[1993] UGSC 35

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: MANYINDO =DCJ, ODER - J. S. C., PLATT ? J. S. C.)

## CRIMINAL APPEAL NO, *2^* OF 1991

BETWEEN JOHN MAGES! APPELLANT AND

UGANDA RESPONDENT

(Appeal against Coviction and sentence of the H/C decision holden at Fort Portal (Hon. Mr. Justice I. Mukanza)dated the JOth day of July 1991? from original HJA. Cr. SS. Mo, 102/90).

Judgment of. the Cour \* \*

On the night of 19/7/86? one Keefa Bit.amazire was attacked in his house and hilled by robbers who made off with various household items and cash in the sum of Shs. 220,000/=• The appellant and one Ssali Kyalimpa were subsequently arrested and charged with Bitamazire• s murder (count -1) and the aggravated robbery, (count 2)• The co\*accused, Kyalimpa, died while in custody and before trial had begun in earnest# The appellant was tried and convicted on both counts in the High Court. On 50/7/91? he was sentenced to death on each count. Hence this appeal.

The appeal is based on rix grounds which in effect come to this; the prosecution evidence was contradictory and insufficient to sustain the convictions? all the ingredients of the offence charged in count ¹ were not proved? common intervention was not established and that the appellant's alibi was wrongly rejected by the trial Court.

The incident took place at night, at about 10.00 p.m. The deceased was in his house wiht his wife Jamina (PWJ), his daughters Alice (PW4) and Robina (PW5)\$ one Kalya and some small children when the robbers struck. At first they pretended to be good people only looking for some water to drink. The deceased opened the door for them but quickly shut it again on realising that it was an armed gang of thugs. The thugs then shot at the door. The deceased who was leaning against the door to prevent the thugs from opening it by a bullet in the head. He died

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almost instantly, due to brain damage, according to the medical evidence of Doctor Kato which was ddmitted under Section 6^ of the Trial on Indictments Decree\*

According to FWJ, PW3 and FWJ, the thugs then broke the door open with Before the deceased opened the door PWJ had already lit a hurricane lamp and placed it on a table in the sitting room. . a heavy stone and entered into the house.

According to PWJ, PW4 and PW5 about four thugs entered the house. They were led by the appellant. Ssali Kyalimpa was also named by the witnesses. At' his instance the appellant and his colleagues were given Shs\* 220,000/= by PWJ. Property was also stolen. The appellant denied the. allegations made against him by the prosecution witnesses. His defence was one of alibi - that he was sleeping in his house at the material time.

The trial Judge accepted the evidence of PW3, PW\*+ and PW5 that they had properly identified the appellant as one of the attackers. PWJ and PW5 knew tjie appellant well before the incident as he used to frrequent their home while visiting their porter, Ssali Kyalimpa - the co-accused. PV/4 did not know the appellant before the day od incident.

Mr. Urban Tibamanya who represented the appellant drew our attention to some contradictions regarding the exact positions of the witnesses and th£ hurricane lamp during the artack and also as to when the door was actually forced open by the thugs. It was also his contention that the light from the lamp could not have been enough to enable the witnesses to see the attackers clearly especially as the witnesses must have been frightened by the attack. He also wondered how the appellant could have been so naive as to expose himself to some of the witnesses who knew him very well before that day. Finally, he submitted that the appellant'^s alibi that he was at home sleeping at fche material time was not destroyed or disproved by the prosecution, with the result th§t it raises a doubt in the latter's case.

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**We** see no merit in the appeal. The evidence of PW3, Pw4 and PW5 clearly put the appellant at the scene of crime at the- material time. They were able to see him well with the aid of the hurricane lamp which PWJ lit before the appellant entered the house. PW5 knew the appellant very well as he used to work for her immediate neighbour called Aston Kambonesa as a porter. She had seen him thero for about three months. The appellant used to call at PWJ'^s house to visit Ssali Kyalimpa. a daughter of PWJ and the deceased had come to know the appellant in similar circumstances. quite certain that she |iad properly identified him during the attack. Although FW4 did not know the appellant before she was

. All the three witnesses clearly described how the appellant was dressed that night and the language he spoke. The few contradicitions in their raise any doubt as to his identification by the prosecution witnesses. There can be no doubt that he participated in the attack. At the hearing of the appeal, Counsel for the appellant abandoned the matter of common intention, conceding, quite rightly in our view, that on the evidence and evidence were minor and in our view they did not effect their credibility. Tjie claim by the appellant that he was at his house was false and did not circumstances of the case all those who participated in the murder and robbery had the necessary common intention.

Mr. Tibamanya submitted finally, the door aimlessly. an over-simplication of what actually happened which was this. come • We .. A the attackers out. the door. that with regard to the charge of murder, malice aforethought had not been established in a vain attempt to keep It was at that juncture that the bullet was fired into The deceased opened the door but on seeing the thugs he slammed it back and leaned against it There is evidence that after the shooting the people inside •the house shouted that the deceased had been killed whereupon the thugs replied with the words to the effect that the worst was still to are satisfied that that reply shows that the shooting was done with malice aforethought. since the evidence eho wed that.,whoever tehot the deceased had merely shot'at With respect, we think that that is

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The appeal against conviction is dismissed. Nothing was said about the sentences either at the trial We find this strange in view of the admitted evidence of Dr. Ruhweza that when ho examined the appellant on 15/10/86, he found h4m to be 18 years old, and the evidence *og* the appellant given on oath on 19/7/91 and not challenged in cross-examination that he was then 22 years old. or on appeal.

The offence If Dr. Ruhweza was to be believed then the appellant could have been under 18 years when he committed the offence. If the appellant is to be believed then he was about 17 years only at the material time. Now, under Section 104 of the Trial on Indictment Decree a person who might have been under the age of 18 years at the time he committed the offence cannot be sentenced to death. We think that the learned trial Judge should have addressed himself to this provision of the law before passing sentence. In fact he should have allowed Counsel in the case to admit the evidence of Dr. Ruhweza in view of that legal provision. was committed on 19/7/86.

In the circumstances we adjourn the appeal and direct the State Attorney in the case to cause the appellant to be thoroughly examined by a Doctor at Mulago Hospital to ascertain his age He shall report thereon, On receipt of the Report the Registrar shall fix a hearing date for consideration of sentence. as of July 1986.

Day of 1993 JANUARY . » .. ' ' 1-4 th DATED at Mengo this .

> • S. T. MANYINDO -• DEPUTY CHIEF JUSTICE

justiceaofhis2d§5preme court

## H. G. PLATT JUSTICE OF THE SUPREME COURT

ORDER: The medical evidence regarding the age of the appellant does not assist' matters. The appellant may well have been below 18 years in July 1986 when he committed the offence• The sentence of death cannot therefore be sustained in law. It is set aside. The appellant is to be detained in Upper Prison, Luzira, pending the Order Indictments Decree. of the Minister of Justice Under Section 104 of the Trial on

Dated at Mengo this 5th day of February 1993.

## S, T. MANYINDO DEPUTY CHIEF JUSTICE

A. H. ODER

JUSTICE OF THE SUPREME COURT '

H. G. FLATT

JUSTICE OF THE SUPiREMS COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT,