[1992] UGSC 15

## IN THE SUPREME COURT OF UGANDA

### AT MEKGO

CORAJ-l: MANYINDO, D. C. J., PLATT, J. S. C. & SEATON, J. S. C.

### criminal appeal NO. 10 OF 1991

#### BETWEEN

ABDU NGOBI appellant

#### AND

UG ANDA RESPONDENT

(APPeal against conviction and sentence of the High Court decision holden at Jinja (HOn. Mrs. L. E. Mukasa-Kikonyogo) dated 7th March, 1991)

IN

# HIGH COURT CRIMINAL SESSION CASS NO. 1/91 77ti£ rouftT JUDGMENT OF RLATTr J-rG.-G.

Count ¹ (contrary to Sections l8j & 184 of the Penal Code Act) and °f Aggravated Robbery on each of counts 2 and 3 (contrary to Sections 272 and 273(2) of the Penal Code Act) was sentenced to death on count 2. The death penalty was suspended on counts ¹ and 3\* The Appellant now appeals largely on the ground that he was wrongly identified. further issue arose whether the medical evidence was sufficient to support the conviction of murder on count 1. The Republic conceded that the medical evidence did not support the allegation that the alleged robbers including the Appellant had caused the death of Florence Mwosana VZakanyira beyond reasonable doubt. Consequently, as we think that the Republic is right, we allow the appeal on count 1, quash that conviction and set aside the suspended sentence of death. Accordingly, we continue to consider the counts alleging Aggravated Robbery, and the issue of identification which arises on those counts. But at the hearing of the appeal a The Appellant Abdu Ngobi having been convicted of Murder on

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The brief facts of the case are that the deceased Florence ran a medical clinic, probably in conjunction with her husband who was employed in medical services in the Government\* The clinic of Florence was well known, being capable of dealing with ordinary sicknesses as well it is alleged that the Appellant was On Jrd April 1979 it was alleged that the Appellant together with another man called at the house of Florence at about 6. J0 p.m\* Florence and her daughter Robinah Nakato (PW1) another daughter called Irene Wakanyira as well as daughter Harriet Kizza Wakanyira (PW9) and at home\* Florence went out to the verandah to answer the call, followed little further away\* The two witnesses testified that they found the Appellant and another man both in civilian clothes at the verandah, who asked Florence in Lusoga where her husband was\* Florence replied that her husband was on duty at Namungalwe Dispensary and when she inquired why they wanted him in case she could do anything for them, came around the corner\* Florence asked the Appellant what the man in army uniform was doing there, whereupon the Appellant slapped Florence on the face, and the other man said that Florence should properly answer the questions put to her\* Robinah decided to return into the house as the man in army uniform had a gun. Harriet thought that she had seen two men in army uniform, but she agreed with Robinah that the four children went back in the house, and hid under the bed in one of the bedrooms\* The children then heard some gun shots and they overheard the Appellant demanding that Florence give them money and drugs\* as maternity deliveries\* a man in army uniform by Robinah and Irene while Harriet and Sam were a a son called Sam were all a further a frequent patient at the clinic.

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Florence was heard to reply that she did not have any money to give them, and that they could take anything they wanted. There were more gun shots fired. The assailants and Florence then moved to the maternity clinic and later returned to the main house. More gun shots were fired into the house. The assailants were heard to go into the room of Florence. The Appellant was still demanding money and drugs and Florence was pleading that the assailants could take what they wanted, but that they should not kill her. The assailants started looking for the children but Florence said that she did not know where they were\* A person with army boots came into the room where the children were. Then the party moved outside and Florence was told to sit down. She heard two gun noise as if bullets were hitting a target at close range. The children assumed that their mother had been killed. There was silence. The children remained in hiding for JO - 40 minutes and then came out and ran away- They heard more gun shots being fired in the direction of Luzinga Trading Centre. When the children got to the house of their neighbours, the latter would not open for them, and so they had to hide in the bush. At about mid-night they went to the house of one Kadiri Kisambira (PW7)• The latter opened for the children and gave them refuge until the next morning. Robinah explained what had happened and accused the Appellant of having been amongst the gang. Kadiri acknowledged that that report was made. The children went back to their home the next day and found the house in disarray, cupboards empty and marks of the bullets on the walls. P. W.2 Michlos Wakanyira, the husband of Florence corroborated the evidence of theft and violence. A search was then made for Florence, and at about 9-00 a-m. she was found lying in a pool of blood in the chicken house. shots and a Luckily the children were not seen.

