THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT GULU

VERSUS

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

Before: Hon Justice Stephen Mubiru.

JUDGMENT
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In the Court below, the appellant was charged with two counts of threatening violence C/s 81 (a)
of The Penal Code Act. In the first count, it was alleged that on 8th September, 2013 at Acholi
Inn, the appellant with intent to annoy and intimidate her, threatened to assault Caroline Ward. In
the second count, it was alleged that on the same day and at the same place, with intent to annoy
20 and intimidate her, the appellant threatened to assault Lisa Coggin.

The prosecution case was briefly that the two complainants had convened a Board meeting of
"Favour of God Church" at the above mentioned venue. The appellant went to the table where
they were seated and in a fit of rage, slammed the table, flipped it over, picked a laptop of
25 Caroline Ward and raised it above her head threatening to hit her with it, all the while shouting
threats and demanding for his property. The husband of Lisa Coggin, P.W.4 Keith Coggin
intervened and restrained the appellant. The appellant continued to utter threats directed at
Caroline Ward to spill her blood and kill her. The two, Caroline Ward and Lisa Coggin fled and
locked themselves in a toilet. In his defence, the appellant stated that it is Caroline Ward who
30 called him to that meeting. He never got anywhere close to the table. He politely asked Caroline
Ward to give him his passport and when she refused, he walked away. He sought the intervention
of the then L.C.5 Chairman to mediate.

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 P.W.1 Lisa Coggin, testified that the appellant met and threatened her and P.W.5 as stated in the
charge sheet. He began by pulling a chair and joining them at the table. He began talking to
P.W.5 harshly demining for his property and then slammed his hand onto the table. He pointed to
a laptop P.W.5 had and claimed it to be his. He raise it above the head of P.W.5 and threatened
5 to hit her with it. When she intervened, the appellant turned to her and threatened to hit her with
it as well. She screamed attracting the attention of onlookers which forced the appellant to slam
the laptop on the table, scattering all items that were on the table in the process. He then told
P.W.1 "I am going to kill you," which utterance cause P.W.3 to intervene and restrain him. Two
other men intervene and attempting to calm him down but in a fit of rage he picked a plastic
10 chair and slammed it down breaking it to pieces saying, "blood is going to be spilled." The
Manager of the Hotel called the police. She rushed P.W.5 to the safety of the bathroom.

P.W.2 Betty Okello narrated the same story only adding that the appellant is the husband of
P.W.5 and a former Board member of "Favour of God Church." There was disharmony in the
15 leadership of the Church and that meeting was intended to re-establish harmony. The appellant
interrupted the meeting in that violent manner. P.W.3 Okello Alfred narrated the same story only
adding that the appellant was not a member of the Board of the Church but only part of its
Management. When he came to the meeting, he was demanding for his passport from P.W5. The
appellant was so violent ahs he participated in restraining him. In the meantime, P.W.5 ran to the
20 toilet for her safety. The police later came and arrested the appellant. P.W.4 Keith Coggin too
narrated more or less the same story and added that he was waiting from a vehicle parked at that
hotel when his wife, P.W.1, called him and told him that the appellant was in a fit of rage. He
rushed to the scene and tried to restrain the appellant. When the two victims ran to the safety if
the washrooms, the witness stood outside guarding them until the police arrived.
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P.W.5 Caroline Ward, testified that the appellant was an employee of that Church before his
services were terminated by the Board. The test of his narration as to how the events unfolded is
similar to what the other witnesses told court. She was so terrified by the appellant's conduct that
evening that she ran to the safety of the toilets. She had to be escorted out of the hotel later and
30 was too afraid to return to the home of the appellant. She spent the night at a guest house.

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 P.W.6 SP Denis Odoch testified that he was called to the scene after the commotion. He escorted
the two victims from the scene.

In his defence, the appellant testified that P.W.5 is his wife but he never committed any of the
5 offence charged. He only went to pick his passport, Academic documents and other documents
relating to land, from P.W.5 which were given to him the following day. She found the two
victims at a Board meeting but he did not demand for the passport acrimoniously but rather in a
cordial manner. P.W.5 claimed to have had the passport in her handbag and pretended to be
walking towards the Hotel Counter and he never saw her again. The following day P.W.5 was
10 called to the same venue and through the mediation of the L.C.5 Chairman she returned the
passport to him. In her e-mail to him later, P.W.5 expressed her profound love to him and never
adverted to any threat to assault her.

In his judgment, the trial magistrate found that the identify of the appellant was not in question.
15 He was very well know to the witnesses and the offence was committed in the early evening
hours before nightfall. The accused himself admitted having been at the scene. The prosecution
witnesses gave an eyewitness account in graphic detail as to how the supplant raised a laptop and
threatened to hit the two victims with it. He had to be restrained to prevent him from doing so.
He did not only raise the laptop but he uttered threats to hurt the two victims. The appellant's
20 account of the events in implausible. The conduct of the accused constituted the elements of the
offences he was charged with. He was convicted and sentenced to serve two years and six
months' imprisonment on each count, both sentences running concurrently.

