[2023] UGCA 294

# THE REPUBLIC OF UGANDA

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

(Coram: B Cheborion, JA, C. Gashirabake, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO. 0556 OF 2014

(Arising from Criminal Session No. HCT-00-CR-CS-170/2013)

#### **BETWEEN**

**OBOTH OTHIENO YOFESI ....................................**

# **AND**

#### UGANDA……………………………………………………………………………………………

(Appeal from the Judgment of the High Court of Uganda Holden at Moroto, by Henry I Kawesa, J. delivered on $11^th$ June 2014) 15

#### JUDGMENT OF COURT

#### **Introduction**

- 1.] The appellant was charged with one count of aggravated defilement contrary to sections 129 $(3)$ and $(4)$ of the Penal Code Act. - 2.] The facts are that in the month of February 2012 the victim AH, was going to her sister's home in Ngeta "B" Lyolwa, Tororo district, she stopped near a grinding mill as she waited for the sister. The appellant approached the victim and offered to take her to the sister. The appellant walked with the victim up to a swamp called Poyawo and then forcefully performed a sexual act on the victim who was then aged 11 years. The victim ran to PW3 and PW4's home for assistance and narrated her ordeal. Meanwhile, the victim was bleeding from her private parts and they gave her food and a bed since it was at night. The victim described the appellant and he was arrested prosecuted, convicted, and sentenced to 20 years' imprisonment.

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- ⁵ 3.1 The appellant being aggrieved with the decision of the High Court lodged an appeal in this Court. The appeal is premised on three grounds set out in the Memorandum of Appeal as follows; - 1. 'l'he learned trial Judge erred in law ond J-act when he convicted the appellant on the unreliable evidence of a single identifying v,il ne ss. - 2. 'l'he learned trial ,ludge erred in law and.fitct when he.failed to properly evaluale lhc evidence on lhe Court record. - 3. 1'he learned lrial Judge eted when he sentenced the appellant to an illegal sentence u,ilhout laking in!o occount the prelrial remand period.

#### Rcrrrescntation

4.1 At thc hearing of the appeal, thc appellant was rcpresented by Mr. Iiddie Nangulu. '[he respondent was rcpresented by Ms. Caroline Marion Acio, Chief State Attomey.

# 20 (i rou nd onc

Thc lcarncd trial Judgc crrcd in law and fact whcn hc convicted the appellant on thc unrcliablc cvidencc of a singlc identifying witness.

## Submissions for thc appdlan!

- 5.] According to counsel lor the appellant, thc other ingredients of the offence ol aggravatcd defilcment arc not in dispute, what is in dispute is the participation of the appellant. It was submitted that the appellant can only be convicted on the strength olthe prosecution case and not the weakness olhis del'ence. (See, Sckitoleko vs. Uganda, SCCA No.33 of 2014) - 6.] It was submitted that the trial Judge convictcd thc appellants purely upon ^a singlc identifying witness while revicwing the evidence of the single

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⁵ idcntilying witncss, thc trial Judge rcl'errcd to Abdullah Nabulerc vs. Uganda, I979 HCB 17, Abudalla llin Wendo & Another vs. R, (1953) 20, EACA 166 and Wasajja vs. Uganda, [975] E. A l8l, which counsel lbr thc appcllant cited in his submissions.

- 7.] In his view, counsel fbr thc appellant, argued that the evidence was not sufficient to implicate the appellant ol aggravated defilement. -l-he circumstances werc not lavorable lbr propcr idcntification, in that the victim was not familiar with the appcllant. I le submittcd that thc victim was not able to identify her assailant.'fhat according to the record ofproceedings, thc victim stated that she idcntified the appcllant aller he had becn shown to her. - 8.] Counsel furlher argued that according to the cvidencc ol PW2, when they asked the victim to idcntifu the appellant lrom a crowd that was at his compound, she said thcre wcre nonc ol thcm. 'l'his was corroborated by the evidencc of PW3 who tcstificd that when the victirn was askcd to identily the appellant out of the crowd, shc said hc was not among them yct, hc was there. ^IIe funhcr submiltcd that PW5 wcnt againsl the rules ol- thc idcntification paradc. Counsel citcd Sgt. Baluku Samuel & anor vs. Uganda SCCA 2l OF 2014, which taid down thc procedure of conducting an idcntiflcation paradc, which the police allegedly faultcd. 15 20 - 9.1 1'he appcllant dcnicd having dcfilcd thc victim. It was submittcd that the prosecution failcd to discharge its burdcn olproof to thc required standard oI proof and having so l'ailcd, counsel insisted that the leamed trial Judge errcd in law and fact whcn he convictcd thc appcllant without sulficicnt evidcnce on thc Court rccord.

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### ⁵ Submissions for thc rcspondcnt.

- 10.] 'fhc respondent submitted that the trial Judge correctly evaluated the evidcnce on record, applied the law relating to a single identif,ing witness, and arrived at a correct/proper decision. Counsel submitted that counsel for the appellant failed to apply the law to the facts. Counsel cited Abdulla Bin Wendo & Anor vs. R (1953)20 EACA 166 and Abdalla Nabulere & Anor vs. Uganda [970] HCB 77. - ^Il.] lt was argued that the conditions werc fbvourable for proper idcntification. Counsel citcd the victim's tcstimony lestifuing that; - '' .... I know lhe uccused. I wu"'going to my sister's placc. I stopltcd al lhc grinding mill v,aiting./br my.\i.\tcr. lt y,tts 6:00 pm...... he came and toltl me he kney, my sistar's place and he could lake me there. Accused moved v,ilh ma up lo lhe swamp ol Palov)o lhen he slarled .struggling v'ilh me. I Ie bored m), neck und threalened to stab me \$'ilh a knifb............. We slruggled ./br a long, he overpowered me und raped me. lle hud scxual intercourse \$'ilh me..- I told the I'olice that I knev, lhe uccuscd.'l'he accused wus hrought, he was the very person huving thc vcry cksthcs hc put on. I clascribed him a,s a man with thrk skin, wilh a red hul, an operulor o/ u grinding mill. He v,as lhe one operaling. " - 12.l lt was submitted that liom thc victim's tcstimony, all thc conditions that favour positive identification existed. The victim met the appellant at 6:00 p.m. when there was still sulficient light lor proper identification, the two interactcd lrom a very close range and lbr a vcry long time.'l'he conditions enabled the victim to identify the appellant both by appearance and dress code. 30 25 - l3.l Additionally, it was submitted that therc was coroborative evidencc to pin the appellant. Counsel citcd Rwalinda John vs. Uganda, SCCA, No. 03

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⁵ of 2015, which dellned corroboration as independent evidence, counsel submitted that PW4's testimony corroborated the evidence of the victim. PW4 testified and stated that;

> "l know the uccused vle wera operuting the grinding mill. llc sau' u child who came, uccusad gate her lo sit. 'l'he accused told the child u,here you are going. I.hey talked. the child said, um lost I.failed to get on lhe road lo my home and my sisler lold mc lo u,ait at Mailo 10.'l'hat she u,ould get her there. Accused told her to sil, al about 6:00 pm when we closed the mill. I stopped /closed. I le./i lhem there and I went and I cktscd the mill. I le./i lhem there and I u'enl to my place called Centre I'ole . I'his u,tts at 6:00. "

14.) 'l'his evidcnce corroborates the victim's testimony regarding meeting the appellant at the grinding mill.'l-his also confirms that thc appellant and the victim mct at the grinding mill at around 6:00 p.m. It was submitted that the evidence of PW3 and PW6 olfered corroborative cvidence as well.

15.] On the issue of the identification parade, counscl for the rcspondent submitted that it was not necessary since the appellant was clearly identified by the victim. Counsel submitted that the casc of Samuel and another vs. Uganda, (Supra)cited by counsel for the appellant was not applicable in the circumstances.

