[2005] UGSC 32

## THE REPUBLIC OF UGANDA IN THE SAPREME COURT OF UGANDA AT MENGO

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

## CRIMINAL APPEAL NO,3 OF 2OO4 BETWEEN

| NUUHU ASUMAN KIBUUKA: | | APPELLANT | |-----------------------|-----|------------| | | a/s | | | UGANDA: | | RESPONDENT |

(An oppeal from the decisiotr of the Court of Appeol al Kampala (Hon. Justices S. G. Engwau, C. M. B. Kitumba and C. K. BytmugishQ dated ^Idt' June 2004, iu Criminal Appeol No. 23 of 2000).

## . IIIDGMENT OF THE COURT

1.,

,/

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 ( I )(a) of the Penal Code Act and sentence of 20 years imprisonment.

The brief facts of the case were as follows:

The appellant and Aida Nankya, PW1 lived in his home atKazo as husband and wife despite thc f-act that they were related as uncle and niece, PWI being ^a daughter of the appellant's brother. They eventually produced a baby boy, lbrahim Kibuka, who was aged 6 months at the time he was kidnapped.

Mariam Nansubuga. PW4 who was the sister to PWl. knew about the love affairs between the appellant and PWl because when the appellant and PWI were still in love, the appellant used to send money to PWI through her (PW4). However, in 1998, PWI left the appellant's home and went to live at Natete with her brother, Asumani Mukasa, PW3.

On the night of 24'h October 1998, at 8.00 p.m., the appellant sent for PWI to go and meet him. PWI left her brother's home and went to meet the appellant, but she retumed to her brother that same night. Later the same night at I 1.00 p.m. the appellant sent for her again. Ilowever, her brother, PW3, this time requested PWI to take her child with her which was crying. PWI took her child with her when she went to mcet 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. PWI handed the child to the appellant. The appellant did not return the child to PWl. He, instead, entered a stationary special hire vehicle which he entered and was driven arvay together rvith the child. PWI retumed to PW3, crying saying that her child had been taken away by the appellant. PW3 advised her to report to the authorities on the lollowing day. On the following day, PWI reported the matter to her mother who advised that she should report to the authorities. PWI tried to trace thc appellant at his home but could not find him. She reported to authorities and latcr to a Police Station. The appellant was later arrested. The chilcl. Ibrahim Kibuka, has never been seen alive again. The appellant was indictcd with kidnapping with intent to murder.

In his defence, the appellant denied the charge and pleaded the defence ofalibi to the cffect that at the material tirne 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 latcr went to his own home and slept tilt the

following day. He denied having indulged in an incestuous relationship with PWL He called DS/2 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 thc Court of Appcal was dismissed and hence this appeal. The appellant has filed the following fbur grounds of appeal.

- (l) Thal the leurned Juslices of Appeil eted in law ond fact when they litund that it is the appelltnl n,lto kidnapped pwl's chiltl; - (2) Thot the leurned Justices of Appeal erred in low and fact when they /hileil to properly re-evaluate ull the evidence before it and thereby arroneousll' confirmed thc conviclion of the appellanl; - (3) 'l'hat lhe leunred Justices ot'Appeal erred in law ondfact on the issue of tlibi and os u result urrived al o wrong decision; - (4) That the sentence of 20 years was harsh and excessive in the circumstonccs.

Mr. Ojokol, counsel for the appcllant, in written submissions argued grounds I and 2 together. Hc submitted that the offence of kidnapping with intent to murder comprises ol'two elements; namely, the prohibited conduct of or taking away by tbrce or liaud 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 lbrohim Bilal - vs - Uganda, Cr. Appeol No. 5 of 1995 (SC) lunreported) Ibr the.above proposition.

