[2023] UGCA 273

## THE REPUBLIC OF UGANDA

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

[*Coram: Egonda-Ntende, Bamugemereire and Mugenyi, JJA*]

#### Criminal Appeal No. 486 of 2017

(Arising from HCT-I2-CR-CS-0140 of 2012 at Hoima)

#### **BETWEEN**

Katusabe Bosco $=$ Appellant

#### AND

Uganda= Respondent

(*On appeal from the High Court of Uganda at Hoima (Rugadya, J.) delivered on* $29^{th}$ June 2017)

### JUDGMENT OF THE COURT

#### **Introduction**

- The appellant was convicted of the offence of murder contrary to sections $\lceil 1 \rceil$ 188 and 189 of the Penal Code Act. The particulars of the offence were that on the 25^th December 2011 at Nyamigogo village in Hoima district the appellant murdered one Nuwagaba Remejio. He was sentenced to 35 years' imprisonment. - The appellant now appeals against conviction and in the alternative against $[2]$ the sentence imposed on him. He set forth the following grounds of appeal.

1. The trial Judge erred in law and fact when he dismissed the appellant's defence of alibi thereby causing a miscarriage of justice.

2. The trial judge erred in Law and fact when he held that the light conditions must have been such as enabled proper identification of the appellant at the scene of crime thereby causing a miscarriage of Justice.

3. In alternative but without prejudice to the above, the trial Judge erred in law and fact when he sentenced the appellant to

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mun.

40 years and 6 months of imprisonment which sentence was manifestly harsh and excessive.'

t3] The respondent opposes the appeal against both conviction and sentence.

# Brief Facts of the case

- I4l The brief facts of this case are on the 25'h December 2011 the deceased invited PWl, Kwizera Mustafa, to his home for dinner. This was probably at about 9.00pm. They were strolling together at about l.00am towards the home of the deceased when they were suddenly attacked by someone who had a knife. He hit out at the deceased and he fell down crying and bleeding profusely. The assailant tumed on PWI and attacked him too with the knife. PW1 also became unconscious, coming around only 4 days later in hospital. PWI testified that he recognised the assailant as the appellant who he had known previously. - t5l The deceased and PWI made an alarm before PWI passed out. PW3, Tukamwesimira Naboth, was told in the night by the widow of the deceased that her husband had been attacked. He went to the scene. He found the deceased already dead. PWI was still alive and he took him to a clinic in the trading centre where he stayed until morning. On retuming home the following day he found that the appellant had already been arrested. - t61 The appellant was arrested on the moming of 26'h December 201 I and taken to a nearby police post. He was subsequently charged with the murder of the deceased in this case. - I7l The appellant denied participating in the crime and he stated that he had come to Nyamigogo village on 23'd December 201 I to visit his brother where he was the whole of 25th December 201 I and from where he was arrested on 26rh December 201 L He denied being a resident of the village as he was only visiting. - t8l The learned trial judge believed the testimony of PW l, the single identiffing witness and found it was corroborated by the lies in the appellant's own testimony on oath in his defence. The leamed trial judge found that the

appellant lied in his testimony when he stated that he was not resident of the village.

tel The appellant was convicted and sentenced to serve a term of 35 years' imprisonment.

## Submissions of Counsel

- [0] At the hearing of this appeal the appellant was represented by Mr Richard Rwakatooke Mugisa and Ms Harriet Adubango, State Attomey held brief for Ms Sharifah Nalwanga, Chief State Attomey in the Office of the Director of Public Prosecutions for the respondent. Both counsel filed written submissions in this matter upon which this appeal proceeded. - I I ] Mr Mugisa submitted on ground I that the leamed trial judge made an error in dismissing the appellant's alibi when he concluded that as the appellant was at his brother's place on the night the offence was committed he must have known about the murder ofdeceased as it was inconceivable that any resident would not have known about. He submitted that the incident occurred at 1.00am and the appellant was arrested on 26th December at about 8.00am. It was possible for one not to have heard of the murder in the moming of the 26'h December 201 l. 25th December 201 I was Christmas day and it would not be surprising for one to wake up late on 26th December 201 I not knowing what had gone on late in the night, especially if you were not close to the scene of crime or a relative of the affected family. - |2) He submitted that the evidence of DWl, on oath, was not at all shaken in cross examination and ought to have been believed by the leamed trial judge. The prosecution evidence was shaky and contradictory and it did not rebut the appellant's alibi. The prosecution made no attempt to investigate the appellant's alibi as they ought to have done as was held in Androa Asenua and Anor v Uganda [l998-] SC 23 and Lt. Jones Ainomugisha v U andaSCCriminal A al No. l9 of2015 (unreported). This is what would have established whether the alibi of the appellant was genuine or not. - [ 3] In relation to ground 2 Mr Mugisa submitted that the judge erred when he held that the appellant was properly identified at the scene of crime when

