Kazarwa Henry v Uganda (Criminal Appeal No. 17 of 2015) [2017] UGSC 92 (10 August 2017)

1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: (KATUREEBE, CJ, KISAAKYE, ARACH-AMOKO, MWONDHA, TIBATEMWA EKIRIKUBINZA, JJSC) CRIMINAL APPEAL NO. 17 OF 2015 KAZARWA HENRY ……….…………….………….……… APPELLANT VERSUS UGANDA ……………………………………………….… RESPONDENT ( Appeal from the decision of the Court Appeal at Kampala before Nshimye, Mwangusya, Buteera, JJA dated the 20 th day of January, 2014 ) JUDGMENT OF THE COURT This is a second appeal filed by the appellant Kazarwa Henry after having been dissatisfied and aggrieved by the judgment and decision of the Court of Appeal. The appellant with two others were indicted on the charge of murder C/s of 188 & 189 of the Penal Code Act. It was alleged that the appellant together with two others in the night of 14 th February, 2009 at Kyabazade village murdered Kyakabale Willy. The Court of Appeal upheld the conviction and the sentence of life imprisonment against the appellant. The appellant appealed to this Court on two grounds as embodied in the memorandum of appeal as hereunder:- (1) The Learned Justices of the Court of Appeal having found as a fact that Kamugisha Tobias pleaded guilty as a person who murdered late 2 Kyakabale Willy on the 14 th of February, 2009 at Kyabazala, erred in law in the re-evaluation of evidence thereby wrongly confirmed the appellants’ conviction of murder. (2) The Learned Justices of the Court Appeal erred in law when they failed to re evaluate mitigation of sentence basing on circumstances of the case thereby wrongly dismissed the appellants appeal against sentence of life imprisonment. The appellant prayed (a) that the conviction be quashed and sentence be set aside (b) in the alternative the life imprisonment sentence that was imposed against the appellant be reduced. Background : The brief background of the appeal is that on the 14 th February, 2009 the deceased was attacked on his way from a bar to his home along Kaguta Road Lyantonde. The postmortem report showed that he died of hemorrhage shock resulting from deep cut wounds. Three people were arrested in connection with murder. These were Nyakahangura Kenneth (A 1 ) Kamugasha Tobias (A 2 ) and Kazarwa Henry (A 3 ). During the early stages of the Trial A 2 pleaded guilty to the murder charge. He was convicted on his own plea of guilty to the murder charge. He was sentenced to life imprisonment. The trial proceeded against the two accused persons the appellant and Nyakahangura(A 1 ). They were found guilty of having committed murder and sentenced to life imprisonment. The appellant appealed to the Court of Appeal and the Learned Justices after reappraising the evidence found that his conviction was based on proper analysis of the available evidence by the trial Court. They accordingly found no merit in the appeal and dismissed it. At the hearing Mr. Rukundo represented the appellant and Ms Lucy Kabahuma Senior State Attorney represented the State. 3 Both Counsel filed written submissions which they adopted. Counsel for the appellant submitted that the prosecution case was mainly premised on dying declaration of the deceased and the evidence of A 2 Kamugisha Tobias who pleaded guilty and was sentenced to life imprisonment. He argued that the Court of Appeal erred in law when after re evaluation of the evidence wrongly confirmed the Appellant’s conviction of murder, and yet it found as a fact that Kamugisha Tobias pleaded guilty to the charge of murder of the deceased. He submitted that the Court of Appeal as the first appellate Court had a duty under rule 30 of the Court rules to re-evaluate the evidence and subject it to fresh scrutiny. He argued that it failed to exercise great care when confirming the appellant’s conviction. He referred to the testimony of PW3 Basome John where Basome stated: “I was at home sleeping at about 10:00 p.m. when I heard an alarm by Ntwale asking us to help saying Ronald’s workers are killing us. When I went to where Ntwale was, I found Kyakabale lying down in a farm. I found that he had been cut behind the neck and arm and he was talking. He told him that Kamugisha Tobias had cut him … Then Ntwale, Bayendeza, Nakanjako Jane and himself carried the injured man to Atwijukye’s home. That they then rang John Jones asking him to bring a vehicle and they took him to hospital. He again said he did not go to hospital with them among others.” He submitted that the appellant was disputing the ingredient of participation and he argued that the appellant pleaded alibi in his defence which the prosecution failed to discredit or disprove. There was no assessment by Court to verify whether it is true or false. The evidence of the appellant was not shaken during cross examination. Counsel reproduced the appellant’s testimony at page 14 of the proceedings lines 1 – 30 “On 14 th February 2009 I was at the school working from 8:00 a.m. to 6:30 p.m.. Thereafter I went home. I reached at 7:00p.m. and found my wife Kanyesigye Edvance. I was then served with food 4 and slept. We were with our child Nayebare Agnes. I slept up to 7:00 a.m. the next day Sunday 15 th February 2009. Manager Kiiza Robert came for me to go and wash the cows of Ronald Rutta. I left my wife at home. We sprayed the cows for three hours. I then returned home and was informed that Lubega had called from town. Lubega had caused my arrest earlier on the 12 th February 2009 and I do not know his other name, I knew where he stays in town. The arrest was because I had planted trees in the land which was not ours. It is true his brother had instructed us to plant those trees … On the 6 th June I lost my child of one month and we took the body to Rukungiri. I decided to stay and construct a house among others. I never went to Rukungiri to hide. I know George Atwijukye he is from the neighbouring sub- county of Kabasomi while he was Nyarusanji. I was arrested on 17 th January 2010 a year after. Counsel submitted further that section 11 of the Judicature Act gives the Court of Appeal powers of the Court of original jurisdiction when determining the appeals. S.132 of the Trial on Indictments Act and S. 34 (2) of the said Act gives an accused person the Right of Appeal to Court of Appeal against conviction and sentence on a matter of law, fact or mixed law and fact. He argued further that paragraph (e) of the said provision allows Court of Appeal to vary or confirm the sentence where the appeal is against sentence only. He submitted that the legality of sentence of the entire natural life in prison was not addressed by the Court of Appeal. Counsel cited the case of Attorney General v. Susan Kigula and 417 others Constitutional Appeal No. 3 of 2005 where he quoted the holding “Not all murders are committed in the same circumstances, and all murders are not necessarily the same in character.” He argued that the issues to be determined on the legality of sentence for life imprisonment are:- 5 (1) whether it should be like in the case of Tigo Stephen v. Uganda SCCA No 8 of 2008 which held that life imprisonment means the remaining whole natural life of the appellant (2) Whether it should be like in the case of Livingstone Kakooza v. Uganda SCCA No 17 of 1993 where Supreme Court held life imprisonment in light of S. 47 (7) of the Prisons Act meant essentially a sentence of 20 years imprisonment. He submitted that the Court takes judicial notice of the fact that there was no cross appeal to maintain the sentence of life imprisonment against the appellant. He prayed that the sentence of life imprisonment be set aside and or reduced. Counsel for the respondent Ms Lucy Kabahuma in reply opposed the appeal and submitted as follows among others. That the Court of Appeal could not be faulted because the Learned Justices referred to rule 30(I) (a) of the Court of Appeal rules. The rule gives them power to re-appraise the evidence on record as the first appellate Court. They exercised their duty citing the authority of Kifamunte Henry versus Uganda Criminal Appeal No 10 of 1997 she further submitted that throughout the judgment they re- appraised as shown from paragraph 20 page 6 of the judgment so it was not true that they failed in their duty. She argued that the Justices of the Court of Appeal referred to the case of Mushikoma Watete and 3 others v. Uganda Criminal Appeal No 10 of 2000 , to explain the defence of alibi and the need for the prosecution to execute the burden of placing the accused at the scene of crime. At page 11 of paragraph 2 the Learned Justices found that the defence of alibi was considered by the Learned trial Judge and by doing so they executed the duty of the 1 st appellate Court of re-evaluating the evidence to make a finding of fact on the evidence available. The Learned Justices of the Court of Appeal, she submitted, went further and said that although the trial Judge did not state clearly that he was considering the appellant’s alibi, he actually did consider it and discredited it in his judgment. She argued that the Learned Justices considered the defence of the appellant where he stated that on the night of 14 th /02/2009 6 he was in Lyantonde and left for Rukungiri on 15/02/2009. They found that his defence of alibi was properly discredited and agreed with the trial Judge. She prayed that the 1 st ground be dismissed. On the 2nd ground Counsel submitted that in the Court of Appeal, there was no ground specifically addressing the variance of sentence. She submitted that at page 4 of the record of proceedings, the appellant’s prayer (b) was to the effect that the conviction and sentence be set aside which Counsel of the appellant prayed for at the hearing of the appeal. She further submitted that by the time the Justices of the Court of Appeal passed the sentence they had in their mind Supreme Court Criminal Appeal No 08 of 2009 Tigo v. Uganda where it was held that life imprisonment means imprisonment for the remaining life of the convict. She further submitted that there was no need for a cross appeal, so it was not true that the respondent did not argue in Court of Appeal to maintain the sentence of life imprisonment against the appellant as submitted by the appellant’s Counsel. She prayed that Court finds no merit in the appeal and upholds the conviction and sentence. Mr. Rukundo for the appellant submitted in rejoinder that Article 28 (3) of the Constitution was infringed upon as the appellant was not given the opportunity to call witnesses to support his alibi among others. He reiterated his earlier prayer. Consideration of the appeal Section 5 (I) of the Judicature Act Cap 13 provides that “in criminal matters in the case of an offence punishable by a sentence of death an appeal shall be to the Supreme Court as follows: (a) Where Court of Appeal has confirmed a conviction and sentence …. the accused may appeal as of right to a Supreme Court on a matter of Law or mixed law and fact.” 7 Counsel for the appellant faulted the Court of Appeal for failure to properly exercise its duty as the 1 st appellate Court. The duty of reappraising the evidence particularly when they found as a fact that Kamugisha Tobias had pleaded guilty to the murder, of Kyakabale Willy. The Court went ahead to confirm the conviction. Rule 30 of the Court of Appeal rules provides “(I) on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction the Court may (a) re-appraise the evidence and draw inferences of fact (b) …...” We are alive to the duty of the 2 nd appellate Court, which is to determine whether the first appellate Court properly re evaluated the evidence before coming to its own conclusion except in the clearest of cases where the first appellate Court has not satisfactorily re-evaluated the evidence, the appellate Court should not interfere with the decision of the trial Court. See (Criminal Justice Bench Book 1 st Edn. 2017 pages 283 and 284. It was apparent that pleading guilty perse by Kamugisha Tobias (A 2 ), and the Learned Justices finding it as a fact does not mean that they failed in their duty of re appraising and evaluating the evidence afresh. From the record the Learned Justices of the Court of Appeal first reminded themselves of their duty as a first appellate Court as provided in rule 30 (I) (a) and (b). The Learned Justices cited and or referred to the case of Kifamunte Henry v. Uganda also supra. The question is whether they exercised their duty properly of subjecting the available evidence to fresh scrutiny as the law requires and the authorities cited held. We are compelled to quote among other things what the case of Kifamunte held: “the first appellate Court has a duty to re hear the case and to reconsider the materials before the trial Judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.” 