[2024] UGSC 26

## THE REPIJBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

( C o r a m: O zo i ny -D o I ^Io, Cl ; Mw o n dh a ; T ib a t e mut a-Ekirikub in z a; Tuhaise; Chibita; II. S. C)

## CRIMINAL APPEAL NO. 41 OF 2018

1. Ochola Oboi Ignatius

2. Muyama Florence

3. Odongo foseph

4. Omoding Charles..... ..... Appellants

#### VERSUS

Uganda Respondent

(Appeal from the decision of tlrc Court of Appeal of Uganda before Kasule, Clrcboion, and Obura, JIA in Crinrinal Appeal No. 44 of 2011 deliuercd on 27th March,20'18).

# ]udgment of the Court

This is the second appeal filed by the Appellants, namely Ochola Oboi, (the first Appellant who was ,A.1 at trial), Muyama Florence (the second Appellant who was A2 at trial), Odongo Joseph (the third Appellant who was A3 at trial), and Omoding Charles (the fourth Appellant who was A'4 at trial), following the dismissal of their first appeal by Court of Appeal.

### Background

On the 3'd of March 2009 at Market Street in Kumi District, a shop owned by Demesh Patel was robbed. The assailants stole Uganda shillings 3,000,000/= (three million) from the shop. One of the assailants had a gun which was fired as the assailants exited the shop and rode off on

motorcycles. Police investigations Ied to the arrest of the four Appellants as the perpetrators of the crime. The Appellants were indicted on one count of robbery contrary to Sections 285 and 286 (2) of the Penal Code Act (cap 120). The Appellants were kied by the High Court holden at Kumi under Criminal Session Case No. 38 of 2009. With regard to participation, the trial court found that though the first Appellant (Ochola Oboi Ignatius) was not present at the time of the robbery, his home was used to plan the robbery, and he hosted the robbers at his home the night before the robbery. Uganda shillings 900,000 / = (nine hundred thousand) was recovered from his home which he could not explain, and he led the police to the home of ,A3 Odongo Joseph (the third Appellant) where ^a gun was recovered. The second Appellant (Muyama Florence) was an employee in the shop. She helped the others plan the robbery and was present in the shop when the robbery occurred. The third Appellant (Odongo Joseph) was the one carrying the gun which he displayed during the robbery. The fourth Appellant (Omoding Charles) demanded for the money during the robbery, slapped Mrs. Patel, and took three million Uganda shillings from the shop.

All the Appellants were convicted and, on 15th January, 2011, each was sentenced to 50 years' imprisonment. The Appellants appealed to the Court of Appeal against the conviction and the sentence ttide Criminal Appeal No. 44 of 2011. The first appellate court upheld the conviction, but it set aside the sentence of 50 years' imprisonment for being illegal, on its finding that the period the Appellants had spent on remand was not considered by the trial court. The first appellate court substituted the sentence of 50 years' imprisonment with a sentence of 25 years' imprisonment against each of the Appellants.

The Appellants were aggrievecl with the decision of the Court of Appeal and filed this appeal, on the following grounds:-

- 1. The learned ]ustices of the Court of Appeal erred in law and fact when they failed to re-evaluate the evidence on record and as a result, they came to a wrong conclusion. - 2. The learned ]ustices of the Court of Appeal erred in law and fact when they failed to identify the grave inconsistences and contradictions on record thereby coming to a wrong conclusion. - 3. The learned ]ustices of the Court of Appeal erred in law and fact when they relied on the 3\*1 Appellant's repudiated charge and caution statement and the plain statement recorded from the 1.t Appellant by the arresting officer thereby wrongly convicting the appellants. - 4. The learned Justices of the Court of Appeal erred in law and fact when they failed to consider the 4th Appellant's strong alibi thereby occasioning a miscarriage of justice to the Appellants. - 5. The learned Justices of the Court of Appeal erred in law and fact when they imposed illegal and manifestly excessive sentence of 25 years against A.'1, 4.2, A.3 and A.4.

The Appellants pray that the appeal is allowed, and that the illegal, harsh and excessive sentences of 25 years' imprisonment be set aside, or substituted with lesser prison terms.

### Representation

At the hearing of this appeal, the Appellants were represented by Mr. Emmanuel Muwonge, learned Counsel, while Ms. Ainebyoona

Happiness, Chief State Attorney holding brief for Ms. Tumushabe Joanita, represented the Respondent.

