[2022] UGCA 268

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Musoke, Gashirabake & Luswata, JJA]

#### CRIMINAL APPEAL NO. 111 OF 2018

(*Arising from Criminal session No. 190 of 2016*)

1. MATOVU FRANK 10

2. SEBIRE RONALD....................................

#### **VERSUS**

**UGANDA** ................. ......................................

[Arising from the decision of Emmanuel Baguma, J of the High Court of Uganda sitting at Mpigi in Criminal Case No. 190 of 2016 dated 19^th October 2018] 15

#### **JUDGMENT OF COURT.**

## Introduction.

The accused persons/Appellants Matovu Frank, Sebire Ronald and another person

- Kabalu Saaka were indicted for murder Contrary to Sections 188 and 189 of the 20 **Penal Code Act.** In the particulars of the offence, the State alleged that Matovu Frank, Sebire Ronald and Kabalu Saaka on the 3^rd day of February 2016 at Lunoni Village in Gomba with malice aforethought unlawfully killed Nzabanterura Yusuf Buteera. - The trial Judge found the Appellants guilty. Dissatisfied with the decision of the trial 25 court the Appellants filed this Appeal on grounds that: - $1.$ *The learned Judge erred in law by conducting illegal trial upon* each Appellant without each assessor to its best skill ability swearing impartially trial oaths to advise court on case issues *thereby occasioning miscarriage of justice.(sic)*

Dan V<br>Grost

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- s2 The learned Judge ened in law and fact when he failed to appraise prosecution eyidence alongside the alibi defence evidence and draw inferences of fact that in absence of police witnesses' that the excessive alcohol led to the death of the deceased thereby wrongly convicting the Appellants ofoffence of ¹⁰ murder. (sic) - ^J The learned judge erred in law when he acted on no principles in imposing upon each Appellant manifestly excessiye 22 years' custodial imprisonment sentence occasioning miscarriage of justice.'

#### ¹⁵ Representation

The Appellants were represented by Mr. Seth Rukundo. The Respondent was represented by Ms. Ann Kabajungu.

On the 27th July 2022, both counsel appeared before this court and requested this court to adopt their respective submissions. The Appellants had filed their submission jointly with the Memorandum of Appeal on the l3th July 2022 and the Respondent replied the same on the 25th July 2022.

#### Duty of this court.

We have carefully read the submissions of both Counsel and the authorities cited and those not cited. We have carefully perused the record of appeal. We are also mindful of our duty, as the 1't appellate court, to reappraise all material evidence that was adduced before the trial court and come to our own conclusions of fact and law while taking into account the fact we neither saw nor heard the witnesses testi!. See Rule 30(l)(a) of the Judicature (Court of Appeal Rules) Directions S. I l3-10,

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# ⁵ Kifumante Henry vs. Uganda SCCA No. 10 of 1997 and Pandya vs. R [9571 E. A 336

# Ground I

## Submissions of Counsel for the Appellants

Counsel for the Appellants submitted that the on the 27th 10712017, the trial proceeded without assessors contrary to section 67 of the Trial on Indictments Act Cap23. This section mandates the assessors to take oath to impanially advise court to the best of their ability on issues of a case before court. 10

### Submissions of Counsel for the Respondent.

Counsel raised a preliminary objection that grounds I and 2 offend Rule 66(2) ofthe Judicature (Court of Appeal Rules) Directions. That the grounds failed to specifically state the points of law and fact or mixed facts and law that were wrongly decided by the trial judge. 15

On this ground counsel for the Respondent submitted that at page 18, line I ofthe record of appeal the trial court complied with the requirement of the law. The Assessors took oath and took their seats.

# Consideration of cou rt

We agree with the submissions of Counsel for the Respondent that grounds I and 2 offend the rules of this court. They are ambiguous in nature. However, we invoke our power under rule 2(2) of the rules of this court and article 126(2) (e) to consider this matter on its merit.

before court on page 5, the Assessors took their oath and seats respectively. The trial

Under this ground we agree with the submissions of counsel for the Respondent that the trial Judge complied with the requirements of the law. According to the record

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⁵ court therefore complied with the requirement of the law and therefore cannot be faulted.

This ground fails.

