[2002] UGSC 46

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## AT MENGO

## (CORAM: ODOKI C. J; ODER J. S. C; TSEKOOKO J. S. C; MULENGA J. S. C AND KANYEIHAMBA J. S. C.)

## CRIMINAL APPEAL NO. 16 OF 2000

### BETWEEN

# KAMYA JOHNSON WAVAMUNO ::::::::::::::::::::::::::::::::::::

#### UGANDA ::::::::::::::: **RESPONDENT**

[Appeal from the judgment of the Court of Appeal at Kampala (Manyindo DCJ, Berko JA and Twinomujuni JA.) in Criminal Appeal No.2 of 1999 from original High Court Criminal Session Case No.437 of 1997]]

## JUDGMENT OF THE COURT

The appellant and two others were convicted by the High Court at Kampala (Byamugisha J) of murder contrary to Section 183 of the Penal Code and robbery contrary to Sections 272 and 273 (2) of the same code. They were sentenced to death. They appealed to the Court of Appeal which allowed the appeals of the other two appellants but dismissed the appeal against the conviction and sentence of the appellant. The appellant now appeals to this Court against the decision of the Court of Appeal.

The facts as found by the Courts below were as follows. On 29 February 1996 at 10.30 a.m., three officials of Barclays Bank, namely Ngobi Patrick (PW 1); Abu Mayanja and Joseph Semakula left Kampala for Entebbe Airport in a Land Rover Registration No. UPN 327. The purpose of the journey was to collect a consignment of US Dollars coming from the United Kingdom by a British Airways

plane. The Bank Officials were accompanied by two policemen, namely pC Wodulo and Cpl. Kahwa.

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when the prane arrived the Bank officiars coilected four seared parcers and roaded them into the Land Rover. on their way back to Kampara at a prace known as Kitoro, two men in miritary uniform and armed with guns stopped the vehicre which had apparenfly slowed down because of humps at that part of the road. The armed men started asking questions and in the process shot at pc Wodulo and disarmed Cpl. Kahwa. The others in the vehicle ran in disarray and took cover. After the armed men had gone, the Bank officiars returned to the scene and found that two of the four parcels had been stolen. The matter was O reported to the porice at Entebbe. Efiorts to chase the robbers yielded no results. None of the armed men had been recognized during the robbery.

On the same day, the Land Rover was found by the Mpigi police with some of the parcels in it. one of the parcers was seared whirst the others were open. The parcels were brought to the centrar police station, Kampara. The porice at Kampala handed to a Bank officiar pw1 cash of us \$i30,000 and a seared parcel, which was found to contain us \$130,000. on or about the 5 March 1996, the second and third accused were arrested and extradited from Kenya in May 1998 and charged with murder and robbery.

O rhe prosecution case against the appeilant was that he masterminded the plan to rob the Barclays Bank of some amount in us dollars, which the Bank was expecting, from the United Kingdom. He enlisted the services of the other two accused persons and others stil at rarge. The pran was carried out on ²⁹ February 1996. They succeeded in robbing us \$240,000. During the robbery ^a policeman was shot and kiiled. About four days rater, some of the storen doilars were found in his possession. The cases against the second and third accused rested solely on their alleged confessions.

At the trial the appellant relied on the defence of alibi. In his unsworn statement, he stated that he left Uganda on 26 February 1996 and went to Kenya through Malaba border post. He returned to Uganda on 2 March 1996. After staying for five days in Uganda he travelled to Germany on 6 March 1996 to attend an exhibition in Berlin. He arrived in Berlin on 7 March 1996. After the exhibition. which lasted two and a half weeks, he went and stayed with Dr. Ahamad for three weeks. He stated that he was a diabetic patient. Dr. Ahamad referred him to Guy's Hospital in London where he was admitted for three months whilst undergoing treatment for diabetes. When he stablised, he rented a house in London and started exporting fridges with an English partner called Anchor. On 24 March 1997 he returned to Kenya and was again hospitalised on account of diabetes. He was arrested in the middle of May 1997 and brought to Kampala. He denied the charges.

The learned trial judge accepted the prosecution's evidence. She found the alibi of the appellant false and rejected it. She also found that the appellant was found in possession of recently stolen dollars and found him guilty on the basis of the doctrine of recent possession.

The appellant appealed to the Court of Appeal complaining of the trial judge's failure to accept the appellant's alibi, of holding that the appellant was found in possession of US \$10,000, of relying on the extra judicial statement of his coaccused and of failure to grant an adjournment to enable him to call his witness. The Court of Appeal dismissed the appeal.

In his appeal to this Court, two memoranda of appeal were filed on behalf of the appellant. The first memorandum of appeal dated 27 February 2001 was filed by M/S. Kawanga and Kasule Advocates. The second Memorandum was dated 13 March 2001 was filed by M/S. Ayigihugu and Co Advocates. The appellant was represented by Mr. Ayigihugu and Mr. Kasule as well as Mr. Kabega in this appeal. The two Memoranda were consolidated. Mr Ayigihugu applied for leave

to substitute grounds one and two of his Memorandum for ground 4 of Mr. Kasule's Memorandum. We allowed the application.

The grounds of appeal are as follows:

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- 1 The Court of Appeal erred in law when it held that though the appellant had not been properly committed for trial to the High Court, the appellant,s kial by the High Court was proper and in accordance with the law and no miscarriage of justice had been caused. - The Court of Appeal erred in law when it failed to make a fresh reappraisal of the evidence adduced before the High Court and by reason of such ^a failure reached wrong conclusions appellant's appeal. leading to the dismissal of the 2 - The Court of Appeal erred in law when it maintained the appellant,s conviction on the basis of the doctrine of recent possession. - (a) The court of Appear ened in raw in fairing lo subject the evidence of PW 4 to fresh scrutiny and merely confirmed the holding of the trial judge that the apperrant owed a debt to pw 4 and that he paid it with storen dollars. 4.

(b) The court of Appeal ened in law in failing to evaluate the evidence of PW4 and confirmed the finding of the trial judge that the appeilant paid US Dollars 10,000 to pW4.

