Bako v Uganda (Criminal Appeal 4 of 2019) [2023] UGCA 133 (28 April 2023)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT ARUA

[Coram: Barishaki, Mugcnyi & Oashirabakc, JJA]

# CRIMINAL APPEAL NO. OO4 OF 20I9

(Arisingfrom Criminal Case No. 139 of 201B)

#### BETWEEN

#### APPELLANl' BAKO BT]A]'RICE.

### ANI)

## U(;ANDA RESPONDENT.

lArising front the decision of OYU KO ANTHONY OJOK, J of rhe I ligh Court of Uganda sitling at Arua in Criminal Session Case No.0l 32 of 2012 clated l0'h December 201 8l

### JUDCMENT OF COURT.

#### lntroduction.

- 'l'hc Appcllanl []ako l]catricc and onc callcd ANGUYO KIZITO alias NGU wcrc indictcd on two counls. 'l'hc first court is of Murdcr Contrary to Scction 188 and I tl9 ol-thc Pcnal Codc Act Cap 120 laws olUganda. In thc particulars it is allcgcd that Anguyo Kizito alias Ngu and llako llcatricc on thc night bctwccn 26'r'and 27th day ol'l)cccmbcr 2014 al Abinyu villagc I-umila parish in Maracha I)islrict with malicc 20 - albrcthought causcd thc dcath ol'lil)OI)O IIAKLIt. 25

'l'hc sccond counl is Conspiracy to commit a l'clony conlrary to Scction 390 ol'thc I)cnal Codc Act, Cap 1 20 Laws ol'lJganda. In thc particular it is allcgcd that Anguyo Kizito alias Ngu and lJako Ilcatricc on thc night bctwccn 26'h and 27e day ol' I)cccmbcr 2014 at Abinyu Villagc. Lumila l)arish in Maracha I)istrict conspircd

togcther unlawlully kill l,l)ODl lln Kl,R. 30

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#### 5 Background

It is allegcd that on the 27'h day of l)cccmber at around 6:30 pm thc dcccascd went to Okookoro 'l'rading Ccntrc in Maracha l)istrict lor lcisure and rcmaincd thcrc with his brothcrs and othcr pcoplc, including A2 until 9:00pm whcn hc rcportcdly lcfi to mcct a fricnd with whom hc had an appointmcnt at around l0:00pm.

- Alter thc dcccascd had lc{l it was rcaliscd that thc slippcrs lbr A2 wcre missing and the deccascd was suspcctcd to havc gonc with thcm which rcpo(cdly did not plcasc Al who is a brothcr to A2 who was also prcscnt at thc trading ccntrc. A1 ollbrcd his phone to bc uscd by thc brother of thc dcceased onc Asindu Milton PW4 to confirm liom thc dcccascd if indccd he went with thc slippcrs. 'l-hat thc dcccascd conllrmcd on phonc to I'}W4 that hc indccd whcn with thc slippcrs. A I rcportcdly got morc 10 15 - annoyed and dcmandcd lhal r\2 cscorts him to go and rcccivc thc slippcrs fiom thc dcccased and that they immcdiatcly lcli.

'l'hc fiollowing morning thc dcccascd was lbund lying dcad by thc road sidc at Lumila ncar the church. 'l'hc Policc was immcdiatcly inlbrmcd and thc ncws rcachcd thc surrounding community who idcntilicd thc body. Whcn the brothcrs olthc dcccascd who werc with him at thc'l'rading ccntrc thc previous cvcning conllrmcd that it was thcir brothcr who was dcad, thcy immcdiately linkcd Al and A2 to thc Murder bccausc the accuscd pcrsons wcre thc only last known pcoplc who followcd him with angcr bccause of thc issuc of thc slippcrs and Al vowcd that il'the slippcrs wcrc 20

not lound somcone would dic. 25

> 'l'hc accuscd pcrsons who wcrc rclatcd to thc dcccascd both immcdiatcly disappcarcd liom thc villagc thc day lollowing his dcath lor ovcr a pcriod ol'a month and strangely ncvcr attcndcd his burial and thcy rcsurlaccd almost at around thc samc timc both wcrc arreslcd and chargcd accordingly. 'l hc post morlcm carricd on thc

body of thc dcccascd lbund that thc dcccascd dicd duc to lracturc of thc ccrvical vcrtcbratc. 30

2lPage ry

The accused persons were indicted on two counts, they denied the offences and $\mathsf{S}$ pleaded not guilty, raised the defence of Alibi that they never followed the deceased and immediately after leaving the Trading centre they went to their various homes.

