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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CRIMINAL APPEAL NO. 33/ 2014.

[Arising from a decision of the Court of Appeal in Criminal Appeal No. 127/
2012 dated 31. 10.2014]

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1.    

SSEKITOLEKO YUDAH TADEO

2.     

MWESIGYE MAIKOLO

3.     

NAMULI ROSE

                            VERSUS

                                          APPELLANTS

    ..............................                                

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.

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(Coram

Hon. Justice Bart M. Katureebe, CJ;

Hon. Justice Arach-Amoko: Hon. Justice A.S. Nshimye, Hon.
Justice Opio-Aweri, Hon. Justice Faith Mwondha, JSC).

JUDGEMENT OF THE COURT.

INTRODUCTION

This is an appeal from the decision of the Court of Appeal which dismissed an
appeal against conviction and sentence by the High Court for murder contrary

      25        to Sections 188 and 189 of the Penal code Act.

BACKGROUND

The 1^st  appellant. 3^rd appellant and the deceased were siblings. The three had
a land dispute and a family grudge over witchcraft. The said grudge forced the
1 st appellant to abandon his ancestral home and settle elsewhere

      30        begrudgingly. The 1^st  and 3^rd appellant together then hatched a plan to kill the

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                        '"          I          -                                 "

                   5    deceased. The 1⁵¹ appellant contacted the 2^nd appellant to do the needful. The
three appellants met at the home of the 3^rd appellant where all the
arrangements to kill the deceased were finalized. The 2^nd appellant was
showed around the home of the deceased for acquaintance.

The second appellant went to the home of the deceased at around 2 pm

                 10        pretending that he was looking for land to buy. He was holding a black
   polythene bag (commonly known as kavera) with unknown contents. The 2^nd
   appellant and the deceased left to drink at a nearby trading center at Makole at
   around 3pm.They both returned at around 3:00am in the night each with a
  bottle of beer and the second appellant still had his polythene bag. Using a

                 15        paraffin lamp (locally known as tadooba), PW1 (deceased's daughter) said
  she saw them go to the deceased's bedroom and sleep on the same bed. In
  the morning, PW1 heard a loud snore from the deceased's bedroom and she
  immediately went and called her cousin brother Katumba (PW3) who came and
  found the deceased's face covered with a blanket. On uncovering the face,

                 20        pw3 found the head of the deceased had wounds and was bleeding. The
  deceased later died on his way to hospital. They reported the matter to the
  police.

As Abwara Peter (PW5) was reporting to the scene, he found the 2^nd appellant
under suspicious circumstances. The 2^nd appellant stated that he was looking

                 25       for a vehicle to take him to Ibanda. When he was questioned about the
   hammer he was holding in the polythene bag, he replied that it was for his
  defence. The 2^nd appellant was arrested and put in police custody.

The 2^nd appellant was later identified by PW1 as the person who had been at
their home and the same person who left with the deceased, returned with him

                30       and went to bed together. Upon his arrest, the 2^nd appellant still had the black
   kavera which upon inspection was found to contain shoes and a hammer. The
   shoes were later identified to have belonged to the deceased.

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;

         5    PW6 carried out a post mortem examination vide Police Form 488 on the
deceased and established that the deceased had a crushed skull fracture. He
stated that the cause of death was brain contusion hemorrhage and shock
owing to being struck on the head by a blunt weapon. His opinion was that a
blunt round weapon must have been used to kill the deceased.

       10        All the three appellants denied the offence.

The 1st appellant made a charge and caution statement where he stated that
he was the one who collected the 2^nd appellant to kill the deceased. He sold
his bike to raise money to transport the 2^nd appellant and promised to pay him
shs. 600,000/= for killing the deceased.

       15        The 2^nd appellant also made a charge and caution statement before PW4
(Kyaligonza) in which he confessed to have been hired by the 1^st  appellant to
kill the deceased and was promised to be paid Uganda shillings 600,000/=. He
explained how the deceased was killed and that he picked the deceased's
shoes and the murder weapon (hammer) as evidence of fulfillment of the

       20        mission. After taking those items to the 3^rd appellant, he was given shs
10,000/= and a bottle of waragi and the 3^rd appellant assured him of being
paid the 600,000/= later by the 1^st  appellant.

The 1 st and 2^nd appellants retracted and repudiated their confessions.

The appellants were examined vide Police Form 24 and all were found to be

      25        normal and had no bruises.

The trial judge conducted a trial within a trial to establish the propriety of the
charge and caution statements and it was found that the statements were
made voluntarily and were properly admitted in court as evidence. The trial
judge believed the evidence adduced by the prosecution pointing to the guilt

      30        of the appellants.

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   5          On the 10^th day of May 2012. the appellants were convicted and sentenced

each to 28 years imprisonment.

Being dissatisfied with the decision of the trial Court. the appellants appealed
to the Court of Appeal against both conviction and sentence. The Court of
Appeal disallowed all the grounds of appeal. and confirmed the decision of the

10        High Court.

The appellants still dissatisfied with the decision of the Court of Appeal.
lodged an appeal in this Court on the 29^th day of March 2016..

The memorandum of appeal contained the following grounds;

1. That the learned Justices of Appeal erred in law in upholding conviction

15                       on the basis of the un-corroborated charge and caution statements of A 1
and A2.

3.     

That the learned Justices of Appeal erred in law in upholding the trial
Court's finding that the 3 appellants had a common intention and were
joint offenders .

20               3. That the learned justices of appeal erred in law in confirming the

sentence of 28 years imprisonment.

The appellants thus prayed this honorable court to allow the appeal. quash the
conviction and set aside the sentence or in the alternative. reduce the
sentence of 28 years as shall be judiciously determined by court.

          25               Representation.

The appellants were represented by Henry Kunya whereas the respondent was
represented by Principal State Attorney, Okello Richard.

Submissions of counsel.

Both counsel filed written submissions

30       Grounds one and two.

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         5    Counsel for the appellants argued grounds 1 and 2 together since they both hinged on the alleged participation of the appellants in the said murder. Counsel contended that much as the charge and caution statements were recorded from A 1 and A2, the same were not corroborated to the requisite standards. He submitted that there was no credible evidence to prove· common intention let alone being joint offenders as alluded to by the lower
courts.

            Counsel contended that the Justices of Appeal while re-evaluating the evidence on record, were not alive to the fact that both charge and caution statements of A 1 and A2 were recorded by the same police officer. Counsel submitted that this offended the well laid down principles as stated in the case of Sewankambo Francis v Uganda, Supreme Court Criminal Appeal No. 33 of 2001. The court held that it is irregular for one police officer to record alleged confession statements from two suspects charged with the same offence arising from the same incident. Court further opined that the temptation on the part of the police to use the contents of the statement to record a subsequent statement could not be ruled out.

Counsel contended that the said confessions were not on all fours with the evidence on record which contends with the wording in the case of Tuwamoi V UG (1967) E.A.84: where Court was of the view that for such confession to be deemed acceptable for purposes of founding a conviction, the trial court must be fully satisfied in all circumstances of the case that it was true.'

Counsel further argued that there was no evidence to prove the following:

• That A2 went back to the deceased's home at night and more so slept on the same bed with the deceased as alleged by PW1.

      30                • That A2 went back to the house of A3 with the deceased's Nigina shoes as proof of having accomplished the mission.

·       

That the retrieved hammer had any traces of the deceased's blood.

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                        ~               r                                      I j

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                   5               • That the appellants met in the house of A3 to plan the execution of the

said offence as to lay a strong basis for the alleged common intention
and being joint offenders.

·       

That PW2 was not privy to any ongoing conversation between the
appellants nor did she get to hear what was being discussed, so she

                 10                 could not safely assert that they were busy planning execution of the
said plot.

Counsel submitted that the appellants were and remain mere suspects as the
obtained circumstantial evidence did not irresistibly point to their guilt besides
linking them to the said offence. Counsel concluded by inviting court to allow

                 15        both grounds one and two.

