[2005] UGSC 35

## *THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA ATMENGO*

## *(CORAM: ODOKI, CJ; ODER; TSEKOOKO; KAROKORA; AND KANYEIHAMBA; JJSC.)*

## *CRIMINAL APPEAL NO. 3 OF 2004 BETWEEN*

| NUUHUASUMANKIBUUKA: | | APPELLANT | |---------------------|----|------------| | | VS | | | UGANDA: | | RESPONDENT |

*(An appeal from the decision of the Court ofAppeal at Kampala (Hon. Justices S. G. Engwau, C. M. B. Kitumba and C. K. Byamugisha) dated 10th June 2004, in CriminalAppeal No. 23 of2000).*

## *JUDGMENT OF THE COURT*

This is an appeal against the decision of the Court of Appeal which dismissed the appellant's appeal against the conviction by the High Court for the offence of kidnapping with intent to murder contrary to section 235 (l)(a) of the Penal Code Act and sentence of 20 years imprisonment.

The brieffacts ofthe case were as follows:

The appellant and Aida Nankya, PW1 lived in his home at Kazo as husband and wife despite the fact that they were related as uncle and niece, PW1 being a daughter of the appellant's brother. They eventually produced a baby boy, Ibrahim Kibuka, who was aged 6 months at the time he was kidnapped. Mariam Nansubuga, PW4 who was the sister to PW1. knew about the love affairs between the appellant and PW1 because when the appellant and PW1 were still in love, the appellant used to send money to PW1 through her (PW4). However, in 1998, PW1 left the appellant's home and went to live at Natete with her brother, Asumani Mukasa, PW3.

On the night of 24th October 1998, at 8.00 p.m., the appellant sent for PW1 to go and meet him. PW1 left her brother's home and went to meet the appellant, but she returned to her brother that same night. Later the same night at 11.00 p.m. the appellant sent for her again. However, her brother, PW3, this time requested PW1 to take her child with her which was crying. PW1 took her child with her when she went to meet the appellant. On reaching where the appellant was, the appellant requested to be allowed to hold the child as he used to do in the past. PW1 handed the child to the appellant. The appellant did not return the child to PW1. He, instead, entered a stationary special hire vehicle which he entered and was driven away together with the child. PW1 returned to PW3, crying saying that her child had been taken away by the appellant. PW3 advised her to report to the authorities on the following day. On the following day, PW1 reported the matter to her mother who advised that she should report to the authorities. PW1 tried to trace the appellant at his home but could not find him. She reported to authorities and later to a Police Station. The appellant was later arrested. The child, Ibrahim Kibuka, has never been seen alive again. The appellant was indicted with kidnapping with intent to murder.

In his defence, the appellant denied the charge and pleaded the defence of alibi to the effect that at the material time he was at the Mosque between 7.00 p.m. and 10.00 p.m. praying. He stated that after his prayer, he went to the home of Yusuf Kurumba DW2, and later went to his own home and slept till the

following day. He denied having indulged in an incestuous relationship with PW1. He called DW2 to support his alibi.

The learned trial judge believed the prosecution evidence, rejected the defence of alibi, convicted and sentenced him as already stated.

His appeal to the Court of Appeal was dismissed and hence this appeal. The appellant has filed the following four grounds of appeal.

- *(1) That the learned Justices ofAppeal erred in law and fact when they found that it is the appellant who kidnappedpwl 's child;* - *(2) That the learned Justices of Appeal erred in law and fact when they failed to properly re-evaluate all the evidence before it and thereby erroneously confirmed the conviction ofthe appellant;* - *(3) That the learned Justices ofAppeal erred in law andfact on the issue of alibi and as a result arrived at a wrong decision;* - *(4) That the sentence of 20 years was harsh and excessive in the circumstances.*

Mr. Ojokol, counsel for the appellant, in written submissions argued grounds ¹ and 2 together. He submitted that the offence of kidnapping with intent to murder comprises oftwo elements; namely, the prohibited conduct of or taking away by force or fraud and secondly the specific intent to commit an offence of murder. He cited the cases of *Mukoome Moses Bulo -vs - Uganda Cr. Appeal No. 12 of 1995 (SC) and Ibrahim Bilal - vs - Uganda, Cr. Appeal No. ⁵ of1995 (SC)* (unreported) for the above proposition.

