[1992] UGSC 19

## THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT MENGO

MANYINDO, D. C. J., ODER, J. S. C., (CORAM: PLATT, $J. S. C.$ )

CRIMINAL APPEAL NO. 22 OF 1991

BETWEEN

ERIZEFANI KASAKYA ) $\cdots\cdots\cdots\cdots\cdots$ 2. DAUSON JOHN BEGEYA)

A N D

APFELLANTS

$\cdot$ $\cdot$ /2

**UGANDA 1::::::::::::::::::::::::::::::::::::**

> (Appeal from conviction and sentence of the High Court at Jinja (Kato, J.) dated $31/7/1991$ )

## IN

#### HIGH COURT CRIMINAL SESSION NO. 15 OF 1991

# JUDGMENT OF THE COURT

In this case both the appellants were tried and convicted as charged on an indictment of two counts. Count one was that the appellants and others still at large on 19/3/1988 at Mugeri village in Iganga District murdered Cae Mrs. Turutangwa Dauda, contrary to Section 183 of the Fenal Code; and count two was that on the same day and place, they robbed one Munulo Juma various personal and household property, using guns and pangas, contrary to Sections 272 and 273 (2) of the Penal Code. On conviction, they were sentenced to death and on count one, and the passing of sentence on count two was suspended. Hence this appeal.

There was no doubt that the deceased was killed and that various items of personal and household property were robbed by a gang of attackers at the home of the complaint in count two and his relatives during the incident in question.

The only issue was whether the appellants were properly identified at the scene of crime.

The facts supporting the prosecution case were that the complainant in count two, Munulo Juma (PW2), was a resident State Attorney in Mbale. On 19/3/1991? he went to his home at Mugeri in Iganga. The home homestead, occupied by the complainant's family and his close relatives. The deceased in count one was the wife of Dauda Turutangwa (PV/4) the brother of the complainant, and lived in a house in the same homestead. After supper members of the homestead retired to bed in their respective houses at about 11.00 p.m. But they were not yet asleep when the robbers struck. Gun shots were fired at the houses, followed by the intruders entering immediately. Some of the assailants flashed torches when they were inside the houses. The deceased was shot inside her house. She died immediately. Several household properties which were taken away by the assailants, included a bicycle, shoes and other items. consisted of several houses in a

Both the appellants were recognised by some of the victims of the attack who testified for the prosecution.

In their defences, each of the appellants put forward an alibi. The first appellant testified that during the night in question, he was at his His two wives gave evidence in support of his alibi. second home, seven miles away from the scene.

The second appellant's alibi was that he was asleep.in his house when he heard gun shots from the direction of scene to which he subsequently went, but he was chased away by the complainants family on suspicion that he had been one of their assailants.

The learned trial judge rejected the appellant's alibis and, in agreement with both the assessors, found that the appellants were properly identified as having participated in the robbery.

Eight grounds of appeal were set out in the memorandum, and argued before us. In our view they raise essentially three main points, which we shall deal with. The first one relates to the learned trial judge's

<../5

acceptance of the prosecution evidence of identification of the appellants Mr. Owori, the learned Counsel for t&e appellants, contended that. dbe. to apparent conflicts in such evidence, and conditions which militated against proper identification free from error, the evidence cf the prosecution witnesses that they properly identified the appellants should not have been accepted. The conditions made if difficult for proper. identification.

With respect, we are unable to accept this contention. We agree with the learned trial judge's conclusion to the effect that the prosecution witnesses were not mistaken in their identification of the appellants in view of what he found to have been favourable conditions for identification. The appellants were well known to the prosecution witnesses; there appellants also spent some time at the seence, giving the victims opportunity to see them well. was light from torches in every room which the appellants entered; the

The evidence cf identification came from several witnesses. First, Munulo Juma (PW2)• This is what he said:

> I saw me. **He** 10 • years. a torch nAs I was preparing my bed I heard some movement outside my house which was grass thatched. I then heard something stepping on an old iron sheet. I heard something touching my window and that of my sister. I went to the window which was not properly completed I peeped through holes, outside things which looked like • hucian. beings• When they flashed torches, I was able to identify them as human beings. They were 8 feet from I then saw 2 of them moving towards the door they squatted down while 2 remained behind and flashed light and I managed to recognise one of them squatting as Erizefani Kasakya (A1) he was dressed in a light brown Kaunda suit. He was wearing shoes known as Bulu;.^iC. (local sandals). There was no moon light but was a clear night with no . was also holding a knife in. his right hand and in the left hand. I had known Kasakya for nearly He is a neighbour.¹¹

> > .. A

*3*

Later on in his evidence PW2 said:

$\overline{a}$

"When the lamp was placed in the sitting room, I started identifying those in the house, among those inside the house I was able to identify Kasakya who was in the sitting room close to Nenyonjo's room. While in the room they (attackers) were flashing their torches. There was another man with Kasakya in the sitting room......... when Kasakya was at my sister's room, I ran out through the front door which had remained open."

