[2023] UGCA 216

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

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

# CRIMINAL APPEAL NO. 379 OF 2019

(Arising from Criminal Session No. HCT-00-CR-CS-168/2017)

# **BETWEEN**

# MALE ABUBAKALI...................................

# AND

# UGANDA...................................

(Appeal from the Judgment of the High Court of Uganda Holden at Mpigi, by Henry Kawesa J. delivered on 25^th September, 2019) 15

### **JUDGMENT OF COURT**

# **Brief facts**

1.] The brief facts as can be ascertained from the court record are;

- 2.] The appellant was indicted for Aggravated Defilement c/s $129(3)(4)(a)$ and (c) of the Penal Code Act Cap 120. - 3.] The victim, PW1, N. B, aged 12 years is a daughter to PW2 Nabukulu Nulu. On the $20^th$ day of April 2017, the victim went to her grandmother's place where the appellant was a tenant. The appellant took the victim to his house and sexually assaulted her. The victim returned to her mother's place when she was in pain and blood was oozing from her private parts. She reported the incident to PW2, who reported the matter to the LC1 chairperson and subsequently to Katabo Police Station leading to the arrest of the appellant. The appellant denied committing the offence and set up an alibi. The court convicted the appellant, and sentenced him to 22 years of imprisonment.

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- 4.] The appellant being aggrieved with the decision of the High Court lodged an $\mathsf{S}$ appeal in this court. The appeal is premised on two grounds set out in the Memorandum of Appeal as follows; - 1. That the learned trial Judge erred in law and fact when he failed to adequately evaluate, appraise uncorroborated created circumstantial prosecution evidence alongside appellant's defence evidence occasioning a miscarriage of justice there wrongly *convicted appellant of aggravated defilement.* - 2. The learned Judge erred in law and fact when she imposed upon the appellant harsh and excessive custodial imprisonment of 22 *years without deducting the remand period.*

# **Representation**

5.] At the hearing of the appeal, the appellant was represented by Mr. Seth Rukundo on State brief. The respondent was represented by Ms. Fatinah Nakafero, Chief State Attorney, and Patrick Ojala, State Attorney.

#### Ground one 20

# Submissions for the appellant

- 6.] It was submitted that the trial Judge failed to adequately evaluate, appraise uncorroborated prosecution evidence and this occasioned a miscarriage of justice. Counsel submitted that there is no charge and caution statement on record. That the appellant was a stranger to PW1 Namutebi Betty. Counsel further submitted that the identification parade was not conducted immediately. - 7. Additionally, counsel submitted that the prosecution medical evidence, Police form PF 3A, shows that the victim was a young girl in pain with blood on her knicker, but it did not prove that it was the appellant that performed a

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sexual act on her. In his view, the blood ought to have been subjected to scientific test to show whether it was for the appellant or the victim.

- 8.] In the opinion of counsel for the appellant, the trial Judge misdirected himself in disregarding the appellant's alibi. Counsel cited **Bogere Moses vs. Uganda SCCA No.1 of 1997,** where court held that it is incumbent upon court to evaluate both versions judiciously, give reasons why one and not the other version is accepted. - 9.] The other contention raised by counsel for the appellant is that the evidence of the victim ought to have been corroborated. That failure to do this led to a miscarriage of justice.

### **Submissions for the respondent** 15

Counsel for the respondent raised a preliminary objection on a point of $10.1$ law, regarding the framing of ground one. He submitted that it offended Rule 66(2) of the Judicature (Court of Appeal Rules) Directions SI 13-10, which is to the effect that,

"The Memorandum of appeal shall set forth concisely, and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of the first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal the points of law or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided."

It was submitted for the respondent that this rule requires the ground to $11.$ be specific on the point of law or facts or mixed law and facts which was wrongly decided. It was argued that ground one has entangled circumstantial evidence, evaluation of evidence of the prosecution in isolation of the

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- defence, and relying on the uncorroborated evidence of the prosecution witnesses. The respondent's counsel submitted that each area of contention ought to have been distinctly set up on separate and consecutive grounds. In conclusion he argued that this ground should be found to be very ambiguous and vague and be struck off the record, for offending the law. - 10

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$12.1$ On the merits of ground 1 of the appeal, counsel submitted that the trial Judge relied on direct other than circumstantial evidence. That PW1's evidence was corroborated by that of PW2. Counsel further submitted that on the ingredients of performance of a sexual act on the victim, this was ably corroborated by the medical report of Dr. Katende Paul which was admitted in evidence as PEXHI.