- The Court of Appeal ened in law and fact when it failed to resolve in favour of the appellant any doubts regarding the entries made in the appellant's passport. 5. - The court of Appear ened in raw when it failed to consider and subject the same to fresh appraisal evidence supporting the appellants alibi. 6

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7 The Court of Appeal erred in law when it held that the appellant had been given sufficient opportunity to call his defence witness and that no failure of justice had been occasioned to him.

On the first ground of appeal, Mr. Kasule one of the learned counsel for the appellant, submitted that the appellant was not properly committed to the High Court as required under Section 1634 of the Trial On lndictments Decree which provisions are mandatory. Counsel pointed out that in this case there was no indictment, no summary of the case and no police file. He argued that it was the duty of the magistrate to satisfy himself that the summary of the case gives the accused reasonable particulars of the offence, and to give a copy of the summary of the case to the accused. The magistrate must satisfy himself that the Director of Public Prosecutions (DPP) has complied with the provisions of the law before committing the accused to the High Court for trial. Once the above provisions are not complied with, counsel submitted, the magistrate must not commit the accused for trial, and if he does so, the committal is a nullity.

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Mr. Kasule referred to Section I of the Trial on lndictments Decree which provides that no person can be tried by the High court unless the provisions of the Magistrates Courts Act have been complied with. Learned counsel emphasized the word "cognisance" which is defined in Osborne.s Dictionary as meaning jurisdiction. He relied on a number of authorities, namely, R y Gee Bibby Dunscombe (1936) 2 KB 442, Kings v Phitips (1939) 1 KB 62, Androa Asenua v Uganda Cr. App No. 1 of 1998, lndian Criminal procedure Code 5.537, Halshurys Laws of England, Vol.9 P.3S0 Kamunya s/o Ndengwa v R (19U) 21 EACA 327, R v Singh (1934), 1 EACA 1 10 uganda v yonasani Lute, Cr. Sc. No. 456/68 1969 HCB, llganda v Augustino lsabirye, reported in Digest of Cases on Criminal Procedure, 1972.

Mr. Kasule submitted that the Court of Appeal did not consider the above authorities. He argued that the Court of Appeal erred in law in acknowledging

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that the provisions of Section 163A were not complied with but failing to hold that the committal was a nullity. He contended further that it was immaterial that there was no objection raised since failure to object does not turn a nullity into a legal action. He also submitted that pleading to the indictment in the High Court could not cure an illegality. He prayed that the ground be allowed and a retrial be ordered if the State wished to retry the appellant.

Mr. Byabakama, Senior Principal State Attorney, for the Respondent, supported the conviction. He conceded that certain requirements were not complied with particularly paragraphs (a), (b) and (c) of Section 163A (3). He pointed out that on 8 June 1998, the appellant was informed of the charge; on 21 August he was committed to the High Court and on 12 October 1998 he was indicted in the High Court. While conceding that the above procedure was irregular and contrary to the requirements of S, 163A, he submitted that the failure to comply with those provisions did not render the act of committing the appellant illegal.

Section 1 of the Trial on Indictments Decree 1971 provides,

"The High Court shall have jurisdiction to try any offence under any written law and pass any sentence authorized by law:

Provided that no criminal case shall be brought under the cognizance of the High Court for trial unless the accused person has been committed for trial to the High Court in accordance with the provisions of the Magistrates' Courts Act 1970."

The relevant provisions of the Magistrates' Courts Act are contained in Section 163A which states.

$"(1)$ When a person is charged in a Magistrates' Court with an offence to be tried by the High Court, the Director of Public Prosecutions shall file in the Magistrates' Court an indictment and a summary of the case signed by him or an officer authorized by him in that behalf acting in accordance with his general or special instructions.

- $(2)$ The summary of the case referred to in Sub-section (1) shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he is charged. - When a person charged with an offence to be tried by the High $(3)$ Court appears before a Magistrate and the Director of Public Prosecutions has complied with the provisions of Subsection (1) the Magistrate shall - - $(a)$ give to the accused person a copy of the indictment together with the summary of the case; - $(b)$ read out the indictment and the summary of the case and explain to him the nature of the accusation against him in a language he understands, and inform him that he is not required to plead to the indictment. - $(c)$ Commit him for trial by the High Court and transmit to the Registrar of the High Court copies of the indictment and of the summary of the case."

It was conceded by learned counsel for the State that the requirements in paragraphs (a) and (b) of Section 163A (3) of the trial on Indictments Decree, were not complied with.

At the time of trial in the High Court no objection was raised against the committal proceedings held in the **Magistrates'** Court. Nor did the error form any ground of appeal in the Court of Appeal. This is a very unsatisfactory state of affairs for the defence. Objections should be raised as early as possible so that errors can be dealt with and if possible redressed. The Court of Appeal was deprived of an opportunity to consider the matter. This Court will not ordinarily consider points of law not raised in the lower Courts. But since we allowed counsel to argue the point, which is of some importance, we have found it necessary to deal with it in some detail.

The record of committal proceedings in the Magistrates' Court reads as follows:

### $8/6/98$ A6 in Court Represented by Kabyesiza & Ojakoni Asst ASP (sic)

Court: c/s read and explained to the accused. Accused told not to plead as he was to be tried by the High Court.

<u>Prosecution</u>: Other accused were committed to the High Court. I pray accused be remanded pending his committal to High Court.

Counsel: Accused was charged with other accused in absentia. I pray he be committed too.

Court: Adjourned to 22/6/98. Prosecution to ensure that accused is committed promptly. Accused further remanded.

San $21/8/98$

$\mathcal{L}^{\mathcal{A}} = \mathcal{L}^{\mathcal{A}}$

Accused present Wagona for the state Mwangusha for the accused.

### The original file is in Court III.

Neither the court clerk nor the Magistrate is there. The other accused persons were already committed for trial. I wish to have this accused person (Kamya Johnson Wavamuno also committed).