In cross examination PW2 said that he was able to recognise the first appellant because of the lamp.

Secondly Badru Zirabamuzale Budala (PW3) testified that he recognised both the first and the second appellant. What he said also corroborated PW2's evidence. This was part of his evidence:

> "The lamp was still burning in Munulo's room. The robbers entered and rushed to Munulo's room. two of them remained in the sitting room where I was hiding behind the chair, they were about 21/2 metres away. One stood near the door leading to Nanyonjo's room. The number of robbers were 7. One of them brought a lamp from Munulo's room to the sitting room; he was dressed in Kabut which was black, he had a black cap and panga. One robber had a knife and torch. He was Kasakya he is A1. I recognised him. I had known him for 4 years. I recognised him because there was lamp................. Apart from A1. I recognised A2. Dauson Bageya. He was ressed a red shirt with a pair of shorts he was on the door leading to the back room. He had a panga and torch. 'He went to Nanyonjo's room and said, "Mukisa mubi" meaning it is a bad luck. He moved from where he was and went to Nanyonjo's room. He is a neighbour and I had known him for four years."

Dauda Tirutangwa (FW3) the husband of the deceased in count one was in his room with his wife, the deceased, when the assailants struck.

$.../5$

He testified that he recognised the 2nd appellant who was his neighbour. The 2nd appellant was in a red shirt and shorts. The lamp was burning while placed on the wall. The 2nd appellant was in the company of a tall After about 2 minutes the 2nd ..appellant ordered the tall man to guard PWJ and his wife. After about 8 to 10 minutes the tall gun told the 2nd appellant to put out the lamp. The second appellant turned off the knob of the lamp and the light went off. Then there was shooting by the tall man inside the room. PWJ when she was shot. She shouted: man with a man who had a gun. The deceased fell on

"Bageya why do you kill us?"

PV/5 then ran out of the house and hid near the road. When in hiding he heard people talk as they passed by. The 1st ⁿ ant was apparently in group, for PWJ heard him (1st appellant) speak in reply to what someone had said:

> "We think everything is finished as we have seen a cloth with blood."

Then the 1st appellant replied-

"1 am not sure as he managed to run away but as

**it** I am going to Bukonge let me pass by my sister's home she will bring to me the news tomorrow.

PWJ's evidence al60 indicate that the 2nd appellant was arrested after the incident during the same night.

Muhamed Munoro (PV/5) also testified that the 2nd appellant and a tall brown man entered his house. He recognised the 2nd appellant whom he had known for two years. The men asked PV/5 in Luganda about PW2 and warned him not to reveal what he (PW5) had seen. When the two men entered a "tadoba" lamp was burning. They were about three meters from where the witness was, and spent 4 to 5 minutes in the room. Pb'5 had had a land dispute with both the appellants.

Musa Luba (PW6), who was with in the same house when the attackers struck. said that he recognised 1st appellant as one of the two men who entered the room. The 2nd appellant was dressed in a brown Kaunda suit,

../6

and had a torch and a knife. PW6 had known the 1st appellant for over four years. Tadoba was burning. The two attackers spent 5 to 7 minutes in the room and they were about 1/e metres from where PW6 was.

Sofiyat Yayeta (PW7) was in the house from which the bicycle wa s stolen. He testified to the effect that of the 2 men who entered her house Jhe 1st appellant was one of them. He was in a brown Kaunda suit and had a torch and knife. A hurrican lamp was alight. The 1st Appellant tried to 'pull the bicycle away, but it was chained to a bed. The other man used an iron bar to break the lock. The attackers were in the house for 8 minutes.

According to Swaibu Mowatu (PW9) the R. C. I Secretary for Youth, PW2 informed him the same night that 1st and 2nd appellants were among the assailants. The same night PW9 arrested the 2nd appellant from his house. The 2nd appellant did not answer the alarm which had been sounded at the scene of the attack.

