[2021] UGSC 59

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KOLOLO

# Coram: Arach-Amoko; Mwondha; Mugamba; Tuhaise; Chibita; JJSC

## **CRIMINAL APPEAL NO. 17 OF 2020**

#### **1. SUUNA STEPHEN**

2. MALA YAKOBO

......................................

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#### **VERSUS**

**RESPONDENT UGANDA**

(Appeal arising from the decision of the Court of Appeal sitting at Masaka (Musoke & Muhanguzi, JJA and Kasule Ag. JA) in Consolidated Criminal Appeals No. 542 & 548 of 2016 delivered on 3^rd February 2020)

## Judgment of the Court

The appellants were convicted of murder. This is a second appeal following the dismissal of their appeal by the Court of Appeal.

## **Brief background**

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The facts giving rise to this appeal as accepted by the trial court and the first appellate court are that Ssebulime Yasin (the deceased) was a resident of Kiwago village in Lwengo District. He was aged 36 years at the time the offences were committed. On 28^th March 2013 at around midnight, the deceased was on his way home from Kyazanga. He met the appellants along the way. He stopped and asked them why they had waited for him along the way. The first appellant grabbed the deceased and the second appellant hit the deceased with a stick on the stomach before they left him. The deceased dragged himself up to the home of the Chairman LC 1, one Kamanyu Paul to whom he reported the assault. The Chairman gave the deceased a letter to report to police. On 29^th March 2013, the deceased reported at police and was issued with a PF 3 form so as to be examined by Kyazanga Health Centre IV. The deceased was examined, but he died on 30^th March 2013. The death was reported to police and investigations commenced.

A post-mortem report revealed that the deceased had bruises and was oozing blood through the penis. The cause of death was internal injuries in the chest and abdomen. The appellants were subsequently arrested and indicted on one count of murder contrary to Section 188 and 189 of the Penal Code Act. They were examined on a PF24 form and found to be of sound mind. They were tried at the High Court at Masaka (Flavian Zeija J, as he then was), convicted and each sentenced to 60 years imprisonment.

Being dissatisfied, the appellants appealed to the Court of Appeal against conviction and sentence on the following grounds:-

- 1. The learned trial Judge erred in law and fact when he failed to sum up the case to the assessors thereby causing a miscarriage of RN justice. - 2. The learned trial Judge erred in law and fact when he convicted the appellants basing on identification made by the deceased thereby wrongly convicting the appellants. - 3. The learned trial Judge erred in law and fact when he sentenced A1 to imprisonment of 60 years and A2 to imprisonment of 60 years which was illegal, manifestly harsh and excessive.

The learned Justices of Appeal found that summing up to Assessors was done (but the content of the summing up notes is not on record). With regard to proper identification of the appellants, the learned Justices of Appeal were satisfied with the findings of the learned trial Judge and held that the appellants participated in the commission of

the crime. On ground 3 regarding sentence, the learned Justices of Appeal found that the sentence imposed on the appellants was illegal since the learned trial Judge did not consider the period of 2 years and 8 months the appellants had spent in pre-trial detention. They accordingly set aside the sentence and substituted it with a sentence of 22 years and 4 months imprisonment against each of the appellants.

The appellants were aggrieved with the conviction and the sentence of the Court of Appeal. They filed this appeal based on the following grounds:-

- 1. The learned Justices of the Court of Appeal erred in law and fact when they failed to re-evaluate the evidence and as a result, they came to a wrong conclusion. - 2. The learned Justices of the Court of Appeal erred in law and fact when they convicted the appellants based on improper identification made by deceased person thereby wrongly convicting the appellants. - 3. The learned Justices of the Court of Appeal erred in law and fact when they imposed an illegal and manifestly excessive sentence of 22 years against the 1^st and 2^nd Appellant.

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### Representation

At the hearing of this appeal, the appellants were represented by Mr. Emmanuel Muwonge. The respondent was represented by Mr. Andrew Odiit, Senior Assistant Director of Public Prosecutions, holding brief for Ms. Joan Twikirize who was reportedly indisposed.

The appellants were in attendance of Court by video link.

## **Submissions for the Appellants**

Counsel for the appellants argued grounds 1 and 2 together. He submitted that the appellants were convicted mainly based on the evidence of identification of a single identifying witness who was the deceased. He contended that the deceased's evidence on the identification of the appellants as the ones who had attacked him was inadmissible because he was attacked very late in the night when the conditions for correct identification were very difficult.

Counsel referred this Court to paragraph 3 page 7 of the Court of Appeal judgment (page 23 of the record of appeal) and submitted that the first appellate court made a wrong finding that the learned trial judge properly evaluated the evidence on record and came to the right conclusion that the appellants were the deceased's attackers. According to Counsel, the observation was made without the court making a proper re-evaluation of the evidence on record as required by law.

Counsel submitted that if the first appellate Court had properly reevaluated the evidence, it would have taken into consideration, that the deceased's failure to disclose the identity of the attackers to PW1 and PW2, in darkness, meant that the deceased did not properly identify the attackers as being the appellants. Counsel also submitted that the statement of PW3, who was a police officer who recorded the statement of deceased on 29^th March 2013, some days after the attack, should have been taken as an aforethought and this evidence should not have been Dan allowed.

Counsel further referred this Court to page 8 of the judgment of the Court of Appeal (page 24 of the record of appeal), paragraph 3, where the court gave a general over view of the principles of identification as set out in the case of Abudala Nabulere vs Uganda [1979] HCB 79 without breaking down the principles regarding how the appellants were positively identified by the deceased. According to Counsel, this failure by the first appellate court to carry out its core duty of reevaluating the evidence of identification of the appellants, led to a miscarriage of justice.

On ground 3 regarding the sentence, the appellants' Counsel submitted that the learned Justices of Appeal did not take into consideration the mitigating factors in favour of the appellants, like the fact that they were first offenders and they had spent about 2 years on remand. He also submitted that the sentence of 22 years and 4 months imprisonment passed against the appellants commencing from 22/12/2016, was illegal, manifestly excessive and harsh in the circumstances.

Counsel prayed that all orders in the memorandum of appeal be granted.

# **Submissions for the Respondent**

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On grounds 1 and 2, Counsel for the respondent submitted that the learned Justices of Appeal were alive to the law regarding identification and rightly concluded that the appellants had been correctly identified by the deceased. MAT

Counsel referred this Court to page 36b of the record of appeal and submitted that the deceased was an employee of the Chairman (PW1); that A1 (first appellant) was a son to the Chairman while A2 (second appellant) was the first appellant's friend. Counsel contended that both appellants were well known to the Chairman (PW1) and to the deceased. He argued that the reason the deceased had not told the Chairman the names of attackers at night is because the Chairman's son was involved, and yet he needed the Chairman's letter to go and see a doctor and report at police; that this is very understandable and expected if the attacker is a son to the person with the authority to help; and that however, the deceased disclosed the identity of the appellants

when he got the opportunity at the health center, and at the police while recording his statement.

Counsel further submitted that the first appellant had a sour relationship with the deceased and he, together with his friend the second appellant, teamed up to beat up the deceased when they met at night, suggesting there was mens rea. According to Counsel, the appellants were well known to the deceased, they took time beating the deceased at close range, and they were talking while doing this. Thus, the voices, distance, and knowledge of the appellants were all sufficient for identification.

On ground 3, Counsel submitted that the ground of appeal on severity of sentence is barred by law as Section 5 (3) of the Judicature Act, Cap 13, which prohibits grounds of appeal based on severity of a sentence given by a trial court. He also submitted that the sentence of 22 years imprisonment for an offence of murder was not illegal. He prayed that ground 3 of the memorandum of appeal be found incompetent as the submissions on it are not sustainable in law.

In conclusion, Counsel prayed that this Court allows the appellants to continue serving their sentence as passed against each of them by the Court of Appeal, and that it finds no reason to interfere with the said sentence. VART

### **Resolution of the Appeal**

This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed law and fact that were before the first appellate court. This Court is not required to re-evaluate the evidence like the first appellate court. See: Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997.

Grounds 1 and 2

It would have been prudent for the appellants' counsel to join the 2 grounds of appeal in the memorandum of appeal because ground 1 of the appeal is ambiguous and not specific on what area of evidence was not re-evaluated. We shall therefore address ground 1 and ground 2 together to avoid repetition. The appellants in these grounds of appeal fault the learned Justices of Appeal for failing to re-evaluate the evidence of identification. According to them, this caused a miscarriage of justice. It is their submission that the finding of the first appellate court that the learned trial Judge had properly evaluated the evidence and found the appellants to be the attackers was made without a proper re-evaluation of evidence as required by law.

The ingredients for the offence of murder considered by the learned trial Judge, as shown on page 31 of the record of appeal, were:-

The death of the person named in the indictment $(a)$

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- The death of the deceased was caused by an unlawful act or omission. $(b)$ - The act causing the death of that person was accompanied by malice $(c)$ aforethought

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That it is the accused who caused the death of that person. $(d)$

The first three ingredients were not in contention, and were therefore not addressed in the appeal. What was addressed was the participation of the appellants in the commission of the offence.

The power of the Court of Appeal to re-appraise evidence is derived from Rule 30 (1) of the Judicature (Court of Appeal Rules) Directions S. I, 13-10. The rule provides that on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact.

