Kajubi v Uganda (Criminal Appeal 20 of 2014) [2021] UGSC 45 (12 November 2021)

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY-DOLLO CJ, OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, MUHANGUZI, TUHAISE, JJSC.

### CRIMINAL APPEAL NO. 20 OF 2014

(Arising from Court of Appeal Criminal Appeal No. 173 of 2012)

KATO KAJUBI GODFREY ....................................

## **VERSUS**

15 **UGANDA ...................................** ......................................

## JUDGMENT OF THE COURT

## **Introduction**

This is a second appeal; it being an appeal from the decision of the Court of Appeal (Kasule, Mwangusya, and Mwondha, JJA) sitting as a 20 first appellate Court, in Court of Appeal Criminal Appeal No. 173 of 2012 -Kato Kajubi Godfrey vs Uganda.

## **Background**

The Appellant was indicted in the High Court for murder c/s 188 & 189 of the Penal Code Act. He underwent a trial; but, upon finding at the 25 close of the prosecution case that the prosecution had not made out a prima facie case against him, the Court (Mukiibi J.) discharged him; and this amounted to an acquittal. On appeal by the Respondent, the Court of Appeal quashed the acquittal by the trial Court; and ordered a retrial. The Appellant was, accordingly, re-tried, this time before Chibita J. (as 30 he then was), on the same indictment of murder; for which he was convicted, and sentenced to serve 'life in prison'. Aggrieved by the

conviction and sentence, he appealed to the Court of Appeal against $\overline{5}$ both. The Court of Appeal however upheld both the conviction and sentence. Similarly dissatisfied with the decision of the Court of Appeal, he has further appealed to this Court against both conviction and sentence.

### **Grounds of Appeal** 10

The Appellant's grounds of appeal are that:

1. The learned Justices of Appeal erred in law when they upheld the conviction of the Appellant basing on unreliable and weak confession and extra judicial statement of accomplice witnesses (PW7 & PW8) thereby arriving at a wrong conclusion.

- 2. The learned Justices of Appeal erred in law and in fact when they upheld the conviction of the Appellant basing on the prosecution's case that was full of major contradictions, inconsistences and gaps thereby occasioning a miscarriage of justice. - 3. The learned Justices of Appeal erred in law when they ignored the 20 Appellant's defense of alibi, thereby arriving at the wrong conclusion of confirming the conviction. - 4. The learned Justices of Appeal erred in law when they upheld the conviction of the Appellant based on unreliable and weak evidence of - 25

the prosecution witnesses thereby arriving at the wrong conclusion of confirming the Appellant's conviction.

5. In the alternative but without prejudice to the above grounds, the learned Justices of Appeal erred in law when they confirmed the sentence of life imprisonment on the Appellant, which sentence was illegal on the following grounds;

- a. The learned Justices of Appeal did not take into account the period the Appellant had spent on pretrial remand before confirming the sentence. - b. The learned Justices of Appeal overlooked the Appellant's strong *factors* mitigating and emphasized the prosecution's aggravating factors. - c. The sentence was not consistent with the sentences passed to similar offenders in cases of a similar nature.

## **Representation**

At the hearing of the Appeal, the appellant was represented by Counsel Andrew Ssebugwawo; while the Respondent was represented by 15 Counsel Semalemba Simon Peter (Assistant DPP).

## Case for the Appellant.

Counsel for the Appellant argued the first four grounds together and the 5<sup>th</sup> ground separately. The arguments of Counsel can be broken down into, and rendered under, four clear heads. First, is that the 20 evidence of PW7 & PW8 were full of major inconsistencies and contradictions; which, without corroboration, Court ought not to have relied on to find the Appellant guilty. Second, is that admissions made in the charge and caution statement showing that it is PW7 & PW8, and not the Appellant, who murdered Joseph Kasirye, were voluntary; hence 25 Court should have relied upon to acquit the Appellant. Third is the alibi raised by the Appellant; then, fourth, his conduct and as well, previous conduct of PW7 & PW8.

#### Inconsistencies and contradictions $(i)$

Regarding inconsistencies, Counsel submitted that PW7 and PW8's 30 evidence consisted of different accounts of what happened at the scene

$\mathsf{S}$

of crime, which weakened the prosecution evidence. He pointed out the $\mathsf{S}$ inconsistences and contradictions in the plain statements, charge and caution statements, the extrajudicial statement and oral testimony in Court of PW7 and PW8. At one occasion, PW7 said he killed the deceased alone and the appellant merely came to pick the body parts. In another, PW7 said it is a one Stephen who killed the deceased under the orders 10 of the appellant. At yet another separate occasion, PW7 says the Appellant only planned the killing. Counsel also pointed out that PW7 lied that he was the appellant's witchdoctor whereas not; lied about his relationship with Makumbi, a previous witchdoctor of the Appellant; and his own participation and antecedents generally. 15

Counsel pointed out that contradictions in PW8's evidence were that at one point she said she was pushed outside the house, lost consciousness, and thus did not witness any killing; yet later, she said she was merely locked up in bedroom and was able to hear what transpired. In her plain statement, PW8 first said she was threatened by the Appellant with a knife and later said it was a pistol. Counsel argued that the Justices of Appeal should not have relied on the testimonies of PW7 and PW8 who had demonstrated an inclination towards lies, and were thus not credible.

#### **Voluntary confessions and statements** $(ii)$ 25

Secondly, Counsel submitted that the trial judge and Justices of Appeal failed in their duty to properly evaluate evidence and reach the right factual and legal conclusion that the admissions in the charge and caution statement made at police, implicating PW7 and PW8 and not the Appellant, were voluntary. He asserted that the verbal statements made

30 at police after arrest, the initial plain statement and the charge and

- caution statement made while in police custody, and the confession $\mathsf{S}$ made before a judicial officer (DW2) contained contradictions yet these statements were all made when the fear of reprisals by the mob had long disappeared. Any further lie could not be justified on the basis of such fear. - There are three other lines of argument under this head, which were not 10 raised before the Court of Appeal. First was that Court should find that without any viable reports of torture, an inference must be drawn that when PW7 and PW8 admitted that they murdered the deceased, they were being truthful. Second was that the prosecution failed to present a police officer from Kako Police Station as witness to prove torture of 15 the witnesses during the recording of each of their plain statements at Kako Police post. Torture by police was also not proved because there was no medical report of the doctors (PW1 and PW2) who examined PW7 and PW8's physical and mental state after the murder. Last, was the failure by the Court to hold a trial within a trial to verify whether there 20 - had been torture of PW7 and PW8.

