[2019] UGSC 82

#### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# CRIMINAL APPEAL NO. 41 OF 2016

#### (ARISING FROM CRIMINAL APPEAL NO. 066 OF 2011)

Coram: Katureebe CJ, Opio Aweri, Mwondha, Mugamba, Buteera JJSC

#### 1. KATUREEBE BOAZ

2. MUHEREZA BOSCO...................................

#### **VERSUS**

UGANDA...................................

(Appeal against the judgment of the Court of Appeal at Kampala delivered on the 6^th December 2016 by Kakuru, Byabakama Mugenyi and Owiny Dollo JJA)

## **JUDGMENT OF THE COURT**

This is a second appeal arising from the Judgment of the Court of Appeal. The $1^{st}$ appellant appealed only against sentence while the $2^{nd}$ appellant appealed against both conviction and sentence and filed a supplementary memorandum of appeal which contained ground 3, thus making the memorandum of appeal have 3 grounds.

The appeal had the following grounds:

- 1. That the learned Justices of the Court of Appeal erred in law, while reducing the death sentence failed to direct their mind to provisions of Article 23(8) of the Constitution of the Republic of Uganda to consider Republic of Uganda to consider the period of 3 ½ years which the appellants had been on remand, as a mitigating factor. - 2. That the learned Justices of the Court of Appeal erred in law when they directed that the reduced sentences of the 35 & 30 years for the $1^st$ and $2^nd$ appellant respectively were to commence from the date of conviction, 20^th February 2011, instead of the date they were remanded to prison. - 3. That the leaned Justices of the Court of Appeal erred in law when they confirmed the trial Judge's application of the doctrine of common intention on the part of the 2^nd appellant, making him equally liable for the murder in issue, which occasioned miscarriage of justice.

# **Background**

The appellants were indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence were that on the 3^rd day of November 2007 at Ngombe village in Ntungamo District, they murdered Tirondwa Sebastian. At the trial court, the prosecution presented testimonies of seven witnesses to prove the offence and the trial Judge summarised it as follows:

The two appellants are brothers. The 1^st appellant was a herdsman at the home of one Buteera at Ngombe village. The 2^nd appellant was a cultivator and resided at his home at Kayange cell. Both villages are in Ntungamo District.

The deceased, Sebastian Tibarondwa was a cattle trader. He lived at Ngombe village Ntungamo District. On 3/11/2007, he went to his brother, Mbuuze Deo (PW4) from whom he borrowed shs. 150,000/= (Uganda shillings one hundred fifty thousand only) for buying cows from the home of Buteera. He was with the 2^nd appellant when he borrowed the money. From the home of his brother, he proceeded to the home of Buteera where he negotiated the price of the cows. They failed to agree on the price and he left the home of Buteera with the sons of Buteera namely Mutega Edward and Tugume Alex and the 2^nd appellant. He was not seen again and his relatives' efforts to trace him did not yield any fruits until his body was discovered in the forest of one Tindyebwa.

After the discovery of the body, the sons of Buteera were lynched by an angry mob. The 2^nd appellant who had escaped from the village was traced up in Mubende where he was arrested and taken back. On the way from Mubende, he tried to escape from his captors but he was chased and rearrested. He was taken to Mbarara Police station from where he was transferred to Ntungamo and later to Mbarara and he was then charged with murder of the deceased together with the 1^st appellant.

In a charge and caution statement recorded by D/ASP Turyasingura Micheal, the 2^nd appellant admitted having called the deceased from his home to go and purchase cows at Buteera's. He stated that after the deceased had failed to purchase the cows, they left Buteera's home together with the two sons of Buteera and his brother Boaz. They escorted the deceased up to a small valley where the elder son of Buteera raised a panga and cut the deceased on the neck. The 2^nd appellant ran away. He first went to his home and then to Nabuyando to see his wife who had delivered. On his return home he proceeded to Mbarara then to Mubende from where he was arrested and returned to Ntungamo. He denied having killed the deceased. He stated that the deceased had been killed by the sons of Buteera

The same witness recorded charge and caution statement from the 1^st appellant who stated that on $03/11/2011$ , he was grazing cows when he was approached by the sons of Buteera, his brother Bosco Muhereza and another man. His brother told him that he should sell his cow and buy a banana plantation. He refused. The sons of Buteera offered to sell the other man a cow but could not agree on the price. They then left. They took the direction of the valley. He was following, then, slowly the man, who had been bargaining to purchase a cow, was cut with a panga on the arm by Tugume who later put the panga down and threw the man down. The 1st appellant feared and ran away. He did not tell the wife of Buteera whom he found at home. Later, he took the cows for watering. After returning the cows home, the sons of Buteera came home. They told him they had been watching a football match. The following day, he went to his home area. He met Muhereza at a trading centre. He returned at Buteera's home and the following day, he was asked to lead some people to his home and show them his brother. His brother was not at home. They were informed that he had gone to Mubende. On returning to Buteera's home, he found that the son of Buteera had been killed by an angry mob. He was later arrested in connection with the murder of the deceased.