- $13.1$ In response to whether there was proper identification, counsel for the respondent stated that considering the standard laid down in the case of Abudala Nabulere and others vs. Uganda, Criminal Appeal No. 10 1997, which guides court to consider the condition of light enabling proper identification, proximity of accused to the witness at the scene and familiarity of the accused with the identifying witness, the trial court properly evaluated the evidence on record. The appellant was well known to the witness. - Counsel further submitted that in the case of **Bukenya Joseph vs.** $[14.]$ **Uganda, SCCA No. 17 of 2017**, it was held that a report by the victim of defilement immediately to another person called as a witness is sufficient corroboration of her testimony. He further added that under section 133 of the Evidence Act no number of witnesses are required to prove a fact. - In conclusion, counsel submitted that the trial Judge rightly, $15.1$ exhaustively evaluated and appraised the evidence of both the prosecution and the defence and prayed that this ground should fail.


# s Considcration of Court

- 16.] 'l'his is a first appcal. Wc shall bcgin by rcitcrating ccrtain applicable principlcs. - 17.l Wc arc mindf ul that as a lirst appcllatc court, our powers arc spclt out in Rulc 30(l)(a) of thc Judicaturc (Court of Appcal Rules) Dircctions S. I l3-10.'l'hc appcllatc court is mandatcd to rc-evaluatc thc cvidencc bclorc thc trial court as well as thc judgment and arrivc at its own indcpcndcnt judgment on whcthcr or not to allow thc appeal. A first appcllatc courl is cmpowcred to subjcct thc wholc ol the evidcncc to a lrcsh and cxhaustivc scrutiny and makc conclusions, bcaring in mind that it did not havc thc opportunity ol sccing and hearing the witnesscs tcstify. 'I'his duty was statcd in Sellc & anothcr v Associated Motor Boat Co. Ltd.& othcrs, (1968) E. A 123. - l8.l A first appcllatc court has jurisdiction 10 rcvcrsc or alfirm thc findings of thc trial court. A first appcal is a valuablc right of thc partics and unlcss rcstrictcd by law, the whole casc is thcrcin open lor rehcaring both on qucstions of fact and law. 'l'hc judgmcnt ol' thc appcllatc court, must, thcrcfore, rcflcct its conscious application ol- mind and rccord findings supported by rcasons, on all thc issucs arising along with thc contcntions put lorth by thc partics. - ^I9.] Considcring thc burden of prooland standard ol'prool in Criminal cascs and bascd on thc prcsumption oI innoccncc cnunciatcd in Articlc 28(3) of thc Constitution of thc Rcpublic olUganda 1995, an accuscd person can only bc convictcd by a court ollaw on thc strcngth olthc prosccution casc and not on thc wcakncss of thc delcnse casc.

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- We have perused the grounds of appeal, and agree that the appellant $20.1$ has raised different aspects of contention in the same ground, but in the interest of justice we shall consider the appeal on its merits. - $21.]$ We have carefully studied the court record and the submissions of both counsel. We shall now proceed to re-evaluate the evidence on record. It is not contested that the victim was subjected to unlawful sexual intercourse. What is contested is the participation of the appellant. The first ground has three aspects to be considered, firstly corroboration, secondly proper identification and lastly evaluation of the evidence on record. Counsel submitted that the trial judge erred when he convicted the appellant on uncorroborated evidence. - Corroboration evidence is defined in Osborne's Concise Law $22.1$ Dictionary $5^{th}$ Edition, page 90 as,

"independent evidence which implicates a person accused of a crime by connecting him with it; evidence which confirms in some material particular not only that the crime has been committed but also that the accused committed it."