The appellant was dissatisfied with the decision and appealed to this court on the following
25 grounds, namely;
1. The learned trial Chief Magistrate failed to properly consider the evidence before him
and therefore arrived at several wrong conclusions of facts contrary to the truth of the
matter thus occasioning a miscarriage of justice.
2. The learned trial Chief Magistrate was utterly biased against the accused and made
30 several rejections of credible evidence that would be in favour of the accused / appellant
thus occasioning a miscarriage of justice.

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 3. The learned trial Chief Magistrate erred in law and in fact when he concluded that the
prosecution proved beyond reasonable doubt that the accused threatened violence as
charged thus occasioning a miscarriage of justice.
4. The learned trial Chief Magistrate erred in law and fact when he ignored crucial instances
5 of evidence that would clearly show that the accused / appellant never could have
committed the offences charged.
5. The learned trial Chief Magistrate erred in law and fact when he awarded a custodial
sentence against the appellant given the circumstances of the case.

10 In their written submissions, Counsel for the appellant, M/s Latigo & Co. Advocates, combining
grounds 1, 2, 3, and 4 argued that the appellant only attempted to pick a bag from P.W.5 because
his passport was kept there and he had an imminent journey to Australia. The lighting at the time
was poor. The appellant had no intention to annoy any of the victims. He asked for his passport
politely. The fact that P.W.1 was able to make a phone call to her husband and that P.W.5 had to
15 be advised to run away before she did, is an indication that none of them was threatened.
Moreover the case was inexplicably reported two years later. With regard ground 5, she
submitted that the custodial sentence was unwarranted, harsh and excessive given the nature of
the offence. The period of remand not taken into account. Caution would have been an
appropriate sentence. He had served six months before grant of bail.
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In reply, the Senior Resident Senior State Attorney submitted in respect of grounds 1 and 2 that
the complaint is that the elements of the two counts are the same but with different complainants.
In count one, P.W.5 and in count two, P.W.1. Their evidence at page 37 - 39 is that on that day
they were at a holding meeting at Acholi Inn Hotel when the appellant came to where they were
25 meeting under a tree, looked angry, yelling and screaming at them and slammed his fist on the
table. He flipped the table over scattering all item that were on the table. He picked a computer
and raised it high over the head of P.W.5 in order to smash her head. P.W.1 came in between and
the accused turned against her in a similar fashion. The husband of P.W.1 who testified as P.W.4
came from the parking yard an tried to restrain the appellant. He uttered word that he was to shed
30 blood that night and that he would kill her. P.W.5 and P.W.1. fled to the toilets for over two

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 hours and later spent the night in a guest a house which she left the following day to travel to the
USA.
Intention to intimidate or annoy is evinced by the testimony of all the prosecution witnesses.
There is direct evidence of eyewitnesses; as to threat to injure, it must be immediate or eminent.
5 He was physically in their presence. They were all in close physical proximity. The threat
combined conduct and utterances. The complainant looked terrified. There is no possibility of
mistaken identification. They all knew him very well. It was at around 6.00 - 8.00 pm and there
was visual and audio identification. He placed himself at the scene in his defence. At page 9 - 10
of the judgment, the trial magistrate said there was no reason to frame the appellant as none of
10 them had a grudge against him. There is no legal justification for the appellant's conduct. He said
he had gone to retrieve his passport. It is not a justification to using violence.

Regarding sentence, the maximum sentence is four-years' imprisonment. While sentencing the
appellant at page 14 - 16, the magistrate considered the relevant factors and sentenced him to two
15 years and six months on each count to run concurrently. Under s. 75 (1) of the Magistrates
Courts Act the sentences are meant to run consecutively. The magistrate exercised his discretion
and cannot be faulted. The sentence is lawful and reasonable. I pray that the appeal be dismissed.

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to an
20 exhaustive scrutiny and draw its own inferences of fact, to facilitate its coming to its own
independent conclusion, as to whether or not, the decision of the trial court can be sustained (see
Bogere Moses v. Uganda S. C. Criminal Appeal No.1 of 1997 and Kifamunte Henry v. Uganda,
S. C. Criminal Appeal No.10 of 1997, where it was held that: “the first appellate Court has a duty
to review the evidence and reconsider the materials before the trial judge. The appellate Court
25 must then make up its own mind, not disregarding the judgment appealed against, but carefully
weighing and considering it”). An appellant on a first appeal is entitled to expect the evidence as
a whole to be submitted to a fresh and exhaustive examination, (see Pandya v. Republic [1957]
EA. 336) and the appellate court’s own decision on the evidence. The first appellate court must
itself weigh conflicting evidence and draw its own conclusion (see Shantilal M. Ruwala v. R.
30 [1957] EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence
to see if there was some evidence to support the lower court’s finding and conclusion; it must