#### Defense of alibi (iii)

Counsel for the Appellant argued that the learned Appellate Justices did not consider that the prosecution did not pinpoint the actual location of the Appellant to place him at the crime scene. This was not done 25 despite the fact that the phone was of a model whose user could be located with precision. Counsel further argued that it was undisputed evidence that the Appellant's phone had been stolen; and he had filed a complaint to police of the theft and reported to the telecom company as well. He contended that evidence of PW17 and PW18 on the analysis

of his cell phone call data, only pointed to evidence of opportunity and $\mathsf{S}$ not of participation.

He also submitted that the evidence on record did not show whether PW7's home and the place the phone of the Appellant was calling from were served by the same mast. It also did not show what the distance between the locations of the Appellant's places of phone calls and PW7's home was, on the night of the murder, since the mast could serve up to 20 kms. He argued that a 20 kms radius coverage by the mast means the Appellant was anywhere within the radius of the mast coverage; but not necessarily the crime scene.

**Evidence of Conduct** 15 $(iv)$

# Conduct of PW7 & PW8 as corroborative evidence

Counsel submitted that the evidence of the skull found in PW7's shrine was evidence of previous sacrifices carried out by PW7; evidence of motive to commit the crime now under consideration; and a strong corroborative evidence of malice aforethought.

# *Conduct of the Appellant as evidence of innocence*

Regarding the conduct of the Appellant, Counsel argued that, the Court of Appeal Justices misdirected themselves on the conduct of the Appellant, which was instead compatible with innocence, since he voluntarily presented himself to the police when he learned that he was wanted, and fully cooperated with them.

## Ground 5

Counsel argued that the Court of Appeal did not take into account the period of 2 years and 6 months the Appellant had spent on remand prior

to conviction, or the mitigating factors, before confirming the sentence 30

of life in prison. He referred to Tigo Stephen vs Uganda - S. C. Cr. A. No. 8 of $\mathsf{S}$ 2009, where this Court pointed out that with life imprisonment, the chances of reconciliation between the convict and the community is extinguished. Considering the advanced age of the Appellant of 64 years, and the fact that he has 47 dependants, many of whom have dropped out of school as a result of his imprisonment, and the collapse 10 of his business empire, Counsel proposed a sentence of 15 years imprisonment as appropriate in the circumstances of this case.

Counsel further argued that the sentence passed was inconsistent with the other sentences handed down to similar offenders in cases of a similar nature. He referred us to Mbunya Godfrey v Uganda - S. C. Cr. A. No. 15 04 of 2011 for the proposition that Courts should ensure consistency in sentencing. He also cited Akbar Hussein Godi v Uganda - S. C. Cr. A. No. 3 of 2013 where this Court confirmed a sentence of 25 years for a convict who meticulously planned and executed his wife's murder; and also

cited Francis Bwalatum v Uganda - S. C. Cr. A. No. 30 of 2017 where a sentence 20 of 50 years on each of the two counts of murder was reduced to 20 years to run concurrently on grounds that he was convicted and sentenced at the age of $57$ years.

## Case for the Respondent

#### Grounds 1, 2, 3 & 4 25

In his response to the Appellant's submissions, Counsel for the Respondent also argued Grounds 1, 2, 3 and 4, together. He argued that the learned Justices of the Court of Appeal properly came to the conclusion that the prosecution had proven the case against the Appellant beyond reasonable doubt after making a finding that the contradictions and inconsistencies in the evidence adduced by the

$\overline{7}$

- prosecution did not go to the root of the case; and had been rightly $\mathsf{S}$ ignored. It sufficed that the learned trial Judge found some consistency that at any one time during the murder of the deceased, cutting off of the private parts, the Appellant was present in PW7 and PW8's house. - Counsel for the Respondent further pointed out that the Learned Justices of Appeal, were also alive to the law relating to accomplices and 10 ably stated that law in their judgment. The Court found that the learned trial Judge had rightly found PW7 and PW8 to be accomplices, and in that regard there was no need to single out what roles each of them played in the killing of the deceased. Counsel for the Respondent submitted that the Appellate Court was alive to the need to corroborate 15 the evidence PW7 and PW8. Hence it re-appraised the whole evidence adduced by the Prosecution and the Defense, as was lawfully required; and came to the proper conclusion that there was sufficient corroborative evidence of that of PW7 and PW8, proving the Appellant's participation in the murder of the deceased. The Appellate Court 20 established that PW7 and the Appellant were long time associates before the incident and that the Appellant was his client.

Counsel for the Respondent stated that as further corroborative evidence, the print out from MTN clearly shows that between 15<sup>th</sup> October, 2008 and 30<sup>th</sup> October, 2008, there was communication on 25 almost daily basis between the Appellant on Tel. No. 0772700921 and PW7 on Tel. No. 0773717631. Counsel also submitted that the evidence analyzed by the Learned Justices of the Court of Appeal in relation to the phone print out clearly confirms that the Appellant was in possession of and used his phone while he was in Masaka within the 30 vicinity of the crime scene at the time the crime was committed. These

- calls were made after the deceased had been killed; and the Appellant's 5 claim that his phone was misplaced was a lie. There was corroborative evidence that the Appellant contacted PW7 to provide a child for sacrifice. - Counsel for the Respondent also argued that the Appellant's claim that he was in Jinja, was a false alibi; as is shown by the MTN printouts, 10 which clearly placed him in Masaka at the material time. He also submitted that the Appellate Court rightly held that the conduct of the Appellant was not consistent with that of an innocent person; because he disappeared from his known residences, and his phones were switched off. 15

## Ground 5

Counsel for the Respondent argued that the facts of the cases cited by Counsel for the Appellant where sentences of life imprisonment were reduced to as low as 20 years were distinguishable from the present case. Referring to Tigo v Uganda - SC Cr. App No. 3 of 2009 cited by the 20 Appellant, Counsel noted that therein the Court took cognizance of the fact that life imprisonment is next to the death penalty in harshness. He however distinguished the present case from the *Tigo* case (supra) because, unlike the instant case before us, neither was any of the victims therein a child, nor did the case involve child sacrifice as is the 25 case with the instant one.

Counsel submitted that the aggravating factors in this case were that the victim was a child whose private parts were cut off, and his decapitated head was never recovered. He maintained that the trial judge had balanced the prayers of the prosecution and pleas of the appellant to arrive at the sentence of life imprisonment. Lastly, he submitted that the Appellate Court rightly observed that since the trial $5$ Judge had the discretion to pass a sentence that he deemed fit in the circumstances, and there was no sufficient reason to disturb the sentence since it was neither too low nor manifestly excessive, this Court should uphold the sentence of life imprisonment.

Case for the Appellant in Rejoinder 10

The Appellant filed his written submissions in rejoinder personally; without representation by Counsel. He reiterated his Counsel's earlier submissions; and maintained that there was need to single out the roles played by PW7, PW8 and himself. He submitted that on the evidence, he did not participate in the commission of the crime; which was instead committed by PW7 and PW8, who confessed to having planned and executed the murder themselves.

He argued that his previous association with PW7 does not prove his participation in any way in the commission of the offence; but is only evidence that can give rise to mere suspicion. He cited the case of 20 Mulindwa James v Uganda, SC. Crim. App No. 23 of 2014 for the proposition that suspicion cannot be the basis of a conviction however strong it is; as it does not create criminal responsibility against him. He further submitted that even if it was taken that he was in telephone contact with PW7, which he denied, such communication could have been one 25 between 'spiritual guide and client'; and not necessarily 'after usual business' of murder at all as alleged by Counsel for the Respondent.

Regarding the evidence of alibi and participation, he contends that the telephone printouts do not place him at the scene of crime; but are mere evidence of opportunity and not participation. He argued that Masaka Sports mast and Kako mast, which covered the areas where his phone

$\mathcal{A}_{\mathcal{A}}$

was called from, are not the crime scene. He referred to the decision of $5$ this Court in the case of Kazarwe Henry v Uganda Criminal Appeal No. 17 of 2015 that:

"... scene of crime cannot be enlarged to mean an area ... The many decisions available including that of Bogere Moses ... the focus was on the scene of crime not area of crime."

He argued that the learned Justices of Appeal did not evaluate evidence in this case with that decision in mind; even if that was a case passed after conviction and after the appeal in the Court of Appeal was disposed of. However, the Bogere Moses case (supra), which was applied in reaching that decision of Kazarwe v Uganda (supra), is a 1997 case.

He further argued that the Court of Appeal should have been persuaded by the authority of Litako & Others vs. S (584/2013)[2014] ZASCA 54 where the Supreme Court of South Africa held that 'the accepted principle of law is that a man's confession is evidence only against himself and not against his accomplices. If a prisoner pleads guilty, it does not affect his co-prisoner.'

Finally, the Appellant notified Court that PW7 had visited him in prison and informed him that persons in high positions of authority in the Uganda Police, and the Business Community, had influenced him (PW7), to frame the Appellant of having committed the offence. He therefore sought leave of Court to tender in fresh evidence, by way of an affidavit sworn by PW7, to this effect; which he urged this Court to admit in evidence under the exceptional circumstance rule. He urged this Court not to close its eyes to such malpractice and high handedness, showing

that his conviction was procured by deceit and fraudulent means. He 30

finally pleaded with the Court to exercise mercy and lenience and $\mathsf{S}$ reduce his sentence, should it be inclined to uphold his conviction.

## COURT'S CONSIDERATION AND DETERMINATION OF THE APPEAL

Before we proceed with the resolution of the grounds raised in the appeal, it is necessary that we first resolve the issue the Appellant introduced belatedly in his written submission at the rejoinder stage; 10 namely that this Court should allow him adduce fresh evidence at this stage. His contention is that the evidence would show that persons highly placed in positions of authority, and the business community of his area, framed him of the murder of the child; leading to his prosecution and conviction. He claimed in the submission that there is 15 an affidavit sworn by PW7 to this effect; which he pleaded with this Court to admit in evidence.

Rule 30 (1) of the Judicature (Supreme Court Rules) Directions SI 13-11 (hereinafter referred to as the Rules of this Court), provides that in the exercise of its jurisdiction, this Court "shall not have discretion to take 20 additional evidence." This provision is, on the face of it, couched in mandatory terms; and it is quite apparent there from that it closes the door to any consideration for allowing fresh evidence at the stage of the Supreme Court as the last appellate Court. There are instances however where an apparently mandatory provision in a statute may in fact be 25 directory. In Sitenda Sebalu vs Sam Njuba & Anor. - S. C. EPA No. 26 of 2007, the Supreme Court made clarification on the proper construction of the word 'shall' in a statutory provision; as follows: -

"It is common ground that although prima facie the use of the word "shall" in a statutory provision gives the provision a mandatory character, in some circumstances the word is used in a directory sense.

The contention is on how to determine where the word has been used in either sense. ..."

It then clarified, with regard to the relevant provisions of the Parliamentary Elections Act, as follows: -

"It cannot be overemphasised that while the Court must rely on the language used in a statute to give it proper interpretation, the primary target and purpose is to discern the intention of the legislature in *enacting the provision.*"

For this proposition of the law, the Court followed the decision in The Secretary of State for Trade and Industry vs Langridge [1991] 3 All ER 591, in which the Court approved of the tests laid down in Smith's Judicial Review of Administrative Action 4th Ed. 1980, at p. 142, wherein the learned author states as follows: -

"The whole scope and purpose of enactment must be considered ... In assessing the importance of the provision, particular regard may be had to its significance as a protection of individual rights ... that may be adversely affected by the decision .... " (Emphasis added).

