[2024] UGCA 84

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

# CRIMINAL APPEAL NO. 0558 OF 2014

(Appeal from the Judgment of Henry Kawesa, J; deliuered on the 7 7th

5 of June 2O14 in Criminal Session case No.171 of 2013 High Court of Uganda, Tororo)

# MWIMA SOWALI alias MAGENDA APPELLANT

### \IERSUS

# 10 UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. WSTICE OSCAR JOHN KIHIKA, JA

### JUDGMENT OF COURT

# 1s Introduction

The Appeltants were indicted and convicted of the offence of Murder contrary to sections 188 and 189 of the Pena-l Code Act and sentenced to 23 years' imprisonment.

### Background

²⁰ On the 26th day of January 2012, at around l. OOpm the Appellant, Sowa-li Magenda, together with Haji Famba went to the home of Mulongo Fatina Lunyolo while in possession of a small hoe. They

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used that small hoe to break into the house of her son, one Were Ararnaz.an, in his absence. Famba is an uncle to Aramazan. At around 5.00 pm, the Appellant and Haji Famba were heard calling someone on phone directing him to go to the said House. Shortly after, the deceased arrived while riding a motor cycle registration No. UDT 019X red in color. He was taken into the grass thatched house where they purportedly performed rituals on him. During the performance of the said rituals, there was a lot of noise inside the house which raised concern amongst the public and they decided to inform the police.

On their way to the scene, police met Hajji Famba riding the red motor cycle belonging to the deceased, he was stopped but he jumped off and ran away. The police later proceeded to the scene and found the Appellant standing near the door where the deceased was laying. On sighting the police, the Appellant also ran away. The deceased was found unconscious laying in a pool of blood with multiple injuries on his head and there was a small hoe stained with fresh blood besides him. He was carried to Busolwe hospital where he passed on.

- The Appellant was arrested, indicted and convicted of the offence of murder. He now appeals to this court against both conviction and sentence on the following grounds; 20 - 1. The learned trial Judge erred in law and fact when he held that the accused person had been properly identified thus occasioning a miscaffiage of justice.

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- 2. The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record and relied on the prosecution evidence which was full of contradictions, hearsay and lies thus occasioning a miscarriage of justice. - 3. The learned trial Judge erred in law and fact when he sentenced the accused person to a harsh sentence of 23 years without taking into account the period spent on remand.

## Representation

At the hearing of the appeal, Ms. Faith Luchiyia appeared for the Appellant while Ms. Fatinah Nakafeero and Ms. Lydia Nakato appeared for the Respondent. Both parties filed written submissions which were adopted. 10

# Duty of a first Appellate Court

- Before delving into the grounds of appeal it is necessar5r to remind ourselves of the duty of this court as a first appellate court. Being a hrst appellate court, the law enjoins it to review and re-evaluate the evidence as a whole, closely scrutinize it, draw its own inferences, and come to its conclusion on the matter. This duty is recognized in 15 - Rule 30(1) (a) of the Rules of this Court. 20

3O. Pouer to reappraise euidence and to take additional euidence.

(1) On any appeal from a decision of the High Court acting in the exercise of its oiginal juisdiction, the court maA-

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(a) reappraise the euidence and dratu inferences offact; and (b) in its discretion, for sulficient reason, take additional euidence or direct that additional euidence be taken bg the trial court or bg a commlsstoner.

5 The cases of Pandya v R [1957] EA 336 and Kifamunte Henry v Uganda SCCA No. 10 of L997 have a-lso succinctly re-stated this principle. We have borne these principles in mind in resolving this appeaJ.

## Ground one

# ¹⁰ Appellant's submissions

Counsel submitted that the evidence of PWl was based on the information from his alleged informant whom he never disclosed. That the evidence of the prosecution witnesses was not suffrciently pointing to the Appetlant as having committed the offence. pW4 stated that he questioned the Appellant about the murder and he confessed to him, which according to counsel, was a baseless statement with no evidence to support it.

20 Counsel relied on the decision in Kakeeto Vs Uganda, Criminal Appeal No. 37O of 2019 on the test for proper identification and submitted that the considerations for identification are whether the accused was known to the witness prior to commission of the offence, the lighting used, distance from which the identihcation was made and the length of time during which the accused was identified. Counsel submitted that the factors for proper identification were not

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present in this case and as such, the Appellant was not properly identihed.

# Respondent's submissions

5 Counsel submitted that PW1 was familiar with the Appellant and observed him at a close distarce and thus there was no possibility of mistaken identity. In addition, PW3 had a torch which he flashed at the assailant and identihed him as Sowali whom he knew as the man that sells meat at Butalejja and had earlier interacted with him. Counsel prayed that court finds that the Appellant was properly identified by PW3. 10

When the police arrived at the scene of crime, it was only the Appellant that ran out of the house and the body of the deceased was found l5ring on the ground. Counsel argued that the witnesses were familiar with the Appetlant and they knew him as a butcher in Butaleja and as such, was properly identihed.

