Okello Geoffrey v Uganda [2017] UGSC 37 (20 September 2017)

5 The headmaster called people who gathered at his home and he told
them what happened. The matter was reported to the police who
arrested the appellant. The appellant and PWI were taken to
Patongo Hospital for medical examination. The examination
indicated that the girl (PWl) was aged 15 years and her hymen had

10 been ruptured. The appellant was found to be aged 25 years.

The appellant was thereafter indicted for the offence of aggravated
defilement, tried and convicted by the High Court sitting in Gulu
and sentenced to 22 years imprisonment. After his conviction and
sentence the appellant appealed to the Court of Appeal on two

15 grounds namely:

1. That the learned judge erred in law and fact when he convicted
the appellant on uncorroborated evidence thereby occasioning a
miscarriage of justice.

2. That the learned trial judge erred in law and fact when he failed
20 to properly evaluate the evidence, thus arriving at a wrong decision
occasioning a miscarriage of justice.

The Court of Appeal heard the appeal and dismissed it. The
appellant lodged his appeal to this court on the following grounds:

1. That the learned Justices of the Court of Appeal erred in

25 law when they failed to adequately re- evaluate the
evidence on record relating to the victim's credibility
thereby coming to an erroneous decision.

[3]

5 2. That the learned Justices of the Court of Appeal erred in

law when they upheld an illegal sentence imposed on the
appellant by the trial judge.

At the hearing of the appeal the appellant was represented by Mr.
Henry Kunya on state brief while the respondent was represented
10 by Mr. Brian George Kalinaki, Principal State Attorney. Both
counsel relied on their written submissions.

Counsel's submissions

On ground one, learned counsel for the appellant submitted that
the Court of Appeal as a first appellate court failed to subject the

15 evidence on record to fresh scrutiny before reaching its decision. He
contended that the victim's credibility was questionable and that,
therefore, her evidence that the appellant had sex with her could
not be solely relied upon to support the appellant's conviction. He
stated that whereas PW 1 told court that she did not reveal to

20 anybody her sexual relationship with the appellant, the victim's
brother later told court that she had disclosed to him the several
sexual encounters she had had with the appellant.

In response, learned counsel for the respondent opposed the appeal
and supported the Court of Appeal's decision. He submitted that

25 the Court of Appeal properly re-appraised the evidence as a whole
and reached the right conclusion. He further submitted that the
girl's testimony did not require corroboration given her age and the
trial judge believed her as a credible and truthful witness.

[4]

5 Consideration of the appeal.

We have held in a number of decisions that this court as a second
appellate court will not re-evaluate the evidence in the manner of a
first appellate court unless it is of the view that on approaching its
task the first appellate court failed to properly review the evidence

10 on record. See Kifamunte Henry vs. Uganda, SCCA No. 10 of 1997
and Bogere Moses vs. Uganda, SCCA No. 1 of 1997.

We are of the view that the Court of Appeal and the trial court not
only correctly applied the principles to the case but also properly re-
evaluated the evidence on record relating to whether the appellant

15 had sexual intercourse with a minor aged 15 years and who was a
pupil in his school over whom he exercised authority.

Akwero Sarah, PWl, testified in court that the appellant had sex
with her between December 2008 and January 2009. This evidence
is corroborated by that of Oyat Churchill (PW3) , a brother to PWl,

20 who testified that PW 1 had told him that she had had sex with the
appellant five times but that on the day of his arrest they did not
engage in sexual intercourse.

PW2, the mother of PWl, testified that she had come to know that
the appellant was having an affair with her daughter and that she
25 called him and warned him to desist from it as her daughter was
still young. Apparently the appellant stopped the affair but later
resumed it.

[5]

5 In conclusion, it is our view that the Court of Appeal properly re-
evaluated the evidence before it confirmed the appellant's conviction
of aggravated defilement. On that account, therefore, ground one of
appeal fails.

