[2018] UGSC 100

## THE REPUBLTC OF UGANDA IN THE SUPREME COURT OF UGANDA

# (CORAM: ARACH. AMOKO; MWANGUSYA; MUGAMBA; BUTEERA; JJ. S'C. NSHTMYE AG. J. S. C.)

## CRIMINAL APPEAT NO. 28 OF 2014.

#### BETWEEN

SSEMANDA CHRISTOPHER MUYINGO DENIS

) ^rI-'--------- --------------------=== AppEtl-ANTS

#### AND

\ I

UGANDA ) = RESPONDENT

(Arising from a decision of the Court of Appeal in Criminal Appeal No'77 of 2010 sitting at Kampala presided over by Opio-Aweri, Mwondha, Kakuru, JJA dated the 17rh day of December 2013)

## JUDGMENT OF THE COURT.

The two appellants were charged, tried, convicted and sentenced for murder by the High Court. They appealed to the Court of Appeal on the single ground that the High Court sentence was harsh and excessive. The Court of Appeal heard the appeal and upheld the High Court sentence of 35 years imprisonment for each of the appellants.

Aggrieved by this decision the appellants appealed to this court again on one grou nd:

'!. THAT the learned Justices of Appeal erred in law when they failed to adequately re-appraise the evidence regarding sentence hence reaching an erroneous decision."

### Representation,

ln this Court, at the hearing, the appellants were represented by learned counsel, Mr. Henry Kunya. The respondent was represented by Mr. Sam Oola, a Senior Principal State Attorney.

Counsel for both parties filed written submissions which they adopted and supported with some oral highlights at the hearing of the appeal. We shall consider both the written submissions and the oral highlights in resolution of the appeal.

#### Su bm issions

counsel for the appellants submitted that the learned Justices of Appeal failed to re-a ppra ise/re-eva lu ate the evidence on record as regards the sentence imposed by the trial court and hence reached an erroneous decision.

counsel contended that various mitigatin8 factors including the appellants being first offenders, having spent on remand over 3 years, being of youthful age and their family responsibilities were put forward but that the learned trialJudge only took into account the ages of the appellants and the period they spent on remand. lt was submitted that the judge omitted/overlooked the fact that the appellants were first time offenders and that they had family responsibilities. Counsel contended further that the learned Justices of the Court of Appeal erred in law when they found that the learned trial Judge took into account all the mitigating and aggravating factors and that the judge carefully considered them before imposing sentence.

Counsel submitted that the Justices of the Court of Appeal had failed to reappraise the evidence on sentence and that as a result they had confirmed an erroneous sentence of 35 years. Counsel submitted that the learned trial Judge had imposed an erroneous sentence of 35 years as a result of misapplication of the principles of sentencing and that that had happened when the trial Judge had held:-

"considering the fact that they are still young men who have a long way to go and coutd reform in future, all efforts should be made to ensure that they serve the largest part of their sentence before they are released to ensure that they reform and also to protect society of such murders."(sic)

Counsel argued that incarcerating the appellants for 35 years does not provide them with a chance to reform and that it is not helpful to society given their youthful age counsel added that that defeats the purpose of raising the mitigating factors of age and the possibility of reform.

Counsel prayed this court to find that the sentence of 35 years imprisonment imposed by the trial Judge and confirmed by the Justices of Appeal was arrived at in error as the Court failed to take into account all the mitigating factors which

were available to the appellants. He invited this court to allow the appeal and set aside the sentence of 35 years imprisonment. Counsel prayed that court substitutes it with an appropriate sentence that meets the ends of Justice.

Mr. Sam Oola for the State opposed the appeal and supported the sentence imposed on the appellants. According to counsel, both the High Court and the Court of Appeal considered all the material factors in passing and confirming the sentences respectively.

Counsel submitted that this being a second appeal the appellants have a right of appeal against the legality of the sentence and not its severity.

He submitted further that an appellate court could only interfere with a sentence where it is shown that the sentence was either

- (1)lllegal, - (2) Manifestly excessive, - (3) harsh, where there was a failure by court to exercise discretion, or - (4) where there was failure to take into account a material factor or circumstance which ought to be considered when passing sentence where the trial court acted upon wrong principles.

Counsel contended that none of those situations arose in the instant appeal. Counsel argued that an appellate court would not act and interfere with ^a sentence on the mere ground that if members of the court had been trying the case they would themselves have passed a different sentence. He maintained that

the aggravating factors in the instant case had been weighed against the mitigating factors.