# Consideration of ground ¹

The Appellant faults the learned trial Judge for having found that there was proper identification. The prosecution relied on the evidence of PWl, PW2, PW3, PW5 and PW6, who a\_tt testihed that the Appellant was in the hut where the deceased was assaulted. pW1, a police oflicer testihed that he was on his way from having supper and was tipped off by someone of an impending problem and was told the Appellant and one Hajji had locked themselves in the hut. He went to the police station and got back up and moved to the scene of crime.

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At the junction, he met Hajji on a motorcycle and when Hajji saw the officers, he ran away. They headed to the hut and the Appellant came out of the house end ran away. They entered the house with CPC Nanku and Arapai and saw someone layrng on an old mat. He testified that they were using motorcycle flash light and saw a lot of blood where the victim was lying. PW1 testified that he knew the Appellant very well and used to see him at the butcher's. The testimonies of PW2, PW3, PWs and PW6 all give the same narration of events that transpired the night the offence was committed.

- The evidence of PWI, PW2, PW3, PW5 and PW6, indicated that the Appellant was well known to them and a,lso, that there was use of a motorcycle flash light to identify the Appellant. The evidence of PW 1, PW3, PWs and PW6 was that the Appellant was well known to them prior to commission of the offence as a man that owned a butchery in Butalejja town. PW3 also testified that he had a torch, which he 10 - flashed at the Appellant and identified him as Sowali whom he knew and interacted with at his butchery. 15

The principles of identification were well settled in the case of Abdulla Nabulere and others Vs Uganda, Criminal Apped No. 9 of 1978. The Court of Appea1 held that;

"WlTere the case against an accused depends whollg or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should uarn himself and /he assessors of the special need for caution before conuicting the accused in reliance on the correctness of the

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identifi.cation or identif.cations. The reason for the special caution is that there is a possibilitg tltat a mistaken witness can be a conuincing one and that euen a number of such uitnesses can all be mistaken. The judge should then examine closelg the circumstances in which the identification came to be made, particularlg, the length of time the acansed was under obseruation, the distance, the light, the familiaitg of the witness with the accused. All these factors go to the quality of the identifi"cation euidence. If the qualitg is good, the danger of a mistaken identitg is reduced but the poorer the quality, the greater the danger.

In our judgment, tuhen the qualitu of identification is qood, as for exam le uhen the identi cation is made a eralo eriod ^o obseruation or in satisfactoru conditionsbuaoe rson who knew the accused well before', a court can safelg convict euen though there is no 'other euidence to support to identifi"cation euidence; prouided the court adeqtately u)arrls itself of the special need for caution. " (Emphasis added)

20 Applying the above principles to the present case, it is our considered view that the quality of identification was good, there was light from the motorcycle flash light and the Appellant was well known to PW1, PW3, PWs and PW6 as someone that operated a butchery in Butalejja town. The Appellant was thus properly identified by PWI, PW2, PW3, PWS and PW6. Ground one accordingly fails.

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### Ground 2

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#### Appellant's submissions

Counsel submitted that the evidence of PW5 was contradictory to that of the other prosecution witnesses. PW5 stated that they found the Appellant standing in front of the grass thatched house and when $\mathsf{S}$ they called his name, the Appellant run away, which was contradictory to the evidence of the other prosecution witnesses. That PW5 stated that they received a call from the LC1 Chairman that some strange people had come to his village while PW6 stated that they received information that the Appellant and Hajji had a visitor 10 that they had locked in the grass thatched house. Counsel submitted that these contradictions point to deliberate untruthfulness and cannot be taken for granted.

Counsel relied on the decision in Kamyuka Ivan Vs Uganda (Criminal Appeal No. 56 of 2018 for the proposition that the effect 15 contradictions in $\overline{of}$ evidence prosecution is that grave inconsistencies or contradictions will, unless satisfactorily explained, usually, but not necessarily result in the evidence of a witness being rejected. Counsel argued that the evidence of the prosecution witnesses was hearsay and cannot be admissible as against the 20 Appellant.

### **Respondent's submissions**

Counsel relied on the evidence of PW1, PW3, PW5 and PW6 in response to counsel for the Appellant's submissions on contradictory

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evidence. Counsel submitted that PW1 testified on page 1O paragraph 2 that when the officers arrived and asked the women listening to music on as Radio Cassette whether there was a problem, the Appellant came out of the house and ran away. That similar

5 evidence was given by PW3 who testified that on arrival, they saw the Appellant ran out of the grass thatched house and PW3 flashed a torch at him and identified him as the Appellant.

