[2000] UGSC 9

### **HOLDEN AT MENGO** IN LHE SOBREWE COORT OF USANDA

# **VAD WICKVZV KIKOALOGO' 11'S'C COBAM: TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA**

### CEIMINAL APPEAL NO. 4 OF 1999

#### **BELMEEN**

WVMV/DV EDMVKD ::::::::::::::::::::::::::::::::::::

**GNA**

**BESTODENT**

**NGANDA**

November, 1998, in Criminal Appeal No. 28 of 1996) (Manyindo DCJ, Kato and Berko JJ. A) at Kampala, dated 24^m Appeal against conviction and sentence by the Court of Appeal $A$

## **INDEFINED OF THE COURT**

both conviction and sentence.

shs 100,000/=. The appellant being dissatisfied with that decision appeals to this Court against years, corporal punishment of six strokes, and compensation to the complainant in the sum of robbery, and a sentence of imprisonment for 10 years, with orders for police supervision for 3 conviction and set aside the death sentence, and substituted therefor, a conviction of simple the Penal Code Act and was sentenced to death. On appeal, the Court of Appeal quashed that High Court sitting at Kampala, of robbery with aggravation contrary to ss. 272 and 273 (2) of MAMANDA EDWARD, to whom we shall herein refer as the appellant, was convicted by the

therefore tried alone. from custody, and the DPP had to enter a nolle prosqui in respect of him. The appellant was indicted for robbery. Before trial, however, Mulekezi was apparently mysteriously released stolen from their house earlier in the night. Eventually, Mulekezi and the appellant were jointly Gita's home. There, Gita and Hasifa identified items brought with the suspects, as property gave evidence as PW2, and the LDU personnel and other people who had gathered, went to appellant. Mulekezi and the appellant, with the area RC1 Chairman, Samuel Lugemwa, who carrying a radio cassettee, and the other had nothing. The latter escaped. The former was the bag containing diverse items, and later two other men. One of the two was alleged to have been the neighbouring zone, LDU personnel on patrol intercepted first, one Mulekezi carrying a large assaulted them and stole diverse goods from them. In the early morning hours of 14.1.93, in refer as Gita and Hasifa respectively), were attacked in their bedroom by about three men, who and his wife, Hasifa Nabankema, who also gave evidence as PW3, (to whom we shall hereinvillage, Zone B, in Lubaga Division, one Numani Gita, who gave evidence at the trial as PWI, The undisputed facts of the case may be stated briefly. In the night of 13.1.93 at Namungoona

and we shall consider it in that context. Counsel's arguments on these grounds may be broken defence of alibi, much of its substance was covered by his argument of the combined grounds sought to argue ground 2 separately, namely that the Court of Appeal failed to evaluate the simple robbery when there was no, or not sufficient, evidence proving his guilt. Although he Appeal erred in failing to re-evaluate the evidence as a whole and in convicting the appellant of Nsibambi, counsel for the appellant, combined grounds 1,3,4 and 5 to argue that the Court of There were eight grounds of appeal filed. When the appeal came up for hearing before us, Mr.

$\overline{c}$

bearing on the other two. of alibi. We shall consider the second contention first, because the answer to it has much And the third is the substance of ground 2, namely that the court failed to consider the defence basing its decision on concession by counsel, that the appellant had participated in the robbery. proved that a radio cassette had been stolen. The second is that the Court of Appeal erred in erroneously based on his alleged recent possession of a stolen radio cassette when it was not down into three main contentions. The first is that the appellant's initial conviction was

Appeal. Their Lordships said:-The second contention arises from the following passage in the judgment of the Court of

<u>conceded that he participated in the robbery.</u> in the robbery. During the hearing before us, however, it was " The appellant, in his unsworn statement denied participating

$(pəppv sisvyduv)$ $(pəsn)$ of of benefit in deadly weapon was used or threatened to be anahi nahiahw saw su shotad bangna saw tahi mioq yino an'I

alternative, Mr. Nsibambi submitted that in criminal proceedings counsel cannot legally what was conceded was that evidence showed that a simple robbery was committed. In the not, as a matter of fact, concede that the appellant participated in the robbery. According to him, in the alternative. He submitted first, that the appellant's counsel in the Court of Appeal did concession was justified having regard to the evidence. Mr. Nsibambi argued his contention It is important to note that their Lordships did not go further to satisfy themselves that the

$\varepsilon$

entitled to rely on the concession. absence of the appellant challenging the participation in the Court of Appeal, that court was Ms Khisa, Principal State Attorney, maintained that the concession was made and that in admit having committed the offence. In the instant case, however, that was not done. In reply appellant, the court ought to involve such appellant personally, to ascertain that he in fact does maintained that because, where it occurs, such a concession would be very prejudicial to the instant case, it was a misdirection on the part of the Court of Appeal, to rely on it. He concede commission of an offence by his client, and that if there was such a concession in the

robbery." But all the three recorded him as concluding his submissions by praying the court to the robbery. The most that he is recorded as saying is that " there was ample evidence of simple contain any unequivocal statement by the appellant's counsel that the appellant participated in of counsel's submissions recorded by each of the three learned Justices of Appeal, do not express concession to the effect that the appellant participated in the robbery. The separate notes was by his counsel. We have carefully examined the record and found that there wasn't any appellant, at any stage, personally made the concession. Whatever concession was made, it Neither the Court of Appeal $\Lambda$ nor the learned Principal State Attorney suggested that the Crassin

" allow the appeal, quash the conviction and set aside the sentence

and substitute conviction for simple robbery and a sentence that would

ensure his immediate release"

appellant's participation in the robbery having been conceded. We do not doubt at all, that the outright acquittal. Also, the reply by counsel for the respondent was evidently premised on the Apparently, unlike in the memorandum of appeal, counsel did not in his submission pray for

t

participation in the robbery was unequivocally conceded. case, to say that the record supports the conclusion relied on by them that the appellant's respect to the learned Justices of Appeal, we are unable, in the circumstances of the instant stance taken on any pleading that is inconsistent with the concession. With the greatest would be to ascertain, and record in unequivocal terms, the content of the concession, and the where the court is faced with such a concession, and intends to rely on it, the proper course withdrawn. That left the issue shrouded in uncertainity. We agree with Mr Vsibambi, that the first ground of appeal, nor the principal prayer in the memorandum of appeal, was that the conviction be quashed, the sentence be set aside and the appellant be set free. Neither not evaluated the evidence and had arrived at a wrong decision, and the principal prayer was conceded. However, in the first ground of appeal, the complaint was that the trial judge had conclusion, which is now complained of, that the appellant's participation in the offence was appellant's counsel, by what he said and what he did not say, led the Court of Appeal to the

criminal justice system in this country is still based on the old principle, now entrenched in admission that the client committed the offence in issue, must be treated differently. The statement of fact as well as an argument. In our view, , however, a statement amounting to be said on instructions of his client and is therefore binding on the client. That is true of a strength of that concession? As a general rule, whatever counsel says to the court, is deemed to legally binding on the client to the extent that the court can convict or confirm a conviction, on can an advocate's concession on appeal, that the client committed the offence in question, be Mr. Naibambi's second submission on this issue raised a more fundamental question, namely :

article 28 (3) (a) of the Constitution, that a person charged with a criminal offence shall:

$\varsigma$

no villug bevore innocent until proved guilty or

(cmbyssis $\frac{1}{2}$ ) (cmbyssis $\frac{1}{2}$ ) (cmbyssis $\frac{1}{2}$ ) (cmbyssis $\frac{1}{2}$ )

That principle is applied strictly. For an accused person to be convicted on a plea, it must be

$\label{eq:2} \begin{tabular}{c} \text{himself to yield} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular} \begin{tabular}{l} \text{A} \end{tabular}$

officer of court, has a duty to refrain from misleading the court or wasting its time by contesting satisfied that the evidence proved or did not prove the appellant's guilt. While counsel, as an on record. It did not exonorate the court from its duty to re-evaluate the evidence, in order to be the appellant's own admission, the said concession remained counsel's opinion of the evidence his guilt was assumed to have been conceded by his counsel. That was an error. In absence of appellate court, after re-evaluating the evidence, that he had been proved guilty, but because of Appeal convicted the appellant of simple robbery not because it was satisfied, as a first offence should be treated like a change of plea. In the instant case the position is that the Court verdict, as happened in the instant case, an alteration of his position to admit commission of the challenge it by appealing to a higher court. Where, however, he has opted to challenge the duashes the conviction. The convicted person has the option to accept the verdict or to presumption of innocence ceases, and he is deemed guilty unless and until a higher court appeal as well, should the situation arise. Of course where a person is convicted, the the principle is primarily applicable to original trials, it provides guidance for handling an

evidence, and opted to base its decision on the equivocal concession, notwithstanding that it had It is pertinent to observe that in the instant case, the Court of Appeal omitted to evaluate the

uncontestable issues, he must not, particularly in a criminal case, assume the role of judge.

was highled in the following passage in the judgment of the Court of Appeal noted, and criticised, unsatisfactory features in the judgment of the trial court. One such feature,

assessors. This point was conceded by the learned Principal State of ot sing she notive beyond the direction she gave to the to the assessors. The Judge did not make any finding of fact on any of $dn$ -Sumums $\partial y$ fo uononpoider $\sigma$ is $\mathfrak{f}$ and $\mathfrak{g}$ and $\mathfrak{f}$ in the sum $\partial y$ is $\mathfrak{f}$ . reasons for the decision (see S. 85 of the Trial on Indictment Decree.) or points for determination, the decision on the points or points and learned trial Judge. The law requires judgment to contain the point $\partial$ μι fo "mamgbul" $\partial$ πι εσιπιποξί χοιοτρίετρεναι για στο στοπί".