Court A6 (Kamya Johnson) is committed for trial to the next convenient session of the High Court. He shall remain on remand until then. Sgn."

It is apparent from the above proceedings that neither the indictment nor the summary of the case were read to the accused before he was committed to the High Court for trial. The name of the appellant was not included on the indictment and summary of the case upon which the other accused were committed.

At the time of trial, however, an amended indictment and amended summary of the case were filed which included the name of the appellant together with the names of the other accused. The appellant was named accused number one (A1). When the case was first called for hearing on 5 October 98, the appellant was not present but the State Attorney applied for a hearing date on

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12 October 98 so that the State could summon witnesses and amend the indictment. On 12 October 98, the appellant was present in court with his counsel, the late Kabyesiza. Then the indictment was read and explained to the appellant and the other accused, who all pleaded not guilty. The hearing started the same day.

The issue is whether the committal proceedings in respect of the appellant were a nullity so as to vitiate proceedings in the High Court. In R v. Gee Bibby and Dunscombe (supra) the Court of Criminal Appeal held that the committal proceedings where the committing justices did not record down depositions from witnesses, but merely allowed the chief constable to examine witnesses from the type written statements were so defective that the appellants were not lawfully committed for trial in accordance with Section 17 of the Indictable Offences Act 1848 and Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933. The court held that there was a mistrial or no trial at all. We note that the provisions of these Statutes appear to be different from the provisions of our Magistrates' Courts Act and therefore the effect of non-compliance with particular requirements may not be similar. It seems that under the English Provisions, the bill of indictment is filed after the accused has been committed for trial. In the Supra Gee Case, the position was that there was objection to the committal proceedings before the Recorder which objection was rejected, unlike in the present case where there was no such objection.

In R v. Phillips and Quayle (supra), the second accused was jointly charged with the first accused after thirty-five witnesses had given their evidence at committal proceedings incriminating him. Their evidence was merely read to the accused and then the second accused was allowed to cross-examine the

witnesses whose evidence had been read. lt was held that the procedure was irregular and contrary to law, and grave enough to invalidate the committal. As the commiftal of the second accused was a nullity the conviction would be quashed. Again the legal requirements in Philtrps Case were different from those in the present case and therefore the case is distinguishable, and the authority inapplicable.

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ln Kamunyu s/o Ndegwa v. R (195a) 21 EACA 327, it was held that where a Magistrale holds a full preliminary inquiry in lieu of summarily committing an accused to trial under the Emergency (Criminal Trials) Regulations 1952, the proceedings are inegular, and if the accused is thereby prejudiced the irregularity is incurable.

ln that case the accused had not been prejudiced first because he had reserved his defence and secondly he received more information regarding the nature of the case against him than he would othenvise have had. The test in that case was whether prejudice to the accused had been occasioned.

ln Siagh v R (1956) 23 EACA 459 the Court of Appeal hetd that the Magistrate should not have commenced and held a preliminary inquiry in view of the accused's mental condition since he was incapable of understanding the proceedings due to serious injuries. lt held further that the preliminary inquiry was a nullity and so was the order of committal, and if there was no order of committal there could be no lawful trial. The court observed that it is not for the appellant to show prejudice arising from the irregularities. lt is the state to negative it, if the curative provisions of Section 363 of the Criminal procedure Code are to be applied. After considering other irregularities and the evidence the Court allowed the appeal. The facts of this case are clearly distinguishable from those in the instant case.

The question of the requirements of committal proceedings has been considered in a numberof cases bythe High Court. ln lJgandavYonasani LuteMB17t79, ' the High court held that compliance with the provisions of section 4 (2) (a) and (b) of the criminal Procedure (summary of Evidence) Act relating to the filing of the indictment and summary of evidence and a reference to any exhibits were mandatory. The court observed that there were numerous defects in the summary of evidence that might well have affected the validity of the whole proceedings. However DPp entered a nolle prosequi allet 24 prosecution witnesses had been called and therefore, the case is no authority for holding that defective committal proceedings make the proceedings a nullity. Moreover, the court had in fact proceeded with the hearing despite the defect. The court suggested that the committing Magistrate might refuse to commit if the summary of evidence did not disclose a prima facie case, or, if it contained a shadow and O not the substance of the evidence the prosecution intends to adduce at the trial. The law has since been changed not to require a summary of evidence but ^a summary of the case.

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ln ltganda v. Agustino lsabirye criminar session case No 538 of 1967 the accused made an application to quash the indictment on the ground that his committal for trial should have been under the provisions of part vl of the criminal Procedure code (since the offence was allegedly committed before the coming into force of Act No. 10 of ,1967) and that therefore the committal was bad. The court held first flrat the proper application for making such an application was before a plea was entered. Secondly, the court held that if the t committal was clearly bad for fundamental incurable irregularities, there was nothing that the court could do but quash the indictment, for the prisoner would then not properly be before the court. Thirdly the court held that the proceedings before the Magistrate were not a hearing of a preliminary inquiry since the Magistrate had not commenced hearing the evidence in the presence of the accused; and therefore the application to quash the indictment would be dismissed and the trial would proceed.

ln uganda v. Kassim Matovu criminar case No 541 of 1967 after the Magistrate had concluded the examination of all the witnesses called for the prosecution at a preliminary inquiry, he complied with the provisions of section 225 of the criminal Procedure code, and considered that there was sufficient grounds for committing the accused persons for trial. Each of the accused persons then made a short statement, apparenfly unsworn, denying having committed the offence. The Magistrate recorded in each case the following words: "The accused is remanded in custody until he will be summoned by the High Court for Trial".

The High Court held that if the court considered the evidence sufficient to put the O accused persons on their trial at this stage, the court was bound to commit them for trial in accordance with the provisions of section 22g of the code. The form of the words used by the Magistrate was clearly in the courts, opinion, not ^a proper committal for trial. lf there had been no committal there would be no indictment and on this ground alone, the indictment would be quashed. The court exercised its revisionary powers and remitted the case to the Magistrate to comply with the provisions of section zzg of the code, and then a new indictment would be filed and served on the accused persons. ln the present case, our opinion is that the Magistrate used clear words to commit the appellant. He stated:

## 'A6 Kamya Johnson is committed for trial to the next convenient session of the High Court'.

The last authority we wish to consider is Asenua and Another v. lJganda criminal Appeal No 1 of 1998 (sc). The second appellant complained in the first ground of appeal that he was tried without an indictment and that therefore there was a grave miscarriage of justice when the court of Appeal confirmed his convictions and sentence.