8 The Learned Justices re-appraised as follows at page 6 of the judgment paragraph 20 “ we shall now proceed to re appraise the evidence. The evidence on record is that the deceased and the accused persons lived on the same village. They knew each other. They met in a bar on the day the deceased was killed. The deceased raised alarm when he was attacked and cut. PW3, 4 & 5 answered the alarm. They found the deceased lying in a pool of blood and the deceased told them he had been cut by the three accused persons. PW4 said he had seen the three accused persons run away. According to PW4 there was moonlight and that’s how he managed to see them. The learned trial Judge analysed the evidence of the dying declaration and found it consistent and reliable. He also found that the dying declaration was corroborated by the witness who reported that he saw the three accused persons and there was moon light which enabled him to identify them.” PW4’s evidence was briefly to the effect that on the material night he was in a bar with his wife Jane Nakanjanko (PW5), Kyakabale deceased and left at 10:00 p.m. but left the deceased in the bar. After about 30 minutes they heard an alarm from the road. They woke up and called Kyakabale’s wife and run towards the direction the alarm was coming from. It is not clear why they had to call Kyakabale’s wife before they knew where the alarm was coming from? He said they found the deceased lying down and his assailants had run away. He saw the accused persons and that they were three Kenneth, Kazarwa and Kamugisha. He said there was moon light and that was how he recognised them. He said the deceased was still talking and had told them that it was Kazarwa, Kenneth and Kamugisha who cut him. He said that there were land wrangles between the two bosses George Atwijukye and Ronald. He took the deceased to George’s home together with PW3, Jane Nakanjako and the widow of the deceased. They then went to Kaguta Road and called John Jones. When John Jones delayed he (PW4) went on foot to Lyantonde and took Kyakabale to hospital. While still 9 treating the deceased at 6:00 a.m. he died. During cross examination he said they had drank waragi from the bar since 7:00 p.m. and they were just chased away by the owner of the bar PW6 at 10:00 p.m. He said they did not get drunk and the scene of crime was between a forest, thick and tall bush. He further said that he saw the accused persons but they were running away and they were in a distance of 10 meters from him. He also said the accused persons found them in the bar and Kenneth was holding a panga. He said he answered the alarm by running and sounding an alarm too. PW3 testified that he was at home and heard the alarm by PW4 asking them for help saying that Ronald’s workers were killing them. He went where Ntwale (PW4) was and found Kyakabale lying down in a farm. He saw that he had been cut behind the neck and arm and he was still talking. He told him that Kamugisha Tobias had cut him. He said he knew Kazarwa Henry as a resident of Kaguta Road. PW5 said that on the material day 14 th February 2009, she went to drink at 6:00 p.m. with her husband PW4 with the deceased. She said that she knew Kazarwa because he worked with Ronald. She said that while at the bar two men came with a panga and sat on the veranda. The men left them there. That she and her husband PW4 left the deceased at the bar drinking, since they were drunk and the bar was going to close. She stated they were drunk though they could walk properly. When they reached home and were going to sleep they heard an alarm of Kyakabale saying people were killing him. They woke up and went with the wife of the deceased. She said they found him when he had been lifted and being brought to his bed. A lot of blood was flowing from the wounds. The deceased said it was Kenneth, Kazarwa and Tobias who cut him with a panga. She said there was a grudge between Ronald and George and the people who cut him worked for Ronald. The deceased was an employee of George. She stated she didn’t know the two men who had a panga and she has never seen them again. 10 She could not recognize them. She said she didn’t know if PW3 was there as he found when the deceased was being taken away. PW6 testified among others that on the 14 th February 2009 at around 7:00 p.m. she found Kyakabale (deceased) PW4 and PW5 drinking in her bar. She served them with alcohol (booze) after which they left. After two hours PW4 and Bayendeza came and asked her for a phone to contact his boss saying that Kyakabale attacked but was not yet dead. The learned Justices found that there was corroboration of the dying declaration in the testimony of PW4 on the identification of the appellant and the two co-accused persons at the scene of crime. They believed that PW4 had seen the appellant when he (PW4) answered the alarm by the deceased and had seen them earlier on the same night in a bar. They didn’t accept Counsel for the appellant submission to the effect that the dying declaration was not corroborated. We find the evidence as summarised herein above full of inconsistencies and contradictions from the start. PW3 said that the deceased told him that it was Kamugisha who cut him. PW4 stated that he told him that it was the three Kamugisha, Kenneth and Kazarwa the appellant. Indeed as Counsel for the appellant submitted if the two were in the same place one heard that it was Kamugisha and the other said it was the three of them how could that inconsistence be minor? Be that as it may it was important that the evidence of proper and correct identification was re-appraised and subjected to fresh scrutiny. PW4 stated that, there was moon light which helped him to recognize the appellant and the two co-accused persons. And that he saw the appellant and his co accused/convicts in 10 meters distance running away from the scene of crime. The scene of crime was between a forest and tall bush which was thick. He said he was coming running also sounding an alarm. 11 PW5 testified that while they were drinking two men came with a panga and sat on the veranda. She said she didn’t know them and could not recognize them even in court and she has never seen them again. PW4 said that the appellant and the two co-accused found them in the bar. To begin with PW4 and PW5’s evidence fundamentally differ in that PW4 said the two men found them there. That Kenneth was holding a panga and he didn’t say who the other one was and what he was wearing. PW5 said that two men not three came and left. PW6 who came to serve alcohol (booze) had not come. It is difficult to believe that the appellant was in company of PW4 and PW5 basing on that evidence. It casts a lot of doubt on our mind. There is no evidence showing that the appellant drunk together with PW4 and PW5 as PW4 alluded in his testimony. But even if the evidence was there which was not the case the evidence available fell short of strengthening the prosecution case to the required standard. This case depended upon correct and proper identification of the accused person devoid of mistaken identify when the conditions were difficult. It also partly depended upon circumstantial evidence. The Learned Justices said “we do not accept the submission of Counsel for the appellant that the dying declaration was not corroborated by any other evidence. We find that the dying declaration was sufficiently corroborated .” We have to point out that when Ntwale (PW4) testified, he said he heard the alarm from the road, it was only when they reached the scene of crime that they knew it was Kyakabale. While PW5 his wife said they heard Kyakabale raising an alarm and they went and woke his wife up, PW3 said he heard PW4 sounding an alarm saying Ronald’s workers are killing us. None of them i.e. PW4 and PW5 was with the deceased when all that was going on. 12 The evidence is inconsistent in that each witness heard his or her own version so there was no way it could be relied upon. The appellant claimed that there was moon light which helped him to recognize the appellant, but this was moonlight amidst a forest and thick tall bush. It was not stated how bright it was. The Court of Appeal clearly stated when reappraising the evidence that there was moonlight and the three accused persons who included the appellant were known to PW4 as they were on the same village. The appellant had been with PW4 and PW5 that evening in the bar. As stated earlier the conditions favourable for proper and correct identification were completely lacking. The moonlight perse and the distance PW4 recognised the appellant and the time he spent observing them made it dangerous to convict and confirm the conviction against the appellant. The trial Judge and the Learned Justices of the Court of Appeal did not first caution themselves on the danger of mistaken identity. The conditions prevailing cast doubt in our mind as to whether the moonlight was sufficient as to pierce through the tall thick bush and forest where PW4 alleged to have recognised the accused persons running from the scene of crime. The evidence doesn’t avail the length of time PW4 spent observing the appellant running away. In fact earlier in his testimony PW4 had stated that they found when they had ran away. It has been reiterated time and again in a series of decisions by this Court and its predecessors, that where prosecution is based on evidence of a single identifying witness the Court must exercise great care so as to satisfy itself that there is no danger of basing conviction on mistaken identity. See Abdulla Bin Wendo and another v. R [1953] EACA 166 , Roria v. Republic [1967] EA 583, Abdalla Nabulere & Another v. Uganda Cr. Appeal No 9 of 1978 ( un reported) Moses Kaona v. Uganda Cr. Appeal No 12 of 1981 (unreported) and Bogere Moses and another v. Uganda Cr. Appeal No I of 1997 (un reported ). 13 It was stressed in the case of Abdulla Nabulere and another v. Uganda supra , that “apart from light during the incident, and familiarity of the assailant to the victim, other factors, such as distance between them, the length of time, the victim had to observe and even the opportunity to hear the assailant are factors to look out for. The Court said “All these factors go to the quality of the identification evidence. If the quality is good the danger of mistaken identity is reduced but the poorer the quality the greater the danger. When the quality is good as for example, when the identification is made after a long period of observation, or in satisfactory conditions by a person who knew the accused before, a Court can safely convict even though there is no other evidence to support the identification evidence, provided the Court adequately warns itself of the special need for caution.” (Emphasis is ours) In the case of Isanga Lazaro, Amuza Kimbugwe, Ngobi Mutoigo v. Uganda Criminal Appeal No 10 of 99 (SC) it was said:- We think that the aforesaid is even more compelling where the prosecution is based on a dying declaration even if the declaration is repeated to several witnesses. In the instant case the evidence of moonlight came out from PW4 alone who stated that he saw the accused persons run away 10 meters from where he was. There was no other source of light. None of the witnesses said that they heard the deceased mention the name of the appellant at the time of the attack. But even if the deceased had done so, it could not lessen the legal requirement for caution to ensure that the identification evidence is such as would not leave possibility of mistaken identity before convicting. Indeed there is no indication that the learned Justices and also the learned trial judge considered the quality of the identification evidence as contained in the deceased’s dying declaration as above analysed. If they had exercised caution they would have recognized that the identification of PW4 was prone to mistaken identity for various reasons. Firstly there was virtually no time 14 to positively and correctly identify the appellant because of the distance from which he alleged to have observed the accused persons whom he said were running away. Secondly the natural vegetation surrounding the scene of crime where the deceased was attacked which was not favourable at all as earlier said. Thirdly the kind of light available and fourthly, the unreliable evidence of PW4, PW3 and PW5, fifthly, the presumption that Ronald’s workers were killing them even before they had identified the attackers. There was no other evidence from the prosecution like evidence of an investigating officer. It is apparent therefore that the Court of Appeal did not re-evaluate the evidence which it accepted as corroborative of the dying declaration. This is clear from the whole judgment. It is not enough for Court to merely remind itself of its duty as a first appellate Court and citing the provisions of the court Rules as the learned Justices did and also citing an authority or authorities to that effect. The reappraising has to clearly come out by analyzing afresh the whole evidence and subject it to fresh scrutiny as it’s clearly stated in many authorities including the Kifamunte case Supra. The Court of Appeal referred to the Supreme Court decision in Criminal Appeal No. 9 of 1987 Tindigwihura Mbahe v. Uganda where it was held among others-… “evidence of dying declaration must be received with caution because the test of the cross examination may be wholly wanting; and have occurred under circumstances of confusion and surprise; the deceased may have stated this inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness when identifications of the assailant is usually more difficult than day light. 15 The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case. It is not guarantee of accuracy. It is not a rule of law that in order to support a conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration a deceased person, made in the absence of the deceased and not subject to cross examination unless there is satisfactory corroboration.” Also see (Okoth Okale and others v. Republic [1965] EA 55 and Tomas Amukono v. Uganda [1978]. It is clear from the passages as reproduced in this judgment from the court of Appeal judgment, that the evidence of the dying declaration was treated like evidence of a single eye witness who appeared before court and there was an opportunity to subject him to thorough questioning with a view of testing the veracity of his evidence. But as was held in the Nabulere Abdulla case supra even in a case of an eye witness who testifies in court more caution has to be taken. The learned Justices after citing and quoting the Supreme Court decision in Criminal Appeal No. 10 of 2000. Mushikoma Watete and 3 others v. Uganda , found that the appellant’s defence of alibi was considered by the learned trial Judge in his judgment. They also found that the judge analysed the evidence and made a finding although he did not state that he was dealing with the defence of alibi. Again here the Court of Appeal judgment shows that the Learned Justices based the finding on isolated evaluation of the prosecution evidence alone as the trial Judge did, which was contrary to the decision it cited of Bogere Moses and Another v. Uganda (SC) Criminal Appeal No I of 1997 (unreported). It was held among other things that, “ Court must base itself upon the evaluation of the evidence as a whole. Where the prosecution 16 adduces evidence showing that the accused was at the scene of crime and the defence not only denies it, but also adduces evidence showing that the accused person was elsewhere at the material time. It is incumbent on the Court to evaluate both versions judiciously and give reasons why. … the other version is accepted …..” The Learned Justices of the Court of Appeal believed the prosecution evidence that the appellant was in a bar of PW6 together with PW4. PW6 was the owner of the bar and she told Court that after PW4 and PW5 had left about half an hour