**3**

*vs vs* Counsel submitted that although the Court of Appeal after reviewing the evidence on record concluded that the learned trial judge properly evaluated the evidence and came to the right conclusion that it was the appellant who kidnapped PWl's child, it was his contention that the Justices of Appeal never properly directed themselves on the law and evidence in respect ofthe charge of kidnapping with intent to murder. He cited the cases of*Abbasi & Anor* - *vs - Uganda, Cr. Appeal No. 10 of 1995 (SC) and Bogere Charles Uganda, Cr. Appeal No. 10 of1997 (SC)* (unreported) for the proposition that the first appellate Court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and the defence. He concluded that if it had done so, it would have found that the evidence of identification ofthe appellant by PW1 did not rule out the possibility ofmistaken identity or even of a frameup. Counsel cited section 6(1 )(a) of the Judicature Act and the cases of *Kifamunte Henry - vs - Uganda, Cr. Appeal No. 10 of 1997 (SC)* and *Bogere Moses & Kamba - vs - Uganda Cr. Appeal No. ¹ of 1997, (SC)* (unreported), for the proposition that except in the clearest of cases, this Court as a second appellate court, is not required to re-evaluate the evidence like a first appellate court. Counsel contended that the instant case was one of the clearest of cases which makes it incumbent upon this Court to re-evaluate the evidence. He submitted that in the instant case PW1 was a single identifying witness who claimed to have identified the appellant when the appellant took away the child from her (PW1) and therefore, her evidence required corroboration.

Counsel submitted that there was no witness who corroborated PWl's evidence to the effect that the appellant kidnapped the child. He submitted that PW3's evidence to the effect that when she went away at night with the child and returned without it, crying that the appellant had taken it from her could not corroborate PWl'^s evidence on reliance on section 155 of the Evidence Act, since no Police reports were produced to court in evidence.

On the issue of specific intent to have the victim murdered, counsel submitted that it was essential for prosecution to prove the intention of the appellant to murder. Counsel contended that the appellant was not placed in a position whereby he had to rebut the presumption. He further contended that the intention could be presumed ifthe victim had not been seen or heard ofwithin a period of six months or more. This presumption is provided for under section 235(2) ofthe Penal Code Act as follows:

*"Where a person so kidnapped or detained is thereafter not seen or heard of within a period ofsix months or more, the accusedperson shall be presumed to have had the intention and knowledge stipulated in paragraph (a) and (b) ofsubsection (1). "*

Counsel cited the case of *Godfrey Tinkamarirwe & Anor -vs - Uganda, Cr. Appeal No. 5 of 1986 (SC)* for the proposition that in law on a charge of kidnapping with intent to murder, it is necessary for the prosecution to establish that at the time of kidnapping there was a contemporaneous intent that the victim be murdered or put in danger of being murdered.

Counsel submitted that in the case of *Mukombe Moses Bulo* (supra) the court held that sub-section (2) ofsection 235 ofthe Penal Code Act casts a burden on the appellant to prove that he did not have that intention. The appellant in that case failed to rebut the presumption. Counsel submitted that in that case the charge had made reference to sub-section (2) of section 235 of the Penal Code Act, unlike in the instant case where sub-section (2) was omitted in the charge.

In conclusion, counsel submitted that the offence of kidnapping with intent to murder was not proved and therefore the Court of Appeal erred to confirm the conviction and sentence against the appellant. Therefore, he prayed that grounds ¹ and 2 should succeed.

Ms. Alice Komuhangi, Senior State Attorney supported the Court of Appeal's decision to confirm the appellant's conviction and sentence for the offence of kidnapping with intent to murder.

She submitted that the Justices of Appeal properly directed their minds to the law and evidence in respect of the charge of kidnapping with intent to murder contrary to section 235 (l)(a) of the Penal Code Act. She was in agreement with counsel for appellant regarding the ingredients which constitute the offence charged. Counsel also agreed with counsel for the appellant that the Court of Appeal as a first appellate court had a duty to re-evaluate the evidence for both the prosecution and the defence but contended that the Court of Appeal in the instant case had properly evaluated the evidence and arrived at the right conclusion.