In the instant case before us, although the provisions of Rule 30 of the Rules of this Court is couched in mandatory terms, Rule 2 (2) of the same Rules is couched in unmistakable language that it overrides all other provisions of the Rules; notwithstanding the language by which any of the other provisions of the Rules is couched. Rule 2 (2) therefore overrides the provision of Rule 30 of the Rules; thereby rendering Rule 30 directory only in purpose, notwithstanding that it is couched in mandatory terms. The provision of Rule 30 that additional evidence is inadmissible is intended to ensure that there is finality in the litigation

$5$

- process. Because of this spirit, contained in Rule 30 of the Rules, the $5$ contrary import of the provisions of Rule 2 (2), which allows admission of fresh evidence even at this late stage, makes it only applicable in exceptional cases as laid down in the body of authorities cited herein. The rules regulating the consideration for admission of new evidence are well settled. In A. G v Paul K. SSemogere S. C Const. Appln No.2 of 2004, 10 Court espoused the test for admission of new evidence as hereunder: - Discovery of new and important matters of evidence which, after the $``(i)$ exercise of due diligence, was not within the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence; - $(ii)$ It must be evidence relevant to the issues:

- It must be evidence which is credible in the sense that it is capable (iii) of belief; - The evidence must be such that, if given, it would probably have $(iv)$ 20 influence on the result of the case, although it need not be decisive: - ( $v$ ) The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given; - The application to admit additional evidence must be brought $(vi)$ without undue delay." - The Court explained the rationale for the test above as follows: 25

"These have remained the stand taken by the courts, for obvious reasons that there would be no end to litigation unless a court can expect a party to put its full case before the court. We must stress that for the same reason, courts should be even more stringent to

## allow a party to adduce additional evidence to re-open a case, which has already been completed on appeal. ... ... " (Our emphasis)

$\sim$

$\overline{5}$

$25$

In the instant case, the Appellant brought no formal application. Instead, he brought the issue of fresh evidence in passing in the course of submissions in rejoinder. The Respondent had no opportunity to respond to this point. The Appellant does not tell Court how long he has been with this information, which he seeks to adduce in evidence so belatedly. He has not attached or included the affidavit he claims he has in his possession. In the event, the Appellant has not given any justifiable explanation to satisfy the tests for late admission of evidence as postulated in the authorities cited above. Thus, this application cannot succeed. It is, accordingly, disallowed.

This being a second appeal, it is governed by Rule 30 of the Rules of this Court, which limits the powers of this Court to matters of law, or mixed law and fact. The Court therefore has no powers to handle any ground that is exclusively on a matter of fact. This Court clearly pronounced itself on this, in the case of Kakooza Godfrey vs Uganda - SCCA No. 3 of 2008; where it observed that: -

"As a second appellate Court, we are aware that the two lower Courts reached concurrent findings of fact ... we can only interfere in those concurrent findings if we are satisfied that the Courts were wrong or applied the wrong principles of law."

Unlike the $1^{st}$ appellate Court which has a duty to re-evaluate or scrutinize the evidence afresh, as if it were the trial Court, the 2<sup>nd</sup> appellate Court is only concerned with whether the 1<sup>st</sup> appellate Court properly exercised its duty. In the case of Milly Masembe vs Sugar Corporation & Anor - Civil Appeal No. 01 of 2000, Mulenga (JSC) stated that: -

"In a line of decided cases, this Court has settled two guiding principles at its exercise of this power. The first is that failure of the appellate Court to re-evaluate the evidence as a whole is a matter of law and may be a ground of appeal as such. The second is that the Supreme Court, as the second appellate Court, is not required to, and will not re-evaluate the evidence as the first appellate Court is under duty to, except where it is clearly necessary."

In Kifamunte Henry vs Uganda SCCA No. 10 of 1997 this Court stated that: -

'It does not seem to us that except in clearest of cases, we are required to re-evaluate the evidence like a first appellate Court save in Constitutional cases. On second appeal it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles.'

The principle expounded in the *Kifamunte* case (supra), regarding the powers conferred on the Court of Appeal as a first appellate Court derives from the provision of Rule 30 (1) of the Judicature (Court of 20 Appeal Rules) Directions; and is well articulated in a number of cases. In the *Kifamunte* case (supra), this Court restated the position of the law as follows: -

"We agree that on first appeal from a conviction by a Judge, the appellant is entitled to have the appellate Court's own consideration 25 and views of the evidence as a whole and its own decision thereon. The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it." 30

$\overline{\mathcal{L}}$

$\overline{5}$

- The Court of Appeal as a 1<sup>st</sup> appellate Court is precluded from $5$ questioning the findings of the trial Court as long as there is evidence to support such findings; irrespective of whether it is possible or even probable that it would not have itself come to the same conclusion. It can only interfere when it finds that there is no evidence on record to justify a particular finding of fact. See: Ntambala Fred vs Uganda Crim. 10 Appeal No. 34 of 2015. Court further clarified in the Kifamunte case (supra) that even where the trial Court has erred, the Supreme Court acting as a second appellate Court only interferes where the error has occasioned an injustice in terms of section 34 of the Criminal Procedure Code Act. - The exercise of this duty applies, for instance, where the Court of 15 Appeal, as a $1^{st}$ appellate Court, has to determine which of the witnesses who gave evidence at the trial is credible. The Court in the Kifamunte case (supra) explained as follows: -

'When the question arises as to which witness should be believed rather than another, and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses.

The Court then pointed out circumstances under which demeanor alone may not be the determinant factor; in which case a $2^{nd}$ appellate Court has a duty to consider such other factor in the exercise of its duty. It noted as follows:

"However, there may be other circumstances quite apart from manner and demeanour, which may show whether a statement is credible or not, which may warrant a Court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen."