after, PW4 came back and asked for a phone and told her that Kyakabale had been attacked. PW4 also said that they had left Kyakabale drinking. So when PW3 testified saying that he heard PW4 making an alarm and saying that Ronald’s workers are killing us, who was PW4 referring to when he said he had already reached home and were going to sleep but at the same time he made the alarm in plural. He used the words “killing us.” This evidence casts doubt on the prosecution case. According to PW4 and PW5’s evidence it is clear that they were the last persons who were with the deceased in the bar. The evidence of PW3, PW4 and PW5 was unreliable because of the inconsistencies. The appellant said at that time he was at his home sleeping. He gave a full account of where he was on the 14 th February 2009. He stated he was at the school working from 8:00 a.m. to 6:30 p.m. He went home thereafter and was served with food by his wife Kanyesigye Edvance and slept. The next day 15 th February 2009 he went to wash Ronald’s cows and he left his wife at home and went with one Robert who came for him. He sprayed the cattle and came back home after 3 hours. When he came back home he was informed that one Lubega had called him from town. He said Lubega had caused his arrest earlier on 12 th February 2009 because the appellant had planted trees on land which did not belong to them. When he saw police come to his home, instead of waiting to be arrested for nothing he went back to the school where he worked earlier in the day. He thought the Police had come to arrest him again. He said he went back home after doing his work at school. He stated he lost his child on 6 th June 2009 and took the body to 17 Rukungiri. He decided to stay and construct a house. He denied that he went to Rukungiri to hide. He denied having killed Kyakabale. He said he was arrested on 17 th January 2010 at the Police Post at, Kiyenje where he had gone to stand surety for his cousin brother. He was driven to Ntungamo and he was asked about the death of Kyakabale which he denied knowledge of. DW3 was the appellant’s wife Kanyesigye Edvance who testified that by the time Kyakabale was attacked on the 14 th Feb. 2009 they were at their home sleeping with her husband. She said the appellant earlier went to work on that day and he did not move out at night when he came back from work until 6:00 a.m. on the 15 th Feb. 2009. He went to spray cows where he used to work. Then he returned about 9:30 a.m. and they sat on their veranda. She further stated that their house is by the road side and while there Policemen came to their home. The appellant walked away and the police arrested her. She said they lost a child in June 2009 and went to the village to take the body and the appellant stayed there as he was building a house. She testified about the wrangles between George and Ronald because of Kyakabale (deceased) who had cut Ronald’s banana plantation. Kyakabale was charged in Court. That Ronald and George were fighting over land. She said sometimes she would take materials in the village and would find her husband (the appellant). PW11 D/CPL No. 35170 Mugisha Albert testified that on 17 th February 2009 while attached to Lyantonde Police Post he was requested by D/CPL Mwesigwa to go with him to conduct a search at Nyakahangura’s home on Kaguta Road. He said he had seen the appellant in Lyantonde and he did not remember recording a statement from him before. That he remembered Lubega Frank complaining but he did not know if the complaint was against the appellant. It was a land complaint of malicious damage, criminal trespass etc. but he did not recall many details. PW10 was D/CPL No 21293 Francis Mwesigwa. He was with DPC and while investigating the murder at Kyabazaala village as they were moving towards 18 the scene, they reached the home of one of the suspects (Appellant’s). He further stated that when they stopped the appellant started running away. The police gave chase but to no avail. He said that before then John Jones had complained about the appellant as the head worker of Lutta with whom they were wrangling. He said he had earlier handled the case of the workers of the two people fighting where the deceased’s house was attacked and his windows broken until he locked himself in the house and was rescued by police. From the evidence above there was no evidence to disprove that he was not in his house in Kyabazaala Kaguta village Road as indeed confirmed by DW3. There was no evidence from the prosecution that he never lost a child in June 2009 though this was not material or relevant to the alibi since it occurred long after the offence had been allegedly committed by the appellant. We concerned that the learned Justices of the Court of Appeal said in the judgment that the appellant does accept that he was in the area where the offence was committed on 14 th - 2- 2009. We have to point out that the issue is about “scene of crime” Scene of crime cannot be enlarged to mean an area. This was a statement by the Court not supported by evidence on record. The many decisions available including the Bogere case cited supra, by the very Court of Appeal the focus was on scene of crime not area of crime. If a murder is committed in Kampala District, it would be too far fetched to say that a suspect has been put at the scene of crime because he or she too was in Kampala District or area of that time. The Learned Justices went on to say , “the following day 15 th -Feb-2009, he was washing spraying cows in the same area.” This was not the scene of crime. It was clear from the appellant’s evidence that he left for Rukungiri in June 2009. The murder was on 14-Feb 2009. The Court of Appeal stated that the appellant left for Rukungiri on 15 th Feb, 2009 this is not any where in the prosecution evidence. The prosecution evidence was that he ran away when he saw the police truck come to his home. There was no evidence of where he had ran to but these were imports of the trial Court. He was not arrested that very night from the scene of crime as the Court of 19 Appeal stated. The deceased was attacked at about 10:00 p.m. and was taken to hospital around 11:00 p.m. or slightly after, and the police had been informed. There was no way the appellant could have been put squarely at the scene of crime in light of the evidence available on record. The alibi the appellant raised could not arise since he left his home in June 2009 when the offence was committed in February 2009. The trial judge wrote as follows:- In addition to this evidence the conduct of the accused persons especially Kazarwa Henry point to behavior inconsistent with an innocent person. He saw a police truck coming to his home the day after the murder and he ran away or walked away fast, if you are to believe him. His version of why he moved in the opposite direction as police came to his home leaving his wife was cowardly act of a guilty person who well knew that his murder of an innocent person had caught up with him. His twist on why he ran away is intended to make a fool of Court and make it believe that he accused was walking away simply because a one Lubega had harassed him….. I am satisfied that he fled to Rukungiri to try and evade arrest after killing the deceased. His conduct after the murder and the fact that the dying declaration names him as stated by three witnesses places him squarely at the scene of crime. As we have already discussed in this judgment, the evidence of the weak dying declaration and un reliable evidence of PW4 which the trial judge as confirmed by the Court of Appeal had believed. There could not be proper identification of the appellant. The evidence of conduct or circumstances was so wanting that the appellant could not be put squarely at the scene of crime as the trial judge found and eventual confirmation by the Court of Appeal. It is trite law which has been stated by this Court over and over again that the prosecution always has the burden to prove the case beyond 20 reasonable doubt in order to bring the guilt of the accused person home. See Sekitoleko v. Uganda [1967] EA 531, Justine Nankya v. Uganda SCCR Appeal No. 24 of 1995 (Unreported) citing with approval Okoth Okale v. R. (1955) E.A. 555 Those decisions emphasise also among others that an accused has no obligation to prove his innocence. Even where he or she opts to keep quiet throughout the trial or offers a very incredible defence, he or she can only be convicted upon the strength of the prosecution case against him or her. This means that before an accused is convicted the trial judge has to see into it that the prosecution has proved its case to the required standard. In our view for the trial Court to have found that the conduct of the appellant amounted to circumstances which inferred that he put squarely at the scene of crime and was far fetched. This Court in many decisions have set the circumstances the judge have to consider and ensure that they exist before a conviction is entered. It was held: In Simon Musoke Vs R [1958] EA 715:- “in a case depending exclusively or partially upon circumstantial evidence, the Court must before deciding upon a conviction find that, the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis than that of guilt.” See also Teper v. R. (2) AC 480 which held, “it is necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” While Taylor on Evidence (11 th Edn.) page 74 state “the circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt .” Also part of the decision among other things in Roria v. Republic [1967] EA 583 at page 584 D-E . was “A conviction resting entirely on identity invariably causes a degree of uneasiness and as Lord Gardner LC said in House of Lords there may be a case in which identity is in question and if 21 any innocent people are convicted today I should think that in nine cases out of ten – if they are as many as ten – it is on a question of identity. That danger is of course greater when the only evidence against the accused person is identification by one witness and although no one would suggest that a conviction based on such identification should never be upheld, it is the duty of this Court to satisfy itself that in all circumstances it is safe to act on such identification.” The circumstances the trial Court relied on were that the appellant walked away or run away when he saw the Police come to his house. But this was the next day after the murder and many hours after. It was not the night of the murder. Besides the appellant in his testimony stated that he went to Rukungiri in June 2009 to burry his daughter. There was no evidence by the prosecution to discredit or shake it. These were four months after the murder. One has to assume that those four months the appellant was in Lyantonde at his place of work. The material and relevant issue was the scene of crime whether there was evidence placing him at the scene of crime, i.e. the particular place where the attack was done. In regard to the inconsistencies in the prosecution evidence which could not have been overlooked by the trial Judge and also by the learned Justices of the Court of Appeal, the evidence of PW3, PW4and PW5 as a whole was inconsistent in the material particulars of the case as already discussed in this judgment. These inconsistencies were major and deliberate lies to Court. The prosecution through PW10 and PW11 adduced evidence of the wrangles between the workers of Ronald Lutta and one George. Also the appellant and DW3 testified about them. There were police cases that ended in Court. The appellant had been arrested only 2 (two) days before the attack on 22 Kyakabale. There was no evidence to prove that it was the wrangles which culminated in Kyakabale’s attack which resulted into his death. The law on inconsistencies and contradictions have been stated over and over again by this Court. In the Bumbakali Lutwama and 4 others SC Cr. Appeal No. 38 of 1989 (unreported) citing with approval Alfred Tejar v. Uganda Cr. Appeal No. 167 of 1969 EACA (unreported) it was held among others that “ inconsistencies and contradictions in the prosecution case may be ignored if they are minor or do not point to deliberate untruthfulness on the part of the prosecution witnesses …..” The learned Justices of the Court of Appeal ought to have reappraised this evidence. If they had done so, they would not have confirmed the trial Court’s conviction. Accordingly we find that the Learned Justices of the Court of Appeal erred in Law and fact when they failed to properly reappraise the evidence before the Leaned trial Judge which resulted into wrongly confirming the appellant’s conviction. The second ground of appeal was to the effect that the learned Justices failed to re-evaluate mitigation of sentence basing on the circumstances of the case and wrongly dismissed the appellant’s appeal against the sentence of life imprisonment. We perused the High Court record regarding sentencing proceedings recorded on the 28-4-2011. At page 45 the trial Judge only mentioned Nyakahangura (A 1 ) and gave reasons for imposing the sentence of life imprisonment. He wrote: “I have noted the reasons and pleas of leniency in mitigation. I have borne in mind the gravity of the offence committed by the convicts. They are each sentenced to life imprisonment. Right of appeal against conviction and sentence explained.” In the Court of Appeal the appellant had 4 grounds of appeal, namely (1) The trial Judge erred in law and fact when he relied on the dying declaration adduced by the prosecution to convict the appellant. 