[1993] UGSC 57

### IN THE SUPREME C-.'URT OF UGaND^h

## AT MENGO

CORAH: MMBUZI, C. J., ODER, J. S. C. AND PLATT, J. S. C.

CRIMINAL APPEAL NO.34 OF ¹⁹⁹¹ ----- ------- ------ ---------,

## B E T 7/ E E N

1.-

ABDALLA MUKASA APPELLANT

# AND

UGANDA RESPONDENT

(Appeal against conviction and sentence of the High Court decision holden at Hoima (Hon. Mr. Justice C. M., Kato) dated 14th November 1991)

I N

HIGH COURT CRIMINAL SESSION CaSE NO. 13/1990

## JUDGMENT OF JTHE QOURT

According to the witnesses Swaibu Majwara and Muzamil Rusiba (P. W. S 5 & 7), there were two incidents which might have separate houses^ Swaibu Majarwa in his own house, from which Shs.55t6OO/- and one radio cassette had been stolen; and The Prosecution was based on the alleged aggravated robbery in the house of Swaibu Majwara, while the events in which Muzamil played a part linked up with those in Swaibu'^s house. Consequently, the events concerning Muzamil were used as corroborating the Muzamil Rusiba in the house of his father Habibu Byarukeke, and from the latter's shop was stolen, money and shop goods. attracted charges of aggravated robbery contrary to Sections 272 & 273(2) of the Penal Code Act. eThe witnesses were in

2 /evidence

>• •j

alibi defence, the learned The facts upon which the were as follows. evidence of Swaibu. Despite an Judge, in a well composed judgment, convicted the Appellant charged and sentenced him to death. of aggravated robbery as learned Judge based the conviction

The with an attack on the house when Swaibu's wife Jaweria Nakayira (P.vV.6) was taken from her kitchen to the main house, under the arrest of her nephew the Jaweria was held at sitting on a mat. The Appellant demanded money while pointing a big gun at the witness. The latter took Shs.10,000/= out of a bag. Mort money was demanded from the sale of coffee. There was an argument and one of the men in army uniform fired a bullet, which passed Swaibu's shoulder. gave to the Appellant. cassette . on the table • They went out telling Swaibu to close the doOi • All this time, there was the room. At that, he got up and got a further shillings ^5,000/= which he also events of the night of 21st April, 1988 commenced of Swaibu Majwara at about 8 p-m. Then one of the men in uniform picked up the radio a tadoba lamp burning inside Appellant and two men in army uniform. gun-point. Swaibu was carrying out his evening prayers whilst

After a few minutes, the intruders returned to the back He did so. they The intruders awoke Muzamil, and shop. When the Appellant and men in uniform reached there, ordered Swaibu to lie down. door and asked Swaibu to lead them to his father's

**1**

3 / ordered

ordered him to light a tadoba lamp. They took the tin in the shop, with the cash taken that day. Majwara was brought but ordered to lie face downwards. The intruders took what they wanted from the shop and put those things in a bag. Swaibu Majwara was ordered to carry the bag. The intruders fired another bullet. They set off on a walk which Majwara described as being seven miles long towards rlubende. At length they reached a certain shop where the bag was given to the night watchman. Swaibu was released. Another bullet was fired. Swaibu reached home safely.

*5*

The following day, Swaibu says tnat he reported the matter to the R. C. Chairman, and eventully to the Police of Kibale. He did not make a report to the local people in case they alerted the Appellant and he disappeared. In fact he was not arrested until 14th May 1988. The R. C, Secretary for defence radio cassette and a new bicycle. These were seied. They were not part of the stolen property. went to his home and they found the Appellant there with a new

The Appellant's alibi was that gone to Wakayiwa, to the home of Saiti Mabirizi to assist with erring an insane person. He cured the patient and was paid shillings 80,000/=. He used this money to buy the new radio and bicycle for a total of shillings 48,000/=. Then he left with these things and returned home. was arrested on suspision of stealing Swaibu's property. He was detained in prison and the radio cassette and bicycle have never been returned to him. He alleged that Swaibu and his wife had a grudge against him, ^e on 21st April 1988 he had

Swaibu how to become ^a native doctor. because he refused to teach followed his family in giving Of course Muzamil ^a young boy evidence against the Appellant.

it

been a threat to use a deadly weapon, whether there had been grave discrepancies? The most important ground turned on the identification of the Appellant and the rejecting of his alibi defence and allegation of a grudge\* In the amended memorandum of appeal, were raised whether there had been a theft, whether there had a number of issues

We bear in mind the duty of this Court to consider all ^> the evidence afresh in the light of the findings of fact by the learned Judge and the Assessors.

The first Assessor Barongo advised that it was doubtful that the Appellant would have allowed himself to be so easily identified, and secondly his lame hand by the witnesses. Consequently he thought that the Appellant should be acquitted. On the other hand Mr. Nyakature held that the light in the house was sufficient for identification. The alleged grudge was a weak excuse, and it was known that relatives He advised that the Appellant be convicted as charged. was not properly identified or sons burn their fathers for material gain.

The essence of this appeal is whether-the evidence of Swaibu Majwar and his wife (P. Ws 5 & 6) and then that of the 15 years old Muzamil was reliable and found to be so beyond reasonable doubt as against the defence of the Appellant (grounds 3 & 4).