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stab wound in the neck. According to carotid vessel had been severed. It transpired therefore tha^t the gang had not shot Florence witn the gun, but someone had stabbed her to death. It was not known who had had that 'sort of weapon, or how and when this occurred. That was the evidence upon which the second count was based. She had bled to death from a the doctor a

The third count concerns the evidence of Christopher Namuyoga (PW1O), who alleged that after he had heard gun shots moving towards Luzinga Trading Centre, he and the other shopkeepers there closed their shops fearing that soldiers were coming to loot at the Trading Centre. Everyone tried to hide and Hamuyoga himself hid in At a time between 6. JO and 7 p»m. he saw people coming from the direction of Kitanaba: (that is where Florence had had her clinic). One of them wheelbarrow full of things and two others were in uniforms, while one other was in civilian clothes. But he identified the Appellant gang to the shop of Abdu Magola. rear of the shop. banging at the rear door of the shop, after which he saw the men take out two bicycles from the back of the shop and other things which were passed through the front door of the shop. Namuyoga could observe what was happening because of the security lights and street lights at the was pushing a a place near his shop. centre and becase he was only about JO yards away in his place of hiding. i. When the gang left the shop he heard the Appellant say let us use the *)* railway line to Bulama. I Bullets were fired in the air, and there was a whom he called his brother-in-law leading the way, and directing his He observed the m^n^uniform^ standing infront of the house while the Appellant and another man went to the

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This account was borne out by Kamiyati Kyazike (PW11) the wife of Abdu Magola. She was in the shop and after the gang had broken into the shop they demanded that the witness should give them light. Eventually she switched on the electric lights. She was being assaulted whilst the men demanded money. vehicle coming from Nambule direction, and they decided to escape to the railway line. She also escaped from the house and took refuge in The next day she noticed the theft of the two But, fortunately, the men heard a a neighbour's house. bicycles . found^a radio cassette and shop things and cash were missing. <r\ Then she was taken to hospital.

The witness Kamiyati confirmed that the back door of the house had been broken with a stone, and she confirmed that she had seen the Appellant enter the house as one of the gang, although she also heard other people flying that he had been one of the people involved. It appears that she reported the Appellant to the Police.

There was some supporting evidence from Andrew Kitimbo (PV/8)• On his way home in the evening he had met the Appellant and three soldiers, still moving about when there was curfew. He was told to go away which he did and left them going towards Luzinga Trading Centre. About half an hour later after he had reached home, he heard gun shots coming from the direction of V/akanyira' s house about a mile away. The next day he found that the deceased had died. When Andrew got to the scene he met the daughters of the deceased who said that they were only able to identify the Appellant as one of the gang. He then reported the matter to the sub county which had jurisdiction over the Appellant. and a conversation took place as to why Andrew the Muluka Chief was

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Against that there was the Appellant's defence given on affirmation. He agreed that he had been shop at Luzinga Trading Centre in 1976\* He also operated a restaurant there; but in 1978 as business was not paying well he went to Mbiko. He had not returned to Luzinga in 1979. He was arrested in October 1979 and left his wife Nglwoga there at Mbiko. He was then released in October 1980 and when he found his wife pregnant he sent her away. He married another wife His father died in 1984 after which he returned to Bulama to a businessman with a in 1982. » look after his mother and the four young children left by his father.