#### Ground 2

### Submissions of counsel for the Appellant.

- It was Counsel's submission that it was not proper for the trial Judge to confirm malice afore thought when the post mortem report Exhibit PE.1, Police Form 48B, showed that the deceased had a scratched neck indicating he was strangled. Counsel submitted that the evidence on record showed that the deceased staggered because ofa lot of intoxication by alcohol which the deceased had taken. It is this excessive alcohol that led to the death ofthe deceased. Counsel argued that the prosecution had no basis of their evidence other than the fact the deceased was last seen with the Appellants taking alcohol in the bar. He argued that bruises on the neck could have been caused by the thoms in the bush where the deceased's body was found decomposing. 10 15 - Counsel relied on Section 12 (4) of the Penal Code Cap 120, which provides that intoxication shall be taken into account for purposes of determining whether the person charged had formed any intention specific or otherwise in the absence of which she/he would not be guilty of the offence. Counsel argued that there was no evidence ofany intention, specific or otherwise, that was adduced by the prosecution against the Appellants that caused death ofthe deceased and in the absence ofsuch evidence the Appellants were wrongly found to have participated in the death of the deceased. 20 ,q,

Furthermore, counsel submitted that there was no evidence placing the Appellants at the scene of the crime. Counsel cited Mushikoma Watete, vs. Uganda SCCA

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5 No.l0 of 2000, where it was held that the prosecution has the burden of placing the accused at the scene of the crime.

It was the argument by counsel for the Appellant that there was no evidence of wounds on the body of the deceased. Further there was no evidence of a grudge between the Appellants and the deceased. He noted that the evidence of the prosecution was full of contradictions.

Counsel also argued that the investigating police officer was not called to testiff and this affected the strength ofthe prosecution evidence against the Appellants.

### Submissions of counsel for the Respondent,

Counsel for the Respondent submitted that the trial Judge pointed out that the evidence on record was circumstantial in nature. Counsel submitted that the trial Judge went on to evaluate the prosecution evidence pointing out the circumstances comprising the circumstantial evidence which included that the Appellants were the last persons to be seen with the deceased. That the fact that there was a quarrel between the Appellants and the deceased prior to his death and the fact that the body of the deceased was found in the bush between the home of Al and A2. 15 20

Counsel for the Respondent conceded that the trial Judge did not consider the defence put up by the Appellants in evaluating the evidence. Counsel invited this court to evaluate the evidence afresh and make up its own mind as a first Appellate Court.

Counsel submitted that the prosecution had the burden of disproving the alibi of the Appellants. He cited Lt. Jonas Ainomugisha vs. Uganda, Criminal Appeal No.l9 of 2015. 25

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⁵ As regards the law on circumstantial evidence, counsel for the Respondent cited Simon Musoke vs. Uganda, (1958) EA 1915, where it was held that in a case depending exclusively on circumstantial evidence the Judge must find before deciding upon conviction that the exculpatory facts were incompatible with the innocence of the accused and incapable of explanation any of other reasonable hypothesis than guilt. 10

Counsel cited Jamada Nzabaikukize vs. Uganda, SCCA No. 0l of 2015, where it was held that an alibi can be discredited either by prosecution evidence which squarely places an accused at the scene of the crime or by prosecution evidence which directly negates or counters the accused's testimony that he was in a particular place other than at the scene of the crime.

Counsel submitted that in this instant case, the deceased's body was found in the bush in between the homes of the Appellants. Yet they had been walking together to their respective homes. Counsel argued that the Appellants lied that the they went their own ways. Counsel argued furthermore that these lies corroborated the case for

the prosecution. Counsel cited Chesakit Matayo vs. Uganda, Criminal Appeal No.95 of 2004, where court held that lies are inconsistent with innocence. Proved lies can be used to corroborate prosecution evidence. 20

Counsel submitted that counsel for the Appellant was speculative on the cause of death being alcohol contrary to what the post mortem showed as the cause ofdeath.

Counsel invited this court to find that the Appellants murdered the accused person.

# Consideration of cou rt

It is trite that whenever an accused person pleads guilty, like in all criminal cases the burden ofproofrests on the prosecution to prove all the allegations of the offence beyond reasonable doubt. See Woolmington Vs. DPP, (1935) A. C 462. However,

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⁵ it has to be noted that proofbeyond reasonable doubt does not mean proofbeyond a shadow of doubt. It is enough that the evidence of the prosecution brings into question the innocence of the accused.