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On 16 September 1994 a Principal State Attorney withdrew the charges against the second appellant and proceeded to have the first appellant committed alone to the High Court for trial. Upon realizing his mistake, the same Principal State Attorney later on the same day had the charges against the second appellant (A2) reinstated. A2 was on 21^st September 1994 separately committed to the High Court for trial. The typed record of proceedings at the commencement of the trial read:

"charge read and explained to both accused $A1:$ I deny all charges $A2:$ I deny all charges Court: Proceed on both accused on all three counts."

Counsel for the appellant submitted that the withdrawal of the charges at the committal stage was fishy. She contended that the confusion created doubt, which should have been resolved in favour of A2. The Principal State Attorney submitted that this point should have been raised at the trial and that the two appellants were properly arraigned. This court observed:

"With all due respect to Mrs. Owor Akorimo, we think that this There was confusion during committal ground has no merit. proceedings. An amended indictment in which the two appellants are mentioned was shown to us at the hearing of this appeal. We are not sure of the time when the amendment was effected. But the record of the trial shows quite clearly that three charges upon which the appellants were tried were read and explained to the second appellant, Kakooza. Quite clearly, he was tried on an indictment and for the murder of Mudhola and Kidubuka. Moreover if there had been an irregularity now suggested by Mrs. Owor Akorimo, we think that objection to such irregularity should be taken care of by the provisions of Sections 137 of the Trial on Indictments Decree (1971) (TID) and Section 331 (1) of the Criminal Procedure Act. These provisions read as follows:

'137 subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant,

indictment, order, judgment or other proceedings before or during the trial unless such error, omission, irregularity or misdirection has, in fact occasioned a failure of justice.

Provided that in determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings'."

The court also referred to Section 331 (1) of the Criminal Procedure Code, which reads:

$"331(1)$ The appellate court on any appeal against conviction shall allow the appeal if it thinks that the Judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if such decision has in fact caused a miscarriage of justice or any other ground if the court is satisfied that there has been a miscarriage of justice and in any other case shall dismiss the appeal:

> Provided that the court shall, not-withstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred."

The court cited the case of R v. Thakar Singh s/o Kahir Singh (1934) 1 EACA 110 which is the authority for the view that objection to an indictment should be taken during the trial and that where no failure of justice has occurred and the accused has not been embarrassed or prejudiced, the conviction should stand.

In the present case, it is clear that neither the indictment nor the summary of the case were before the court before the appellant was committed. It seems to have been assumed that since his co-accused persons had been committed previously, his name must have been included in the indictment and summary of

the case. lt turned out that this was an oversight on the part of the court and counsel who appeared before it at the committal proceedings. The absence of an indictment and the summary of the case were clearly an irregularity in the committal proceedings. Both the filing of an indictment and the summary of the case are intended to inform the accused of the allegations against him and the case he is likely to face so that he can adequately prepare his defence.

The issue is whether such an irregularity or error rendered the committal proceedings or the subsequent trial a nullity or whether the appellant was prejudiced or embarrassed in his defence. We are of the view that the committal proceedings were not a nullily but irregular because the Magistrate had O jurisdiction, and he actually made a committal order. we do not think that the irregularity embarrassed or prejudiced the appellant because the appellant was represented at committal proceedings and subsequent proceedings by ^a competent counsel. secondly, the appellant was informed of the charges against him in the Magistrale's court before committal, and when the indictment and the summary of the case were read to him in the High court. Thirdly, no objection was raised to the committal proceedings or to the indictment at the trial or in the grounds of appeal in the court of Appeal. we are satisfied that in these circumstances the appellant was not prejudiced in any way in his trial, and therefore the error did not occasion a rniscarriage of justice. we therefore find no merit in the first ground of appeal which must fail. t

Mr. Kasule next argued ground 7 which complains that the court of Appeal erred in law when it held that the appellant had been given sufficient opportunity to call his defence witness and that no failure of justice had been occasioned to him. counsel submitted that the court of Appeal ought to have reviewed the facts and the law and come to their own conclusions. He contended that the refusal to grant an adjournment caused a miscarriage of justice because the evidence of the defence witness who was not called was vital to the appellant,s alibi. He cited Archbold criminal pleadings, Evidence, and practice 1997 page g78, on

the exercise of discretion to grant an adjournment and Arex Kimera v uganda Cr. App. No. 151 ot '1974 (1975) HCB 126 on the effect of refusat to summon ^a defence witness. Mr. Byamukama for the State submitted that the court of Appeal had reviewed the evidence on record to determine whether the appellant was denied an opportunity to call his witness and had righfly concluded that the appellant had ample time to call his witness.

we agree with the submission of Mr. Byamukama that the court of Appear reviewed the record of the trial Court before it came to its conclusion that the appellant had not been deprived of ffiopportunity to call his witness. The court re-examined the record of the trial on 23 November lggg when the appellant O gave his unsworn statement, and his counsel informed the court that he had no witness to call. Then towards the end of his statement he told the court that he had a witness who had travelled from Kenya. The witness was from Titjan Ltd., Nairobi and had arrived in town. The appellant stated that the witness was going to tell the court why the appellant was in Kenya on the date the crime occurred.