Although the Appellant accepted that he knew the home of Wakanyira he denied that he had ever visited it. Consequently he alleged that the children of Wakanyira had given false evidence that they knew him. He criticised Kadiri Kisambira as also giving false evidence. He confirmed that he had not gone home between January and April in 1979 because he had no money, and he was doing business at Mbiko. He alleged that they had only seen him in court. JJforeover he, totally denied the evidence of Robinah and Harriet Kizza, and he was When he/arrested in October 1979 people were called to identify him but they did not come. *-—* not^k^^m Christopher Kitimbo.

and the wife of Abdu Magola called Kamiyati. He persisted in his defence, that he had not been identified at the time of his arrest although he knew Namuyoga well and knew Magola's wife by sight. In the same way he denied the evidence of Christopher Namuyoga

Of some importance is the Appellant's account of why he was released from prison. He had been charged in Jinja court and the charge was read to him but he had not been asked to answer. He was then brought to court and granted bail because he was told that "after being on remand for 565 days and only on bail for 90 days as the Police

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were still investigating the charges were withdrawn and he would The charges were It seems that his main point in relating the facts of his release from prison is that if people had really known him to have taken part in the robbery, the matter would have been investigated and he would have been brought to trial long before 1989\* He alleged that there must be some grudge against him stemming from the time that he was a business man in Luzinga, and because of then withdrawn against him at the beginning of 1981, and he was only re-arrested in August 1989\* Once again the charges aTe read to him, be charged when the investigations were complete." a matter concerning land at Bulama\* but as they were capital offences he was not asked to answer them, / ' and he remained in custody until the trial\*

The learned Judge held that the evidence supported the charges as far as the facts of\* robbery with aggravation were concerned, and then concentrated upon the evidence of identification. The learned Judge correctly addressed her mind on the law on the subject, and was mindful of the fact that even in the case of several eye witnesses allegedly able to recognise an accused person, there was still the need for the evidence to be examined with the greatest care. a previous decision of 1977 to the effect that if the quality of the evidence of identification or recognition was poor, there woihld still be the need to search for corroboration to be sure that the accused had not been mistakenly identified. She then scrutinised the evidence and found support for recognition and the fact that there was sufficient had all known the Appellant very well before the incident; and there had been sufficient length of time within which the witnesses could observe the Appellant. Both the learned Judge and the Assessors noted the Appellant's alibi, but came to the conclusion, that the Indeedj she accepted light; the distance from the accused person was not great; the witnesses

7 - evidence for the prosecution was reliable and that the defence of alibi raised no doubt that the witnesses had truthfully and accurately recognised the Appellant as a leading member of the gang.

The Appellant appealed against this decision and pointed out that the quality of the evidence was not sufficiently strong; that no identification parade had been held nor that he was identified at the time of the incident; and that the learned Judge in some instances misdirected herself on the burden of proof.

It is our duty to examine all the evidence again; (see Dinkerrai Ramkrishan Pandya v. R. (1957) E. A. 356).

There were two parts to the defence\* One was that the witnesses could not have seen the Appellant because he was not at the clinic of Florence or the shop of Abdu Magola, since he was at another place at the time; namely at Mbiko. The second part of the defence was, that the witnesses could not have been reliable because they did not know the Appellant before the incidents charged took place. It was a matter of fact whether the identifying witnesses ha£ known the Appellant before the incident charged. There can be no doubt that Christopher Namuyoga, the tenth witness, knew the Appellant before, The Appellant must have known It then fell to the trial court to decide whether Robinah Nakato and Harriet Kizza knew the Appellant. Judging from the written record there would not appear to be any reason why these two witnesses should not be believed. It is clear that the Appellant was well known in that area, and that he often passed the clinic. It seems that these two daughters of Florence reported him to the witness Kadiri. If the witnesses were reliable on their previous knowledge of the Appellant, then there was as the appellant admits himself. Andrew Kitimbo, the Muluka Chief, at the time.