Supplementary ground of appeal

10 Following the hearing of the appellant's appeal by the court, the
appellant on 7^th March, 2017 wrote a letter to the court complaining
about his counsel's omission to raise a ground of appeal concerning
the trial judge's alleged failure to administer Assessors oaths. In the
letter aforementioned the appellant claimed that he gave firm

15 instructions to counsel, to include this ground and he was upset
that his counsel had not included that ground in the memorandum
of appeal. The appellant framed "the supplementary ground of.
appeal" as follows:

"That the learned Justices of the Court of Appeal erred in

20 law when they affirmed the conviction of the appellant by
the trial court which omitted one of its core duties of
administering Assessors' oaths, hence causing a travesty
of justice."

We must observe that filing a supplementary ground of appeal after
closure of hearing is not catered for by the rules of this court. Rule
62 of the Judicature (Supreme Court Rules) Directions provides
that "The appellant shall, within 14 days after service on him

[7]

5 or her of the record of appeal, lodge a memorandum of appeal
with the registrar."

Rule 63(1) of the rules of this court provides that "The appellant
may at any time, with the leave of the court, lodge a
supplementary memorandum of appeal" and rule 63(3) provides

10 that "Any person lodging a supplementary memorandum under
this rule shall cause a copy of it to be served on the
respondent." We do not think that the phrase "at any time"
should be interpreted to mean that a supplementary memorandum
of appeal can be lodged after the closure of the hearing of the

appeal.

During the hearing of appeal, arguments by the appellant's counsel
are based on the grounds specified in the memorandum of appeal
or in the supplementary memorandum which might have been filed
before the hearing with leave of court. (See rule 70 of the rules of

20 the court). The arguments may be written or oral. The hearing is
then closed and the court may deliver its judgment either
immediately or reserve it for delivery on a future date.

Apart from the fact that the so-called supplementary memorandum
was filed after 14 days following service of the record on the

25 appellant which was beyond the time permitted, and also after the
hearing of the appeal, the court did not give the appellant leave to
file it as the rule requires. So it would be wrong to call it "a
supplementary memorandum of appeal." Furthermore, a copy of it

[8]

5 was not served on the respondent. All these omissions constitute
serious procedural irregularities that the court cannot condone.

Additionally, considering that this court is a second appellate court
and the issue of the assessors not having been sworn by the trial
judge was not raised in the Court of Appeal, we are inclined to think

10 that the appellant raised this issue merely as an after-thought.

For the above reasons, we decline the appellant's request to
consider his "supplementary memorandum of appeal".

Second Ground of Appeal

The appellant's second ground of appeal is that the learned Justices

15 of Appeal erred in law when they upheld an illegal sentence.

Learned counsel for the appellant informed the court that this
ground of appeal on sentence was not raised in the Court of Appeal
and that, therefore, no submissions were made on it. He, however,
pointed out that this was a mistake of the appellant's counsel (who

20 was on State brief in the Court of Appeal) and that this mistake
should not be visited on the appellant.

Counsel argued that a custodial sentence of 22 years imprisonment
was illegal since the maximum custodial sentence was 20 years. He
relied on the case of Livingstone Kakooza vs. Uganda, SCA No. 17

25 of 1993, where it was held that a sentence of life imprisonment
meant 20 years under the Prisons Act. Counsel further argued that

[9]

5 by the time the appellant was sentenced the decision in Tigo
Stephen vs. Uganda, SCCA No. 08 of 2009 had not been made.

Counsel prayed court to entertain the ground of appeal on sentence
on the basis of Euchu Micheal vs. Uganda, SCCA No. 54 of 2000,
where a ground of appeal which had not been raised in the Court of

10 Appeal was allowed to be argued on the ground that it raised an
important legal issue.

In response, learned counsel for the respondent argued that the
maximum sentence provided for the offence of aggravated
defilement is death and therefore a sentence of 22 years

15 imprisonment cannot be said to be illegal.

Consideration of Second Ground

In the case of Livingstone Kakooza vs. Uganda (supra) where the
appellant had been convicted of manslaughter it was held that
section 49(7) of the Prisons Act (which is now section 86(3))

20 provides that imprisonment for life shall be deemed to be 20 years
and that since the accused had been on remand for two years the
sentence of 18 years imposed on him by court amounted to life
imprisonment. The court reduced the sentence from 18 years to 10
years imprisonment.

