[1990] UGSC 14

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$\frac{1}{2}$ CRIFICAL APPLAL NO., $1/86$ , KCONAN: NAMBUCI, C. J., CANAMACO, J. J. J. & FLANT J. S. C.) **THTUBEN**

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UGAN A

CICN- ONT

APP. ILLANT

(Appeal from the Judgement of the High Court of Uganda holden av Jinja 90(cr. C) 🙌 🐁 dated 13th January 1936).

## JUNGUMBER OF THE CCU T:

The appellant Hilter Ojasi was sentance to death the been found -uilt, of aggravated robbery (contrary to section 272 w 273 (2) of the Fenal Code Act). There are were to counts of any valua robbery, and hs we read the judgement it seems that the death orn the mas imposed on each count. The two counts formed one series of $\Box$ $\Box$ $\gamma$ in different house in one compound.

On the night of 1^th Pebuary, 1982, the homes and of James Onyinyi (F. .5) was attacked by a large number of robbers are dith verious corpons. The homestead consited of the create thate. I was of his sons Gabriel Macho (F.1.2) and John Op o (F.1.3). Find a large also sore granaries and a goat's hut in the compound. Stabljucho and John Opio had visited the house of one Myongosa to may their condolences, but had returned at about 11 p.m ? a whole family satured form to sleep. They were awakened by Bun shots, and the voice of poople ttacking them. People w ree dragged outside their works various items of clothing and hous hlod goods wir stolen, and the managed. The watter was reported the next day. By the time the cus was heard Janet Huma had died, and the Prosecution relied on the evidence of Joyce Natocho and the two sons Gabriel and John Cpio.

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The first ground of appeal challenged the conviction of robbery on each • count, because it was said that the learned Julio Lad not made findings of fact which would constitute the offences changed. There was no finding of theft, or the appellant had taken part in the chift.

In his judgement, the learned Judge had said,

"It is common ground and there is no lambt that on the night of 14th February 1982, the holdmond and members of the family of James Chyinyi $(7.5)$ are attacked by a large n mbet of robbers armed with $\nu$ clous weapons, and

robbed of a number of personal and heisehold goods."

That passage illustrates that the learned Judge accepted that there had been a theft which wis part of a rolls. Force had been used to effect this crime. The approvated nature of the robbery was illustrated by the use of a gun, which w s a deadly respeas, we the purposes of this case. There were therefore findingSchich well give rise to a conviction or convictions for aggravated robbery.

we were somewhat suprised by this attack by $\mathbb{R}^n \to \mathbb{R}^n$ referre Counsel, & bacause later on, the learned Judge commanded air reasoning with the comment:-

> "The only issue in this case in the identity of the robbers. As the Accused one of Acti? Three of the robbery victims have given nounces of their respective experience of the incitation, and each said he/she recognised the accused us an of the robbers."

Defence counsel gave us the impression that the testity of the appellant was not the only issme, and indeed there was the other issues whether the appellant was one of the robbers in the number of the common intent with the others. The learned Judge h ? a waver acted on the submission of Mr. Kintu, Counsel for the Lafence, at the trial. He is a different person from Counsel who uppeared before this Court. Fr. Kintu submitted:-

> "I concede there's evidence that i are was a robbery on night 13/14 February 1952 whoeved the involved made-

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off with property from onyinyi's home. Also seems there was agun used. It's my humble submission that the prosecution have failed to prove who was involve in that robberyparticulary whether accused >«as one of them."

It is plain that the learned Judge correctly set out the issues for trial\* It may be observed that in Uganda concessions may be made by the In the latter where the prosecution must prove every element of the charge, a subconcession can be challenged later on appeal. that cannot easily be reviewed on appeal, when parhaps *a* re-trial may have to be ordered. In the present case, the defence is bound by the concession made, unless there are exceptional circumstances. It is not sufficient to indecate that Mr. Kintu chose the wrong course. There were nm exceptional circumstances and therefore the concessions stand. a procedure which is not permitted in other jurisdictions. on Indictual Qecree No 26 8197•) ⁱ unless there are exceptional cirrmmtances of mistake or fraud (inter alia), case, *!*mission which amountsto ^a *\j* But where a concession may be made, and the prosecution is thereby relieved of proving that fact or facts, defence, (under section 64 of the Trial

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In any event, there was ample eviedence to support the concessions. However the issue on the appeal may properly cover the question whether the appellant was accurately identified and whether he had taken part in the robbery. That is what the learned judge noted. It is important to det out at the beginning that the first Assessor though that the appellant ought to be acquitted, and the second Assessor though that he should be convicted of a lesser offence and not aggravated robbery. What lasser offence was in his mind is not clear, since he opined that thwre was not enough evidence to convict the appellant of robbery. The appellant pointed out this situation in his Memorandum of Appeal.

as a whole, and in not seeing that the inconsistencies destroyed the evidence of the main eye-witnesses'. He was thus wrong to find that the appellant had been identified at the scene of the crime. He was wrong not to have weight to the appellant's alibi. The learned Judge was criticised (for not examining the evidence