A1 escaped from prison and the trial proceeded against A2 alone. She was found guilty under the doctrine of having common intention with A1 convicted and sentenced to 40 years' imprisonment.

The Appellant being dissatisfied and aggrieved with the decision and judgment of the Trial Judge Hon. Justice Oyuko Anthony Ojok Resident Judge of the High Court of Uganda at Arua delivered on the 10th Day of December, 2018 now appeals to this honourable Court against conviction and sentence on the following Grounds that:

- 1. The trial had major procedural irregularities which rendered it a nullity or mis- trial to prejudice of the Appellant. - 2. The learned trail judge erred in law and fact to rely on insufficient circumstantial evidence thereby making an erroneous decision to convict the Appellant. - 3. The learned trial judge misdirected himself in applying the doctrine of common intention to convict the Appellant thereby occasioning miscarriage of justice. - 4. The trial judge erred in law and fact to pass a manifestly harsh and excessive.

#### Representation 25

The Appellant was represented by Mr. Madira Jimmy. The Respondent was represented by Partick Omia and Anne Kasajingu.

## **Submissions of Counsel for the Appellant.**

Ground 1.

Counsel for the Appellant submitted that there was no judgment on record. The law 30 that governs trial of criminal cases on Indictment before the High Court is the Trial

Truty Coron

3 | Page

5 on Indictment Act Cap 23 laws of Uganda Section 86(1) of thc Trial on indictmcnts Act providcs for contcnts of Judgmcnt to wit:

> "cvcry judgmcnt dclivcrcd undcr Section 85 shall bc written b or rcduced to writing undcr thc pcrsonal direction and supcrintendence ol the judgc in thc languagc ofcourt, and shall contain thc point or points for thc dctcrmination. thc dccision on it and thc rcasons for thc dccision and shall bc dated and signed by such prcsidingjudge as on the datc on which it is pronouncc in open court."

Counscl submiltcd that thc rccord ol' procccdings dcfics logic to be callcd a judgmcnt. It is not signed and nor datcd by thc 'l'rial judgc nor docs it contain a decision of court and or rcasons for thc dccision. 'l'hcrc arc no points of law, facts argued and or issucs lramcd lbr dctcrmination and no llnal dccision. It appears to bc a continuation of thc submissions of thc lcamcd l)cl'cncc Counscl. 15

Counscl submittcd that thcrc is no conviction as rcquircd undcr Section 86 (3) ol'thc Trial on Indictmcnts Act, Cap 23 which providcs that in thc casc of a conviclion, the judgmcnt shall spccily thc ollcncc ol'which and thc scction ol'thc writtcn law undcr which thc accused pcrson is convictcd. 'l'his rcquircmcnt is coachcd in mandatory tcrms. 20

Counscl submittcd that thc trialiudgc should havc cntcrcd and rccordcd a conviction clcarly, spccilying thc ollcncc and scction of thc law undcr which thc Appellant is convictcd.

Counscl also submittcd (hat thc lcamcd Slatc nttorncy attcmptcd to drop count two in his submissions but this was irrcgular bccausc hc did it without lcavc ol courl as thc law undcr Articlc 120 (3) (d) of thc 1995 Constitution ol'Uganda only vcsts thc power to do so in thc I)ircctor ol- Public Prosccutions. 'l-hc court rightly ignorcd thc submissions to drop count two and thc 'l'rial judgc ncvcr rccordcd thc finding on

rccord as to whethcr court acccptcd it or not and it is our considcrcd vicw that u^ount two was not droppcd and it still forms part of thc indictmcnt and wc submit so.

4lPrgi,

5 Counsel citcd Karim Bagenda and 3 others vs. Uganda, SCCA No. of 1994, whcrc thc Suprcmc Court hcld that lailure to cntcr a conviction was a serious irrcgularity which cannot bc curcd by giving rcasons latcr.

#### Submissions ofcounsel for the Rcspondent.

- Counscl conccdcd with thc submissions ol'counscl lbr thc Appcllant that thcrc is no .judgmcnt on rccord ol'Appcal. Counscl submittcd that it is not ccrtain whcthcr a judgcmcnt was dclivcrcd as nonc ol'thcsc provisions wcrc complicd with and what oflbncc thc Appcllant was convictcd ol'tha1 lcd 1o bcing scntcnccd and committcd in prison. 10 - Additionally, Counscl submittcd that thcrc arc no notcs by thc 'l'rial .judgc on summing up 1o thc Asscssors. In addition to this no judgmcnt. '['his indicatcs that thc law and cvidcncc wcrc not summcd up lor thc Asscssors which is a non-compliancc ol' thc mandatory provisions ol scction 82( I ) ol' thc 'l rial on indictmcnts Act. Counscl citcd Adiga Johnson David vs. Uganda, Court of Appcal Criminal Appcal No. 0157 of 2010 (2021). whcrc it was hcld that thc provision that is scction 15 - U2( I ) is coachcd in mandatory tcrms and that thc l'ailurc ol'1hc lcamcd trial judgc to adherc to it rcndcrcd thc trial a nullity and thus occasioncd a miscarriagc ol'.lusticc. 20

Counscl submittcd that in light of thc circumstanccs, it lbllows that thc trial bcing a nullity and thcrc bcing no.judgmcnt on thc record thcrc is no basis on which grounds 2,3 and 4 can bc argucd. Counscl praycd that this honourablc courl shall bc plcascd to ordcr a rctrial undcr l{ulc ( I ) olthc Judicaturc (Court ofAppcal l{ulcs) l)ircctions. Counscl submittcd that with rcgard to thc praycr ol'a rctrial, wc submit that this will cnsurc that thc causc ol'juslicc is scrvcd, counscl citcd Rev. fathcr Santos Wapokra vs. Uganda, CACA No. 204 of 2012. Counscl lurthcr submittcd that ordcring a rctrial will not causc a nriscarriagc b thc Appcllant.

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# s Submissions in rcjoindcr

Counscl Ibr thc Appcllant objcctcd to thc proposal ol'a rctrial and submittcd that bclorc court ordcrs lbr a rctrial. thc courl handling thc casc must addrcss itscll'to thc rulc ol'law that a man shall not bc tricd twicc vcxcd lbr onc and thc samc causc.

Counscl citcd Rev. Father Santos Wapokra vs. Uganda CACA No. 204 of 2012,

whcrc thc justiccs cited Fatehali Manji v. R (1966) EA 343, whcrc court hcld that a rctrial is a s a rcsult o1'thc judicious cxcrcisc ol court's discrction, thus this discrction must bc cxcrciscd with grcat carc and not randomly hut upon principlcs that havc bccn dcvclopcd ovcrtimc by thc courts. 10

Counscl lurthcr submittcd that thc prosccution casc against thc Appcllant is very wcak and bascd on circumstantial cvidcncc and thcrc is high likcly hood ol- a dclay in thc cvcnl that a rctrial is ordcrcd. 15

### Considcration of Court

Wc havc carclully considcrcd thc rccord ol'appcal, thc submissions of Counscl and law rclating Lo thc mattcr bclorc us. Wc apprcciatc thc lbct that both counscl havc not wastcd courts timc by conceding that it is not ncccssary to considcr thc othcr

grounds ol-appcal sincc thcy arc all all'cctcd by thc outcomc of thc ljrst ground. 20

In rcsolving thc issucs raiscd in this appcal, this court is mindlul ol'its duty as thc Iirst appcllalc court to rc-cvaluatc thc cvidcncc prcscntcd bclorc thc trial court to rcach its own conclusion. Scc Pandya vs. R (1957) E. A and Kifamunte Hcnry vs.

#### Uganda SCCA No.l0 (1997) 25

It is tritc law that thc duty ol'a llrst appcllatc court is to reconsidcr all matcrial cvidcncc that was bclorc thc trial court. 'l'his obligation 1o rcappraisc the cvidcncc is loundcd in common law rathcr than rulcs ol'proccdurc. In so doing. thc fircl appcllatc court must considcr thc cvidcncc on any issuc in its totality and not any piccc thcrcol'

in isolation. Although in casc olconl)icting cvidcncc, thc appcal court has to makc 30

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6lP,rgr due allowance for the fact that it has neither seen nor heard the witnesses. See Fr. Narsensio Begumisa and 3 other vs. Eric Kibebaga, SCCA No.17 of 2002.

The Appellant raised four grounds of appeal, however in the submissions counsel for the Appellant conceded to the submissions of the Respondent that there was no basis for court to resolve the other grounds. This therefore leaves this court with one ground to consider that has been simplified by the submissions of both counsel.

It is the provision of the law under Section 86 (1) of the Trial on indictment Act **Cap 23** of Uganda that:

> "Every judgment delivered under section 85 shall be written by, or reduced to writing under the personal direction and superintendence of, the judge in the language of the court, and shall contain the point or points for determination, the decision on it and the reason for the decision and shall be dated and signed by such presiding judge as on the date on which it is pronounced in open court"

It is the requirement under the above section of the law that the judgment must be:

1. Reduced into writing under the personal direction and superintendence of the 20 judge;

- 2. It has to be in the language of court; - 3. Shall contain the points of determination - 4. The decision on it and the reasons for the decision. - 5. Dated and signed 25

According to the record of Appeal there was no judgment as required by the above provision of the Trial on indictment Act Cap 23. What appears on the record of appeal page 29 is as follows:

"conceded the $1^{st}$ 3 ingredient

- Participation 30 - 1st people who saw Edodi was A1 and A2

7 | Page

Front Groan Mury.

$\mathsf{S}$

- Followed and you got your slippers - A2 is related to deceased - Never attended the burial - Not at home - Common intention with all - Convict 10

$\cdot$ 5

5 witnesses

Guilty as indicted

State: Record of previous

- Convictions $\mathcal{L}^{\mathcal{L}}$ - Died at the age 23 years 15 - Unlawful $\overline{a}$ - Family man - Death

## Mitigation:

- Single mother 20 - Leniency - Remand 3 years and 2 months $\overline{a}$ - 1st offender"

When a matter is brought before court, the purpose is for court is to adjudicate over the matter and then determine the rights of the parties by writing down the 25 judgement. A Judgment may be defined as a reasoned pronouncement by a judge on a disputed legal question which has been argued before him.

Black's Law Dictionary, 9th Ed. West Publishing Company. 2009, defines a judgment as;

"A court's final determination of the rights and obligations of the parties in a case. The term judgment includes an equitable decree and any order from which an appeal lies."

8 | Page

James Much

- 5 'l'hcrc arc vcry many rcasons why it is important lbr a judgc to writc down thcir judgmcnt. Writtcn decisions assurc the public that justice is bcing scrvcd and thc judgcs' dccision is not just out of cmotions or ill will. Iurthcr still, it through writtcn judgmcnts that providc findings of lact and lcgal rcasoning that a highcr court might considcr on appcal. - 'I'hc proccss ol'rcasoning by which thc court comcs to thc ultimatc conclusion and decrccs thc suit should bc rcllcctcd clcarly in thc judgmcnt. 10

Judgmcnt is thc most importanl document lor thc partics as wcll as thc Judgc and morc important lbr thc Judgc arc thc rcasons in support ofhis/ hcrjudgmcnt. Judgcs writc dccisions for many rcasons. 'l'hc primary purposc of .judgmcnt

- writing is to tcll thc litiganls why thc casc was dccidcd thc way it was. A judgmcnt should show why thc judgc considcrcd somc l'acts morc important than othcrs and how thc judgc's applied law to [act. A judgmcnl should also show lhc litigants that thc judgc considcrcd thcir positions and that jusricc was rcndcrcd. 15 - 20 A clcarly cxprcsscd judgment dcmonstratcs the intcrcst ol thc subjcct and thc cxposition of lcgal reasoning. I{casons givcn by ajudgc in ajudgmcnt indicatc thc working of his/ hcr mind, approach hisi hcr grasp of thc qucstion of lact and law involvcd in thc casc and thc dcpth ol'his knowlcdgc ol-law. 1'hc suprcmc rcquircmcnt of a good judgmcnt is rcason. 'l'hc wcight ol'a judgmcnt, its binding 2s charactcr or its pcrsuasivc charactcr dcpcnds on thc prcscntation and articulation ol' rcasons. I{cason, thcrcforc, is thc soul and spirit ol a good judgmcnt. Wc arc pcrsuadcd by thc dccision of thc Indian Suprcmc Court in K. V.

