Ssebinyonyi v Uganda (Criminal Appeal 270 of 2016) [2023] UGCA 222 (17 August 2023)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. 270 OF 2016

SSEBINYONYI GADI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::**

(Arising from the High Court of Uganda sitting at Mubende presided over by Justice Elizabeth Nahamya)

## CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### **JUDGMENT OF COURT**

The Appellant was indicted and convicted of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. He was sentenced to 28 years and 3 months' imprisonment.

The Appellant was dissatisfied with the decision of the trial court and filed this appeal against conviction and sentence on the following grounds;

- 1. The learned trial Judge erred in law and fact when she convicted the appellant without following the law governing the assessors' participation in the trial proceedings thereby causing a miscarriage of justice. - 2. The learned trial Judge erred in law and fact in sentencing the appellant to a manifestly harsh and excessive sentence which did not take into account the mitigating factors thereby occasioning a miscarriage of justice.

ARE Crons

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## Background

On the 16th day of December 2OL4 at around 13: 00 hours at Kisanysa "B' LCl Kiyita Parish, Nabingola Sub-county in the Mubende District, the deceased and one Besiga Wilson were assaulted by Ssebinyonyi Gadi and two other unidentified people at the place where they were distilling crude waragi. The two victims ran away and tried to move back to their home. However, the deceased failed to reach home and died on the way as a result of the assault occasioned on him by the appellant.

## Representatlon

At the hearing of the appeal, Ms. Meureen Kemigabo appeared for the Appellant while Ms. Haplneea Alnebyona appeared for the Respondent. Both parties filed written submissions which were adopted by this court.

## Conslderation of the appeal

As a first appellate court, this Court is enjoined to carefully and exhaustively reevaluate the evidence as a whole and make its own decision on the facts, bearing in mind that it has not had the opportunity to see or hear the witnesses, especially if the demeanour of the witnesses is key to the findings made. Even where the demeanour of witnesses is relevant, this Court may reverse the decision of a trial Judge if it is of the view that considering all the circumstances, the decision cannot stand. Where the question is one of drawing inferences from the facts adduced, this Court is free to reverse the findings of the trial Judge, if after reviewing the evidence, it is of the view that the findings of the trial judge were wrong. (See the cases of Pandya v. R 11954 EA 336; Klfamunte Henry v. Uganda SCCA No. 1O of 1997, and Eogere Moses and Another v. Uganda, Supreme Court Crlmlnal Appeal No. 1 of 19971.

Rule 3O of the Judicature (Court of Appeal Rules) Directions SI 13-1O provides that;

u3O. Power to reappralse evldence and to take addltlonal euldence

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# (7) On ong appeal from a decislon oJ the Hlgh Court acting ln the exerclse of lts origlnal Jurisdlctlon, the court mag-

# (a) Reappralse the evldence and draut inJerences oJ fact'

We have borne the above principles in mind in resolving this appeal. We shall resolve the grounds of appeal as argued by counsel.

### GROUND ONE

The learned trlal Judge erred ln law and fact when she convicted the appellant without following the law governlng the assessors' participation ln the trial proceedings thereby causing a miscarrlage ofJustlce.

## Appellant's submisslons

Counsel submitted that under Section 66 of the Trial on Indictments Act, taking an oath is a mandatory prerequisite in the trial process and a trial which proceeds without the assessors taking oath is a nullity. Counsel argued that the assessors in this case did not take oath and in addition, did not attend court on 22na Malch 2016 when the testimonies of PW4 and PW5 were taken. That the said assessors gave €rn opinion yet they did not attend court and is as such a fatal irregularity. Counsel argued that there is no evidence that the assessors took oath at the commencement of the trial.

Counsel relied on the decision in Byaruhanga Fodori Vs Uganda COA Crlmlnal Appeal No.24 of 1999 in which it was held that courts should strictly adhere to the provisions of the Trial on Indictments Act regarding assessors.

#### Respondent's submlssions

Counsel submitted that according to the record of appeal, the two assessors participated in the trial and were present throughout the trial apart from the 22nd March 2016 given that the record does not reflect their attendance in court. Counsel further argued that the appellant was in court together with his lawyer


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and they did not raise the issue of absence of the assessors or the oath taking by the assessors. Counsel argued that the assessors'role in the trial is advisory in nature and not binding on the trial Judge and as such, the errors did not occasion a miscarriage of justice

## CONSIDERATION OF GROUND ONE

We have carefully considered ground one of the Memorandum of Appeal, we have a-lso taken into account the authorities cited on irregularities in the trial with regard to assessors.

