[2024] UGCA 214

IN TIIE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 178 OF 2019 (CORAM: R. Buteera DCJ; Eva Luswata and Oscar Kihika, JJA) SSEBUNYA VINCENT:::I::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS

⁵ THE REPUBLIC OF UGANDA

# UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::! RESPONDENT [Appeal from the Judgement of High Court in Criminal Session Case No. O 1 17 of 2O1B sitting at Entebbe presided over by Hon. Justice

Nyanzi Yasin delivered on 24tr,April, 2019]

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#### JUDGMENT OF COURT

#### Brief facts

The brief facts of the case as discemed from the trial Court reccrd are that on the 11tn day of April, 2Ol7 at around 9:Oopm, Nanteza iVlargaret, PW2 went to her garden in Kabulamuliro next to the Serenity Rehabilitation Centre to cut sweet potato leaves. As she walked back home, she passed by the appellant's garden where she met Mr. Mubiru, the deceased, harvesting the appellant's maize. He had harvested a full sack of maize. PW2 went to the appellant's home and notified him that she had found a thief called Mubiru in his garden. The appellant kept quiet. PW2 returned to her home. Later on at about 4:00pm, PW3 (Number 5370 Detective contable Akankwasa Anthony) received a phone call from Serenity Rehabilitation Centre at Kabulamuliro that there is a dead body near their gate. PW3 came to the scene and found the dead body of Mubiru Godfrey. He was informed by Mangeni John that he saw the appellant caning, beating and kicking Mubiru Godfrey 20 25 30

⁵ who is now the deceased. That PW3 called the appellant on his phone and the appeilant informed him that he had gone to Masaka and he is likely to come Back after two months. On 12tt J:uly, 2Ol7 , the appellant came back to his home in Bwebajja and he was arrested by PW3 together with Corporal Muhanguzi. In his defence the appellant denied committing the offence and stated that at the time the offence was committed, he was on his u'ay to Masaka. The appellant was tried and convicted for murder. He was sentenced to imprisonment for 13 years and 3 months. 10

The appellant being aggrieved with the decision of the High Court lodged an appeal premised on six grounds set out in the memorandum of appeal as follows; 15

- i. The learned trial Judge erred in law and fact when he failed to evaluate evidence of participation as a whole and arrived at wrong decision, - ii. The learned trial Judge erred in law when he relied on circumstantial evidence to convict the appellant without any corroboration, causing a miscarriage of justice. 20 - iii. The learned trial Judge erred in law and fact when he ordered the prosecution to close its case leaving out exculpatory evidence and hence reached a wrong conclusion. - iv. The learned trial Judge erred in law and fact in an obvious case of prosecutorial misconduct and suppression of evidence, and wrongfully convicted the appellant. - v. The learned trial Judge erred in law and fact when he misdirected himself in regard to the defense of Alibi raised by the appellant, hence reaching a wrong conclusion. 30

s vi. The learned trial Judge erred in law and fact when he misdirected himself on the law of identification hence causing a miscarriage of Justice

## Re presentation

10 15 At the hearing of the appeal, the appeliant was represented by Mr. Cranmer Tayebwa on private briei' while the respondent was represented by Ms. Nabisenke Vicky Assistant DPP. Both counsel liled written submissions. They applied to Court to adopt and rely on their submissions for resolution of the appeal. Their applications were granted. We have relied on their written submissions and authorities supplied and those obtained by the Court to decide this appeal.

### Appellant's Submissions

20 Both Counsel for the appellant and respondent argued grounds 1 to 3 together. They argued ground 5 separately. Neither counsel macle aly submissions on grounds 4 and 6. We regard the two grounds as abandoned and we shall not attempt to resolve them. We shall resolve the grounds following the order of the submissions by counsel.

#### Grounds ¹ 2 and 3

25 The appellant's grieva,nce on grounds one, two and three of the appeal was that the trial Judge failed to evaluate the evidence as a whole and relied on uncorroborated circumstantial evidence to convict the appellant.

Counsel submitted that it is now trite law that the Court can convict a person based on circumstantial evidence so long as the co-existing facts

of the case point to nothing but the guilt of the accused person. That if 30

- ⁵ the co-existing facts establish doubt as ro the guilt of the accused person, then the accused should be acquitted. For guidance, counsel cited Simon Musoke versus R (1958) EA 776, Matete Simon versus Uganda SC Criminal Appeal No. O53 of2OO1 and Abdu Ngobi versus Uganda SC Criminal Appeal No. O1O of 1991. - 10

Counsel submitted further that although the learned Judge was alive to this principle, he failed to apply the principle as there are many facts in the evidence that created possible doubts in the prosecution case. But the trial Judge convicted the appellant on weak evidence.

- He submitted that the only direct evidence that put the appellant on the crime scene was that of Mr. Mangeni the night watchman at Serene Rehabilitation Centre, who relayed information to the investigating officer that he saw the appellant assaulting the deceased and tried to stop him in vain. Mr. Mangeni was never called to testify at the trial. He 15 - never gave evidence in Court to state what he saw and what he may have told police. Counsel submitted that whatever Mr. Mangeni told the Police officer could only be hearsay evidence since he did not testify in Court. 20 - Mr. Tayebwa Cranmer referred to the evidence of PW2, Nanteza, who testified that when she saw the deceased stealing the appellant's maize, she went to the appellant's home. She found him resting and informed him. The appellant who was the owner of the maize did not react. He remained in his house. According to counsel, this casts doubt as to 2S - whether it was the appellant that caused the death of the deceased. 30

Counsel went on to submit that there was nothing at the scene of crime that connected the appellant to the maize aileged to have been stolen.

Counsel submitted that the deceased could have been killed by a mob or other people other than the appellant given the fact that the deceased was a known habitual thief in the area. Counsel submitted that there was no evidence that the appeilant killed the deceased

In regard to the disappearance of the appellant from the village leaving behind crops ready for harvest, counsel referred to the testimony of the Appellant who testified that he had some other gardens that he was going to attend to in Masaka. Counsel submitted that the Appellant had a family on Entebbe road and the family could attend to the crops that rvere ready for harvest.

In regard to the phone call that was made to the appellant, counsel submitted that the local councillor who gave the investigating officer the appellant's number was never called to testify in court and the phone number on which the investigating officer called was never produced in court. Counsel contended that there was no certainty as to whether the investigating officer talked to the Appellant on phone.

In conclusion, counsel submitted that the co-existing factors show that the appellant may not have participated in the crime. Counsel submitted that there was no proof that the appellant is the one who killed the deceased.

## Appellant's supplementary submissioBs

In his suppiementarlr submissions, Mr. Tayebwa maintained his position on the law on circumstantial evidence and added that the learned trial Judge in evaluating the evidence failed to properly consider the exculpatory facts that clearly showed the appellant's innocence.

⁵ Counsel referred to the reaction of the appellant when PW2 informed him of the theft of his maize by the deceased. He submitted that the fact that the appellant just kept quiet and returned to the house clearly negates the motive to harm the thief.

Counsel submitted that the conduct of the appellant illustrates his lack of interest in pursuing the deceased as he had to go to Masaka to attend to his gardens. The appellant was away in Masaka for three months and was never pursued by any police officer. He learnt of Mubiru's death upon arrest. 10

Counsel submitted that there was no evidence that the appellant had any intention to kill the deceased. He left the area not to escape arrest, but had a journey to make to Masaka. 15

Counsel submitted that the learned trial Judge did not properly and exhaustively evaluate the evidence on record and as a result convicted the appellant on insufficient circumstantial evidence.

#### Res ondent's submissions

In response, counsel for the respondent, Ms. Nabisenke Vicky, submitted that the trial Judge was alive to and cautioned himself about the dangers of re\ring on circumstantial evidence. He submitted that the trial Judge analysed the evidence of participation of the appellant and he warned himself from the onset.

Counsel referred to the circumstantial eviclence which the trial Judge relied on to include;

Evidence from PW2. She saw the deceased stea-l the appellant's majze at about 3pm and she told the appellant about it at 4 pm. I

- 5 11. PW3 received information that there vras a dead body at Serenity Rehabilitation Centre gate. - lll. From PW3 and the Post Mortem report, PW2 saw the body. PW3 found a body of the deceased lying facing upwards with bruises on the face, lips and multiple cane marks or strokes at the back. - 10 lV. From PW3, he called the appellant on phone, the appellant told him that he had travelled to Masaka and would stay there for 3 months.

Counsel submitted that the proximity of time within which the deceased was found stealing maize to the time of his death point to no one else having the motive and opportunity to beat the deceased other than the appellant and thus, the inculpatory facts of this case were incompatible with the innocence of the appellant and were incapable of explanation upon any other reasonable hypothesis than that of his guiit. Counscl cited Simon Musoke vetsus R 91958) E. A

20 716 and Byaruhanaga Okot versus Uganda CA Criminal Appeal No. 78 of 2O1O cited in the case of Amisi Dhatemwa alais Waibi versus Uganda CA Criminal Appeal No. O23 of 7997.

In conclusion, counsel prayed that this honourable Court finds that the learned trial Judge properly evaluated the evidence on record and rightly found that there was sufficient circumstantial evidence implicating the appellant in the murder of Mubiru Godfrey.

## ADDellant's submissions in reioinder.

In rejoinder, Cranmer Tayebwa reiterated his earlier submissions and submitted that the appellant did not pursue the thief/deceased because he had already set his mind on the journey to Masaka.

⁵ He added that the phone call by PW3 to the appellant was denied by the appellant and that it is possible the appellant may or may not have talked to PW3.

#### Court's consideration

We have carefully studied the record, considered the submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. 10

We shall now proceed to resolve the grounds 1, 2 and 3 ofappeal. These grounds of appeal challenge the circumstantial evidence that was relied upon by the learned trial Judge to convict the appellant of murder. It is

argued for the appellant that the evidence was insufficient and the trial Judge should not have relied upon it to convict the appellant. 15

We are alive to the duty of this Court as a first appellate Court to review the evidence on record and reconsider the materizLls before the trial Judge, including the decision of the trial Court, and come to our own conclusion. See: Rule 3O(1)(a) of the Judicature (Court of Appeal Rules) Directions S. I 13-10. We do agree with and are bound to follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. lO of L997, where it was held that on a first appeal, this Court has a duty to;

o... reuiew the euidence of the case and to consider the mateials before the tiat Judge. Tle appellate court must then make up its outn mind not disregarding the judgement appealed from, but carefully uteighing and considering it." 25

- ⁵ It is trite that an accused person is convicted on the strength of the prosecution and not on the weakness of the defence case as was held in Akol Patrick & Others versus Uganda, CA Criminal Appeal No. O60 of 2OO2. We are also alive to the cardinal principle of law that the prosecution has the burden to prove the case beyond reasonable doubt. - See; Woolmington versus DPP (1935) AC 462. Bearing in mind the above principles of law, we shali proceed to consider the grounds of appeal. 10

We shall now proceed to re- evaluate the evidence on record and come up with our own conclusion as to whether the tria-l Judge correctly evaluated the evidence on record. We shall further establish whether the inculpatory facts in this case are incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. 15

In her testimony, PW2, Nanteza Margaret testified that on 11th April 2Ol7 at around 3:OOpm, she went to her garden in Kabulamuliro next to the Serenity Rehabilitation Centre to cut sweet potato leaves. When she was returning home from the garden, she walked past the appellant's garden where she found the deceased harvesting maize there from. The deceased had harvested a full sack of maize. She testified that she walked to the appellant's home and informed him that she met a thief called Mubiru in his garden. That after informing the appellant, he kept quiet and remained at home. She went back to her home. 20 25

PW3, Detective Constable Akankwasa, testified that on 11tn Aprii, 2012, he received a phone call from Serenity Rehabilitation Centre informing 30

- ⁵ him that there was a dead bocly near their gate. He rvent there and found the dead body. The body was identified to him to be that of Mubiru Godfrey. It lay facing upwards with bruises on the fore face, lips and multiple canes or strokes at the back. He stated that there was no one at the scene but when they parked, a certain man called Mangeni John came and informed them that he saw the appellant caning, beating and - 10

kicking the deceased.