It must be conceded that the learned Judge approached the issue of identification impaccably. He decided to follow the principles set out in RORIA VS. REP. (1967) E. A. \$83, although in the case *¹* ^T before him there were two distinctions. witnesses accused the appellant of being present at the scene of the crime (and not one witness as in RORIA), and these three witnesses were very familiar with thejdp^ellant.and so recognised him. However the learned Judge still decided to test the evidence with the greatest cane warning himself that honest witnesses may yet be mistaken. ^< *I* his was a case where three

The learned Judge set about his about his task by setting out some three factors which favoured identification. There were that the three witnesses knew the appellant very well for most of their lives; they had good reason to observe the appellant as he assaulted Gabriel Macho with the butt of his gun; (and indeed Gabriel in that area;) and Joyce Natocho had been raped by the appellant; and lastly, there was full moonlight outside their houeses, which wpuld have afforded these witnesses the opportunity of recognising the appellant, during the incidents which occurred outside. Joyce was taken to another house, and Gabriel and John Cpio were ordered to lie down near the granacy. had a scar

On this part of the case there are two points against the wi tnesses. They had claimed that there had been a tadoba lamp buring in the house of Joyce and one in th©^\*house of Gabriel.

at night; the withnesses were taken by surprised; they were frightened and feared for their lives; •jnd there occured Hurry of activities# The withnesses were being taken out of their house obd two were assaulted i.e. Joyce raped and Gabriel hit with a butt. They would not therefore be in a calm frame of mind to recognise the appellant. *The* attack occurred T here were then said to the unfavourable factors.

because there was a grudge due to past coffee sfiUgjling as alleged by the There ^wⁿ s another reason why thier evidence was suspect and that was=b appollant.

The recognition could only have been by moonlight near the granary by the two young men Gabriel and John Opio and by Joyce Natocho between her house and that of her co-wife. Yet *c.*each place th .re was time and the incentive to find out who the nssr.il.-.uL wa s. The appellant was not ^a distant overlord but a part:: ci/:\nt in aggression against these withnesses. There was evidence, th .re. fore, which in principle the w-iihne learned Judge could accept, t'./.t the recognised• ®fie appeal also came with the astonishing nows that he had been sent; to assasinated the hasband and the fatn.'.r of these withnesses but that the withnesses could buy him off it they paid him money. They did not have the sum. Demanded, property was stolon. Parhaps that property was taken in lied of payment? It seems reasonable inference. appellant was

Against this analysis, the learned Judge had to discount the recognition by tadob- lamps and the late explanation c the granary. The firtt seems to have been an exag .e ation. seems to have been an addition. very easy explanation, of either. The learned Judge did not hesitate to criticize these faults. Hover theless he prefered the prosecution case to that of the defence. It is suggested that because the appellant was well-know to the- -hnesscs they may have guessed at his identity or decided to accuse hio because of the trouble over the coffee smuggling. ¹'here is no The sccon In fact ho sas else' h-.re.

Reviewing all hese spects of the case for ouru-lves, are £ean find th £hai=soae=tiKe=±he=l=ifi3?fied=«Iua\*;e

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that the learned Judge some times overstated the situation in favour of the defence this especially to with regard tc the addition of the granary incident. It is a common experience that on occasion police statements do not contain 11 that happened to a witness. It is of course a matter for careful consideration if an important epusode is left out, which then covers a lapse in another episode. Here the moonlight out side with the place of he lamps inside. Nevertheless, the learned Judge summed up the situation correctly that the Police stayements were brief and did not cover every aspect of the events that occur ed, if he believed the story of what happened at the granary, he was entitled to do so. i- uch dopendend on how the withnosses impressed the learned Judge. He tiiOU/J. G that they were substantially thruthful, apart from the tadob? la ps. Having in mind the nature of the attack that appears to us have been ^a reliable concluusion. Here was an attempt at assassination, v/h'ch turned into a robbery as th • main victim was absent. The whole compound »sa being disturbed. Money w s being sought in compensation. It woul be in keeping with the situation if the two young sons of the victim, Gi.b-iil and John Opio would be questioned and threatened. That is whet they say happened. The learned Judge believed them in preference to tho e fence of alibi and there is no reason why he should not have don so,

Once the granary episode is accepted, then th. recognition of the appellant is assured. It is supported by the ividcnce of joycc.

The 1- arned Judge was enxious at the lack of exhibits produced which had been stolen; and indeed thi.< worried the assessors. But there are of course many examples of theft whererecovered• His advice on the straightforward produ tion of evidence was salutary; but the 1- ck of such evi.ennce did not unsettle the verdict is this Ease. no goods have been

though the appeal ^wa^s well-argued, it has not convinced us that

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the conviction was unsound. V/e affirm the convictidn and uphold the sentence. Consequently the appeal is dismissed. DILIVERED x at Mengo this. J1st day of January 1990.

S. W. W. WANBUZI CHIEF JUSTICE

S. T. MANYINDO DEPUTY CHIEF JUSTICE

H. G PLATT JUSTICE OF THE SUPREME KOURT

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• • I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

^rzX. B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT.