[2024] UGCA 280

#### ⁵ THE REPUBLIC Or. UGANDA

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

(Coram: Geoffrey Kiryabuire, Irene Mulgagonja, Eua K. Lusutata, JJA)

#### CRIMINAL APPEAL NO. 0567 OF 2015

#### BETWEEN

#### 1. SINANDUNGU ISMAIL alias ANGTIYO CEASER 2. DROMA STEPHEN alias IZUMA BERNARD :::::::: APPELLANTS 10

#### AND

### UGANDA :::::::::::::::::!:::::::::::::::::::::::::::::::::::::::::::: f,IESPONDENT

# [Appeal from the Judgement of High Court sitting at Arua in Criminal Session Case No. O115 of 2012 delivered by Hon. Justice Vincent T. Okwanga on Sth September, 2014]

#### JUDGMENT OF THE COURT

## Introduction

1] The Appellants were charged with the offence of aggravated robbery contrary to Sections 285 and 286 of the Penal Code Act Cap.l2O. It was stated in the indictment that A1, Sinandungu Ismail alias Anguyo and A2 Droma Stephen alias Izuma Bernard on the 4th day of September,2Oll at Ajibu Village in Arua District robbed Onzilr,a Denis of a motorcycle Reg. No. UDP 125L, and immediately before or after the time of the said robbery, used a deadly weapon to wit a hammer on the said Onzima Denis. 20 25

- ⁵ 2l Tbe facts admitted at the trial can be discerned from the evidence of PW 1 Denis Onzima, the victim of the robbery. He testified that at the material time of the robbery, he worked as a boda boda cyclist at the Okollo Trading Centre. That at around 5. O0pm on 4th September 2011, while parked at the Stage, the Appellants approached him with a request that they hire him to carry them to Azibu, a distance of 4Km, to purchase a cow. They agreed on a one-way fare of Shs 14,000/ = which the Appellants paid. The three men then boarded the motor cycle and proceeded to Azibu. 10 - 3] Onzima Denis was the rider with A1 in the middle and A2 at the tail end. When they reached a certain cross road in Azibu, A1 requested Onzirna to branch towards a certain home from where they were to purchase the cow, but as he did so, A1 begun communicating with an unknown person whom he described as the seller of the cow. At that point, Onzirna using the driving mirror saw A2, who was seated behind him, raising a hammer which prompted Onzima to bend his head. A'2 hit him on the back of the head with the hammer and to stem off another attack, Onzima jumped off the motorcycle, and while raising an alarm, run towards the home he could see ahead. ,{2 then started the motorcycle and A1 climbed it and both men rode towards Pawor road. 15 20 25 - 4l Onzima managed to reach a house where he found one Andema Hudson to whom he narrated his ordeal and the robbery of the motorcycle. Both men climbed onto Andema's motorcycle and started following the Appellants toward Pawor. Upon Onzima's 30

- ⁵ instructions, Andema rang one Androa George, the actual owner of the stolen motorcycle. The two men continued to pursue the appellants and at about 7:00pm, Androa informed Andema on phone that they had arrested one of the robbers but one had escaped. When Onzima and Andema arrived at Ajia, they found that A1 had been arrested with Andema's motor cycle and was being held at the Ajia Police Post. Onzima received treatment both at a clinic in Ajia and at the Arua Referral Hospital. 10 - 5l Subsequently, at about 5. O0pm on 16th September 2011, while walking on Arua-Packwach Road at a place called Cefore, Onzima spotted A2. He reported the matter to police who arrived and arrested 42. - 6] The Appellants were tried and convicted with aggravated robbery. Sinandungu Ismail (A1) was sentenced to 28 years' imprisonment, while Droma Stephen ( 2) was sentenced to 25 years' imprisonment. The appellants being aggrieved with the decision of the High Court lodged an appeal premised on three grounds set out in their memorandum of appeal as follows; - 25 - t. The kanted trtal Judge erred ln law and fact when he proceeded with the trial in the presence of cssessors utho neaer took oath uthlch occasloned a rnlscarrlage ofJustice to the Appellant. - It. The learned trial Jud,ge erred in laut and fact uhen hefatled to properlg eualuate the eald.ence before hlm thus reachlng a u)rong declslon.