$23.1$ The law on corroboration in sexual offences was well settled by the Court of Appeal for East Africa in the case of **Chila and anor** vs **Republic**, **Criminal Appeal No. 80 of 1967** in the following terms;

"The judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having *done so he may convict in the absence of corroboration if he is satisfied* that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is *satisfied that there has been no failure of justice.*"

The Supreme Court in Livingstone Sewanyana vs. Uganda; Criminal $24.$ Appeal No. 19 of 2006, held that corroboration of the victim's evidence in

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sexual offences is not dependent on the quantity but the quality of evidence. it stated thus;

"We accept the submissions of the learned Senior Principal State Attorney that the reports which PWI made to her teacher Ireta Mary Rose, PW3, and Fred Watente, PW4, corroborated her evidence that the appellant routinely had sexually abused her That not-withstanding we are of the considered view that even if such corroboration was not *there, as the Court of Appeal held, it is the quality and not the quantity* of evidence that matters and the learned trial judge was aware of that. The learned trial judge found that PWI was a truthful witness and believed her..."

It is clear from the above authorities that a conviction can be entered in $25.1$ sexual offences even if there is no corroboration so long as the court has cautioned the assessors and itself, of the danger of convicting without corroboration. Though according to the case of **Bukenya Joseph vs. Uganda, SCCA No. 17 of 2017**, a report by the victim to another person of her defilement who is called as witness is sufficient corroboration. In the circumstances, the evidence of PW1 was corroborated by the evidence of PW 2, the mother of the victim, who saw blood oozing between her legs. When she asked her, she said Male had defiled her. We find that this issue was properly evaluated by the lower court.

On the issue of a single identifying witness, we are guided by the $26.$ authority referred to by counsel for the respondent; Abdullah Nabulere and 2 others(Supra) which cited the leading authority in East Africa, Abudala Bin Wendo and another vs. R (1953), 20 EACA 166. In the former, Court set down the following rules of practice in order to minimize the danger of convicting innocent people;

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- 1. The testimony of a single witness regarding identification must be tested with the greatest care. - 2. The need for caution is even greater when it is known that the *conditions favoring a correct identification were difficult.* - 3. *Where the conditions were difficult, what is needed before convicting* is other evidence pointing to the guilt. - 4. Otherwise, subject to certain well known exceptions, it is lawful to *convict on the identification of a single witness so long as the judge* warns him or herself of the danger of basing a conviction on such evidence alone. - $27.1$ It was the testimony of PW1 that one day she went to wash for her 15 grandmother clothes, and the appellant chased away the other children and closed her in the house. According to PW2, the mother of the Victim, left home at 8 am and returned at 9am. At 8:00am there was sufficient light to facilitate proper identification. PW1 testified that she knew the appellant from the grandmother's place. This was corroboated by the evidence of PW2 and 20 PW3 who confirmed that the appellant rented one room next to the victim's grandmother. We therefore find that the victim was familiar with the appellant and was in a position to identify him on that fateful day. The possibility of mistaken identification by PW1 was therefore remote or not there at all. 25 - 28.1 In his defence, the appellant agreed to the fact that he knew the victim and that he rents at the victim's grandmother, but he denied the allegations and raised the defence of alibi. He alleged that he was on the way to work when three men stopped him and told him the Chairperson was looking for him. That when they reached the Chairperson's home, he was arrested and taken to Police.

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- We are mindful of the fact that the burden of proof remains with the $29.1$ prosecution, the alibi presented notwithstanding. In this case, we agree with the trial Judge that the alibi presented by the defence was disproved by the credible and cogent identification evidence of PW1 which placed the appellant at the scene of crime. We find the evidence of PW1 truthful. It was also sufficiently corroborated by the testimony of PW2. - On the whole, considering the evidence on record of both the $30.1$ prosecution and the defence, we find that the prosecution evidence was amply corroborated and it proved beyond reasonable doubt the ingredient of participation of the appellant. We also find that the trial court properly evaluated the evidence on record. - $31.$ This ground fails.

## Ground 2

## **Submissions for the appellant**

It was submitted that the learned Judge erred in law when he failed to 32.1 deduct the years spent on remand as required by law. The trial Judge imposed a manifestly excessive custodial imprisonment of 22 years. Counsel cited Kabatera Steven v Uganda, CACA No. 123/2001, where the appellant was sentenced to 10 years' imprisonment which was reduced by the Court of Appeal to 5 years. In **Sentamu James vs. Uganda CACA No.39 of 2002**, the Court of Appeal interfered with exercise of discretion of the trial Judge by reducing sentence to 4 years from 8 years' imprisonment. In Kalibobo Jackson v Uganda CACA No. 54 /01, the appellant was sentenced to 17 years' imprisonment. On appeal to Court of Appeal, the sentence was reduced to 7 years' imprisonment.