Counsel argued that the evidence of the prosecution witnesses was consistently corroborating each other on identification of the Appellant and there were no contradictions referred to by the Appellant's counsel. Counsel argued that the contradictions on how the information was obtained were minor and failure to disclose the source of information was inconsequential to the trial. Counsel submitted that the Appellant was properly identihed by the prosecution witnesses. 10 15

## Consideration of Ground 2

The evidence of PW1 was that when they arrived at the scene of crime, there were women listening to music on a Radio Cassette and when they asked what the problem was, the Appellant came out of the house and ral away. The evidence of PW3 and PW6 was a-lso to the same effect save for the fact that PW3 had a flash light which he used to identify the Appellant. PWs is the only witness that gave a slightly different version of what transpired. He testified that the Appellant was standing in front of the door of the grass thatched house.

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This contradiction is, in our view, a minor one that does not point to deliberate untruthfulness.

This Court and the Supreme Court have laid down the principles governing the law on contractions and inconsistencies in the Prosecution evidence. In Obwalatum Francis vs. Uganda, Criminal Appeal No.3O of 2015, the Supreme Court held that;

"The lanl on inconsistencg is to the effect that uhere there are contradictions and discrepancies bettueen prosecution witnes ses which are minor and of a triuial nature, these mag be ignored unless they point to deliberate untruthfulness. Howeuer, where contradictions and discrepancies are graue, this would ordinailg lead to the rejection of such testimong unless satisfactorilg explained." It is therefore settled law thnt graue contradictions and discrepancies unless satisfactorilg explained, will usuallg but not necessarilg result into the rejection of that ruirness's euidence. See Nfred Tajar v Uganda, EACA. Cr. Appeal No. L67 of 1969.

We must point out that there is no standard rule on measuring degree of inconsistencies, since each case is handted on its own facts. 20 It is always the duty of the trial Court to establish whether such contradiction is material to the facts of the case before it, considering the weight of that contradiction against materia-l aspects that the prosecution relies on to prove their case beyond reasonable doubt.

The contradiction in this case is in the evidence of PW5 who is the zs only witness that gave a slightly different version of what transpired,

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having testihed that the Appellant was standing in front of the door of the grass thatched house. We find this a minor inconsistency that would not wa.rrant rejection of the witness' evidence. In addition, the Appellant's counsel argues that the source of information to the prosecution witnesses was not disclosed and also gave different versions. PW1 testified that he got tipped off that there was an impending problem in the village white PW2 testihed that they had been informed about a stolen motorcycle in Butaleja Town Centre. PWS on the other hand stated that they had received a phone call from the Chairman LC 1 Busasi Village that some strange people had gone to the village with a motorcycle. The Appellant's counsel submitted that the different versions of the source of information amount to major contradictions that created loopholes in the prosecution evidence.

We note that all the prosecution witnesses were police ofhcers and they had different sources of information that led to the arrest of the Appellant at the scene of crime. We have however already found that the Appellant was properly identihed and placed at the scene of crime. It is our considered view that the source of the information by the various prosecution witnesses was inconsequential to the prosecution evidence. 15 20

### Ground 3

# Appellant's submissions

Counsel submitted that while sentencing, the learned trial Judge did not take into account the period that the appellant had spent on 25

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remand and as such, the sentence passed by the trial court is an illegat sentence. Counsel relied on the decision in Kakeeto v Uganda ,Criminal Appeal No. 37O oI 2OL9 12or221 UCICA 226 for the proposition that where a person is convicted and sentenced to a term of imprisonment for an offence, any,period spent in la'\*{ul custody in respect of that offence shall be taken into account in imposing the term of imprisonment.

## Respondent's submissions

In reply, counsel submitted that the learned trial Judge put into consideration the period the appellant had spent on remand, which was two and a half years. Counsel submitted that the Appellant was sentenced on 11th June 2014, before the mandatory requirement of arithmetic ca-lculation of the time spent on remand was introduced in Rwabugande Moses Vs. Uganda, Supreme Court Criminal Appeal No. 25 of 2Ol4 which was delivered on 3.d March 20 17. 10 15

# Consideration of ground 3

The issue for this court to determine is whether the decision in Rwabugande Moses Vs. Uganda, Supreme Court Criminal Appeal No. 25 of 2OL4 applied to sentences already passed prior to 3.d March 2017. As far as the submission of the Appellant's counsel is concerned, counsel relied on the decision of the Supreme Court in Rwabugande Moses v Uganda (supra) for the proposition that taking into account had to be arithmetic and the words used by the trial judge did not show that the period the appellant had spent on remand had been deducted. It is not in dispute that the Appeltant 20 25

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had spent a period of two years and six months before his conviction and sentence to a term of 23 years' imprisonment.