)

Counse-l 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 PWI's child, it was his contention that the Justices of Appeal never properly directed themselves on the law and evidence in respect of the charge of kidnapping with intcnt to murder. He cited the cases of Abbasi & Anor - vs - Ugandt, Cr. Appeul No. I0 of 1995 (SC) ond Bogere Charles - vs Uganda, Cr. Appeal No. l0 of 1997 (SC/ (unreported) for the proposition that the first appellate Court has a duty to properly scrutinise and re-evaluate the evidence of both thc prosecution and the defence. He concluded that if it had done so, it would have found that the evidence of identification ofthe appellant by PW I did not rulc out the possibility of mistaken identity or even of a frameup. Counsel cited section 6(l)(a) of the Judicature Act and the cases of Kifamunte Henry - vs - agonda, Cr, Appeol No. 10 of 1997 (SC) and Bogere Moses & Komba - vs - Ugondo Cr. Appeol No. I of 1997, (SC) (unreported), for thc proposition that except in the clearest of cases, this Court as a sccond appellate court, is not required to re-evaluate the evidence like a lirst appellate court. Counsel contended that the instant case was one of the clearest of cases which makes it incurnbent upon this Court to re-evaluate the evidence. He subnritted that in the instant case PWI was a single identifuing witness who clairncd to have identilled the appellant when the appellant took away the chitd fi'om her (PWl ) and therefore, her evidence required corroboration.

Counscl submitted that there was no witness who corroborated PWI's evidence to the c.t'fect that thc appellant kidnapped the chitd. He submitted that PW3's evidence to the eflcct that whcn she went away at night with the child and returned without it, crying that the appellant had taken it from her could not corroborate PWI's evidence on reliance on section 155 of the Evidence Act, since no Police repolls were produced to couft 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 murdcr. 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 if the victim had not been seen or heard of within a period ol six months or more. This presumption is provided for under section 235(2) of the Penal Code Act as follows:

"Where o persott v kidnupped or leluine is lhereafter nol seen or heard of wilhitt u periotl o/ si-r months or nrore, the occused person sholl be presumed to hava hul the intetrtion und knon,ledge stipulated in parogmph (a) and (b) of subscction (l)."

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

Counscl submitted that in thc case ol Mukombe Moses Bulo (supra) the court held that sub-section (2) olsection 235 ofthe Penal Code Act casts a burden on the appcllant to provc 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 ret-erence 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 I and 2 should succeed.

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

She subrnitted that the Justices of Appeal properly directed their minds to the law and evidencc in respect of the charge of kidnapping with intent to murder contrary to section 235 (lXa) of the Penal Code Act. She was in agreement with counsel for appcllant regarding the ingredients which constitute the offence charged. Counsel also agreed with counsel for the appellant that the Court of Appeal as a firs1 appellate court had a duty to re-evaluate the evidence for both the prosecution ancl the deli'nce 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 evidcnce of PW3, the learned Senior State Attorney submitted that thc prosecutiou cvidence was not that he saw the appellant take the child, but that he saw PW I 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.

Leamctl Senior Statc Attorney subrnitted that the Justices of Appeal rightly applied section 155 of the Evidcnce Act when they held that PW3's evidence corroborated PWI'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. Counscl subrnitted that throughout the trial, the leamed trial judge found and the Justices of Appeal agreed that although PWI was a single identifoing witness, she was truthful and credible whose evidence was corroborated by other pieces of evidcnce.

On the issue of specific intent to cause the victim to be murdered, and omission of sub-section 2 ol'scction 235, the Senior State Attomey's reply was that it was not necessary to include that sub-section in the Indictment. She cited section 22 of the-Irial on Indictment Decree (TID) which clearly stipulate what should be containcd in the lndictment.

She submitted that whatever was contained in thc particulars of the offence was good enough to sulficiently explain to the appcllant of what he was charged with. She subrnittccl that sub-section (2) of section 235 of the Penal Code Act is an explanation ol' how the intention in sub-section ( I ) thereof can be presumed. She subrnitted that in the instant case it was rightly presumed.