PW3 testified further that he drew the sketch map and after establishing that the appellant had been with the deceased, he got the appellant's phone number from a councillor in the area and called him. The appellant informed him that he had gone to Masaka and that he would

come back after two months. According to PW3, the appellant came back to his home on 12th July, 2OL7, and was then arrestecl. 15

In his defence, the appellant denied the charges and testified that on ¹ltn April, 2Ol7 , he was at home and he took a nap. His wife wol<e him

- up and told him that PW2, Nanteza Margaret, wanted to talk to him. PW2 informed him that she found the deceased stealing his maize. The appellant told Court that after talking to Nanteza Margret, he returned to his home and informed his wife that he had a journey to go to Masaka and that he could not pursue the deceased. He stated that at about 4:30 20 - pm, he started his journey to Masaka. While in Masaka, no police officer called him. That when he returned to his home, he was arrested and taken to police. He was told after two days that he was arrested for killing the deceased for stealing his maize. He denied killing the deceased. 25 - ⁵ In his Judgment, the learned trial Judge acknowledged that the evidence was purely circumstantial an<l he relied mainly on the evidence of PW2 and PW3 which evidence placed the appellant at the scene of crime as the one who committed the offence. He also referred to the evidence of DW1 in coming up with his Judgement - In re-evaluating the evidence, we regard the evidence of PW2, pW3 and the defence of the appellant (DW1) as relevant. PW2 testified that when she saw the deceased steal maize from the appellant's garden, she went to the appellant's home and informed him that Mr. Mubiru Godfrey was in his garden stealing maize. When she informed the appeilant, he remained silent. PW2 left and went to her home. PW2 (Nanteza Margret) did not witness the killing of the deceased. Her evidence placed the appellant at his home in Bwebajja at around 3:Oopm, and not near the Serenity Rehabilitation Centre where the body of thc dcceased was found. 10 15 - The next witness was PW3, Detective Akankrvasa Anthony. He testified that he was a Police Officer. He was informed that there was a dead body near the gate of Serenity Rehabilitation Centre. He went there and saw the body. The body was identified to him to be that of the deceased. 20

He did not witness the killing of the deceased. He was informed by Mr. Mangeni that it was the appellant who beat the deceased to death. Counsei for the appellant faulted the triat Judge for relying on the evidence of PW3 to find that the appellant had beaten the deceased to death because what PW3 stated, was only information he received from Mr. Mangeni. 25

⁵ Counsel's submission was that what Mr. Mangeni told PW3 was what PW3 repeated in Court. It u,as his contention that it was hearsay and could not be admissible evidence. Moreover, Mr. Mangeni did not testify in Court.

The issue for our resolution, therefore, is whether what Mr. Mangeni told PW3 was admissible in evidence. The trial Judge is being faulted for relying on the same to hold that the appellant assaulted the deceased to death. 10

The general rule on Hearsay is well articulated in Section 59 of the Evidence Act, Cap 8. it provides: -

## 1s 59. Oral evidence must be direct

t'Oral evidence must, in all cases whatever, be direct; that is to say-

- (a) if it refers to a fact which could be seen, it must be the eaidence of a utitness who sags he or she sano itl - 20 (b) - (c) - (d) - (e) - (0 - ²⁵ This rule is to the effect that a statement given in proceedings about something other than that by the person who directly perceived it, is inadmissible. The rule against hearsay is exclusionary in the sense that it excludes hearsay evidence in the course ofproceedings. This rule has

exceptions clearly stated under Section 30 of the Evidence Act which are not applicable to the circumstances of this case.