5 /On

He was wellknown to them all. There was father during the second episode. It can be seen from the facts set out.above, that this was a case of recognition in Swaibu's house, and in their father's shop (Swaibu & Muzamil being brothers) of related to them'. There was time; there were conversations; and there was the long walk in the moonlight afterwards while Swaibu carried the stolen property. a,lamp burning in Swaibu'^s house, On the side of the family of Swaibu (P. W.5)> the Appellant is the nephew of Swaibu's wife Jaweria (P. W.6), a person collaterally and one in the shop of Muzamil's

strong case; but it had drawbacks. The greatest of these were that; fristly, Muzamil boy of tender years in April 1988, and secondly that the consistency of Mwaibu's recognition of the Appellant, was not tested. Thirdly it is said that the Appellant was too well-known to risk being recognised. was a This appears to have been a

I

I

We would agree with Counsel for the Appellant that for corroboration of what he saw as a boy of 12 years of age. It can only be found in Swaibu's evidence. evidence when he testified, nevertheless, the Court should look Muzamil's evidence was such, that though admissible as affirmed

It is therefore important to examine Swaibu's evidence with the greatest care. It would have been prudent to show the consistency of his allegation against the Appellant. Swaibu alleged that he reported the next morning to the R. C. Chairman. The latter ought to have given evidence. It is evidence of the greatest value (sj»e R. V. Mohamed Bin Allui (19^2) 9SACA 72)•

Appellant ran away. However there is 1^th May 1988. The evidence of the Appellant'^s arrest on Appellant said that this occurred when he had returned home after visiting Haiti Mabirizi. He had been at Haiti'^s house The defence explains the reason why the Appellant's arrest was delayed. But there remains a gap as to what the first report was, and this is a matter which neither the learned Judge nor the Assessors'concentrated on. The learned Judge should add the first report to the list of aspects of nition. on 21st April 1988. Chairman's corroboration of that reaction. identification to be considered when testing evidence of recog- (See Turnbull Vs *R* (1976), 63 Cr. App. B. 132; (1976 3W. L. R. 445); (1976) 3ALL.549. A general report was not made, Swaibu explained, in case the It would have been proper to have had the

neighbours ought to have heard the shots fired. Perhaps even the local authorities knew of this matter. whether any of this evidence existed. It cannot be said now When looking for corroboration, it was said that the

different aspect of testing the recognition of the Appellant, it is asserted that his identification ought to have included the fact that his hand is lame. It would have precluded his having taken part in the robbery aS alleged. This matter was not put by the defence to any of the witnesses and finally it was not relied on in the defence statement. But it **wae put** *to* **Jaweria (P. W.6), She demonstrated according to the** Judge how the Appellant held her with one lame hand and held the gun in the other. We looked at the 'Appellant's hand and On a

saw the arm function. evidence must have ruled out any serious impediment to the Appellant. as far as Muzamil is concerned he was asked apparently to describe the But it was not so much a question of what the lame hand looked like as what it could or could not do. Had this been a serious objection, we have no doubt that the Appellant would have stated in his defence that he could not possibly have done what was alleged. We can therefore understand that Jaweria's Appellant's hands, and could not do so.

Looking at all the evidence, there is the strong evidence of Swaibu, borne out by his wife Jaweria that the Appellant, brazenly played a leading role in this robbery, risking easy recognition. This evidence would corroborate that of Muzamil. Bearing in mind, however, that its consistency was not tested, it must be weighed against the alibi defence of the Appellant. The Appellant says that the evidence against him, is due to a grudge. We cannot think that this particular grudge could be the cause of manufacturing this whole case against the Appellant. In the end, we have reached the conclusion that there was admissible evidence for the prosecution which if weighed V together with the defence could have been accepted by the Judge and one Assessor that the Appellant was playing the leading role in this attack on Swaibu, beyond reasonable doubt. We are satisfied that at the present time, the risk' of easy identification is often taken by accused persons to satisfy their greed. That being so, then grounds 4 and 5 have been disposed of> Of less difficulty are grounds ¹ and 2 which questioned whether there was a theft, and whether a deadly weapon had been used to

8 /threaten

There was certainly a threaten Swaibu are of no great merit. . This gang him to produce the coffee money olearly acted with common intention to rob Swaibu using a threat. The bullet which passed over Swaibu's shillings 45,OCO/=. deadly weapon as a was fired several times. theft on Swaibu's evidence, and a gun shoulder effectively got

Consequently the appeal against conviction must fail. While the sentence is that prescribed by law, its legality depends upon the age of the Appellant. Doctor Gombi Osinga "of the apparent age of 20" on the 25th July 1988. The robbery occurred in April 1988. The Appellant ^th November 199\*1 • But we should age is near the Doctor ought to be called to give evidence to test the tolerances of age observed by the Doctor. means. Indeed it would be clarified what an "apparent age" perhaps observe that whenever an accused person's It would follow that the Appellant must have been over the age of 18 years, when the robbery was committed. himself stated that he was 25 years old on the limit of 18 years, found that he was Mus or minus six months might make a difference in some cases. over 18 years of age at the time of the offence charged. However, we are satisfied in this case that the Appellant was

The appeal is therefore dismissed.

I

9 /Delivered

Delivered at Mengo this 19th day of January 1993.

S. VGW, flambuzi CHIEF JUSTICE

A. H. Oo Oder JUSTICE OF THE SUPREME COURT

H. G. Platt JUSTICE OF THE SUPREME COURT.

I certify that this is a true copy of the original.

B. F. B. BABIGUMIRA REGISTRAR, SUPREME COURT.