23 (2) The trial Judge erred in law and fact when he ignored the appellants alibi and convicted him of murder. (3) The trial Judge erred in law and fact when he did not properly evaluate the evidence before Court thereby arriving at the wrong decision. (4) The trial Judge erred in law when he disregarded Rules of Evidence and procedure thereby rendering the whole trial irregular and a nullity. The appellant prayed for orders that (a) The appeal be allowed and the judgment of the High Court be quashed and set aside. (b) The conviction and sentence of the appellant be set aside. It is apparent that, failure by Court of Appeal to re-evaluate mitigation of sentence basing on the circumstances of the case, was not a ground before the Court of Appeal. We cannot therefore fault the Learned Justices for a matter that was not before them. The appellant’s prayer was to have the conviction and sentence set aside. We accept Counsel for the respondent’s submissions on this ground. This ground would fail. Be as it may we are compelled to say something about the way the trial Judge handled the sentencing proceedings. There was no mention of mitigation of sentence. There was a misdirection in law by the learned Justices of the Court of Appeal to have failed to direct themselves on the issue of sentencing when it had been part of the prayers. The judgment of the Court of Appeal simply stated: I find that conviction was based on proper analysis of the available evidence by the trial Judge. I found no merit in this appeal and accordingly dismiss it. The conviction of the trial Judge is upheld and sentence imposed is confirmed . The Learned Justices of Court of Appeal caused a miscarriage of justice, therefore when they confirmed the sentence without properly analysing the judgment and sentencing procedure of the trial judge to appreciate how the sentence came about. They also didn’t give reasons for their upholding the sentence of life imprisonment for the rest of natural life of the appellant. 24 The prayer in the instant case was to quash the conviction and set aside the sentence. The first ground of appeal succeeds, the learned Justices failed in their duty as a 1 st appellate Court to reappraise the evidence and subject it to fresh scrutiny which resulted into the wrongly confirming the conviction against the appellant. The conviction is accordingly quashed. Having quashed the conviction the sentence falls by the wayside and it cannot stand. In the circumstances of this case we allow the appeal, quash the conviction and set aside the sentence of life imprisonment. The appellant should be released and set free unless if he is being held on other lawful charges against him. Dated at Kampala this ………………. day of …………………….. …………………………………………………………………………..……. Hon Justice Bart Katureebe, CHIEF JUSTICE Hon. Lady Justice Dr. Esther Kisaakye JUSTICE OF THE SUPREME COURT Hon. Lady Justice Arach-Amoko JUSTICE OF THE SUPREME COURT Hon. Justice Faith Mwondha, JUSTICE OF THE SUPREME COURT 1 THE REPUBLIC OF UGANDA 5 IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 17 OF 2015 [CORAM: KATUREEBE CJ, KISAAKYE, ARACH-AMOKO,MWONDHA, TIBATEMWA-EKIRIKUBINZA, JJSC] 10 BETWEEN KAZARWA HENRY .................... APPELLANT VS 15 UGANDA …..……..…. RESPONDENT (An Appeal from the decision of the Court of Appeal at Kampala before Nshimye, Mwangusya, Buteera, JJA dated 20 th January, 2014.) REPRESENTATION 20 The appellant was represented by Mr. Rukundo Henry Seith on State Brief. The respondent was represented by Ms. Lucy Kabahuma, Senior State Attorney. DISSENTING JUDGMENT OF PROF. LILLIAN TIBATEMWA- EKIRIKUBINZA, JSC. 25 The appellant was convicted of murder contrary to Sections 188 and 189 of the Penal Code Act and sentenced to life imprisonment. The brief facts of this case as accepted by the High Court and the Court of Appeal were that, on the night of 14 th February, 2009, the 2 appellant together with 2 other co-accused attacked and killed 5 Kyakabale Willy who was returning from a bar. The deceased raised an alarm which was answered by PW 4 Ntwale, PW5 Nkanjako and Beyendeza who found him lying in a pool of blood. The deceased stated that the people who had attacked assaulted him were Kazarwa (the appellant), Kenneth Nyakahangura and 10 Kamugisha Tobias. The three accused were arrested and charged with murder. Kamugisha Tobias was found guilty on his own plea of guilty and sentenced to life imprisonment. Although the appellant entered a plea of not guilty, the trial court after evaluation of the evidence 15 found him guilty of murder and sentenced him to life imprisonment. The conviction was based on what the Trial Court accepted as a Dying Declaration. The appellant was dissatisfied with the High Court decision and appealed to the Court of Appeal on the following grounds: 20 1. The trial judge erred in law and fact when he relied on the dying declaration adduced by the prosecution to convict the appellant. 2. The trial judge erred in law and fact when he ignored the appellant’s alibi and convicted him of murder. 25 3. The trial judge erred in law and fact when he did not properly evaluate the evidence before court thereby arriving at the wrong decision. 4. The trial judge erred in law when he disregarded rules of evidence and procedure thereby rendering the whole trial 30 irregular and a nullity. In regard to ground 1, the Court of Appeal found that the trial judge analyzed the evidence of the dying declaration and found it consistent and reliable. That the dying declaration was corroborated 35 by the witness who reported that he saw the accused persons 3 fleeing from the scene of crime. That the accused persons were 5 known to the witness as village mates and were sufficiently identified by moonlight. In regard to ground 2 on the defence of alibi, the Court of Appeal agreed with the trial judge that the appellant was placed at the scene of crime. In analyzing the evidence, the Court of Appeal found 10 that the appellant in his own testimony stated that he was in Lyantonde on the night of 14/2/2009 - the area where the offence was committed. That the appellant left Lyantonde the following day without giving a justifiable reason. For grounds 3 and 4, the Court of Appeal found that the appellant’s 15 conviction was based on proper analysis of the available evidence by the trial judge. In conclusion, the Court of Appeal dismissed the appeal and confirmed the conviction and sentence of the appellant by the High Court. 20 The appellant being dissatisfied with the decision of the Court of Appeal lodged a second appeal in this Courton the following grounds: 1. The learned Justices of the Court of Appeal having found that Kamugisha Tobias pleaded guilty as a person that 25 murdered late Kyakabale Willy on 14 th February 2009 at Kyabazala erred in law by re-evaluating evidence thereby wrongly confirmed appellant’s conviction of murder. 2. The learned Justices of the Court of Appeal erred in law by 30 failing to re-evaluate mitigation of sentence basing on circumstances of the case thereby wrongly dismissed appellant’s appeal against life imprisonment. 4 The appellant prayed that this Court quashes the conviction and 5 the sentence be set aside and in the alternative, the period of imprisonment be reduced. At the hearing of this appeal, both the appellant and respondent counsel adopted their written submissions. No clarifications were made on the written submissions. 10 Ground 1 Appellant’s submission Although the essence of ground 1 in the memorandum of appeal was that the learned justices erred in re-evaluating evidence and confirming the appellant’s conviction of murder yet Kamugisha 15 Tobias had pleaded guilty to the murder, counsel did not support this ground with any arguments. In his written submissions, the appellant disputed his participation in the murder. It was argued that the appellant had pleaded an alibi in his defence which was not disproved by the prosecution and not 20 properly assessed by the trial court. That as such, the learned justices of Appeal failed to exercise great care when confirming the appellant’s conviction. Respondent’s submission On the other hand, the respondent made submission in relation to 25 the grounds as they appeared in the memorandum of appeal. It was submitted that the learned Justices of Appeal could not be faulted for re-evaluating the evidence despite the fact that there was a plea of guilt made by one of the co-accused persons. The respondent urged that that Rule 30 (1) (a) of the Court of Appeal Rules gives 30 power to the court to re-appraise evidence as a first appellate court. As to whether the Learned Justices of Appeal considered the appellant’s alibi, the respondent referred to page 11 of the judgment 5 of their Lordships and submitted that the appellant’s defence of 5 alibi was considered. Ground 2 Appellant’s arguments The appellant stated in his memorandum of appeal that the learned 10 Justices of the Court of Appeal failed to re-evaluate the mitigation of sentence and thereby dismissed the appeal against the sentence of life imprisonment. However, in his written submissions, counsel did not make reference to the ground but proffered arguments relating to the legality of the sentence of life imprisonment. 15 Counsel submitted that the law gives the appellate court power to vary sentences. In support, the appellant cited Section 11 of the Judicature Act – which gives the Court of Appeal powers of the court of original jurisdiction when determining an appeal. He also cited Section 132 of the Trial on Indictments Act and Section 34 20 of the Criminal Procedure Act which gives an accused person the right to appeal against conviction and sentence on a matter of law, fact or mixed law and fact and also allows the Court of Appeal to vary or confirm the sentence where the appeal is against sentence only. 25 Counsel also relied on the authorities of Tigo Stephen vs. Uganda SCCA No. 8 of 2009 and Livingstone Kakooza vs. Uganda SCCA No.17 of 1993 and argued that the sentence of life imprisonment has never been legally defined. That whereas in the former case life imprisonment was defined to be the natural life of the prisoner, in 30 the latter it was said to mean 20 years in line with Section 47 (7) of the Prisons Act. In light of the above authorities, counsel submitted that the legality of a sentence of life imprisonment was never addressed by the 6 Court of Appeal and that the prosecution did not argue that the 5 sentence of life imprisonment be maintained. That therefore, the learned Justices of Appeal upheld an illegal sentence. Respondent’s submission The respondent submitted that the contention of whether the 10 sentence of life imprisonment meant imprisonment for natural life or imprisonment for 20 years did not arise in the Court of Appeal. The respondent referred to the Memorandum of Appeal filed in the Court of Appeal and submitted that no particular ground addressed the issue of variance of sentence. Further that the appellant’s 15 prayer was that the court sets aside the conviction and sentence and did not call upon the court to pronounce itself on the legality of the sentence of life imprisonment. Duty of Appellate Courts The duty of the Court of Appeal as a first appellate court is 20 provided for in Rule 30 (1) (a) of the Court of Appeal Rules thus : “On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact. ’’ This duty was expounded in Kifamunte Henry vs. Uganda (Criminal Appeal 25 No.10 of 1997) [1998] UGSC 20 by this Court as follows: … A duty to hear the case and to reconsider the materials before the trial judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing 30 and considering it. In Pandya vs. R [1957] EA335 , the East African Court of Appeal pointed out the advantage enjoyed by the trial court over the first appellate court when it stated that: “This being the first appeal, 7 it is our duty to re-evaluate the evidence ourselves and 5 determine whether the conclusions reached by the trial court should be allowed to stand or not, bearing in mind that we have neither seen nor heard the witnesses. “ It is in line withthe above principles that I have evaluated the decision of the Court of Appeal to uphold the decision of the trial 10 court. On the other hand, the duty of a second appellate court was stated in Kifamunte Henry vs. Uganda (Supra) thus: "It does not seem to us that except in the clearest of cases, we are required to re-evaluate evidence 15 like a first appellate court. On second appeal, it is sufficient to decide whether the first appellate court in approaching its task, applied or failed to apply such principles. The Court went further to state that: 20 … This Court will no doubt consider the facts of the appeal to the extent of considering the relevant point of law or mixed law and fact raised in any appeal, if we re-evaluate the facts of each case wholesale we shall assume the duty of the first 25 appellate court and create unnecessary uncertainty, we can interfere with the conclusions of the Court of Appeal if it appears that in consideration of the appeal as a first appellate court, the Court of Appeal misapplied or failed to apply the principles set out 30 in such decisions such as Pandya (Supra), Ruwala (Supra) Kairu (Supra) ... as a second court of appeal we do not have to reevaluate the evidence. 8 I must also refer to Rule 30 (1) of the Supreme Court Rules 5 which provides that: “Where the Court of Appeal has reversed, affirmed or varied a decision of the High Court acting in its original jurisdiction, the court may decide matters of law or mixed law and fact …” In Bogere Moses and Anor vs. Uganda, Criminal Appeal 10 no.1 of 1997 , this Court restated the principle in Kifamunte in regard to its duty as a second appellate court and held that it is only in the clearest of cases that a second appellate court re-valuates the evidence presented before the trial court. The court went on say that where it is apparent 15 to the second appellate court that the first appellate court did not evaluate the evidence as a whole, and in particular in respect of material issues, with the result that it cannot be ruled out that a different result would have been arrived at, then the second appellate court would re-evaluate the 20 evidence like a first appellate court. The court pointed out that: “failure by a first appellate court to evaluate the material evidence as a whole constitutes an error in law.” The import of the Bogere decision is the principle that where 25 the Court of Appeal has failed to re-evaluate material evidence, the second appellate court should correct the error (in law) and step in to scrutinize the evidence as if it were a first appellate court. It is the principles set out in case law and in the Rules set out 30 above that have guided me in resolving this appeal to wit: 1. The Court of Appeal (as a first appellate court) had the dutyto subjectthe whole evidence presented before the High Court to fresh scrutiny and thereafter to come up with its own conclusions. 35 9 5 2. The duty of this Court (as second appellate court) is to determine whether the Court of Appeal duly re-evaluated the evidence. 