[2022] UGSC 28

# IN THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA HOLDEN AT KAMPALA

#### **CRIMINAL APPEAL NO.74 OF 2015**

# (ARISING OUT OF COURT OF APPEAL CRIMINAL APPEAL NO.

#### 216 OF 2012)

#### OPIO AWERI; TIBATEMWA-EKIRIKUBINZA, PAUL CORAM: MUGAMBA, EZEKIEL MUHANGUZI; CHIBITA; JJSC

## NYANGASI DALTON APOLLO ::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

(An appeal arising from a decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No. 216 of 2012 before Hon. Justice AUGUSTINE NSHIMYE, JA, Hon. Justice FAITH MWONDHA, JA, Hon. Justice GEOFFREY KIRYABWIRE, JA dated 30^th November, 2015.)

#### **JUDGMENT OF THE COURT:**

This is an appeal against the whole judgment and decision of the Court of Appeal on the following grounds of appeal:

- 1. That the learned Justices of Appeal erred in law and fact in finding that Prosecution had proved participation of the appellant in the commission of the crime. - 2. That the learned Justices of Appeal erred in law and fact when they disregarded the appellant's defence of alibi.

3. That the learned Justices of the Court of Appeal erred in law and fact in sentencing the Appellant to 25 years' imprisonment which is deemed illegal, manifestly harsh and excessive in the circumstances.

#### **REPRESENTATION**

At the hearing, the appellant was represented by Learned Counsel Emmanuel Muwonge from KATS Advocates.

The respondent was represented by Assistant DPP Charles Kaamuli.

### **BRIEF BACKGROUND**

The appellant was tried in the High Court of Uganda sitting at Kampala and convicted of murder and sentenced to life imprisonment. He appealed to the Court of Appeal, which sustained the conviction but reduced the sentence to 25 years' imprisonment.

The appellant, being aggrieved by the decision of the Court of Appeal filed this appeal. He prayed that the conviction and sentence be set aside and the appeal is allowed and in the alternative that the sentence is substituted with one the court deems appropriate.

#### **GROUNDS 1 AND 2**

Learned Counsel for the appellant argued grounds 1 and 2 together.

He referred court to Kifamunte Henry vs U SCCA No. 10 of 1997, to explain the duties of the second appellate court.

This duty being to decide whether the first appellate court applied or failed to review the evidence. The first appellate court also has a duty to re-evaluate the evidence adduced at the trial court.

Counsel argued that the first Appellate Court had failed or neglected to exercise their duty as required.

He faulted the court for relying on the evidence of PW4 and PW5 to prove participation of the appellant. He contended that these witnesses never saw the appellant actually participating in the murder of the deceased. Instead, he added, their evidence could not even amount to circumstantial evidence given the fact that the deceased was suffering from pneumonia.

Counsel went further to discredit the evidence of injuries found on the body as being caused by pneumonia attacks and therefore selfinflicted by the deceased.

Having found inconsistencies in the evidence of PW5, counsel wonders why their Lordships did not proceed to decide in favour of the appellant.

He referred court to **Bogere Moses and anor vs Uganda, SCCA No.** 1 of 1997, Alfred Tajar vs Uganda EACA, Cr Appeal No. 167 of 1969, Sarapio Tinkamalirwe vs Uganda, Cr Appeal No. 27 of 1989 for a discussion on circumstantial evidence and inconsistencies in prosecution evidence.

He concluded by stating that the trial court and the Court of Appeal failed to explain the grave inconsistencies and contradictions in the

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prosecution case, which would have led to acquittal. Therefore, he contended that they failed in their duty as laid out in Kifamunte (supra).

He therefore asked court to decide grounds 1 and 2 of appeal in the affirmative.

### **GROUND 3**

Counsel contended that the Justices of Appeal, while sentencing the appellant, did not take into consideration the time spent on remand. He cited the case of **Rwabugande Moses vs Uganda** SCCA No. 25 of 2014 to support his position that time spent on remand must be deducted from the final sentence in accordance with Article 28(3) of the Constitution of the Republic of Uganda.

He referred to section 11 of the Judicature Act to argue that this court is vested with jurisdiction to either acquit or pass a sentence that it considers appropriate.

He therefore prayed court to set aside the conviction and sentence of the appellant.

Counsel for the Respondent combined grounds 1 and 2 of appeal and submitted as follows:

### **GROUNDS 1 AND 2**

Counsel also reiterated the powers of the second appellate court as stated in D. R. Pandya vs R 1957 EA 336, Kifamunte Henry vs Uganda 1997 SCCA No. 10 of 1997 and Areet Sam vs Uganda SCCA No. 20 of 2005.

He argued grounds 1 and 2 together since "an offender who is not at the crime scene cannot commit the particular crime at that scene of crime."

He contended that the Justice of Appeal addressed their minds to the threats pointed out by PW4 and PW5 directed at the deceased by the appellant. One such threat was:

## "By midday you stupid woman would be dead. Nobody messes with me and goes unpunished."

He stated that within two hours of that threat the deceased was dead. He therefore invited court to find that threats, when executed as promised within such a short span of time, and evidence adduced to that effect, which is not challenged by the defence, such threats become relevant and admissible evidence.

