[2021] UGCA 142

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Bamugemereire, Madrama JJA]

## CRIMINAL APPEAL NO. 480 of 2017

(Arising from High Court Criminal Session Case No.49 of 2012 at Masindi)

## **BETWEEN** Sseremba Dennis= $==$ Appellant **AND** $Uganda==$ =Respondent

(An appeal from the Judgement of the High Court of Uganda [Rugadya, J] *delivered on 24^th January 2017)*

#### **JUDGMENT OF THE COURT**

#### **Introduction**

- The appellant together with 3 other persons was indicted of 2 counts of the $[1]$ offence of aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act. The particulars of count 1 were that on the 20^th day of June 2012 at Park Cell in Hoima District robbed Siboniyo Ibrahim of shs.17,000,000.00 and immediately before or after the said robbery used a deadly weapon, to wit, iron bars on the said Siboniyo Ibrahim. - The particulars of count 2 were that the appellant and 3 other persons on 20^th $[2]$ June 2012 at Park Cell, Hoima District, robbed Mugisha Hussein Edward of Shs.20,000.00 and a passport of Rwanda, and immediately before or after

the said robbery used a deadly weapon to wit iron bars on the said Mugisha Hussein Edward.

- The other 3 persons were acquitted for lack of evidence but the appellant $[3]$ was convicted of both counts and sentenced to 30 years imprisonment and ordered to refund shs.17,000,000.00 to the Siboniyo Ibrahim. - Dissatisfied with the decision of the trial court the appellant appealed to this $[4]$ court against both conviction and sentence. He set forth the following grounds of appeal:

1. The learned trial Judge erred in law and fact when he failed to properly and adequately evaluate the evidence before him as a whole thereby arriving at a wrong conclusion.

2. The learned trial Judge erred in law and fact when he held that the appellant had been properly identified.

3. The learned trial Judge erred in law and fact when he dispensed a harsh and excessive punishment to the Appellant.

4. The learned trial Judge erred in law and fact when he held that the ingredients of Aggravated Robbery were satisfied by the prosecution.

5. The learned trial Judge erred in law and fact when he held [that] (sic) the Appellants Alibi was broken by the prosecution.'

- The respondent opposed the appeal. $[5]$ - The appellant was represented at the hearing of this appeal by Mr Mugweri $[6]$ while the respondent was represented by Chief State Attorney Ms Angutuko. Both counsel relied on the written submissions filed earlier in this matter.

#### **Submissions of Counsel**

We have considered the submissions filed by the learned counsel for the $[7]$ appellant and the respondent. Briefly counsel for the appellant submitted that the appellant had not been properly identified at the scene of crime. The testimony of the single identifying witness, PW2, was simply made up. PW3 would have recognised the appellant as the area of attack was well lit, if the appellant was among the assailants, as he had seen him the previous day. Counsel for the respondent on the other hand submitted that the appellant had been properly identified at the scene of crime by PW2 as there was sufficient light used for catching grasshoppers. She supported the conviction and sentence.

#### **Analysis**

We note that the appellant's grounds of appeal 1 and 4 offend rule 66 of the $[8]$ rules of this court for failing to specify exactly the points of law or fact or mixed law and fact that the appellant contends were wrongly decided by the learned trial Judge. For that reason, we strike out grounds 1 and 4.

#### Grounds 2 and 5

- [9] We shall consider grounds 2 and 5 together as they touch upon the identification of the appellant and whether or not the appellant's alibi was demolished by the prosecution. - The case for the prosecution was that on the evening of the fateful day $[10]$ Siboniyo Ibrahim, PW2, had in his possession Shs. 19,000,000.00 and he was in the company of Mugisha Edward. They had dinner in a restaurant and were moving home when they were attacked by a group of people with iron bars who called out that these were thieves. The appellant robbed Siboniyo Ibrahim of Shs.17 million. Siboniyo Ibrahim recognised 3 of the assailants. accused no.1, accused no. 2, the appellant, and accused no.3, whom he knew very well. Mugisha did not recognise the assailants. The assailants assaulted Siboniyo Ibrahim with iron bars and a panga leaving him in a trench with serious injuries. Mugisha passed out during the incident. - Siboniyo Ibrahim was taken to a clinic for treatment and a police statement $\lceil 11 \rceil$ was recorded from him that evening in which he stated that he had not

identified any of the assailants. Two days later he recorded an additional police statement where he asserted that he recognised the appellant as one of the assailants. He explained this inconsistency that he was initially afraid for his life as he was in a private clinic and there were other persons present as his statement was being recorded.