The appellants were convicted of murder and sentenced to suffer death. Being dissatisfied with the Judgment of the High Court, the appellants appealed to the Court of Appeal. The Court of Appeal upheld the conviction but varied the sentence from the death penalty to 35 years imprisonment for $\frac{1}{2}$ the 2^nd appellant and to 30 years imprisonment for the 1^st appellant. Hence, this appeal.

## **Representation:**

Mr. Seguya Samuel represented the appellants on state brief and Mr. Oola Sam, Senior Assistant Director of Public Prosecutions, represented the respondent

## Appellant's submissions

## Grounds 1 & 2:

The appellants' counsel argued grounds 1 & 2 together. He contended that the Court of Appeal rightly found that the death sentence that had been imposed on each of the appellants was harsh and manifestly excessive, and it was the reason their lordships reduced the same to 30 years and 35 years imprisonment in respect of the $1^{st}$ and $2^{nd}$ appellants respectively.

However, counsel averred that in the process of reducing the sentence, the learned Justices of the Court of Appeal were legally obliged to consider all the aggravating and mitigating factors because they were going to hand down a sentence for a specified period of time and that they sat in the capacity of a sentencing court by virtue of section 11 of the Judicature Act. In this vein, counsel submitted that while sentencing, the learned Justices of Appeal did not consider the period spent on remand by the appellants as required by Article 23(8) of the Constitution and that this rendered the sentences meted out illegal.

#### Ground 3:

On this ground which was solely for the $2^{nd}$ appellant, counsel submitted that in applying the doctrine of common intention, the trial Judge and the learned Justices of the Court of Appeal hinged much on the default of the appellant to report the felony as collaborative of his extra-judicial statement and yet these were not two separate pieces of evidence.

Counsel argued that the $2^{nd}$ appellant's extra judicial statement was silent about his participation in the murder as to infer common intention on his part. He contended that the appellant was a mere reporter of what he saw others doing, without implicating himself.

Counsel was emphatic that the 2^nd appellant was an innocent bystander whose failure to report the murder was taken as an implicating factor, yet it was capable of other hypothesis, than that of guilt. Counsel submitted that the invocation of the doctrine of common intention was in error, and that it was misapplied. He added that there was no evidence that the $2^nd$ appellant had common intention with the offenders in the perpetration of the offence

$\psi$

He concluded by praying that the conviction of the 2nd appellant be quashed and that he be acquitted forthwith.

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

## Grounds 1&2:

The respondent's counsel conceded that in arriving at the sentences of 30 years and 35 years imprisonment, the Court of Appeal did not take into account the period spent on remand by the appellants.

Counsel agreed with the appellants that in terms of the provisions of Article 23(8) of the Constitution, having decided to sentence each of the appellants to a term of imprisonment, the Court of Appeal was obliged to take into account the period the appellants had spent in lawful custody in respect of the offence before completion of their trial. Counsel relied on the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014.

Counsel concluded by inviting this court to invoke its powers under section 7 of the Judicature Act to arrive at an appropriate sentence. He prayed that the appellant be sentenced to $26\frac{1}{2}$ years imprisonment

## Ground 3:

On ground 3, counsel submitted that the Court of Appeal did the right thing and invited this court to look at pages27-33 of the record (and judgment from pages6-12). Counsel submitted that the 2^nd appellant was present all through and there was evidence of PW4 at page 29 of the record who last saw the deceased with the 2^nd appellant. Counsel stated that the 1^st appellant was a brother of the 2^nd appellant and that he was with the deceased all through.

Counsel concluded by inviting this court to uphold the Court of Appeal finding that the $2^nd$ appellant had common intention, adding that even his conduct after commission of the offence was inconsistent with that of an innocent person.

## Appellant's submission in rejoinder

In rejoinder, the appellant's counsel submitted that the 2^nd appellant's conviction was based on common intention and yet there was no active role other than that of being a bystander. Counsel re-iterated his earlier submissions that the doctrine was wrongly applied.

$\ell$

## **Consideration of the Court**

This is a second appeal and this court is cognizant of its duty as a second court of appeal which is to decide whether the first appellate court failed in its duty to re-evaluate the evidence presented before the trial court and to reach its own conclusion. In Kifamunte Henry Vs Uganda, Criminal Appeal No. 07 of 1997, this court held as follows:

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...

On second appeal it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles: See P. R. Pandya vs. R. (1957) E. A. (supra) Kairu vs. Uganda (1978) FI. C. B. 123 (emphasis added)

It follows therefore that this court will only interfere with the conclusions of the Court of Appeal if it appears that in consideration of the appeal as a first appellate court, the Court of Appeal failed to re-evaluate the evidence as a whole.

The $1^{st}$ and $2^{nd}$ grounds of appeal are against sentence while the $3^{rd}$ ground is against conviction. We shall deal with ground 3 first before proceeding with grounds 1 & 2 which shall be handled together.

#### Ground 3

This ground is to the effect that the learned Justices of the Court of Appeal erred in law when they confirmed the trial Judge's application of the doctrine of common intention on the part of the 2^nd appellant, making him equally liable for the murder in issue, which occasioned a miscarriage of justice.