This court has addressed the issue in the case of Kajooba Vacencia Vs Uganda, Criminal Appeal No. O118 ol 2OL4 and held as follows;

5 "According to the learned Principal Assislant DPP, the decision in Rutahtgande Moses o Uganda (supra) had not get been deliuered bg 4th Apil 2014 and could not haue been binding on the learned trial judge. While the argument is plausibte, if misses the essential point that Article 23 (8) of the Constitution of the Republic of Uganda was in existence and had been promulgated together with the constitution on &h )ctober 1995. The decision in Ruabugande Moses u tlganda (supra) was an attempt to interpret the constitutional prouision for purposes of its application by the tial courts in taking into account the peiod that the Appellant had spent on pre-tial detention pior to his conuiction and sentence. Secondlg, the decision of the Supreme Court in Abelle Asuman o llgand,a (supra) utas another attempt to giue direction to the trial courts in arriuing at an appropiate sentence of impisonment for a definite term in terms of Article 23 (B) of the Constitution of the Republic of Uganda. At best the dectsions of the Supreme Court cited immediatelg aboue dealt with the method to be applied for taking into account the period a conuict wLrc has been sentenced had spent on pre-tial detention before his sentence. 10

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Artlcle 23 (8) of the Constitution of the Republic of Uganda prouides that: (8) Where a person is conuicted and sentenced to a term of impisonment for an offence, ang peiod he or she spends in lawful cttstodg in respect of the offence before the completion of his or her tial. shall be taken into account in imposing the tenn of imprisonrrtent. A literal reading of Article 23 (8) of the Constittttion of the Republic of Uganda clearly requires that afi.er conuiction and where the court intends to sentence the conuict to a term of impisonment, anA peiod he or she spent in lawful anstodg in respect of the offence shall be taken into account. The controuersg is on hout it is to be taken into account in imposing the term of imprisonment. Where it is not taken into account, this sentence u-tould be illegal for uiolation of article 23 (8) of the Constih)tion of the Republic of Uganda and would be set aside for illegalitg."

The above excerpt reiterates the need for the trial court to indicate that the period a convict has spent on remand has been put into consideration in sentencing. This is in accordance to Article 23 (8) of the Constitution which makes it mandatory for the remand period to be deducted by the trial Judge while sentencing.

Article 23 (81 of the Constitution of the Republic of Uganda provides that:

"(8) Where a person is conuicted and sentenced to a term of imprisonment for an offence, any peiod he or she spends in lawful

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custodA in respect of the offence before the completion of his or her trial shall be taken into account in imposing the tenn of imprisonment"

As he passed sentence the trial Judge stated as follows;

#### "SENTENCE AND REASONS

Acarced/ conuict is said to be a f.rst offender. His been on remand for about 2 1/ 2 Ars. Howeuer, the offence is graue and rampant. There is need for deterrence sentence and to erlsure reformation and rehabilitation. Acansed will be sentenced uith that in mind. Life can't be replaced. Giuen the ciranmstances of this offence, the mitigations and the aggrauations the conuict will be sentenced to a anstodial peiod of23 Aears. I so order."

We have carefully considered the wording used by the learned trial Judge. We hnd that the learned trial Judge considered the period the Appellant had spent on remand and we find no reason to fault him.

In Abelle Asuman v Uganda; [2018] UGSC 10, the Supreme Court, while not departing from Rwabugande Moses v Uganda (supra) held that the essence of Article 23 (S) of the Constitution of the Repubtic of Uganda is fulfilted where the tria-l court demonstrates that the period the Appellant had spent in lawful custody had been taken into account. They held that: 15 20

> "The Constitution prouides that the sentencing Court must take into account the period spent on remand. It does not prouid.e that the taking into account has to be done in an arithmetical uag. The constihttional command in Article 23 (8) of the Constih.ttionis

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for the court to lake into account the peiod spent on remand.... Where a sentencing Court has clearlg demonstrated that it has taken into account the peiod spent on remand to the credit of the conuict, the sentence would not be interfered with bg the appellate Court only because the sentencing Judge or justices used different uords in the Judgement or missed to state that they deducted the period spent on remand. These mag be issues of stgle for which a lower Court would not be Jlouted uhen in effect the Court ho,s complied with the constitutional obligation in Article 23 (8) of the Constitution."

We therefore Iind that the learned trial Judge considered the period the appellant had spent on remand and as such, ground 3 also lails. Given that all the grounds of appeal have failed, we find that this appeal is void of merit and is therefore dismissed.

We so order 15

A Delivered and dated this 3 20 \* b,p '{ day of \-

20 CHEBORION BARISHN{I Justice ofAppeal

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## CHRISTOPHER GASHIRABAKE

# **Justice of Appeal**

$\mathsf{S}$ OSCAR JOHN KIHIKA

Justice of Appeal.

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