Rami Reddy v. Prema (2009) 17 SCC 308,

"'l'he dcclaration by a Judgc of his intcntions ofwhat hisjudgment is going to bc, or a dcclaration of his intcntion ofwhal thc final rcsult it is going to cmbody, is not ajudgment until hc had cryslallizcd his intcntions into a lormal shapc and pronounccd it in opcn court as thc

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final expression of his mind. (Para 12) The CPC does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to and it would be against public policy to ascertain by evidence alone what the "judgment" of the Court was, where the final result was announced orally but the judgment as defined in the CPC embodying a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, was finalized later on."

It is therefore our finding for the trial court not to write a judgement he failed in rendering justice. A judge renders justice through his decisions. The decisionmaking culminating in the judgment is the heart and soul of the judicial process. 15 Failure to adhere to this whole process rendered the whole process a nullity that leads to a retrial.

A retrial is ordered in very rear circumstances, foristance where the original trial was null and defective, and where the other party would not suffer an injustice.

## In Luwaga Suleman Alia Katongole vs. Uganda Court of Appeal Criminal Appeal 20 **No. 858 of 2014,** Court of Appeal held that:

""In general a retrial will be ordered only when the original trial was illegal or defective; it will not he ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it. Sec Fatehali Manji v The Republic [1966] 1 EA 343.

In Rev. Father Santos Wapokra V Uganda, Court of Appeal Criminal Appeal No.204 of 2012, this Court stated as follows;

From muy

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$\cdot$ 5

"The overriding purpose of a retrial is to ensure that the cause of justice is done in a case before Court. A serious error committed as to the conduct of a trial or the discovery of new evidence, which was not obtainable at the trial, are the major considerations for ordering a retrial. The Court that has tried a case should be able to correct the errors as to the manner of the conduct of the trial, or to receive other evidence that was then not available. However, that must ensure that the accused person is not subjected to double jeopardy, by way of expense, delay and inconvenience by reason of the retrial. Other considerations are; where the original trial was illegal or defective, the rule of law that a man shall not be twice vexed for one and the same cause (Nemo bis vexari debet pro eadem causa), where an accused was convicted of an offence other than the one with which he was either charged or ought to have been charged, strength of the prosecution case, the seriousness or otherwise of the offence, whether the original trial was complex and prolonged, the expense of the new trial to the accused, the fact that any criminal trial is an ordeal for the accused, who should not suffer a second trial, unless the interests of justice so require and the length of time between the commission of the offence and the new trial, and whether the evidence will be available at the new trial."

In the instant case, and having found that the Plea Bargain Agreement 25 was defective, we find that the interest of justice will best be served by ordering a retrial in the following terms."

$\cdot$ 5

Guided by the above authority, a retrial is necessary for the cause of justice to be done in this matter. It is grossly irregular that the judge did not make a pronouncement on the matters before him. The Appellant objected to a retrial arguing that it would be against the principle of double jeopardy, however we disagree with that argument because before a judgment is pronounced it cannot be double jeopardy. In this matter what appeared to be a judgment does not make mention of the offence convicted, what reason for the conviction, facts of the case

B Gran Mury.

$11$ | Page

etc. the whole process was irregular. It is therefore our considered opinion that there is a retrial of this matter in the nearest session possible.

The Registrar of this Court is directed to bring this matter to the immediate attention of the Resident Judge at Arua so that a retrial is conducted in the next convenient criminal session taking into consideration the fact that justice delayed is justice denied.

$\boldsymbol{\xi}_{\boldsymbol{\theta}}$

$\pmb{\mathbf{A}}$ $\sim$ 5

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We therefore order that:

- 1. Conviction and sentence be set aside - 2. Retrial in the nearest session possible in the interest of justice.

| | We so hold. | |----|--------------------------------------------------------------------------------| | 15 | Dated at Arua this $28$ Dated at Arua this $28$ $\cdots \cdots \cdots 2023$ | | | BARISHAKI CHEBORION | | 20 | JUSTICE OF APPEAL Midnigery | | | MONICA MUGENYI | | | JUSTICE OF APPEAL CHRISTOPHER GASHIRABAKE | | 25 | JUSTICE OF APPEAL |