This Court in the case of Kifamunte Henry vs Uganda (supra) stated as follows:-

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"There is no standard form of judgment of a Court of Appeal. It has been held that a first appellate Court does not have to write a judgment in a *form appropriate to a Court of first instance. It is enough, in questions* of fact, if, after the first appellate Court having itself considered and evaluated the evidence and having tested the conclusions of the trial *Court drawn from the demeanour of witnesses against the whole of their* evidence, it is satisfied that there was evidence upon which the trial *Court could properly and reasonably find as it did. That the appellate Court's conclusions are merely expressed in such terms, in itself, is no* indication that it has failed to make a critical evaluation of the evidence."

Regarding failure by the Court of Appeal to properly re-evalute the evidence on identification, the appellants argue that the court relied on a single identifying witness, yet this same witness is deceased; and that the Court of Appeal did not take into consideration that the failure of the same witness to disclose to PW1 and PW2 who assaulted him meant that the deceased did not identify the appellants as the ones who attacked him.

The record of appeal, at page 23, shows that the learned Justices of Appeal, in their judgment (page 7), stated:- $\alpha$

"Upon perusal of the record, we find that the learned trial Judge properly evaluated the evidence on record and came to the right conclusion that the appellants were the deceased's attackers. PW1, the first appellant's father, testified that the deceased came to him and reported his being attacked; but did not disclose to him the attackers. The deceased later told PW1 that he did not disclose that the first appellant attacked him because he feared that PW1 would not give him the letter to go to police after knowing that one of the attackers was his son. PW1 further stated that the deceased and the first appellant had a bad relationship. In reexamination, PW1 testified that he stated in the letter that the deceased was not telling him the truth because he realized that the deceased seemed to know his attackers. PW2 stated that while he was in the house he heard the deceased calling him by his name. He opened the window and saw the deceased lying down saying that he was going to the appellants' fathers but he (PW2) did not talk to the deceased that night."

The appellants' Counsel's submissions that, because the deceased did not disclose who attacked him to PW1 and PW2, he was incapable of identifying his attackers, are not supported by the evidence on record. The adduced evidence before the trial court shows that the reason the deceased had not told the Chairman (PW1) the names of the appellants as the ones who attacked him, was because the first appellant was a son of the Chairman, yet he (the deceased) needed a referral letter to the police from him. The deceased found it best not to disclose to the Chairman who his attackers were at that point, but he later disclosed the identity of the appellants at the Health Centre IV and at the police in his statement (exhibit P5). This evidence was properly re-evaluated by the first appellate court. We therefore find no reason to interfere with the findings of the first appellate court.

Regarding the issue of a single identifying witness, the legal position is that the court can convict on the basis of evidence of a single identifying witness alone. In the case of Abudala Nabulere & 2 Others vs Uganda (supra), the Court observed that:van

"First, there is clear s. 132 of The Evidence Act statutory provision that for the proof of any fact, a plurality of witnesses is not necessary: see (Cap.43). Secondly, there is no particular magic in having two or more witnesses testifying to the identity of the accused in similar circumstances. What is important is the quality of the identification. If the quality of the identification is not good, a number of witnesses will not cure the danger of mistaken identity, hence the requirement to look for 'other evidence'.

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Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.

In our judgment, when the quality of identification is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no 'other evidence' to support to (sic) identification evidence; provided the court adequately warns itself of the special need for caution. If a more stringent rule were to be imposed by the courts, for example if corroboration were required in every case of identification, affronts to justice would frequently occur and the maintenance of law and order VANA greatly hampered."

The section 132 of the Evidence Act referred to in the quoted judgment is now section 133 of the Evidence Act Cap 6 of the Laws of Uganda.

In the instant appeal, the learned trial Judge and the learned Justices of Appeal found the evidence of the single identifying witness to be sufficient, and they convicted the appellants based on it.

The appellants also argue that the conditions for correct identification were difficult, since the deceased was attacked late in the night when it was dark; that therefore the evidence of the deceased was inadmissible; and also that the first appellate court did not break down the principles for identification laid down in Abudala Nabulere & 2 Others vs Uganda (supra).

The case of Abudala Nabulere & 2 Others vs Uganda (supra) laid down the following conditions for correct identification:-

"(a) Whether the accused was known to the witness at the time of the offence.

(b) The conditions of lighting.

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(c) The length of time the witness took to identify the accused.

(d) *The distance from which the witness identified the accused."*

The learned Justices of Appeal, at page 24 of the record of appeal (page 8 of the judgment), stated as follows;- $\overline{N}$

"In his judgment, the learned trial Judge after considering the case of Abudala Nabulere v Uganda, (1979) HCB 76 found that the deceased knew the appellants, that the beating did not take place in a flash but the distance was very close since the second appellant held him and the first appellant did the beating. Further, that identification can also be done by voice, which in this case the deceased identified the appellants by voice.