3. This Court can interfere with the conclusions of the Court of 10 Appeal if it appears that the Court of Appeal failed in its duty as a first appellate court. 4. This Court will only consider the facts of the appeal to the extent of considering the relevant point of law or mixed law 15 and fact raised in the appeal. In addition to above laid out duty of this Court as second appellate court, I must also point out what this Court has said in several cases when dealing with a matter in which two lower courts (the High Court and the Court of Appeal) have reached concurrent 20 findings. In Kakooza Godfrey vs. Uganda, Criminal Appeal 03 of 2008, the issue that had to be resolved by the Supreme Court was whether the Court of Appeal as well as the trial court correctly evaluated the evidence, correctly applied the doctrine of recent possession, and correctly convicted the appellant. This Court had 25 this to say: As a second appellate court, we are aware that the two lower courts reached concurrent findings of fact as to whether the appellant was in fact found in possession of the stolen motor vehicle. We can only 30 interfere in those concurrent findings if we are satisfied that the two courts were grossly wrong and or applied wrong principles of the law.We are mindful of the fact that we did not see the witnesses at the trial. 35 10 And in Akbar Hussein Godi vs Uganda, Criminal Appeal No 03 of 5 2013, while handling a second appeal arising from the judgment of the Court of Appeal which upheld the conviction of the appellant in a murder trial, this Court stated inter alia that: It is now well established that when both sides in a second appeal present arguments at this level this 10 Court has to bear in mind areas where there are concurrent findings by the two lower courts. … It is rare for a second appellate court to interfere with concurrent findings of two courts below on the same case. 15 Analysis of Court Ground 1 The essence of the appellant’s submission in ground 1 was that since one of the co-accused (Kamugisha Tobias) had pleaded guilty to the charge, it was wrong in law for the Court of Appeal to re- 20 evaluate the evidence and come to the conclusion that the appellant participated in killing the deceased. On the other hand, the respondent submitted that the learned Justices of Appeal could not be faulted for re-evaluating the 25 evidence despite the fact that there was a plea of guilty made by one of the co-accused persons. The respondent argued that Rule 30 (1) (a) of the Court of Appeal Rules gives power to the court to re- appraise evidence as a first appellate court. 30 I find this argument of the appellant misconceived. In the persuasive authority of Litako & Ors vs. S (584/2013) [2014] ZASCA 54, the Supreme Court of Appeal of South Africa held that the accepted principle of law is that a man’s confession is evidence only against himself and not against his accomplices. If a 35 prisoner pleads guilty, it does not affect his co-prisoner. 11 I therefore opine that it a plea of guilty by an accused does not 5 exonerate other individuals who have been accused of having participated in the same crime. Every accused has to go through his own trial. Having resolved what appeared as ground 1 in the Memorandum of Appeal, I will now resolve whether the Court of Appeal, in line with 10 its duty laid out above,appropriately handled the evidence which led to the conviction of the appellant. The relevant evidence can be summarized under major three categories - the dying declaration, identification of the appellant at the scene of crime and the appellant’s alibi. But such categorization is only for purposes of 15 legal analysis because a conviction must necessarily be based on evaluation of all evidence and analysis of the case in its entirety.It is perhaps for this reason that when the Court of Appeal re-evaluated the evidence concerning the identification, it did so in relation to its value as corroboration of the dying declaration. Again, the evidence 20 of the appellant’s alibi in this case is discussed/evaluated alongside the evidence which was adduced by the prosecution to prove that the appellant was squarely placed at the scene of the crime. The Law on dying declarations Section30 of the Evidence Act provides for situations in which 25 statements by a person who is dead can admitted as evidence in a criminal trial. The section provides as follows: (a) Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance 30 cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases— 12 when the statement is made by a person asto the cause of 5 his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person’s death comes into question and the statements are relevant whether the person who made them was or was not, at the time when 10 they were made, under expectation of death,and whatever may be the nature of the proceeding in which the cause of his or her death comes into question; (My emphasis) Acceptance of a dying declaration is an exception to the hearsay rule which prohibits the use in court of a statement by someone 15 other than the person who repeats it while testifying during trial. Courts have developed guidelines for the acceptance of dying declarations as evidence to prove the truth ofa matter asserted. And it can be said that the law in this area is now well settled as contained in decisions of this Court. (See e.g. Tindigwihura Mbahe 20 vs. Uganda Criminal Appeal N0. 9 of 1987; Mibulo Edward vs Uganda Criminal Appeal 17 of 1995.) The Court’s pronouncement in Tindigwihura Mbahe vs. Uganda was cited with approval in Mibulo Edward vs. Uganda thus: Briefly the law is that evidence of dying declaration 25 must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts 30 concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult 35 than in daylight. The fact that the deceased told 13 different persons that the appellant was the assailant 5 is no guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally 10 speaking very unsafe to base conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration. 15 I opine that at the core of case law guidelines regarding the weight to be attached to a dying declaration is the need for a court to accept such evidence with caution. This principle is rooted in the fact that the person who uttered the declaration is deceased and cannot therefore be cross examined. 20 On the need for corroboration of a dying declaration, the Court of Appeal for East Africa stated in R vs. Eligu s/o Odel, Epongu s/o Ewunyu (1943) EACA 90 that whilst corroboration of a statement as to the cause of death made before his death by the deceased is desirable, it is not always necessary in order to support a 25 conviction. In the words of the court, “to say so would be to place such evidence on the same plane as accomplice evidence and that would be incorrect.” I must however emphasize that although it is not a rule of law that in order to support a conviction based on a dying declaration, the 30 declaration must be corroborated by other evidence, there is no doubt that the presence of corroborative evidence adds weight to the credibility of the declaration. Nevertheless, in requiring corroboration, evidence of a material particular implicating the accused with the offence is needed. It is 35 not enough that the corroboration shows the witness to have told 14 the truth in matters unconnected with the guilt of the accused but 5 the corroboration should be sufficient to afford some sort of independent evidence. (See: Mande alias Mayambwa Mande vs. R [1965] EA 193 ). Furthermore, although the fact that the deceased told different persons that the appellant was the assailant is no guarantee of 10 accuracy, the fact of consistency may also go to the weight given to the dying declaration. It can be concluded that where the prosecution seeks to rely on a dying declaration as evidence of who caused the death of a deceased person, a court is inclined to look for other circumstances 15 which go to show that the deceased could not have been mistaken in mentioning an accused as the person who led to his/her death. I opine that where the record shows that in order to convict an accused, a court considered other evidence in addition to a dying declaration, such is proof that the court received the dying 20 declaration with caution. A look at the record reveals that four witnesses, (PW 3 - Bashome John, PW 4 - Ntwale George, PW5 - Nakanjako and PW7 - Atwijukire also known as Jone Jones) testified in regard to the dying declaration. 25 The first witnesses to arrive at the scene of crime were Beyendeza and PW4. However, Beyendeza did not testify. PW 4 testified that the deceased stated that it was Kazarwa, Kenneth and Kamugisha Tobias who cut him. On cross-examination, PW4 also maintained that while taking the deceased to hospital (with PW 7), the deceased 30 was telling them that he had been cut by Kenneth and Kazarwa. PW 5 testified that, her husband (PW 4) and Beyendeza were the first to arrive at the scene of crime followed by Mrs. Kyakabale and herself. That on arrival, they found the deceased had already been lifted and was being brought to his bed with blood flowing from his 35 15 wounds. That the deceased then told them that Kenneth, Tobias 5 and Kazarwa had cut him with a panga. PW 3 testified that the deceased had told him that Kamugisha Tobias had cut him. PW 7 who took the deceased to hospital (with PW 4) testified that the deceased told him that Kazarwa, Tobias and Kenneth are the 10 ones who had cut him. I observe that 3 of the 4 people who testified in regard to the dying declaration mentioned Kazarwa as one of the people mentioned by the deceased as an assailant. Only PW 3 mentioned one assailant - Kamugisha Tobias and said nothing about Kazarwa. I however 15 observe that PW 3 arrived at the scene of crime at a different and later time than PW 4 and PW 5 who were consistent in their testimonies that the appellant’s name was mentioned by the deceased. While dealing with the evidence of the dying declaration, the Court 20 of Appeal stated as follows: “The learned trial judge analyzed the evidence of the dying declaration and found it consistent and reliable. He also found that the dying declaration was corroborated by the witness who reported that he saw the three accused persons fleeing from the scene. That 25 he knew the accused persons and there was moonlight which enabled him to identify them. We find it appropriate at this juncture to first state the law on dying declarations.” The learned Justices then went on to state the guidelines highlighted in Tindigwihura Mbahe vs. Uganda (supra) and then 30 held that: “In the instant case there was evidence that the appellant was well known to the deceased. They lived in the same village. They had been in the same bar that evening. There is also evidence that there 16 was moonlight that evening. It was because of the moonlight that 5 PW4 was able to identify the same accused persons. PW4 testified that he saw them flee the scene of crime. He testified that he saw them when he was about 10 meters away. We find that there was corroboration of the dying declaration in the testimony of PW4 on the identification of the appellant and the two 10 co-accused at the scene of crime… we do not accept the submission of counsel for the appellant that the dying declaration was not corroborated by any other evidence. We find that the dying declaration was sufficiently corroborated by other evidence.” It is clear from the judgment of the Court of Appeal that the learned 15 Justices re-evaluated the evidence which the prosecution presented regarding the dying declaration and arrived at its own conclusion that the dying declaration was reliable evidence that the appellant participated in the assault which led to the death of the deceased. I also find that the court was alive to the need for caution in 20 admitting a dying declaration as evidence that the appellant participated in the assault of the deceased.This is evident in the fact that the court pointed out the circumstances surrounding the identification of the appellant by the deceased i.e. the appellant was well known to the deceased, the two had been at the same bar that 25 evening and at the time of the attack, there was moonlight. It must also be for the same reason that the court went to great lengths in pointing out other evidence which linked the appellant to the crime such as testimony of PW 4 which placed the appellant at the scene of crime and which the Justices of Appeal accepted as corroboration 30 of the dying declaration. The learned Justices also evaluated the circumstances that surrounded the identification of the appellant by PW 4 as a further test of the reliability of the dying declaration. Thus they made mention of the fact that PW4 knew the accused persons very well since they lived on the same village, that there 35 was moonlight and this enabled PW4to identify the appellant and 17 the other accused persons. The appellate court also made mention 5 of the fact that witnesses other than PW4 who arrived at the scene of the crime were told the same story by the deceased. Although the court did not in its judgment specify who these witnesses were, I am inclined to believe that the court was referring to the testimony of PW 5 as well as that of PW 7 which was on record and in which 10 each of these witnesses stated that when they answered the alarm the deceased mentioned the appellant as one of the three persons who had cut him with a panga. PW 5 stated: When we reached home and had decided to sleep, we heard an 15 alarm of Kyakabale saying people were killing him. My husband (PW 4) and Bayendeza went first then Mrs. Kyakabale and I followed. By that time, we found that he had already been lifted and was being brought to his bed. There was a lot of blood flowing from his wounds. Then he said that Kenneth, Tobias and Kazarwa had cut him with a 20 panga. PW 7 stated: I know Kazarwa Henry and Nyakahungura Kenneth. I was in Lyantonde that day then around 11 pm, I got a call from Kaguta road Police Post where Ntwale and Bayendeza had reported a case. Police 25 asked me to go because two people were reporting that Kyakabale had been cut. I drove to the Police Post and found there two policemen. I drove to George’s place, found Nalongo his wife, Nakanjako and Kyakabale in