[2019] UGCA 2097

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT JINJA

# CRIMINAL APPEAL NOs. 284 OF 2014, 287 OF 2014, 429 OF 2014

## 1. ODEKE PETER

#### 2. OBWANA GEOFFREY

3. ETUDI MICHEAL::::::::::::::::::::::::::::::::::::

## **VERSUS**

UGANDA::::::::::::::::::::::::::::::::::: (Appeal from the decision of the High Court of Uganda at Jinja delivered on 22^nd November, 2011 in Criminal Case No.0179 of 2007 by Hon. Justice Akiiki Kiiza)

# CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

## HON. MR. JUSTICE STEPHEN MUSOTA, JA

# HON. LADY JUSTICE PERCY NIGHT TUHAISE, JA

#### JUDGMENT

This is an appeal from the decision of the High Court sitting at Jinja by Hon. 20 Justice Akiiki Kiiza wherein, the appellants on 11^th June, 2007 at Bukonde Village in Bugiri District murdered Atebat Aiseri. The appellants were indicted and convicted of murder contrary to Sections 188 and 189 of the Penal Code Act and sentenced to 25 years imprisonment respectively. Dissatisfied with the

$1$ | Page

decision, they appealed to this court against both conviction and sentence on $\mathsf{S}$ grounds that:

# 1. The learned trial Judge erred in law and in fact when he convicted the appellants basing on weak circumstantial evidence; and

2. The said sentence of 25 years meted onto the appellants by the lower

court was harsh and excessive in the circumstances.

$20$

Briefly, the facts as set out by the trial Judge are that in March 2007 the 1st appellant and his uncle Osilo Eridad approached the 3^rd appellant to murder Atebat Aiseri at Bukonde Village Bugiri District. In May 2007, the 1^st appellant called the 2^nd and 3^rd appellants and briefed them about the murder plan and promised them two cows each after the mission was accomplished.

On 11^th June 2007, the appellants went to the home of Atebat Aiseri the victim and the $2^{nd}$ and $3^{rd}$ appellants hid around. The $1^{st}$ appellant persuaded her to come with him to the garden but before reaching there, he grabbed her by the neck, killed her and called the 2^nd and 3^rd appellants to assist him. The 3^rd appellant carried her body and dumped it in a bush behind a nearby latrine. On 18^th June 2007, the deceased's grandchild Oskol Martha discovered her body and informed other people and the Local Council chairperson who reported the deceased's murder to Bugiri Police Station. The police visited the crime scene, took a sketch plan and a post mortem examination was done. Later, investigations revealed that the appellants murdered the deceased and the 2^nd and 3^rd appellants' confessions in their respective charge and caution statements supported the same. The appellants were arrested and charged with murder.

2 | Page

$> \mathcal{O}$

At the hearing of the appeal, Mr. Munyamasoko Chris appeared for the $\mathsf{S}$ appellants while the respondent was represented by Ms. Nyanzi Macrina Gladys, a Principal State Attorney.

# Submissions of the appellant:

$\mathcal{A}$

On ground one of the appeal, Counsel for the appellant submitted that the learned judge convicted the appellants basing on only circumstantial evidence 10 because no eyewitness evidence was adduced in court to place the appellants at the crime scene. He argued that PW 1 did not tell court that she actually witnessed anybody attacking and killing the deceased.

According to Counsel, the only connection attributed to the $2^{nd}$ appellant was a statement by PW 2 that the 2^nd appellant on being arrested had cried out that 15 it's the 1^st appellant who had caused them a problem in murdering a one Christine Osikol. Sgt Joseph (PW 4) told court that he found the 1st and 3rd appellants about to be leached by the mob who accused them of killing the deceased. To Counsel, there was no direct evidence to show that any of these appellants participated in the deceased's murder. That the appellants were 20 tortured and beaten before making their statements at Nalufenya police station which rendered the statements inadmissible.

He submitted that the trial judge did not apply the standard test of applying circumstantial evidence. That the evidence adduced by the prosecution witnesses was not sufficient to put the appellants at the scene of crime so as to prove their participation in the murder. He prayed that the conviction be quashed and referred to Rex versus Kipleng and Kimuli Mutata, EACA No. 40

3 | Page

and 41 of 1949 where Court held that in order to justify a conviction on $\mathsf{S}$ circumstantial evidence, the inference of guilt and the inculpatory facts must be incompatible with the innocence of the accused.

Regarding sentence, he submitted that at the time of sentencing, the 1^st appellant was 40 years, $2^{nd}$ appellant was 47 years and $3^{rd}$ appellant was 30 years. With these ages, the appellants were capable of reforming and becoming good citizens. That they were also first offenders and had spent 4 years on remand since their arrest in 2007. He submitted that the sentence of 25 years to each appellant was excessive and relied on the case of **Ogwal Alberto and** Uganda, CACA No. 46 of 2010 where the appellant who had committed murder was resentenced to 20 years.

# Submissions by the respondent:

Counsel for the respondent concurred with the appellants' counsels that no direct evidence was adduced placing the appellants at the scene of crime but, submitted that there was circumstantial evidence proving that the appellants admitted it's commission by implicating each other. He argued that the appellants committed the offence together. He contended that the 2^nd and 3^rd appellants were picked from Nalubere trading center and the 2^nd appellant cried out that Odeke (1^st appellant) had put them in trouble yet he had killed Christine.

That the appellants were assaulted in June 2007 and therefore, the threat had disappeared by the time they were making their statements on 20^th July, 2007. 25 This did not render the circumstantial evidence weak.

4 | Page

$10$

On sentence, she submitted that the punishment of murder is death yet the $\mathsf{S}$ appellants were sentenced to 25 years which was much less. According to her, the sentence should be upheld since the range of sentences is between 25 and 30 years which Courts have been giving for murder. He relied on the authorities of Muhereza Bosco and Another versus Uganda, CACA No. 066 of 2011; Ssemanda Christopher and Another versus Uganda, CACA No. 77 of 2010; 10 and Buhinda Joseph versus Uganda, CACA No. 129 of 2012.

## Submissions in rejoinder:

In rejoinder, Counsel for the appellant submitted that the circumstantial evidence was weak. He contended that the $2^nd$ appellant referred to Christine while crying out that the 1^st appellant had caused him problems and not the 15 murder of the deceased. That such utterances by the $2^{nd}$ appellant were not a confession.

## Resolution by Court:

We have carefully studied the Court record and considered the submissions of both counsel.

The duty of this Court as the first appellate Court is to re-appraise the evidence adduced at trial and make its own inferences on all issues of law and fact. See Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, Statutory Instrument 13-10; Pandya V R (1957) EA 336; and Oryem Richard V Uganda, Supreme Court Criminal Appeal No.22 of 2014.

5 | Page

This position was reiterated by the Supreme Court in the case of **Kifamunte** $\mathsf{S}$ Henry versus Uganda, SCCA No. 10 of 1997; where it was held that the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. 10

On ground 1 of the appeal, the trial Judge is faulted for convicting the appellants basing on weak circumstantial evidence. Counsel for the appellants criticized the learned trial Judge for not applying the standard test of determining circumstantial evidence. He submitted that the circumstantial evidence which was adduced by the prosecution witness was not enough to put the appellants

at the crime scene and prove their participation in the murder.

PW 1, Psikoli Martha Judith testified that her mother disappeared on 11^th May 2007 and the 1^st appellant and PW 3 told her that they met the deceased on her way to a crusade in Jinja. On 14^th June 2007, PW1's grandmother asked the 1^st appellant where PW 1's mother was and he told her that; if she thought that he had killed PW 1's mother with others, then she would also follow in the same way. The 2^nd and 3^rd appellants came and warned the deceased not to accuse the 1^st appellant of killing PW 1's mother. On 18^th June 2007, while at home, PW 1 saw a lot of flies and smelt a stench from the maize garden. She went there and saw a human body and informed others. They discovered that it was the $25$ deceased's body. According to her and PW 3, there was a land dispute between the $1$ ^st appellant and the deceased and they often quarreled.

6 | Page

PW 2, Maloba Alfred testified that on 20^th June, 2007 he attended a clan meeting $\mathsf{S}$ at PW 1's home over the deceased's death and the 1^st appellant was suspected of having committed the offence. But according to him, there was no grudge between the $1^{st}$ appellant and the deceased.

In finding that the appellants participated in the deceased's murder, the trial 10 Judge stated that;

> "Participation of an accused in a crime can be proved by direct eye witness account and or by circumstantial evidence. There is no direct evidence in this particular case implicating the accused persons in the victim's murder and the prosecution is seeking to rely on circumstantial evidence and their confessions to prove the case against them. Circumstantial evidence is good evidence, but must be of such nature that it shows the accused are the only ones who must have committed the offence and not somebody else."

In Rex versus Kipleng and Kimuli Mutata, EACA No.s 40 and 41 of 1949;

Court held that in order to justify a conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.

We find the reply by the 1^st appellant very suspicious when asked by the deceased where PW 1's mother was. His response meant that nobody should ask

7 Page

$\mathsf{S}$ about the disappearance of the deceased and anybody who did so would also disappear. Indeed the deceased disappeared. As for the 2^nd and 3^rd appellants, there is uncontroverted evidence that they came and warned the deceased to stop accusing the 1^st appellant of killing PW 1's mother. The trial Judge evaluated all this evidence before convicting the appellants and we have no reasons to fault 10 him in reaching the conclusion he did.

Counsel for the appellant submitted that the $2^nd$ appellant's utterances that they had participated in the murder of Aiseri were not a confession and therefore, the circumstantial evidence was weak.

Sections 24 and 25 of the Evidence Act, Cap.6 provides that;

"A confession made by an accused person is irrelevant if the making of the 15 confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made. However, once such violence, force, threat, inducement or promise has in the opinion of the court been fully 20 removed, it is relevant."

The Court of Appeal noted in Anyangu and Others versus Republic, EACA (1968) 239 at page 240 that:

"A statement is not a confession unless it is sufficient by itself to justify the *conviction of the person making it, of the offence with which he is tried.*"

$25$

8 | Page

2S

- In Ssegonja Paul and Uganda, SCCA No. 42 of 2000; The Supreme Court $\mathsf{S}$ Justices agreed with the findings of the Court of Appeal that the appellant's confession statement was correctly admitted in evidence as having been voluntarily made and that the procedure followed in recording it did not cause a failure of justice to the appellant. - $10$ Counsel for the respondent submitted that though the appellants were assaulted in June 2007, the threat had disappeared at the time they were making their statements on $20^{\text{th}}$ July, 2007.

At page 60 of the record, the trial Judge stated that;

"All the accused persons retracted and or repudiated their statements hence I held a trial within a trial and found that all the accused made the charge and caution statements voluntarily to PW5 and the same were admissible against them".

The law relating to retracted and repudiated statements was considered in Tuwamoi versus Uganda, (1967) 1 EA 84, where Court stated that; a trial Court should accept any confession which has been retracted and repudiated or both retracted and repudiated with caution, and must before finding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a Court will only act on the confession if corroborated in some material particular by independent evidence accepted by the Court. But corroboration is not necessary in law and the Court may act on a confession alone if it is fully

9 | Page

$36$

satisfied after considering all the material points and surrounding circumstances $\mathsf{S}$ that the confession can only be true.

The record shows that the 1^st appellant retracted his statement and the trial Judge held a trial within a trial after which he found that the accused had made the charge and caution statement voluntarily which was admitted as Exh. PE 1 upon evaluation.

We agree with the trial Judge that the 1^st appellant's charge and caution statement was unequivocal. That he participated in the killing of Atcbat Aiseri. The $2^{nd}$ appellant in his charge and caution statement which was admitted in evidence as Exh. PE 3 said Atebat Aiseri was his grandmother and he had participated in killing her because of land wrangles. That he had been influenced by the $1^{st}$ appellant. As for the $3^{rd}$ appellant, he denied committing the offence but admitted that he was present when the 1^st appellant strangled the women to death including Atebat Aiseri. He added that they had planned what to say in their confession statements.

As to whether the confessions implicated all the appellants, **Section 27 of the** 20 **Evidence Act, Cap. 6** states that;

"Where more persons than one are being tried jointly for the same offence, and a confession made by one of those persons affecting himself or herself and some other of those persons is proved, the Court may take into consideration such confessions as against that other person as well as against the person who makes the confession."

10 | Page

In Ezera Kyabanamaizi versus R (1962) E. A 309, Court stated that a $\mathsf{S}$ statement made by a co-accused person, whether oral or written, implicating his or her co-accused, can only be used to supplement an otherwise substantial case against him or her. The same principle was followed by the Supreme Court in John Sserumaga & 3 others versus Uganda, Supreme Court Criminal Appeal No.31 of 1996. 10

In his defence, DW 1, Odeke Peter testified that he knew the deceased who was his aunt and there was a distance of 200 meters from his home to her home. He used to go to the deceased's home to visit and there was no dispute between him and the deceased. He added that he was in the garden at around midday when he had an alarm to which he responded. He found a lady on the road making the 15 alarm who informed him that the deceased was dead. DW1 and other people moved to the crime scene and found the deceased's decaying body behind her toilet. On the arrival of the Gombolola Chief, Chairman LC1 and the 2^nd appellant, we remained at the scene while the Chairman LC1 went to report to the police. The $2^{nd}$ and $3^{rd}$ appellants were neighbours to DW 1 and they $20$ implicated each other as a strategy to defend themselves at Nalufenya.

DW2, Obwana Godfrey testified that on 11^th June, 2007, he went to Naluwerere at 10 am and returned home in the evening. He knew the deceased since they stayed in the same village. He learnt about the deceased's death when he saw the Gombolola Chief inform the Chairman LC1 about the same and he went with them to the crime scene. He did not know about the disputes between the 1^st appellant and the deceased. Neither did he ever visit the deceased nor the 1st

11 | $Page$

appellant's home. They discussed the statements before making them at $\mathsf{S}$ Nalufenya on how to defend themselves.

DW3, Etudi Micheal testified that on 11^th June, 2007, he was home the whole day. He knew the deceased since they stayed on the same village. He learnt about the deceased's death on 19^th June, 2007 when he had an alarm and went to the

crime scene. The deceased's body was found behind the toilet. He did not know 10 about the disputes between the 1^st appellant and the deceased. Further that him and DW 2 entered the toilet in Nalufenya cells to discuss on how to defend themselves but did not agree to implicate the $1^{st}$ appellant as the murderer.

Section 188 of the Penal Code Act, Cap. 120 provides that;

"*Any person who of malice aforethought causes the death of another person*" by an unlawful act or omission commits murder".

As to whether the appellants had malice aforethought to murder the deceased, the trial Judge stated that given the nature of the evidence adduced in court, he was in complete agreement with the submissions from both counsel that the victim in this case was dead, her death was caused unlawfully and whoever killed her had malice aforethought.

DW 1, Odeke Peter gave a detailed background of his desire to kill the deceased over a land dispute. He implicated his co-accused DW 2 and DW 3 in a detailed account of the crime and unreservedly confessed his share of the guilt. DW 2

and DW 3 were convinced by DW 1 in May 2007 to assist in murdering the $25$ deceased in return for two cows each. DW 1 testified that he pulled the deceased by the neck from her house and strangled her after which DW 2 and DW 3

12 | Page

$\mathsf{S}$ assisted him to drag the deceased's body to the toilet. All the appellants participated in committing the crime.

Common intention is provided for under Section 20 of the Penal Code Act, Cap.120.

"Where two or more persons form a common intention to prosecute an *unlawful purpose in conjunction with one another, and in prosecution of that* purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence."

The case of Kisegerwa and Another v. Uganda Criminal Appeal No. 6 of **1978 (Court of Appeal)** elaborates on the above provision thus:

"In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence...an unlawful common intention does not imply a *pre-arranged plan.*"

Further Section 9 of the Evidence Act, Cap. 6 provides 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

$10$

$25$

13 | $P$ a g e

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."