He also pointed to additional evidence of the appellant not being bothered and not giving a helping hand in taking the deceased to hospital as further confirmation of guilt. He referred court to Twinomugisha Alex, alias Twino and others vs Uganda SCCA No. 35 of 2002, where it was held:

## "On the whole although some of the defence evidence was not seriously considered, no injustice was caused since the general denial by A3 had been disproved."

He therefore asked court to find that the evidence adduced was sufficient to sustain a conviction.

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On alibi, Counsel cited **Sekitoleko vs Uganda** 1967 EA 531 to state that an accused person does not have to prove an alibi once he raises it.

He also referred to Bogere Moses vs Uganda SCCA No. 1 of 1997 where it was held:

"Where Prosecution has adduced evidence showing that the accused was at the scene of crime and the defence not only denies it but adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the Court to evaluate both versions judiciously and give reasons why one and not the other version is accepted."

He contended that the Justices of Appeal properly analyzed the alibi and found that the appellant was indeed present at the scene of crime. He quoted from the record of appeal at page 104:

"The best evidence against the alibi was by PW5 Fiona, who was the first witness at the scene of crime. "I heard a bad noise which eventually faded away coming from the latrine, I rushed to where the noise was coming from. I found Christine lying down and accused was strangling her. His hands were on her neck. I went towards mum but she could not talk; accused rushed and went away. Christine was struggling to free her neck of the accused hands. She was using her hands. Accused rushed away. He saw me before he rushed away. When he left I tried to hold the victim and also talk to her but she did not speak..."

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Their Lordships pointed out that the evidence of PW5 was corroborated by PW4 who stated that the deceased went to the toilet and was followed by the appellant. He thereafter found the deceased on the floor with eyes wide open and when she confronted the appellant he is quoted to have uttered the words: "no one messes with me and goes unpunished"

Their Lordships hence concluded that the toilet/bathroom/latrine and its vicinity constituted the scene of crime where the appellant was well placed.

He therefore asked court to dismiss grounds 1 and 2 of appeal for lack of merit.

### **GROUND 3**

Learned Counsel for the respondent referred court to section 5(3) of the Judicature Act to argue that the appellants cannot appeal against severity of sentence. Further, he cited Okello Geoffrey vs Uganda SCCA No. 34 of 2014 to bolster the above position. He asked court to dismiss the grounds of harshness and excessiveness of sentence.

On illegality, Counsel invited court to consider the cases of **Ogalo s/o** Owour vs Republic 1995 21 EA 126, Rep vs Mohamed Ali Jamal 1948 15 FACA 126, Kyalimpa Edward vs Uganda SCCA No. 10 of 1995 and Kamya Johnson Wavamunno vs Uganda SCCA No. 16 of 2000, where it has been consistently held that the appellate court should only interfere with the discretion of the trial court where it ignored an important matter or circumstance that ought to have been considered when passing sentence.

Counsel referred court to **Rwabugande Moses vs Uganda** SCCA No. 28 of 2014 to concede that the Justices of Appeal did not deduct the time spent on remand when sentencing the appellant to 25 years' imprisonment. He however contended that this did not render the decision illegal, harsh or excessive given that the maximum sentence is death.

Counsel cited Aharikundira Yusitina vs Uganda SCCA No. 27 of 2015 where the accused was sentenced to 30 years for murder of a spouse and Akbar Hussein Godi vs Uganda where the convict was sentenced to 25 years for murder of his wife. Yet the Supreme Court did not consider these sentences illegal.

He therefore prayed that court upholds the sentence of 25 years' imprisonment.

### CONSIDERATION OF THE COURT

This appeal was premised on three grounds which the respondent relied on in his submissions that were received in the court Registry on 5^th October, 2021 at 11.14 am. The appellant for his part based his submissions on four purported amended grounds of appeal which were received in the Registry on 5^th October, 2021 at 12.24 pm.

In other words, the appellant filed an amended Memorandum of Appeal with four grounds accompanied by his submissions an hour and ten minutes after the respondent had filed his submissions

premised on the original three grounds of appeal filed in the Registry on 13^th September, 2021.

We will disregard the amended Memorandum of Appeal because it was belatedly filed without leave of court. It was smuggled onto the record and is hereby struck off for not conforming with the rules of this Court.

Rule 63(1) of the Judicature (Supreme Court Rules) Directions, provides as follows:

# "The Appellant may at any time, with leave of the court, lodge a supplementary memorandum of appeal."

No leave was sought. No leave was given to file an amended memorandum of appeal. We will therefore proceed with the original three grounds of appeal

At the pre hearing on 14^th September, 2021, the parties were given the following schedule:

Appellant to file and serve written submissions by 21^st September, 2021.

Respondents to file reply to the written submissions by 28^th September, 2021. Rejoinder, if any, to be filed by 1^st October, 2021.

It is very clear that Counsel for the appellant completely ignored the timelines and acted as if there were no timelines issued by the Court. That impunity culminated in the audacity to file an amended

Memorandum of Appeal even beyond the timelines for submission of the Rejoinder.