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there is no evidence to support such identification and the conditions obtaining at the time were not f'avourable to correct identification. PWI the only identifying witness stated in his evidence that there was moonlight at the time of the attack which enabled him to identify the assailant which was inconsistent with his statement to the police soon after the incident when he stated that it was very dark that night. This coupled with the fact that PWI was rendered unconscious shortly after the attack rendered the conditions for correct identifi cation unfavourable.

- [4] He prayed that the appeal against conviction be allowed. - [ 5] Ms Sharifah Nalwanga submitted on both grounds I and 2 jointly. She submitted that the leamed trial judge was aware of the pitfalls of relying on the testimony of a single identiling witness and had wamed himself of the dangers of doing so in accordance with Bogere Moses and Anor v Uganda l-1998lUGSC 22; 5. and Abdala Nabulerere and Anor v Usanda tl978l UGSC - [6] Ms Nalwanga referred us to Mwesiswa and 3 others v Usanda Criminal Aooeal No. 164 of2014 (unreported) where this court held that contradictions with regard to time an incident lasted were minor and do not point to deliberate untruthfulness. She submitted that the appellant was properly identified and the alibi destroyed. She further submitted that the leamed trial was right to find that the light conditions were favourable to correct identifi cation. - ll7) Ms Nalwanga supported the conviction of the appellant.

## Duty of a First Appellate Court

[8] It is our duty as a first appellate court to evaluate the evidence and the law in the court below afresh and arrive at our conclusions of fact and the law, taking into account the fact that we did not have the opportunity to see and hear the witnesses testifu. See rule 30 of the Judicature (Court ofAppeal Rules Directions st 113-10 Bosere Moses v Ueanda ll998l UGSC 22 and Kafamute Henry v Uganda tl998l UGSC 20

#### Analysis

[19] This is a case that entirely relies on a single identifoing witness. The leading authority on how to handle evidence of this nature is Abudala Nabulerere v Uganda, ttl978l UGSC 5. Writing for the court, Ssekandi, JA, stated in part,

> 'A conviction based solely on visual identification evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages ofjustice. There is always the possibility that a wilness though honest may be mistaken. For this reason, the couns have over the years evolved rules of practice to minimise the danger that innocent people may be wrongly convicted. The leading case in East Africa is the decision of the former Court of Appeal in Abdalla Bin Wendo and Another v. R. ( 1953), 20 EACA 166 cited with approval in Roria v. R. (1967) EA 583. The paragraph which has often been quoted from Wendo (supra) is at page 168. The ratio decidendi discernible from that case is that:-

(a) The testimony ofa single witness regarding identification must be tested with the greatest care.

(b) The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult.

(c) Where the conditions were difficult, what is needed before convicting is 'other evidence' pointing to guilt.

(d) Otherwise. subject to certain well known exceptions, it is lawful to convicl on the identification of a single witness so long as thejudge adverts to the danger ofbasing a conviction on such evidence alone.

The safeguards laid down ........ are in our view adequate, if properly applied, to reduce the possibility of a miscarriage of justice occurring.

What is important is the quality of the identification. If the quality of the identification is not good, a number of witnesses will not cure the danger of mistaken identity, hence the requirement to look for 'other evidence'.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should wam himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the

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identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came be made. particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.'