Furthermore, this burden does not shift to the accused person. The accused person is only convicted on the strength of the Prosecution evidence and not the weakness of the accused's case. See Sekitoleko vs. Uganda U967] EA 531. 10

Under Sections 188 and 189 of the Penal Code Act, to constitute the offence of murder, the prosecution must prove these ingredients;

- 1. Death of a human being; - 2. The death of the deceased was caused unlawfully; - 3. The death of the deceased was caused with a malice aforethought; - 4. The accused participated in causing the death of the deceased.

## Death of a Human being

The death of the deceased is not in dispute. It is trite the death of a person can be proved by production of a post mortem report or evidence of a witness who states that they knew the deceased and that they attended the burial. The Prosecution proved this ingredient beyond reasonable doubt by adducing a post mortem report which was marked PE I . This evidence was corroborated by the evidence of PW I , PW2 and PW3. 20

## ²⁵ Death was caused unlawfully.

According to R vs. Gusambuzi s/o Wesonga (1948) l5 EACA 65, it is presumed by law that any homicide is caused unlawfully unless it was accidental or it was authorised by law. The medical officer of Gombe hospital stated that the deceased

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### Malice aforethought.

The Appellants were faulting the trial judge for confirming this ingredient. According to Section 191 of the Penal Code Act, Malice aforethought is defined as either an intention to cause death or knowledge that the act causing death will probably cause death. Court in R vs. Tubere s/o Ochen (1945) 12 EACA 63, set out guidelines to guide court on establishing whether there was malice a forethought. Court considered:

- 1. The type ofweapon used; - 2. The nature of injury or injuries afflicted; - 3. The part ofthe body effected; - 4. Conduct of the attack before and after the attack.

20 The post mortem report PEI indicated that the deceased had scratches in the neck and deceased died because ofstrangulation that blocked the air way. There was no weapon in this case but the part ofthe body and the injuries show that the attacker had malice aforethought. The prosecution proved this ingredient beyond reasonable doubt.

### Participation of the accused.

25 This was the most contended ingredient by counsel for the Appellant. According to the record of proceedings the prosecution case rested on circumstantial evidence. The Supreme Court sitting in Abuja in Tajudeen Iliyasu vs. The State SC 241 /2013, explained circumstantial evidence as;

> "evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of

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⁵ mathematics.....,this is so for in their aggregate content , such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person, caused the death ofthe deceased person . Simply put, it meant that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence........ such circumstantial evidence must point to only one conclusion, namely that the offence had been committed and that it was the accused person who committed it".

# In Sawe vs. Rep, [20031 KLR 364, Court had this to say;

"in order to justify on circumstantial evidence, the inference of guilty, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than thal of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shifts to the party accused"

In this case PWI who was the owner of the bar that the deceased, PW3, A1, A,2 and A3 had a drink told court that while Al and A.2 were drinking they were smoking as well. This brought a quarrel between A1, A2 and the deceased. PWI came and separated them by taking A I and A2 in another room. Later the deceased and PW3 left to go but these were followed by Al and A2 since PWI wanted to close his bar. DWI denied that none in their group was smoking that night, however this was watered down by the evidence of DW2 who acknowledged the fact that he was smoking that night.

PWI testified that all of them were going the same direction. This was corroborated by PW3 who testified that they all went the same direction. He stated that the first

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⁵ person to branch off the route was A,3, then he branched off and left A1 and ,A,2 with the deceased. This was corroborated by the evidence of DW2. DWI denied stating that each one of them went their own direction, but this is unbelievable since he lied that their homes are in separate direction. It has been held before that lies in the evidence of the defence corroborates the prosecution evidence adduced. See

Chesakit Matayo vs. Uganda, criminal Appeal 95 of 2004. 10

From the evidence on record there is unequivocal conclusion that the appellants caused the death of the deceased person. Circumstances which this court has accepted as to make a complete and unbroken chain of evidence is that the Appellants were drinking and smoking in the same bar with the deceased and PW3. The deceased complained about the Appellants' smoking and a quarrel ensued between them. PW1 came and separated them by putting them in different rooms. Shortly, PWI wanted to close the bar so the deceased and left first but was followed by A1, A2 and A3. The whole group used the same road to their homes. The deceased was last seen by PW3, walking with the Appellants on the way to their respective homes. There is no other conclusion but that the Appellants were responsible for the death of the deceased. See Guloba Rogers Vs Uganda Criminal Appeal No.57 of2013.