In Onyolo Francis versus Uganda CA Criminal Appeal No. 214 of 2019 13'a July, 2023] this court cited with approval Maina wa Kinyatti versus Republic (Cr. Appeal No. 6O of 1983) [1984] eKLR where it stateci that;

"Hearsag or indirect euidence is the assertion ofa person other than the uitness who is testifying, offered as euidence of the truth of that usserteti rullwr than as euidence of the fact that the assertton utas made. It is not oiginal euidence; Cases and Mateials on Euidence bg J. D. Hegdon,1975 p 5. The rule against hearsag is that ^a statement other than one made bg a persoru uhile giuing oral euidence in the proceedings is inadmissible as euidence oJ any fact stated: Archbold Ciminal Pleading, Euidence & Practice 40th Edition pBO9 para 1282."

We have reviewed the evidence of PW3 in regard to the participation of the appellant in killing the deceased. PW3 testified that he was informed by Mangeni John. He did not see Lhe appellant murder the deceased. 20

PW3 testilied that he called the appellant on phone. That the appellant informed him on phone that he was in Masaka and would not return till after two months. The police with this information never pursued the appellant as a suspect for murder. They never checked whether indeed he was in Masaka. The appellant stayed in Masaka and returned after two months. The evidence of PW3 that when he called the appellant the later informed him that he was in Masaka, would corroborate the appellant's testimony that he was in Masaka. 25 30

- ⁵ There is evidence by PW2 that when the appellalt was told that the deceased was stealing his maize, he simply returned to his home. The appellant testilied in his defence that he told his wife that he was not going to pursue the thief since he had fixed his journey to Masaka. He testified that he travelled to Masaka at 4:30 pm on the day the deceased - was murdered. He explained that he went to Masaka to look after his gardens. 10

We have re-evaluated the circumstantial evidence relied on by the learned trial Judge to convict the appellant.

The trial Judge outlined the evidence as follows: -

- 15 - "1) From PW2 the deceased stole the accused's maize at about 3p.m and told the accused at about 4p.rrr. - 2. PW3 received information from his boss that Mubiru who had stolen the maize was dead and his body was at Serenity Rehab Centre gate. - 3. From PW3 and post- mortem Report, the body was beaten before death. - 4. From evidence of PW3 and DW1, the accused was wanted by police and knew police had telephoned home but said he was going to Masaka where he would stay for 2 months. - 5. From the evidence of DW1 the accused, at about 4:30p.m. the probable time of beating the deceased he soon left for Masaka and stayed there till 3 months after. - 6. None of the Prosecution Witnesses gave the distance between the crime scene and the Appellant's home. It was wrong for

⁵ the Judge to conclude that he would make it to the scene, kill the deceased and then run off to Masaka.

- 7. From the evidence of PW3 and PW4 it is true the accused rvas not at Kabulamuliro during that time. - 8. From evidence of DW1 the accused, he went to Masaka to attend to his garden". - 9. PW1 stated that she found Appellant's wife home with him and they actually talked. This would corroborate the Appellant defence that after receiving PW2's report, he told his wife he would not attend to the report but instead opted to continue with his plans to travel to Masaka.

After discussing the legal principles of circumstantial evidence, the trial Judge considered the evidence before him;

"I u-till now compare it to the circumstances before me. Here the accused was not the subject of ang tltreat from the mob or otheruise. He utas actually called on phone bg police and opted not to respond.

I did secondlg not belieue this explanation but he hacl gone to Masaka to attend to another garden for 3 months and lefi a garden PW2 descibed to be hauing seueral crops and mature maize. He ran awag from cime.

I haue also considered the peiod the accused was a-waA. It utas a period of 3 months leauing his home, wi,fe and garden at Kabulamuliro and stayed in Masaka, uas in my uiew intended to ensure that the case is forgotten.

