,

                                                                                THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

                     AT KAMPALA
CRIMINAL APPEAL NO. 63 OF 2015

(Coram: Katureebe, C.J., Tumwesigye, Kisaakye, Mwangusya, Opio Aweri;
                                JJ.S.C.)

Between

MPAGI GODFREY  .................................................................................................................... APPELLAN

And

UGANDA ………………………………………………………………………..RESPONDENT

(Appeal against the judgment of the Court of Appeal, Criminal Appeal No. 91
of 2012 before Hon. Justices Kasule, Mwondha, and Kakuru JJA dated 7th
October 2015)

Judgment of the Court

                20      Mpagi Godfrey, the appellant, was tried by the High Court and convicted of
the offence of murder contrary to sections 188 and 189 of the Penal Code
Act and sentenced to thirty four years imprisonment. His appeal to the
Court of Appeal against both conviction and sentence was dismissed, hence
this appeal.

                25        The facts of the case as found by the trial Court and the Court of Appeal are
as follows:-

The deceased, Andrew Muhumuza, was living with his mother, Marjorie
Kumunda (PW1), at Nsambya Railway Quarters. On the night of 17th May
2010 the deceased left home to go and meet someone who owed him money

30 which he had promised to pay. He did not return home.

On 18^th May 2010 at about 1:00 a.m. Kumunda PW1, was called by her
niece who informed her that the deceased had been involved in an accident.
She traced the deceased in Kibuli where she found him lying by the
roadside. She took him to Mulago Hospital where he died on arrival. A

1

, ,

       35 post-mortem examination performed on the body of the deceased revealed
that externally the body had bruises and lacerations on lower limbs,
laceration/bruises right occiput and sharp entry deep wound (about 1 - 2
cm)both legs anterior tibial aspect. Internally, there was fracture on left
tibial fibula, and right subdural haemotoma. He died from the above

40 injuries.

According to Mary Kiwanuka (PW2), on 18.05.2010 she was sleeping when
she was attracted by noise from outside her house. She went out to check
what was happening and on reaching outside she found the deceased being
assaulted by the appellant and others. The deceased was appealing to the

       45        appellant to take him to the Police if he had committed any crime. The
witness also told the appellant not to take the law in his own hands to no
avail. It was as a result of the injuries sustained in the assault that the
deceased died.

In his defence the appellant denied having participated in the assault of the

       50        deceased. He stated that he had left for Fort Portal on 18.05.2010 at 8:00
p.m. to deliver Newspapers for New Vision so he could not have participated
in the assault of the deceased. He called his wife Ahumuza Catherine (DW2)
who supported his story that he was not at home as alleged by the
prosecution but had gone to Fort Portal.

      55       The High Court, after evaluating the evidence including the appellant's alibi
found the appellant guilty of murder and sentenced him to thirty four years
imprisonment. On appeal to the Court of Appeal the Court upheld both the
conviction and sentence passed by the trial Court. The Appellant contests
the concurrent findings of the two Courts below.

60 In his memorandum of appeal the appellant raised the following grounds:-

1. That the learned Justices of appeal erred in law when they
misapplied the law on alibi thereby disregarding the appellant's
defence which led them to uphold his conviction erroneously.

2

" .

2. That the learned Justices of Appeal erred in Law when they upheld

65                   the appellant's conviction which was erroneously arrived at by the
trial Court when it conducted his trial on the 28^th March 2012 in the
absence of assessors thereby infringing his right to a fair hearing and
occasioning a miscarriage of justice.

3. The Learned Justices of Appeal erred In law when they upheld the

70                   appellant's conviction which was erroneously arrived at by the trial
Court when it ordered prosecution and defence to file written final
submissions which procedure is a violation of the applicant's rights to
attend his trial and fair hearing thereby occasioning a miscarriage of
justice.

75      The appellant prayed Court to quash the conviction and set aside the
sentence.

The appellant was represented by Mr. Sebugwawo Andrew, Counsel on State
Brief, while the respondent was represented by Mr. Brian Kalinaki, Principal
State Attorney, Directorate of Public Prosecutions.

          80          On ground one, Mr. Sebugwawo submitted that according to the indictment
the murder took place on 18^th May 2010. This was supported by PW2 whom
he describes as a single indentifying witness who stated that the incident
took place between 11:00 p.m. and 12:00 midnight. He referred Court to
the defence of the appellant to the effect that on 18:05 2010 he had travelled

          85           to Fort Portal at 8:00 p.m. and did not return to Kampala till the
21.05.2010 at 6:30 p.m. The appellant's alibi was supported by his wife
who testified to his journey to Fort Portal on 18.05.2010 at 8:00 p.m. but
according to her, did not return home until after six months.

On the other hand Counsel for the Respondent submitted that the Court of

90        Appeal after a re-evaluation of the evidence regarding the appellant's defence
of alibi, rightly rejected it. The High Court finding had been that Kiwanuka
Mary (P.W.2) had properly identified the appellant as one of the assailants.
She had known him for about four years and there was light from the

3

, I

nearby buildings that enabled her identify him. She approached him and
95 told him not to take the law in his own hands but the appellant persisted in
assaulting the deceased.

The Court of Appea1's own finding on the defence of alibi was a follows:-

"The prosecution evidence is that the deceased was killed around 1 :00
a.m. on 18^th May 2010 by the appellant. The appellant in his own

100 words did not leave Kampala until 8:00 p.m. that day 18^th May 2010.

So he must have left 19 hours after the incident, since it took place at
1:00 a.m. on the morning of 18^th May 2010 and he left Kampala at 8:00
p.m. on the evening of that day. His alibi therefore collapses."

We agree with the above finding of the Court on Appeal that the deceased

       105 was killed on the morning of 18/05/2010. The deceased's mother stated
that she picked the deceased from the road where he had been dumped and
took him to Mulago Hospital where he died on arrival. The post mortem
report which was adduced in evidence by the prosecution indicates that the
body arrived at the City Mortuary on 18.05.2010 at 9:50 a.m. where it was

110 examined on the same day at 10:00 a.m.

This evidence shows clearly that by the time the appellant left for Fort Portal
at 8:00 p.m. the deceased had already been killed. This still leaves the
question of the participation of the appellant in the killing of the deceased to
be determined.

       115        The Court of Appeal in the analysis of the evidence relating to the presence
of the appellant at the scene and his participation in the assault of the
deceased, cited with approval, the following passage from the judgment of
the trial judge-

"In the present case, given that PW2 was a single indentifying witness
120 this Court is cognisant of the need for and duly warns itself of the need
for special caution before relying on her evidence for a conviction. Be
that as it may, I find that the conditions of identification were

4

favourable for correct identification. Further this Court found the
evidence of PW2 to be cogent and credible, and indeed observed the

       125 said witness to have had a truthful demeanour. In contrast, the
defence evidence presented numerous inconsistencies and
contradictions. I shall cite but a few. First the accused gave sworn
evidence in which he testified to having returned from Fort Portal on
21^st May 2010 at 6:30 p.m. and was thereupon informed by a one Peter

130 of the events that had allegedly unfolded at his home in his absence.

However, DW2 an unemployed housewife who would quite reasonably
have been expected to be at home at that time of the day, testified
that the accused left his home on 18^th May 2010 and only returned to
Kampala six months later."