## Appellants' Submissions

On grounds 7 and,2, the Appellants' counsel referred this Court to the Court of Appeal judgment at page 57 of the record of appeal and submitted that, while the learned Justices of Appeal set out the law and recognized their duty as the first appellate court, the said court did not exhaustively carry out their duty as set out by the law in Rule 30 (1) of the fudicature (Court of Appeal Rules) Directions SI, 13-10, and in the Supreme Court cases of Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997 and Bogere Moses & Another Vs Uganda Supreme Court, Criminal Appeal No. 1 of 1992 that this consequently led to a miscarriage of justice.

Counsel also submitted that the prosecution evidence which the trial |udge and the Court of Appeal relied on to convict the Appellants was full of contradictions plus glaring and grave inconsistences which went to the root of the case. He relied on the case of Oketcho Alfred Vs Uganda, Supreme Court Criminal Appeal No. 24 of 2O07, where this Court observed that inconsistencies or contradictions in the prosecution evidence which are major and go to the root of the case must be resolved in favor of the accused; that, however, where the inconsistences or contradictions are minor, they should be ignored if they do not affect the main substance of the prosecution's case, save where there is a perception that they were deliberate untruths.

Counsel submitted that the robbery is alleged to have taken place in the morning; that PW4 testified that the robbery took place at 7.30 in the morning for a duration of 10 minutes only; and that, however, PW2 who was at the shop stated that the robbery was for a duration of 30 minutes only.

Regarding to the evidence of the identification of the Appellants at scene of crime, learned Counsel submitted that PW3 did not identify the assailants who were harassing PW4 as being among the four Appellants, that PW3 testified that the person who was harassing PW4 was not in court. Counsel submitted that the courts have taken note of the dock identificarion by PW4 of the third Appellant, a practice not allowed in identification.

Learned Counsel referred this Court to page 59 of the record of appeal and submitted that, although the first appellate court took cognizance of and mentioned the rules laic{ out in Abdala Nabulere & Another Vs Uganda, Court of Appeal Criminal Appeal No. 9 of 7978, the Court did not put the principles laid in the Nabulere case in practice; that although this incident took place in broad day light at7:30 am, as stated by PW4, it was very fast and, because of fear and the fact that the would-be witnesses were bundled in the room and the Appellants had head gear, the circumstances made identification of the attackers very difficult. Counsel further submitted that the contradictions and inconsistences were very major as they went the to the root of the case; and that if the Court of Appeal had exhaustively carried out its duty, it would have given the Appellants a benefit of doubt and acquitted them.

In reply, learned Counsel for the Respondent submitted that the Appellants rightly conceded in their arguments that the learned Justices of Appeal were alive to their duty as a first appellate court to re-appraise

the evidence and come up with their own conclusion. He also submitted that the learnecl Justices of Appeal were alive to the law regarding inconsistencies and contradictions, as shown on page 58 of the record of appeal, where they cited the Supreme Court decisions of Oketcho Alfred Vs Uganda, Supreme Court Criminal Appeal No. 24 of 2001, and Serapio Tinkamalirwe Vs Uganda, Supreme Court Criminal Appeal No. 27 of 1989, among others.

Counsel referred this Court to pages 57,59,60 and 61 of the record of appeal and submitted that the learned Justices of Appeal did nothing other than to review the various pieces of prosecution evidence, before coming to the conclusion that the inconsistencies therein were minor and did not go to the root of the prosecution case. According to Counsel, the Iearned ]ustices of Appeal found no contradiction about the time when the robbery took place and its duration, and they based on different pieces of evidence to explain away the alleged contradiction about the identification; that they distinguished the case of Emmanuel Nsubuga Vs Uganda, Supreme Court Criminal Appeal No.16 of 1988 which had been relied on by the Appellants' counsel and found that PW4 had correctly identified her assailants.

Counsel further submitted that the learned Justices of Appeal properly reevaluated the evidence relating to the contradictions cited by the Appellants'counsel and correctly found that they were minor and did not go to the root of this case.

On ground 3, the Appellants' counsel, in his submissions, faulted the learned trial Judge for convicting them largely based on the repudiated confession of the third Appellant and the oral confession of the first Appellant to the arresting and the Investigation Officer (IO), which

evidence, according to Counsel, was supposed to be inadmissible in law. He submitted that the approach adopted by the trial court in accepting the repudiated charge and caution statement, which was accepted by the first appellate court was irregular and not allowed in law. According to Counsel, the burden was shifted on the Appellant to prove that the statement was obtained voluntarily. Counsel submitted that the first appellate court tried to explain itself and justify the approach taken to admit the repudiated charge and caution statement obtained from the third Appellant, but such approach was wrong. Counsel accordingly requested this Court to hold in favor of the Appellants on that aspect.

Counsel also submitted that it is clear that, at the Cou:t of Appeal, prosecution conceded that the proper procedure was not strictly followed by the trial Judge. It was Counsel's submission that the irregularities were very grave and denied the third Appellant a chance to test the repudiated charge and caution statement by cross examining the officer who alleged to have recorded it during the proper trial within a trial; that failure to do so greatly prejudiced the Appellants; and that it was also irregular for the court to use the evidence from the main trial to find that the repudiated charge and caution statement had been voluntarily procured from the third Appellant.

Counsel cited the case of Connelly Vs Director of Public Prosecutions (41 ll9@l2 ALL ER at p. tl4Q when comparing the rule of practice with the rule of law, that:-

" A rule of practice is in my opinion dffirent. lNlrcn declared try a court of competent jurisdiction, the rule ruust be follorued until that Court or ^a higher Court declares it to be obsolete or bnd or until it is altered by statute."

Counsel submitted that this is a proper and fitting case for this Court to declare the practice adopted by the trial court obsolete, since the first appellate court failed to carry out its duty.

It was also submitted by the Appellants' Counsel that the trial court and the first appellate court irregularly and unlawfully relied on the plain statement recorded from the first Appellant by the Arresting Officer and the Army Officers, in total disregard of the law and the provisions of the Police (Evidence to Police) Officers Act (could have meant the Evidence (Statements to Police Officers) Rules SI 6 - 1 made under the Evidence Act), which requires that charge and caution statements should be recorded by Police officers at the rank of D/AIP and above, and that the Investigating Officer (IO) should not record a charge and caution statement. Accordingly, the Appellants' counsel concluded that the failure by the first appellate court to carry out its duty as provided by law and failing to investigate the said two statements greatly prejudiced the Appellants, and that this should be held in their favor.

In reply, learned Counsel for the Respondents referred this Court to page 65 of the record of appeal and submitted that, the learned Justices of Appeal analyzed the evidence adduced during the trial within a trial where all the Appellants were implicated, and they concluded that although the approach used by the trial Judge was irregular, the law relating to procedural irregularities in conducting a trial within a trial is that where no prejudice to the appellant is shown, usually the conviction is Ieft to stand. She also submitted that the learned Justices of Appeal went on to find that apart from the repudiated charge and caution statement, there were other pieces of evidence that the trial Judge relied on to convict the Appellants. To support this, Counsel referred this Court to the record

of appeal at page 64, paragraph 4, where the learned Justices of Appeal identified the other pieces of evidence, that:-

"Both PW2 and PW4 70ere eyc ruitnesses zoln smo tlrc appellnnts as tluy entered tlrc shop. PWS nlso testifed tlmt tlrcy recottered a gun and sctntc items f'roru tlrc 1,t appellont's house. Tle prosecution etidence placed tlrc appellnnts at tlrc scene of crimc artd are consistent ruith the corttent of tlrc clnrge and caution stntenent regarding lntp tlrc robbery uas executed zuliclr only points to tlrc truthfulness of tlrc appellant's confession,"

Counsel accordingly submitted that the learned Justices of Appeal were alive to the irregularities in the procedure followed by the trial Judge in carrying out the trial within a trial, and they rightly came to the conclusion that there was no miscarriage of justice since there were other pieces of the prosecution evidence that implicated the Appellants.

Regarding the first Appellant's statement made to the IO (PWs), Counsel submitted that the law is clear under section 9 of the Evidence Act (cap 6), that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of those persons in reference to their common intention, after the time when that intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy, and for the purpose of showing that any such person was a party to it.

Counsel referred this Court to the evidence of PW5 on page 84 of the record of appeal, that when they arrested the first Appellant, he identified A2 (now second Appellant) and A3 (now third Appellant) among the robbers, and also offered to cooperate and lead the police to the place where the gun was kept. He submitted that, that is how the gun was recovered in a bag of cement at the home of the third Appellant; that the admissions made to PW5 by the first Appellant therefore amounted to information leading to discovery of facts, covered under Section 29 of the Evidence Act, and was not a confession. According to Counsel, the prosecution had a duty to, and did prove, the existence of a conspiracy, and that the second and third Appellants were party to it, and the first appellate court rightly considered the conspiracy as proved against the appellants.