We agrce with the submissions of counsel for the appellant that the l" appellate court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and dcltnce. See ,46asi & Anor -vs - Uganda, (supra) and Bogere Chtrles - vs - Ugonda, (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 j ustices of Appeal scrutinised and re-evaluated the evidence of both sides and considered how the learned trial judge had treated the evidence of PW I as a singlc identi\$,ing witness during conditions which were not favourable tbr correct identification. They never faulted her finding that she was satisfied that PWI knew the appellant before as they were related and as she had rnet him (appellant) that night. They did not fault her finding of her observalion as to her demeanour and truthfulness.

ln our view, the Justlces ol Appeal rightly found that PW3's evidence corroborated PWI's evidence that it was the appellant who kidnapped the child. They tbund that PWI'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 therefbre satisfied the provisions of section 155 of the Evidence Act, which providcs as follows:

" 155. I tt order to utrroborale the lestimont of u witness, any former slalemenl made h!' such n,imess relating to lhe some fflcl ot ot about lhe time when the ftrcl took pluce, or hefore any uuthorily legill1' compelent to investigate the fact, nruy be proved."

We reitcrate what u'c stated in the case of Ndaula John Cr. Appeal No. 22 of2000 thatt's Ugandu (SC) "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 the former 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 viewed in that context."

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 of section 155 of the 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 her judgment 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

impliel if the victint remuins unoccounted for, for slr months or over. It is nol in ilispute therefore lhal the accused had a contemporaneous intent lo murder since all evi ence indicote lhat lhe victim has never been recovered todate. Rcliance on sectiott 235(2) of the Penal Code Act does nol burden the prosecution with uny further need to prove the intenlion for lhe offence. Relying on sectitttt 235(2) of the Penal Code Act, the accused is assumed lo have had lhe tlesired inlention lo comnit the offence."

The learned trial judge tbund the accused guilty and convicted him for kidnapping with intcnt to rnurder contrary to section 235(l)(2') of the Penal Code Act.

We think that although the prosecution ornitted to mention sub-section (2) of section 135 of thc Pcnal 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 ol-lence for which he was tried. The particulars of the offence in this case took carc of that omission when it stated:

"Nuuhu Asunruni on tha night of 24'h/25'h rtf October 1998, ot Notele in Kompulu District.forcefttll)' took nwur lhruhim Kibuko aged oboul 6 monlhs from its mother uguittst her will, v'ith intent thal such a child may be murdcrcd or nru1'be so disposed of as to be in danger of being murderetl."

Be that as it rnay, we do not aglee with the submission of the leamed Senior State Attomel'that it was not necessaly to include sub-section (2) of section 235 of the Penal Codc Act in the statement of the offence. In our view, the inclusion of the sub-section is necessary for the purpose of informing the appellant the relevant ingredient rvhich the prosecution must prove in order to secure ^a conviction against the accused.

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 bc presurned. In our vierv, the prosecution evidence, brought out the lact that sincc its kidnap in October 1998, the child has never been seen or heard of'. Therefore, the intention to murder was rightly presumed and proved.

Consequcntly, we cannot lault the Justices of Appeal for confirming the findings of the learned trial judge. In the result, we find no merit in grounds ^I and2.

Ground I raised the issue olwhether the Justices of Appeal erred in law and fact on the dcl'ence o1'alibi. Thc law on the defence of alibi is well settled and is lhal - ",4n acc'usctl pcrson who ruiscs o de/bnce of alibi does not have a burden of proving r/. " See Sekitoleko -vs - Ugando 1967 EA 531, R -vs - Johnson U96ll ALLER 967, Leonard Aniseth - vs - Republic [1963 EA 206.

The mode of evaluation ofevidence in case where the accused raises an alibr rn his def'errce was settled by this court in the case of Moses Bogere & Another vs - Ugtndt (SC) Cr. Appcul No. I of 1997. 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 accused person 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 of the 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 of sentence. It provides that:

"In the case of an appeal against a sentence and an order other than one fixed by law, the accused person 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: $4.4.4$ day of: N.

ember $B. J. ODOKI$

*2005.* ¹

**CHIEF JUSTICE**

$A. O. \Theta BER$ JUSTICE OF THE SUPREME COURT

$\mathcal{J}$ . W. $\mathcal{N}$ JUSTICE OF THE SUPREME COURT

A. N. KĀROKORA JUSTICE OF THE SUPREME COURT

*IHAMBA*

**JUSTICE OF THE SUPREME COURT**