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evidence of sufficient opportunity for them to recognise him at the scene•

As against that there was the strong statement of the Appellant given on affirmation that he was not there. He pointed out that there were discrepancies in the evidence, but in our opinion, they were not serious. Perhaps the matter of greatest concern, is the way in which the Appellant was first released on bail, and then after many years, re-arrested.

According to the Appellant, no witnesses came to identify him after his arrest in October 1979, or at any time until his first release in 1981. So his main defence was that he had stayed in Mbiko without going back to Bulama and therefore he could not have been seen. A further defence was that the witnesses had not acted in a way consistent with having seen him. Why was the case still being investigated According to him he had worked in public places where he could have been seen and arrested earlier than he was. in 1981 when he was known to have been involved?

We have carefully evaluated this defence. It is apparent from the defence that the Appellant did not linger in Bulama or Luzinga Trading Centre after the incidents charged. how he could have been contacted at Mbiko. Assessor Waibi asked an important question, as to the Appellant's real knowledge of the lack of witnesses coming to identify him. The Appellant answered:- It is difficult to see

> ii "1 did not know whether the investigating officers summoned all the prosecution witnesses to come to police and identify me buu they failed.

It is plain that the defence is not that the witnesses failed to recognise him positively, but that he did not see anyone coming to identify him. That situation depends upon wha^t the police could do at this time of turmoil and change of Government. As the witnesses

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They had thought that the gun fire heralded the approach of the army. It is common knowledge that ordinary procedures did not always develop in a coherent fashion from 1979 for some years. released pending further investigations is consistent with the situation at that time. Cn the question of fact, whether the witnesses had known the Appellant before the incidents charged, there was evidence which the Court and the Assessors could prefer to the defence that they had known him before these incidents on Jrd April 1979- If that were true then it would have been proper for the Police not to have carried out an identification parade, or allow the witnesses to confront the Appellant. Consequently we cannot find in the record any firm evidence that the witnesses could not identify . or recognise the Appellant during the investigations." It is unfortunate that the Appellant\* s re-arrest and trial were long delayed, but that we think was part and parcel of this difficult situation experienced at that time. Nevertheless as the defence stands it must now be weighed with the prosecution case. The Appellant\*s statement that he was explained this was a time of civil war.

Weighing up both sides, as we are bound to do, in the light of the observations of the witnesses by the trial Court and the Assessors, as directed in Pandya\*s case above, there was very strong evidence of recognition that the Appellant was at the scene of the clinic of Florence and the shop of Abdu Magola. The burden of proof however lies on the prosecution to prove its case beyond reasonable doubt. Despite the length of time that elapsed before the Appellant was finally arrested, charged and brought to trial, and despite the criticisms of the Appellant, we do not think that the defence raised any reasonable doubt that the Appellant took a leading part as one of the gang in both incidents as charged. have reached the conclusion that the convictions on counts 2 and 3 were sound. 11/... Consequently we

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mandatory. The prevailing opinion at present is that the death sentence should be passed on each count. Fortunately it was passed on count 2 in this case and not on count ¹ alone. For a person of the Appellant's age, the death sentence was

Before we take leave of this case, draw attention to the way in which the evidence of the prosecution should be examined and weighed against the evidence of the defence, final decision is not taken until all the evidence has been considered. When the learned Judge scrutinised the evidence of Robinah Nakato it was permissible to come to the conclusion that the witness appeared to be intelligent and reliable. That was all that was necessary at that stage. (The finding of correct identification could only come after the strength and defects in the prosecution case and the defence had been considered.) so that a we would like once again, to

Similarly in the case of Harriet Kizza it was permissible to point out why she impressed the learned Judge as a truthful witness; but it was not right at that stage to say:-

> a "1, therefore, hold that FW9, Kizza, like her sister, correctly identified the accused as member of the gang."

