Nkwiriyingoma v Uganda (Criminal Appeal No. 533 of 2014) [2013] UGCA 2052 (29 November 2013)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORT-POTRAL CRIMINAL APPEAL NO. 533 OF 2014 (Arising from Criminal Case No. 0115 of 2011)

## NKWIRIYINGOMA YUSUF ::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA ::::::::::::::::::::: **.....................................** (Arising from the decision of the High Court of Fort Portal, (Lameck N. Mukasa, J, dated 29<sup>th</sup> November 2013)

#### CORAM: Hon. Mr. Justice Richard Buteera, DCJ Hon. Lady Justice Irene Mulyagonja, JA Hon. Lady Justice Eva K. Luswata, JA

### JUDGMENT OF COURT

## **Introduction**

The appellant was convicted of Aggravated Robbery c/ss 285 and 286 of the Penal Code Act, Cap 120, and sentenced to 35 years' imprisonment. 20

## **Brief facts**

On the 19th of November, 2010 at about 22.00 hrs, the victim lrumba George William and his wife Tusiime Grace were on their way from Kyarusozi Town going back to their home.

While on the way three (3) people known to him by face emerged from the bush armed with a panga and iron bars. They grabbed him and one of them hit him on the head with an iron bar. He fell down and they continued assaulting him.

- One of the assailants got hold of Tusiime Grace and went with her to his 30 home where he had sexual intercourse with her during the night and she left the next morning at around 7am. Another one pushed his hands in the victim's pockets and removed Ug. Shs $60,000/$ =. He later lost consciousness and was taken to the Hospital for treatment. - Early the next morning the victim's wife reported the matter to the security 35 Supervisor at MC Cleod Russel Tea Estates where they lived. She directed

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them to the home of the appellant where he was promptly arrested after she identified him as the person who assaulted her husband and later pulled her from the scene.

The victim was examined on PF3 at Virika Hospital on 23/11/2010 and found to have suffered two cut wounds on the head. The injuries were $\mathsf{S}$ classified as dangerous harm.

The appellant was also medically examined on PF 24 and found to be of sound mental status. He was accordingly charged with Aggravated Robbery and convicted. He was sentenced to 35 years' imprisonment. He now appeals against the decision of the trial Judge.

## **Grounds of Appeal**

1. The learned trial Judge erred in law and fact when he relied on the evidence of PW2 who was a single identifying witness in the absence of corroborating evidence as to participation of the appellant.

- 2. The learned trial Judge erred in law and fact when he relied on PW1 and PW2's contradictory and inconsistent evidence hence arriving at an erroneous decision. - 3. The learned trial Judge erred in law and fact when he passed judgment on an indictment of aggravated robbery yet the ingredient of theft was not proved beyond reasonable doubt. - 4. The learned trial Judge relied on the unproved allegations of sexual intercourse by appellant with PW2 to issue a harsh and excessive sentence hence occasioning a miscarriage of justice.

5. The learned trial Judge issued a harsh and excessive sentence of 38 years' imprisonment.

## **Representation**

At the hearing of the Appeal, the appellant was represented by Mr. Samuel Muhumuza from the Legal Aid Project of the Uganda Law Society, while the respondent was represented by Mr. Joseph Kyomuhendo, Chief State

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Attorney. Both counsel nrade an aplrlication for courl to adopt atrd rely on the written submissions they had filed. -I'he application was grantcd.

## Ground l.

## Case for the appellant

- Counsel for the appellant contended that tho learned trial Judg,e wrongly relied on the unreliable evidence of a single identifying witness to convict the appellant. PW I testifiecl that he did not rccognise his atlackers because it was dark. PW2, his wile testified Ihat shc rvas able to identify the appellant because he took her to his home and had sexual intercourse with - 10 Irer during the night. Counsel argued that this could not be true since the witness did not inforrn Police oI that fact but only mentioned it years later during the trial. He further pointed out the inconsistencies that nlarred PW2's teslimony, lhat is; that she left the appellant's home with the appellant's customer that had come to buy al< ohol and in another instance - 15 stated that she left the appcllant standing, on the veranda. To counsel, her testimony was incollsistent ancl the trial Judge should not havc relied on her evidencc as a single identifying witness mo[e so because slie also testified that she did not knorv the appellant prior to the in(ident.