Counsel referred this Court to page 66 of the record of appeal, where the first appellate court noted that during cross examination, the first Appellant conceded that he signed the statement which was then tendered in as a prosecution exhibit PE9; that although the plain statement was not relied on by the trial Judge in arriving at the conclusion of the Appellants' guilt, it forms part of the prosecution evidence that implicated the Appellants.

On ground 4, Counsel for the Appellants submitted that the trial Judge and the first appellate court misdirected themselves when they rejected the fourth Appellant's strong nlibi and instead relied on evidence from an improperly conducted identification parade and a report which was not backed by any evidence. He submitted that Swaibu Makuzi who is alleged to have carried out the identification paracle was never producecl in court by the prosecution to testify. The same court also concedecl that there was no record of the testimony of Swaibu Makuzi on the court record, yet it relied on his report to convict the Appellants.

In reply, Counsel for the Respondent submitted that it is not true that the first appellate court failed in its duty of evaluating the evidence relating to the defence of nlibi raised by the fourth Appellant. According to Counsel, the court did evaluate the said evidence in its judgment, and came to the conclusion that the fourth Appellant was positively identified by PW4 and was placed at the scene of crime, as a result of which, his alibi could not stand. Counsel further submitted that the identification parade was not conducted by Swaibu as indicated in the appellants' submissions, but by PW6 and the identification report, tendered in evidence as Exhibit P6, where the fourth Appellant was positively identified by an eye witness. Counsel concluded that the fourth Appellant's n/ibi could not therefore stand, because it had been conclusively destroyed by the prosecution evidence.

Regarding ground 5 on sentence, Counsel for the Appellants submitted that the first appellate court did not take into consideration the mitigation of the Appellants, that is, the fact that they were all first offenders, the offence did not involve any actual violence or bloodshed, and the fact that the Appellants had spent about 2 years on remand. Counsel submitted that submitted that the sentence of 22 years and 4 months in prison commencing from 22/1,2/ 2016 against the first and second Appellants was illegal, manifestly excessive and harsh in the circumstances. He relied on the case of Tigo Steven Vs Uganda, Supreme Court Criminal Appeal No. 8/2009 where this Court found that the sentence of life imprisonment and 20 years' imprisonment were among the most severe sentences in the criminal books. Counsel also relied on Article 23 (8) of the ¹⁹⁹⁵ Constitution of the Republic of Uganda; and on the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014 where this Court held that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with the mandatory constitutional provision.

In reply Counsel for the Respondent submitted that a clear review of the judgment of the first appellate court reveals that the issue of sentence was exhaustively discussed by the learned lustices of Appeal on pages 66,67 and 58 of the record of appeal; that the learned Justices of Appeal faulted the trial ]udge for not taking into account the period spent on remand by the Appellants and accordingly set aside the sentence of 50 years' imprisonmen! that they then invoked Section 11 of the Judicature Act, having considered the aggravating factors and mitigating factors for each of the Appellants, the time the Appellants had spent on remand, as well as the need for maintaining consistency in sentencing. Counsel concluded that, given the foregoing, it is erroneous of the Appellants to claim that the leamed Justices of Appeal did not take into consideration the Appellants' mitigation factors and the period spent on remand.

Counsel further submitted that it is also not true that the first and second Appellants were sentenced to imprisonment for 22 years and 4 months commencing from 22/1,2/2016; that the sentence of 25 years' imprisonment passed by the learned Justices of Appeal against the Appellants to be served from the date of conviction, which is "15 / 01 / 201"1, was legal; and that it was neither harsh nor excessive.

## Consideration by the Court

This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed Iaw and 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 in Rule 30 (1) of the Judicature (Supreme Court Rules) Directions SI 13-10 (herein referred to as "Rules of this Court"), and in Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 7997. Accordingly, guided by the above legal principle, this Court will only interfere with the 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.

In ground 7 and 2, the Appellants claim that the learned Justices of Appeal failed to properly re-evaluate the evidence and arrived at a wrong decision, which occasioned them a miscarriage of justice. They also contend that although the first appellate court was aware of its duty, it failed to exhaustively evaluate the contradictions and inconsistencies in the prosecution evidence and thus arrived at a wrong decision that occasioned them a miscarriage of justice.

This Court, in the case of Kifamunte Henry Vs Uganda, l.supra) stated that:-

" Once it lms been establislrcd that tlere tlas sorue conrpetent ettidence to support a fnding of fact, it is not open, on second appeal to go into the suficiency of tlnt etridence or tlrc reasonnbleness of tlrc fnding."

