[2024] UGCA 182

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

lCoram: Egonda-Ntende, Gashirabake & Kihika, JJAI

## CRIMINAL APPEAL NO. 339 of 2010

(Arising from High Court Criminal Session Case No.042 of 2010 at Mbale)

#### BETWEEN

obbo Francis Aliko:::::: Appellant

#### AND

Uganda:: Respondent

(An appeal against the Judgement ofthe High Court ofUganda [Musota, J] at Mbale delivered on 30t' November 20 l0)

#### JUDGMENT OF THE COURT

#### Introduction

tl I This is an appeal against sentence only. The appellant was indicted of2 counts of the offence of aggravated robbery, contrary to sections 285 and 286 (2) of the Penal Code Act. The particulars of count I were that on 6'h April 2009 at Hamali village in Busia District robbed Pirisi Wekesa of a bicycle, eight chicken and cash Ug Shs 30,000 and immediately before or immediately after the said robbery used deadly weapons to wit, a hoe and sticks on the said Pirisi Wekasa. The particutars of count 2 were that on 6'h April 2009 al Hamali village in Busia District robbed Okoth Stephen of a suit case containing skirt, blouses, two shirts, children wear and a radio and immediately before or immediately after the said robbery used deadly weapons to wit, a hoe and sticks on the said Okoth Stephen. The appellant was convicted ofthe offence of aggravated robbery without specifiing, which count, or both of them; and sentenced to imprisonment for life.

l2l The appellant has appealed against the sentence on the sole ground that,

'That the learned trial judge erred in law and fact when he sentenced the appellant to an ambiguous sentence of life imprisonment.'

- t3l The respondent supported the decision of the court below and opposed the appeal. - t4] The appellant was represented by Ms. Luchivya Faith while the respondent was represented by Ms. Nakafero Fatina, Chief State Attomey, in the Office of the Director of Public Prosecutions. Both Counsel filed written submissions in the matter upon which this court has proceeded to consider this appeal. - t5l The facts were that on 6'r'April 2009, at around l0:30 p.m., the appellant in company of another person, went to the home of Pirisi Wekesa, hit his door open, and entered his house, demanded for money while beating him. They flashed a torch light, and the appellant was identified while assaulting the victim with a hoe and stick. They made off with Ug. Shs 30,000 and I hen. On the same night, they went to the home of Okoth Stephen, hit the door, and entered. The appellant demanded a phone from the victim; assaulted him and robbed a suit case containing clothes and a radio. The appellant was arrested from Busia court, where he had gone to answer other charges. Pirisi Wekesa, was examined and found with multiple wounds on the scalp, and they were classified as grievous harm. - t6] The appellant was charged with 2 counts ofthe offence ofaggravated robbery, contrary to sections 285 and 286 (2) of the Penal Code Act. The trial judge convicted the appellant in an omnibus manner for the offence of aggravated robbery, contrary to sections 285 and 286 (2) of the Penal Code Act and passed an omnibus sentence of imprisonment for life against the appellant.

# Submissions by counsel

t7) Though this appeal was on the sole ground of sentence, it was evident that both the conviction and sentence were omnibus. The trial judge convicted the appellant of aggravated robbery contrary to Sections 285 and 286 (2) of the Penal Code Act without specifying whether the conviction was in respect of count I or 2 or both. We directed the Registrar of the Court to write to counsel for the parties to address us on consequences of omnibus conviction and sentencing. The Registrar wrote a letter to Ms. Luchivya Faith, Counsel for the appellant and Ms. Nakafero Fatina, Chief State Attorney, in the Office of the Director of Public Prosecutions, for the respondent, directing them to make submissions on three questions: whether the conviction of the appellant was omnibus? Whether the sentence imposed by the trial court was omnibus? And if so, what are the consequences? Both Counsel filed written submissions, and this court has proceeded to consider the submissions of counsel.

- Counsel for the appellant contended that the appellant was charged with two [8] offences: simple robbery and aggravated robbery. She submitted that the conviction and sentence imposed against the appellant were omnibus. Relying on Mutatina Godfrey & Mushaija James v. Uganda [2015] UGCA 119 she submitted that the trial judge ought to have been specific on the respective counts while convicting and passing a sentence against the appellant. She prayed that we find both the conviction and sentence imposed against the appellant illegal and set the same aside. - [9] In reply, counsel for the respondent conceded to the fact that conviction of the appellant was omnibus. She contended that the appellant was charged with two counts of aggravated robbery and convicted of one count. Counsel referred to Muligande Zyedi v Uganda [2021] UGCA 1, where this court set aside an omnibus conviction, re-evaluated evidence, convicted the appellant on each count, and passed an appropriate sentence. Counsel prayed that we follow Muligande Zyedi v Uganda (supra). - In the case of a conviction, the law requires the judgment to specify the $[10]$ offence and the section of the written law under which, the accused person is convicted. See section 86 of the Trial on Indictments Act set out below.

