[1990] UGSC 23

### IN TEE SUPREME COURT CT UGANDA

#### AT

## riminal appeal no. 1/86

( RAM: D.3. J, & FLATT J. S. C.) WAMBUE, O. J., MANYI-'DO,

BET ^w ^E^E ^N

HITLER OJASI APPELLANT

# AND

### UGANDA RESPONDENT

(Appeal from the Judgement of the High Court of Uganda holder at Jinja (Cder,j) dated 1Jth January 1986).

### JUDG; N'T CF THE COURT:

The appellant Hitler Ojasi was sentenced to death having been found guilty of Vthe Penal Code Act). There were two counts of aggravated robbery, and on each count. *\** houses in one compound. aggravated roobery (contrary to sections 272 and 273 (2) of as wo read the judgement it se ms tnst the death sentence was imposed fl\*he^u two counts formed one series of th?its in different

On the night of l^th February, 1982, tne homestead of James Onyinyi (P.,7.5) was attached by a large number weapons. The homestaed consisted of the grass thatched houses of his wives Joyce Natocho and Janet A-ma, There were also SOL;.. oats' hut in the compound. Gabriel Macho and John Opio had visited the house of one Nyongesa to pay their condolences, but had returned at about 11 p.m. whole family settled down to sle p. They were awakened by pun shots, an ^a th ; voices of people People were dragged outside their houses, various items of clothing an'' household goods were stolen, the women raped. The matter was reported the next day\* robbery relate By th. time the case was heard Janet Auma the Prosecution relied on the evidence '-he a.r.~ The two counts of to the house of each *:;i* granaries and a as well as a house occupied by his attaching them. of robbers armed with various sons Gabriel kacho (P."'.2) and John Opio (P. J. J). had died, and

of Joyce Natocho and the two sons Gabriel and John Opio.

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The first ground of appeal challenged the conviction of robbery made finding/) of fact which would constitute the offences charged. There was no finding of theft, or that the appellant had taken part in the theft. on each count, because it was said that the learned Judge had not

In his judgement, the learned Judge had said,

number of personal "It is common ground and there is no doubt that on the night of 1^-th February 1982, the homestead and members of the family of James Onyinyi (PW5) were attacked by a large number of robbers armed with various weapons, and robbed of a and household goods."

That passage illustrates that the learned Judge accepted th ;t there had been a theft whjch was part robbery. \*orce had been used to effect this crime. The aggravated nature of the robbery was illustrated by the use of a gun, which was a deadly weapon, for the purposes of this case. There were therefore findings which would give ... conviction or convictions for aggravated robbery. . . to a of a

We were somewhat surprised by this attack by learned Defence Counsel, because later on, the learned Judge commenced his reasoning with the comment:-

> "The only issue in this case is the identity of the robbers. Was the Accused one of them? Three of the robbery victims have given accounts of their respective experience of the incident, and each said he/she recognised the Accused as one of the robbers".

> > .../3

Defence counsel gave us the impression that the identity of the appellant was not the only issue and indeed there was the other issue whether apulani the transition of the robbers in the sense of acting with common intent with the others. The learned Judge had however acted on the submission of Mr. Kintu, Counsel for the defence at the trial. He is a different person from Counsel who appeared before this Court. Mr. Kintu submitted:-

> "I concede there's evidence that there was a robery on night $13/14$ February 1982 whoever was involved made off with property from Onyinyi's home. Also seems there was a gun used. It's my humble submission that the prosecution have failed to prove who was involved in that robbery particularly whether accused was one of them."

It is plain that the learned Judge correctly set cut the issues for trial. It may be observed that in Uganda concessions may be made by<br> (under Section 64 ) IK Tride in Indictional Decree to 26 8197.)<br> the defence, a procedure which is not permitted in other jurisdictions. In the latter case, when the prosecution must prove every element of the charge, a submission which amounts to a concession can be challenged later on appeal. But when a concession may be made and the prosecution is thereby relieved of proving that fact or facts, that cannot easily be reviewed on appeal, unless there are exceptional circumstances of mistake or fraud <u>(inter alia</u>) when perhaps 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 indicate that Mr. Kintu chose the wrong course. There were no exceptional circumstances and therefore the concessions stand.

In any event, there was ample evidence to support the concessions. the questions However the issues on the appeal may properly cover whether the appellant was properly identified and whether he had taken part in the robbery. It is important to set out at the beginning that the

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a lesser offence and not aggravated robbery. What lesser offence was in his mind is not clear, since he opined thr.t there was not The appellant A first Assessor thought that the appellant ought to be acquitted^ and the second Assessor thought that he should be convicted of enough evidence to convict the appellant of robbery, pointed, this situation in his Memorandum of Appeal.