In the light of this and other evidence, the learned trial judge made his finding regarding identification in the following terms:

> There was I feel nIt must be stressed that in deciding whether or not favourable conditions existed the court is guided by guidelines which were laid down in Abudalla Nabulere's case which I already pointed out elsewhere in this judgment. In the present case I cannot see how the witnesses could have mistaken some other people for the present accused. The accused were well known to the witnesses, they were not strangers. light in each room where these people went and they stayed with the witnesses for quite some time, that there were favourable conditions for proper identification.n

We think that the learned trial Judge properly directed himself on the law and facts pertaining to identification in this case. His The were recognised not only by physical appearance but also by their voices ^Pi/ellants conclusion in this regard, therefore, cannot be faulted.

• •/7

when they spoke to the various prosecution witnesses. doubt that the possibility of the prosecution witnesses being mistaken about the identity of the appellants is ruled out. There can be no

Secondly the learned trial judge was criticised for allegedly failing to give proper consideration to the evidence for the defence and testing it against that of the prosecution, and for forming his views of the prosecution independently and then rejecting the appellant's case. Under that the learned trial judge did not consider the defence evidence that there was a grudge due to land dispute between the appellants on one side and the prosecution witnesses on the other, who were all related;secondly, the appellants' evidence to the effect that they were first charged with murddr and later with robbery; thirdly, that the evidence of the 2nd appellant he was arrested when he went to answer the alarm, which he would not have done if he had taken part in the robbery. this criticism Mr. Owori, learned Counsel for the appellants, submitted

The appellants claimed that there was a grudge between them on the one hand and some prosecution witnesses on the other. Muhamed Murnoro (PW5) also said that he had had a land dispute with the appellants in 1970 and he won the dase. In his judgment the learned trial judge did not mention or refer to the alleged grudge. But in his summing •: up he clearly put the issue to the assessors, saying that an allegation of grudge may be held to show why the complainants might have decided to implicate the appellants in the crime falsely, and that the issue of grudge should be taken into account whether or not the case against the appellants had been fabricated. In the circumstances, be drawn that the learned trial judge had in mind the evidence of alleged grudge when he made his conclusions when giving his opinion the Assessor Nakabale said t.; at the prosecution witnesses reported the incident immediately (which they did). He did not believe that the witnesses could have false report against the appellants. He did not believe the alibi of the appellants. The other assessor,Waibi's opinion, v/r.s to decided to make a we think that an inference can

../8

some

We think, therefore, that although the learned trial judge rejected the appellants evidence and accepted the prosecution evidence would indicate that he did not find any substance in the allegation grudgen thq/ effect. did not refer to the evidence of grudge in his judgment, the fact that he

With regard to the 2nd appellant's evidence that they were charged with murder and much later with robbery, the 1st appellant's evidence is silent on the point. The learned counsel did not elaborate on the signifance of this critism.

But as we understand it, t?ie implications ' appear •. to< be> that the charge of robbery was added as an after-thought-"'nean^-ng that no such robbery had taken place.

The prosecution case and evidence was that the offences of murder and robbery were committed during the same incident. The learned trial Judge accepted that evidence and found that the appellants were part of a gang who were acting with common intent, in the manner defined by Section 22 of the Penal Code. This is what the learned trial judge said in that regard:

> have common intention with the shall meet at the **hill."** two accused did not only other members of the gang but were in fact active participants in the robbery and murder that was committed in the same process." "According to the evidence of PW7, it was A1 who removed the bicycle **from,** the room where she was after one of the rpbbe^s had broken . the, lock with ,an iron bar and on taking th4 bicycle out A1 was heard-saying "Yiyo ndiyo yako tutakutana fcwa malima", meaning MThSLs is yours we These facts indicate that the

We agree with that finding, and consequently think that any claim that the offence of robbery did not take place would have no foundation. We also wish to comment that the learned Counsel did not make any submission on this point at the trial. In the circumstances we think, with respect, that to raise the point now on appeal as a basis for crticising the learned trial judge is not justified.

../9

The next defence evidence which it was contended the learned trial judge did not consider was the second appellant's evidence of alibi and his claim that he was arrested when he had gone to answer the alarm - which he would not have gone to do if he had participated in the incident. The learned Counsel contended that the evidence of Gastafa Mbago (DW6) corroborated that of the 2nd appellant that he was arrested when he had gone to answer the alarm-

First about the 2nd appellant's alibi. Briefly, his evidence was he went to bed after supper at about 9»3O p.m. or 10.00 p.m^ When he was asleep, he was woken up by gun shots sounding at the home of PW2 and PW4, He dressed up in trousers only He then ran to hide in the bush. Later on he reached the who lent him a shirt, becuase it was cold. Together with Kyamwani, the 2nd appellant went to Mbulante's homo whom they did not find present. While there, they heard drums sounding from different directions. They went towards the home of PW2 and PW4 ⁹ Ho was still with Kyamwani; on reaching the home of PW2 and PV/4, PW5 and PW6 branded the second appellant as one of those who had brought the problems. PW5 and PV/6 chased and ran after him. He fledj raising an alarm and reached his house. (2nd appellant), from his house, on the allegations that he had not answered the alarm. Gastafa Mbago (DV/6) testified that the 2nd appellant and Kyamwani found him and others at the scene. The 2nd appellant was had answering the- alarm there as ^a villager who the suggestion of PV/2 and PW4, he (DW6) arrested 2nd appellant there and then, because of allegations by Juma Munulo(PW2) and Tirutangwa (pV/4) that the second appellant, the 1st appellant and others had taken part in killing PW4's wife. is in conflict with that of the 2nd appellant and another prosecution witness that the 2nd appellant was arrested from his house. During the same night Swaibu Mowatu (PW9) arrested him, ■without a shirt. 0,1, the home oi//Kyamwa^i Farasiko, The evidence of Gastafa Mbago (D'f6), therefore, that on the night in question,

../10

The learned trial judge treated the 2nd appellant's defence as an alibi and considered it as such, He also dealt with the 1st appellant's alibi. He then directed himself on the law of alibi as stated in Rapheal AAlphonce (sic) Th. trial judge then rejected the defence of alibi of the 1st and 2nd appcf.a; : j as having been successfully destroyed by the prosecution ^o His reasons for. doing so was based on his findings to the effect that 1st appellant's vwo wives who testified in support of his alibi did not impress thu learned trial judge as truthful w tnesses, for they contradicted themselves; thav the purpose of the 1st appellant for sending his porter the morning after the incident to Mungeri village was to confirm that the operation had beer. successful; that the evidence of DW6 did not tally with that of the 2nd nor with that of PW9 who testified that house during the incidents vs/I^public (^973) EA ^73; Rafael Kabanda Vs U ^&lt; 'a:\* A- . (1976) HCB 113 a^t 114 and Erisa Rutagonya vs. 2nd appellant, Aida (DW3) and Edisa (DV/5) lied Men they testified that in their husband was/the Uganda (1973) HCB 33z^ the 2nd appellant was arrested at his house; and that the two wives of ' appellant (whose witness he was),

I

In these circumstances wo think that the learned trial Judge rightly rejected the appellant's respective alibis. We re also satisfied thav- h-.j similarly gave proper consideration to all the other defence evidence in relation to the prosecution evidence. We do not accept the criticism thav the learned trial judge fir^t accepted the prosecution evidence independently and then rejected the defence evidence.

The third main criticism of the learned trial judge relates to the manner in which he conducted the trial. It is stated in the memorandum cf appeal that the learned trial judge exercised his judicial function with material injustice and irregularity when he repeatedly put questions to prosecution witnesses, inspite of defence objections, which were overruled without being recorded; and that he allowed Juma Munoro (FW2) a free hard to use the Police Court Orderly -o round up and threaten the defence witnesses in court as they testified, inspite of appeals by the defence *c:*

,./11

defence fcr protection of defence witnesses.

An affidavit by Mr. Owori, who was the learned Counsel for the defence at the trial and for both the appellants on this appeal, was filed together with the memorandum of appeal.

