Bakisule Abdu v Uganda (Criminal Appeal No. 79 of 2021) [2025] UGSC 54 (22 December 2025)

THE RTPIIBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 79 OF 2O2I (Aising from Court of Appeal Criminal Appeal NO.516 of 2017) (Aising from Ciminal Session Case NO. 56 of 2O15) (CORAM: TIBATEMWA-EKIRIKUBINZA; TUHNSE; CHIBITA; MUSOTA; MN)RAMA, JJ. S.C) BAKISULE ABDU APPELLANT VERSUS UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (Appeal from the decision of the Court of Appeal of Uganda at Kampala in Ciminal Appeal No.516 of 2017, decided bg Musoke, Cheboion, and Obura, JJA dated 1 Sth Nouember 2O2 1). JUDGMENT OF THE COURT Introduction This is a second appeal. Bakisule Abdu herein referred to as the Appellant, appeals against the decision of the Court of Appeal wherein the learned Justices of Appeal dismissed his appeal and confirmed the conviction of Aggravated Robbery, sentence of 20 years' imprisonment and a compensation order of 200,OOO/=. Background The facts giving rise to this appea-l and as accepted by both courts below are that on the evening of 12 l8/2O13, the Appellant in the company of two others way laid Samuel Kisa (the victim), forced him ffi llPage into a motor vehicle and robbed him of his money Ug. Shs. 200,0OO/= in cash, a techno phone and his clothes. Two guns were used during the robbery and the magazine of one of the guns fell at the scene of the robbery and was later retrieved by the police. Following the robbery, the victim was dropped off at Maggwa, where he was picked up by a police patrol. Upon the Appellant's arrest and interrogation, he denied participating in the offence and was subsequently indicted, tried and convicted of the offence of aggravated robbery. He was sentenced to 20 years' imprisonment. He appealed to the Court of Appeal which upheld the conviction and sentence and in addition ordered the Appellant to pay compensation of Ug. Shs. 2OO,OOO/-- lo the victim. The Appellant was dissatisfied with the decision of the Court of Appeal and filed an appeal to this court on the following grounds: 1. The learned Justices of Appeal erred in law when they held that the Appellant was properly identified at the scene of crime. 2. The learned Justices of Appeal erred in law when they adopted a wrong principle regarding participation of the Appellant. 3. The learned Justices of Appeal erred in law when they upheld a sentence of 20 years' imprisonment which was harsh and excesslve. Representation. At the hearing of this appeal, the Appellant was unrepresented, but he indicated to court that his lawyer was Mr. Ntende Samuel and that he had already filed submissions. The Respondent was represented ffi 2lPage by Mr. Innocent Aleto, Senior State Attorney. Both parties filed written submissions, which they adopted as their legal arguments. Duty ofa second appellate Court. The duty of a second appellate Court is intertwined with the duty of a first appellate Court although the two are different. The Supreme Court has distinguished clearly the duties cast on each Court in the case of Kifamunte Henry v. Uganda Criminal Appeal No. 1O of 1997 thus: "We agree that on a first appeal, from a conuiction by a Judge the appellant is entitled to haue the appellate Court's ou)n consideration and uiews of the euidence as a whole and its outn decision thereon. TLLe first appellate court has a dutg to reuieu the euidence of the case and to reconsider the mateials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefullg weighing and considering it. When the question arises as to -@l 3lPage This is a second appeal and this court is mindful of its duty as a second Appellate Court, to decide whether the hrst Appellate Court failed in its duty to re-evaluate the evidence presented before the trial Court to reach its own conclusion. Consequently, this Court can only interfere with the conclusions of the Court of Appeal if it appears that in consideration of the appeal as the first appellate court, the Court of Appeal failed to re-evaluate the evidence as a whole. See Rwabugande Moses veraus Uganda, Supreme Court Criminal Appeal No.25 of 2014. which witness should be belieued rather than another and that question turns on manner and demeanour the appellate Court must be guided bg the impressions made on the judge taho saw the witnesses. Hotueuer, there mag be other circumstances quite apart from the manner and demeanour, which may shou uhether a statement is credible or not which maA uarrant a court in differing from the Judge euen on a question of fact turning on credibility of uitness uthich the appellate Court has not seen. See Pandga u. R [1957] DA 336, Okeno o. Relrubllc [1972] EA 32 and Charles Bltulre o. Ugando Supreme Court Crlmlndl Appeol No. 23 of 7985 at page 5. On second appeal, it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles. Therefore, the duty of a second appellate Court is to examine whether the principies which a first appellate Court should have applied were properly applied and if it did not, for it to proceed and apply the said principles. Consideration of the appeal We have carefully perused and considered the Appellant's submissions and observed that the submissions do not in any way address the three grounds of appeal as contained in the Memorandum of Appeal. It is a settled principle of appellate practice that an appeal is determined on the basis of the grounds set out in the memorandum of appeal, and not on a-rguments introduced in the written or ora-l submissions of counsel. 