- I am aware that under $S.8$ of the Penal Code Act motive may be $\mathsf{S}$ innocent but in his case the accused having lost his maize at the hand of the deceased, he had the motive to cause his death. **SEE:** BITWIRE V UGANDA (1982) HCB 11 Court held a sane person would not normally kill another for no reason at all. - 10 For the above reasons I did not agree the opinion of the honorable assessors advising me to acquit the accused. I find that he had the motive and by reason of timing and circumstances, he was placed at the scene of crime as he murdered and soon after ran away from *his home for three months"*. (Sic) - We find that the evidence of PW3 as to the fact of the appellant 15 assaulting the deceased to death was hearsay. It was therefore not admissible evidence on the basis of the authorities above quoted. The trial Judge erred in relying on such evidence to convict the appellant of murder. - 20 The trial Judge's finding that the appellant was placed at the scene of crime and he murdered the deceased and soon thereafter ran away from his home for three months, was not founded on any evidence on Court record.

The evidence of PW2 was that when he informed the appellant that Mr.

Godfrey Mubiru was stealing his maize, the appellant simply kept quiet 25 and remained at home.

PW3 also testified that when Mr. Mageni informed him that the appellant beat the deceased to death, he called the appellant on phone immediately. That the appellant informed him that he was in Masaka ⁵ and he would not return till after 3 months. There is evidence that the appellant returned after three nronths and that is when he was arrested.

The appellant in his testimony testified that he informed his wife that he was not going to pursue the thief in his maize garden because he had already set to leave for Masaka, and he left at 4:3opm. This was an

alibi to the charge that he had committed the offence. The Law on alibi is now settled. The Supreme Court in Criminal Appeal No. 1 of 199g Festo Androa Asenua versus Uganda stated the Law as below; 10

> "It is trite that by setting up an alibi, an accused person does not thereby assume the burden of proving its truth so as to raise ^a doubt in the prosecution case". See Ntale vs. Ueanda (1968)E. A. 365. Sekitoleko vs Usanda ( 1967) E. A. 531 and L. Aniseth vs Republic (1963) E. A. 206.

In the case of R vs Chemulon Wero Olan eoI r9371 4 E. A. C. A 46 ,tt was stated:

20 "The burden on the person setting up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible as to have committed the imputed act,,.

The Court held further as follows:

"Moreover, it has been held that the defence of alibi should be disclosed at the earliest possible opportunity. In R vs Sukha Sinsh s/o Wazir Sinch and others (1939) 6 E. A. C. A 145 it was observed by the Court of Appeal for East Africa that:-

> "If a person is accused of angthing and his defence is an o.libi, he should bing foruard that alibi as soon as he can because,

- firstlg, afieruards there is naturo.lly a doubt as to interual, and secondly, if he bings it foruuard prosecution has an opportunity of inquiing into that alibi and it they are satisfi.ed as lo lts genuiness proceedings u.till be stopped". - In the instant case, we find that the appellant raised the defence of alibi at the earliest opportunity according to PW3 - a police officer. It was the duty of the Prosecution to check whether indeed the appeilant was in Masaka at the time the offence was committed or not. That was not done. The appellant did not have the duty to prove thc nlibi beyond raising it. 10 15

In view of the available evidence, we find that there was no direct evidence nor circumstantial evidence that placed the appellant at the scene of crime. It is our considered view that the prosecution evidence was not sufficient to prove that it was the appellant who murdered the deceased. The prosecution evidence did not place the appellant at the crime scene. We therefore Iind that the evidence cannot sustain ^a conviction. We accordingly quash the conviction.

Since the appeal has succeeded on grounds 1,2 and 3, the appeltant is acquitted of the offence of murder. He is fully discharged unless held on other lawful charges. 25

Dated at Kampala this day of Aug $\ldots, 2024$ $\mathsf{S}$

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

EVA K. LUSWATA<br>JUSTICE OF APPEAL

OSCAR/J. KIHIKA<br>JUSTICE OF APPEAL

$20$

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