Court name
Supreme Court of Uganda
Judgment date
20 September 2017

Okello Geoffrey v Uganda (Criminal Appeal-2014/34) [2017] UGSC 37 (20 September 2017);

Cite this case
[2017] UGSC 37
Coram
Katureebe, CJ
Tumwesigye, JSC
Kisaakye, JSC
Arach Amoko, JSC
Tibatemwa-Ekirikubinza, JSC

 

 

 

 

 

 

THE REPUBLIC OF UGANDA

 

 

 

IN THE SUPREME COURT OF UGANDA
AT KAMPALA

(CORAM: KATUREEBE;C.J;TUMWESIGYE;KISAAKYE;
ARACH-AMOKO;TIBATEMWA-EKIRIKUBINZA;

                       J.J.S.C.)

CRIMINAL APPEAL NO.34 OF 2014
BETWEEN

OKELLO GEOFFREY :::::::::::::::::::::::::::::::::: APPELLANT

 

 

 

 

 

 

 

AND

U

                                                                              GANDA      RESPONDENT

••••••••••••••••••••••••••••••••••••••••••

[Appeal from the decision of the Court of Appeal at Kampala (Kavuma, Mwangusya and
Bossa, JJA)
dated 18th March, 2014 in Criminal Appeal No. 329 of 2010]

JUDGMENT OF THE COURT

 

 

 

Okello Geoffrey, the appellant, was indicted for the offence of
aggravated defilement contrary to Section 129(3), (4) (c) of the Penal
Code Act
. The particulars of the offence were that between
December 2008 and January
, 2009, the appellant being a person of

          authority at Latai Primary School performed a sexual act with
Akwero Sarah, a girl below the age of 18 years. On 30
th November,
2010 he was convicted by the High court (Kasule, J
,) (as he then
was) and sentenced to a term of 22 years
imprisonment. He

 

_.

 

 

              appealed to the Court of Appeal which upheld his conviction and
sentence
, hence this appeal.

Background

Akwero Sarah (PW 1) was a primary school pupil at Latai Primary
School where the appellant worked as a teacher. She resided with

 her mother Ayiko Margaret (PW2) near Latai Primary School in
 Acholi bur sub county in Pader District. The appellant resided at
the school
. He had met Akwero Sarah (PWl) five months before his
arrest and in his words "I had love for her." He started a

\ relationship with her which developed into a sexual relationship,

 and when her mother (PW2) got to know of it, she warned the

<'                     appellant to keep off her daughter as she was still young. The
appellantis said to have stopped having a sexual relationship with
Akwero Sarah but that he later resumed the affair.

 During the night of 20th March, 2009 while Akwero Sarah was at

               home, Okello Lameck, appellant's friend, came and told her that the
appellant wanted to meet her at his house
. She immediately
disappeared from the house and went to meet the appellant who
was waiting for her on the road nearby
. When the two met, they
proceeded
to the school where they were met by the headmaster

 who asked them what they were doing in the school compound at
that hour, and accused them of having a sexual relationship which
 they both denied.

 

[2]

 

             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

 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

 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
 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

                          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
by Mr. Brian George Kalinaki, Principal State Attorney. B
oth
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

           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

          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

         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]

 

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

            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

           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,

          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

 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]

 

· - '

 

 

         There is evidence from PW 4, the headmaster of the primary school,
that when he saw the appellant with PW1 in the compound of the
school at about 10:00 p
.m., he took them to his house where he
called LC 1 Chairperson and LC 1 Deputy Chairperson and other
people, and that both the appellant and PW1 admitted to have had

 a sexual relationship.

The appellant admitted that he was in love with PWI but denied
that he had any sexual relationship with her. The trial judge who
had opportunity to observe the demeanour of PW1 and that of the
appellant did not believe him. He believed PW 1 instead
. The Court

        of Appeal agreed with the trial court that there was sufficient
evidence that PW 1 and the appellant had had a sexual relationship.
We find no sound reason to fault their finding
.

Counsel for the appellant questioned PW 1’s credibility because
according to counsel during her cross examination PW 1 stated that

             she did not report her sexual encounters with the appellant yet she
had also earlier testified that she had told her brother (PW3) that
she had had sex with the appellant. We do not agree with counsel
that PW 1 contradicted herself when she stated on one hand that
she did not report her sexual encounters with the appellant and on

            the other that she told her brother about it. Her brother (PW3) had
confronted her and demanded to know whether she had had sex
with the appellant
. She admitted it. This in our view was not
"reporting
" and should not be used as a basis for questioning her
credibility
.

[6]

 

            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

            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

           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

                          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]

 

             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 m
emorandum of appeal" and rule 63(3) provides

           that "Any person lodging a supplementary memorandum under
this ru
le 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

          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

          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]

 

            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

 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

 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

         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

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

[9]

 

             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

           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

 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))

         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
.

 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]

 

                       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
.

                           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 sti
ll
enforceable under our penal laws.

           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

          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]

 

             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

            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.

           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

           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

          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]

 

 

- .

 

                 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.

               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

              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

             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
..

 

"

..•.

 

 In the result, this appeal is dismissed.

 

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

 

 

 

                       

 

 

 

 

 

 

 

 

 

 

 

                 BART M. KATUREEBE

               CHIEF JUSTICE

 

 

 

 

 

 

JOTHAM TUMWESIGYE

JUSTICE OF THE SUPREME COURT

 

 

 

Dr. Esther Kisaakye
JUSTICE OF THE SUPREME COURT

 

 

Arach - Amoko

JUSTICE OF THE SUPREME COURT

 

 

 

Prof. Lillian Tibatemwa-Ekirikubinza
JUSTICE OF THE SUPREME COURT

 

[14]