The court of Appeal observed that the hearing was edjourned at 12.30 p.m. to ²⁴ November 1998 for further hearing. on that day, counsel for the aopellant, the late Kabyesiza, told the court that he had one witness who was not in court and would be available in due course. After the third appellant had given his unsworn statement, counsel for the appellant informed the court that he had been advised O that his witness had not arrived and he had not seen him himself and was therefore seeking an adjournment. Afier an argument with state counsel, the court ordered the case to stand down till 12 noon. when the court re-assembled at 12 noon, counsel for the appellant informed the court that he sent people to check for the witness called Francis ogutu at Rena Hotel on Namirembe Road but it was found that he had left the hotel in the morning at 7.45 a.m., and he was neither in court nor in the hotel. since he did not know what had happened to the witness he applied to the court to issue witness summons under section 73 of the Trial on lndictments Decree for the witness to appear before the court the

following day. He stated that he was unable to proceed then and prayed for an adjournment.

The Court of Appeal noted that the application was opposed and after arguments of counsel, the court refused to issue the witness summons as the whereabouts of the witness was unknown. The adjournment was also refused and the defence was ordered to continue. Counsel for the appellant declined to continue as his witness was not present and invited the court to close the case. After reviewing the above record of proceedings, the Court of Appeal concluded,

" The judge did not close the case as she was entitled to do. The case was adjourned to 26/11/97 for submissions. When the matter came up for submission on the 26/11/97 that is after two days of adjournment, Mr. Kabyesiza did not tell the court that his witness was present in court and was ready to testify. The prosecution completed its submission on 26/11/97. The matter was adjourned to It was on 30/11/97 that Mr. Kabyesiza made his $30/11/97.$ submissions. On that day he did not tell court that his witness was available.

From the above sceneario, it seems to us that the first appellant had sufficient time to call his witness if indeed he had one. If the witness arrived in Kampala on the 23/11/97, we found it difficult to understand why he failed to appear in Court on 24/11/97 and 26/11/97."

We agree with the conclusion reached by the Court of Appeal that the court could not issue a witness summons to a witness whose whereabouts were unknown and who had purportedly arrived in town and vanished in thin air. An adjournment had been granted to the defence to trace their witness but in vain. The learned trial judge refused further adjournment and the Court of Appeal declined to interfere with exercise of her discretion. It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise a discretion, or a failure to take into account a material consideration or taking into account an immaterial consideration, or an error in principle was made. It is not sufficient that the members of the Court would have

exercised their discretion differenfly: R v euinn (19g6) Crim, L. R. 516. R v. Flack 53 Cr. App. R. '166, R.v McCann & Others 92 Cr. App. R.239. Archbotd Criminal Pleadings and Evidence (Supra) paa 7 - 99 page g7g.

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we are satisfied that the court of Appeal came to the right conclusion that the appellant had been given sufficient time to call his witness and the failure to grant him an adjournment did not occasion a failure of justice. Ground 7 must therefore fail.

Mr. Ayigihugu the second learned counser for the appeflant argued grounds 2, ³ 4(a) and 4(b). He combined grounds 2 and 4(a), which he argugd first. The O main issue raised in these grounds was whether ttre appettantffioetyang pw4 us \$20,000. Mr. Ayigihugu submitted that the court of Appeal was wrong in confirming the finding of the trial court that the appellant owed pw4 a debt and that the appellant repaid part of the debt from the stolen dollars. Leamed counsel for the appellant contended that in the court of Appeal, it was argued that there was no proof that the appellant owed pW4 money and that

PW4's evidence was hearsay but the court did not consider this argument and merely confirmed the trial court's finding without subjecting the evidence to fresh scrutiny.

ln arguing ground 4(b) Mr. Ayigihugu submitted that the court of Appeal failed to O evaluate the evidence that the appellant paid pW4 \$10,000 which evidence was contradictory and unreliable. He contended that there were material contradictions relating to the amount owed which were material. counsel argued that PW4 had stated that the appellant owed him \$2o.o0o but repaid \$10.000 but he had told the Police that he gave the appeltant \$25.000. He contended that this was a material contradiction. Mr. Ayigihugu also attacked the credibility of PW4 when he claimed that he had been paid in phases, when he claimed that his secretary was present when he was paid, when he paid the stolen money to the Bank and not to the Police and that the document indicating receipt of the

money by the Bank was made in the Bank whereas PW1 said it was made in his office. He also attacked the failure of PW4 to identify the dollars in Court. Counsel prayed the Court to hold that the evidence of PW4 as to the debt and repayment was unsatisfactory and unsafe to maintain a conviction for a capital offence.

Mr. Byabakama, learned counsel for the State, submitted that the Court of Appeal did evaluate the evidence relating to the debt and repayment. He conceded that PW4 contradicted himself on the amount of the debt but submitted that this was a minor contradiction. What was clear, argued Mr. Byamukama was that the appellant owed PW4 some money and that is why the appellant paid him some money. Counsel referred to the evidence of the appellant where he denied the payment of \$10,000 in his police statement, but accepted borrowing money from PW4; and yet in his unsworn statement he denied borrowing money from PW4. He contended that these conflicting versions of the appellant should lend credence to the prosecution case. It was his submission that the Court of Appeal re-evaluated the evidence of PW4 and came to the conclusion that the trial judge was right in believing the evidence of PW4.

From the record of proceedings it is clear that the Court of Appeal reviewed the evidence that had been adduced at the trial by the prosecution and particularly that of PW4 and the defence, before accepting the findings of the learned trial judge.

The Court observed.

"At the trial two persons testified on the debt and its subsequent payment in dollars, namely PW4 (Paul Etyang) for the prosecution and the first appellant for the defence. Their evidence was in sharp contrast one with the other. Paul Etyang testified that sometime in July 1995 the first appellant telephoned him from London that he wanted financial assistance urgently. After, the first appellant had convinced him, PW4, what he needed the money for, he organized it

for the first appellant using his niece. The amount was \$20,000 US Dollars and was paid to the first appellant through the Standard Chartered Bank. The first appellant acknowledged receipt and he promised to pay back within two days after arrival in Uganda, but he Then out of the blue and without any prior failed to do so. appointment, the first appellant walked into PW4's office on the 4/03/96 in the afternoon apologized for the delay and paid him a bundle of \$10.000 US dollars new notes in \$100 denomination plus 5 million Uganda shillings.

