[2022] UGSC 34

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM : OPI O-AW E Rl, TIBATE MW A-E Kl Rl KU Bl NZA, M U GAM BA, M U HANG U Zt, CH I BITA, tt. SC

### CRIMINAT APPEAL NO. 85 OF 2018

## SSEMUJJU TWAHA APPELLANT

#### VERSUS

UGANDA RESPONDENT

10 (Appeal from the judgment of the Court of Appeol before Egonda-Ntende, Obura, Musoto, JIA in Criminol Appeol No. 29 of 201j doted 30/7/20L8)

### JUDGMENT OF THE COURT

The appellant and three others were indicted for and convicted of aggravated robbery ClS285 and 286(2)ofthe PenalCode Act. They were sentenced to 35 years' imprisonment by the trial court. They appealed

15 to the Court of Appeal which quashed the convictions of the three coaccused appellants but upheld the conviction of the appellant and reduced his sentence from 35 years to 20 years' imprisonment.

#### Brief background

20 The facts giving rise to this appeal are that on 2nd September,2008, Ntsinga William, a cattle keeper in Kyankwanzi, Kiboga District, was riding his TVS motorcycle Reg. No. UDF T|TZback home when he saw ^a group of people ahead of him. Using the motorcycle headlights, he identified some of them as the appellant and three others(acquitted) and when he stopped to greet them, they moved into the bush and one was

25 holding something that looked like a gun. Sensing danger, he decided to ride off but before he could, an iron bar was pushed into his motorcycle wheel forcing it to stop and he felling him down. The assailants hit him with the iron bar until he was unconscious. Then they stole his motorcycle, mobile phone, shoes and Shs.7,000,000/=. |n the morning he was rushed to hospital and the appellants were arrested in relation to the offence.

The grounds of the appeal as stated in the memorandum of appeal are as follows: -

- 1. The learned Justices of Appeal erred in law when they upheld the appellant's conviction basing on weak and unreliable evidence of a single identifying witness. - 2. The learned Justices of Appeal erred in law when they upheld the appellant's conviction basing on weak and unreliable circumstantial evidence. - 40 3. The learned Justices of Appeal erred in law when they sentenced the appellant to 20 years' imprisonment without taking into account the period spent on remand.

Wherefore, the appellant prayed that the appeal be allowed.

# Representation.

45 At the hearing, the appellant was represented by learned counsel Mr. Andrew Ssebugwawo on State brief while the respondent was represented by Ms. Ann Kabajungu, Chief State Attorney. The appellant was present through video link at Luzira Upper Prison.

# Submissions for the appellant.

Counsel submitted on grounds one and two together then ground three separately. 50

Counsel for the appellant submitted that this court has a duty as the second appellate court to determine whether the Court of Appeal as the first appellate court properly re-evaluated the evidence. According to counsel, the Court of Appeal failed to do so in the above mentioned grounds.

60 65 On the first ground, counsel contended that the learned Justices of Appeal erred in law when they convicted the appellant on weak evidence given by a single identifying witness. Counsel argued that the prosecution failed to link the appellant to the assailants given that the evidence shows that the assailants came from the bush as the victim was talking to the appellant. Counsel added that the conduct of the appellant at the scene of crime was not that of a guilty person because if the appellant was part of the attack on the victim, he wouldn't have talked to the victim. Further, counsel pointed out that the assailants could have

used the moment to attack the victim because the prosecution did not adduce evidence to prove that the appellant commanded the assailants.

10 75 Counsel submitted that PW1's evidence of identification was never corroborated. He argued that since the identification evidence was of ^a single witness, it needs to be corroborated. Counsel contended that the blood stained trouser that was allegedly found at the appellant's home was never tendered in court and that it was never described to court either. Counsel argued that failure to tender the said trouser and describe it to court was a big gap in the prosecution evidence and that this failure ought to have been ruled in favor of the appellant.