Based on those facts, and how the accused persons conducted themselves upon and after leaving Esther's bar, prosecuting counsel persuaded the court to invoke "rfte last seen doctrine " which has global application to homicid,es. According to the decision in Tajudeen Hiyasu Vs The State (Supra) "..., creates a reputable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death.... Thus where an accused person was the last person to be seen in the company of the deceased person, they have the duty to give 25 30

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⁵ an explanation relating to how the latter met his or her death. In the absence ofsuch explanation, a trial court......will be justified in drawing the inference that the accused person killed the deceased person".

In addition, the last seen doctrine cannot be applied when the accused was the last person to be seen with the deceased but there is no other circumstantial evidence.

#### 10 See Ismail Vs the State quoted in Criminal Evidence in Nigeria by Jide Bodede 2nd Edition (at www. Iarvf'eildlarv),ers.com)

The Court in Taylor Vs R warned that "..... in dealing with the conviction which is exclusively depended on circumstantial evidence, it is necessary before drawing the inference of the accused's guilt to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

We agree that the prosecution was able to put the accused at the scene of the crime and discredited the alibi raised by the Appellants. The evidence ofthe prosecution was consistent. The defence evidence was inconsistent. However, bearing in mind that the Appellants are only convicted on the strength of the prosecution evidence we are satisfied that the prosecution disproved the alibi ofthe Appellants and placed them at the scene of the crime having been the last people seen with the deceased and the quarrel they had earlier as well.

We therefore find the prosecution proved the participation of the Appellants beyond reasonable doubt.

²⁵ This ground fails.

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# s Ground ³

## Submissions of counsel for the Appellants.

Counsel for the Appellants submitted that the sentence of 24 years 7 months and 8 days was manifestly harsh and excessive. Counsel argued that there were no aggravating matters pointed out by the sentencing judge.

### Submissions ofcounsel for the Respondent.

Counsel for the Respondent submitted that this is a case of murder, which carrres a maximum sentence ofdeath. Counsel further argued that the trial Judge did not fault any sentencing principle. He considered the submissions of both counsel and the

15 circumstances under which the offences were committed to come to the sentence. It was further submitted that the trial Court deducted the time spent on remand. Counsel cited Kiwalabye Bernard vs. Uganda Supreme Court Criminal Appeal No. 143 of200l.

20 Counsel cited Kyatereka George William vs. Uganda Criminal Appeal No.7l3 of 2010, where court upheld a sentences of 30 years of imprisonment. In Muhwezi Bayon vs. Uganda Criminal Appeal No 198 of 2013, where court held that the term of imprisonment for murder of a single person ranges between 20 to 30 years imprisonment.

### Consideration by court.

25 It is trite law that the appellate court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage ofjustice or where a trial court ignores to consider an important matter or circumstances which ought to be considered while

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⁵ passing the sentence or where the sentence is imposed is wrong in principle. See Kiwalabye Bernard vs. Uganda Supreme Court Criminal Appeal No. 143 of 2001.

While sentencing the trial Judge took into consideration the submissions of the prosecution and defence. These submissions clearly stated the aggravating and mitigating factors. The court cannot be faulted for not mentioning the aggravation factors considered. This is because he has demonstrated that he considered them while sentencing.

On whether the sentence was manifestly harsh and excessive, we are guided by the cases referred to by Counsel for the Respondent where the sentence of30 years was

upheld by the Appellate court. (Kyatereka George William vs. Uganda Criminal Appeal No.7l3 of 2010 and Muhwezi Bayon vs. Uganda Criminal Appeal No 198 of 2013, where court stated that the sentence range for murder cases ranges between 20 and 30 years. The conduct ofthe Appellants demonstrates that they do not value life. Under Article 22 of the Constitution of the Republic of Uganda no one is to be deprived of life intentionally. The Appellants offended this provision of the Constitution. The sentence of 22 years was appropriate in the circumstances of this case. This ground fails. The sentence ofthe lower court is hereby upheld. 15 20

We so order

²⁵ Dated at Kampala this ... s of ²⁰²²

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$\mathsf{S}$ **ELIZABETH MUSOKE JUSTICE OF APPEAL** $\overline{c}$ **.......... CHRISTOPHER GASHIRABAKE** $10$ **JUSTICE OF APPEAL** EVA K. LUSWATA **JUSTICE OF APPEAL** 15