In reply, counsel for the respondent agreed to the fact that the case was
greatly pegged on the charge and caution statements extracted from A 1 and
A2. He however argued that the prosecution had adduced sufficient evidence
to corroborate the contents of the charge and caution statements to the

                 20        required standards. He argued that the entire evidence looked at together, was
credible enough to prove common intention on the part of the appellants and
the fact that they were joint offenders as was rightly found by both the trial
court and the first appellate court.

On the issue of the propriety of the charge and caution statements, counsel

                25       argued that the fact that both statements obtained from both A 1 and A2 were
recorded by the same police officer did not in any way occasion a miscarriage
of justice because the statements were recorded 3 days apart, and one after
another. Therefore, the police officer could not have memorized what he had
written 3 days earlier. He added that the same did not offend the laid down

                30       principles in the case of Sewankambo (supra) because of the following;

·

That in the Sewankambo case, the police officer who recorded the
charge and caution statements had to use a luganda interpreter and at
times English which the appellants did not understand while in the
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         5               instant case, the officer used the appellant's local language without
need for interpretation, so he could not have missed out on anything the
two appellants narrated to him during the exercise.

·        

The allegation of assault did not arise in the instant case therefore the
charge and caution statements were rightly admitted as evidence in the

       10                        trial court and the Court of Appeal justices were right to treat it as such.

Counsel further contended that it was not true that A2 categorically denied
ever going back at night as stated by PW1 during her testimony but rather he
denied going back to A3's home. He also did not rebut the evidence by PW1
that he returned late at night with the deceased to their home and that the two

       15         had spent the night in the same room and on the same bed.

Counsel concluded by urging court to consider A 1 and A2' s charge and
caution statements in totality so as to properly get a complete narrative of
what they intended to convey.

On the issue of corroboration, counsel for the respondent agreed that

       20      according to the Tuwamoi case (supra), it is not prudent for a trial court to act
upon a statement which has been retracted in the absence of corroboration
except in circumstances where the confession must be true.

Counsel submitted that because of the sensitivity involved in the planning
process, A 1 and A2 could not afford their plan to be discovered so court had

      25        to believe their statements without corroboration.

Counsel however contended that the statements were corroborated by PW2
and PW5s' evidence. Counsel submitted that the prosecution had led evidence
of PW2 that had brought A3 on board. Pw2 testified that A3 had a secret
meeting in A3's bedroom and the fact that A 1 and A3 had a grudge with the

      30        deceased but she did not know why.

Counsel invited this court to disallow grounds one and two.

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         5       Resolution of ground 1 and 2.

The appellants' complaint is that it was an error on the part of the trial judge
and the Justices of Appeal to convict them based on the charge and caution
statements which were not properly admitted as evidence and uncorroborated
statements extracted from the same. The Court of Appeal agreed with the trial

      10 court that all the appellants with malice aforethought and a common intention
planned and caused the death of the deceased. These two grounds deal with
3 major issues which are the propriety of the charge and caution statement,
corroboration of the charge and caution statements and proof of common
intention.

      15        Propriety of the charge and caution statement

The appellants claim that the charge and caution statements were recorded by
the same officer which was greatly prejudicial to the appellants since the
recording officer could use facts from one statement to fabricate the other.

The propriety of a confession is provided by Section 24 of the Evidence Ad

      20        which provides as follows:-

"A confession made by an accused is irrelevant if the making of the confession
appears to the courts, having regard to the state of mind of the accused person
and to all the circumstances to have been caused by any violence, force,
inducement or promise calculated in the opinion of court to cause an untrue

      25        confession to be made".

The above section was interpreted by the Supreme Court in the case of
Walugembe VS Uganda, Criminal Appeal No. 39 of 2003.