The Courts have stated these principles in a line of other authorities $5$ including Pandya vs. R. (1957) E. A. 336, Okeno vs. Republic (1972) E. A. 32 and Charles B. Bitwire vs Uganda - Supreme Court Criminal Appeal No. 23 of 1985. We find that such circumstance exists in the instant case before us; where despite the inconsistencies and contradictions in the evidence adduced by PW7 and PW8, the Court of Appeal found other evidence on record 10 that support their evidence implicating the appellant. This supportive evidence renders the evidence of PW7 and PW8 cogent and credible.

Bearing the scope of this Court's duty in mind, we shall proceed to consider the submissions made by Counsel for the parties, in the light of the record of appeal, and resolve the issues raised in the grounds of 15 this appeal. We note that at the trial, there was no dispute that the prosecution had established all the other ingredients of the offence of murder; except the participation of the Appellant in the commission of the offence. In our considered view, the grounds of appeal on which learned Counsel for the Appellant and the Appellant himself addressed 20 this Court can appropriately be reduced to two.

The first ground, lumps together the first four grounds of appeal. It contends that the confessions and oral accomplice evidence of PW7 and PW8, which the Court of Appeal relied on to uphold the conviction of the Appellant, were weak, unreliable, contradictory and inconsistent evidence; which were not sufficiently corroborated. Therefore, they cannot justify a conviction; and further that the conviction was arrived at without consideration of the defense raised by the Appellant. The second ground is that the sentence of "life in prison" meted out against the Appellant was excessive and grave; and was passed without taking into account the period the Appellant spent on remand before

conviction, and the mitigating factors presented before Court. The other $5$ contention is that the sentence is inconsistent with other sentences passed by this Court upon conviction for that offence.

## Grounds 1, 2, 3, & 4

The Court of Appeal was alive to its duty as a 1<sup>st</sup> appellate Court; and stated thereon that: 10

"This Court is mindful of its duty as a $1$ <sup>st</sup> appellate Court to re-appraise the evidence at trial, draw inferences therefrom and reach its own decision as it was clearly stated in the case of Kifamunte Henry $v$ Uganda..."

## 15 Inconsistencies and contradictions

There are numerous authorities laying down the principles on how Courts should approach contradictions, inconsistencies, and falsities in the evidence of witnesses. The issue for determination, where a witness has been established to have lied in Court, is whether the whole of that evidence should be treated as false and unworthy of acceptance, or the worthless part can safely be severed from that which is credible; leaving the latter as reliable evidence. The law on this is now well settled. Grave inconsistencies or contradictions in the evidence adduced by the prosecution are usually, as a general principle, resolved in favour of an accused person. Such inconsistencies or contradictions are the ones that go to the root of the case. However, minor inconsistencies or contradictions that can be explained away, and do not affect the main substance of the prosecution's case, should be ignored.

In the case of Alfred Tajar v. Uganda, E. A. C. A. Crim. Appeal. No. 167 of 1969 (unreported), the Court said: 30

"In assessing the evidence of a witness ... it is open to a trial Judge to find that a witness has been substantially truthful, even though he lied in some particular respect."

In Serapio Tinkamalirwe v Uganda SC Cr. App No. 27 of 1989, the Court held that:

'It is not every inconsistency that will result in a witness' testimony 10 being rejected. It is only grave inconsistencies unless satisfactorily explained which will usually, but not necessarily, result in the evidence of a witness being rejected. Minor inconsistencies will not usually have that effect unless the Court thinks they point to deliberate untruthfulness.' (emphasis added) 15

A huge corpus of other authorities have succinctly reiterated the rule on how Courts should approach or treat any contradiction, inconsistency, and falsity in the evidence of a witness. In Khatijabai Jiwa Hasham v. Zenab d/o Chandu Nansi [1957] E. A. 38, at p. 49, Sir R. SINCLAIR, V. P. held as follows:

$5$

"[The judge's] failure to appreciate that the respondent told a deliberate untruth on a material point or, if he did appreciate it, his failure to attach any importance to it, must detract from the favourable view which he took of the respondent's credibility."

At p. 54, CONNELL J. stated as follows: $25$

> "A useful test in the assessment of this type of evidence is laid down in FIELD'S INTRODUCTION TO THE LAW OF EVIDENCE, p. 37, quoting NORTON on Evidence:

'The falsehood should be considered in weighing the evidence; and it may be so glaring as utterly to destroy confidence in the witness

altogether. But if there is reason to believe that the main part of the deposition is true, it should not be arbitrarily rejected because of want of veracity on perhaps some very minor point."

In Siduwa Were v. Uganda [1964] E. A. 596; where the issue was a confession that turned out to be partly true and partly false, the Court said, at p. 601, as follows:

$5$

"While it is clear law that a confession must be taken as a whole, it is also clear law that it need not be believed or disbelieved as a whole. It is open to a trial judge to accept a part of a statement and to reject another part. Where however the part which is rejected is so inextricably interwoven with another part that such other part would become something quite different if it were divorced from the rejected part, then we consider that it is not open to a judge to accept such other part save in the most exceptional circumstances ... which, require[s] the exercise of the greatest caution before any part of the confession [is] accepted." (Emphasis added)

In Gabula Bright Africa vs. Uganda, S. C. Crim. Appeal No. 19 of 1993, the Court held that the trial judge had rightly relied on a portion only of the evidence, because he believed that portion to be true; notwithstanding that he disbelieved the other aspects of the evidence. The Court reproduced with approval, the following passage from the decision of the Court of Appeal for East Africa in Mattaka and Others vs. Republic, [1971] E. A. 495, at p. 504, wherein the Court dealt with the evidence of a witness who had lied in Court:

"... the Chief justice was satisfied that the main portion of Labello's evidence was true ... but the Chief Justice found that he would not accept any portion of his evidence as involving any of the appellants

except where that evidence was shown by other evidence or by sequence of events, to be true."

In the instant appeal before us, it is evident from the record that in making its finding as to the credibility of the evidence of PW7 and PW8, the Court of Appeal was alive to, and correctly stated, the law on contradictory evidence by prosecution witnesses. The Court cited its own decision in Twehangane Alfred v Uganda - C. A. Crim. Appeal. No 139 of 2001, where it held that:

"... grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The Court will usually ignore minor contradictions unless the Court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. Therefore, the Court should consider the broad aspect of the case when weighing evidence. Contradictions in the testimony of witnesses on material points should not be overlooked as they seriously affect the value of their evidence."