The first appellant denied having paid any money to Mr. Paul Etyang in his statement to the Police Exh. P.19. He however, admitted that he had received some loan from Paul Etyang in 1994 through Mrs Mariam Emeru cousin of Paul Etyang. He did not indicate how much. He stated that he had been paying that loan in installments. The last installment of shs. 11,00,000/= was paid to Paul Etyang in January 1996 through Mrs Mariam Emeru: This Mariam Emeru is Mariam Emaru Adeke, PW2. In his unsworn statement in court, however, the first appellant denied having borrowed any money from Mr. Paul Etyang. Instead he claimed that it was PW2 who borrowed shs. 21 million from Etyang and his role was to guarantee its repayment from her commission from ticket sales. He added that when the company was experiencing financial problems he sold one of the company's vehicles with the consent of one of the directors for Shs. 11 million and gave it to PW2 to pay Etyang so as to ease her from the pressure being exerted on her by Etyang."

Before reaching its own conclusion on the issue whether the appellant owed PW4 a debt, the Court of Appeal referred to the trial judge's consideration of the apparent discrepancies between PW4's statement to Police and his evidence in court which she found to be minor and did not point to deliberate untruthfulness and her finding accepting PW4's evidence as follows:

## "I accept the testimony of PW4 whom I found to have been a witness of substantial truth that A1 owed him money and on 04/03/96 he paid him \$10,000 which was stolen"

The Court then concluded.

"We accept the above conclusion of the learned trial judge. PW4 is an independent witness. Even though he had been branded as a liar, no reason has been shown why he should be. The first appellant's admission in Exh. P.19 that he borrowed money in 1994 from PW4 through PW2 leads credence to PW4's story that he gave financial assistance to the first appellant.

We agree with the finding of the learned trial judge that the first appellant owed PW4 a debt and that he paid \$10,000 US Dollars to PW4 in settlement of that debt. This \$10,000 dollar has been found part of the money that was stolen on the 29/2/96."

From the above passages we are satisfied that the Court of Appeal adequately re-evaluated the evidence and came to its own conclusion before accepting the finding of the learned trial judge that the appellant owed PW4 a debt and repaid part of the debt with some of the stolen dollars. The Court of Appeal reviewed the contradictions in the evidence of PW4 and agreed with the learned trial judge that they were minor and that PW4 was substantially truthful witness. We agree with the conclusion reached by the Court of Appeal that the contradictions in PW4's evidence relating to the amount of debt and how much of it had been repaid were minor and did not go to the root of the issue whether the appellant owed PW4 some money. No reason was advanced why PW4 should have falsely claimed to have lent the appellant the money or to have received repayment from the stolen dollars. Moreover, part of the appellant's evidence corroborated PW4 evidence regarding the debt. We do not agree with Mr. Ayigihugu's argument that PW4's evidence regarding the debt was hearsay merely because his niece PW2 was not asked about it. PW2 was merely an agent of PW4 in the transmission of the money, but the transaction was concluded between the appellant and PW4. The fact that the appellant paid PW4 \$10,000 dollars corroborates the evidence of PW4 that the appellant owed him the money. Accordingly, we find no merit in this ground of appeal which must fail.

Mr. Ayigihugu, learned counsel for the appellant, then argued ground 3 where the complaint was that the Court of Appeal erred in law when it maintained the appellant's conviction on the basis of the doctrine of recent possession. Learned counsel submitted that the appellant did not have to give an explanation of how

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he came into possession of the money since he denied giving the money. He contended that failure to give an explanation did not imply that he was the thief. Mr. Ayigihugu further argued that it was important to take into account the nature of the property. He pointed out that the money was stolen on 29/2/96 and given to PW4 on 4/3/96, after a period of four days. He submitted that money changes hands very rapidly and therefore one could not rule out the fact that the appellant was merely a receiver and not the thief. It was his contention that the trial and appellate courts did not rule out the possibility that the appellant was a receiver.

For the State, Mr. Byabakama submitted that the evidence on record ruled out the possibility that the appellant was a mere receiver. He argued that the Court of Appeal reviewed the evidence and came to the conclusion that the appellant was not a mere receiver but a participant in the robbery. Mr. Byabakama also submitted that there was evidence in Exh. P.13 of subsequent conduct whereby the appellant's passport had expired and he was travelling on a different passport from the Ugandan one.

The Court of Appeal considered at some length the question whether the appellant was a thief or a mere receiver. It took into account the dates when the money was stolen and when it was found in possession of the appellant and held that the appellant was found in recent possession of stolen property. The Court referred to the decision of this court in Bogere Moses v Uganda Cr. App. No. 1 of 1997 where the Court stated.

"It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raised a very strong presumption of participation in the stealing so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than eye witness evidence of identification in a natural event. This is especially so because invariably the former is independently verifiable while the latter solely depends on the credibility of the eye witness."

In the instant case, the Court of Appeal considered the argument made on behalf of the appellant that at best he was a mere receiver and not a thief because the currency notes involved could readily change hands and that the learned judge was wrong in holding that they could not change hands in such a short time. The argument for the State was that the appellant was not a mere receiver but a thief because firstly he had failed to give an explanation as to how he came into possession of the dollars, secondly the dollars were brand new and had not gone into circulation. Thirdly, all Bank and Forex Bureaux had been alerted and the serial number of the stolen US\$ 100 bills given to them, and therefore only the robbers and their associates had them. Fourthly, the \$10,000 given to PW4 were notes of consecutive numbers.

In answer to the above arguments, the Court of Appeal said,

"The evidence shows that the Barclays Bank of Uganda Ltd was expecting a consignment of US \$500,000 from United Kingdom. The consignment was brought by British Airways. The plane arrived around lunchtime and Ngobi Patrick collected four parcels containing the dollars. Two of the parcels were stolen by the robbers at Kitoro. On the following day that is 1/3/96, the Bank alerted by Exh. P.11 all Banks and Forex Bureaux, in the country about the theft and gave the serial numbers of dollar bills involved. Therefore, it was absolutely impossible for anybody to get any of the dollars through the Bank or forex Bureaux save and except the thieves and their collaborators. Then four days after the incident the first appellant paid to PW4 US \$10,000 with serial numbers F22357201B to F22357300D Exh. P.11 which fall within the serial numbers of the dollars that had been stolen. That raises, on the authority of Bogere Moses (supra) "a very strong presumption of the participation in the stealing."