In Janet Mureeba and 2 Others versus Uganda, Supreme Court Criminal Appeal No.13 of 2003; court stated that generally in criminal cases, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused.

Having re-evaluated the evidence above, we find that the circumstantial evidence on record is strong and irresistibly points to the guilt of the appellants. We agree with the trial Judge that the appellants' charge and caution statements were voluntarily made to PW 5 and are admissible against them. They show the role played by each appellant. The Prosecution proved beyond reasonable doubt the appellants' malice aforethought to commit the crime. For the above reasons, Ground 1 of the appeal fails.

Counsel for the appellants faulted the learned trial Judge for giving a harsh and excessive sentence of 25 years imprisonment to the appellants respectively without considering that this was a murder case where the deceased was a relative of the $1^{st}$ and $2^{nd}$ appellants. The appellants were sentenced when in their prime ages of 40, 47 and 30 years respectively and were capable of reforming and becoming good citizens. That they were first offenders and had spent 4 years on remand since their arrest in 2007.

In Ogwal Alberto V Uganda, CACA No. 46 of 2010; the Court of Appeal applied $25$ the provisions of Section 11 of the Judicature Act and sentenced the appellant afresh upon considering that the appellant was 45 years old and a first offender.

14 | Page

$\mathsf{S}$

$\angle 1$

- The appellant had murdered his own son in rage after being stopped from beating $\mathsf{S}$ up his wife. The appropriate sentence in court's view was 20 years imprisonment however, the appellant had spent 3 years and 10 days in pre – trial custody and therefore, the court re-sentenced him to 16 years 11 months and 20 days to be served from the date of conviction. - Section 189 of the Penal Code Act, Cap.120 provides for death as the $10$ maximum sentence for any person convicted of murder.

## In Buhinda Joseph V Uganda, CACA No. 129 of 2012;

"Court stated that the range of sentences in the above cases is between 25 -30 years' imprisonment. It was held that much as the trial court erred by not considering the fact that the appellant was a first offender in mitigation, the sentence that he imposed after considering the other factors was within the range of sentences in murder cases and in our view not harsh and excessive in the circumstances of this case. We therefore find no reason to interfere with the exercise of the trial Judge's discretion in sentencing the appellant to 28 years *imprisonment.*"

In Ssemanda Christopher and Another V Uganda, CACA No. 77 of 2010; the court stated that it cannot alter a sentence on the mere ground that if the members of the appellate court had been trying the appellant, they might have passed a somewhat different sentence.

While passing sentence in the present case, the learned trial Judge held that; $25$

$15$ | Page

$42$

- $\mathsf{S}$ "All accused persons are allegedly first offenders. They have spent 4 years on remand. I take this period into account while considering the sentence to impose on them. They have also prayed for leniency and have families to look after. However, the accused committed a serious offence, murder carries a likely death as a possible maximum sentence. The victim was an old woman, weak and defenseless who appears to be a relative to some of them. They wantonly $10$ and selfishly took away her life. This was sort of revenge by A 1 who convinced his colleagues end her life. Such behavior must be condemned by all and law abiding citizens of this country. Putting everything into consideration, I sentence each accused person to a term of 25 years imprisonment." - In the premises, we find that the trial Judge in sentencing the appellants to 25 15 years each exercised his discretion judiciously. This sentence in our view was neither harsh nor excessive considering the circumstances of this case. We agree with the learned trial Judge and find no reason to interfere with his decision. Ground 2 of the appeal fails. - For the reasons advanced above, the Appeal is dismissed. We accordingly uphold 20 the conviction and sentence of 25 years imprisonment for each appellant imposed by the learned trial Judge.

## We so order

$embe$ .2019. Dated at Jinja this... HON. MR. JUSTICE CHEBORION BARISHAKI **JUSTICE OF APPEAL**

16 | Page

Kalmatin HON. MR. JUSTICE STEPHEN MUSOTA JUSTICE OF APPEAL

HON. LADY. JUSTICE PERCY NIGHT TUHAISE JUSTICE OF APPEAL

$44$

$\cdots \cdots$

17 | Page

$\mathsf{S}$

$10$

$15$