Tugeineyo v Uganda (Consolidated Criminal Appeal 127 of 2017; Consolidated Criminal Appeal 77 of 2017) [2024] UGCA 133 (31 May 2024)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KABALE

(Coram: Muzamiru Mutangula Kibeedi, Christopher Gashirabake & Oscar John Khika, JJA)

## CONSOLIDATED CRIMINAL APPEAL Nos. 77 OF 2017 & 127 OF 2017

TUGEINEYO EMMANUEL APPELLANT

## YERSUS

UGANDA RESPONDENT

[An appeal against the conviction and sentence arising from the decision of the High Cout of Uganda at Kabale (Hon. Justice lrtloses Kazibwe Kawumi) delivered on the 24th November, 2016 in Criminal Sesslon Case No. 78 of 20131

## JUDGMENT OF THE COURT

#### lntroduction

- t1l The Appellant and 2 Others (Nuwagaba Denis and Nuwaha Emmanuel) were charged with the offence of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. 120. Only the Appellant was convicted as charged and sentenced to serve a 20 years' imprisonment term after deducting the four years he had spent on remand. - l2l The prosecution's case before the trial Court was that on the 18th day of November 2012 al Rwaruhinda Cell, Katuna Town Council in Kabale District Tayebwa Boaz (the deceased) died as a result of being intentionally beaten by the Appellant, Nuwagaba Denis (Al) and Nuwaha Emmanuel (A2).

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- t3l lt all started when on lhe 1811112012 the deceased was at a one Dennis's bar in Nyakabungo at about 4.00pm when A2 and A3 arrived there. They started assaulting him by slapping and boxing him. However, they were separated, and each one of them left for their respective homes. The deceased first went to his parents' home from where he told his mother, Twikirize Divion (PW2), that he had been assaulted by A2 and A3, and was going to his home but would report them to the Village Local Council (LC1) Chairman the following day. The LC1 Chairman was also the father of the Appellant. . - t4] Soon after the deceased had left, he was heard shouting that they were killing him. The deceased's mother rushed to the Chairman's home believing it is where the deceased had gone. She found the Appellant standing in the compound with a pointed stick. He was with his brother, Mushabe. The Appellant threatened to harm her, and she pleaded with him while making an alarm. As she was leaving for her home, she saw the deceased's body lying on the road with a swollen head near the Appellant's home. The LC1 Chairman did not answer the alarm she made. A one Kamanyire came to her rescue and began making an alarm, but the Appellant came and beat him. Other people later came to help. The deceased was removed from the scene and taken to Sette's home as they waited for transport to take him to hospital, but he died a few hours later. - t5l <sup>A</sup>post mortem was canied out on the deceased's body and it revealed that his death was a result of intracranial hemonhage due to an attack on his head with a blunt object. The Appellant first disappeared but was thereafter arrested and charged jointly with A1 and A2 of murdering the deceased. 41 was acquitted on a no case to answer submission since there was no evidence connecting him to the crime. A2 was acquitted at the end of the trial. The Appellant herein was convicted and sentenced as already stated in this judgment.

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## The Appeal

- t61 Being aggrieved by, and dissatisfied with, the judgment of the trial Court, the Appellant appealed to this Court against both the conviction and sentence on the following three grounds: - 1) The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record and thus convicted the Appellant on unsatisfactory evidence thus causlng a miscarriage of justice. - 2) The learned trial Judge erred in law when he acted on tnconslslenl statement of the prosecution to convict the Appellant thus causing him a miscarriage of justice. - 3) The learned Judge erred in law and fact when he imposed upon the Appellant a harsh, excesslve custodial imprisonment of 24 years,

## Representation

- t7l At the hearing of the appeal, Ms. Alice Namara appeared for the Appellant on State brief, while Ms. Nabaggala Ntege, Chief State Attorney in the office of the Director of Public Prosecutions (DPP) appeared for the Respondent. The Appellant was present in court. - t81 Both parties sought, and were granted, leave to adopt their written submissions, which were already on the court record, as their legal arguments.

#### Appellant's W en Submissions

t91 The Appellant argued ground 1 and2 concurrently and submitted that the trial Judge relied on the evidence of PW2 and PW3 to convict the Appellant, yet it was full of

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contradictions. The contradictions complained about were whether the Appellant was seen at the crime scene beating the deceased or not, and where the scene of crime was.