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 make its own findings and draw its own conclusions. Only then can it decide whether the
magistrate’s findings should be supported. In doing so, it should make allowance for the fact
that the trial court has had the advantage of hearing and seeing the witnesses, (see Peters v.
Sunday Post [1958] E.A 424).
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With regard to grounds 1, 2, 3, and 4, under section 81 (a) of The Penal Code Act, the offence is
committed by any person who with intent to intimidate or annoy any person, threatens to injure,
assault, shoot or kill any person, or to burn, break or injure any property. Mere words are not
enough; it is constituted by utterances coupled with actions causing imminent threat of harm (see
10 Mugyenyi James v. Uganda [1974] H.C.B 83 and Uganda v. Racham Daniel [1977] 52). There
must be a threat to assault coupled with intention to intimidate (see Ofwono Benedicto v. Uganda
[1977] H.C.B 210). it must be shown that words were uttered or that at least there were gestures
made that could clearly be interpreted as a threat (see Uganda v. Onyabo Stephen and three
others [1979]H.C.B39).The intention to intimidate may be gathered from the utterances,
15 conduct, and surrounding circumstances (see Uganda v. No.39 PC Lochoro [1982] H.C.B. 80).

The evidence of the three witnesses being in the nature of visual identification, the court had to
determine whether or not these identifying witnesses were able to recognise the appellant. In
circumstances of this nature, the court is required to first warn itself of the likely dangers of
20 acting on such evidence and only do so after being satisfied that correct identification was made
which is free of error or mistake (see Abdalla Bin Wendo v. R (1953) 20 EACA 106; Roria v. R
[1967] EA 583 and Abdalla Nabulere and two others v. Uganda [1975] HCB 77).

In doing so, the court considers; whether the witnesses were familiar with the offender, whether
25 there was light to aid visual identification, the length of time taken by the witnesses to observe
and identify the offender and the proximity of the witnesses to the offender at the time of
observing him. As regards familiarity, the three identifying witnesses knew the appellant prior to
the incident. In terms of proximity, the offender was relatively close to them as only a few
metres separated them. In terms of light, the confrontation occurred at 5.00 pm, in broad day
30 light and their vision was not impeded or obstructed. As regards duration, each took a reasonable
period of time, long enough a period to aid correct identification. None of the witnesses was

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 motivated by malice or grudge to implicate the appellant, since none was advanced in the
appellant's defence. I find that he was properly recognised that that the prosecution evidence
effectively disproved the appellant's defence. An act which causes another person to apprehend
immediate and unlawful violence of itself constitutes a threat. Raising a laptop above the head of
5 another while uttering threats of death constitutes a threat of violence. I find no merit in the
appeal against conviction.

As regard the appeal against sentence, the law is that an appellate Court is not to interfere with
sentence imposed by a trial court which has exercised its discretion on sentence unless the
10 exercise of the discretion is such that it results in the sentence imposed to be manifestly
excessive or so low as to amount to a miscarriage of justice or where a trial court ignore to
consider an important matter or circumstances which ought to be considered when passing the
sentence or where the sentence imposed is wrong in principle (see Kiwalabye Bernard v.
Uganda, S. C. Criminal Appeal No. 143 of 2011). Under section 81 of The Penal Code Act, the
15 maximum punishment for the offence is four years' imprisonment.

Under section 162 (1) (a) of The Magistrates Courts Act, a Chief Magistrate may pass any
sentence authorised by law. The principle of proportionality requires that a sentence should not
exceed what is just and appropriate in light of the moral blameworthiness of the offender and the
20 gravity of the offence. I have considered the sentence imposed by the trial court. It is on the face
of it a lawful sentence passed within the range of the court’s sentencing powers as regulated by
section 162 of The Magistrates Courts Act.

When sentencing the appellant, the trial magistrate took into account both the aggravating and
25 mitigating factors submitted to him. As long as the trial court considered the proper factors and
the sentence is within the statutory limits, the appellate court will not set it aside unless it is so
excessive as to shock the public conscience. A sentence will be considered harsh and excessive if
it has the tendency to shock public sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances of the case. Having found that the
30 sentence imposed in the instant case is legal and is not so disproportionate to the offense
committed as to shock the public sentiment and violate the judgment of reasonable people. I have

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 not found any reason to interfere with it. It was a fitting penalty for the offence. It is not
excessive in light of the facts of the case.

In the final result, I do not find any merit in the appeal and it is accordingly dismissed. The
5 appellant's bail is cancelled and he is to return to prison custody to serve the rest of his sentence.

Dated at Gulu this 6th day of December, 2018 …………………………………..