4lPage @ Submissions, whether written or oral, serve only to elaborate, clarify, and persuade the court on the grounds already pleaded in the memorandum. They cannot substitute for or expand the Memorandum of Appeal, nor can they introduce fresh grounds which were not raised at the time of filing the appeal and to allow otherwise, would amount to an abuse of process, prejudice the respondent who would not have been put on notice, and undermine the orderly conduct of appellate proceedings. This court is bound to restrict itself to the issues arising from the memorandum. We shall proceed to determine the appeal based on the grounds of appeal laid out in the Memorandum of Appeal. Grounds L a.nd,2 The Appellant, in grounds one and two of the memorandum of appeal, faults the learned Justices of Appeal for having held that he was properly identilied and that he participated in the robbery. Respondents Submissions Counsel submitted that the learned Justices re-evaluated the entire evidence of PW1, PW2, PW3, PW4, DWl and DW2 and rightly found PW1's evidence to have implicated the Appellant in the commission of the offence. Counsel relied on Section 132 of the Evidence Act, which provides thal "an accomplice shall be a competent witness against an accused person, and a conuiction shall not be deemed illegal merely because it is based on the uncorroborated testimony of an accomplice." On that basis, he contended that PW1 was an accomplice in the commission of the offence a-longside the Appellant. @ 5lPage Counsel for the respondent relied on the authority of Abdalla Nabulere & Another v. Uganda, Criminal Appeal No. 9 of 1978 lL979l, where the Court observed thal "where the case against an accused depends uholly or substantiallg on the correctness of one or more identifications, uhichthe defence disputes, the tial judge shauld utarn himself and the assessors of the special need for caution before conuicting the accused in reliance on the correctness orf such identifi"cation(s/." Counsel submitted that, in line with this principle, the learned Justices ofAppeal properly re-evaluated the evidence on record and correctly found that the identification and participation of the appellant in the offence had been hrmly established. Counsel submitted that the Appellant in his evidence never denied the allegations made by his accomplice (PWl). The Appellant raised an alibi, which the learned Justices found unbelievable considering the evidence of PW1 and PW3 who were both in the car at the time the offence was committed. Counsel for the Respondent further submitted that the learned Justices of Appeal rightly re-evaluated the evidence and properly found that the identifrcation by PW2 did not meet the criteria set out in Abdalla Nabulere u. Uganda. They observed that PW2 was 100 meters away, had only a brief opportunity to observe the Appellant, and had no prior familiarity with him. Counsel argued that the Justices were therefore correct in partially discounting PW2's testimony and in relying on other incriminating evidence, including the corroboration from PWl, to sustain the conviction. 6lPage @ Counsel for the Respondent submitted that the learned Justices rightly relied on the testimony of PWl, who worked for the appellant, in establishing identification, and properly considered the relevant aspects of PW2 and PW3's evidence, which corroborated the accounts of PW1 and PW4 regarding the recovery of the bullets and magazine at the scene. Counsel for the Respondent went on to submit that under Section 286(3) of the Penal Code Act, a magazine with bullets qualifies as a deadly weapon, and this was further supported by the testimony of PWl and PW3, that the Appellant and his accomplices carried guns during the robbery. Counsel maintained that the learned Justices of Appeal rightly found the appellant properly placed at the scene, his a/ibi disproved, and his participation and identification corroborated by PW2 and PW3. Appellant's submissions in rejoinder Counsel submitted that the contradictions and inconsistencies in the evidence of the prosecution witnesses were material in this case to prove the Appellant's participation in the offence, in relation to the place and time the offence was committed. Counsel argued that the Appellant raised an alibi and the duty lay on the prosecution to negative the alibi, which was not done. Consideration ofgrounds L and,2 TlPage 5 The evidence that both the trial court and the Court of Appeal relied on to identify the Appellant was that of PW1 and PW2. The Justices of Appeal, upon re-evaluation of the evidence, held as follows; "The evidence of Kintu Abdu (PWl) was that the appellant was his boss and he had worked for him as his driver with his colleagues since 2OLL. Their work was to rob people. On l2l8l2oL3, the appellant called him to meet him at Bugembe football pitch at about 4:OOpm. They met at around 6:OOpm and they drove off in a white premio to lVanyange near the river from where the appellant altered the car number plate from Registration No. UAR O9OT to UAR 888T. Thereafter, they met another