25 In Tigo Stephen vs. Uganda (supra) this court held as follows:

"We hold that life imprisonment means imprisonment for
the natural life [whole life] term of a convict, though the

[10]

5 actual period of imprisonment may stand reduced on
account of remission earned.

We note that in many cases in Uganda, courts have
imposed specific terms of imprisonment beyond twenty
years instead of imposing life imprisonment. It would be .

10 absurd if these terms of imprisonment were held to be
more severe than life imprisonment."

In terms of severity of punishment in our penal laws a sentence of
life imprisonment comes next to the death sentence which is still
enforceable under our penal laws.

15 However, following the case of Attorney General vs. Susan Kigula,
Constitutional Appeal No. 03 of 2005, which declared a mandatory
death sentence to be unconstitutional though it remains the
maximum sentence for capital offences, courts have not found it
necessary to pass death sentences on convicts. Courts have instead

20 opted to pass sentences of terms of imprisonment of well above 20
years in respect of offences which formerly attracted a mandatory
death sentence.

Section 86 (3) of the Prisons Act deems a sentence of life
imprisonment to be 20 years for purposes of remission. If life
imprisonment is the highest sentence only next to a death sentence,
where then do sentences of above 20 years imprisonment fall?

[11]

5 We are of the View that sentences of more than 20 years
imprisonment for capital offences cannot be said to be illegal
because they are less than the maximum sentence which is death.
Courts have power to pass appropriate sentences as long as they do
not exceed the maximum sentences provided by law. Article 28(8) of

10 the Constitution provides that "no penalty shall be imposed for a
criminal offence that is severer in degree or description than the
maximum that could have been imposed for that offence at the time
when it was committed". The maximum sentence for the offence of
aggravated defilement is death.

15 If counsel for the appellant's argument was to be accepted, all
custodial sentences would not exceed 20 years' imprisonment. And
with remission for good behavior under the Prisons Act, convicts for
capital offences who are not sentenced to death would serve a
sentence of only 13 years imprisonment. This, in our view, would be

20 inconsistent with the proper administration of justice under Article
126(1) of the Constitution which requires courts to administer
judicial power in conformity with the law and with the values,
norms and aspirations of the people.

This is not to say, however, that the irrational situation presented

25 by section 86(3) of the Prisons Act which deems life imprisonment
to be 20 years imprisonment should be left to remain on our statute
books. We think Parliament should as a matter of urgency amend
this law to bring it in conformity with the new trend of sentencing.

[12]

- .

5 We agree with learned counsel for the respondent that the sentence
of 22 years imprisonment passed by the trial court on the appellant
is not illegal since it is less than the death sentence which is the
maximum sentence provided for the offence of aggravated
defilement.

10 We have noted with concern failure by counsel for the appellant
who was on state brief in the Court of Appeal to raise a ground of
appeal on sentence in the memorandum of appeal he prepared and
filed in that court. Counsel Henry Kunya who represented the
appellant in this court attributed the omission to do so on the

15 mistake of the appellant's counsel in the Court of Appeal. The Court
of Appeal was unable to consider the appropriateness of the
sentence of 22 years imprisonment passed by the trial judge against
the appellant because no ground of appeal had been raised In
connection with the sentence. We think this was dereliction of

20 professional duty by the appellant's counsel. All counsel, even on
state brief, must always take their professional duties seriously and
not let down their clients.

Be that as it may, section 5(3) of the Judicature Act does not allow
an appellant to appeal to this court on severity of sentence. It allows
him or her to appeal against sentence only on a matter of law. And
since we have held that a sentence of 22 years imprisonment is not
illegal, we cannot interfere with it.

Accordingly this ground must fail.

[13]

• f
..

"

..•.

5 In the result, this appeal is dismissed.

Dated at Kampala this 20t day of .. September 2017