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# THE REPUBLIC OF UGANDA

# IN THE SUPRTME COURT OF UGANDA AT I{AMPALA

ICORAM TIBATEMWA-E oRII<IIBII'I'ZA; nUHAISE; CHIBITA; MUS'OTA AND MUGEi|fi; 'IJStCl

## CRIMINAL APPEAL NO.84 OF 2O2I

#### BETWEEN

10 NABONGHO IBRAHIM APPELLANT

#### AND

# UGAI{DA..... .... RESPONDENT

(An appeal from the Judgment of the court of Appeal before Hon. Justices: Musoke, Baishaki, Obura; JJA) dated, lyn Nouember, 2021 in Ciminal Appeal No' 0181 of 201a)

#### JUDGMENT OF THE COURT

This is a second appeal lodged by the Appellant who was aggrieved with the decision of the Court of Appeal. The Memorandum of Appeal had only one ground as follows:

The learned Justices ofAppeal erred in law when they held that the Appellant's charge and caution had been properly admitted and relied upon.

#### Background:

The Appellant was indicted on one count of murder, contrary to Sections 188 and 189, and aggravated robbery, contraqi to Sections 2aS and 286 (2) of the Penal Code Act.

The prosecution case was that on 25 June 2010, the Appellant hired ^a boda boda rider, Byebye Joseph (deceased), to take him from Mbale to

⁵ Irimbi in Namutumba District. When they reached Namutumba, the Appellant convinced the deceased to spend a night at the Appellant's brother's home in the kitchen. At night, the Appellant, together with his brothers who are still at large, attacked the deceased, killed him, and disposed of his body in a rice plantation. The body was found by the garden owner, later identified by relatives, and buried. The Appellant was alrested and charged accordingly. The Appellant made a charge and caution statement admitting the commission of the offence. He was convicted and sentenced to life imprisonment. 10

The Appellant argued that he was subjected to torture prior to providing his statement. However, the appellate Court found no evidence of torture or coercion preceding his charge and caution statement, thus upholding the conviction. The Court of Appeal however, reduced the sentences to 38 and 3O years, respectively. This appeal challenges that decision.

#### Representatloa

At the hearing of the appeal, Ms. Awelo Sarah represented the Appellant while Ms. Ann Kabajungu, Chief State Attorney, represented the Respondent. 20

#### Submisslotrs:

#### Appellant's submisslons

Counsel for the Appellant argued that the charge and caution statement was obtained through torture. Evidence was that the Appellant was using crutches. 25

Further, that he had been incarcerated beyond the mandatory 48-hour period, and no explanation was given for this'

#### ⁵ Respondent's Submisslons

was not raised in the trial court.

Counsel for the Respondent argued that the appellate court noted that the trial judge conducted a trial within a trial to give the Appellant an opportunity to establish by evidence his grounds for objection. They also considered counsel's a-rgument that the Appellant was on crutches during the trial, which was presented as evidence of torture. The court noted this

counsel contends that the allegation of torture, not being raised at trial, was arl afterthought of the Appellant, and that the trial judge cannot therefore be faulted for not having the opportunity to address the issue, as it was not raised during the trial.

### Court's Consideration

This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed law alld fact that were before the first appellate court. This Court is not required to re-evaluate the evidence like the first appellate court. This position is well stated under Rule 30 (1) of the Judicature (Supreme Court Rules) Directions, and in Klfamunte Henry vs. Uganda, SCCA No.1O of L997.

In line with the foregoing legal principle, this Court will only interfere with the decision and conclusion of the Court of Appeal if it appears that, as ^a first appellate court, it failed to re-evaluate the evidence as a whole.

The Appellant in this case, faults the Court of Appeal for upholding his conviction basing on a charge and caution statement. He alleges that the statement was obtained through torture. On the other hand, the Respondent argued that the confession was recorded voluntarily and the sarne was rightly upheld by the Court of Appeal.