critical condition. By this time Ntwale and Bayendeza had gone to town to look for me. Kyakabale told me 30 that Kazarwa, Tobias and Kenneth are the ones who had cut him. That Kazarwa came from the front and Tobias cut him from behind with a panga. When I tried to put him in a vehicle I found five cuts; three on the arm, one on the shoulder and another by the ear… The reason for cutting him is because there has been a prolonged land 35 wrangle between George and Ronald Ruta whereby one time 18 Kazarwa fought with Kyakabale … I got Dr. Charles Mugenyi who 5 tried to give first aid because he was bleeding severely and died at 6.30 am. Thereafter I rushed to Lyantonde Police Station and reported. When we reached the scene we found all the workers gathered in front of Kazarwa’s house. When he saw a pick-up with Police he ran away, they gave chase but could not get him. They 10 arrested Kazarwa’s wife that day. It is also clear from the evidence that the deceased was consistent in his dying declaration, having told PW4 and PW5 who arrived at different times at the scene of the crime that the appellant and two others had assaulted him and later repeated the same names to 15 PW7 who took him to the hospital. As I mentioned earlier in this judgment, although the fact of consistency is no automatic guarantee of accuracy, it goes to the weight given to the dying declaration. I must also point out that the nature of the assault necessitated the 20 attackers to be in close proximity with their victim - the deceased was cut with a panga. This factor would make it easy for the victim to recognize his assailants who in any case he knew very well since they were village mates. Arising from the above analysis, I come to the conclusion that the 25 first appellate court properly re-evaluated the evidence of the dying the declaration, appropriately subjected it to the law and arrived at its own conclusion that it was reliable and admissible as evidence of the appellant’s participation in the assault that killed the deceased. Identification of the appellant at the scene of crime 30 The case for the prosecution was that the appellant was one of the assailants identified at the scene of crime by PW 4 who answered the deceased’s alarm. The evidence was accepted by the Court of Appeal as evidence which corroborated the dying declaration. 19 Aware of the possibility that a witness though honest may be 5 mistaken, case law on guidelines for testing the reliability of testimony placing an accused at the scene of the crime abounds and courts have over the years evolved rules of practice to minimize the danger that innocent people may be wrongly convicted. I however note these guidelines have in the main been 10 developed within contexts where conviction would be based solely on visual identification evidence, which is not the case in the matter before this Court. Nevertheless I have used the said guidelines to test the reliability of the evidence of the only witness who testified that he was able recognize the appellant as he run away from the 15 scene of the crime. In Abdalla Bin Wendo and Another v. R.(1953), 20 EACA 166 the East African Court of Appeal held that: (a) The testimony of a single witness regarding identification must be tested with the greatest care. 20 (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 25 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. In R v Turnbull [1976] 3 All ER 549 Lord Widgery Chief Justice stated the law on identification by an eye witness as follows: 30 Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How 35 long did the witness have the accused under observation? At what distance? In what light? Was 20 the observation impeded in any way, as for example 5 by passing traffic or a press of people? Had the witness ever seen the accused before? How often? … In Abdalla Nabulele & Another vs. Uganda Criminal Appeal. No. 9 of 1978 court held: Where the case against an accused depends wholly or 10 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 15 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 20 circumstances in which the identification came to be made particularly the length of time, 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 25 danger of a mistaken identity is reduced but the poorer the quality the greater the danger. When the quality is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person 30 who knew the accused before, a court can safely convict even though there is no other evidence to support the identification evidence, provided the court adequately warns itself of the special need for caution. [See also: Abdulla Bin Wendo & Another vs. R 35 (1953) 20 EACA 166 and Roria vs. Republic (1967) EA 583 ] . 21 In Bogere Moses vs. Uganda SCCA No. 1 of 1997 , this Court 5 restated the law on identification and gaveguidelines on the approach to be taken in dealing with evidence of identification of an assailant as follows: The starting point is that court ought to satisfy itself from the evidence whether the conditions 10 under which the identification is claimed to have been were or were not difficult and to warn itself of the possibility of mistaken identity. The court then should proceed to evaluate the evidence cautiously 15 so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. In so doing, the court must consider the evidence as a whole, namely the evidence if any of factors favouring correct identification together 20 with those rendering it difficult . Regarding the evidence of identification (recognition) of the appellant by PW 4, the Court of Appeal stated that the presence of moonlight and the distance of 10metres at which PW4 recognized the appellant as one of the assailants 25 favoured correct identification. It is an accepted fact that the deceased was attacked at night. I also note that the scene of crime as described by PW10 on cross- examination is that it was bushy with spear grass. These two details may be looked at as factors which render correct 30 identification difficult. However,PW 4’s evidence reproduced above shows he was able to identify the appellant as one of the deceased’s attackers at a distance of 10 meters with the aid of moonlight, a distance which I consider close enough to identify a person who is well known to you. The appellant was not a stranger - he was 35 residing in the same village at Lyantonde. In R vs. Turnbull 22 (supra), court held that “ identification by recognition may be 5 more reliable than identification of a stranger.” And PW4 had also stated that he had been with the assailants at a bar earlier on in the evening and seen what they were wearing and that this helped him identify them while they were running away from the scene of the crime. 10 Furthermore, the presence of moonlight was a factor that aided the positive identification of the appellant as one of the assailants at the scene of crime. Indeed although PW 4 testified that he did not see the third assailant, he mentioned Kazarwa (appellant) as one of the assailants he managed to identify at the scene of crime. I am 15 convinced that inspite of the evidence of factors which may be considered to render correct identification difficult, various factors mentioned above which aided the positive identification of the appellant ruled out the possibilities of mistaken identification. I am aware that it is only PW 4 who testified that he had seen the 20 assailants who then ran away from the scene of crime. None of the other witnesses said they had found the appellant or indeed any of the other persons mentioned in the dying declaration, at the scene of crime. This difference in the substance of the testimonies is understandable since PW 4 was the first to arrive at the scene of 25 crime and arrival of would be witnesses would certainly cause the assailants to run away. I take note that in arriving at its decision, the Court of Appeal Justices concentrated on witnesses PW3, 4 and 5 but made no mention of the testimonies of PW 8 and 10. I consider such lapse to 30 be an example of failure, albeit partial, by a first appellate court to evaluatethe material evidencepresented before the trial courtand such is an error in law.”(See Kifamunte vs. Uganda and Bogere Moses vs Uganda Supra). In line with thesaid authorities, I have found it necessary to re-valuate the evidence of these particular 35 witnesses as if I were a first appellate court. 23 PW8 who was the deceased’s employer testified that the deceased 5 had confided in him a week before he died that he was getting death threats from Ruta and the workers, Kazarwa and Kizza. He testified that: “I know Kyakabale as my former worker in Kyabazala Lyantonde as a herdsman. I got to know of the death of Kyakabale … in the 10 morning. I think he was killed because of a land wrangle between me and Ruta. One time a group of people from Ruta’s farm attacked him at his home in 1998… Another time Kyakabale fought with Kizza and Kazarwa, Ruta’s workers around the same time. He was arrested and locked up. I was summoned to Police and court and stood surety. 15 As we were leaving court, Ruta found us outside and expressed dissatisfaction and he said he would deal with him. One time while on the way to Rukungiri in 2009, Kyakabale took me to the side and told me that he was getting death threats from Ruta and the workers. He specified Ruta, Kazarwa and Kizza. He said they wanted to give 20 him money so he could leave my farm but he refused. A week later he met his death.” There was also the testimony of PW 10 – D/Corporal Francis who stated that: “Before then, John Jones had complained about Kazarwa being the 25 head worker of Ruta with whom they were wrangling and I had earlier handled the case of the workers of the two fighting where Kyakabale’s house was attacked and his windows broken until he locked himself in the house and was rescued by police.” I opine that such testimonies provided the context within which the 30 assault occurred and serves as circumstantial evidence linking the appellant to the crime. I must also refer to the conduct of the appellant on the day following the crime.PW 10 – D/Corporal Francis testified as follows: 24 On 15 th February 2009 while at Lyantonde Police Station, we went to 5 investigate a murder at Kyabazala village together with the DPC. Towards the scene, we reached the home of one of the suspects Kazarwa where he and his fellow workers were. When we stopped Kazarwa started running away, I knew him, through his banana plantation, and Police gave chase but in vain. .. 10 DW 3, wife to the appellant also testified that when the police approached their home on the 15 th February “my husband walked away and I don’t know where he was going”. Referring to the said testimony, the trial judge came to the conclusion that such behaviour was inconsistent with the 15 conduct of an innocent man. The learned judge also considered the fact that the appellant later on left Lyantonde and went to Rukungiri for months. In the view of the trial judge, the departure of the appellant from Lyantonde was for purposes of evading arrest. The trial judge then concluded that this conduct, together 20 with the dying declaration, coupled with the evidence which placed the appellant squarely at the scene of the crime was proof of the guilt of the appellant. I am in agreement with the conclusions of the Trial Court that running away from the police on the day following the commission 25 of a crime is conduct pointing more to the guilt of the appellant than to his innocence. Indeed in Uganda vs.Terikabi (1975) HCB 63 and Uganda v G.W. Simbwa Appeal No. 37 of 1995 the Supreme Court held that when a suspect runs away soon after an offence has been committed the act of running away points more 30 to the guilt of such suspect than to his or her innocence; and it may corroborate some other evidence in the case that might require corroboration. Similarly, in Rex vs. Tubere s/o Ochan the East African Court of Appeal held that the conduct of an accused person before or after the offence in question might sometimes 35 give an insight into whether he participated in the crime. And in 25 Remigious Kiwanuka vs. Uganda, Criminal Appeal No. 41 of 5 1995 this Court stated that: This Court has held in many cases that the disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has 10 committed the offence. Sudden disappearance from the area is incompatible with innocent conduct of such a person. The defence of alibi The essence of an alibi is to prove that at the time of the 15 commission of the crime, the suspect was somewhere else and it was impossible for him to have been at the scene of crime. Case law on the duty of the prosecution on the one hand and of an accused who sets up an alibi is abound. In Festo Androa and Kakooza Joseph Denis vs. Uganda, Criminal Appeal No. 1 of 20 1998 , this Court stated what has been held in various cases thus: It is trite that by setting up an alibi, an accused person does not thereby assume the burden of proving its truth so as to raise a doubt in the prosecution case. … The burden on the person setting 25 up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible (that he could) have committed the imputed act. In the matter before Court, the appellant denied having participated 30 in the offence and stated that: “I do not know anything about killing Kyakabale. On 14 th February I was at the school working from 8.00 a.m. to 6.30 p.m. Thereafter I went home. I reached at 7.00 pm and found my wife. I was then 26 served with food and then slept. I slept up to 7 a.m. the next day, 5 Sunday 15 th February.” It was argued before this Court that the appellant had pleaded an alibi in his defence which was not disproved by the prosecution and not properly assessed by the trial court. That as such, the learned justices of Appeal failed to exercise great care when confirming the 10 appellant’s conviction. At the Court of Appeal, the appellant stated in Ground 2 of the appeal that the trial judge erred in law and fact when he ignored the appellant’s alibi and convicted him of murder. It was submitted that the Trial Judge did not consider the said defence. 