       135 We wish to reiterate the guidelines given by the Supreme Court of Uganda in
the case of Moses Bogere and (Supreme Court Criminal Appeal No. 1 of
1997) when considering evidence of identification by a single witness or a
multiple of witnesses:

"This Court has in many decided cases given guidelines on the

      140 approach to be taken in dealing with evidence of identification by
eyewitnesses in criminal cases. The starting point is that a court
ought to satisfy itself from the evidence whether the conditions under
which identification is claimed to have been made were or were not
difficult, and to warn itself of the possibility of mistaken identity. The

      145 Court should then proceed to evaluate the evidence cautiously 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 with those rendering it

      150      difficult. It is trite law that no piece of evidence should be weighed
except in relation to the rest of the evidence. See Suleman Katushabe
Vs Uganda SC Cr Appeal No 7 of 1991 (unreported)"

5

, ,

The conditions which Court may consider when determining as to whether
or not the prevailing conditions favoured an identification free of error were
155 discussed in the case of Abdulla Nabudere and another Vs Uganda (Court
of Appeal Criminal Appeal No.9 of 1978) reported in (1979) HCB 77 and
are as follows:

"Where the case against the accused depends wholly or substantially on
the correctness of one or more identifications of the accused which the

       160 defence disputes, the judge should warn himself and the assessors of
the special need for caution before convicting the accused in reliance
on the correctness of the identification or identifications. The reason
for the special caution is that there is a possibility that a mistaken
witness can be a convincing one, and a number of such witnesses can

       165 all be mistaken. The Judge should then examine closely the

circumstances in which the identification came to be made particularly
the length of time, the distance, the light, the familiarity of the
witness with accused. All these factors go to the quality of the
identification evidence. If the quality is good the danger of mistaken

170 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 time 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

175 provided the Court warns itself of the special need for caution."

The trial Judge believed the evidence of Mary Kiwanuka (PW2) the sole
witness produced by the prosecution to relate as to what happened when
the deceased was killed. The Court of Appeal re-evaluated the same
evidence to come to the same finding that the conditions under which PW2

      180        claimed to have identified the appellant favoured a correct identification
being made. The basis for the concurrent finding was that the witness was
aided by light from the nearby house to observe the appellant whom she had
known for over four years. She observed him at a distance of only five

6

'4 .•

, ,

metres and approached him to advise him not to take the law in his own

185       hands but to take the deceased to Police if he was a thief. The incident
lasted about thirty minutes further ruling out the possibility of mistaken
identity especially when the witness and the appellant knew each other very
well. While acknowledging that he was well known to PW2 the appellant
hastened to add that there was a grudge between them to the extent that

190       she never used to greet him whenever they met in the village. According to
him the grudge had arisen because PW2 has thought that the appellant had
been bribed not to press for an access road for another neighbour. The
appellant's wife who testified as DW2 stated that by the time she married
the appellant in the year 2008 the relationship between PW2 and the

195 appellant's family was not good.

The trial judge considered the allegation of this grudge. She did not believe
that the evidence of PW2 regarding the appellant's participation in the
assault of the deceased was actuated by any grudge. She was of the view
that there was such limited interaction between PW2 and the appellant and

200      his family that the evidence of PW2 could not have been motivated by the
bad relationship alleged by the appellant and his wife. She believed that
PW2 had witnessed the assault in which the appellant participated.

The Court of Appeal did not re-evaluate this piece of evidence. In the case of
Kifamunte Henry Vs Uganda (Supreme Court Criminal Appeal No 10 of

205       1997) it was reiterated that it was the duty of the first appellate Court to re-
hear the case on appeal by re considering all the materials which were
before the trial Court and make up its own mind. One of the materials
before the trial Court was the allegation of the grudge and the failure by the
Court to consider it warrants intervention of this Court playing IS role as a

210 second appellate Court.

The allegation of the grudge was brought up by the appellant during his
defence. He is the only one who made an attempt to explain the existence
and the genesis of the grudge. The only other witness that would have

7

'. .

, .

testified to the existence of the grudge was PW2 but throughout her cross
215 examination the matter of the grudge was not put to her.

In the case of James Sawoabiri and Fred Musisi Vs Uganda (Supreme
Court Criminal Appeal No 5 of 1990 (unreported) it was held that an
omission or neglect to challenge the evidence in Chief on a material or
essential point by cross examination would lead to the inference that the

220         evidence is accepted subject to its being assailed as being inherently
incredible or palpably untrue. The issue of the grudge was such an
essential element in the defence of the appellant that the witness should
have been confronted with it. The only inference to be drawn from the
failure by the defence to put such a material point to the witness is that the

225 grudge did not exist and was only brought up as an afterthought.