We are satisfied with the findings of the learned trial Judge and we find and hold that the appellants participated in the commission of the crime. The evidence above proved that the deceased knew the appellants very well since they lived in the same village, the first appellant being the one who brought him to his father's home for work. As found by the learned trial Judge, the distance was close since the $2^{nd}$ appellant held the

deceased and the $1^st$ appellant bit (sic) him on the stomach. The deceased couldn't have been mistaken by stating that it were the appellants who *attacked him on his way home."*

Thus, based on the foregoing, we find that the learned Justices of Appeal were alive to the principles of identification laid out in the cited case of **Abudala Nabulere & 2 Others vs Uganda (supra)**, and correctly found that the conditions for identification as laid out in that case had been met, and saw no reason to interfere with it. This Court also does not have any reason to depart from the findings of the first appellate court.

Thirdly, the appellants argue that the statement of PW3, the police officer who recorded the statement of the deceased on 29^th March 2013, should have been taken as an afterthought and should not have been allowed.

The record of appeal at page 23 shows that, in their judgment (page $7$ ) the learned Justices of Appeal observed that:-

"PW3 Sergeant Auma Vince, testified in court that on the 29th of *March, 2013, she recorded a statement from Sebulime Yasin (deceased).* She testified that the deceased stated that on his way home, he found the *appellants who bit (sic) him on the stomach and that he reported the* $\overline{m}$ attack to the LC1 chairman."

This shows that the learned Justices of Appeal treated the said part of the evidence as evidence that was availed at the trial. For the appellants to state at this stage of a second appeal that the statement was an afterthought and should not have been allowed, is a misdirection in law. We find this to be a new matter which was not handled at the Court of Appeal. The general rule is that an appellate court will not consider an argument raised for the first time on appeal. Rule $70(1)$ (a) of the Supreme Court Rules provides as follows:-

"(1) At the hearing of an appeal-

The appellant shall not, without leave of the court, argue any $(a)$ ground of appeal not specified in the memorandum of appeal or in any supplementary memorandum lodged under rule 63 *of these Rules:"*

Thus, based on the said rule, we find that the appellants' challenging the validity of the statement of PW3 at this level of a second appeal, cannot be allowed to stand.

Thus, we find no merit in grounds 1 and 2 of this appeal.

## Ground 3

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In ground 3, the appellants faulted the learned Justices of Appeal for not considering the mitigating factors in favour of the appellants, and for passing an illegal, and manifestly harsh sentence of imprisonment of 22 years and 4 months against the appellants.

Section 5 of the Judicature Act, Cap 13, provides for appeals to the Supreme Court in criminal matters. Subsection (3) thereof states:-

"In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the *severity of the sentence."*

In the case of David Chandi Jamwa vs Uganda, Supreme Court Criminal Appeal No. 02 of 2017, this Court stated:-

"It is now trite law that this Court will not entertain a ground of appeal based on the severity of the sentence."

In the case of Abelle Asuman vs Uganda, Supreme Court Criminal **Appeal No. 66 of 2016** this Court held that:-

"The sentence being harsh and excessive are matters that raise the severity of the sentence."

In Okello Godfrey vs Uganda, Supreme Court Criminal Appeal No. 34 of 2014, this Court held that:-

"... Section 5 (3) of the Judicature Act does not allow an appellant to $\frac{1}{2}$ appeal to this Court on severity of sentence. It only allows him or her to *appeal against sentence only on a matter of law."*

Thus, because the appellants have no right of appeal on severity of sentence under Section 5 (3) of the Judicature Act, Cap 13, we shall not consider issues of the sentence being harsh or excessive in this appeal since it relates to severity of sentence. This ground of appeal contravenes Section 5 (3) of the Judicature Act, Cap 13, and cannot be . RAN allowed to stand.

The appellants further contend that mitigating factors in their favour, and the period on remand, were not considered by the first appellate court when considering their sentence.

The record of appeal on pages 26 and 27, however, shows that the learned Justices of Appeal considered the mitigating factors in favor of both appellants, as well as the period spent on remand, before sentencing them. They found 25 years imprisonment to be suitable, but, after deducting the 2 years and 8 months spent on remand, the appellants were each sentenced to 22 years and 4 months imprisonment.

Ground 3 of the appeal therefore lacks merit and it accordingly fails.

Thus, based on our findings and the law applicable, this appeal fails on all grounds, and it is hereby dismissed. We uphold the conviction and the sentence imposed by the Court of Appeal.

Dated at Kampala this ....................................

Meich

Stella Arach-Amoko Justice of the Supreme Court

. Muse adde

**Faith Mwondha Justice of the Supreme Court**

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Paul Mugamba Justice of the Supreme Court

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Percy Night Tuhaise **Justice of the Supreme Court**

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**Mike Chibita** Justice of the Supreme Court