Turning to the evidence of PW3, the learned Senior State Attorney submitted that the prosecution evidence was not that he saw the appellant take the child, but that he saw PW1 leave his house with the child going outside where she had been called and only saw her coming back, crying and reporting that the appellant had taken away the child from her.

Learned Senior State Attorney submitted that the Justices of Appeal rightly applied section 155 of the Evidence Act when they held that PW3's evidence corroborated PWl's evidence in as far as identification of the appellant was concerned. She submitted that since PW3 was in court and gave evidence on oath and was cross-examined, the production of police report was not necessary. Counsel submitted that throughout the trial, the learned trial judge found and the Justices of Appeal agreed that although PW1 was a single identifying witness, she was truthful and credible whose evidence was corroborated by other pieces of evidence.

On the issue ofspecific intent to cause the victim to be murdered, and omission ofsub-section 2 ofsection 235, the Senior State Attorney's reply was that it was not necessary to include that sub-section in the Indictment. She cited section 22 ofthe Trial on Indictment Decree (TID) which clearly stipulate what should be contained in the Indictment.

She submitted that whatever was contained in the particulars ofthe offence was good enough to sufficiently explain to the appellant of what he was charged with. She submitted that sub-section (2) ofsection 235 ofthe Penal Code Act is an explanation of how the intention in sub-section (1) thereof can be presumed. She submitted that in the instant case it was rightly presumed.

*-vs* We agree with the submissions of counsel for the appellant that the 1st appellate court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and defence. See *Abasi & Anor* -vs - *Uganda,* (supra) and *Bogere Charles - vs - Uganda,* (supra). However, we do not agree with counsel's submission that the Justices of Appeal never properly scrutinised and re-evaluated the evidence of both the prosecution and the defence.

The learned justices of Appeal scrutinised and re-evaluated the evidence of both sides and considered how the learned trial judge had treated the evidence of PW1 as a single identifying witness during conditions which were not favourable for correct identification. They never faulted her finding that she was satisfied that PW1 knew the appellant before as they were related and as she had met him (appellant) that night. They did not fault her finding of her observation as to her demeanour and truthfulness.

In our view, the Justices of Appeal rightly found that PW3's evidence corroborated PWl's evidence that it was the appellant who kidnapped the child. They found that PWl's statement to PW3 that it was the appellant who kidnapped the child was made at about the time the fact of kidnapping the child took place and therefore satisfied the provisions of section 155 of the Evidence Act, which provides as follows:

*"155. In order to corroborate the testimony ofa witness, anyformerstatement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. "*

We reiterate what we stated in the case of *Ndaiila John - vs - Uganda (SC) Cr. Appeal No. ²² of²⁰⁰⁰* that -

*viewed in that context. " "In Uganda, a former statement made by a witness, which satisfies the conditions stipulated in section 155 of the Evidence Act, is provable as corroboration of the testimony of that witness. The conditions stipulated in the section are that theformer statement must have been made either (a) at or about the time when the fact took place or (b) before any authority legally competent to investigate the fact. The statement made by the complainant in the instant case to witnesses who answered her alarm should have been*

Therefore, we agree with the Justices of Appeal that in the instant case the report by PW1 when she returned soon after the time the child was taken away from her, crying and reported to PW3 that her child had been taken away by the appellant, satisfies the provisions ofsection 155 ofthe Evidence Act is provable against the appellant.

The Justices of Appeal further and rightly in our opinion found that the evidence that PW4 was substantially truthful. They rightly, upheld the findings of the learned trial judge that PW4 knew about the love affairs that existed between the appellant and PW1 as she (PW4) was the conduit through whom the appellant sent money to assist PW1.

