[1993] UGSC 37

IN THE SUPREME COURT OF UGANDA

AT MENGO

CORAM: WAMBUZI, C. J., ODER, J. S. C. AND PLATT, J. S. C. CRIMINAL APPEAL NO,3^ OF 1991

BETWEEN

ABDALLA MUKASA APPELLANT

AND

UGANDA RESPONDENT

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

•• I N

HIGH COURT CRIMINAL SESSION CASE NO. 13/1990

## JUDGMENT OF THE COURT

According to the witnesses Swaibu Majwara and Muzamil Rusiba (P. W. S 5 & 7)» there were two incidents which might have attracted charges of aggravated robbery contrary to Sections 272 & 273(2) of the Penal Code Act\* The witnesses were in separate houses, Swaibu Majarwa in his own house, from which Shs.55,600/- and one radio cassette had been stolen; and Muzamil Rusiba in the house of his father Habibu Byarukeke, in the house of Swaibu Majwara, while the events in which Muzamil played a part linked ^sup with those in Swaibu\*s house. Consequently, and from the latter's shop was stolen, money and shop goods. The Prosecution was based on the alleged aggravated robbery the events concerning Muzamil were used as cOxU. obor-ating the

2 /evidence

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

The events of the night of 21st April, 1988 commenced with an attack on the house of Swaibu Majwara at about 8 p.m. when Swaibu's wife Jaweria Nakayira (P.. V.6) was taken from her kitchen to the main house, under the arrest of her nephew the Jaweria was held at sitting on a mat. The Appellant demanded money while pointing a big gun at the witness. The latter took Shs.10,000/= out of a bag. Mort money was demanded from the sale of coffee. There was an argument and one of the men in army uniform fired a At that, he got up and got a further shillings 45,000/= which he also gave to the Appellant. Then one of the men in uniform picked up the radio cassette . on the table • They went out telling Swaibu to close the doo. . All this time, there was a tadoba lamp burning inside the room. bullet, which passed Swaibu's shoulder. Appellant and two men in army uniform. gun-point. Swaibu was carrying out his evening prayers whilst

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

3 / ordered

*z*

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

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

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

3 *S<J/.*

**^c(**

... -

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

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

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

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

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

5 /On

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

" *Co*

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

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

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

A general report was not made, Swaibu explained, in case the Appellant ran away. It would have been proper to have had the 'Chairman's corroboration of that reaction. However there-is 14th May 1988. The Appellant said that' this occurred when he had returned home after visiting Saiti Mabirizi. He had been at Haiti's house The defence explains the reason why the Appellant's arrest was delayed. But there remains a gap as to what the first report was, and this is a matter which neither The learned Judge should add the first report to the list of aspects of identification to be considered when testing evidence of recognition. (See Turnbull Vs R (1976), 63 Cr. App. R. 132; (1976 3W. L. R. 445); (1976) 3ALL.549. on 21st April 1988. evidence of the Appellant'^s arrest on the learned Judge nor the Assessors concentrated on.

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

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


S. W. W. Nambuzi $\begin{array}{c} \textbf{CHIEF} & \textbf{JUSTICE} \end{array}$

A. H. O. Oder JUSTICE OF THE SUPREME COURT

H. G. Platt JUSTICE OF THE SUPREME COURT.

$\ensuremath{\mathrm{I}}$ certify that this is a true copy of the original.

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