The other aspect of the case considered by the trial Court that was not re-
evaluated by the Court of Appeal was that although PW2 testified that the
appellant was with others during the assault of the deceased, only the
appellant faced the trial resulting in his conviction. The trial judge relied on

230         the case of Ismail Kisegerwa & Another Vs Uganda (Court of Appeal
Criminal Appeal No 6 of 1978 where the doctrine of common intention was
described as follows:-

"In order to make a doctrine of Common Intention applicable it
must be shown that the accused had shared with the actual

235              perpetrator of the crime a common intention to pursue a specific
unlawful purpose which led to the commission of the offence. If it
can be shown that the accused persons shared with one another a
common intention to pursue a specific unlawful purpose, and in
the prosecution that unlawful purpose an offence was committed,

240              the doctrine of common intention would apply irrespective of
whether the offence committed was murder or manslaughter. It is
now settled that an unlawful common intention does not imply a
pre arranged plan. Common Intention may be inferred from the

8

" -

, .

presence of the accused persons, their actions and the omission of

245           any of them to disassociate himself from the assault."

In the instant case the appellant was found to have actively participated in
the assault of the deceased. PW2 who was found to be a credible witness
tried to stop him from assaulting the deceased to no avail. Although he was
not alone in the killing of the deceased, once his participation in the assault

250      was established, he took full responsibility for his role as a participant in the
assault of the deceased for which he was rightly convicted.

In addition to the direct evidence of identification by PW2, there are other
factors to consider in disproving the appellant's alibi. These are that the
appellant lied about his whereabouts on the morning the deceased was

255      killed in addition to lying to Court that from Fort Portal he had returned to
Kampala on 21.05.2010 and yet his wife testified that when he left for Fort
Portal on 18.05.2010 he did not return home for the next six months. The
inference to be drawn from the lie about his return to Kampala is that he
was in hiding. In the case of Moses Bogere and Anor Vs Uganda (Supra)

260      the Supreme Court cited the case of Moses Kasana Vs Uganda Cr. App. No
12 of 1981 (1992-93) HCB 47 where the Supreme Court observed as
follows:-

"where the conditions favouring correct identification are difficult
there is need to look for other evidence, whether direct or

265      circumstantial, which goes to support the correctness of identification
and to make the trial Court sure that there is no mistaken
identification. Other evidence may consist of a prior threat to the
deceased, naming the assailant to those who answered the alarm, and
of a fabricated alibi."(Underlining provided).

270

We, like the two Courts below, believe that the quality of the evidence of
identification was good and the Court, after cautioning itself on the danger
of basing a conviction on a single identifying witness could safely rely on it.

9

" .

, .

In addition the evidence was corroborated by the false alibi of the appellant.
275 Ground I of the appeal, therefore, fails.

On Ground two Counsel for the appellant submitted that the Court record
does not indicate that any of the two assessors attended the trial on 28^th
March 2012 which renders the entire proceedings a nullity. He submitted
further that it occasioned a miscarriage of justice.

280        In reply Counsel for the Respondent submitted that the issue of absence of
the assessors was not raised in the Court of Appeal and should therefore not
be raised in this Court. He submitted further that on the date the assessors
were allegedly absent Counsel for the appellant was in Court and never
raised the issue with the trial Judge and that it did not occasion a

285        miscarriage of justice. In this regard he cited section 139 of the Trial on
Indictments Act which provides a follows:-

"S. 139 Reversibility or alteration of finding, sentence or order by
reason of error etc

(1) Subject to the provision of any written law, no finding, sentence or

                   290                order passed by the High Court shall be reversed or altered on
appeal on account of any error, omission, irregularity or
misdirection in the summons, warrant, indictment, order, judgment
or other proceedings before or during the trial unless the error,
omission, irregularity or misdirection has in fact occasioned a

                  295                 miscarriage of justice.