- [10] Counsel for the Appellant submitted that the scene of the crime testified about by PW3 was different from the one testified about by PW2. That PW3 testified in cross examination that he heard the alarm, woke up his mother, they went to where the alarm was coming from, and he found A2 and the Appellant beating the deceased. That PW3 was emphatic that he went with his mother (PW2) to where the deceased was lying. Further, that the sketch plan tendered in evidence by prosecution indicated the scene of the crime of murder to be near the road. That on the other hand, PW2 testified that the scene of crime was at the Appellant's home and not near the road like PW3's testimony intimated. That this testimony was changed and PW2 stated that the alarm was coming from the scene which was at the Appellant's father's home. She also testified that she saw only the Appellant beating the deceased and that she was alone, contrary to her Police Statement (DEX1) in which she had told police that she was with PW3. PW2 testified that Kamanyire was beaten at the scene. PW3 who was at the scene at page 41 of the record of proceedings testified that he only saw Kamanyire during the day. - [11] As to whether the Appellant was seen at the crime scene beating the deceased, Counsel submitted that PW2 testified that she responded to the alarm raised by the deceased alone as she followed him, yet PW3 stated that he went with PW2 upon waking her up when he heard the alarm. - [12] Counsel further submitted that the Appellant had been tried on the indictment dated 21st March 2013 where, it was stated that the deceased before he died, had told his mother that he had been beaten by A2 and the Appellant but the last beating was by the Appellant. That PW2 (the mother of the deceased) testified that the deceased $\begin{pmatrix} 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 &$

could not speak until he passed on at 5:00am. That this evidence contradicted the indictment/summary of evidence.

- [13] Counsel submitted that these contradictions were so grave and ought to have led to rejection of PW2's and PW3's evidence as happened in the case of **Byakatonda** Bosco Vs Uganda Criminal Appeal No. 0384 of 2017. - [14] Furthermore, Counsel argued that the conditions for proper identification of the Appellant in this case were unavailable. Counsel argued that the alleged offence happened at night after 9:00pm, yet the trial Judge during the summing up warned the assessors to consider whether it was a proper case of identification. That the Judge did not warn himself of the special need for caution before convicting the Appellant in reliance of the identification knowing 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. Counsel cited the case of **Abudala Nabulere & 2 Others Vs Uganda C. A Criminal Appeal No. 9 of 1978** in support of his submission. - [15] In conclusion, Counsel implored this Court to find that the Appellant was not properly identified; that the prosecution evidence was full of grave contradictions that should not have been ignored; and that the prosecution evidence did not place the Appellant at the scene of crime. - [16] Counsel did not make any submissions in respect of ground three of the appeal.

#### Respondent's reply to the Appellant's written submissions

[17] The Respondent's Counsel raised a preliminary point of law that the first ground of appeal, as raised by the Appellant, offends Rule 66(2) of the Court of Appeal Rules, as it does not concisely state and specify the matter of law or fact or evidence that is appealed against. Counsel implored this Court to strike out the first ground of appeal.

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- [18] Regarding ground two and three, Counsel for the Respondent opposed the appeal, and contended that the learned trial Judge rightly evaluated the evidence of inconsistencies and found that they were all minor and, accordingly, the Appellant was placed at the scene of crime and rightly convicted. - [19] Counsel argued that the learned trial Judge noted that even though PW3 claims to have seen A2 and the Appellant at the scene which was pointed out as a contradiction by the defence Counsel as to what both witnesses saw, it was clear in both testimonies of PW2 and PW3's testimonies was that they both saw the Appellant and that while PW3 ran to where the alarm was raised and where the deceased was lying, PW2 ran to the chairman's home as she believed the deceased had gone to report the earlier assault. - [20] Further, that the trial Judge observed that PW2 was very consistent and appeared truthful and that her statement did not vary so much from her Police statement which was made four years back. - [21] Counsel also contended that the trial Cou( still found that the contradictions in the evidence of PW2 and PW3 in relation to participation of the Appellant were minor and not intended lies. That PW2 did not claim to see A2 at the chairman's compound. That PW2's evidence and that of PW3 squarely pointed at the Appellant as the person who assaulted the deceased finally and was also seen with the murder weapons moments before the deceased was found lying on the road to his home close to where the Appellant was found. Further, that Court also considered the proximity between the day time assault on the deceased, the alarm raised by the deceased calling for help, the Appellant being found with a pointed stick and his conduct when accosted by PW2 all pointed to his participation in the murder of the deceased.

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- [22] Counsel concluded that the instant case the inconsistencies were minor and in no way pointed to deliberate untruthfulness. That even with those inconsistencies, the prosecution was able to prove the case beyond reasonable doubt. - [23] Regarding ground 3, Counsel submitted that the sentence of 24 years' imprisonment is not manifestly harsh and excessive considering the circumstances of this case, That Murder C/S 188 & 189 of the Penal Code Act canies a maximum sentence of death and that the sentence of 24 years' imprisonment was not harsh or excessive. Counsel cited the cases of Karisa Moses Vs Uganda, Supreme Couft Criminal Appeal No. 23 of 2016; Kobusheshe Karaveri Vs Uganda, Court of Appeal Criminal Appeal No. 110 of 2008; James Slo Yoram Vs Rex (1950)18 EACA 147; Kiwalabye Bernard Vs Uganda , Supreme CourT Criminal Appeal No. 143 of 2001; and Aharikunda Vs Uganda (2018) UGSC 49 all of which show that the sentence of 24 years for murder is just within the permissible sentencing range. - [24] Counsel for the Respondent prayed for the dismissal of the appeal.

## Resolution of the Appeal

- [25] The duty of this court as a first appellate court is now settled. lt is to reappraise all material evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that it neither saw nor heard the witnesses testify. See Rule 30(1)(a) of the Judicature (Court of Appeal) Rules; Baguma Fred Vs Uganda, Supreme Couft Criminal Appeal No.7 of 2004; Kfumante Henry Vs Uganda Uganda, Supreme Court Criminal Appeal No. 10 of 1997; and Pandya Vs R [1957] EA 336. - [26] We took cognizance of the principles above in the determination of this appeal and carefully reviewed the record before us, considered the submissions of both counsel, the authorities cited and those not cited that were relevant to the appeal.

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--l L)L # Resolution of the preliminary objection

[27] Ground one, which the Respondent objects to, was couched as follows:

"The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record and thus convicted the Appellant on unsatisfactory evidence thus causing a miscarriage of justice."

- [28] It is the Respondent's contention that the above ground contravenes Rule 66(2) of the Judicature (Court of Appeal Rules) Directions, S. I. 13 -10 in so far as it does not concisely state and specify the matter of law or fact or evidence that is appealed against by the Appellant. - [29] The Appellant did not file a reply to the Respondent's objection. - [30] *Rule* **66 (2) of the Court of Appeal Rules** provides as follows:

"(2) The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided."

- [31] This court has on a number of occasions considered grounds of appeal framed in a more or less identical style as the impugned one. In **Ntirenganya Joseph Vs** Uganda, Court of Appeal Criminal Appeal No. 109 of 2017, and Sseremba **Dennis Vs Uganda, Uganda Criminal Appeal No. 480 of 2017, this court held that** such a ground offends Rule 66(2) of the Court of Appeal Rules for failing to specify the evidence alleged to have been wrongly evaluated. - [32] We abide the above decisions of this court and uphold the Respondent's objection. We accordingly strike out ground one.

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## Ground 2

[33] Ground two was couched as follows: -

The learned trial Judge erred in law when he acted on inconsistent statement of the prosecution to convict the Appellant thus causing him a miscarriage of justice.

- [34] The inconsistencies complained about by the Appellant related to whether he was placed at the scene of the crime and participated in the murder of the deceased. Counsel for the Appellant contended that these contradictions were grave and ought to have led to rejection of the evidence of PW2 Divion Twikirize and PW3 Tuesday Willy. - [35] The law on inconsistences is now settled. It has been repeatedly held that major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away; while minor ones 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-U); and Twinomugisha Alex and 2 others Vs. Uganda, Cr. Appeal No. 35 of 2002 $(SC-U)$ . - [36] The issue of contradiction between the testimonies of PW2 and PW3 was at the core of the submissions of the Appellant's Counsel before the trial Court. When dealing with it, the trial Court stated thus:

"PW3 [Willy Tuesday] claimed to have been with the deceased when A2 and A3 found them at Dennis's place and the two began assaulting the deceased by boxing and slapping him on the head and all over the body. This evidence was not at all challenged by the accused persons during Cross Examination. The deceased narrated the same happenings to PW1 [Bernard Ndabatata] and PW2 [Divion Twikirize] later in the evening. PW2 claimed to have met A3 in his father's compound

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with a pointed stick and he even threatened her before she retreated. She found the deceased lying on the road to his home with a swollen head with a spot of blood. She told Coutl that the spot where she found the deceased was near A3's home.

PW3 claims to have seen A2 and A3 at the scene which Counsel for the accused pointed out as a contradiction as to what both wfnesses could have seen. The common thread in their evidence was that they both saw 43. While PW3 ran to where the alarm was raised and where the deceased was found lying, PW2 told Court she ran to the Chairman's home believing it is where the deceased had gone to reporl the earlier assault.

I obserued PW2, the mother of the deceased, while giving her testimony in Courl and as opposed to PW3 who was incoherent in speech and slow in appreciating the question put to him, PW2 was very consistent and appeared truthful. Her sworn evidence given four years after the incident did not greatly vary from her Police Statement exhibited in evidence by Counsel for the accused She was specific about running with Willy (PW3) to help the deceased. She found A3 in his fathels compound who threatened her and said he had no regrets about what he had done. She a/so told Police about Kamanyire who was hit by A3 with a stick when he tried to callfor help.

ln the same statement, the wrlness told Police that before her son died he told her that he had been beaten by A2 and A3 but the last beating was by A3, the son of Bujune.

I find that the contradictions in the evidence of PW2 and PW3 relating to the pafticipation of A3 were not intended /les to mrs/ead Courl. PW2 did not claim to see A2 at the crime scene or the Chairman's compound. Her evidence and that of PW3 squarely points at 43 as fhe person who finally assaulted the deceased and was seen with the murder weapon moments before the deceased was found lying on the road to his home close to where A3 was found. The proximity between the day time assau/t on the deceased, the alarm raised by the deceased calling for help, the finding of A3 with a pointed stick and his conduct when accosted by PW2 irresistibly point to his palicipation in the murder of the deceased. lt is my finding that he administered the fatalblow that led to the death of Tayebwa Boaz."

[37] We have reviewed the evidence on the court record. The summary and analysis of the same by the trial Court, coupled with the conclusion cannot be faulted. PW2 knew the Appellant long before the incident as a village mate and one of the neighbours. When she answered the alarm of her son being killed by going to the home of the LC1

Chairperson, who is also the Appellant's father, she found the Appellant there. While there, there was sufficient proximity between PW2 and the Appellant which lasted for a fairly long time. She heard the Appellant's voice as she threatened her. We are satisfied that the conditions favouring the proper identification of the Appellant as set out in the cases of Jamada Nzabaikukize Vs Uganda, Supreme Court Criminal Appeal No. 01 of 2015; and Abdulla Nabulere Vs Uganda (supra) existed.

- [38] Furthermore, PW2 saw the Appellant with the murder weapon moments before she found the deceased's body lying on the road close to where the Appellant was found. The conduct of the Appellant soon after PW2 found him in his fathe/s compound up to the time PW2 found the deceased's body all pointed to the participation of the Appellant in the murder of the deceased. - t39l Whereas there were some inconsistencies in the testimonies of PW2 and PW3, we agree with the findings of the trial Court that the inconsistencies complained about were minor. They reflect each individual witness's ability to recollect the exact details of what happened after the passage of a period of over four years, and the order of the occurrences. The specific order of the witnesses' responses to the appellant's actions is affected by passage of time and varies from individual to individual. However, there is no doubt that both PW2 and PW3 were at the scene of the crime and properly identified the Appellant. - [40] Accordingly, ground two fails

## Ground 3

[41] Ground three was couched as follows:

The learned Judge erred in law and fact when he imposed upon Appellant a harsh, excessive custodial imprisonment of 24 years.

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- [42] The Appellant did not make any submissions on ground three of the appeal. This implied that they abandoned that ground, which, in our view, was the wise thing to do in view of the numerous decided cases of this court and the Supreme Court. In Kyaterekera George William V Uganda, Court of Appeal Criminal Appeal No.773 of 2010, this Court confirmed the sentence of 30 years imposed by the trial Court on the Appellant who had fatally stabbed his victim on the chest. ln Ssemanda Christopher and Muyingo Denis Vs. Uganda, Court of Appeal Criminal Appeal No, 77 of 2010, lhis Court confirmed a sentence of 35 years' imprisonment for the offence of murder. ln Aharikundira Yustina Vs. Uganda Supreme Court Criminal Appeal No.027 of 201S-where the Appellant brutally murdered her husband and cut off his body parts in cold blood, the Supreme Court set aside the death sentence imposed by the trial Court and substituted it with a sentence of 30 years' imprisonment. ln Kisitu Majaidin alias Mpata Vs Uganda, Court of Appeal Criminal Appeal No. 028 of 2007, this Court upheld a sentence of 30 years' imprisonment for murder. The Appellant had killed his mother. - [43] Accordingly, the complaint about the 24-years' imprisonment sentence being harsh or excessive in the circumstances of this is void of merit.

## Disposition

- [44] The appeal is dismissed. - [45] The conviction and sentence of the High Court are hereby confirmed. - [46] The Appellant shall continue serving the sentence imposed by the trial Cou(.

## We so order.

\l \r\A/ day of Delivered and dated this

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**MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal**

CHRISTOPHER GASHIRABAKE **Justice of Appeal**

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OSCAR JOHN KIHIKA<br>Justice of Appeal