Where an accused person objects to the admissibility of the confession on
grounds that it was not made voluntarily, the court must hold a trial within a

      30       trial to determine if the confession was or was not caused by any violence,
force, threat, inducement or promise calculated to cause an untrue confession

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                   5    to be made. In such trial within a trial, as in any criminal trial, the onus of proof
is on the prosecution to prove that the confession was made voluntarily. The
burden is not on the accused to prove that it was caused by any of the factors
set out in S. 24 of the Evidence Act. See Rashidi VS Republic (1969) EA 138.

We agree with the appellants' submission that according to the case of

                 10 Sewankambo Francis V Ug (supra) it is irregular for one police officer to record
alleged confession statements from two suspects charged with the same
offence arising from the incident. We however find the above case
distinguishable from the instant case. In the instant case, much as PW4
recorded both statements in question, they were recorded 3 days apart. So he

                 15        could not have memorized the facts of the case in a bid to fabricate evidence

unlike in the Sewankambo case where the statements were recorded on the
same day.

We also agree with the respondent's submission that unlike in the cited case
where the recording officer was not well conversant with the local language of

                20        the appellants and needed an English interpreter, in the instant case, the
recording police officer was well versed with the local language of the
appellants and so could not have fabricated any fact in the statement due to
misunderstanding the language. The trial judge carried out a trial within a trial
in which he established that the confessions were found to be true, made

                25       voluntarily and most importantly were signed by the appellants voluntarily.

The Court of Appeal had this to say:-

                      "We have studied the judgment of the trial judge and the considerations he had on the repudiated and retracted confessions of the first and

                                     second appellants ......... · ........ we are satisfied that the learned trial judge

                30                followed the law and procedure on admission of the charge and caution
statements which were retracted and repudiated. He properly handled a
trial with in a trial for each of the confession statements. He properly
cautioned himself and the assessors on the admissibility of the

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         5                    statements. We find that he admitted them into evidence in compliance
with the law after due consideration and caution … "

We find that the learned justices of appeal rightly upheld the admission of the
charge and caution statement after due consideration and the fact that a trial
within a trial was conducted correctly. There is no evidence that 1st and 2^nd

       10        appellants were compelled to make the charge and caution statements.

Although the statements were recorded by the same officer, the two
statements as recorded by pw4 were independent of each other but were
complimentary of each other as they both state in details how the death of the
deceased was planned and executed by the three accused persons. Hence,

       15        there was no prejudice even though the said confessions were recorded by
the same police officer. For the above reasons we cannot fault the findings of
the Court of Appeal on this point.

Corroboration

The appellants' argument was that the learned justices of appeal and the trial

       20       judge convicted the appellants based on uncorroborated evidence extracted
from the charge and caution statements. The law with regard to retracted and
repudiated confession was re-stated in the case of Tuwamoi V UG (1967)
E.A.84; as follows;

"a trial court should accept any confession which has been retracted or

      25             repudiated with caution and must, before founding a conviction on such
a confession, be fully satisfied in all circumstances of the case that the
confession is true. The same standard of proof is required in all cases
and usually a court will only act on the confession if corroborated in
some material particular by independent evidence accepted by court. But

      30                corroboration is not necessary in law and the court may act on a
confession alone if it is satisfied after considering all material points and
surrounding circumstances that the confession cannot be but true .. · .. · .. " (
emphasis ours).

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         5        The court held further that "In assessing a confession, the main consideration

at this stage will be is it true? And if the confession is the only evidence
against the accused, then the court must decide whether the accused
has correctly related what happened and whether the statement
establishes his guilt with that degree of certainty required in a criminal

       10                        case."