By this, the Court of Appeal was elucidating the position of the law enunciated in the Serapio Tinkamalirwe case (supra).

The Court enumerated and considered the various inconsistencies and contradictions in the plain statements, charge and caution statements 25 and oral testimonies of PW7 and PW8. It also considered the explanations for the falsehoods given in PW7's charge and caution statement; and came to the conclusion that fear was the reason PW7 denied killing the deceased or knowing his whereabouts. It found that PW7 and PW8 told the other lies to exculpate themselves. It made a 30 finding that whereas the witnesses lied, they also told some truths

$\cdot$ 5

capable of belief. For instance, it pointed out that PW7 was truthful $5$ when he led a team to the body of the deceased boy, which was found without a head and private parts; just as he had told the police.

The Court also reproduced some statements of fact from the testimonies of PW7 and PW8; which it believed. It then made its findings thereon as follows:

"The various versions by both PW7 and PW8 reveal that at one time both of them were trying to distance themselves from the death of the deceased which to us is understandable. They would have been lynched by the mob if they had admitted their complicity. But whatever version one may decide to follow one fact clearly comes out. That is the fact that both PW7 and PW8 knew something about the death of the deceased because the killing took place in their home. ...

The version that they are the ones who had killed the deceased and the Appellant only came to pick the head and private parts as opposed

to the other version that it was the Appellant and one Steven who had 20 killed the deceased; and cut off his head and private parts, just shows their attempt to exculpate themselves while implicating the Appellant in one of their versions. The role played by PW7 and the evidence of PW8 about the presence of the deceased in their home clearly shows that PW7 and PW8 were aware of the circumstances under which the 25 deceased met his death ... ... ...

PW7 describes in detail as to how he was killed, his head and private parts cut off and how his body was stuffed in a polythene bag and thrown in a swamp. He with precision directed the police to the spot where the body had been thrown and it was found in the condition he had described it, namely, the head had been decapitated and taken

away together with the private parts. PW8 may not have witnessed the killing because she was not in the room where the killing took place but her evidence is supportive of the evidence of PW.7 of the presence of the Appellant in their home.' (emphasis added)

$5$

We consider it unnecessary, in the present case before us, to establish the role each person played in the commission of the offence; but rather 10 the participation of the Appellant in the commission of the offence. The Court of Appeal found that the inconsistencies and contradictions in the testimonies of PW7 and PW8 did not go to the substance of the case. What was material to the Court was that despite all these inconsistencies and contradictions, PW7 & PW8 were consistent on the 15 fact that the Appellant was present in their house on the night of the murder and participated in the commission of the crime for which he has been tried and found guilty.

We also note that the false testimony by PW7 and PW8 was their earlier denial of participation in the commission of the crime; which was 20 established to have been due to their fear of being lynched by the community had they admitted having participated. This lie should be treated with less circumspection than a falsehood whose purpose is to either repudiate or retract a confession statement, or for some other ulterior motive; with the intention of saving a person from due process. 25 The worthless part of the testimonies of PW7 and PW8 are, in our considered view, safely severable from that which is credible and worthy of acceptance by Court.

There is no evidence to suggest that in implicating the Appellant, PW7 and PW8 were motivated by some bad blood that existed between them 30 on the one hand and the Appellant on the other; or that PW7 and PW8

were driven by some ulterior motive or will against him. The $5$ prosecution evidence effectively laid bare and destroyed the defense of alibi raised by the Appellant as a fabrication when it proved he was not in Jinja as he claimed; but within the Masaka area. The Appellant's late reporting to police, after abandoning his known places of abode for two months subsequent to the murder, yet he was within the area as shown 10 by the phone calls data, and the media kept harping that the police wanted him, was conduct that was incompatible with innocence.

Accordingly, we find no reason to make a converse finding or come to a different determination from that of the Court of Appeal; which was arrived at based on a proper evaluation of the evidence on record, and 15 on which the Court of Appeal made findings and reached conclusions in concurrence with the trial judge. The Court of Appeal was therefore justified in ignoring, or treating as inconsequential, the inconsistencies and contradictions in the testimonies of these witnesses.

## **Corroboration** 20

The Court of Appeal considered the law on accomplice evidence; and for the definition of an accomplice, it relied on Phipson on Evidence, 14th *Edition*; where, at page 306, the learned author stated this to mean:

"... when they are called for the prosecution, persons who are 'participes criminis' in respect of the actual crime charged, whether as principals or accessories."

The Court then specified its duty in this regard as follows:

"What this Court has to decide is as to whether or not the death of the deceased was planned and executed by the Appellant as claimed by the prosecution. In other words, whether or not the story by the two

- $5$ accomplices, that he was at their home on the night of the killing and drove away (sic) with the head and private parts of the deceased, is corroborated. This evidence must be re-appraised together with the defence evidence of the Appellant that he was away in Jinja from 26.10.08 when crime is said to have been committed." - The Court made a finding, in agreement with the trial judge, that PW7 10 and PW8 were accomplices. We are in agreement with that finding.

A conviction can be based on the testimony of an accomplice even when he or she is a single witness since the Evidence Act does not require any particular number of witnesses to prove a fact, and 'what matters is the quality and not quantity of evidence'. All that is required is that it is

15 cogent evidence (See Ntambala Fred v Uganda SC Crim. App No. 34 of 2015).

As for the requirement of corroboration of evidence of an accomplice, the law is also well settled. Court can convict on the uncorroborated evidence of an accomplice; as long as it warns itself of the danger that lies in acting on such evidence. If no such warning is made, the conviction would normally be set aside on appeal; unless the appellate Court is satisfied that no miscarriage of justice has in fact been occasioned thereby. The law governing corroboration of the evidence of an accomplice was explained in $R$ vs Baskerville (1916) 2 KB 658 where the

Court stated that: 25

> "The evidence of an accomplice must be confirmed not only to the circumstances of the crime but also to the identity of the prisoner......(It) does not mean that there must be confirmation of all circumstances of the crime, as we have already stated, that is not necessary. It is sufficient if there is confirmation as to material

## circumstances of the crime and the identity of the accused in relation to the crime." (Emphasis added)

The Court further stated therein that:

$\sim$ $\sim$

$5$

"The corroboration need not be direct evidence that the accused committed the crime, it is sufficient if it is merely circumstantial evidence of his connection to the crime."