- $[12]$ On the other hand, the appellant gave unsworn testimony in which he denied the offence and stated that he was in a different place on the date and time the offence was committed. He was in Busisi where he stays while the offence was committed in Kiryatete. - $[13]$ The learned trial Judge directed himself on how to approach the evidence of a single identifying witness which he stated must only be accepted after the most careful scrutiny. He examined the evidence and concluded that while the evidence of Siboniyo was insufficient to convict accused persons no.1, 3 and 4 it was sufficient to convict the appellant whose alibi had been demolished by being placed at the scene of crime. - $[14]$ In his judgment the learned trial Judge did not discuss the inconsistency in Siboniyo's police statements *vis a vis* his testimony in court. While in his first statement to the police on the night of the incident he stated that had not recognised the assailants in an additional statement 2 days later he claimed to have identified the appellant and his co accused persons at the trial. This inconsistency was not minor. It is at the centre of the case for the prosecution. Unless it is satisfactorily explained it would normally result in that witness's testimony being rejected. A number of Supreme Court decisions provide guidance on this point and we shall briefly refer to them. - In Lt. Mike Ociti v Uganda, [1990] UGSC 5, the Supreme Court made the $[15]$ following remarks,

'The considerations which we would have thought of greater consequence were that this sole witness to the identity of the appellant was not proved to be consistent, nor corroborated, on the issue of identity. However, if a sole witness to the identify of an accused is found to be deliberately lying on part of the case, great care must be taken in considering whether the false part, of the testimony can be excluded legitimately from the rest of his evidence,

or whether, it affects his whole evidence. Generally speaking, where a sole witness as to identity is found to be deliberately lying on an important aspect of his evidence, it is not logically possible to believe the witness in part and reject his evidence in part.'

#### $[16]$ In NOO875 Pte Wepukhulu Nyuguli v Uganda [2002] UGSC 14, the Supreme court stated:

'It is trite law that minor inconsistencies, unless they point to deliberate untruthfulness on the part of prosecution witnesses, should be ignored and that major ones which go to the root of the case, should be resolved in favour of the accused (See Alfred Tajar -V- Uganda Cr. Appeal No. 167 of 1969 EACA) (unreported). But each case must be decided on its facts.'

#### In Baluku Samuel and Anor v Uganda [2018] UGSC 26, the Supreme court $\lceil 17 \rceil$ stated:

We are aware that in assessing the evidence of a witness and the reliance to be placed upon it, his or her consistency or inconsistency is a relevant consideration. This Court in Sarapio Tinkamalirwe v. Uganda, Criminal Appeal No. 27 of 1989 (SC) held as follows: "It is not every inconsistency that will result in a witness testimony being rejected. It is only a grave inconsistency, unless satisfactorily explained, which will usually, but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless the Court thinks they point to deliberate untruthfulness."

The explanation, PW2, provided for this inconsistency may well be true. It $[18]$ could also be an afterthought to explain the inconsistency. There is no reason why PW2, would not have told the officer recording his statement that the other persons present should get out before he recorded his statement so that he would disclose the names to the police officer. It is not possible to dismiss the possibility that he had not recognised the assailants as his initial

statement expressly stated which would mean he was lying on that aspect of the case in his testimony.

- The omission by the trial judge to resolve this grave inconsistency together $[19]$ with the fact that Siboniyo was not believed with regard to the testimony against accused no.1 and 3 raises a question as to whether the credibility of Siboniyo had not been shaken. These doubts must be resolved in favour of the appellant. - We are aware of course that it is possible to sever false portions of testimony $[20]$ from the truthful ones. However, it would be odd to believe a witness who had been shown to be lying in part in his testimony in court as was noted by the Supreme Court in Lt. Mike Ociti v Uganda (supra). - In light of the foregoing matters what was needed is for other evidence that $\lceil 21 \rceil$ pointed to the participation of the appellant in the offences with which he stood indicted of. It will be noted that PW3, Mugisha Edward, testified that he knew the appellant, having seen him once, the day before, when he came to Siboniyo's store and asked for the price of beans. In spite of the fact that the area that PW2 and PW3 were attacked was well lit area, PW3 did not recognise the attackers though he knew the appellant. This bolsters the case for the defence rather than the prosecution. - When the totality of the evidence for the prosecution is considered it is not $[22]$ possible to conclude that the appellant's alibi had been broken as the learned trial Judge concluded. - We are satisfied that it was unsafe to rely on the testimony of the single $[23]$ identifying witness in this case and conclude that the appellant had been properly identified and placed at the scene of crime. The testimony of this witness in respect of 2 accused persons was found unreliable. Secondly the testimony in court was inconsistent with the first statement he made to the police, which inconsistency was not sufficiently explained. Thirdly the other person present at the attack, PW3, who knew the appellant, had not recognised the appellant, as one of the assailants that evening.

#### Decision

- We accordingly allow this appeal, holding that the appellant had not been $[24]$ properly identified as a participant in the crimes he was accused of. We quash the convictions and set aside the sentences imposed upon him. We order the immediate release of the appellant, unless he is held on some other lawful charge. - [25] It is unnecessary to consider the appeal against sentence.

#### **Other Remarks**

[26] Before we take leave of this case we must note that we are gripped with some measure of angst over the delays in our criminal justice system. The offences in this matter were committed in 2012 and the accused persons were taken into custody almost immediately. A trial occurred 5 years later in which this appellant was convicted and the other accused persons acquitted and released. The appellant has spent another 5 years in custody before his appeal was heard. After 10 years in custody he is told that you were wrongly convicted. This type of delay is ruinous and unjust to anyone's life caught up in the criminal justice system of our country. It behaves those responsible for this state of affairs to change course and return to the promise of our constitution of speedy trials.

Signed, dated and delivered at Kampala this $\overrightarrow{3}$ day of $\overrightarrow{V}$ .

redrick Egonda-Ntende

**Justice of Appeal**

Catherine Bamugemereire **Justice of Appeal**

Christopher Madrama **Justice of Appeal**