The first appellant did not give any innocent explanation of the possession. Therefore the strong presumption of the participation in the stealing has not been rebutted.

We are of the view that the learned trial judge was right in finding that the failure of the first appellant to give an innocent explanation of his possession meant that he was one of the thieves. It was during the robbery that the policeman was murdered. In our view, the above finding justifies the conviction of the first appellant of the offences charged."

In Magidu Mudasi v. Uganda Cr. App. No. 3 of 1998 (SC) this Court summarized the law relating to the doctrine of recent possession as follows:

"It is now well established that a court may presume that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. This is an inference of fact which may be drawn as a matter of common sense from other facts including the particulars of the fact that the accused has in his possession property which it is proved had been unlawfully obtained shortly before he was found in possession. It is merely an application of the ordinary rule relating to circumstantial evidence that the inculpatory facts against the accused person must be incompatible with innocence and capable of explanation upon any other reasonable hypothesis than that of guilt. According to the particular circumstances, it is open to a court to hold that an unexplained possession of recently stolen articles is incompatible with innocence. On finding of possession of property recently stolen in the absence of a reasonable explanation by the appellant to account for his possession a presumption does arise that the appellant was either the thief or a receiver. Everything must depend on the circumstances of each case. Factors such as the nature of the property stolen whether it is a kind that readily passes from hand to hand and the trade to which the accused belongs can all be taken into account. See Anderea Obonyo v. R (1962) EA 542."

In Anderea Obonyo (supra) the Court of Appeal for Eastern Africa held that where it is sought to draw an inference that a person has committed another offence (other than receiving) from the fact that he has stolen certain articles, the theft must be proved beyond reasonable doubt and if a finding that he stole the articles depends on the presumption arising from his recent possession of stolen articles, such a finding would not be justified unless the possibility that he received the articles is excluded.

We accept Mr. Ayigihugu's argument that mere failure to give an explanation does not imply that the appellant was a thief or in this case a robber. He could be either a thief or a receiver. In order to rule out the possibility that the appellant was a mere receiver, in the absence of his explanation, it is necessary to take

into account the nature of the property, whether it could change hands quickly and other relevant surrounding circumstances.

In the present case both the trial judge and the Court of Appeal came to the conclusion that the appellant was a thief and not a receiver because he had failed to give a reasonable explanation of his possession of the dollars and the stolen dollars could not have changed hands so quickly. In this connection the learned trial judge, held.

"I am therefore satisfied that the prosecution proved beyond reasonable doubt that A.1 was in possession of dollars which had been stolen in the robbery of 29/02/96 and his failure to explain means that he was one of the thieves. In any case I do not think the dollars could have changed hands within so short a time."

The learned trial Judge also considered other circumstantial evidence which pointed to the guilt of the appellant. The first was the appellant's sneaking out of the country and his failure to return and renew his passport which expired in 1997, the acquisition of a European passport which he first used in 1997 and the possession of charms to protect himself against arrest. The learned judge held that such was not the conduct of an innocent person who left his business and family for over two years on a pretex of being a diabetic patient.

As we have already pointed out above, the Court of Appeal accepted the above finding of the learned trial judge that the appellant was not merely a receiver but a thief because the dollars could not have changed hands so quickly. We agree with the Court of Appeal that since all Banks and Forex Bureaux in the country had been alerted about the theft and given the serial numbers of the dollar bills involved, it was absolutely impossible for anybody to get any of the dollars through the Bank or Forex Bureaux except the thieves and their collaborators.

There was ample other evidence on record connecting the appellant with the offence. These included his borrowing of PW2 vehicle on the date of the

robbery, the failure to give an explanation of his possession of part of the stolen money, his subsequent conduct in fleeing the country for over two years on pretext of being diabetic and his failure to renew his Ugandan passport and acquisition of a foreign one for travel to Kenya. we agree with the concurrent findings of the two lower courts that the appellant was not a mere receiver but one of the robbers who stole the dollars, Ground 3 must fail

The third learned counsel for the appellant Mr. Kabega argued together grounds ⁵and 6. The complaint in ground 5 was that the court of Appeal ered in law and fact when it failed to resolve in favour of the appellant any doubts regarding O the entries made in the appellant's passport. ln ground 6, the appeilant complained that the court of Appeal erred in law when it failed to consider and subject to a fresh appraisal evidence supporting the appellant's alibi.

Mr. Kabega submitted that the appellant raised his alibi at the earliest opportunity in his charge and caution statement on 7 June 'lggg in which he stated that he had been out of the country in Kenya between 24 February 1996 and 2 March 1996 and that he had passed through Malaba border. The appellant had also repeated this in his defence in court. Learned counsel pointed out that to disprove the alibi, the prosecution adduced the evidence of pwg, Lutalo patrick, and PW14 Nyakana Patrick who claimed that the lmmigration File Monthly a Returns were available. He submitted that it was imperative for the state to adduce evidence to rebut what the appellant claimed by producing the retums to show that the appellant never travelled through Malaba. Mr. Kabega also argued that the court of Appeal did not reconcile the statement of the appellant Exh. P.19 and the evidence of PWZ, in order to resolve the contradictions. Learned counsel submitted that it was not the duty of the appellant to explain the entries and dates in the passport and that the court scrutinized the entries on its own, which was not its duty. Mr. Kabega further submitted that there was no evidence putting the appellant at the scene of crime as the only attempt to do so was the

evidence of PW2 who claimed that she had lent him her vehicle. He referred to the case of Bogere Moses y Uganda Cr. App No.1 of 1997 (S. C) (supra) on the question of alibi. His final submission was that the Court of Appeal erred in rejecting the evidence of alibi on the basis of the evidence of entries only and that had the Court reevaluated the evidence, it would have come to the conclusion that the appellant was not in the country.

