain of a mat called "Kiwempe"* this was a lusterous man not fit to be a teacher to take care of vulnerable young girls. I have believed the victims evidence and I have no doubt he that is responsible for the criminal sexual exploitation of a girl aged below 14 years. He committed aggravated defilement. The opinion of the assessors in this case is that the accused has been adequately proved guilty as charged. I do accordingly hereby convict the accused with aggravated defilement $c/s$ 129(3), (4) (o), and (b) of The Penal Code Act.

$43.1$ We are convinced that the trial court properly evaluated the participation of the appellant and came to the right conclusion.

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#### We therefore find that ground 2 and 3 fail. $44.$

- $45.]$ Turning to ground 4, We agree with the submissions of both parties regarding the position of the law on sentencing. It has to be noted that the sentencing guidelines do not take away the power of court to exercise its discretion to pass an appropriate sentence. The Appellate Court will only interfere with a sentence if the trial court has followed the wrong principles while sentencing. - While sentencing the trial Judge noted that; 46.1 "I have also considered plea for lenience made by the convict and his *Advocate. I do allow that the period of I year and 10 months spent on* remand be deducted from the sentence of 20 (twenty) years that I do hereby pass for the convict." - The guiding principle of sentencing was laid down in **Rwabugande** $47.]$ **Moses vs. Uganda** (*Supra*). Court held there in that:

"it is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision, consideration of the remand period should therefore necessarily mean reducing or *subtracting that period from the final sentence the period spirit in* law in lawful custody prior to the trial must be specifically credited to an accused"

This position was restated in Segawa Joseph vs. Ug. Criminal Appeal 48.]

No. 65 of 2016, the Supreme Court on the 6^th October 2021 held that:

"This court is bound to follow its earlier decisions for the purpose of maintaining the principle of stare decisis. This court has the duty to decide which decision is to be followed. Our appreciation of Article $23(8)$ of the constitution is that the consideration by court of the period spent on remand by a convict is mandatory. A sentencing judge is


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under a duty to consider the exact period spent on remand in upholding the provisions of the Supreme law of the land. for avoidance of imposing ambiguous sentences, we hold that the period spent on remand must be arithmetically deduced. This renders justice to a convict. We therefore find that the **Rwabugande case** is the correct position of the law in matters where the Appellant challenged the legality of sentence in relation to whether or not court rightly considered the provisions of Article 23(8) of the constitution."

- $49.]$ According to the record the learned trial Judge took into consideration the period of 1 year and 10 months spent on remand but he did not arithmetically deduct the said period from the sentence of 20 years imprisonment. For the purpose of hearing and determining an appeal this Court has the power to exercise the original jurisdiction under section 11 of the Judicature Act. We therefore sentence the appellant to 20 years imprisonment, and we deduct 1 year and 10 months spent on remand. The appellant will therefore serve 18 years and 2 months' imprisonment from the 27^th October 2020. - Consequently, the appeal fails. $50.$

#### We so Order

Dated at Kampala this ....................................

**RICHARD BUTEERA DEPUTY CHIEF JUSTICE**

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## **CHRISTOPHER GASHIRABAKE**

# **JUSTICE OF APPEAL**

OSCAR KIHIKA **JUSTICE OF APPEAL**

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