From the foregoing, it is apparent that the Court of Appeal properly executed its duty as a first appellate Court in Iine with Kifamunte Henry vs Uganda (supra) where this court held that:

"the dut17 of the first appellate Court is to reconsider all mateial euidence that was before th.e trial Court in totalitu. It is onlg through ¹⁰ re-eualuation that it can reach its ou.tn conclusion."

In re-evaluating the evidence regarding the charge and caution statement made by the Appellant as to whether the same was obtained through torture, the Court of Appeal, at pages l1 & 12 of their judgment stated that:

15 20 25 "We haue considered tLe arguments that the Appellant relies on to contend that the charge and caution statement ought to not haue been admitted in euidence. It utas claimed that tte Appellarut had been tortured to cause him to make that statement. Counsel for the Appellant pointed out that the Appellant had crutches during trial and that utas euidence thot he had been tortured. We note tfnt this is ^a departure from the Appellant's case at tial uhich u-tas that he neuer made the impugned statement ot all. The learned tial Judge tuas not giuen an opportunity to address the issue of torture as it uas not raised during the trial ulithin a trial. We find it to be an afierthought that the Appeltant is raising allegations of torhre nou) on appeal so as to d.efeat the findings of the tial Court. In effect, for us, there is no ualid challenge to the uoluntartness of the releuant charge and caution statement, and we uphold it."

In all cases where a trial court is to accept a confession in circumstances where allegation of torture is raised, it must do so with caution, and must,

⁵ before basing a conviction on such a confession, be fully satisfied in the circumstances of the case that the confession is true.

Section 24 of the Evidence Act, (Cap.8) provides as follows:

"A confession made bA an accused person is ineleuant if the making of tle confession appears to the court, lnuing regard to the state of mind of the accused person and to all the circumstances, to haue been caused by ang uiolence, force, threa| inducement or promise calanlated in the opinion of tlw court to cause an untrue confession to be made."

where an accused person objects to the admissibility of a confession on the ground that it was not made voluntarily, the court must hold a trialwithin-a-trial to determine if the confession was or was not "caused by any violence, force, threat, inducement or promise calculated to cause an untrue confession to be made". In the trial-within-trial, it is for the prosecution to prove that the confession was made voluntarily, not for the accused to prove that it was caused by any of the factors set out in sec.24 of the Evidence Act. 15 20

In Amos Binuge & Others vs. Uganda, SCCA No.23 of 1989, this Court held:

\*It is trite that uhen the admissibilitg of extra-iudicial statement is challenged, then the objecting accused must be giuen a chance to establish bg euidence, his grounds of objection. Ihis is done through a tial u'tith a tial..... The purpose of a tial ulithin a tial is to decide upon the ewdence of botlt sides, whetler the confession should be admitted."

We have taken time to review the record of appeal. At page 27 to 3l of that record, it shows that the learned trial Judge conducted a trial within

s a trial. At pages 13 and 14 of the judgment of the trial Court, the Judge held as follows:

"As earlier pointed out in the judgement, the statement Exhibit Ps ruas admitted in euidence afier a trial within a tial where court ascertained that it was made uoluntarilg. The case o/ Musinguzi Jones vs. Uganda Criminal Appeal L49|2OO4 CA relied upon bg counsel for th.e acansed is not applicable to the circumstances of the present case. Court found no euidence that A1 had been tortured before he made the statement or that le u.tas coerced at all in anAwaA. The medical examination of the accused Aldone on 06.07.10 - Exhibit P2 A" indicates that the acansed utas found uith no injuies and u.tas of ^a normal mental status. When the euidence of tle proseantion is looked at together uith tlutt of A1, I find that tLe accused's alibi and general defence uere disproued as lies. Al u.tas placed at the scene of the cime and tte euidence of the prosecution shotus that he participated on own his free uill in tle murder of the deceased."

The trial judge relied on A1's (Appellant) confession, which provided a detailed account of events on June 25, 2OlO, at 4:30 p.m. that the Appellant hired a motorcyclist in Mbale at the upland stage to transport him to Irimbi village. Upon arrival in Irimbi village, Namutumba District, A1 and the motorcyclist proceeded to the residence of Juma and Fazil.