, we have to consider the evidence on record adduced to implicate the appellant in the ANOTHJER VS UGANDA Criminal Appeal No. 1 of 1997 (unreported). In the circumstances UCANDA Criminal Appeal no. 10 of 1997 (unreported) and BOGERE MOSES AND makes it imperative for us now to re- evaluate the evidence (see KIFAMUNTE HENRY VS the evidence was an error of law and as this Court has held in a number of its decisions, that concession was consistent with the evidence, would have remained The omission to re-evaluate view that the appellant's participation was conceded by counsel, its duty to be satisfied that the appellant's participation in the offence. Even if the Court of Appeal had been correct in its ingredients of the offence, and in particular, in view of the defence of alibi, on the issue of the Appeal all the more, to re-evaluate the evidence and make its own findings of fact on the We agree with that criticism. In our view, however, it should have constrained the Court of

$\mathcal{L}$

commission of the offence.

Attorney, Mr. Bireije"

item was proved by the evidence of Hasifa and that of Lugemwa. evidence of appellant's possession of the radio cassette, and maintained that the theft of the proved to have been stolen property. Ms Khisa conceded that the conviction was based on the the item allegedly found in the appellant's possession, namely a radio cassette, was not and the first appellate court, to apply the doctrine of recent possession of stolen property, when ignore it. On the latter, he submitted that it was a misconception on the part of the trial court, property. He submitted that the former was so unreliable that the trial court had decided to two sets, namely evidence of identification, and evidence of recent possession of stolen On the evidence adduced to implicate the appellant, Mr. Nsibambi pointed out that it was in

the attackers. He said: Gita first gave evidence- in-chief, on 17.11.94, he repeatedly stated that he did not recognise witnessed the robbery and who would have identified the robbers were Gits and Hasifa. When We agree that there was no credible evidence of identification. The only persons who

$I$ ·γροq $\Lambda$ up əsingoə $\Lambda$ 100 bib $I$ .................................... pecause 1 had been forced to lie facing down. I did not see anything spw ii gid no gnol wod see ot ylluferne it to sool ton bib I. eling $\alpha$ did not recognise the person who hit with the block. They had a

confd not recognise them because it was night.

with the block, and that it was the appellant, who also had the knife and who demanded for 22.11.95, he claimed that he could clearly identify the attacker who slapped him and hit him When the same witness resumed giving evidence under cross-examination a year later, on

ignored, leaving for consideration only the evidence on the aspect of recent possession of stolen it would be unsafe to rely on the identification evidence by the two witnesses. It has to be who saw and heard the two witnessees did not believe them. We are in agreement with her, that of seeing him at their home after being intercepted, cannot be ruled out. The learned trial judge and Hasifa claimed to have identified the appellant as an afferthought, or out of vague memory conditions at the material time, did not favour correct identification. The possibility that Gita did not know and whom, therefore, they had not seen (or heard) before. We find that the for money, we cannot infer that this helped the witnesses to identify the appellant whom they seems to have blinded them instead. Although the attackers did talk when they were demanding light in their bedroom was torch light, which could have assisted the witnesses to see, but which up, getting hardly any opportunity to observe their attackers. It was night time and the only or of no help. The two witnesses were suddenly awakened from sleep and immediately roughed identify their attackers. The factors which ordinarily facilitate identification were either absent witnesses that the conditions pertaining at the time of the robbery, made it difficult for them to probably could not be, explained. Be that as it may, it is clear from the evidence of the two eye incident, in the light from the torch of his colleague. These inconsistencies were not, and another breath she claimed to have recognised the appellant, whom she did not know before the attackers, each of whom had a torch, were flashing their torches in their (victim's) eyes, and in 23.1.96, was similarly inconsistent. In one breath she stated that she could not see because the attackers. I am not changing my story". The evidence of Hasifa, who testified in court on the money. But in further cross-examination he said: "I told Court I could not see the

property.