Counsel added that the court could adopt its own style of writing a judgment and did not have to regurgitate or reproduce the allocutus of the appellants in order to illustrate that it considered all the mitigating factors.

The Senior Principal State Attorney finally submitted that the Court of Appeal committed no error when it upheld the sentence of 35 years imprisonment imposed by the High Court a,rd there was no reason for this Court to interfere with the sentence. He concluded that the appeal should therefore be dismissed.

## Consideration by court.

This is a second appeal and it is on one ground that the Court of Appeal failed to re-evaluate evidence in regard to sentence and as a result upheld an erroneous sentence. ln resolving this ground of appeal, we shall bear in mind our duty as ^a second appellate court handling an appeal against sentence.

This court has stated its duty as a second appellate court in numerous cases but it will suffice for us to repeat what the court stated in Criminal Appeal No. 14 of 1998 (unreported) Kagunda Fred versus Uganda:

"We wish to reiterate the view which we expressed in the case of Kifamunte H. v Uganda (Supreme Court Crim. Appeal No. 10 of ¹⁹⁹⁷¹ (unreported) and Bogere Moses and Kamba R. v Uganda Supreme Court

Crim. Appeal No. 1 of 1997 (unreported). This view is that in a criminal appeal to this court, except in the clearest of cases, we, a second appellate court, are not required to re-evaluate evidence like a first appellate court. This is the essence of the provisions of section 5(1) (a) (supra)".

ln regard to sentencing this court set out principles upon which it can interfere with a sentence of a lower court in the case of Kiwalabye Bernard vs Uganda, Criminal Appeal No. 143 of 2001 (unreported).

"The appellate court is not to interfere with the sentence imposed by ^a trial court where that court has exercised its discretion, unless the exercise of 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 circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle

This court would not alter the sentence merely because members of this court feel they would have passed a somewhat different the word sentence if they were the ones sitting (See Ogalo s/o Owoura v R [195a1 24 EACA 270.y'

we have studied both the High court and court of Appeal proceedings and Judgments and we shall reproduce the portions relevant for sentencing which is the area of contention in this appeal.

The learned High Court Judge in sentencing stated:

"The offence of murder involves the taking of life of another person. lt is for this reason that a person convicted of this offence may be sentenced to suffer death. Life is sacred, no one has a right to take it wantonly' ^I have carefully considered the submissions of prosecution in this case in atgravation; I have also carefully considered the submissions made by the defence counsel for the convicts and what the convicts themselves had to say in mitigation of the sentence. However, the convicts meted a lot of violence onto the victim. They put him through agony and the convicts (Muyingo) broke his arm whilst (Ssemanda) hit his head mercilessly. People should be discouraged to take the law in their hands' The propagation of mob justice is savagery and should be ended.

The convicts murdered one of their own blood. This alone will bring ^a curse on their lives and future generations. There is no need for a death penalty although this Court would have sentenced you Ssemanda Christopher and Muyingo Denis to a maximum penalty to death' However, considerins the fact that they are still young men who have ^a long wav to so and could reform in future, all efforts should be made to ensure that they serve the largest part of their sentence before they are released to ensure that they reform and also to protect society of such murders. The three vears spent on remand has been considered. I herebv sentence you, Ssemanda Christopher to a tem ol imprisonment oI thirty' Iive (35) yeors and l, hereby sentence you, Muyingo Denis to on imprisonment term oI thirty'live (35) yeors."

The appellants appealed against this decision to the Court of Appeal and the appeal was on one ground; that

"The learned trial Judge erred in law and fact when he passed a very harsh and excessive sentence of 35 years imprisonment."

The submissions of both counsel at the Court of Appeal were brief and we reproduce them below:-

## "Wakabala:

This is an appeal for judgment of Nahamya, J. They were convicted ot murder and sentenced to 35 years. The Judge took into account their ate. Semanda was 35 years old and the Muyingo was 37 years' By the time they come out of jail they will be too old.

Taking into account the period of remand, the sentence is excessive. ^I pray for a more lenient sentence.

## Khisa:

The principles by which this court can interfere must be unlawful or excessive. The maximum sentence is death. The appellants pleading allocutus and set out mitigation measures the mitigation measures wa9 taken into account. So were the aggravated factors.

As the maximum sentence is death so 35 years is not excessive'

## Wakabala:

I pray for a lesser sentence. The deceased was not killed instantly, he died in hospital. He had stolen thls property. 35 years is excessive' I pray for a lenient sentence.

## Court:

Judgment at 3.00 p.m."

The Court of Appeal considered the appeal and we reproduce the relevant portion of the Court's judgment below:

"We do not agree with Ms Wakabala learned counsel for the appellants that a sentence of 35 ol even 37 years imprisonment in the circumstances of this case is manifestly excessive, appellants having been convicted of murder which offence carries a maximum sentence of death.

This Court cannot alter a sentence on the mere ground that if the members of the appellant court had been trying the appellant they might have passed a somewhat different sentence. lsee Ogalo S/o Owouro versus R [7954] 24 EACA 270).

We find that the learned trial judge took into account all the mitigating and aggravating factors and carefully considered them before imposing the sentence. We have found no important matter or circumstances which the learned trial judge ignored to consider'

we agree with Ms. Betty Khisa learned Ag. Asst' DPP that the learned trial judge considered all the mitigating factors and imposed a iust sentence.

We have found no reason to interfere with the discretion of the learned trial Judge.

This appeal accordingly fails' We uphold the sentence of 35 years imprisonment for each of the appellants'"

we find that the court of Appeal Justices handled the appeal that was presented to them. lt was on only one ground of appeal. They listened to counsel for the appellants and to counsel for the respondent on that ground. The appeal was disposed of that afternoon when they gave Judgment on what was before them. We do not find any fault with the Court of Appeal's resolution of the appeal on the ground that was presented to the Court.

Before this Court now the appellants are not complaining about the Court of Appeal's handling and resolution of what was presented to the Court.

They are now raising a new ground of appeal altogether that was not raised at the Court of Appeal.

we are of the view that counsel for the appellants and the appellants whom they represent find no fault with the court of Appeal's decision and that probably is the reason why they are not raising any issue/corn pla int about the court of Appeal,s decision that the High court sentence was not harsh and excessive.

ls it proper for an appellant to raise a new ground of appeal at the Supreme Court when such a ground was never raised or considered by the Court of Appeal?

An appeal is defined by Black's Law Dictionary Sixth Edition as:

"resort to a superior (i.e. appellate) Court to review the decision of an inferior (i.e. Trial) Court or Administrative agency' A complaint to ^a higher tribunal of an error or iniustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed."

cou rt. It is clear to us that a complaint on appeal should be about a decision of the lower

This Court had occasion to give guidance on this matter in Criminal Appeal No.35 of 2OL4, Nalongo Naziwa Josephine versus Uganda (unreported) and it held:-

"We note that the issues raised in the grounds of appeal before this coutt do not emanate from any of the proceedings in the lower courts. They raise entirely new and fresh grounds. The law is that the grounds being framed on a memorandum of appeal should emanate from the decision and proceedings of the lower court, This point was underscored in Ms Fang Min v Belex Tours and Trovel Limited SCCA No. 06 ol 2073 where the Supreme Court held thus:

'..,on oppeal, motters thot were not roised and decided on in the triol court cdnnot be brought up os firesh matters. The Court would

be wrong to base its decision on such motters thot were not raised os issues ond determined by the viol Court.'

More particularly so, in a second appeal such as the instant one, an appellant is not at liberty to raise matters that were not raised and considered by the traal court and the first appellate court. Accordingly this appeal is incompetent and should be dismissed'"

This court had considered the same issue in criminal Appeal No.35 of ²⁰⁰² Twinomugisha Alex Alias Twine and 2 Others and had held:

"with respect, we think this ground is not maintainable, because it was not raised before the court of Appeal and considered by the Justices.

Therefore, it is erroneous to criticize the Justices of Appeal as having erred when the complaint was not raised before them for consideration."

Following the authorities above quoted, we dismiss the ground of appeal in the instant appeal for being incompetent.

We uphold the decision of the Court of Appeal'

The appellants should continue to serve their sentences.

II

Hon. Justice S. Arach-Amoko JUSTICE OF SUPREME COURT

$\mathbf{t}^{\prime}$

Hon. Justice E. Mwangusya JUSTICE OF SUPREME COURT

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ Hon. Justice P. Mugamba JUSTICE OF SUPREME COURT

Hon. Justice R. Buteera JUSTICE OF SUPREME COURT

Hon. Justice A. N. Nshimye AG. JUSTICE OF SUPREME COURT

this

Dated

day of September $6^th$

2018.

$6|9|2018$ .