15 In regard to this ground of appeal, the Court of Appeal disagreed with the appellantand had this to say: “The learned trial judge was also faulted for his failure to consider the defence of alibi that was raised by the appellant. … The appellant’s defence of alibi was considered by the learned trial judge 20 in his judgment. The judge analyzed the evidence and made a finding although he did not state that he was dealing with the defence of alibi. In other words, it was the finding of the Court of Appeal that the defence had been evaluated by the Trial Court. Nevertheless the 25 court stated that they would, as a first appellate court re-evaluate the evidence and make a finding of fact on available evidence as to whether the defence of alibi was properly evaluated. The court reproduced the law on alibi as set out in the case of Mushikoma Watete and Ors vs. Uganda SCCA No. 10 of 2000 and then went 30 on tostate as follows: “There is evidence by PW6, Nuwabine Mentor. He owns a bar. She testified that on 14/02/2011 she returned from her parents’ home at about 7.00p.m. She found Kyakabale (the deceased), Ntwale (PW 4), Nakanjako (PW 5), boozing in her bar. She asked them to go away at 35 27 about 9.00p.m and they left. After about two hours, she was 5 informed that Kyakabale had been attacked and was injured but was still alive. He later died in the morning. PW 4 testified that he indeed was with the deceased and the accused persons at the bar of PW6. This witness heard the alarm of the deceased at about 10.00p.m. He ran to the scene and on the way 10 he saw the appellant and the two co-accused flee the scene. On arrival he was informed by the deceased that he had been attacked and cut by the three accused persons … This is the evidence we shall re-evaluate on the principle stated by the Supreme Court in Bogere Moses and another vs. Uganda SCCA No. 1 of 1997 (unreported) 15 when it held interalia that:- “What then amounts to putting an accused person at the scene of crime? We think that the expression must mean proof of the required standard that the accused was at the scene of crime at the material 20 time. To hold that such proof has been achieved, the Court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the evaluation of the evidence as a whole. Where the 25 prosecution adduces evidence showing that the accused person was at the scene of crime, and the defence not only denies it, but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the Court to 30 evaluate both versions judicially and give reasons why one and not the other version is accepted. It is a misdirection to accept the one version and then hold that because of the acceptance per se the other version is unsustainable.” 35 28 In the instant case, there is evidence that the appellant was at PW 5 5’s bar the evening the offence was committed. The deceased raised an alarm which was answered by witnesses that testified in Court. The deceased explained to them he had been cut by the accused persons who were known to him. PW 4 who answered the alarm testified that he saw the three accused persons when he was 10 responding to the alarm. He said there was moonlight which enabled him to identify the appellant and the two other accused persons. In his defence the appellant says that on 14/02/2009, he worked from 8.00 a.m. to 6.30 p.m. when he went home reaching at 7.00p.m. He slept with his wife and denies ever having committed the offence His 15 wife, Kanyesigye’s evidence testified as DW 3, supporting his line of defence. The appellant does accept that he was in the area where the offence was committed on 14/02/2009. The offence was committed that night. On 15/02/2009 he said he was washing cows in the same area. He says he went to Rukungiri but was not going to hide. 20 He went to build a house. Was the appellant put at the scene of the crime? Is his alibi credible? We find that although the learned trial judge did not state clearly that he was considering the appellant’s alibi, he actually did consider it and discredited it in his judgment. The appellant in his own defence stated that he was in Lyantonde on 25 the night of 14/02/2009. He said he left on 15/02/2009. That was after the offence had been committed. The appellant was put at the crime scene by the prosecution evidence that the judge discussed. His defence of alibi was properly discredited. We agree with the trial judge. 30 I opine that the defence of alibi is only relevant when discussing the whereabouts of a suspect on the specific day and time of commission of a crime. In the present matter, the assault was said to have taken place on 14 th February 2009 at 10.00 p.m. or thereabout. The appellant in his defence testified that on 14 th 35 February 2009, at 6.30 p.m., he arrived home from work and 29 thereafter slept with his wife till morning. In order to strengthen his 5 defence, the appellant brought his wife (DW 3) to testify. I note that the evidence which the Court of Appeal relied on to arrive at the conclusion that the appellant’s alibi was not to be believed is actually evidence which only proves that the appellant was in the village where the crime was committed – Lyantonde - on 10 the day of commission of the crime. Indeed the appellant himself and his wife, never said that he was away from Lyantonde on the day of the crime. The evidence did not in any way disprove the appellant’s contention/alibi which was that he was in his house (in Lyantonde), with his wife, when the offence was committed. On this 15 point I find that the Court of Appeal Justices misdirected themselves. Be that as it may, I am in agreement with the Court of Appeal Justices that “ The judge analyzed the evidence and made a finding although he did not state that he was dealing with the defence of 20 alibi.” Apart from the appellant himself, DW 3, the wife of the appellant, was the only witness called in his defence. She testified as follows: “I know Kazarwa as my husband. On 14 February we were at home sleeping at the time when Kyakabale was supposed to have been 25 murdered. Earlier he had gone to work and when he returned we ate. After eating we slept. He did not move out at night until 6.00 a.m. to go and spray the cows. He returned about 9.30 p.m. and found me at home and we sat on our veranda. We are near the road so we saw police coming home and when we 30 saw them he also went away and they arrested us who were seated. I told him about a telephone call from Lubega. I told him not to call phone again. He said that Lubega had accused his arrest a week before. 30 I was arrested with 7 others: Tobias, Kizza Robert, Bright, Choma, 5 Emmanuel, Dan and myself. I know where my husband was arrested from, in Rukungiri his home area. We lost a child in 2009 June and that is how he went to village. I was selling tree and going to school sometimes when he was away. He stayed in the village building a house. I ever went to the village between June 2009 and 10 January 2010 taking building materials and money and I used to find him there. He did not run to the village to hide. CROSS EXAMINATION: That is Nyakahungura Kenneth whom I have known for 4 years; he was staying on Kaguta road. My husband did not know him. When they came to arrest he was not with us. There 15 were wrangles between George and Ronald because of Kyakabale who had cut banana plantations of Ronald and he was taken to court and charged. They were also fighting over land, I think. I do not know the workers’ issues. After burial he returned a bit then went back. I saw Ntwale and Bashome since 2003 while working for 20 Ronald. Later they worked for George. My husband worked for Ruta since 2002 and must have known them. Police came and my husband walked away and I don’t know where he was going. They were four Policemen with John Jones; I did not bother to count them. John jones used to relate well with my 25 husband until later when he wanted to take him to work for George. Police told us that they had come to arrest us because we had killed Kyakabale. He knows Bashome and Ntale. He passed behind the house when he saw Police. My husband drunk but not much from a bar in Lyantonde. George’s workers did not drink from town. We 30 would sometimes go together to the bar to watch football. Sometimes he would dig while other times he would go to school. We own pangas and hoes and store them in the sitting room.” I note that DW3’s testimony supported the testimony of the appellant in regard to where the appellant was during the night of 35 31 14 th February when the deceased was attacked. Nevertheless the 5 Trial Judge did not believe her story. It is clear on the record that the trial judge did not specifically mention that he was dealing with the defence of alibi. However, inference that he considered the defence can be drawn from his comment about the demeanour of DW 3 - the only witness who was 10 presented by the defence to support the appellant’s contention that at the time when the offence was committed, he was asleep in his home.The trial judge had this to say: “I studied her demeanour carefully as she testified and saw her pain and agony as she tried to state facts which she must have known 15 were not facts. No wonder she could not sustain it and started contradicting her husband A3 [appellant] big time. From the people he claimed he did not know and [yet] she acknowledged knowing them to whether or not he drunk.” Case law abounds to the effect that the demeanour of a witness is 20 relevant in determining their credibility and the weight to be given to their testimony. Case law also implores appellate courts to be mindful of the fact that a trial judge had the advantage of seeing and hearing witnesses, which advantage appellate courts do not have. (See for example Baguma Fred vs. Uganda, SC Criminal 25 Appeal No. 7 of 2004 ). In Sewanyana Livingstone vs. Uganda: SCCA No.19 of 2006, this Court heldthat, “ it is trite law that the trial judge must adopt the impression on the demeanour of the witness by testing it against the evidence given by the witness in the case as a whole.” 30 It is clear that the trial judge, who saw and heard the witnesses did not believe DW 3 to be a truthful witness. On the other hand, the trial judge believed the testimony of PW 4 that the appellant was at the scene of crime on 14 th February 2009. I have no reason to depart from the findings of the trial judge – findings based on his 35 impressions about the witnesses. In this, I am guided by this 32 Court’s decision in Baguma Fred vs. Uganda Supra where the Court 5 cited with approval, the East African Court of Appeal decision in Pandya vs. R [1957] EA, thus: Wereiterate the legal position, which was upheld by the East African Court of Appeal in Pandya vs. R [1957] EA and has been applied over time in other 10 decisions of this Court and its predecessors, that – When the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression 15 made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing 20 from the judge, even on a question of fact turning on credibility of witnesses whom the court has not seen. (My emphasis) An alibi can be discredited either by prosecution evidence which squarely places an accused at the scene of the crime or by 25 prosecution evidence which directly negates or counteracts the accused’s testimony that he was in a particular place other than at the scene of the crime. The latter can be by the prosecution presenting witnesses to testify that they were at the particular place where the accused says he was but he was not present in the said 30 place. The alibi can also be discredited when witnesses who testify in support of the accused having been in a place other than the scene of the crime are rendered untruthful. Having evaluated the evidence of PW4 alongside the evidence relating to the alibi put forward by the appellant, the trial judge 35 33 came to the conclusion that the appellant was at the scene of the 5 crime and not in his home with his wife. As a judge determining the issue in a second appeal, I am aware that the two lower courts reached concurrent findings of fact as to whether the appellant was present at the scene of crime. I can only interfere in those concurrent findings if I am 10 satisfied that the two courts were grossly wrong and or applied wrong principles of the law. I am mindful of the fact that I neither saw witness PW 4 nor DW 3 at the trial. I uphold the finding that the appellant’s alibi was discredited. In conclusion, I cite with approval what Lord Denning said in Miller 15 vs Minister of Pensions 2 All ER 372 in reference to the standard of proof needed to convict the accused in a criminal case thus: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not 20 mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be 25 dismissed with the sentence “Of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt; nothing short will suffice. Arising from the above, I find that the prosecution proved the case against the appellant to the required standard. This was 30 the finding of the Trial Judge, confirmed by the Court of Appeal. I have reached the above conclusion as indicated in this judgment based on the following: the dying declaration, the 34 evidence which placed the appellant at the scene of crime and 5 the evidence that discredited the appellant’s alibi. Consequently, I find no reason to depart from the concurrent findings of the two lower courts. I therefore uphold the conviction. Therefore, ground 1 fails. 10 Ground 2 As already mentioned in this judgment, the appellant’s counsel argued that the Court of Appeal ought to have pronounced itself on the legality of the sentence of life imprisonment. Counsel referred to two decisions of this Court - Livingstone Kakooza vs. Uganda 15 (Supra) and Tigo Stephen vs. Uganda (Supra)– which gave different meanings to the sentence of “life imprisonment”. In Livingstone Kakooza vs. Uganda (Supra), the appellant was convicted of manslaughter. He was sentenced to 18 years imprisonment. In arriving at the sentence, the Learned Trial Judge 20 stated inter alia thus: “Mindful of the two years the accused has spent on remand I sentence him to 18 years.” The appellant appealed against the sentence on the ground that it was harshand manifestly excessive. Commenting on the sentence, this Court said inter alia that: 25 We agree with the learned counsel for the appellant that the sentence of 18 years was harsh and manifestly excessive. The appellant had been on remand in custody for two years and the learned judge took this factor (into consideration) in passing sentence. In effect the Appellant received a life sentence which is twenty years according to 30 section 49 (7) of the Prisons Act, Act which provides (that): “For the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years imprisonment.” 