'(1) Every judgment delivered under section 85 shall be written by, or reduced to writing under the personal direction and superintendence of, the judge in the language of the court, and shall contain the point or points for determination, the decision on it and the reason for the decision and shall be dated and signed by such presiding judge as on the date on which it is pronounced in open court. $(2)$ For the purposes of subsection $(1)$ , any judgment may be recorded in shorthand or by any mechanical means under the superintendence of the judge and the transcription of it signed by that judge.

$(3)$ In the case of a conviction, the judgment shall specify the offence of which, and the section of the written law under which, the accused person is convicted.

$(4)$ The judgment in the case of a conviction shall be followed by a note of the steps taken by the court prior to sentence and by a note of the sentence passed together with the reasons for the sentence when there are special reasons for passing a particular sentence.

[11] The learned trial judge in his judgment stated,

'The lady and gentleman assessors have advised me to find the accused guilty and convict him as indicted. They in their unanimous opinion found that the prosecution had adduced sufficient evidence to prove the offence against the accused person beyond reasonable doubt. I agree with opinion of the assessors.

Consequently, I will find Obbo Francis Aliko Alias Owori guilty and convict him of aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act.'

- [12] The trial judge convicted the appellant of the offence of aggravated robbery under sections 285 and 286 (2) of the Penal Code Act without specifying whether the conviction was in respect of count 1 or count 2 or both. In effect the learned trial judge failed to specify which of the 2 offences that the appellant was convicted of. This failure is fatal to the conviction. The conviction is therefore set aside. So is the resultant sentence. - In the case of Muligande Zyedi v Uganda [2021] UGCA 1, the appellant was $[13]$ indicted with the offences of murder and simple robbery. The trial judge evaluated evidence in regards to count 1 of murder, disregarded count 2 and convicted the appellant as charged. This court set aside the conviction of the appellant for failure by the trial judge to specify the section and offence

appellant was convicted of. The court proceeded to reconsider the evidence in question and found sufficient evidence to support a conviction on each count as charged. It proceeded to convict the appellant of the offences of murder and simple robbery. It sentenced him afresh.

- This is a first appellate court. We are mindful of our duty as set out in Rule $[14]$ $30(1)$ of the Rules of this court and as was held by the Supreme Court in Kifamunte Henry v Uganda [1998] UGSC 20 and Bogere Moses v Uganda [1998] UGSC 22. We are required to re-evaluate all the evidence that was adduced at the trial and come to our own conclusions on all issues of law and fact. We shall proceed to do so. - The prosecution adduced evidence of PW2, PW3, PW4, and PW5. The $[15]$ appellant gave his evidence on oath and denied the charges. Okoth Stephen (PW2) in his testimony stated that the appellant was his neighbour for about two years. He stated that while in the house sleeping on the night of April 6, 2009, at 10:00 p.m., he heard a bang, and his wife informed him that they had been attacked. He told her to light the candle, and she saw the appellant enter. The appellant went where the candle was and asked him whether PW2 knew him. Fearing for his life, he did not answer. PW2 saw the appellant right to his face and observed that he had a red nest on his head similar to an army cap. The appellant ordered him to sit down and asked for his phone. He told him that he had no phone. The appellant called his friend to get in. The appellant took a suitcase containing clothes of his wife and children and a radio with four dry cells. He stated that the incident took about 40 minutes, and he was able to identify the appellant with the help of the candlelight. He further stated that the attackers had an iron bar and clubs. The witnesses stated that the cap that the appellant had was picked up by PW5 from his door. - Upon cross-examination, PW2 stated that his wife woke him up at 10 p.m. $[16]$ and that they had been attacked. He then woke up and heard a bang. He told his wife to light the candle so he could see the assailants, but the assailant entered and put off the candle. The appellant told his friend to enter, and he entered with a torch. Then he saw the appellant carry the suitcase with the help of the torch light. - [17] He confirmed in re-examination that the appellant's friend entered with the torch, and the torchlight helped him identify the appellant.