Juma and Fazil asked for the motorcycle, but when ..{1 told them it belonged to the motorcyclist, they persuaded him to kill the motorcyclist and take it. Later that night Al hit the deceased on the head and he died. Thereafter, the three took the body to a potato shamba, got the motorcycle, and dumped the body at Buyange, Kalamira swarnp'

⁵ The court of Appeal re-evaluated the above evidence which indicated that the trial judge had conducted a trial within a trial to determine the Appellant's objections. In the trial within a trial, Detective Inspector Muwanika Samuel, who recorded the charge and caution statement, stated that he recorded the statement from the Appellant in July 2010 at Namutumba Police Station. He followed the requisite procedure, warned the Appellant that he could make a statement only if he chose to do so, and that any statement the Appellant made could be relied upon as evidence in a court of law. Detective Inspector Muwanika examined the Appellant and found him to be in a normal condition without any visible external injuries. During cross-examination, Inspector Muwanika indicated that he documented the Appellant's statement at 8:47 a.m. on July 8, 2010. 10 15

The Court of Appeal held that:

\*We find it to be an afierthought that the Appellant is raising 20 allegations of torture now on appeal so as to defeat the findings of the tial Court. In effect, for us, there is no ualid challenge to the uoluntainess of tte releuant charge and caution statement, and ue uphold it."

While the allegation of torture was not raised in the trial court, the zs Appellant argues that because he came to Court using crutches, the appellate court should have investigated further into this claim. However, the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the pa"rty seeking to use it at the trial, or that reasonable diligence would not have made it so available.

30 In Namlsango vs. Galiwango and Another [1986] HCB 37 Odoki J (as he then was) hetd that except on grounds of fraud or surprise, the general

⁵ rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it so available.

Furthermore, in Nalongo Josephlne Nazziwa vs. Ugaada, Crimlnal Appeal No. 35 of 2OL4 this Court held as follows:

- "We note that the issues raised in the grounds of appeal before this Court do not emanate from any of the proceedings in the louter Courts. Theg raise entirelg new and. fresh grounds. The lau is that the grounds being framed on a memorandum of appeal should emanate from the decision and proceedings of tle lower court. This point u.)as underscored in Ms Fang Mln 10 - us. Belex Tours and. TYatel Ltmtted SCCA No. 06 of 2073 uhere the Supreme Court held thus: 15

'...on appeal, matters that were not raised and decided on in the tial Court cqnnot be brought up as fresh matters. TLrc Court would be Lurong to base its decision on such matters that uLere not raised as issues not determined bg the tial Court.'

More particularly so, in a second appeal such as the instant one' an Appellant is not at tibertg to raise matters that uere not raised and considered bg th.e triat court and the first appellate court. Accordingly, this appeal is incompetent and sltould be dismissed."

Therefore, admitting evidence that the Appellant had been tortured at this stage of the proceedings which is tantamount to admitting of fresh evidence, would prejudice the Respondent and undermine the judicial system and the rule of law.

#### Conclusion

This Court, being a second appellate court, is not bound to re-evaluate the evidence on record unless it is established that the first appellate court did not re-evaluate the evidence. From the record, it is evident that the Court of Appeal fully reconsidered the evidence that was produced during the trial before arriving at the finding that indeed, the charge and caution statement made by the Appellant was voluntary. We have no reason to depart from the finding of the Court of Appeal.

We find no merit in the instant appeal and we accordingly dismiss it. The Appellant shall serve the sentence issued by the Court of Appeal.

15 Dated at Kampala this .................................... L'esalenne HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT. 20 . . . . . . . . . **. . . . . . . . . .** HON. JUSTICE PERCY TUHAISE JUSTICE OF THE SUPREME COURT. 25 **................** 30 HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT.

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HON. WSTICE SPTEPHEN MUSOTA JUSTICE OF THE SUPREME COURT.

¹⁰ ^I I

HON. JUSTICE MONICA MU JUSTICE OF THE SUPREME COURT.