# ⁵ iii. The learned. trial Judge erred ln law and fact when he convicted. and sentenced the Appellants to a harsh jail tenn of 28 gears and 25 gedrs' lmprlsonment, respectiaelg.

- 7] At the hearing of the appeal on 2O1h November 20 11, the Appellants were represented by Mr. Dennis Mbasa on state brief, while the Respondent was represented by Ms. Immaculate Angutoko, a Chief State Attorney from the office of the Director of Public Prosecutions. Both counsel had prior to the hearing date filed submissions and while in Court, Mr. Mbasa prayed that the Court considers the submissions he filed on 7 I ll /2023 as the set representing his legal arguments for the appeal. He also moved the Court for an order to allow hearing of the appeal out of time and to validate the memorandum of appeal above. He in addition prayed that he be allowed to amend the second ground ofappeal, to instead read as follows: 10 15 20 - t. The learned trial Jud.ge erred. uthen he conalcted the Appellant on inconsistent and contradlctlng testlmonles of the prosecutlon aritnesses. - ii. The learned trtal Judge erred when he held that the prosecution led and proaed begond reasonable doubt the use of a deadlg ued.pon.

8] Ms. Angutoko raised no objection to the lirst prayer for validating the appeal. She however objected to the prayer for an amendment. She argued that part (i) of the proposed amendment was a general ground. She did not contest part (ii) but submitted that at the trial,

- ⁵ the appellants only contested their participation. She insisted that the issue of a use of a deadly weapon is not a question of law. She conceded however that if the Court were to allow the appellants' prayers, then the State should be given time to respond. She undertook to file a new response to the appeal by 27/lI/2023. On the other hand, Mr. Mbasa agreed to withdraw the rejoinder he had filed on 20/ll12023. 10 - 9] At the close of the above proceedings, we ordered that the State files fresh submissions to address the new ground of appeal by 27/ll/2023, and a rejoinder by Mr. Mbasa by 29/ll/2023. We have confirmed from the record that no fresh submissions were fited for the Respondent/State as directed. Mr. Mbasa likewise did not file a new rejoinder. It is understandable that he could not do so in the absence of a response by the State to the amended appeal. However, since it is only the second ground of appeal that was substantially amended, we take it then that the State has made no formal reply to ground number two of the memorandum of appeal as amended. Since there was no order directing the State to file new submissions for the grounds I and 3 for which no amendment was sought, we have considered their response filed against those grounds in the submissions they originally filed in Court on l7/ll/2o23. We in addition considered authorities provided by counsel and those sourced by the Court to determine the appeal.

# s Ground one

#### Appellants submissions

10] By way of introduction, Mr. Denis Mbasa reference to Section 67 of the Trial on Indictment Act, (TIA) Cap 23 which directs that upon conclusion of the preliminary hearing at a trial, the assessors shall take oath to advise the Court. He cited Nenyo Marks versus Uganda, SC Criminal Appeal No. O8 of 2OO7 where it was held that;

> "a tial uthich proceeds utithout lhe assessors taking oath is a nullitg".

- 111 Mr. Mbasa then directed the Court to page 9 of the record and submitted that although two assessors were selected, it is not shown that they were sworn in. He pointed to and then contested certain additions to the record on page 9 indicating that the assessors took oath or that the Judge countersigned that action. He submitted in particular that in the handwritten record of proceedings, the word "assessors sutorrt" which is not even clear, was only inserted immediately after "9:OOam". Counsel then argued that at the commencement of the trial, the assessors were not sworn in, which is contraqr to Section 67 of the TIA. 15 20 - 30 121 In conclusion, counsel submitted that had the learned trial Judge properly followed the law governing assessors, he would have come to a different decision. In his view, a trial that proceeded with assessors who did not take oath as required by law, occasioned a miscarriage of justice. He prayed that this Court finds that the trial was a nullity. 25