Chairman Lugemwa and LDU's. On the other hand, Lugemwa testified on the circumstances were brought back to their home after Mulekezi and the appellant were intercepted by RCI Gita and Hasifa testified on the items stolen from them during the robbery and those which ropbery, namely a radio cassette. The evidence to consider is in two parts. On the one hand, intercepted in the neighbouring zone, in possession of one of the items stolen during the That aspect, is the prosecution case that very soon after the robbery, the appellant SPW

of intercepting the appellant with the radio cassette. We shall consider the latter first.

appellant was holding a radio cassette. On the crucial part concerning the appellant's reaction, told their names. One of them was Mawanda, the appellant. According to Lugemwa, the team to the alleged colleagues whom they found walking to the main Hoima Road. Mulekezi was stolen from , and intimated that he had been with two colleagues. He led Lugemwa and his about the property, Mulekezi said he has stolen it. He agreed to show them where the property at a nearby park with a bag full of property which they suspected to be stolen. On being asked whom he knew because he resided near his house, with a report that they had intercepted him patrol with the LDU, the LDU personnel, with whom he had been, brought to him Mulekezi Lugemwa testified that at about 4 a.m on 14.1.93 as he was returning to his house affer night

the evidence is not as clear as should.

Moe Lugemwa said in examination –in-chief;

su rook us. Haji escaped, only Mawanda remained. He took us had parked the vehicle. By that time so many people ppy property from. They said they stole the radio. I took the man where I $\partial$ и 108 рри $\delta$ ди элэүм шэүг рэхвр рир иэш эүг ог рэхүрг эм.

α γροσιλ από γρεσικ – αροπι είχ ο 'ςίος καπ." $s_{DM}$ $s_{1}$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cd$

In cross examination however, the same witness said:

Mamanda was holding was his cassette it was proper to arrest they stole. Since complainant remembered the radio cassette $\overline{p}$ ome within 30 minutes At first they denied $\overline{p}$ the *Mulekezi* insisted $s'$ moniblames of meth took the took them to complainant's

$(p \partial p p p s s s p y d u \partial)$ , $u_i y$

*patoitionsdusuu* and rejected the defence of alibi merely as "the usual rogue"s defence easily fabricated and accepted that the prosecution had established its case under the doctrine of recent possession; being found with a radio cassette. The learned trial judge without indicating any reasons, the vehicle to continue his journey like the others. Later he was taken to the police. He denied on him, and that for that reason he was detained at the spot and was not allowed to go back on a road block. He said that because he was still a student, he did not have an ID or a tax ticket vehicle on his way to collect school tees from his brother-in-law at Nansana, he was stopped at stayed at Nsambya. In the morning of 14.1.93 at about 8 a.m., while travelling in a public The appellant's defence was that he did not take part in the robbery. On the night in question he

weighty. Thus, what is first presented by Lugemwa as an admission in which the appellant statements that are prejudicial to the defence, it is not entirely credible, let alone sufficiently On analysis of the prosecution evidence, however, it becomes apparent that, much as it contains

$\overline{I}$

taken into consideration in support of other substantial evidence. (See MUSA LUINDA VS R where such a confession is taken into account, it cannot be the basis of a conviction. It is only implicate the appellant, would have to be treated as inadmissible hearsay. Besides, even because Mulekezi was not tried jointly with the appellant. His confessions, to the extent they Mulekezi's confessions, cannot be taken into account against the appellant under that section, implicating a co-accused, may be taken into consideration as against that co-accused. Furthermore, although under S. 28 of the Evidence Act, the confession of an accused person the theft of the radio cassettee and who led the team to Gita's house, is equivocal if not vague. prove the appellant's guilt. But it was not so proved. Lugemwa's evidence on who confessed to to the home from where the radio cassette was stolen, that would have gone a long way to he stole or participated in the theft of the radio cassette; and that he had led Lugemwa and his had been proved beyond reasonable doubt that the appellant had confessed to Lugemwa that Gita's home. It is just as possible that it was Mulekezi who led them. Needless to say, that if it Lugemwa's evidence whether the appellant was the person who led Lugemwa and his team to that it was an allegation by Mulekezi which the appellant denied. Secondly it is not clear from participated, that the radio cassette was stolen, it turns out, in cross-examination of that witness

## $(1900)$ EV $\pm 10^{12}$ and EZERA KYABANAMAIZI VS R. (1962) EA 309)

cassette was not mentioned by either witness among the items stolen during the robbery or the property brought back to their house after interception of Mulekezi and the appellant. The radio house. Both Gita and Hasifa named the property that was stolen during the robbery, and the cassette allegedly found in possession of the appellant, was stolen during the robbery at Gita's Lastly we turn to Mr. Nsibambi's submission that the prosecution did not prove that the radio

identified by the complainant, when he arrived with the suspects. He testified: items returned to the house. Even Lugemwa did not initially include it among the items

$(p\partial p\partial p\partial p\partial p\partial q\partial q\partial p\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\partial q\$ πιιμ προσιμία της συμβαίτιστα το τροπρία το τροπρία το τροπρία το τροπρία το προσικό τροπρία το τροπρία το τροπρία το προσικό το προσικό το προσικό το προσικό το προσικό το προσικό το προσικό το προσικό το προσικό το προ nen and women. that is all I can remember.. They were in a bag α clock, α hurricane lamp, clothing which I do not remember but for describe it non i won a line ago. All I knon is that there was had stolen them. There was a wall clock- it was new $-1$ cannot λομι μυμι μιω *σισω σω ομω σίσοση στι μου εσίγισμο του του του του του του του του του το* " When we knocked at the door the complainant immediately

a radio. When explaining how she recognised the appellant she said: his own evidence, Gita did not confirm this. It is also in passing that Hasifa made mention of the appellant, that Lugemwa said that the complainant had "remembered" the radio cassette. In It was only in cross examination, as noted earlier in this judgment, while justifying the arrest of

$I$ , $I$ only recognised accused while his colleague

was kicking me accused was grabbing the radio"

evidence alone. alibi. We think, therefore, that it would not be safe to uphold the conviction on basis of that and that the appellant was found in recent possession of it, thereby destroying the defence of evidence to prove beyond reasonable doubt, that a radio cassette was stolen during the robbery against the appellant. We do not think, in the circumstances, that this constituted sufficient therefore, it is only those two incidentally adduced pieces of inconclusive evidence that stand She did not go on to say that he took the radio or that it was a radio cassette. In the end,

$\epsilon$ I

was given opportunity to reply to the State Attorney's submissions, his own counsel having record of any more exhibits having been produced in evidence. Indeed when the appellant that refers to exhibits already produced or additional ones. Thereafter, however, there is no once again obtained adjournment because exhibits were not in court. It is not clear whether Ex. P2. Almost a year later on 22.11.95, after cross -examination of PW2, the State Attorney produced in evidence, namely a wall clock as $Ex.$ PI; and a bag with two wheels missing, as When hearing resumed with the same witness on 6.12.94, the record shows only two items adjournment because exhibits were not in court, and the Police had "just gone to get them". hearing, after PWI gave evidence in chief, that the prosecuting State Attorney obtained exhibits was pathetic, to say the least. In the proceedings it is recorded on the first day of questions may well have resulted into better quality evidence. Lastly the handling of the amateurish manner in which witnesses were led to give evidence. A few more guided aspect, which obviously had a negative impact on the memory of witnesses. The other is the some of the blame, for permitting the hearing to be so dragged out. That, however, is only one respect that the learned trial judge, being in overall charge of the proceedings, has to take there is something wrong with the system and those administering it. We think, however, with 4 months, from 11.10.94 till 15.2.96, with only three witnesses giving evidence, suggests that case starting I year and 10 months after commission of the offence, to last another I year and those responsible for the inordinate delay in prosecution of the case. For the trial of a criminal from bad handling of the case. The learned trial judge, in her judgment, quite rightly criticised weaknesses in the prosecution case which we have pointed out in this judgment, resulted Before taking leave of the case, we are constrained to observe that most, if not all, the

$\forall$

having been produced in evidence and having been marked as Ex P2. The disparity is puzzling. (clothing) as Ex P4-7. There is no trace, on the record of proceedings, of a radio cassette referred to a radio cassette Sanyu as Ex $P2$ , the zipper bag on wheels as Ex $P3$ and other evidence. However, when reviewing the evidence in her judgment, the learned trial judge assertion and the court accepts to record it, if in fact the radio cassette had been produced in cassette had been exhibited. We would have thought it very unlikely for him to make that bold apparently abandoned him, he explicitly drew the trial court's attention to the fact that no radio

considered it rather as an accompaniment to the first five grounds. grounds 6 and 7 which relate to sentence. Ground 8 was not argued as such, because counsel Grounds 1,2,3,4 and 5 therefore succeed, and in view of that, it is unnecessary to consider Be that as it may, we find that the evidence on record is not sufficient to support the conviction

that the appellant be set free unless he is held for any other lawful reason. In the result we allow the appeal, quash the conviction, and set aside the sentence. We order

to vab.

**Ι εξΚΟΦΚΟ**

DATED at Mengo the.

Justice of the Supreme Court

Justice of the Supreme Court. Karokora