- [8] Jackson Pirisi Wekesa (PW3) stated that he was a village mate with the appellant. On April 6,2009, at l0 p.m., he heard a bang on the door, and it fell out. The appellant entered and ordered him to bring out money. He told him, "Obbo, why are you kitling me?" The appellant took the money (Ug Shs. 30,000) while beating him. He assaulted him using an iron bar, broke his hand, and hit his head. He was able to identiff the appellant, who was well known to him, with the help of candlelight. The appellant wore a red vest and was in the company of another person whom he did not identiS. The items taken were a bicycle, a radio, and a hen. - [9] Upon cross-examination, PW3 stated that he was in bed going to sleep at the time of the attack. He had a bible, and the candle was still one. The door was banged and fell out. The appellant was wearing a red vest and had nothing on the head. - [20] No. 22092 D/C Opio Ogobi Nula (PW4) stated that he arrested the appellant at Busia Court, where he had gone to answer other charges. - [21] No.34830 D/C Merera Simon (PW5) stated that he visited the scene of the crime, recovered a club with blood stains, a bible with blood stains, and found a broken door in PW3's home. He also recovered part of the wooden frame from the door shutter. The army cap was admitted in evidence as (Exhibit P4) and the Bible with blood stains (Exhibit P6). - [22] The appellant denied being at the scene ofthe crime on that fateful night and claimed to have been at his home. He admitted the fact that he was residing on the same village with PW2 and PW3, and both witnesses knew him before. - l23l The appellant set up the def'ence of alibi. It is trite law that by setting up the defence of alibi the appellant does not assume the responsibility of proving his defence. There is no burden upon the appellant to prove the alibi. It is the duty ofthe prosecution to demolish the alibi set up by the defence by placing the appellant at the scene of crime. - [24] The testimony of PW2 and PW3 established that theft occurred on the evening in question with the articles specified in the indictment being stolen from their homes with the use of force, save for the number of chicken in count L Only I hen was stolen rather than the 8 stated in the indictment. There is medical evidence to show that the PW2 and PW3 suffered injuries arising out of the use of force against them by the assailants.

- [25] PW2 stated that the incident took about 40 minutes, which was adequate time for the victim to identify the appellant. There was a candle and torchlight, which provided enough light for proper identification. PW3 had prior knowledge of the appellant and was able to identify him. PW2 testified that the appellant was his neighbor for about 2 years. - [26] Both PW2 and PW3 testified that the appellant was wearing a red vest when he robbed them. - The learned trial Judge examined the evidence for and against the appellant $[27]$ under each ingredient of the offence and found that all the ingredients of the offences had been proved. His only error, and a fatal one at that, was the omnibus conviction and sentence. - $[28]$ The prosecution evidence has been cogent and consistent, demolishing the alibi of the appellant and placing him at the scenes of crimes committed in this case. We find that there is sufficient evidence to convict the appellant on both counts of aggravated robbery contrary to Sections 285 and 268 (2) of the Penal Code Act. The appellant is found guilty and convicted of 2 counts of aggravated robbery contrary to sections 285 and 268 (2) of the Penal Code Act as specified in the indictment. - [29] Regarding sentence, pursuant to section 11 of the Judicature Act, we shall pass a new sentence upon the appellant. We note that he is a first offender with no previous record. He was a young offender aged 22 years at the time he committed this offence and has the potential to reform, becoming a useful member of the society. He has 2 young children. Nevertheless, he committed a very serious offence whose maximum punishment is the death penalty. We are satisfied that a sentence of 15 years on each count is the appropriate sentence in this regard from which we shall deduct the period spent on remand.

## Decision

The conviction of the appellant by the trial court is quashed and the sentence $[30]$ set aside. The appellant is convicted of count 1 and count 2 as indicated above. The appropriate sentence is 15 years' imprisonment on count 1; and 15 years' imprisonment on count 2. We deduct the period of 1 year the appellant spent in pre-trial custody from each term. The appellant will serve 14 years'

imprisonment on count l; and 14 years' imprisonment on count 2. The sentences will run concurrently from 30'h November 2010, the date of conviction. In addition, pursuant to section 286 (4) of the Penal Code Act, the appellant is ordered to compensate PW3, the complainant in count l; and PW2, the complainant in count 2; in the sum of Shs.250,000.00 each forthe injuries and loss sustained by each of them, in the course of the robbery.

Dated, signed and delivered tf,i, \q[uy of ²⁰²⁴

de

Justice of Appeal

Christopher Cashiribike

Justice of Appeal

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