## Case for the respondent

20 25 On his part, counsel [or tlre respondent submitted thirt the appellant was properly identificd by PW2 and her evitlence was corroborated by the fact that she imnredialely reported to one Arinaitwe Enrmanuel, a security guard, who together with his colleagues laLrnched a search Ior the appellant and they were led to the appollant's house Ll)- PW2. It was counsel's contention that thc rvitness coukl not have led thc scarch teanr to thc appellant's house if she had never been thcre and even pointed to the bed where she had slept ll'ith the appellant the previous night.

Regarding identification, counsel subnrified that Pl!2 ably identified the appcllant using natural light and ther- had spent a long time togethcr

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during the night when he took her to his home and that she observed him in the morning since she left at around 7am. To him, there was no room for mistaken identity.

## Ground 2

#### Appellant's case $\mathsf{S}$

Counsel for the appellant submitted that PW2 testified that a motor cycle took her to the security gate where she informed a guard called Alinaitwe of what had happened. Alinaitwe testified as PW4. He stated that he was at the gate when he received information that someone had been cut. He went to the clinic and found Irumba, PW1, who was badly off. PW4 further $10$ testified that before reaching the scene, he received a phone call from the guard at the main gate who informed him that there was lady at the gate who had informed him that Irumba had been cut to death.

On the other hand, counsel submitted that whereas PW2 testified that they 15 were attacked by two people, her police statement mentioned three attackers. Counsel argued that these inconsistencies went to the root of the case seeing that she made the police statement while the incident was still fresh in her mind.

Counsel also pointed out that PW1 and PW2 testified that the attack happened on 19/11/2010, yet according to PW4 the attack happened on $20$ 20/11/2010. Counsel thus argued that whereas it was not contested that PWI was attacked, it was doubtful as to when this happened. He thus argued that all these inconsistencies cast doubt on the truthfulness of the witnesses and as to whether prosecution dispensed its duty to prove the 25 case beyond reasonable doubt.

#### Respondent's case

Counsel for the respondent submitted that the inconsistencies cited by counsel for the appellant were minor and did not go to the root of the case. He cited an example of whether PW2 had left the appellant in his house or

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on the veranda was a minor issue and argued that that could be attributed to the lapse of time. The incident occurred in 2010 and the witnesses were testifying in 2013.

On the question of when the incident occurred, counsel stated that both $\mathsf{S}$ PW1 and PW2 testified that they were attacked on 19/11/2010. PW4 testified that the incident occurred on 20/11/2010. He contended that this was explainable by the fact that PW4 received the information of the attack from several sources and he received the information on $20/11/$ 2010. Counsel argued that appellant's counsel was wrongly branding 10 different sources of information as contradictions.

## Ground 3

#### Appellant's case

Counsel for the appellant submitted that the learned trial Judge found that the stolen items could have been taken by the second attacker. He pointed

$15$ out that a search was conducted on the appellant's home yet none of the stolen items were found there. Counsel contended that the appellant could not have been convicted of aggravated robbery without proving theft.

## Case for the respondent

- Counsel for the respondent submitted that PW1 had testified that he was gainfully employed at Mwenye Tea Estate and that on the day of the attack, $20$ he had just received a salary of Shs. 80, 000/ of which he had spent Shs. 60, 000/ and now had a balance of Shs. 20, 000/. He further testified that he also had Shs. 450, 000/ for the Association, and that all the money he had on him was stolen. - Counsel submitted that money was property capable of being stolen. He 25 also submitted that there was asportation seeing that his money and the food supplies he had purchased had been taken away from him. He only stated that the appellant was so lucky that when his house was searched,

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nothing was found. It was counsel's assertion that this was because the appellant could have hidden the stolen items away from the house.

## Grounds 4 & 5

## Appellant's case

- Counsel submitted that the learned trial Judge considered information $5$ received from PW2 that the appellant had sexual intercourse with her to sentence him to a harsh and excessive sentence of 38 years. He argued that PW1 did not even report this matter to Police. No evidence was led to prove it. It was not correct for the trial Judge to rely on it as an aggravating factor. - He prayed that Court exercise its powers to reduce or set aside that $10$ sentence

## Respondent's case

Counsel argued that the learned trial Judge imposed a legal sentence bearing in mind the gravity of the offence and the brutality the appellant

had exercised upon the victim. 15

## Court's consideration of the grounds

## Duty of the first appellate court

The duty of this court was laid out in **Kifamunte Henry v Uganda; S. C. Criminal Appeal No. 10 of 1997, where the Supreme Court stated;**

- "The first appellate court has a duty to review the evidence 20 of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it." - In Rwabugande Moses v Uganda; S. C. Criminal Appeal No. 25 of 2014, 25 the Supreme Court high-lighted the duty of the first appellate court as follows:

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"It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. [Baguma Fred vs. Uganda SCCA N0.7 of 2004]"

### **Resolution**

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In undertaking the above duty, we shall handle the grounds of this appeal in their chronological order.

## Ground 1

The learned trial Judge erred in law and fact when he relied on the 15 evidence of PW2 who was a single identifying witness in the absence of corroborating evidence as to participation of the appellant.

The law on identification is well established. In *Abudala Nabulere* & 2 others v Uganda; Criminal Appeal No. 9 of 1978, the Court of Appeal addressed the issue of a single identifying witness as follows: 20

> "A conviction based solely on visual identification evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages of justice. There is always the possibility that a witness though honest may be mistaken. For this reason, the courts have over the years evolved rules of practice to minimise the danger that innocent people may be wrongly convicted. The leading case in East Africa is the decision of the former Court of Appeal in Abdalla Bin Wendo and Another v. R. (1953), 20

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 EACA 166 cited with approval in Roria v. R. (1967) EA 583. The paragraph which has often been *quoted* from Wendo (supra) is at page 168. The ratio decidendi discernible from that case is that:-

$(a)$ The testimony of a single witness regarding identification must be tested with the greatest care. (b) The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult.

(c) Where the conditions were difficult, what is needed before convicting is 'other evidence' pointing to guilt. (d) Otherwise, subject to certain well known exceptions, it is lawful to convict on the identification of a single witness so long as the judge adverts to the danger of basing a conviction on such evidence alone." (sic)

The Court of Appeal went ahead to observe that:

"The safe-guards laid down in "enclo are in our view adequate, if properly applied, to reduce the possibility of a miscarriage of justice occurring. It will be observed that there is no requirement in law or practice for corroboration. In applying Wendo there have sometimes been references to the need for corroboration where the only evidence connecting the accused with the offence is the identification of a single witness. We think that this is not correct. First, there is clear statutory provision that for the proof of any fact, a plurality of witnesses is not necessary: see s. 132 of The Evidence Act (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 in not

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good, a number of witnesses will not cure the danger of mistaken identity, hence the requirement to look for 'other evidence'.

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." (Sic) (Emphasis added)

In the instant Appeal, whereas PW2 was a single identifying witness, she had ample time to observe the appellant because he carried her to his home on the night of the attack, slept with her and she left his house at day break at about 7am. By 7am East African time, it is our view that there would have been sufficient light and this enabled her to observe the appellant well enough to identify him.

Besides, she did not know the appellant prior to this incident and could not, therefore, have known his home well enough to lead the search team there when she reported the attack to one Alinaitwe Emmanuel. However,

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30 because she had left his home that same morning when it was already day break, she was able to lead the search team to the appellant's home. We, therefore, find that though she was a singe identifying witness, the length

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of time she spent with the appellant the whole night and the circumstances under which she identified the appellant were favourable so as to leave no room for mistaken identity. This ground, therefore, fails.

## Ground 2

The learned trial Judge erred in law and fact when he relied on PW1 and $\mathsf{S}$ PW2's contradictory and inconsistent evidence hence arriving at an erroneous decision.

It is trite that major contradictions and inconsistencies lead to rejection of the witness evidence while minor ones lead to rejection of the evidence if they point to deliberate untruthfulness on the part of the witness. In 10 Candiga Swadick v Uganda; Criminal Appeal No. 23 of 2012, the Court of Appeal re-stated the principles as follows:

settled. Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away. Minor ones, on the other hand, will only lead to rejection of the evidence if they point to deliberate untruthfulness on the part of the witness- see Alfred Tajar vs Uganda E. A. C. A Cr. Appeal No. 167 of 1969 (unreported); Sarapio Tinkamalirwe vs Uganda, Cr. Appeal No. 27 of 1989 (SC) and Twinomugisha Alex and 2 others Vs Uganda, Cr. Appeal No. 35 of 2002 (SC).

"The law on contradictions and inconsistencies is well

In the instant Appeal, the evidence by PW1 that he was attacked on 19/11/ 2010 was corroborated by the testimony of PW2. It was further confirmed 25 by the testimony of PW4 that he found the victim at the Clinic on $20/11/$ 2010. It was not possible for PW4 to find the victim at the Clinic before his attack the previous night. Secondly, PW2 informed PW4 the day after the attack. That could easily explain the minor contradiction of PW4 saying that PW1 was attacked on 20<sup>th</sup> instead of 19/11/2010. 30

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We do not find any major contradictions in the testimonies of PW1, PW2, on the one hand and PW4 on the other, to warrant the rejection of their evidence regarding when the attack on PW1 actually took place. As a result, this ground fails for it had no merit.

#### Ground 3 $\mathsf{S}$

# The learned trial Judge erred in law and fact when he passed judgment on an indictment of aggravated robbery yet the ingredient of theft was not proved beyond reasonable doubt.

For the offence of Aggravated Robbery, the elements are that:

- $i)$ There was theft. $10$ - There was use or threat of actual violence immediately before or ii) immediately after the theft. - iii) There was possession of a deadly weapon at or immediately before or immediately after the theft or that death or grievous harm was caused to any person. - The Accused participated in the theft. $iV$

## See Wallington vs DPP 91935) AC 462, Oketh Obolla & others Vs R [1965] $EA$ 555.

- In this case, the learned trial Judge carefully analysed the evidence pointing to theft. He relied on the testimony of PW1 that on the night of 20 the attack, he had some money that had remained from his salary since they were paid that day. This fact was confirmed by PW4 who testified that Irumba and the appellant were his co- workers and that 19<sup>th</sup> November 2010, was a pay day. The appellant, fully aware of this fact, took advantage - of ambushing the victim that same night and robbing him of his money 25 and the other items that he had on him.

Having found under grounds 1 and 2 that the appellant was ably identified and placed at the scene of the crime, it leaves no doubt that he stole the items that PWI had on him on the night of the attack. The stolen items

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were not found on him when he was arrested by the search team on 20<sup>th</sup> November 2010, when they found him in the garden.

This far, we have no reason to fault the learned trial Judge's finding on the ingredients of theft. The same was proved to the required standard. This ground equally fails. $5$

## Grounds 4 and 5

### Sentence

In Kiwalabye Bernard v Uqanda; Criminal Appeal No.143 of 2001 (unreported), the Supreme Court gave guidelines for when the appellate court may exercise its delicate discretion of tampering with a trial court's 10 sentencing. Court had this to say:

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

In this case, the learned trial Judge stated thus:

"Though the convict was not being also accused for rape I cannot avoid to note that in the same transaction he with infirmity engaged PW2 in sexual intercourse in a situation where her husband was believed dead. In the circumstances I consider a sentence of 38 years appropriate. I reduce that by the period of nearly 3 years spent on remand. The convict is sentenced to 35 years (Thirty-five) years of **imprisonment from this date of conviction."** (Sic)

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It is evident that the learned trial Judge based on an unproved allegation of rape made by PW2 against the appellant to decide the sentence to give the appellant. We note that the issue of rape did not form part of the charges against the appellant and neither was it canvassed throughout the

- trial. That being the case, the learned Judge wrongly alluded to it and more $5$ so, at a critical point of the case as sentencing. For that reason, we find that the sentence was wrongly reached at the appellant's prejudice. We accordingly set it aside. - Having found as we have, we invoke this court's jurisdiction, powers and authority under Section 11 of the Judicature Act to sentence the appellant. 10 We note that the appellant was a first offender, a married man with 5 children and 5 orphans of his late brother to look after. That he had a heart problem and he was looking after his old sickly mother and that he also suffered from ulcers. He had spent three years on remand. - 15 We also note that the appellant attacked a work mate and cut the victim on his fore-head; a very sensitive body part. He went away with the victim's hard-earned money and properties.

In the circumstances, we find a sentence of 25 years' imprisonment to be an appropriate punishment for his wrongs. From the 25 years, we shall deduct the three years he had spent on remand prior to his conviction. He 20 will, therefore, serve a sentence of 22 years' imprisonment. The sentence shall run from 29<sup>th</sup> November 2013; the date of conviction.

Dated at Fort Portal this .................................... 25 ichard Buteera Deputy Chief Justice Irene Mulyagona Justice of Appeal 30 Eva K. Lusward COURT OF APPEAL OF UGANDA Justice of Appeal **CERTIFIED TRUE COPY** $13$ GISTRAR