On the second ground, counsel faulted the learned Justices of Appeal for having based the appellant's conviction on weak and unreliable circumstantial evidence. Counsel relied on Simon Musoke Vs. R [1958] E. A7L5, for the preposition that where the prosecution case depends solely on circumstantial evidence, the court must, before deciding on the

conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

85 90 On the third ground, counsel submitted that the sentence imposed on the appellant by the learned Justices of Appeal was illegal. He pointed out that the first appellate court failed to consider the period spent on remand while sentencing the appellant. Counsel relied on Rwabugande Moses Vs. Uganda SCCA No. 25 of 2OL4 and Nashimolo Paul Kibolo Vs. Uganda, SCCA No. 754 of 2014, wherein court held that consideration of the remand period is arithmetical. Counsel prayed that the appeal be allowed, the appellant's conviction be quashed and the sentence be set aside.

### Submissions for the respondent.

95 Counsel for the respondent opposed the appeal in part. Counsel specifically opposed the appellant's appeal on conviction but conceded on the appeal against sentence. Counsel submitted on grounds one and two concurrently.

100 105 Counsel submitted that the appellant's case did not entirely depend on circumstantial evidence but also on direct evidence of identification. Counsel supported the findings of the Court of Appeal that the appellant was properly identlfied by PW1. Counsel relied on Abdalla Nabulere & 2 Ors Vs. Uganda, Court of Appeal Criminal Appeal No. 9 of 1978 and pointed out that the appellant had been known to PWl for over 10 years, the incident lasted for about 2 minutes, the motorcycle headlights were on and the duo were in close proximity of 3 meters. Counsel contended that the appellant was properly identified by PW1 because there were no chances of mistaken identity.

On the issue that both the trialjudge and the learned Justices ofAppeal did not caution themselves on the dangers of convicting the appellant on the evidence of a single identifying witness, counsel submitted that there was no need for caution because the conditions favouring correct identification were satisfactory.

115 Counsel argued that there is need for concurrence in findings where two lower courts have taken the same decision in a matter. ln support of this argument counsel cited this court's decisions in Baluku Samuel & Anor Vs. Uganda, Criminal Appeal No. 21 ol 2OL4 and Kakooza Godfrey Vs. Uganda, Criminal Appeal No. 03 of 2008.

1,20 1,25 Counsel contended that the inconsistences pointed out by counsel for the appellant about the color of the nigino sandals were minor and did not go to the root of the matter given the fact that the appellant had been correctly identified at the scene of crime. She relied on Baluku Samuel Vs. Uganda, (supra) wherein court stated that the issue of inconsistency is irrelevant because the critical evidence in this case was not what the first appellant was wearing at the scene, but rather the fact that he was at the scene and was involved in the sharing of the recovered money. Counsel maintained the same position in the above case in response to the untendered blood stained trousers.

ln response to the third ground of appeal on illegality of sentence, counsel conceded that the learned Justices ofAppeal failed to deduct the

- 130 period spent on remand by the appellant. Counsel relied on Nashimolo Paul Vs. Uganda, (supra) for the preposition that in arriving at ^a sentence, the trial court must calculate the period the appellant has spent on remand and subtract it from the proposed sentence. Counsel submitted that this was not done by the learned Justices of Appealthus - rendering the sentence of 20 years'lmprisonment illegal in view of Article 23(8) of the Constitution. 135

140 145 Further, counsel submitted that this court has powers of a trial court while determining appeals as provided for under section 7 of the Judicature Act. Counsel pointed out that the appellant brutally attacked the victim by hitting him on the head with an iron bar. Counsel added that the victim was unconscious for 2 months and was hospitalized for about 5 months. He added that the victim was robbed of his motorcycle, UGX 7,000,0001=, a Nokia mobile phone and nigina sandals. Counsel submitted further that the offence of aggravated robbery carries ^a maximum sentence of death and that the sentencing range under the sentencing guidelines is 30 years.

Counsel relied on Ojangole Peter Vs. Uganda, SCCA No. 2O of 2OL9, where the appellant was sentenced to 32 years for the offence of aggravated robbery. Counsel prayed court to sentence the appellant to 32 years considering the aggravating factors.