In a nutshell, it is trite that court can convict on a retracted or repudiated or
both retracted and repudiated confession alone (without corroboration) if it is
satisfied after considering all material factors and surrounding circumstances
of the case that the confession cannot be but true: see Matovu Musa Kassim

       15        VS Uganda CR. Appeal No. 27/2002 (sc)

In dealing with this point the Court of Appeal had this to say:- "······We also
find that the admitted confession statements were corroborated by the
evidence on record. The first appellant was seen by PWI when he came to
the home of the deceased at 3pm.. He went out with him to return at night

       20       and slept on the same bed in the same room. After the killing of the
deceased to which he confessed, he reported to the third appellant and was
given 10,000/= and ‘enguli’. He was assured by the third appellant of the
payment of the agreed fee of 600,000/= by the second appellant. He had
kept the shoes of the deceased and the hammer that was bought in

       25      Kasambya in Mubende. He was arrested with the hammer in a black kaveera
that he had when he came to the deceased's home that afternoon. He was
also found with the deceased's shoes which he had kept as proof of
fulfillment of the agreed mission of killing (he deceased. He was arrested by

                    PW5 that night immediately after the deceased had been killed ............................... "

      30          In our view, the learned Justices of Appeal were alive to the law regarding the

admissibility of retracted and repudiated confession and were right in their
conclusion that the confession statements of the accused were not only true
but were well corroborated by the evidence on record.

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         5   Apart from confession of the 1⁵¹ and 2^nd appellants implicating each other and the 3^rd appellant, there were other evidence which corroborated the confession statements. These were the evidence of PW1, PW2, PW4 and PW5. The whole of that evidence established the fact that the 2^nd appellant went to the home of the deceased at 2:00pm. The two negotiated a land transaction. Later they

       10        went to drink together at the nearby trading centre. The two returned each with
a bottle of beer.

The two went to bed together, later in the night the deceased was heard snoring only to be found that he had been attacked. Before the incident, 2^nd and 3^rd appellants were seen together holding a meeting in the bedroom of the

       15      3^rd appellant. After the matter was reported to the authorities, the 2^nd appellant was found near the scene under suspicious circumstances.

He was found with a black kavera which contained a hammer and two pairs of shoes. The 2^nd appellant was later identified as the person who was last seen with the deceased and had returned with two battles of beer. The hammer was

       20        found to be containing blood while the pairs of shoes were found to belong to the deceased. The two bottles of beer were found in the bed where the 2^nd appellant and the deceased had slept. In the premises we have no reasons to fault the Justices of the Court of Appeal on the point of corroboration.

Common intention

      25      The argument here is that there was no evidence to prove common intention and treating the appellant as joint offenders as alluded to by the lower courts. The lower courts misdirected themselves on the law governing common intention.

The law governing common intention is laid down in section 20 of Penal Act

      30        provider- The Supreme Court in the case of Charles Komwiswa V Ug [1979]
HCB 86 stated that;

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, ,

,

         5    "where several persons are proved to have combined together for the same
illegal purposes, any act done by one of them in pursuance of the original
concrete plan and with reference to common object in the contemplation of
law, is an act of the whole, each party is the agent of the others in carrying out
the object of the conspiracy he renders himself a principal offender"

      10   In dealing with the above point the learned justice of Appeal observed as
follows:-

"The killing was in fulfillment of an agreement between the three appellants.
The evidence on record clearly illustrated the role of each of the three
appellants in effecting the killing of the deceased was as per arrangement.

      15 The learned judge considered this evidence and made a finding that the three
appellants had formed a common intention to kill the deceased and they play
a role in effecting the plan of killing"

            We accept the above conclusion. The confessions made by the 1 st and 2^nd appellants      coupled with the corroborative evidence from the testimonies of pw1, pw2, pw4, and pw5    implicated all the appellants as having participated in the murder of the deceased. The 1 st appellant was implicated by his confession and the 2^nd appellant's confession. The 2^nd          appellant was implicated by his confession, and the confession of the 1st appellant, the
            testimony of PW1 as the person who came to their home, left with and

      25 returned with the deceased. There is the testimony of PW5 who arrested him in
possession of a black polythene bag which contained the murder weapon and
the deceased's plastic shoes. Then PW2's testimony who stated that she saw
the three appellants at the 3^rd appellant's home. The 3^rd appellant was
implicated by both confessions of the 1st and 2^nd appellants. There is also the

      30        testimony of PW2 who stated that the three appellants met at her home in her
bed room and that she had a grudge with the deceased. Pw3 was in the
company of pw5 when the 1st appellant was arrested and found with black

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4.