If the witnesses are found to have correctly identified an accused at an early stage, i.t tends to devalue the consideration of the defence later on. The proper approach, have tried to illustrate above , is to consider the strength and weakness of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the case is true and accurate, then the witnesses can be found to have prosecution as we

correctly identified the Appellant as the person who was at the scene of the incidents as charged. He is at that final stage correctly placed at the scene.

Secondly, if the medical evidence does not ta:ly with the prosecution case, discrepancy must be investigated. If, because of the death or absence of a doctor a discrepancy such as the one in this case, cannot be investigated, it is not usually possible to speculate whether or not the accused might have been able to acquire an instrument to cause the death in the way the doctor described. One may not for instance say; th<" so as

> "Although no evidence was adduced to say that the assailants were armed with sharp weapons there is nothing to suggest that they did not have for instance bayonets. There is no evidence to show that an open wound could net be inflicted with any part of the gun or bullets. It seems the murder was committed in the home, where the Court will take judicial notice that there must have been knives used for domestic purposes."

The learned Judge held that whatever weapon was used in whatever manner, the circumstantial evidence irresistibly pointed to the gang which raided the home of Florence as having killed her. With great respect, this is not a proper approach. If the man dressed in army uniform had a bayonet that fact should have .been proved. The sort of knife which might have caused the wounds ought to have been in evidence• Whether or not there were knives present in the house ought to have been in evidence. If any knives were missing, which could have caused the fatal wounds chat should have been in evidence. The problem that the way the deceased died was not seen, and gun or bullets could have caused the wounds, that possibility should have been in evidence. There might be cases where, though the fatal blow was not seen, the circumstantial evidence proved that it could have only been the accused who caused it. But where the prosecution assumption was that the deceased was shot by if it was held that a with this case was

the men having guns, and the medical evidence did not apparently support that assumption; and when the time which elapsed after the accused left the scene and before the deceased was found, was such that other people could have intervened; it is difficult to say beyond reasonable doubt, that the Appellant's gang caused the death of Florence\*

Thirdly, there was the problem of operating Section 64 of the Trial on Indictments Degree after P.obinah Kaka to had given evidence. It is apparent from the terms of Sections 64 and 65, that after the preliminary hearing, as provided fcr in Section 64, has been completed, each assessor shall take an oath impartially to advise the Court, to the best of his knowledge on the issues pending before the Court. There can be no doubt that the preliminary hearing should be concluded before the trial commences. One should not revert to the preliminary hearing after the main hearing has been commenced. Moreover it is not correct to admit avidence by consent, simply because witnesses Section >0 of The 2vidence ;■ ct controls the admissibility of statements of dead or absent witnesses\* It would put in. Consequently . ,if a dead or absent witness is sought to be relied on by consent, then the Judge must satisfy himself or herself that the facts needed to prove admissiblity. It may also be that statements decide the question of liability. Having done so in this, the basis of the prosecution would be that Florence had been stabbed. as Part of the preliminary hearing, are dead or absent. statement of a be improper to consent to evidence, wh'ch is inadmissible, being of other witnesses may be consented to, upon which the Judge can statement is admissible, and,, if necessary, take evidence of the

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Any other supposition would have to be investigated thoroughly, as we have said. But all these errors have been catered for in this judgment• In the first place, evidence, and in the second place, the Appellant's acquittal on count 1, has taken care of problems relating to the nature of the wound causing the death of Florence. we have ourselves reassessed the

In the result therefore, the conviction on count ¹ is quashed and the sentence set aside, while on counts 2 and J the convictions are confirmed and the sentence of death on each count is upheld.

Delivered at Mengo this ... day 1992.

S. T. MANYINDO

DEPUTY CHIEF JUSTICE

H. G. PLATT JUSTICE CF THE SUPREME COURT

OURT E. E. SEATON JUSTICE OF THE SUPREME

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