# Consideration of the appeal.

We note that this is a second appeal. This court has held in several cases held that except in the clearest of cases, it will not re-evaluate evidence in the manner as a first appellate court is required to do. For that reason, this court will interfere with concurrent findings of fact by the trial court and the first appellate court only where it is satisfied that a miscarriage ofjustice has occurred. See: Bogere Moses Vs. Uganda, SCCA No. 1of 1997 Kifamunte Henry Vs. Uganda, SCCA No. 10 of 1997 and Euchu MichaelVs. Uganda, SCCA No.54 of 2000.

150 Both counsel argued grounds one and two together and ground three separately. We shall also resolve them in that order.

Judging from the evidence on record, it is evident that the prosecution case was mainly based on the evidence of a single identifying witness, Ntsinga William (PW1). The law relating to this kind of evidence was

## stated in: Abdallah Bin Wendo & Sheh Bin Mwambere Vs. R (1953) 20 165 **EACA 166** at page 168 as follows:

"Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to quilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error".

The circumstantial evidence identified by counsel for the appellant is the evidence of the pair of blood stained trousers that were allegedly found at the appellant's home which were not tendered in court. 180

The learned Justices of the Court of Appeal were alive to the above cardinal principles of our law as may be seen in the following passage of their Lordships' judgment: -

"The law on circumstantial evidence has been echoed in a number of cases. The test to be applied was re-stated in the case of **Simon Musoke** 185 **VR [1958] EA 715** in which the Court of Appeal of East Africa held that;

> "in a case depending exclusively upon circumstantial evidence, the court must find before deciding upon conviction that inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of quilt and also before drawing the inference of quilt the court must be sure that there are no co-existing circumstances which would weaken or destroy the inference of guilt."

See also Teper Vs. R (1952) 2 AllER 447 and Andrea Obonyo & Others **Vs.** R (1962) EA 542 where the principle governing the application by 195 courts of circumstantial evidence were considered. We do not find the evidence in this case sufficient to meet the test in the above case in regard to the $1^{st}$ to $3^{rd}$ appellants. We therefore find that the evidence placing the $1^{st}$ to $3^{rd}$ appellants at the scene of the crime was insufficient and as such, the $1^{st}$ and $2^{nd}$ arounds of appeal succeed in regard to the $1^{st}$ 200 appellant, (Baingana Geoffrey), the 2^nd appellant, (Sempa Edirisa) and the $3^{rd}$ appellant, (Sengiyunva Juma).

$\overline{a}$

The $4^{th}$ appellant, on the other hand, was duly identified by the victim, PW1, who testified that he saw him clearly and even talked to him before he was hit with an iron bar. The case of Abdallah Nabulere & 2 Ors Vs. 205 Uganda, SCCA No. 9 of 1987 set out the law regarding identification by a single witness. The learned trial judge also cited the Abdallah case and *held that;*

"as already summarized in this judgment the factors to rule out mistaken identity existed and so the alibi had been already perforated by the prosecution evidence."

We do not agree with the appellant's counsel that the trial judge failed to warn herself of the danger of convicting on the evidence of a single identifying witness. She held that the factors to rule out mistaken identity existed. The victim, PW1, had known the 4^th appellant for about 10 years 215 and on the fateful day, he recognized him and even talked to him before he was hit with an iron bar. Thus, the conditions favoring identification of the $4^{th}$ appellant were favorable and as such, we find that the prosecution discharged its duty beyond reasonable doubt and the learned trial judge rightly held that the 4^th appellant committed the 220 offence of aggravated robbery."

In the instant case, the courts below not only considered the principles applicable to the case correctly, but also respectively evaluated and re-

evaluated the evidence properly. We do not find any reason to fault either court on the concurrent finding that the appellant had been correctly identified by the single witness.