The law governing swearing in of assessors is Section 67 of the Trlal on Indlctments Act. It provides as follows;

## 67. Oath o/ cssessor.

At the colmmen,cem,ent o;f the trlal and, uhere the provlslons of sectlon 66 are appllcable, afier the prellmlnary hearing has been concluded, each ossesso r shall ta,ke an oath imltartiallg to advise the court to the best oJ hls or her knouledge, slcill and abilltg on the issues pendlng beJore the court.

The typed record of proceedings shows that the trial commenced on 1/3l2016 and the assessors were introduced to court as Cissy Nsamba and Segawa Abudallah. However, the record does not show whether the assessors took oath before commencement of the trial. The record shows as follows;

"Court: I am proposing the follotuing as Assessor:

- 1. Cissy Nsamba - 2. Segauta Abudallah

Assessors

Court: do you haue any objection?

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Acansed: no objection

Stote attorne!: no objection

De u l:noobjection.

Court: the aboue mentioned persons will be the assessor in this matter.

12/ s/ 2016

Parties appearance:

State: Baine Stanleg Moses

For the accused Babu Rashid State trial

Acansed person in the dock

Court clerk and interpreter - Ttuaibu Setimba

Assessor l. Segawa Abdallah

2. Misindi Andretu Solomon/ present

State attorneu:

Matter is for hearing ond u.te haue tuo witnesses

We haue agreed to the same facts

Court: Please proceed."

Thereafter, court proceeded with the memorandum of agreed facts and examination in chief of PW2. On the 22"d of March 2016, the trial proceeded without the assessors and PW4 and PWS gave their evidence in chief and cross examination, after which the prosecution closed its case. The matter was then adjourned to 29th March 2016, on which date the assessors were present. The judge noted that the defence case would commence on the 6th of April 2016 and the matter was further adjourned.


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From the proceedings, there is no evidence that the assessors were sworn in at the commencement of the trial. They were not present on the 22"d of March 2016 when PW4 and PWS gave their evidence in chief and cross examination.

ln Okao Jlmmy Alias Baby, Ogwanga Patrlck alias Osinde and 3 others Vs Uganda Court of Appeal Crimlnal Appeal Nos. 55, 62 snd 67 of 2017, this court considered the absence of assessors in the circumstances where one of the assessors was absent during part of the hearing. This court held as follows;

owe are oJ the uleut that the second .zssessor, havlng absented htnselt from part of the trlal and dld not hear the etidence etren ot onlg one uitness, should not have been pennltted to resume partlcipatlon and giae oplnion ln the case......

Allowlng the crssessor to resume paltlclprrtiorr ln the trlal ulas a Jundamental irregulan'ltg whlch occasloned a mlscarrlage ol iustlce. ?he cssessor's oplnlon utrrs based on lncomplete evld.ence and lt could hrrae lnJTuenced the declslon of the Judge.'

In this particular appeal, there is no evidence that the assessors were sworn in and the respondent conceded to this fact, save having argued that it did not occasion a miscarriage of justice.

The Supreme Court in Alenyo Marks Vs Uganda Supreme Court Crlminal Appeal No. 08 of 2OO7 held that:

nsection 3 of the Trlal on Indlct nents Act underscores the lnqrortdnce oJ cssessors bg provldlng lor a mandatory requirement thr::t all ct'lm,inal trlals ln the Htgh Court be conducted ulth at least turo assessors. It theretore tollouts thct assessors' partlclpatlon and role in a crim:inal trial is vltal Their role goes to the legality oJ a trla/-.,

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We ha ue revieued the record and haae n.ot seen ang indication of the (ursessors haulng taken oath. Indeed, the respond.ent conceded to the Idct that the assessors were n,ot sutorn ln.

Accordlng to sectlon 67 oJ the Trlal on Indlctments Act, the taktng of oath 7s a matudatory prerequlslte ln the trlal process... D

The above decision of the Supreme Court, which is binding on this court, held that failure to take oath of assessors is fatal to the proceedings and thus, the proceedings in the lower court were a nullity. Ground 1 of the appeal therefore succeeds.

We find no reason to consider the second ground of appeal. We accordingly order a retria.l before a different judge. The appellant must be kept in custody pending the retrial. He is, in accordance with the law, at liberty to apply to the High Court for bail pending his retrial.

We so order

Delivered and dated this . t7 day of or <sup>2023</sup>

RICHARD BUTEERA Deputy Chief Justice

CHRISTOPHER GASHIRABANE Jugtlce of Appeal

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OSCAR J KITII,A Justlce of Appeal