Corroboration means independent evidence. It is sufficient if it connects the accused to the crime. The Supreme Court of India in Rameshwar vs V. A. (1952) SC. 54, held that: "there must be additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it."

In other words, what is required is other evidence apart from the testimonies of PW7 and PW8; rendering it probable that the story of the PW7 and, or, PW8 as an accomplice is true and that it is reasonably safe to act upon it.

In its judgment from which this appeal emanates, the Court of Appeal 20 took cognizance of the law on corroboration. It cited R v Thorne (1976) Cr. *App. R.6*, wherein the Court held that there:

... is nothing to prevent a Court from convicting on the uncorroborated evidence of an accomplice however much of a villain he may be, provided that they have been given an adequate warning as to the dangers of convicting on such evidence, the Court of Appeal will not interfere because there was nothing to corroborate the evidence.'

It also relied on DPP v Kilbourne [1973] A. C 729, where Lord Reid stated thus: 30 "There is nothing technical in the idea of corroboration. When in other ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater extent by other statements or circumstances with which it fits in."

The Court of Appeal found in the instant matter that even if PW7 and PW8 were accomplices, they could and had indeed corroborated each other. The Court reappraised the prosecution evidence as well as the defense. Considering the long-standing association between PW7 and 15 the Appellant, and the fact that they were in constant communication using their known phone numbers as is shown by the phone printouts, it came to the conclusion that the claim by the Appellant that he had misplaced his phone was false.

In the course of its evaluation of evidence, the Court of Appeal 20 scrutinized the telephone print outs and evidence thereon that had been presented by expert witnesses. Indeed, in its evaluation of the evidence on record, the Court of Appeal cautioned itself regarding the evidence not only of PW7 and PW8 who were accomplices; but also of PW17 and PW18 who were not accomplices. In its evaluation of the evidence on 25 record, the Court of Appeal had this to say:

"First of all, right from 15.10.2008 to 31.10.2008 the printouts shows that the phone was being freely used from numerous sites within Kampala and Masaka not in Jinja where the Appellant claimed to be when the deceased was being killed. The frequency of its use is a clear indication that it cannot be someone who had picked it on 26.10.2008

$5$

- from Sauna and was using it as if it was his own and moreover talking to the PW7. The pattern shows that it was being used by someone who was mobile and the claim by the Appellant that he had misplaced it cannot be believed. The calls made on 28.10.08 were made after the deceased had been killed and are all from cites (sic) within Masaka. - The significance of the MTN printout is that it lends credence to PW7's 10 evidence that he was contacted by the Appellant and requested to provide a worker in a poultry farm. The Appellant's denial that he was not in possession of the phone cannot be true and his denial is not conduct of an innocent person which provides the requisite corroboration for the evidence of PW7 that he lured the deceased on 15 the prompting of the Appellant who went to fetch him $n(sic)$ 27.10.2008 but ended up killing him and taking away his head and private parts. The print-out also places the user of the Appellant's phone to be in Masaka at the time the deceased was killed and not in Jinja, where the Appellant claimed to be at the time." 20

The phone call print out adduced in evidence by PW18 established that the calls made from the Appellant's cell phone to PW7 during the period running from 15<sup>th</sup> October to 30<sup>th</sup> October, 2008, which covered the date of the murder, were variously served by Masaka Sports Mast, Kako Mast, and Masaka Technical Mast. The fact that these calls some of which were made at the wee hours of 12:32 a.m., and 1:08:41 a.m., could not have been made by someone else in possession of the Appellant's lost phone; but by the Appellant himself who, on the evidence, had a long standing intimate relationship with PW7. The call printout controverted the Appellant's contention that he was in Jinja at the material time the victim was killed; and instead placed him within Masaka at the time.

$5$

Relying on Bogere Moses & Anor v Uganda SC. Cr. App No. 1 of 1997, the Court $5$ of Appeal restated the position in law that proof of fabrication of an alibi by an accused person does not only destroy the alibi, but also strengthens the prosecution evidence that an accused person was at the scene of the crime. Hence, proof that the Appellant's alibi that he was in Jinja was an intentional falsehood, destroyed the alibi and supported 10 the prosecution evidence that he was indeed in Masaka during the time of the murder.

The contention by the Appellant, through his counsel, that the telephone printouts are only evidence of opportunity because the masts only indicate that the phone was used anywhere within a 20km radius 15 of the mast, and not specifically at the scene of crime, is not of much value. The fact that the telephone number was used within a twenty kilometers radius, when taken together with the evidence of PW7 and PW8, which is corroborated by the accused's failed alibi defense, are themselves compelling evidence placing him at the scene of the crime. 20 In Akbar Hussein Godi v Uganda Crim App. No 3 of 2013, this Court considered a similar situation where the phone printouts placed the Appellant's calls within a radius of thirty kilometers of the mast. The Court had this to say:

"With due respect to learned counsel for the appellant, in our opinion 25 counsel has assumed too many unnecessary details to criticise the holdings of both the trial Judge and the Court of Appeal regarding the two courts' respective conclusions on the printouts. He relied on the evidence of PW21 and PW26 (Lugesera) to support the appellant's case. However, in his evidence about printouts, PW26 stated that mast or 30 base station on printouts means that the caller is within a radius of

30km but not exactly at a place. In our considered opinion this destroys the contention of counsel for the appellant because being within a radius of 30 km which includes the scene of crime means that the user of the phone whose number is printed out was in fact at the scene of crime since the scene of crime is within that radius of 30km. (our emphasis) In the present case the two courts below appreciated this fact. Both the learned trial Judge and the Court of Appeal appreciated the significance of the prosecution evidence on telephone printouts." (Emphasis added)

$5$

In the instant case before us, the telephone print outs are an important part of the prosecution evidence, which both the trial Court and the 15 Court of Appeal properly evaluated before each making a finding that they incriminated the Appellant in the commission of the murder. Those are two findings of fact, on which the two Courts are in full agreement. We have no reason to fault the two Courts, either that their concurrent findings are either not based on evidence, or are wrong in law. 20

The Court of Appeal also considered the act of disappearance of the Appellant from his known places of abode, and switching off his known phone contacts immediately after the murder. Yet, as is evident from the phone call print outs, the Appellant had been in constant phone call contact with PW7, including the day the murder was committed. Second, upon the arrest of PW7 and PW8, the media was awash with news of the murder, and the fact that the Police was searching for the Appelant. He however kept away, and only reported to Police two months later.