It being trite that mistakes of Counsel should not be visited on their clients, I will go ahead to consider the submissions of Counsel based on the three grounds of appeal.

#### **GROUNDS 1 AND 2**

Both Counsel agreed to merge grounds 1 and 2 into one ground. The issue that arises from those two grounds can be summarized into whether the Court of Appeal rightly held that the trial judge was right to base his decision on the evidence of PW4 and PW5 and reject the alibi put up by the appellant.

The Justices of Appeal considered the evidence of PW4 and PW5 and believed it. They concluded that the appellant's defence of alibi had been sufficiently controverted as evidenced by the analysis from their judgment below:

"The best evidence against the alibi was by PW5 Fiona, who was the first witness at the scene of crime. "I heard a bad noise which eventually faded away coming from the latrine, I rushed to where the noise was coming from. I found Christine lying down and accused was strangling her. His hands were on her neck. I went towards mum but she could not talk; accused rushed and went away. Christine was struggling to free her neck of the accused hands. She was using her hands. Accused rushed away. He saw me before

## he rushed away. When he left I tried to hold the victim and also talk to her but she did not speak..."

Regarding inconsistencies in the evidence of PW5, their Lordships acknowledged it but immediately addressed it as follows:

"We agree that there were some inconsistencies in the evidence of PW5... This inconsistency is resolved by the evidence of PW4 who stated that by the time she reached, PW5 was already there. This thus means that the inconsistency did not go to the root of destroying that particular piece of evidence."

Suffice to say that their Lordships noted and acknowledged some inconsistencies in the evidence of PW5. They were alive to some inconsistencies in the evidence of PW5. They however did not base their decision only on the evidence of PW5. They relied on the evidence of PW4 to resolve the inconsistencies of PW5 and after evaluation of the evidence of both PW4 and PW5 decided that any inconsistencies cited did not go to the root of the evidence.

Grounds 1 and 2 of this appeal therefore fail.

### **GROUND 3**

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Counsel for the appellant raised the issue of severity of sentence. In reply to this particular issue, Counsel for the respondent rightly pointed out the position of the law as being that severity of sentence cannot be a ground of appeal in a second appeal.

The correct ground of appeal in ground three is the issue of whether the Justices of Appeal took into consideration the time spent on remand by the appellant.

Counsel for the respondent conceded that the learned justices of the Court of Appeal did not take into consideration the time spent on remand. Learned Counsel for the appellant conceded to this issue.

The Court of Appeal decision fell short of the requirement for consideration of the period spent on remand in the judgment as provided for under Article 23(8) and this in itself renders the sentence an illegality.

This, therefore, brings the appellants' appeal within the operation of this court's decision in **Rwabugande Moses vs. Uganda** SCCA No. 25 of 2014 and Nashimolo Paul Kibolo vs. Uganda SCCA No. 46 of 2017), which cases held, inter alia, that court can interfere with the discretion of the sentencing court, only, where the sentence is illegal or the court is satisfied that there was a failure of discretion, or failure to take into account a material consideration or an error in principle.

We would therefore, nullify the sentence imposed by the court of Appeal.

This Court would have to impose a new sentence on the appellant. In so doing, the scope of power of the Court as provided for under section 7 of the Judicature Act is similar to that vested under any written law in a court from the exercise of the original jurisdiction of which the appeal emanated. This position has been reiterated in

cases such as Rwabugande Moses vs. Uganda (supra) and Nashimolo Paul Kibolo vs. Uganda (supra).

We therefore set aside the illegal sentence of 25 years' imprisonment imposed on the appellant.

We have evaluated both the mitigating and aggravating factors including the fact that the appellant was a first offender.

Unfortunately, neither Counsel helped court by establishing the amount of time the appellants spent on remand. Court therefore has had to go the extra mile to establish the actual time spent on remand.

Judgment in the High Court was delivered on 19^th October, 2012 and sentencing was on 24^th October, 2012, according to the record of proceedings.

The available information is that the appellant was remanded on $11$ ^th December, 2010. The time spent on remand was therefore from 11^th December, 2010 to 24^th October, 2012. This adds up to 1 year and 10 months that the appellant spent on remand.

We therefore, find that a sentence of 26 years' imprisonment will be appropriate under the circumstances.

In line with the requirement in the case **Rwabugande Moses vs. Uganda** (supra), we arithmetically deduct the 1 year and 10 months that the appellants spent on remand from the sentence of 26 years.

The appellant will therefore serve a period of 24 years and 2 months' imprisonment running from the date of conviction.

We so order.

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

Hon. Justice Ruby Opio Aweri JUSTICE OF THE SUPREME COURT

In is alemos.

Hon. Justice Prof. Lillian Tibatemwa-Ekirikubinza **JUSTICE OF THE SUPREME COURT**

Hon. Justice Paul Mugamba

### JUSTICE OF THE SUPREME COURT

Hon. Justice Ezekiel Muhanguzi **JUSTICE OF THE SUPREME COURT**

Hon. Justice Mike Chibita

JUSTICE OF THE SUPREME COURT

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Delivered by the Rigistian