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

He decided to follow the principles before him there wafe two distinctions\* This was witnesses accused the appellant of bein present at the scene of the crime (and not one witness as in HOPIa), and these three witnesses However the learned Judge still decided to test the evidence with the greatest were very familiar with the appellant and so recognised him. a case where three It must be conceded that the learned Judge approached the issue *C* of identification impeccably. care^ warning himself that honest witnesses may yet be mistaken. set out in RORIA VS. RSP. (19^7) E. A\* 58g, although in the case

factors which favoured identification. they had good reason to observe the appellaxy^as he assaulted Gabriel scar in that was these witnesses the opportunity of recognising the appellant, during the incidents which occurred outside. Joyce was taken to another The learned Judge set about his task by setting out some three The^e were that the three witnesses knew the appellant very we-1/ for most of their lives; Macho with the butt of his gun>^and indeed Gabriel had a area;] Joyce Natocho had be , n raped by the appellant^ and lastly there ) A *•* ull moonlight outside their houses which would have afforded

house, and Gabriel and John Opio *were* ordered to lie down near the granary.

*5*

there are two points against the witnesses. Gabriel. The witnesses had alleged that these lamps had helped them to notice the appellant. But the learned Judgezfollowing the advice of the Assessors^disbelieved that evidence. he second point was that the granary story had not been mentioned in the police statements. On this part of the case They had claimed that there had been \$ tadoba lamp# buring in the house fixe of Joyce and^in the house of Villagers^it seems,do not ke..p their lamps burning when they sleep. T-

There ^S' id to the unfavourable factors. The attack occurred at night; the witnesses were taken by surprise; they were frightened and feared for their lives; and there occurred activities. The witnesses were being taken out of their houses and two were assaulted i.e. JoyeA- raped and Gabriel hit with a butt. They would not therefore be in a calm frame of mind to recognise the appellant. a flurry of

There was another reason why their evidence was suspect and that was because there was a grudge due to past coffee smuggling as alleged by the appellant.

her house and that of her co-wife. and the incentive to find out who the assailant was. The appellant was not a distant overload but a participant in aggression against these witnesses. There was evidence, therefore which in principle was time *I* the learned Judge could accept, that the appellant was recognised. He also came with the astonishing news th t he had been sent to The recognition could only have been by moonlight near the granary *l* by the two young men Gabriel and John Opio and by Joyce Natocho between ' *I* Yet at each place there

•/A

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assasinate the husbnd and the father of these witnesses; but that the witnesses could buy him off if they paid him money. They did demanded. not have that sum, Property was stolen. Perhaps that property was taken in lieu of payment? It seems a reasonable inference.

Against this analysis, the learned Judge had to discount the recognition by tadoba lamps and the late explanation of the granary. The first seems to have been an exaggeration. The second seems to have very There is no easy explanation of either. It seems been an addition. to be true that the statements were short, highlighting the saltent points. The learned Judge did not hesitate to criticise these faults. Nevertheless he preferred the prosecution case to that of the defence. It is suggested that because the appellant was well-known to the witnesses they may have guessed at his identity or decided to accuse him because of the trouble over the coffee smuggling. I fact he was closewhere.

provisiloes, are fund than Reversing all these aspects of the case, the learned Judge somewhich overstated the situation in favour of the defence, especially with regard to the addition of the granary incident, but nevertheless /a came to the right conclusion - at least, so we think) It is a common experience that on occasion Police statements do not contain all that happened to a witness. It is of course a matter for careful conside-Ken ration if an important episode is left out, which covers a lapse in<br>Here to hemilight outs de left he place provision of the lamps hisike.<br>another episode. Nevertheless, as the learned judge was almost over fair, and as has has been summed up the situation correctly, that the Police statements were brief and did not cover every aspect of the events that occurred, $\mathbf{1}$ : he believed the story of what happened at the granary, he was entitled to do so. Much depended on how the witnesses impressed the learned Judge. He thought that they were substantially truthful, apart from the tadoba lamps. Having in mind the nature of the attack that appears to us to have been a

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reliable conclusion. Here was an attempt at assassination, which turned robbery as the main victim was absent. '^he whole compound was being disturbed. Money was being sought in compensation. \*t would be in keeping with the situation if the two young sons of the Th; t is what they say happened. there is no reason why he should not have done so *f* into a victim, Gabriel and John Opio would be questioned and threatened. The learned Judge Relieved them/and *"*

AZ Once the granary episode is accepted, then the recognition of the appellant is assured.

The learned Judge was anxious at the lack of exhibits produced which had been stolen; and indeed this worried the assessors. But there are of course many examples of theft where no goods have been recovered. His advice on the straightforward production of evidence verdict in this case. was salutary^ but the lack of such evidence did not unsettle the

Though the appeal was well-argued,it has not convinced us that the conviction was unsound. We affirm the conviction and uphold the sentence. Consequently the appeal is dismissed.

DELIVERED at day of .. 19W Hengo this

s.w.w. CHIEF JUSTICE

S. T. MAUYIIiDO DEPUTY CHIEF JUSTICE

H. G. PLATT JUSTICE OF THE SUPREME COURT

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