# s ResDondentssubmissions

- 131 In response, Immaculate Angutoko counsel for the Respondent submitted that the Respondent conducted due diligence by requesting for the handwritten record of proceedings from the Court of Appeal Registry. That she confirmed that the assessors were in fact sworn in the commencement of the trial. Ms Angutoko submitted further that a soft copy or the record was shared with counsel for the appellant a-fter confirming that the Deputy Registrar had counter signed the certified the record of appeal which the appetlant is contesting as not belonging to the trial Judge. - 141 In conclusion, counsel contended that this ground is moot and should be struck out or abandoned to save courts time. She added that counsel should have conducted due diligence before raising a ground which could have been avoided.

### Analvsis and decision of Court

151 We have carefully studied the court record, considered the submissions for either side, and the law ald authorities cited by counsel. We are mindful that this is a first appeal to this Court which is governed by the provisions of Rule 3O(1) (a) of the Judicature (Court of Appeal Rules) Directions SI. 13-10 (herein after called COA Rules). We are accordingly required to carefully and critically review the record from the courts below to reappraise the evidence and make inferences of fact but without disregarding the decision of the High Court. See; Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 1O of 1997. - ⁵ 16] This ground contests the legality of the trial on the ground that the assessors did not take oath at the commencement of the proceedings. Mr. Mbasa considered the omission as one that was fundamenta-l, and thus rendered the trial a nullity. Counsel added that on the record, there is an inscription of the word "assessors swofli" but the same is not counter signed by the Judge but a different person. Conversely, Ms. Angutoko contended that the respondent conducted due diligence by perusing the hand written version of the record. She confirmed that the assessors took oath. She contended further that it was evident in the hand written record that the Deputy Registrar did counter sign the certified record. She then prayed that this ground be struck out, as it is moot. 10 15 - 171 Section 3 of the Trial on Indictment Act underscores the importance of assessors by providing for a mandatory requirement that all criminal trials in the High Court be conducted with the aid of at least two assessors. Each assessor must as a matter of law take oath before participating in a trial. It is provided under Section 67 TIA that:

"At the commencement of trial..... and afi.er tle preliminary heaing has been concluded, each assessor shall take an oath of impartially to aduice court to the best of Ltis/ her knowledge, skill and abilitg on the issues pending before court"

18] We have perused both the hand written and typed copies of the record of the trial Court. In order to better address counsels' submissions, we shall reproduce part of the Judge's handwritten notes on page 2, verbatim:

"Assessors selected.

Autudde Robert

Phillie Ertna

A1: I haue seen the trro assessors proposed. I haue no objection to them sitting as assessors.

A2: I haue seen the flro assessors proposed. I haue no objecttons. I don't knout ang of them. 10

> Mr Odama: No objection to the tuto assessors to them sitTing as assessors. I propose 17/ 07/ 2014.

> Court: The matter i.s fixed for Learing on 17/ 07/ 2014 at 9:O0am.

Till tlen 15

> (Assessors swom AFR) Signed Judge 24/ 06/ 2014',

19] Both counsel mentioned and we observed what appears to be an addition to the above excerpt. It is two words "assessors swonf and below it, what appears to be a signature "AFR". Mr. Mbasa considered it an irregular addition to the record and that it was not countersigned by the Judge. Conversely, Ms. Angutoko argued that since the Deputy Registrar of the Court confirmed the record by certifying it, then the Court should take it as authentic. 20 25

2Ol With due respect, we are unable to agree with Ms. Angutoko's submission. As pointed out by her colleague, there appears to have been an alteration of the record to signify that the assessors were sworn in after the accused (now Appellant) counsel agreed with their selection. It is not clear who countersigned that

- addition, and we are not prepared to conclude that it was the Judge who signed off the proceedings of that day. Even if we were to believe Ms. Angutoko, the Registrar would have no powers to make additions to the record. She could only sign and seal a certified copy. 5 - 211 Given our observations above, we are persuaded that the Judge selected but omitted to swear in the assessors. If he did, the same was not clearly recorded as expected. 10 - 221 The omission to swear the assessors or at least proof on record that they were sworn, would be a lega-l but not mere procedural technicality. Irregularities involving the appointment and assessors and their participation in trials, has received considerable attention on appeal. This Court in her decision of Byaruhanga Fodori vs Uganda Cr App. No.2411999 [decided or a I S | 2OO2l decided that ". . ..the failure to record the particulars of the assessors or wltether they were sworrt in or not, does not cause anA miscarriage ofjustice". Especially so when the appellant was represented at the trial. We note however that in that case, the challenge was not against the fact that the assessors did not take oath, but that the Appellant was not involved when selecting them a:rd only one assessor attended the trial but no reasons were advanced to explain the absence of the second assessor. Subsequently in Ndaula vs Uganda l2OO2l EA 214 (decided on ²⁷I Ll2OOll, the Supreme Court considered it erroneous for ^a trial to proceed without the assessors taking the oath. However, they considered it only an irregularity which did not go to the competence of jurisdiction. The Justices advanced two reasons. 15 25 30 20

- ⁵ Firstly, that an assessor does not become one by reason of taking an assessors'oath but because he/she is an assessor duly listed and selected to serve as such under the Assessors Rules. Secondly, it was not suggested on the facts of that case that there was a failure of justice by that omission. This Court in Agaba Lilian & Anor vs Uganda, CA Criminal Appeal No. 247 Er' 239 of 2OL7 (decided on 3O/7 12019) and Kasagala vs Uganda, CA Criminal Appeal No. 149 of 2011 followed the Ndaula decision. t0 - 23) The Supreme Court appea-rs to have reversed the above position in the case of Alenyo Marks vs Uganda, Criminal Appeal No. O8 of 2OO7 120l9l UGSC 62 17\*' Nov 2019). The Court found that the two assessors who participated in the trial were not sworn in before executing their role contrary to 67 TIA. The Court decided that an assessors' participation and role in a trial is vital and goes to the legality of the trial. They considered that taking an oath is mandatory and if omitted, the trial is a nullity. Alenyo's conviction was overturned but the Justices did not order a re-trial since Alenyo had served many years. They instead ordered for his release. This court in Byamukama Francis vs Ugandar CA Criminal Appeal No. 397 of 2O15 (decided on 12l3/2O18), also considered it an illegality for the trial to proceed when assessors are unsworn. 15 - 24} We have been convinced that the assessors in this case did not take oath. Since Alenyo was decided 18 years after Ndaula, and Byaruhanga is a decision of the Court of Appeal, the correct position to follow would be the one by the Supreme Court in Alenyo Marks vs Uganda (supraf.

- ⁵ 251 We accordingly hold that the trial of the two Appellants was illegal and a nullity. It is set aside. For that reason, the first ground succeeds. - 261 We have confirmed from the. Record that the Appellants were arrested on 4tn and 16tt, September-2Ol1 (respectively). They have therefore remained in lawful custody for a continuous period of at least thirteen yea-rs. A section of that period is of course part of their sentence which they received on 5th September, 20 14. Following their conviction, the Appellants filed two notices of Appeal dated 31"t December, 2015 and 3l"t October 2017, and a Memorandum of Appeal on 7th November,2023. It is possible then that the Appellants showed an interest to contest what we have now found to be an illegal trial, as far back as December 2015. Their appeal in this Court may not have taken such a long period to decide, but a l3-year period in lawful custody, can be considered as long. 10 15 20 - 271 Going by the above facts, we consider that ordering a retrial in this matter would not serve the ends of justice and can be categorized as a violation of the constitutional right to a speedy trial. For those reasons, we instead order that the Appellants be immediately released unless they are facing any other lawful charges. - 281 Consequently, this appeal has succeeded in the manner abovementioned.

**Dated** this .................................... $\mathsf{S}$

. . . . . . .

## **GEOFFREY KIRYABWIRE JUSTICE OF APPEAL**

IRENE MULYAGONJA JUSTICE OF APPEAL

EVA K. LUSWATA JUSTICE OF APPEAL

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