tall gentleman around Wanyange and they proceeded to Kakira road from where someone called the appellant and informed him that the victim rras on his way. The appellant together with a one brown armed themselves with 2big guns and as the victim was crossing to Kakira road, they grabbed him and forced him into the car and the appellant demanded money from him. The victim gave him the money that was in the bag as they undressed him and they drove off to a place called lkenke. They left PW1 at Kamuli round about and gave him 3O,OOO=and he proceeded home. After one day, he went to the OC Station CPS Jinja and narrated what had happened. Later on they arrested the appellant. @ SlPage According to Lubega Salim (PW2) a single identifying wltness whom the learned trial Judge found to be consistent and believable, the appellant was found to have been properly identified uslng the street security lights as the one who robbed the victim. The trial Judge found that PW2 was an eye witness who identified the appellant from a distance of about loometres away where he stood since the incident took a perlod of about 3-5 minutes which wag suflicient time for him to make a fairly clear identillcation with the assistance ofstreet security lights. We note from the court record that P[I2's evidence was that he did not know the appellant before but he recognized him on the day of the robbery when his car passed by him while he (PW2) was at hls work place. Further, that as the appellant participated in the robbery, he was able to identify him using the aiders for proper identification that is; the street security lights, the distance of about lOO meters and the duration of time of 3-5 minutes he took under obsenration. He testifled that on that day ll2l8l20l4) he was at hls workplace at about 9:OOpm and the victim passed him holding a black bag and a black polythene bag, heading home. After a few minutes a white car in which he recognized the appellant passed by heading in the direction of the victim. 9lPage After about 1O minutes, FW2 heard an alarm and he recognized the voice as that of the victlm. With the aid of the security lights, he saw the appellant holding the victim while the car door was open. They drove off towards Jinja town and after about 15 minutes the police arrived at the crime scene and recovered a magazine and bullets that had been littered there. In cross examination, he stated that he saw the victim's legs hanging outside when his assailants drove offwith him. ...We note from the Court record that much as the appellant denied participating in commission of the offence and raised an alibi, the learned trial Judge believed the prosecution evidence especially that of PtrI2 whom she found consistent and believable and corroborative of the account given by PW1 and PW3 on how the robbery was executed. As a result, she convicted the appellant. We have ourselves re-evaluated the evidence regarding the appellant's identification and participation and from the above analysis, we find that PWI's evidence implicates the appellant in commission of the offence. We agree with the finding of the learned trial Judge that PSI1 was an accomplice to the appellant in committing the olfence and we note that the learned trial Judge being alive to that fact, considered section L32 of the tvidence Act and case law regarding accomplice evidence and she proceeded with -@ l0 lPage caution before relying on it, taking into consideration the other corroborating evidence to support it. In her analysis, she found as follows at page 12 of her judgment; "Thqt notutlthstqndlng, PW7 utas conslstent in his testlmong. He kneut tlte accused utell as a patlner in previous missions and he uas agaln part of the gang that qttq.cked. and robbed the victim. He joined, that partlcular mission on the lnultqtlon of the accused. Theg met at q.bout 6:OOpm ln Bugembe football ground., ond he utatched hlm change the number plates of the uehlcle used ln the robbery and then droae with htm to plck qnother accompllce and then cqrry out the robbery. ptc) Thelr lnteractlon begun at 6:OOpm before dag break and lasted until afier 9:OOpm a period of more than 3 hours. (slc) There utould be no room for mlstaken tdentltg under such cLrcum,stances. Hls explanatlons of uthat actuallg took place durtng the robbery, folds tn qulte well utlth and the loss and retrleulng of tle magazlne of the mo,chlne gun used ln the robbery. If I uere to be mlstaken ln mg fl.ndtng, there utos lndependent eald.ence placlng the q.ccused. at the crl.me scene. The ulctlm narroted hls ord.eal quite consistentlg... 11 lPage @ ...Houteaer, the narrotlon of his ordeal tles ln utell wlth uthot PW7 experienced and uthat PW2 ultnessed." lle agree with the learned trial Judge's finding above and wish to add that, the appellant in his evidence, never denied the allegations made by PWI who was his accomplice. We have carefully read and aaalyzed the above quoted findings of the Court of Appeal and the trial Court. Court observed that according to PW1's testimony, he was the one who drove the Appellant and his other accomplice from the crime scene after they had grabbed the victim and put him inside the car. In his testimony, he placed the Appellant at the crime scene on the day of the robbery and discredited the Appellant's alibi. The law relating to the evidence of an accomplice is provided for in Section 132 of the Evidence Act, Cap. 6, that an accomplice is a competent witness against an accused person, and a conviction is not rendered illegal merely because it proceeds upon the uncorroborated testimony of such an accomplice. The section provides as follows: "An accomplice slwll be a competent witness against an accused person; and a conuiction is not illegal merelg because it proceeds upon the uncorroborated testimong o;f an accomplice." Although the law allows reliance on uncorroborated accomplice evidence, the well-established practice is that such evidence must be @ 12 lPage treated with extreme caution. The rationale is that an accomplice, being a participant in the crime, may have a motive to exculpate himself or to ingratiate himself with the prosecution by shifting blame to others. This principle was clearly stated in R v. Baskenrille [1916] 2 K.B. 658, where it was held that while a conviction based solely on accomplice testimony is not unlar.,,{ul, it is generally unsafe unless corroborated by independent evidence implicating the accused. In the present appeal, PWl testified that he worked for the Appellant, Bakisule Abdu, and that he participated with him and others in the plarning and execution of the aggravated robbery in question. By his own admission, PW1 was therefore a-n accomplice. His evidence, while admissible, required careful scrutiny and corroboration before it could safely be relied upon to sustain a conviction. Upon review, both the trial court and the Court of Appeal considered the totality of the evidence and found corroborative material in severa-l respects. The recovery of a magazine and bullets from the scene, as testified by PW2 and PW4, corresponded with PW1's detailed account of how the robbery was executed and the weapons used. Further, PW3's testimony regarding the position of the victim's body, with the legs hanging outside the vehicle, was consistent with PW1's narration of the events that transpired during the robbery. These independent pieces of evidence provided the necessarSz assurance of the truthfulness of PW1's testimony and sufhciently connected the Appellant to the commission of the offence. The @ 13 lPage learned Justices of Appeal, in affirming the conviction, rightly found that the appellant had been properly identified and placed at the scene of crime, and that his alibiwas effectively disproved by credible prosecution evidence. In our view, the l"t Appellate Court properly re-eva-luated the evidence of identification on record. We therefore find that the learned Justices of Appeal fulfilled their duty as the first Appellate Court to re-eva-luate the evidence afresh and we hnd no reason to interfere w'ith the decision. Ground 3 The Appellant faults the learned tria-l Judge for having upheld a harsh and excessive sentence. This Court observes that the appellant's complaint that the sentence of twenty (2O) years' imprisonment was harsh and excessive essentially challenges the severi$r of the sentence. Under Section 5(2f and (3f of the Judicature Act, Cap. 13, however, the jurisdiction of this Court in criminal appeals is conlined strictly to matters of law. The provision expressly excludes the question of severity of sentence as a ground of appeal to the Supreme Court. Section 5(3) provides that: "In the case of an appeal against a sentence and an order other than one fixed bg lana, the accused person mag appeal to the Supreme Court against the sentence or order, on a matter of law, not including the seueritg of the sentence." @ 14 lPage The import of this provision is that a person who merely complains that a sentence is harsh or excessive cannot competently appeal to this Court on that ground. The intention of Parliament is clear: matters relating to the quantum or degree of punishment are issues of discretion and fact, which lie within the province of the trial and first appellate courts. The Supreme Court, being a court of last resort, is not intended to function as a third forum for re-evaluating the propriety or leniency of sentences, save where a question of law such as misdirection, wrong principle, or illegality arises. In the present case, the record discloses that the sentence of twenty years was imposed within the limits prescribed by law for the offence of aggravated robbery. The learned Justices of Appeal found no misdirection or error in principle by the trial court, and neither has any question of law been demonstrated before this Court. The appellant's challenge is, therefore, purely one of severity, which falls outside the jurisdiction of this Court under the Judicature Act. Accordingly, we find that this ground of appeal is incompetent and must fail. The sentence of twent5r years' imprisonment was lawful, appropriate in the circumstances of the offence, and proportionate to its gravity. The appeal is therefore dismissed. @ L5 lPage Dated at Kampala this. o 2025 t,i- tl9 a-\{-.rt^r- Prof. Lillian Tibatemwa-Ekirikubinza JUSITICE OF THE SUPR-EME COURT .^Lo.ise-- Percy Night Tuhaise JUSTICE OF THE SUPREME COURT Mike Chibita JUSTICE OF THE SUPREME COURT @ Stephen Musota JUSTICE OF THE SUPREME COURT Christopher Madrama JUSTICE OF THE SUPREME COURT 16 lPage \.)*aDr&