Regarding contradictions and inconsistencies in the prosecution evidence, the Appellants argue, firstly, that these were with regard to the duration of the robbery; that PW4 (Archana D Patel) testified that it lasted 10 minutes only, while PW2 (Okiror Simon Peter), who was at the shop, stated that it lasted 30 minutes only.

Secondly, the Appellants claim that since PW3 testified that the person who harassed PW4 was not among the four Appellants in court, they were thus not identified as being amongst the assailants at scene of crime. According to the Appellants, the court should have taken note of the dock identification of the third appellant by PWa.

Thirdly, the Appellants contend that the principles in the case of Abdala Nabulere & Another Vs Uganda, (supra), were not followed, because much as the robbery took place in broad day light, at7:30 am as stated by PW4, it was very fast and, because of fear and the fact that the would-be witnesses were bundled in the room and the Appellants had head gear, such circumstances made identification of the attackers very difficult. According to the Appellants, such contradictions and inconsistences were very major as they went the to the root of the case, and if the Court of Appeal had exhaustively carried out its duty, it would have given the Appellants a benefit of doubt and would have acquitted them.

We have perused the record of appeal, including the Judgment of the Court of Appeal. The record at pages 57 to 6L of the record of appeal show that the learned fustices of Appeal, in their judgment at pages 57 & 58, stated as follows:-

"Tlrc appellants fault tlrc trial lrulge in the 'l,tground for contticting tlam basing on the prosecution ettidence wliclt tt,ns fuU of glnring gratte inconsistencies and contradictions tlnt zttere not satisfnctoily explained away therehy reaching a wrong conclusion and decision. Wile responding to tle abotte subnission, counsel for tlrc respondent contendcd tlrc contradictions pointed out uere ninor as tlwy did not go to tlrc root of tlrc cnse nnd no ntiscarringe of justice ruas occasioned.

ln tJu instnnt appeal, regnrding tle tinte zplun the robbery tookplnce and its duration, ue note front tlte court record that PW4 testified tlnt it took plnce at 7:30 a.m. in tlrc nnrning. PW2 who tuns in tlrc slnp at the time stated tlmt he struggled tpitlt one of tlrc assailants dressed in a flair slirt for about 10 ninutes but tlrc robbery lasted for ahout 30 miruttes bettoeen 7:30 and 8: a.m. He repeated tlris in his cross exanination. We agree ruith counsel for the respondent tlmt tlrc tinrc referred to by PW2 uns not contradictory because it is clenr ftonr his testimony tlmt the robbery took place between 7:30 a.m and 8:00 n.m which is consistent with PW4's testimony. The 10 ntinutes PW2 referred to was tlte tinrc tuithin tphich his struggle with one of the assnilnnts lasted. We tlurefore fnd no contrndiction in this eoidence."

Regarding contradictions in identification of the Appellants, the record shows at page 58 that the learned Justices of Appeal stated as follows:-

" ... From the eoidence on record, rue fnd tlut nruch os PW3 testifed tlmt tlrc person u,ho Trtas harassing PW4 was not in court, lu added tlwt tlrc assailant was in n jncket tlith ltis lrcnd coz'ered and lrc could not identifu hinr. Hotoetter, PW4 runnaged to identifu her assnilant ns the 3"t appellant since slrc lmd euer seen him before tlu incident wlrcn he used to come to buy things in the slrop and chatted with tlrc 2,d appellant. Besides, PW4 testifed that the robbery lnsted 30 ntinutes and slu u,as in close proximity toith thnt assailant. Despite the fact that tlrc 3"t nppellant denied being nt tlrc scene of crime on that fnteful day the trial ludge rejected lis alibi nnd found that the prosecution had adduced suffcient ertidence uhich put hinr at tlrc scene of crinte nnd this eaidence u,as corroborated by ttarious rritnesses nnd the clnrge and caution statement."

It is clear from the foregoing extracted part of their judgment that the learned Justices of Appeal exhaustively re-evaluated the evidence on the record concerning inconsistencies. They then rightly found that there were no inconsistencies regarding the time when the robbery took place, and that, regarding inconsistencies alluded to by the Appellants on identification, though there were some inconsistencies in the evidence given by particular witness, they were minor and did not go to the root of the case, and that, thus, they did not occasion a miscarriage of justice against the Appellants.