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33.1 Counsel submitted that the taking into account the remand period should be done mathematically by subtracting the period according to Article $23(8)$ and reduce the sentence to 15 years' imprisonment.

## **Submissions for the respondent**

$34.]$ Counsel for the respondent conceded that the trial Judge ought to have mathematically deducted the remand period from the sentence as submitted by the appellant and this would be in line with Article $23(8)$ of the Constitution of the Republic of Uganda which is to the effect that;

> "where a person is convicted and sentenced to a term of imprisonment, any period he or she spends on lawful custody in respect of the offence before completion of his or her trial shall be *taken into account in imposing the sentence*"

35.1 Counsel prayed that this court should invoke section 11 of the Judicature Act and pass the appropriate sentence and to specifically deduct the 2 and $\frac{1}{2}$ years of remand that was not considered by the trial Judge. While exercising powers under section 11 of the Judicature Act, in coming up with an appropriate sentence, Counsel prayed that the Court considers The **Constitution (Sentencing guidelines for Courts of Judicature) (Practice)** (Directions) 2013. In the 3^rd schedule Part 1, the sentencing range in capital offences is from 30 years to death. In this particular case, the sentence of 22 years is far below the sentencing range. Counsel cited **Katende Nezihoro vs.** Uganda, CACA No. 53 of 2015, where court confirmed the sentence of 22 years for the offence of aggravated defilement where the victim was 11 years.


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**Consideration of Court**

We agree with the submissions of both parties regarding the position of 36.1 the law on arithmetic deductions of the period spent on remand by an accused person. The Supreme Court in Rwabugande Moses vs. Uganda (Supra) set the precedent for arithmetic deductions stating 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"

We noted that the trial Judge did not indicate anywhere that he had $37.1$ taken into consideration the time the appellant had spent on remand. One reading must be able to notice that the trial Judge had this at the back of their mind. This cannot be discerned from the record before this court. The trial court had this to say when passing sentence;

"*The offence is rampant. It carries maximum of death.*" Aggravating factors have pushed the prosecution to pray for 45 yrs. Mitigating factors show; a) Accused is a $1^{st}$ time offender *b) Needs to go and look after his family*[*y*. In balancing the above. I consider that the accused needs rehabilitation and society needs to learn from him. From the mitigation court sentences accused to a custodial penalty of 22 years to run from first day of remand."


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- 38.1 The Judge was silent on the time spent on remand, it leaves one wondering whether it was considered or not. We therefore find that the trial Judge violated principle 15 of the sentencing guidelines and Article 23 (8) of the Constitution of the Republic of Uganda. Pursuant to **Section 11 of the Judicature Act,** we proceed to exercise the powers of the trial Court to resentence the Appellant by imposing a sentence we think is appropriate in the circumstances. - $39.1$ In arriving at the most appropriate sentence we consider the mitigating and aggravating factors. It was submitted in mitigation for the Appellant that he was a first time offender, he had spent $2\frac{1}{2}$ years on remand and he has children to take care of. - $40.1$ Guided by the principle of consistency provided for under principle $6(c)$ of the sentencing guidelines, which provides for consistency in passing sentences and bearing in mind that the offence of aggravated defilement attracts a maximum sentence of death penalty, we come to the conclusion that a sentence of 22 years' imprisonment is appropriate in the instant case. According to Article 23(8) of the Constitution, we deduct the $2\frac{1}{2}$ years spent on remand. Hence the Appellant is sentenced to 19 years and 6 months' imprisonment to run from 25^th September, 2019 the date of his conviction. - Consequently, the appeal succeeds partially. $41.]$ 25 - We so Order

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

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**RICHARD BUTEERA** DEPUTY CHIEF JUSTICE

**CHRISTOPHER GASHIRABAKE**

...

**JUSTICE OF APPEAL**

OSCAR KİHIKA **JUSTICE OF APPEAL**

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