The doctrine of common intention is provided for under section 20 of the Penal Code Act, Cap 120. It provides as follows:

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence.

In the case of R Vs Tabulayenka s/o Kirya & others (1943)10 EACA 51, it was held as follows:

A common intention to be formed does not necessarily require the entering into an agreement before the incident. Common intention may be inferred from the presence, the actions and omissions of any of them to disassociate himself from the acts of the others.

The evidence against the 2^nd appellant came from PW4 and PW5 and can be summarised as follows:

1. The deceased went with the 2^nd appellant to his brother (PW4) to borrow money for the purchase of cows and in his presence; the deceased was given the money.

$\frac{1}{2}$

- 2. The $1^{st}$ appellant is a brother to the $2^{nd}$ appellant who worked as a herdsman at Buteera's home, and Buteera's sons were alleged to be the principal offenders in this case. - 3. After the death of the deceased, the $2^nd$ appellant ran away from the scene of crime and village. - 4. The $2^{nd}$ appellant was arrested in Mubende and he tried to escape arrest by running away while making an alarm that thieves were going to kill him. - 5. Boda boda riders re-arrested him and handed him over to the Police.

The above evidence was not controverted by the defence

In his charge and caution statement which was also admitted in evidence after a trial within a trial, the $2^{nd}$ appellant stated as follows:

He called the deceased from his home to go and purchase cows at Buteera's home.

That the deceased had failed to purchase cows and they left Buteera's home with the two sons of Buteera and the $1^{st}$ appellant.

They escorted the deceased up to a small valley where the elder son of Buteera raised a panga and cut the deceased on the neck.

That he ran away and proceeded to Mubende where he was arrested.

The above contents of the charge and caution statement were re-iterated in his evidence before the court save for the fact that in his evidence, he added that he was sent by Buteera's sons to go and call the deceased and he was given directions to his home.

The question now to be determined is whether the above evidence attracts the doctrine of common intention for the murder of the deceased on the part of the $2^{nd}$ appellant.

In the High Court, the trial Judge observed as follows:

In view of the above provision, it is immaterial that the actual assault on the deceased was by the two sons of Buteera. The two accused persons were acting in concert with the sons of Buteera because they were together throughout the transaction and the accused did not dissociate themselves from the assault that resulted in the death of the deceased.

While upholding the above decision of the High Court, the Court of Appeal observed as follows:

$\mathcal{L}$

We agree with the learned trial Judge's finding that both appellants with others formed a common intention to murder the deceased. The motive appears clearly to have been to rob him of his money upon luring him into a trap, which they did. The conduct of the 1^st appellant (now 2^nd appellant) before and after the murder was inconsistent with his innocence so was that of the $2^{nd}$ appellant.

The Court of Appeal in imputing common intention on the appellants made a finding of fact, based on the circumstantial evidence that the motive was to commit robbery against the deceased and in pursuit of that purpose, murder was committed.

Going by the above actions and omissions of the $2^{nd}$ appellant and failure to dissociate himself from the acts of the others, we are unable to fault the finding of the Court of Appeal.

Ground 3 accordingly fails.

#### Grounds 1 & $2$

Grounds 1& 2 related to the legality of the sentences meted out against the appellants by the Court of Appeal. The respondent's counsel conceded that the sentences were illegal for not taking into account the remand period as required by Article 23 (8) of the Constitution.

Both counsel invited this court to invoke its powers under section 7 of the Judicature Act and arrive at appropriate sentences. Section 7 of the Judicature Act provides as follows:

4R

## 7. Supreme Court to have powers of the court of original jurisdiction.

For the purposes of hearing and determining an appeal, the Supreme Court shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

In their allocutus, the appellants pleaded that they were first offenders, that they had been on remand for close to 3½ years, that they were youthful and energetic members of society, siblings and that they were dearly missed by their families.

The state prayed for the maximum sentence to deter other people since murder is a very serious offence that prematurely takes away another person's life.

Consistency in sentencing is neither a mitigating nor an aggravating factor in our view to render a sentence passed illegal. After considering the mitigating and aggravating factors, the sentence imposed lies in the discretion of the court which in exercise thereof, may consider sentences imposed in other cases of a similar nature.

We come to the conclusion that in the circumstance of this case, a sentence of 30 years imprisonment for each of the appellants would be appropriate. Be that as it may, in accordance with Article 23 (8) of the Constitution, we deduct the $3\frac{1}{2}$ years the appellants spent on remand. Consequently, the appellants shall each serve a sentence of 26½ years from the time of conviction.

In view of the above, this appeal partially succeeds. The conviction of the $2^nd$ appellant is upheld. The sentences passed by the Court of Appeal are set aside and substituted with a sentence of 26½ years imprisonment for each of the appellants. For avoidance of doubt, the appellants are to serve the sentences of $26\frac{1}{2}$ years from the date of conviction.

Dated at Kampala this. 27th day of Dovember 2019

KATUREEBE, CJ

**OPIO AWERI** Justice of the Supreme Court

**MWONDHA** Justice of the Supreme Court

.......................................

**MUGAMBA** Justice of the Supreme Court

**BUTEERA** Justice of the Supreme Court