(2) In determining whether any error, omission, irregularity or
misdirection has occasioned a failure of justice, the Court shall
have regard to the question whether the objection could and should
have been raised at an earlier stage in the proceedings. "

300        From the outset we wish to point out that absence of assessors from a trial
is not a mere irregularity. Under section 3 of the Trial on Indictments Act
all trials before the High Court shall be with the aid of assessors and Section

10

· ,

69 of the same Act provides that in absence of an assessor the trial proceeds
with the aid of other assessors. If more than one of the assessors are
305 prevented from attending or absent themselves, the proceedings shall be
stayed, and a new trial shall be held with the aid of different assessors. See:

Abdu Komakech v. Uganda [1992 - 93] HCB 21.

We have to establish the fact of the attendance or non attendance of the

assessors.

       310   We have perused the record of proceedings and it shows that on 28.03.2012
when the assessors were allegedly absent the prosecution closed its case
and the appellant was required to give his defence which he did. As already
discussed in this judgment his defence was an alibi which was supported by
his wife who testified as DW2 on the same day.

       315 The summing up for the assessors was conducted on 30.03.2012 and they
rendered their joint opinion on 03.04.2012. In their joint opinion the
assessors advised Court to acquit the appellant on the ground that the
evidence of PW2 on the participation of the appellant in the commission of
the offence lost credibility by the defence of the appellant and DW2. The

       320        assessors could not have relied on the evidence of the appellant and his wife
if they had not been in Court and heard their testimony on the alibi. This
may explain why although the appellant was represented by different
Counsel at the High Court and Court of Appeal none of them raised the
issue of the absence of the assessors. Accordingly, it is our view that the

       325        above issue was raised in this Court as an afterthought and our finding is
that the omission by the trial judge to record their presence was due to
inadvertence rather than their absence from the trial. We, therefore, find no
merit on this ground of appeal which is also dismissed.

On ground three of the appeal the background was that at the close of the
330 case for the defence the trial Court made orders for filing written
submissions by the prosecution the following day at 9:30 a.m. and reply by
the defence at 5:30 p.m. Counsel for the appellant submitted that the

11

~, .

written submissions were made in absence of the appellant which renders
the trial a nullity, He cited Article 23 (5) of the Constitution which requires

335       that a trial of any person takes place in his presence. He also cited the case
of AKHUYA Vs REPUBLIC (E.A. L.R, (2002) 2 EA 323 ((CAK) where the
Court of Appeal of Kenya was faced with a case where like in the instant
case a trial Magistrate had ordered filing of written submissions in the Court
Registry. It found that the trial was improper leading to the quashing of the

340 appellant's conviction.

In response Counsel for the Respondent contended that the filing of written
submissions did not contravene the appellant's right to a fair hearing.
According to Counsel the right to give a final address to Court can be oral or
written and in this case written submissions were filed on behalf of the

345 appellant.

The practice of filing written submissions as opposed to oral submissions is
becoming quite common in our Courts. The practice expedites the trial. It
is not regulated but it has to be properly managed. In the instant case the
prosecution and defence filed their submissions within one day. It is

350       advisable for court to take suggestions from Counsel as to how much time is
required to prepare their submissions. It is also advisable to spare time for
presentation of the written submissions in open Court. In this way Counsel
may, in addition to the written submissions wish to make a few remarks by
way of emphasis and then adopt the written submissions in open Court.

355      The question raised by the ground of appeal is whether the failure to take
submissions in the presence of the appellant renders the whole trial a
nullity as prayed by the appellant or occasioned a miscarriage of Justice.

Under section 139 of the Trial on Indictments Act already cited in this
judgment a finding, sentence or order can only be reversed or altered when

360      it has in fact occasioned a miscarriage of Justice. In determining whether
any error, omission, irregularity or misdirection has occasioned a failure of
justice, the Court shall have regard to the question whether the objection
could and should have been raised at the earlier stage in the proceedings.

12