# 2s Consideration of Court

l.lAccording to Rulc 30(lXa) of thc Judicaturc (Court of Appcal Rules) Dircctions S. I l3-10 and Sellc & anothcr v Associatcd Motor lloat Co. Ltd.& others, (1968) E. A 123,'l'his Appcllatc Court is mandatcd to rcevaluate thc evidcnce belorc the trial court as wcll as thc judgment and arrivc at its own independent judgmcnt on whether or not to allow thc appcal. A first appcllatc court is cmpowcred 10 subjcct thc wholc ol- thc cvidcncc to

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lrcsh and exhaustivc scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity to see and hear the witnesses firsthand. 'Ihis duty was stated in Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. l0 of 1997 . ll was held that a first appellate Court has thc duty to review the evidence olthc case and reconsider the materials before thc trial Judgc. 'l'he appellate Court must then make up its own mind not disregarding the judgment appealcd from but carefully weighing and considering it. When the question arises as to which witness should be believed rathcr than anothcr and that question turns on the manner and demeanor of the appellatc, the Court must be guided by the impressions made on the judgc who saw the witnesses. I lowever, there may be other circumstances quite apart lrom manner and demeanor, which may show whether a statement is crediblc or not which may warrant a court differing from thc Judgc evcn on a question of lact turning on the credibility of thc witncss which the appellatc Courl has not seen. Sec Pandva vs. R. (1957) 8. A.336.

16.] As we re-cvaluate thc evidence on record we bcar in mind the burden ofprooland standard ofproofrequired in all Criminal cases. The burden of proof is on the prosecution to prove all the ingrcdients of the offence. The burdcn nevcr shifts exccpt in some cxccptional cases set down by law. (See: Woolmington versus DPP [935] AC 322.) 'l'his is provided for in the Constitution under Article 28(3) which provides that an accused person is prcsumed innocent until provcn guilty or othcrwisc pleads guilty. It is not for the accused to prove his innocence; he only needs to call evidence that may raise doubt about his guilt in the mind of the court. Any doubt in the prosccution case has to bc resolved in lavour ol the accused person (Sec,

Obwatatum Francis vs. Uganda, Suprcme Court Criminal Appeal \*r. M

6lr'.i1:r +, (M 3'

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**030 of 2015**). The prosecution must prove all the ingredients of the offence. See Sekitoleko vs. Uganda [1967] E. A 531.

- $17.1$ **Section 101 (2) of the Evidence Act provides that;** "*When a person is bound to prove the existence of any fact, it is said* that the burden of proof lies on that person." - $18.]$ Additionally, **Section 103 of the Evidence Act** that; "The burden of proof as to any particular fact lies on that person who wishes the Court to believe its existence unless it is provided by law that the proof of that fact lies on any particular person." - $19.1$ The prosecution evidence should be of such standard as to leave no other logical explanation to be derived apart from the fact that the accused committed the offence. It was further held that the standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent (See: Miller versus Minister of Pensions [1947] 2 ALL E. R. 372) - $20.1$ Both counsel for the appellant and the respondent rightly stated the law 20 relating to single identifying witnesses. As rightly stated, the Court can convict on such evidence after warning itself and the assessors of the special need for caution before convicting based on the reliance on the correctness of the identification. The reason for the special need for caution is that there is a possibility that the witness might be mistaken. (See: Christopher Bagonza 25 versus Uganda, Crim. Appeal No. 25 of 1997 and Abdala Nabulere & Another versus Uganda, Crim. Appeal No. 9 of 1978). In John Katuramu versus Uganda, Criminal Appeal No. 2 of 1998 it was held that;

"The legal position is that the court can convict on the basis of evidence" of a single identifying witness alone. However, the court should warn itself of the danger of the possibility of mistaken identity in such cases. This is particularly important where there are factors that present

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difficulties for identification at the material time. The court must in every such case examine the testimony of the single witness with the greatest care and where possible look for corroborating or other supportive evidence. If after warning itself and scrutinizing the evidence the court finds no corroboration for the identification evidence, it can still convict *if it is sure that there is no mistaken identity.*"

$21.]$ The test of correct identification was explicitly outlined in **Abdala**

**Nabulere & another versus Uganda, 1979 HCB 77, as follows;**

"The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting, and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good then the danger of mistaken identity is *reduced, the poorer the quality the greater the danger.*"

$22.1$ In order to prove the participation of the appellant the prosecution led evidence of different witnesses. PW1 testified that on the 11^th of February 2012, when she was going to her sister, Acheing Baker, she stopped at the grinding mill. While there, the appellant came and asked her what she was doing around. She explained herself and the appellant promised to take her to the sister's place because he knew the place. This fact was corroborated by PW4, who testified that on that day he was operating the mill, he saw a young girl who came to the grinding mill. He said the appellant gave the girl a chair to sit on. PW4, further testified that when it clocked 6 p.m., he shut down the grinding mill and left the appellant with the victim. This evidence passes the test of proper identification. It was 6 p.m. still broad daylight, they had ample time to talk at close range. The space looked safe space for the girl not to worry about any threat of danger. This free environment enabled her to identify the appellant

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- ⁵ 23.1 Furthermore, the description of the place and the appellant was more authentic so as to put the appellant at the scene of the crime. '['here was only one grinding mill at mile 10.'fhe grinding mill had two men, but the appellant was described as"tall a bit, darkish, he had a stripped /checked cloth ........ with a red cap. " I Ie perfectly fit the said description since the victim had the opportunity to sec both ofthcm and kncw that her assailant was taller than PW4. This was corroborated by PW5, who testified that when they went to the grinding mill, there were only two men, one short and the other tall. The tall happened to be the appcllant. -l'he red cap and sweater were recovercd from the grinding mill where the appellant works. - 24.) Considering the evidence as a whole there was no mistaken identity. The appellant and the victim had time to interact before the incident happened. They walkcd 500 mcters to the swamp. l.he victim trusted the appellant would takc her to her sister and all this time was enough to have proper identification. Additionally, there was corroboration lrom PW4, PW5 and PW6. The prosecution cvidencc was consistcnt throughout thc hearing. The failure to conduct a parade was not fatal because an identification parade is not necessary where the conditions favoring good identification exist like in this case. 15 20

25.) We agree with thc trial Judge that the conspiracy theory could not stand considering the evidence on record. 1'hc appellant had not workcd at the grinding mill for a long time lor him to allcgc that there was a bad working relationship between him, PW4, and the boss as wcll. 'fhe corroborativc evidence was too strong to disregard the appellant's guilt. It lcavcs no doubt in our minds that thc appellant was the assailant in this case. 'Ihere was thereibre proper identification by thc victim.

- 26.1 This ground fails. - 9lPage

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Thc learncd trial . Iudgc crrcd in law and fact whcn hc failed to propcrly evaluatc the evidcncc on the Court rccord,

27.1 'l-his ground was abandoncd.

# (iround ³

### Thc learncd trial .ludgc crred whcn he scntenccd thc appcllant to an illcgal sentcncc without taking into account thc prc-trial rcmand period. 10

### Submissions f<r r thc arrrlcllant

- 28.1 lt was submitted that according to Article 23(8) oi the Constitution while scntencing the trial Judge must take into consideration the time spent on remand. Counsel cited Attorney General vs. Suzan Kigula & others Constitutional Pctition Appcal No. 3 of 2006 and Abaasa Johnson and Anor vs. Uganda, Supreme Court Criminal Appeal No.54 of 2016, in thc latter case the Supreme Court held that the omission to consider the pretrial rcmand is fatal to the extcnt it rendcrs thc scntence illegal. - 29.1 It was submittcd that during the sentcncing, it was highlighted that the appellant had been on remand since 2012 but the trial Judge did not take this into consideration. This was contrary to principle l5 ol the sentencing guidelincs. It was furthcr argucd that according to thc case o[ Kakeeto Joseph vs. Uganda CACA No. 370 of 2019, it is a requirement for the Courl to arithmetically deduct the time spent on remand. It is not enough 6'r the trial Judge to acknowlcdge the timc spcnt on remand. 20 25

## Submissions for the resrrondent

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- 5 30.] Counsel for the respondent conceded as far as the learned trial Judge did not take into considcration the period the appellant spcnt on remand as dictated by Articlc 23 (8) of thc Constitution of thc I{epublic of Uganda, 1995. - 3l.l It was also submitted that the sentencing regime then only required the trial Judge to take into consideration the period spent on remand and no arithmetic deduction was required as stated in Rwabugande Moses VS. Uganda, Criminal Appeal No.25 of 2014. - 32.) Counsel prayed that this Court exerciscs its power vested in it by section l1 of the Judicaturc Act to enhance the sentence to 30 years.

#### 15 Consideration of Court

33.] 'l'he Supreme Court has laid down the principlcs upon which an appellate Court should interlere with the sentcncing discretion olthe trial Court, in Kyalimpa Edward vs. Uganda; Supreme Court Criminal Appcal No.l0 of 1995, the Court rclicd on R vs. Haviland (1983) 5 Cr. App. R(s) 109 and held that:

> "ln appropriate sentence is d matter .for the discretion oJ the sentencing judge. liach case presents its own Jacts upon which ct judge exercises his discretion. It is the practice that a,; an appellate court, lhis court v,ill nol normally interfere with the discretion oflhe sentenc ing.iudge unless the senlence is illegal or unless the court is satisfied that the sentence imposed by the trial judge was manifeslly so excessive as lo amounl lo an iniuslice: Ogalo s/o Owoura vl;. R ( l95J) 2 I li.1. C. A I 26 and R vs. MOIlAMliDll.l J/lMAL ( 1948) I ⁵ L./. C. A 126."

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#### $34.$ In Kiwalabye vs. Uganda, Supreme Court Criminal Appeal N0.143 of 2001 it was held:

"The appellate court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentences unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence."

$35.]$ While sentencing the trial Judge held that;

> "The Offence is grave and rampant. The accused is the first offender. Need for deterrence, rehabilitation of convict, and reform of convict. Given mitigation Court sentences him to 20 *years of imprisonment to achieve the above effect.* I so order."

$36.1$ From the above quotation, it is evident that the trial Judge did not consider the mandatory requirement under Article $23(8)$ of the Constitution.

It is a mandatory requirement that the Court while sentencing must comply with Article $23(8)$ of the Constitution. Failure to adhere to this provision renders the sentence illegal. We therefore declare that the sentence of 20 years is illegal.

Having found that the sentence of 20 years is illegal this appellate Court 37.1 can interfere with the discretion exercised by the trial Court since it appears that while assessing the sentence the Judge did not consider Article 23(8) of the Constitution. (see R VS. Mohamed Jamal, 1949 15 EACA). We therefore set aside the sentence. We invoke the powers of this Court in section 11 of the Judicature Act which provides that;

> "For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority, and

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iurisdiction ve,sted under any u,rillen law in the courl .front lhe exercise o.[thc original.iurisdiction ofwhich the oppeal originally enrunoled. "

- 38.] On aggravating factors, we noted that the offencc of aggravated defilement carries a maximum penalty of dcath. Such cases are rampant. the victim was too young and was seriously injured by thc assailant. She sought guidance from the appellant who instead injured her. I.lowever, in mitigation, the appellant is a first-time offender, has been on remand for 2 years, and has a family of young children. - 39.] In Byera Denis vs. Uganda, Court of Appeal Criminal Appeal No. 99 of 20l2,this Court substituted a scntence ol30 ycars' imprisonment with one of 20 years' imprisonment it considcrcd appropriate in a case ol aggravated dcfi lement. - 40.1 In Anguyo vs. Ugandao Court of Appcal Criminal Appcal No. ⁰³⁰ of 2014., where Court found the scntencc ol 25 ycars appropriatc for the offence of aggravatcd defilement. - 4l .] Taking into consideration the sentencing range cited above, and the aggravating and mitigation factors, we are convinccd that fbr thc ends ol justice to be achicved, a sentence of 20 years is appropriate in the circumstances of this case. We deduct the 2 years spent in lawful custody. The appellant will therefore serve l8 years' imprisonment lrom the date ol conviction which is lll ⁰⁶12014. - 42.) This ground succeeds - 43.) Consequently, the appeal partially succccds.

## Wc so Ordcr

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Dated at Kampala this.. . 2023 day of

**CHEBORION BARISHAKI**

**JUSTICE OF APPEAL**

**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

OSCARJOHN KHIKA **JUSTICE OF APPEAL**

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