On the issue of contradictions about the color of lhe nigino sandals, we note that this was not raised at the Court of Appeal and we cannot fault the court on the issues not brought before it for consideration. Rule 102 of the Court of Appeal rules provides: -

102. Arguments ot heoring.

At the heoring of on oppeol in the court-

(o) no porty shall, without the leove of the court, orgue thot the decision of the High Court should be reversed or voried except on o ground specified in the memorondum of oppeol or in o notice of cross-appeol, or support the decision of the High Court on ony ground not relied on by that court or specified in a notice given under rule 93 of these Rules;

240 See also Hilda Wilson Namusoke & 3 Ors Vs. Owalla's Home lnvestment Trust Ltd & Commissioner Land Registration, SCCA No. 15 oJ 2Ot7.

Grounds one and two therefore fail.

On the third ground, the appellant submitted that the learned Justices of Appeal imposed an illegal sentence on the appellant because the court did not considerthe period spent on remand. This was also conceded to

by the respondent.

While sentencing the appellant, the learned Justices of Appeal noted as follows: -

"We note thot the 4th oppellant is o first offender with no previous record. He is copoble of reform ond was on remond for 5 years

before conviction. We take note of the brutal monner in which the offence wos committed. lt wos short of cousing death of the complainont. The offence is rompont in the oreo.

Toking into account the obove foctors ond the period he had spent on remond, we substitute the j5 yeors' imprisonment sentence with 20 years' imprisonment from the date of conviction which is 24/04/201i."

We note that the learned Justices of Appeal failed to consider the period of remand which renders the sentence of 20 years' imprisonment illegal. ln the Nashimolo case (supra), which was cited by both counsel, court while departing from the position in Abelle Asuma Vs. Uganda wherein court had stated that taking into account the period spent on remand is not necessarily arithmetical, court held: -

"The cose of Abelle Asumqn Vs. Ugondo (supro) which the leorned senior state attorney relied on wos delivered on 79th April, 20L8 a year ofter the decision in the case of Rwobugonde Moses Vs. Ugondo (supro). This court was, therefore, bound by its previous decision. The principle of horizontol precedent, which meons, thot q court is bound by its decisions in the absence of exceptionol reosons to wqrront the deporture from its decision applies.

270 The decision in Abbelle Asumon Vs. Ugondo (supro) was made per in curium to the extent thot it mode reference to an outlowed position."

Court therefore, went on to sentence the appellant following the position in the Rwabugande case. Similarly, we shall invoke section 7 of the.,ludicature Act that confers upon this court the same powers as those of the original court to sentence the appellant.

As already noted above, the appellant committed a grave offence of aggravated robbery which carries a maximum sentence of death. The offence was committed in a brutal mannerand the victim almost lost his life. However, the appellant is a first offender. He is capable of reform and he had spent 5 years on remand before his conviction.

ln Naturinda Tamson Vs. Uganda, SCCA No. 025 of 2015, this court confirmed a sentence of 16 years for the offence of aggravated robbery.

285 ln Bogere Moses & Anor Vs. Uganda, SCCA No. 39 of 2015, court confirmed a sentence of 20 years'imprisonment for the offence of aggravated robbery.

In Tukamuhebwa David Junior & Anor Vs. Uganda, SCCA No. 59 of 2015, this court sentenced the appellant to 20 years' imprisonment and then to 16 years and 5 months'imprisonment after deducting a period of ³ years and 7 months spent on remand.

ln the circumstances, we consider a sentence of 20 years' imprisonment appropriate. However, in line with Article 23(8) of the Constitution and the position in the Rwabugande case, we deduct 5 years the appellant had been on remand. The appellant will now serve a sentence of 15 years' imprisonment from the time of his conviction Qa/a/20t3lr.

Dated at ramd/ta \*,ir.......\*. I..........day or........flkj.r.. S. In...........202r.

{:. Rubby Opio-Aweri JUSTICE OF THE SUPREME COURT

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Prof. Lillian Tibatemwa-Ekirikubinza JUST]CE OF THE SUPREME COURT

305 . . . . . . . . . . . . . . . . . . . .

Paul Mugamba JUSTICE OF THE SUPREME COURT

.......,............................... **Ezekiel Muhanguzi**

JUSTICE OF THE SUPREME COURT

Mike Chibita

JUSTICE OF THE SUPREME COURT 315

The Judgment destroyed the 4/03/202 $2\epsilon$