The affidavit states in more detail the facts intended to support the grounds of appeal we have referred to. The sailent allegations made in objections, the learned trial judge allowed Juma Munulo (PW2) to confer privately with the prosecution. affidavit are: that, contrary to normal practice, and despite defence

**I** Counsel during the trial; that the learned trial judge repeatedly asked seven of the prosecution witnesses whether they were able to identify the appellants - which was not necessary since t'e prosecution case was being conducted by ah able State Counsel. Defence objection raised in that connection were summarily overruled; PV/2 and his supporters heckled defence witnesses during their testimony; during a break after DwJ had testified, PW2 (who had been a State Attorney in Jinja where the trial was held) used a Police Orderly to round up defence witnesses whom they threatened with imprisonment. When Mr. Owori, as defence Counsel, went to have the witnesses released, PW2 mocked at him and blew ciggarettes smoke on his face. The incident was reported to the learned trial judge, who did nothing;' ^x nv'vb/F. and that PW2 threatened Farasiko Kyamwani from coming to testify for the defence. Consequently Farasiko did not testify. The learned trial judge offered no protection to enable Farasiko testify.

condisered them to be), we referred them to the learned trial judge for hisrreport under rule JO of the Pules of this Court. The learned trial judge's detailed report was received in due course. The learned trial jedge'd report is to the effect that the allegations against his conduct of the trial which v/ercstated in the memorandum of appeal were lies. With regard to the claim that he asked repeated questions of the prosecution witnesses the report states that These allegations being serious (as we

../12

when, during the trial, the learned trial judge pointed out to the defence Counsel that by law, of witnesses to clarify their evidence, the defence Counsel appeared satisfied. Consequently, the learned trial judge saw no print in recoiding the objections which had been raised. As to the allegation that PW2 was Counsel brought the matter to his attention in Chambers, the learned trial prejudicial to a fair trial. At no time did the learned trial judge give PW2 a free hand to round up any witness, not to mention use of the police Court. Orderly. judge sternly warned Juma Munulo (PW2) to desist from any conduct that was a trial judge was entitled to ask questions allowed a free hand, the report states that when the learned defence

the public gallary on two occasions. When the learned defence Counsel complained about this the learned trial judge warned those concerned and threatened them with expulsion from the court room. What was referred to as in the learned Counsel's affidavit may have been caused by the defence Counsel's manner of examining defence witnesses. The situation improved when the former also improved his method of exminntion of witnesses. There was nothing to suggest that there was an orgainsod move to discredit the defence witnesses in court. Contrary to the allegation protected the defence from some incriminating questions put by the defence Counsel himself to the witnesses. We regard to heckling of defence witnesses the report states that during the testimony of defence witnesses there was rumbling of voices in in the learned Counsel's affidavit, the learned trial judge, in fact, over "heckling"

As regards the alleggtion that the learned trial Judge allowed PW2 prosecution Counsel, the report states that after the prosecution Counsel had completed his examination-in-chief of PW2, and sat down, ^P',72 wanted to continue with his evidence before he was cross-examined, but the learned trial judge advised him that it was improper for him to do so. But PW2 was adamant and wanted to continue. Consequently the learned tc ezrtufar with the prosecution Counsel, the report states that after the

../13

prosecution Counsel sought and witness, but on condition attached by the court,which was that the adjournment should not be used for the purpose of coaching PW2 what to say in his evidence. The adjournment was for 10 minutes and the learned When the trial resumed, PW2 did not continue to give his evidence in examinationin-chief Instead he was cross-examined by the defence Counsel. This appears on pages 6 and 7 of the record of proceedings at the trial. was granted an adjournment to consult his defence Counsel went out with the prosecution Counsel and PW2«

The learned trial judge's report concludes that he was never biased against or in favour of anybody involved in the case during the trial as the complainant and both the appellants were strangers to him; and that the trial court afforded all possible protection to the appellants during the trial ^o

Bg have carefully considered the allegations made against the court in this regard, and the report of the learned trial judge on the allegations. We accept the report as reflecting what transpired during the trial. Consequently we think that the grounds of appeal based on the allegations should fail.

•In the circumstances, after considering ail the evidence in this case satisfied that both the appellants were properly convicted of the offence:.. on which they were indicted on the two counts. There was ample evidence to support the conviction. uphold the conviction and the and the findings made by the learned trial judges which we accept, we sentence passed against both the appellants by the learned trial judge^o Accordingly, we

In the-result, the appellant's appeals against conviction and sentence are dismissed^a

1st Dated at ttengQ thise day of December, 1992

I CERTIFY THAT ^T'lttS IS ^A TRUE COKTOF- . THE OR"*I*. S'1

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT

I

4 f

> A. H. O. ODER J. S. C. S. T. MAMYIMDO D. C. J **5:s?c. PLATT**

"»5