"

         5        kavera containing a hammer and some property belonging to the deceased.

The hammer had blood stains,

The whole of the prosecution evidence was to the effect that all the three
appellants participated in the plan to kill or killed the deceased. The main
actors were the 1 st and 3^rd appellants. They hired the services of the 2^nd

      10        appellant. Although it was the brother of the 1 st appellant who eventually hit
the deceased with the deadly weapon, the 2^nd appellant remained implicated
because it was his hammer which was used to kill the deceased in his
presence. Moreover he took the hammer to the 3^rd appellant to confirm that
the mission had been a success, The evidence of the prosecution witnesses

      15        discredited the defence case and clearly demonstrated in the murder of the
deceased beyond reasonable doubt. We accordingly conclude that there was
overwhelming evidence implicating all the appellants in the commission of the
murder. We find that there was common intention by all the appellants to kill
the deceased.

       20        GROUND 3

Counsel submitted that on account of the apparent flaws regarding admission
of the charge and caution statements of A 1 and A2 coupled with the lack of
independent corroborative evidence in support thereof, the sentence was
manifestly excessive as to amount to an injustice. Counsel further submitted

      25       that had the Court of Appeal properly re evaluated the evidence before them,
they would have ultimately considered the said sentence as being harsh and
manifestly excessive.

Counsel prayed court to substantially reduce the sentence of 28 years so as to
meet the ends of justice.

      30        In reply, counsel for the respondent submitted that the Justices of Appeal
exercised absolute lenience considering the fact that the offence in question

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                 5       carries a maximum sentence of death. He prayed that this court disallow the
appeal in its entirety.

A clear reading of this ground implies that the appellants are challenging the
severity of the sentence imposed by the trial court and confirmed by the Court
of Appeal.

               10        The Learned justices of Appeal on the sentence held as follows;

                         " ........ the principles upon which an appellate Court should interfere with a

sentence imposed by the trial court were considered by the Supreme Court in
the case of Kyalimpa Edward V Vg, Criminal Appeal No. 10 of 1995 to which
counsel for the respondent referred to us. The Supreme Court referred to R V

               15        De Haviland (1983) 5 Cr. App. R(s) 109 and held as follows:

':.4n appropriate sentence is a matter for the discretion of the sentencing judge.
Each case presents its own facts upon which a judge exercises his discretion. It .
is the practice that as an appellate court, this court will not normally interfere
with the discretion of the sentencing judge unless the sentence is illegal or

               20    unless the court is satisfied that the sentence imposed by the trial judge was
manifestly so excessive so as to amount to an injustice. Ogalo s/o Owura V R.
(1954021 EA.C.A 270 and R V Mohamedali Jamal(1948) 15 E.A.C.A126." The

maximum sentence for murder for which the appellants were convicted was
death. We find that the learned trial judge exercised his discretion with all due

              25        consideration and sentenced the appellant to 28 years. JJ

The scope of appeals permitted to this Honorable Court regarding sentence is
stipulated in Section 5(3) of the Judicature Act which provides;

"In case of an appeal against sentence and an order other than one fixed by
law, the accused may appeal to the Supreme Court against the sentence or

              30        order on the matter of law, not including severity of sentence.

15

,

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             5      This means that this court has no jurisdiction to hear appeals regarding
severity of sentence. However the exceptional circumstances are founded in
the Kyalimpa case (supra) which are that the sentence has to be illegal or
manifestly excessive in the circumstances. In the instant case, we accept the
respondent's submission that the offence in question is murder and the

          10     maximum sentence is death. We therefore do not find any reason to interfere
with the sentence.

Consequently, ground three also fails. In the result the appeal against
conviction and sentence is dismissed.

                           Dated at Kampala this ....................... ~6th................... day Of .. April............................. 2017

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Hon. Justice Bart M. Katureebe:

Chief Justice/Justice of the Supreme Court.

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Hon. Justice Arach-Amoko:

Justice of the Supreme Court

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