The issue of specific intent to cause the victim to be murdered was seriously argued by Mr. Ojakol in his submissions. The learned trial judge had addressed the issue in herjudgment in the following passage thus:

*"The fact that the accused was the father of the abducted child was neither here nor there particularly because section 235(2) of the Penal Code Act stipulates that the intention to murder at the time of taking away, can be*

*implied ifthe victim remains unaccountedfor, for six months or over. It is not in dispute therefore that the accused had a contemporaneous intent to murder since all evidence indicate that the victim has never been recovered todate. Reliance on section 235(2) of the Penal Code Act does not burden the prosecution with any further need to prove the intention for the offence. Relying on section 235(2) of the Penal Code Act, the accused is assumed to have had the desired intention to commit the offence."*

The learned trial judge found the accused guilty and convicted him for kidnapping with intent to murder contrary to section 235(1)(2) of the Penal Code Act.

We think that although the prosecution omitted to mention sub-section (2) of section 235 of the Penal Code Act (supra) in the statement of the offence ,the omission did not occasion a miscarriage of justice nor did it prejudice the appellant. The particulars of the offence must have conveyed to the appellant the offence for which he was tried. The particulars of the offence in this case took care ofthat omission when it stated:

*"Nuuhu Asumani on the night of 24th725th of October 1998, at Natete in Kampala Districtforcefully took away Ibrahim Kibuka aged about 6 months from its mother against her will, with intent that such a child may be murdered or may be so disposed ofas to be in danger ofbeing murdered. "*

Be that as it may, we do not agree with the submission of the learned Senior State Attorney that it was not necessary to include sub-section (2) ofsection 235 ofthe Penal Code Act in the statement ofthe offence. In our view, the inclusion of the sub-section is necessary for the purpose of informing the appellant the

relevant ingredient which the prosecution must prove in order to secure a conviction against the accused.

proved. We think that sub-section (2) of section 235 of the Penal Code Act is an explanation of how the intention in sub-section (1) thereof, can be presumed. In our view, the prosecution evidence, brought out the fact that since its kidnap in October 1998, the child has never been seen or heard of. Therefore, the intention to murder was rightly presumed and

Consequently, we cannot fault the Justices of Appeal for confirming the findings of the learned trial judge. In the result, we find no merit in grounds ¹ and 2.

*-vs* Ground 3 raised the issue of whether the Justices ofAppeal erred in law and fact on the defence of alibi. The law on the defence of alibi is well settled and is that - *"An accusedperson who raises ^a defence ofalibi does not have ^a burden ofproving it. "* See *Sekitoleko -vs - Uganda 1967 EA 531, R Johnson [1961] ALLER 967, Leonard Aniseth - vs - Republic [1963 EA 206.*

The mode of evaluation of evidence in case where the accused raises an alibi in his defence was settled by this court in the case of *Moses Bogere & Another vs - Uganda (SC) Cr. AppealNo. ¹ of1997.* There we stated:

*"Where the prosecution adduces evidence showing that the accused person was at the scene of crime, and the defence not only denies it, but adduces the evidence, showing that the accusedperson was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted. "*

The learned Justices of Appeal reviewed all the evidence both for the prosecution and the appellant and concurred with the learned trial judge in rejecting the appellant's alibi. We agree with the conclusion ofthe two courts. Mr. Ojakol, counsel for the appellant has not persuaded us that either court erred.

Therefore, grounds 3 fails.

Ground 4 raised the issue of right of Appeal against severity of sentence of imprisonment to this Court.

Section 5 of the Judicature Act deals with appeals to the Supreme Court in Criminal matters. Its sub-section 3 specifically debars appeals to this Court against severity ofsentence. It provides that:

*"In the case of an appeal against a sentence and an order other than one fixed by law, the accusedperson may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence. "*

The sentence of 20 years imprisonment is not unlawful. The ground must therefore fail.

All in all, we find no merit in this appeal. It is accordingly dismissed.

*Dated at Mengo this: da of:* , *2005. B.f/ODOKI CHIEFJUSTICE*

*A. O. O&ER-^f^, JUSTICE OF THESUPREME COURT*

*J. IV. N. JTSEKOOKO*

*JUSTICEQEM1IESUPREME COURT*

*A. N. KAROKORA JUSTICE OF THESUPREME COURT*

*YEIHAMBA* IK *KAI*

*^SUPREME COURT ^—JtJSTICE OF TH*