35 A reading of the Court’s reasons for arriving at the decision to 5 interfere with the sentence clearly shows that the Court’s comments regarding the meaning of life imprisonment were not essential to its decision,the comments were obiter dictum and cannot therefore be said to have established a precedent. On the other hand, I opine that the question before us in the 10 present matter is the very question that this Court dealt with in Tigo vs. Uganda (Supra) and that is: What is the meaning of life imprisonment? Is it for the rest of the life of the convict or for twenty years only? 15 In Tigo Stephen vs. Uganda (Supra), this Court dealt with an appeal against the decision of the Court of Appeal confirming the sentence of “life imprisonment” by the High Court against the appellant who had been convicted of defilement. In her sentencing order, the trial judge in the Tigo case stated inter 20 alia : I take into account the fact that he has been on remand for 2 years, so taking that into account, he is sentenced to life imprisonment (20 Years), so that the rest who intend to do the same can stand warned." In confirming the sentence passed by the Trial Judge, the Court of 25 Appeal said: “ The learned trial Judge took into account all the mitigating factors available to the appellant and passed a sentence of life imprisonment. We see no reason to disturb that sentence. " At the beginning of the judgment in Tigo , the Justices of the Supreme Court had this to say: 30 The appeal raises a substantial point of law concerning the meaning of life imprisonment in our Penal system having regard to the provisions of Section 47(6) of the Prisons Act which states that for the purpose of 35 36 calculating remission, a sentence of imprisonment for 5 life shall be deemed to be twenty years imprisonment. This point of law assumes greater significance following the decision in the case of Attorney General Vs. Susan Kigula & 417 Others Constitutional Appeal NO.3 of 2006 where this Court decided that the death 10 penalty though Constitutional was not mandatory but discretionary. This would make a sentence of life imprisonment the next most severe sentence and probably the most effective alternative to the death sentence. 15 The ground of Appealin Tigo was framed as follows: “The learned Justices of Appeal erred in law when they upheld the sentence which sentence is illegal by virtue of its ambiguity.” Learned counsel for the appellant in Tigo submitted that from the 20 way the sentence was pronounced it was not clear whether the sentence imposed is imprisonment for the rest of the appellant's life or for only twenty years and that the ambiguity rendered the sentence illegal since the appellant was entitled to know the specific duration of his incarceration. He argued that the fact that 25 life imprisonment under the Prisons Act 2006 is deemed to be twenty years is a construction which is limited in purpose to the computation of remission. It was his contention that the Court of Appeal ought to have cleared the ambiguity. He prayed that the Supreme Court makes the clarification and substitutes the 30 sentence of life imprisonment with a definite sentence. On the other hand Learned Principal State Attorney submitted that the sentence confirmed by Court of Appeal of life imprisonment was lawful and definite within the meaning of Section 47(6) of the Prisons Act Cap. 304 which provides: 35 37 “For the purposes of calculating remission a sentence of 5 imprisonment for life shall be deemed to be twenty years.” It was counsel's contention that the interpretation of the above provision leads to the conclusion that the appellant is to serve a sentence of twenty years' imprisonment. He prayed that the appeal be dismissed. 10 The Supreme Court came to the conclusion that Court of Appeal confirmed the sentence as imposed by the trial Judge which indicated that the sentence imposed by the trial Judge was twenty years, and that the Court of Appeal’s decision had apparently been based on the provisions of Section 47(6) of the Prisons Act. 15 In effect, the finding of the Supreme Court was that the sentence which the Trial Judge had imposed and which the Court of Appeal had confirmed was 20 years. Nevertheless, the Court went on to say that: the question still 20 remains as to the meaning of life imprisonment. Is it for the rest of the life of the convict or for twenty years only? The Court then went on to hold that: 25 The provisions of Section 47(6) of the Prisons Act have sometimes been cited as authority for holding that imprisonment for life in Uganda means a sentence of imprisonment for twenty years. However, there is no basis for so holding. The 30 Prisons Act and Rules made there under are meant to assist the Prison authorities in administering prisons and in particular sentences imposed by the Courts. The Prisons Act does not prescribe sentences to be 35 imposed for defined offences. The sentences are 38 contained in the Penal Code and other Penal 5 Statutes and the sentencing powers of Courts are contained in the Magistrates Courts Act and the Trial on Indictment Act, and other Acts prescribing jurisdiction of Courts. The most severe sentences known to the penal 10 system include the death penalty, imprisonment for life and imprisonment for a term of years. Imprisonment for life which is the second gravest punishment next only to the death sentence is not defined in the Statutes prescribing it. It seems to us 15 that it is for that reason that the Prisons Act provided that for purposes of calculating remission, imprisonment for life shall be deemed to be twenty years. It is noteworthy that the Act is clear that twenty years is only for the purpose of calculating 20 remission. The question remains whether there are purposes for which life imprisonment means something more than 20 years, e.g. imprisonment for life. In resolving the question before court,I have found it important to 25 cite Section 47 of the Prisons Act in full as follows: Remission of part of sentence of certain prisoners. 30 (1) Convicted criminal prisoners sentenced to imprisonment whether by one sentence or consecutive sentences for a period exceeding one month may by industry and good conduct earn a remission of one third of the remaining period of their sentences. 35 39 (2) For the purpose of giving effect to subsection (1), each 5 prisoner on admission shall be credited with the full amount of remission to which he or she be entitled at the end of his or her sentence or sentences if he or she lost or forfeited no such remission. 10 (3) A prisoner may lose remission as a result of its forfeiture as a punishment for any offence against prison discipline and shall not earn any remission in respect of any period – 15 (a) spent in a hospital through his or her own fault or while malingering; or (b) while undergoing confinement in a separate cell. (4) The Commissioner may recommend to the Advisory 20 Committee on the Prerogative of Mercy established under Article 121(1) of the Constitution that it should advise the President to grant further remission on special grounds. 25 (5) The Commissioner shall have power to restore forfeited remission in whole or in part. (6) For the purpose of calculating remission of a sentence, imprisonment for life shall be deemed to be twenty 30 years imprisonment. A reading of Subsection 1 indicates that remission is not automatic but rather is earned -it follows good behaviour. However, Sub Section 2 provides that each prisoner shall on admission be 35 credited with the full amount of remission to which he or she be entitled.The wording of subsection 2 therefore indicates that the law presumes that every prisoner will earn remission and therein 40 lies a contradiction.I opine that it is because of this 5 presumptionthatthe enactors of the Prisons Act found itimperative to define life imprisonment. The need to define life imprisonment for purposes of calculating remission arises out of the fact that it is impossible to know when the natural life of any individual will come to an end. It was therefore necessary that the enactors of the 10 Act provides a determinate period/number of years with which the prison authorities would work. It is however also important to refer to subsection 3 which sets out the circumstances under which the presumption created in 15 subsection 2 is rebutted – circumstances under which a prisoner will forfeit remission. There is no doubt that it is the Prisons administration that are in position to evaluate a prisoner’s conduct and determine whether the particular prisoner will lose remission. It is obvious that by the time a decision is made in regard to 20 remission, the courts are functus officio. This therefore means that a sentencing court’s powers are only regulated and limited by Statutes that operate in the pre-sentencing and not post-sentencing period. Such are the Statutes which define an offence and prescribe a penalty e.g. the Penal Code. In arriving at a particular sentence of 25 imprisonment however a judicial officer is presumed to be aware of other laws e.g. the Prisons Act. It is thus within the court’s power to give a sentence wherein it is explicitly stated that the sentence will not attract remission, such as was done in Attorney General Vs. Susan Kigula & 417 Others Constitutional Appeal No.3 of 2006 – 30 life imprisonment without remission. I am emboldened in my opinion by the title to the Section which provides thus: Remission of part of sentence of certainprisoners . This implies that some categories of prisoners 35 are not entitled to remission. I opine that a court’s life imprisonment sentence can be couched in terms which disentitle a convict from the application of Subsection 2.Furthermore, the 41 section (Section 47 (6)) which defines life imprisonment 5 specifically states that the definition therein is for the purpose of calculating remission of a sentence. It therefore cannot be used for purposes of limiting a judge’s discretion in arriving at an appropriate sentence. 10 I must also take note of the fact that the decision in Livingstone Kakooza (supra) was delivered in November 1994. This means that the court was dealing with the 1958 Prisons Act. The said law was however repealed by the Prisons Act 2006. The provisions dealing with remission in the new Act are as follows: 15 84. Remission of part of sentence of certain prisoners (1) A convicted prisoner sentenced to imprisonment whether by one sentence or consecutive sentences 20 for a period exceeding one month, may by industry and good conduct earn a remission of one third of his or her sentence or sentences. (2) For the purpose of giving effect to subsection (1), 25 each prisoner on admission shall be credited with the full amount of remission to which he or she would be entitled at the end of his or her sentence or sentences if he or she lost or forfeited no such remission. 30 85. Loss of remission A prisoner may lose remission as a result of its forfeiture as a punishment for an offence against 35 prison discipline and shall not earn any remission in respect of any period spent in hospital through his or her own fault or while malingering, or while 42 undergoing confinement as a punishment in a 5 separate cell. 86. Grounds for grant of further remission by the President 10 (1) The Commissioner General may recommend to the Minister responsible for justice to advise the President under Article 121 (2)(4)(d) of the Constitution to grant a further remission on special grounds. 15 (2) The Commissioner General may restore forfeited remission in whole or in part. (3) For the purpose of calculating remission of sentence, 20 imprisonment for life shall be deemed to be twenty years’ imprisonment. It is noted that the principle that remission must be earned is retained in the new Act through the provisions of Section 84 (1) 25 quoted above. And in Section 84 (2), the legislators also retained the rule found in the earlier Act that on admission, every prisoner sentenced to a term of imprisonment beyond one month is credited with remission. However, in the 2006 legislation,the equating of “imprisonment for life” to 20 years in prison is found in 30 a “newly” created section, a section which specifically deals with circumstances under which the President can grant “further” remission to a prisoner – Section 86. In my view therefore, under the 2006 Act,it is only for the purpose of operationalizing the President’s exercise of the Prerogative of Mercy enshrined in Article 35 121 (4) (d) that a sentence of imprisonment for life is equated to a sentence of 20 years in prison. Under this new Act, the section equating imprisonment for life to twenty years only comes into play 43 when a prisoner is being considered for the prerogative of mercy. A 5 prisoner who is sentenced to imprisonment for life and is not privileged with the President’s Prerogative of Mercy will be in prison for the rest of his life. I am also convinced that in answering the question: “whether life 10 imprisonment means imprisonment for the rest of the life of the convict or for twenty years only, I must take note of the fact that the Prisons Act was enacted before this Court pronounced itself on the constitutionality of a mandatory death penalty. Prior to the Kigula case (supra) , life imprisonment was not available to 15 persons convicted of murder and other offences where the legislature provided a mandatory death penalty. It would therefore be erroneous to apply the definition of life imprisonment provided in the pre-Kigula era to sentences of life imprisonment passed by courts in regard to convictions of crimes whose maximum 20 sentence is the death penalty but a court has used its discretion to give the lessor sentence of life imprisonment. Arising from the above, I would dismiss the appellant’s submission that the Court of Appeal upheld an illegal 25 sentence. Conclusion I would confirm the Court of Appeal’s conviction of murder and the sentence of life imprisonment. 30 Dated at Kampala this …..day ofAugust 2017. ……………………………………………………….. PROF.LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT. (delivered on 10/8/17) 35