- $[20]$ The learned trial judge did warn himself in the terms set out above but it is the conclusions he made thereafter that are contested on appeal. - $\lceil 21 \rceil$ It is important to observe that the only identifying witness, PW1, was found unconscious at the scene of crime. He was taken to hospital and in his testimony did not come around until about 4 days later when he inquired about his friend, Nuwagaba and he was told he had died. PW1 was not in a position to tell anyone about the incident until 4 days later from the time it took place. However, the appellant was arrested approximately 8 hours after the incident on the 26^th December 20211. It was at about 8.00am. The person or persons that arrested him did not testify. The receiving officer at the Police Post where he was initially taken did not testify. It is only the PW4 of Hoima Police Station who rearrested him after several days who testified. - $[22]$ Since the only identifying witness was unconscious and in hospital how was the appellant identified as the perpetrator of the crime? This question remains unanswered given the evidence on record. - Once PW1 regained consciousness 4 days later and he asked about $[23]$ Nuwagaba he was told he had died. Is it inconceivable that he was also told that the appellant was in custody for the crime in question? Not at all. Most likely he was told that the appellant was in custody for this crime while in hospital before he went to the police to make a statement. - During the course of his testimony in cross examination PW1 was asked $[24]$ about the light conditions. He stated that there was moonlight and that is why he was able to recognise the appellant, who he had known previously. The statement that he had made to police was put to him in which had

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described the condition that night as 'total darkness'. Was this a minor or major inconsistency?

- [25] In our view whether there was sufficient light, or any light, was key to the question of identification since it was by sight and not voice. Where a witness's evidence is found to be inconsistent with an earlier statement on a matter that is crucial to the identification of the perpetrator it cannot be regarded as minor. It is major and such evidence becomes unreliable and unworthy of belief. Even if it is treated as minor it would appear to point to deliberate untruthfulness which again renders it unworthy of belief. - [26] This point was discussed in Pte Wepukhulu Nyu uti v Ueanda [2002] UGSC l4 by the Supreme Court which stated in part,

'We shall discuss the issue of inconsistencies first. This same issue was raised before the Court ofAppeal which held that the inconsistencies were minor. It is trite law that minor inconsistencies, unless they point to deliberate untruthfulness on the part of prosecution witnesses, should be ignored and that major ones which go to the root ofthe case, should be resolved in favour of the accused (@\l@!\_Taigg -V- Usanda Cr. Appeal No. 167 of 1969 EACA) (unreported)

- l27l In light of the foregoing we would find, whether the inconsistency of the testimony of the appellant is regarded as major or minor it was upon a very crucial aspect of the case, the means that led to the identification of the appellant. The inconsistency was clearly intended to explain how the witness was able to identifi the appellant. It went to the root of this case. It cannot be anyhing other than deliberate untruthfulness. - [28] We are unable to accept the leamed trial judge's conclusion that the light conditions were favourable as the identiffing witness had made a previous statement to the police a few days after the incident where he stated the conditions were 'total darkness'. The testimony of this witness was unreliable and unworthy of belief on the crucial element of identification of the assailant that attacked him and the deceased. - 129\ The appellant provided an alibi. He testified on oath. He agreed that he had come to this village on 23'd December 201 | to visit his brother and had spent

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Christmas with his brother. He was arrested from his brother's home on the moming of 26'h December 201 l. The duty to demolish the alibi rests on the prosecution and not on the appellant. This alibi was not investigated and no evidence adduced to destroy it. He was arrested before the only identifying witness recovered consciousness to be able to tell who had attacked them.

- [30] The prosecution evidence has not explained who provided the information that led to the arrest of the appellant as a suspect in this case. The only witness was unconscious. The arresting person or persons did not testift. - [3 ^I] In our view the prosecution failed to destroy the alibi of the appellant. - [32] We would allow grounds 1 and 2 of the appeal. It is unnecessary to consider ground 3 in regard to sentence as it was in the altemative.

### Decision

[33] We hereby quash the conviction of the appellant, and acquit him. We set aside the sentence that was imposed upon him and order the immediate release of the appellant unless he is held on some other lawful ground.

Signed, dated and delivered at Fort Portal this fdiy of oqp,{\*-u 2OZ3

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Catherine Bam gemerelre Justice of Appeal

Justice of Appeal

Monica Mugenyi Justice of Appeal