The record, read as a whole, shows that the inconsistencies alluded to by the Appellants were indeed minor, and they do not destroy the other evidence that was relied on by the lower courts in arriving at the conclusion that the Appellants participated in the commission of the offence. The evidence on record was sufficient to warrant a conviction. We cannot therefore fault the learned Justices of Appeal for arriving at the finding that the Appellants were properly identified and that none of inconsistencies and contradictions with regard to the time alluded to by Counsel for the Appellants would suggest that the Appetlants did not participate in the robbery.

Thus, grounds one and two of this appeal fail.

In ground 3, the Appellants faulted the trial Judge and the first appellate court for convicting them largely based on the repudiated confession of the 3'd Appellant and the oral confession of by the first Appellant to the arresting and investigation officer, which evidence was supposed to be inadmissible in law. They argue that the trial court and the first appellate court did not follow the law in the manner in which the trial within a trial

was conducted to determine the voluntariness of the charges and caution statement made by ,A3 (third Appellant). Secondly, the Appellants argue that the trial court and the first appellate court did not follow the law when they admitted a plain statement made by . A.1 (first Appellant) to the Police.

The record of appeal shows at page 96 that the prosecution sought to tender in the charge and caution statement made by A3 (third Appellant) before PW9 ASP Eruku Selestino. Defence Counsel objected to this, on the ground that it had been obtained by torture and was not voluntary. The trial court accordingly conducted a trial within a trial to determine whether the document should be admitted in evidence.

The record shows at page 97 that the trial within a trial commenced with A3 being examined by the Prosecution. After that, A3 was cross examined by his lawyer. The appellants allege that this procedure was irregular. In making the ruling on the trial within a trial, the trial court relied on the evidence given in the main trial. The finding of the trial court after conducting the trial within a trial was that the charge and caution statement had been voluntarily made.

The Court of Appeal in handling this ground stated that:-

"lt is clear from the court record tlnt tlrc trial ludge eoaluated both tlrc defence eztidence and the prosecutiorr etridence thnt uas ndduced in the main trial before concluding tlmt tlrc charge nnd caution stntenrent zons recorded before a police officer of the right rnnk nnd it was made orderly (sic) and therefore ndnissible. Our considered oiew is tlmt tlere Tuns no prejudice occnsioned to tlre appellnnts ns a result of tlu irregularihl becnuse tlrc prosecution toould luue still ndduced the sanrc eoidence that the trial

ludgc relied on hnLl tlrc proTtcr procadurc baan folloToed nntl tlrc trial fiulgc L:ould lun'a still nrriptd nt tlu'stttrtt, dacisitttr.

We must also point out tlnt apart frotn tlrc repudinted charge and caution statenrcnt, there zoere other pieces of ettidence that the tial ludge relied on to found a conttiction,...,."

With regard to the statement of ,A1 (first Appellant), the Respondent's Counsel submitted that the plain statement was not relied upon; however, as per Section'1,44 of the Evidence Act there is no conkadiction of the rules. Section 144 of the Evidence Act permits the cross-examination of a witness regarding his or her previous written statements. During the trial, the statement was admissible as evidence; however, the Judge did not base her decision on the statement. Consequently, its admission had no bearing on the decision. Therefore, there was no miscarriage of justice sufficient to allow the appeal.

## In the case of Kifamunte Henry Vs Uganda, (sapra), this Court held that:-

" Otrce it has been establisled tlmt tlrcre lt,as some contpetent epidence to support a fnding of fact, it is not open, on second appeal to go into tlu suficienry of tlmt ettidence or tlw reasonableness of the fnding. Eoen if ^a Court of frst 'instance lms urongly directed itself on a point and tlrc court of frst appellate Court has urongly lrcld tlmt tlu trinl Court conectly rlirected itself yet, if tlu Court of frst appenl lns correctly directed itself on the point, the second oppellate Court cannot take a different uieu."

We therefore do not fault the learned Justices of Appel for holding as they did. The evidence of both sides was considered and no miscarriage of justice was occasioned to the Appellants.

This ground of appeal fails. In ground 4, the Appellants fault the trial court and the first appellate court for rejecting the fourth Appellant's alibi and relying on a supposedly improperly conducted identification parade allegedly carried out by one Swaibu, who never testified, thereby occasioning a miscarriage of justice to the Appellants.

Learned Counsel for the Appellants submitted that a defence of nlibi was raised in respect of the fourth Appellant. It was his contention that the identification parade that was conducted by the parade conductor, who testified in court, was improper, yet his report was used to convict them.