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> Mr. Byabakama for the State submitted that the court of Appeal had reevaluated the evidence and come to its own conclusion that the alibi had been disproved. He argued that the Court had considered the versions of both sides and believed the evidence of PW2 while it disbelieved the appellant's evidence relating to his O movements. lt was his contention that the evidence ot "|rN2 that the appeilant was in the country on 2912196 destroyed his claim that he was not in the country on that day.

> As regards the entries in the passport, learned counsel for the State submitted that the court examined the entries and found that they were 'doctored' due to anomalies found. He contended that failure to call evidence of entries at Malaba border did not weaken the evidence relied upon by the court and that no adverse inference should be drawn against the prosecution on that account. Learned counsel for the State argued further that the fact that the appellant disclosed his alibi at the first opportunity did not mean that it was correct but had to be a considered together with other evidence. He submitted that there was ample evidence which the court of Appeal relied upon in holding that the appellant was in the country at the material date and that his alibi was false.

on the issue of the appellant's alibi the court of Appeal reviewed the evidence of PW2 and that of the appellant before coming to its conclusions. As regards the evidence of PW2 the Court said,

'At the trial, evidence was given by Miria Emeru Adeke pW2. She used to work as a Manager of Spear Tour and Travel where the first

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appellant was her immediate boss. She used to own a motor vehicle 774 UBM. It was a Saloon car. She said that on the 29/02/96, she went to work in that car. She said that the first appellant came to the office on 29/2/96 and borrowed her car 774 UBM at about 10 a.m. The first appellant did not tell her where he was going with the vehicle. She saw the first appellant again at about 3 p.m. The first appellant did not tell her where he had gone with the car. The first appellant came to the office the following day and continued to come to the office until he flew out of the country on 06/03/96 to attend an exhibition in Berlin. In his unsworn statement the first appellant said that at around 26/02/96 he traveled to Kenya through Malaba. He had gone to Kenya to collect exhibition materials for a Trade fair in Berlin from a company called Titjan Ltd. He travelled to Kenya on his Ugandan passport No. A.02783 Exh. D.2. He returned to Uganda through Malaba on the 2/3/96. He relied on the entries on pages 32, 34 and 36 of Exh. D.2."

In our opinion this was a review of the evidence of PW2 and that of the appellant in relation to his alibi that he was in Kenya on 29/2/96 when the robbery was committed. The evidence of PW2 was that the appellant was not only in the country, but that he was in Kampala and had borrowed her vehicle at 10 a.m. and returned it at 3pm. It is common ground that the robbery took place at Entebbe around lunchtime which is within the time the appellant was away from the office with PW2's vehicle.

The Court of Appeal also reviewed the evidence relating to the entries in the appellant's passport as follows:-

"There is no doubt that the first appellant travelled out of the country to Kenya on the 26/02/96. This is clearly borne out by the entries on page 32 of Exh. D.2. What is not clear is the date when he returned to Uganda. According to him he returned to Uganda on the 2/3/96.

He relies on the entry on page 36 to show that he left Kenya on that day and the entry on page 34 to indicate that he arrived in Uganda on the 2/3/96. As the learned judge correctly pointed out, the words on the stamp are not clear and therefore it is difficult to determine whether the stamp was a Ugandan Immigration Stamp or not. Besides, the date has been doctored. The figure in front "2" has clearly been altered. The date, which he claimed, was the corresponding entry on Kenya side is not 2/03/96 but 21 March 1996. We say so because we have observed from the entries in Exh. D.2 that the Immigration Authorities of both Kenya and Uganda do not use a stroke or a dash after the day when the month is in words. They only use a stroke or dash when the day and month are in figures. Then at page 36 the date of 7^th March 1996 is written "26 February 1996" and not "26/Feb.1996"

Therefore the first appellant's claim that he went to Kenya on 26/2/96 and returned to Uganda on 2/3/96 cannot be true. We do not attach much importance to Exh. D.3. The invoice was issued on the 28/2/96. It is common knowledge that travelling from Kenya to Uganda by air takes about one hour and less than a day. Therefore he could have obtained the Delivery Note in Nairobi on the 28/2/96 and returned to Uganda on the same day."

The Court of Appeal concluded that the learned judge was right in holding that the alibi was false and in rejecting it. We agree with the Court of Appeal. We find that the Court of Appeal sufficiently considered and subjected to a fresh appraisal the evidence supporting the appellant's alibi and did not fail to resolve in favour of the appellant any doubts regarding the entries made in the appellants passport. The Court of Appeal was correct in accepting the trial judge's finding that the relevant entries in the appellant's passport were 'doctored' to coincide with the period when the robbery was committed. We find that the Court of Appeal came to the right conclusion that the trial judge was right in accepting and relying on the evidence of PW2 which was not seriously challenged by the defence. The evidence of PW2 did not place appellant at the scene but in the country in Kampala which is not too far from the scene at the material date. We agree with Mr. Kabega that where an accused discloses his alibi at the earliest opportunity it is the duty of the prosecution to check it. However, we do not find that the failure by the prosecution to call evidence from the Immigration

Department of the entry returns made at Malaba border during the material dates casts any reasonable doubt in favour of the accused in respect of the alibi, given the uncontroverted evidence of PW2. Therefore, grounds 5 and 6 must fail.

In conclusion, we hold that there was ample evidence to justify the conviction of The Court of Appeal was therefore right in upholding the the appellant. conviction and sentence against the appellant by the learned trial judge.

We therefore find no merit in this appeal. It is accordingly dismissed.

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Dated at Mengo this ....................................

**B. J. ODOKI CHIEF JUSTICE**

A. H. O. ODER **JUSTICE OF Supreme Court**

J. W. N. TSEKOKO **JUSTICE OF Supreme Court**

**J. N. MULENGA JUSTICE OF Supreme Court**

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/EIHAMBA JUSTICE OF SUPREME COURT

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