Kitema v Uganda (Civil Appeal 23 of 2000) [2001] UGSC 20 (15 August 2001)

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

### **AT MENGO**

(CORAM: **TSEKOOKO** KAROKORA. MULENGA. KANYEIHAMBA AND MUKASA-KIKONYOGO, J. J. S. C)

CRIMINAL APPEAL NO 23 OF 2000

#### **BETWEEN**

KITEMA JOHN APPELLANT A ND **UGANDA RESPONDENT**

(Appeal from the Judgment of the Court of Appeal (Manyindo, D. C. J. Twinomujuni and Kitumba, J. J. A). dated 5<sup>th</sup> June, 2000 and arising from the Judgment of the High Court at Mharara (Mukanza, J.) in Criminal Session case No. 23 99, dated 9 8 96).

### **JUDGMENT OF THE COURT**

This is an appeal from the judgment of the Court of Appeal confirming the conviction and sentence of the appellant by the High Court for defilement, contrary to Section 123 (1) of the Penal Code Act. John Kitema, the appellant, was tried and convicted by the High Court on an indictment that charged him with an offence of defilement. He was sentenced to 10 years imprisonment. His appeal to the Court of Appeal was dismissed, hence this appeal.

The evidence as accepted by the learned trial judge was that one Allen Tumwebaze, PW2, the victim, a girl under the age of 18 years at the

trme of the commrssion of the offence. was defiled On l5'h November. 1991. Tumwebaze. accompanred b1 her cousrn. Jennifer Tumukwasrre \rent to the home of the appellant to demand pavmenr of Shs 1200 from hrm for havrng weeded hrs banana plantation The appellant rnvited the tuo grrls into his home and u,hile the three were there. rt started ratntng. whereupon the tr,vo grrls decided to return to their own home The appcllant allou ed .lennrlbr Tumukuasrre Io return home alone but forcrblr detarned Tumwebaze and proceeded to defile her Tumukuasire \ as not called to gire evrdence for reasons explarned br both Bernad Ntanda. P\\'3- her tather, and .loren Kvaharebtre . PW5. her aunt and mother of Tumuebaze Thel explarned that Tumukuasrre had been sick and died before the case came to trial.

Be that as lt ma\. tt uas the prosecutlon's evtdence that the appellant locked Tumwebaze rnsrde hrs house and detiled her. not once but three trmes rn that nrght. The vrctlm made an alarm which \,ras nol answered br anvone. Her cousin reported her detention and defilement to Ntanda thal same nrght around 9 00 p rn In the mornrng of the tbllowrng dar. Tumwebaze returned to the home of her uncle. Ntanda. and reported that she had been defiled by the appellanr She was treated u rth hot r.rater b1' the u rfe of her uncle to whom she refened as mother The defilernerrt w'as reponed to the local authorities and to the polrce as <sup>a</sup>result of whrch the appellant r,r as lateruurested and charged. Tumwebaze \*as medrcalll' examined bl Dr Ceorge Waswa. pWl Dr Wasua lbund that she u'as under the age of l8t,ears. and that whercas there uere no tears or scratches on the vagtna or recent tears of the hvmen. the victirn had a dark spot on the urethral meatus whrch \*a-s caused bt fbrced entrance tnto the vagrna The appellant denied the ofTence and testified thar he had been fiamed bv Bernad Ntanda

/

because of a grudge betueen the two of them. The learned trial ludge accepted the evrdence of the prosecution and disbelieved that of the defence and convicted the appellanr The appellant appealed to the Coun of Appeal which dismrssed the appeal. The appellanr appealed to thls court on two grounds. At the commencement of the heanng. ground I uas amended w'rth leave of court The grounds amended uere as fbllows

- l- The learned Justrces of Appeal erred in la\* when thel found that the trral ;udge \ras.lustified rn believrng the complainant as a truthf ul wttness and that there r,r'a-s sufficrent corroboratir e evrdence rn support of her evrdence. - l- The learned Justlces of Appeal erred in lau when thev failed to reappraise the evtdence as a whole rn order to come to their own conclusron as a first appellate court.

During the course of hrs submissions. counsel for the appellant. Mr Mubrru. abandoned ground land made submrssrons onlv on gnound 2 of the appcal He contended that as a first appellare coun. rhc Court of Appeal farled to appraise all the evidence rn thrs cils€ so as to come to its oun conclusron Counsel submined that the evldence relating Io the age of Tumwebaze and to whether or not there had been sexual rntercourse had not been reevaluated br the learned Justrces ofAppeal. He further contended that there were \ anous contradicttons in the evidence which were senous and both the trial court and the Court ofAppeal had ignored them. lt uas Mr Mubrru's further contentton that the act of defilemenr had not been corroborated and therefore the tnal court and the Court of Appeal erred rn lau rn finding that there had been corroboratron Counsel lbr thc appellant crted thc casc ol Sansa \'. 539. rn support of hrs submrssrons R. al97t). E..{.

For the Respondent. Mr Vrncent Wagona. Senior State Attornel. supported the decisions and reasoning of the couns belor,r He contended that. rnspite of some inconsistencres. there was sufficrent evidence that Tumwebaze was not onl\_"- below' the age of l8 years but had been defiled as well Mr Wagona contended that the trral ludge and the .lustices-of Appeal had adequatelt evaluated the evrdence and were rrght ln their conclustons. On the issue of the victim's age. he submrtted that the doctor's evrdence corroborated the assertion that Tumwebaze \*as belou the age of l8 \_"-ears. On that account. counsel drstrngurshed the decisron in SANGA's case (supra). He also submined that there uas sufficrent evidence on defilement which was corroborated br the testimonl of the doctor who examtned Tumwebaze some four dals after the offence was commttted.

The minor contradrctions rarsed b1 learned counsel for the appellant were adequatell dealt wrth b1 both the trral .ludge and the learned Justices of Appeal. We are satisfied that the t\.! o couns evaluated the evidence and came to the nght conclusron when thel' decrded that Tumwebaze was under l8 vears of age at the time of the offence With regard to the act of defilement. there were some rnconsistencres rn the evidence uhrch the courts belou ought to have consrdered but whrch thel' appear not Io have adrened to. Although Tumwebaze. testifies that before the defllernent she had not had sex with an) other man. and that during defilernent she sustarned rnlunes. the evidence liom the medical exarninatron. carrred out several day's after the incrdent. showed that the tears in her h1'men were more than a month old and were alreadv healed. and that the dark spot found on the urethral meatus was not caused at the same trme as the tears Sccondll . although Bernad Ntanda. testified ln e\amrnatron rn chref that he llas rnformed of the defilement at 9 p.m

{

in the night of the incident, in cross examination he said he received information the morning after.

After considering these inconsistencies with the rest of the evidence, however, we are satisfied that even if the Court of Appeal had expressly considered them, it would have come to the same conclusion. We think that the omission to do so did not amount to a failure in its duty to reevaluate the evidence. Accordingly, we find no merit in ground 2 of the appeal. It fails, and the appeal is dismissed.

DATED AT MENGO THIS 15th DAY OF Anyust 2001

$\mathcal{S}_{2}$

JW. N. TSEKOOKO

# JUSTICE OF THE SUPREME COURT

A. N. KAROKORA

JUSTICE OF THE SUPREME COURT

J. N. MULENGA

# JUSTICE OF THE SUPREME COURT

duratilian KANYEIHAMBA

JUSTICE OF THE SUPREME COURT

L. E. M. MUKASA-KIKONYOGO JUSTICE OF THE SUPREME COURT