It is trite law that an accused person who raises the defense of olibi does not assume the duty of proving it. It is also now settled law that when an accused person puts up the defence of alibi, the prosecution is under duty to prove to the satisfaction of court that the accused was at the scene of crime by adducing evidence that places him/her at the scene of crime or produce such evidence that negates or counteracts the accused person's testimony that he was in particular place other than at the scene of the crime. See Kazarwa Henry Vs Uganda, Supreme Court Criminal Appeal No.17 of 2015; Lt. ]onas Ainomugisha Vs Uganda, Supreme Court Criminal Appeal No. 19 of 2075; and Sekitoleko Vs Uganda [1968] EA 531.

When considering the defence of alibi put up by an accused person, it is incumbent upon court to evaluate both versions judicially and give reasons why one version and not the other is accepted. It is a misdirection to accept the one version and hold that because of the acceptance pcr sct the other version is unsustainable. See Bogere Moses & Another Vs Uganda, Supreme Court Criminal Appeal No. 01 of 1997 and Opolot Justine & Another Vs Uganda, Supreme Criminal Appeal irlo.31 of 2014.

It is clear from the record that Swaibu did not testify. However, contrary to what is alluded to by the Appellants, Swaibu is not the one who carried out the identification parade. The record of appeal shows, at pages 88 and 89, that the identification parade was carried out by a Police Officer, Inspector Erichu John (PW6), who tendered in the report of the identification parade, which was admitted in evidence as exhibit P5. Inspector Erichu ]ohn was cross examined on exhibit P6.

The Appellants' position in this appeal is that the fourth Appellant raised the defence of alibi.

In considering the fourth Appellant's defence of alibi, the Court of Appeal concluded that:-

" Much as in her judgment the trial judge took note of the fnct that tlu 4il, appellant ruas identifed in an identifcntion parade conducted at tlrc police post in Kuni by a one Suaibu, it uas not her only bnsis for conz,icting the appellant. Slw also considered the testimony of PW4 ruho testifed that she identified tlu 4th appellant as the one utho slapped lrcr. On the basis of thnt ettidence, tlrc ludge found thnt lrc hnd been placed at tlrc scene of cime at tlrc tinrc uthen the robhery took place and tlrcrefore rejected the nppellant's alibi."

The specific evidence the lower courts relied on regarding the defence of nlihi, on which the conviction of the fourth Appellant was based, related to the fact that PW4 identified the fourth Appellant as the person who slapped her. Indeed, the first appellate court emphasized that they did not solely rely on the identification parade and the report, but they considered evidence from other witness rvho identified the fourth

Appellant as one of the assailants. Having identified the fourth Appellant as present at the scene of crime, the lower ccurts reiecte d his alibi.

Thus, based on the foregoing, we find that the learned Justices of Appeal rightly evaluated the evidence, and that the defence of alihi was rightly rejected.

Ground 4 of the appeal fails.

On ground 5, the Appellants fault the first appellate court for passing a sentence that is illegal and excessive. Their arguments are that the period on remand and the mitigating factors were not taken into consideration when sentencing the Appellants. In addition, the Appellants argue that the first appellate court erred when it imposed a sentence of 25 years' imprisonment which was excessive. The Respondent however argued that it is erroneous of the Appellants to claim that the leamed Iustices of appeal did not take into consideration the mitigation factors and the period spent on remand, as the record of appeal at pages 66,67 and 68 reflects that the same was done in the Court of Appeal |udgment.

In the case of Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported), this Court held that an appellate court is not to interfere with the sentence imposed by a trial court where that trial court has exercised its discretion on sentence, unless that discretion is such that it results in the sentence imposed to be manifestly excessive, or so low as to amount to a miscarriage of justice, or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence, or where the sentence imposed is wrong in principle. It is therefore on that basis that this Court may interfere with a sentence passed by a lower court.

In his submissions, Counsel for the Appellants introduces new facts to this case that the first and second Appellants were convicted and sentenced to 22 years and 4 months in prison commencing from 22/"12/20"16. With respect, the said facts are foreign to this case. In fact, the record of appeal shows that all the Appellants were sentenced to 25 years' imprisonment, to be served from the date of conviction, which, according to the record , is "15 / 0l / 2011 .

Secondly, ground 5 of this appeal covers the aspect of severity of the sentence passed against the Appellants. Section 5 (3) of the Judicature Act provides that, in the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence.

Thus, Section 5 (3) of the Judicature Act does not allow an Appellant to appeal to this Court on severity of sentence. It allows an Appellant to appeal against sentence only on a matter of law.