The Court of Appeal found this conduct to be incompatible with innocence. We find that the Court of Appeal correctly reappraised the 30 evidence as required of it, and applied the correct law with regard to or circumstances which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle."

Counsel cited Obwalatum v Francis SC Crim Appeal No. 30 of 2015 where the Court of Appeal held that the sentence of 50 years, on each count, was illegal because the period of 1 year and 7 months spent on remand was not taken into account. That case is distinguishable from the instant case, because the sentence in that case was not life imprisonment; while in the instant case, it is life imprisonment. Hence, the principle of deduction of the period spent on remand, from the life sentence, is inapplicable as it would be a futile exercise, since sentence of death and life imprisonment are not amenable to the provision of Article 23 (8) of the Constitution (see Magezi Gad vs Uganda -S. C. Cr. A. No. 17 of 2014). Otherwise, this Court is satisfied that the trial Court duly considered all the mitigating factors before sentencing him to life in prison.

It is noteworthy that the *Obwalatum* case (supra) is instructive on the point that the Supreme Court as the Court of last resort should endeavor 20 to ensure that the sentences meted out in this country are lawful, commensurate with the offences committed, and cater for the rights of the victims of the crime as well as the public interest. The Court relied on Busiku Thomas vs Uganda, Criminal Appeal No. 33 of 2011, where Kisaakye 25 JSC made the following remarks:

"... In my view, the right to a fair hearing should not only encompass the rights of the accused person or convicted person during the sentencing stage. It should also encompass the rights of the victim of the crime as well as public interest. As it was rightly observed by the Constitutional Court of South Africa in S v Jaipal 2005(4) SA 581 (CC), Para 29 that: 'The right of an accused to a fair trial requires fairness

$\mathsf{S}$

accomplice evidence and the requirement for corroboration. It $\overline{5}$ considered the evidence of the prosecution and defense as a whole; and reached the conclusion that the Appellant was an active participant in the murder of the victim, for which he has stood trial and been convicted. As a $2^{nd}$ appellate Court we are in agreement with the Court of Appeal, since we find no reason to depart from their decision. 10 Grounds 1, 2, 3, and 4, of the appeal must therefore fail.

## Ground 5

The Appellant faults the Court of Appeal for upholding the sentence imposed by the trial Court, which he contends is inconsistent with the other sentences handed down to similar offenders of the same nature. It is trite law that under section 5(3) of the Judicature Act that in:

"... an appeal against sentence 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."

However, there are principles that guide this Court in so doing. The 20 Court of Appeal was alive to the decision of this Court in the case of Kiwalabye Bernard v Uganda, Criminal Appeal No.143 of 2001 (unreported), where the Supreme Court gave guidelines on when the appellate Court may exercise its discretion to interfere with sentence imposed by a trial Court. It quoted this Court's holding that an: 25

"... appellate court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage justice or where a trial court ignores to consider an important matter

to the accused, as well as fairness to the public as represented by the $5$ State. It has to instill confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of the crime." (Emphasis added)

In this case, the Court of Appeal noted that the maximum sentence is 10 death; though it is not mandatory, as was held in A. G v Susan Kiaula & 417 others Constitutional Appeal No. 03 of 2006. The Court found the sentence of life in prison, which it held is the same as life imprisonment, neither illegal nor irregular; so it found no reason to interfere with the learned trial Judge's discretion. It stated as follows:

... given the gruesome nature of the crime of which the Appellant was 15 convicted, the Appellant deserved no less than the sentence of life imprisonment irrespective of whether or not the crime was committed with others.'

Indeed, owing to the gruesome, horrendous, callous, and most unjustifiable killing of an innocent and defenseless 12 - year infant by 20 decapitation and cutting off the private parts, it is unreasonable for anyone to contend that a sentence of life imprisonment upon conviction is either harsh, or disproportionate. We all cherish to live in a society where we do not have to worry that someone driven by ill motive could pounce on us and disrupt our lives. We all desire that our world is 25 devoid of human monsters, and is at peace with itself; and our hearts never have to skip a beat because our children have taken a little longer than usual to return home from playing with their mates.

We are satisfied that the Court of Appeal considered the gravity of the crime, and the mitigating factors presented by the Appellant. There was 30 no matter or circumstance, which the Court ought to have considered

when passing the sentence; but failed to do so. Similarly, the sentence $\overline{5}$ imposed by the trial Court, which the Court of Appeal upheld, is neither unreasonable in the circumstance of the case, nor is it wrong in principle. We therefore find the impugned sentence of life imprisonment handed out to the Appellant neither harsh, nor excessive; or that it has occasioned injustice to him. Hence, this ground too fails. 10

In the premises, we find no grounds upon which we could fault the Court of Appeal in its findings, and making the decision to uphold the conviction and sentence imposed on the Appellant by the trial Court. We find this appeal devoid of merit; and therefore dismiss it.

Dated at Kampala this.................................... 15

Alfonse C. Owiny - Dollo

**CHIEF JUSTICE**

Ruby Opio - Aweri JUSTICE OF THE SUPREME COURT

Lusatennure.

Prof. Lillian Tibatemwa - Ekirikubinza JUSTICE OF THE SUPREME COURT

Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

Percy Night Tuhaise JUSTICE OF THE SUPREME COURT

reneal by the<br>12/11/21

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