In that connectiory based on the foregoing, we find that ground 5 of this appeal, in as far as it related to severity of sentence, offends the provisions of section 5 (3) of the Judicature Act, since, by law, the Appellants are prohibited from appealing against severity of sentence to this Court. This aspect of the appeal, on severity of sentence, is accordingly rejected.

In ground 5, the Appellants also contended that the first appellate court did not take into consideration the mitigating factors at the time of sentencing. The mitigating factors raised by the Appellants were that they were first offenders; the offence did not involve any actual violence or bloodshed; and that the Appellants had spent about 2 years on remand.

In dealing with this issue, the Court of Appeal, at page 67 of the record of appeal, stated:-

"*The aggravating factors which were presented by the prosecution are that;* the offence of robbery has become rampant in Teso and a trauma to the *population that was already traumatized by years of uprisings and cattle rustling, and this has created insecurity where by people can't even do their* businesses peacefully and investors are not willing to come and invest and *develop the area. The appellants have no criminal record.*

The mitigating factors pleaded in favor of the appellants are that; the 1^st *appellant is aged 26 years old, he is a first offender who is married with 5* children and cares for 5 other children of his missing brother. He also takes *care of his father and mother. He suffers from severe chest pain after being beaten at the arrest. He has been on remand for 2 years.*

*The 2nd appellant is 32 years old and a first offender. She is a mother of 4* children aged 13, 9, 5 and 3 years whom she is responsible for and she has been on remand for 2 years.

The $3^{rd}$ appellant is 20 years old, he is a fish monger having 3 children and cares for 6 others with their married mother. He has been on remand for *the last two years. He has an old mother and he is the only son in the family helping her. There are 5 other dependents the children of his paternal aunt.*

The $4^{th}$ appellant is 27 years of age and a first offender having 3 wives and 8 children. He is the only brother who was taking care of his 2 sisters left by the deceased parents and are in secondary school and he was the one paying their school fees. He has been on remand for 2 years. He feels a lot of pain since he has been an asthmatic patient for a long time."

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 is the guiding law for courts when sentencing a convict who spent time on remand in respect of the offence he has been convicted of. It provides that where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

The record of appeal shows at pages 66,67 and 68, that the first appellate court, while passing sentence, made the following observat^on:-

"Therefore, tlrc period the appellants in tlis case spent in pre-trial detention ought to lntte been deducted front tlrc sentences. Since the trinl Judge did not do so, tlrc sentences intposed are a nullity nnd tpe tlrus xt tlrc sentences nside. We noru intoke tlrc protrisions of Section 1'1 of tlrc Judicature Act (CAP 73), wliclt grnnts this Court tlrc same potoers as tlmt of tle trial Court in circurnstances suclr as ute noTo find ourselues, to intpose n sentence ue consider appropriate in the circuntstances of tlis nppeal.

Upon considering tle aggrnuating and ntitigating factors in this nppeal and tlrc range of sentences for aggraoated robbery, ue are of tlrc trieu thnt a sentence of 27 years' impisonntent will meet the ends of justice. We are enjoined hy Article 23 (8) of the Constitution to deduct tlw period of2 yenrs tlrc appellants spent in Imoful custody. ln the result we sentence eaclr of tlw nppellnnts to 25 yenrs' imprisonment to be seroed froru the date of conttiction tplich is 1 5/0'l 201 1."

It is evident from the above extract of the Court of Appeal Judgment that the first appellate court took into consideration both the aggravating and mitigating factors at the time of sentencing. They also took into consideration the period the Appellants spent on remand.

We accordingly have no reason to depart from the position which, in our considered opiniory was clearly addressed by the Court of Appeal regarding the sentence imposed and the mitigating factors in favour of the Appellants.

We therefore do not find merit in ground 5 of the appeal and it fails.

All in all, all the grounds having failed for reasons given, we find no merit in the appeal and we accordingly dismiss it. The appellants shall serve the sentence imposed by the Court of Appeal.

-f\ Dated at Kampala this l day of .. \*c\*,...2O24.

(-. .l i

Alfonse Owiny-Dollo Chief ]ustice

Faith Mwondha |ustice of the Supreme Court

:-'<-

Prof. Lillian Tibatemwa-Ekirikubinza

|ustice of the Supreme Court 25

**Percy Night Tuhaise Justice of the Supreme Court**

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Im Plitz **........**

Justice of the sur<br>Delivered by the Register<br>13/6/24<br>Protto<br>Reg