[2010] UGSC 42

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

#### AT MENGO

TSEKOOKO, KATUREEBE, OKELLO, TUMWESIGYE AND (CORAM:

### KISAAKYE, JJ. SC.)

### CRIMINAL APPEAL NO. 22 OF 2004

#### **BETWEEN**

**ORYEM RICHARD:**

$\cdots \cdots \cdots$ **..........** $\cdots\cdots$

APPELLANT

$\mathbf{1}$

### AND

**RESPONDENT** $\cdots\cdots$ $\cdots\cdots\cdots$ $\cdots\cdots\cdots$ **UGANDA:** $\cdots\cdots$

> (An appeal from the Judgment and Orders of the Court of Appeal (Mpagi-Bahigeine, Kitumba and Byamugisha, JJ. A), dated 14^th October 2004, at Kampala in Criminal Appeal No.61 of 2001 from High Court Civil Suit No. 64 of 1992).

# JUDGMENT OF COURT

This is a second appeal from the decision of the Court of Appeal which confirmed the conviction and sentence passed by the High court.

The prosecution case as accepted by the two lower courts is that on 07-07-99 at about 7.30 p.m. at Nyendo Motor Cycle Riders' (Boda - Boda) Stage in Masaka District, the appellant, Oryem Richard, and A1 (who did not appeal), approached the complainant, Mbogo, PW.7 who was a bodaboda rider. They asked him to transport them to Captive. He had not known them before. However, after ten minutes of negotiation they agreed on the fare and set off for the destination. On the way along Captive Road, the appellant and A1 told the complainant that they had reached. When the complainant stopped, the appellant and A1 ordered him to surrender the motorcycleorlosehislife.oneoftheassailantspulledoutaknifewhichhe held threateningly at the complainant' At this stage' the scared complainant surrendered to the assailants the key of the motor cycle and they rode off. The complainant meanwhile returned to Nyendo boda-boda stagewherehereportedtohisfellowboda-bodariderswhathadhappened to him. The report sparked off sympathy from the boda-boda riders who rode in two directions chasing the robbers' Some rode towards Captive' the directiontakenbytherobbers,whileothersrodetowardstheTownmaking alarm which alerted many people' The appellant and A1 were sighted at ^a Petrol Station refueling the motor cycle' Hearing the alarm and sensing danger, the two rode off on the motor cycle as they were chased' Soon theyfelloffthemotorcycleandAlwasarrested. Hesustainedinjurieson the left side of his head, shoulder, left forearm and on the right knee joint' The appellant however, escaped but was arrested a week later' At the time of his arrest, he attempted to run away' He had some injuries and scars'

The two were eventually charged with capital robbery contrary Sections ²⁷²and 273 (z)of the Penal Code Act which they both denied' At the trial' the appellant set up an alibi in his defence stating that he was in the church at the time when the offence was allegedly committed'

1/

ln his judgment, the trial judge while holding that he was satisfied that the appellantparticipatedinthecommissionoftheoffence,observedonthe evidence of identification by PW'7 that "PW'L (sic) stated that it was A2whoevennegotiatedthefare. Hetalkedtohimforl0minutesand could not have forgotten him so soon. The identification of A2 by 41 (sic) is supported by the conduct of the accused when he was met by PW'4' Twesiime. PW'4testifiedthatwhenheaskedA2aboutthemotorcycle,42 attempted to run away and PW.4 was just helped by other people to arrest him,,. From the said evidence of PW.4 0n the conduct of the appellant, the learned trial judge drew an inference that "such was the conduct of a guilty person." He then convicted the appellant of simple robbery and sentenced him to 10 Years imPrisonment.

The appellant's appeal against conviction to the Court of Appeal was has now appealed to this court on the following two dismissed. He grounds:-

- (1) The learned Justices of Appeal erred in law when they failed to properlydirectthemselvesontheevidenceofidentification imPlicating the aPPellant. - (2)ThelearnedJusticesofAppealerredinlawwhentheyreliedon inference drawn from circumstantial evidence that is not supported by the evidence on record'

At the hearing of the appeal, Mr. stephen Mubiru. learned counsel for the appellant argued the two grounds together' He criticized the learned Justices of Appeal for their failure while re-evaluating the evidence to

consider whether PW.7 on whose evidence of identification the learned trial Judge so heavily relied, had known the appellant before this incident or not. He submitted that if PW.7 had not known the appellant before, as he admitted in his evidence, then in the absence of evidence of an identification parade to test the evidence of PW.7 claiming to have identified the appellant at the scene of crime, that evidence of identification should not have been found devoid of error as dock identification has its limitations. Dock identification cannot test the evidence of a stranger witness claiming to have identified the suspect at the scene of crime.

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Learned counsel further criticized the re-evaluation of the evidence by the learned Justices of Appeal when in so doing, they did not notice that the learned trial judge drew an inference from circumstantial evidence which is not supported by the evidence on record. He pointed out that in his judgment, the trial judge stated that P. W.4 testified that when he asked A2 about the motor cycle, A2 attempted to run away. Learned counsel submitted that the alleged inquiry by PW.4 of the appellant about the motor cycle is not reflected in the evidence of PW.4. According to counsel, had the learned Justices of Appeal properly re-evaluated the evidence on record, as they should have, they would have found that there is no evidence to link that conduct of the appellant to guilt. The attempt to run away could be explained on the appellant's earlier brush with the law. He finally submitted that there was not sufficient evidence to sustain the conviction of the appellant and prayed that it be quashed, sentence set aside and the appellant set free.

$\overline{4}$

Mr. Vincent Okwanga, Senior Principal Sate Attorney and learned counsel for the respondent, supported the confirmation of the appellant's conviction by the Court of Appeal. While conceding that the evidence of PW.4 regarding the circumstances of the arrest of the appellant is not clear, Mr. Okwanga contends that the evidence of PW.4 still connects the appellant to the offence. He pointed out that PW.4 saw the appellant and A1 conversing only one hour before the robbery of the motor cycle and that at the time of his arrest the appellant had scars and bruises. He submitted that the conduct of the appellant in attempting to run away at the time of his arrest was not the conduct of an innocent person. He concluded that there is sufficient evidence to support the appellant's conviction and prayed that the appeal be dismissed.

$\tau = \tau^{-1}$

$\mathbf{z} \rightarrow \mathbf{z}$

The issue here is whether the Court of Appeal failed in its duty to carefully re-evaluate the evidence on record and that if it had done so it would have come to a different conclusion.

We should point out at this stage that rule 30 (1) of the Court of Appeal Rules places a duty on the Court of Appeal, as first appellate court, to reappraise the evidence on record and draw its own inference and conclusion on the case as a whole but making allowance for the fact that it has neither seen nor heard the witnesses. This gives the first appellate court the duty to re-hear the case. This principle was re-stated in the much cited case of PANDYA V R (1957) EA 336 AT 337 and was subsequently repeated in several decisions of this court. See Bogere Moses & Anor Vs Uganda, Cr.

$\mathsf{S}$

APpeal No. 1Of 1997, Bogere Charles Vs Ueand a,Cr. Appeal No. 10 OF @to mention but a few'

lnthelattercase,thiscourtstatedthatfailuretodischargethatduty constitutes an error of law'

lntheinstantcase,thecourtofAppealconsideredtheappellant'sappeal before it by first observing that the learned trial judge carefully directed his mind to the law regarding identification by a single witness in terms of the principle laid down in NABUIERE AND OTHERS VSUGANDA ^cR. APPEAL NO. 1()F L978 (UNREPO RTED). Thereafter, it cited a passage from the .iudgment of the trial judge where he considered the conditions under which P.w.7 claimed to have identified the appellant' The following was the passage cited:-

"ln the instont cose, it wos 7'30 p'm' which in tropicol lJgando wos still light enough to see o Person with oll his lociol feotures ond stoture il neor. The two people tolked to P'W'7 for 1O minutes before they rode off' The distonce from P'W'7 and the people who hired the motor cycle was with oll the proximity one would require to tolk to the other on o subiect thot required negotiotion. ln oll the length ol time, the distance lrom edch other ond the light conditions were oll so fovouroble for positive identificotion ol the two by P'W'7 would not hove required corroboration. Althoughitwouldhovesuf|icedwithout corroborotion, it was corroboroted in many porticulars"'

After that, the learned Justices of Appeal referred to the appellant's alibi which they summarily dismissed as a blatant lie as P. W.4 had seen the appellant and co-accused conversing an hour or so before the robbery. The learned Justices of Appeal also observed that a proven lie could be supporting evidence against the appellant.

Then they cited the following passage from P. W.4's evidence;

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"I had known Oryem Charles. He was staying in the Police Barracks where I also stay. Oryem is the tall accused.............. On 16.7.99 I was coming to court escorting a suspect, I saw Oryem and I arrested him...............he had scars and wounds. He attempted to run away but I arrested him"

On the above passage, the Court of Appeal commented as follows:-

"We entertain no doubt that if the appellant had nothing to be afraid of he had a moral obligation to cooperate with the arresting officer and explain to him that the officer was perhaps mistaken. This conduct was corroborative of the other identification evidence"

Then it dismissed the appellant's alibi as a mere smoke screen intended to mislead and deceive the court. It found that the appellant actively participated in the crime.

$\overline{7}$

It appears to us from the above excerpts, the Court of Appeal clearly did not re-appraise the evidence, especially of PW'7 who was the sole identifying witness. ldentification of the appellant was challenged on appeal before the Court of Appeal in ground No' 1' ln that regard' the appellant expected a re-evaluation of all the evidence relating to identification vis-a vis the alibi put up by him in his defence' This was not done. This was a failure by the Court of Appeal to do what the law expects of it. Had it done so, the Court of Appeal would have found that' despite theconditionsunderwhichtheWitnessclaimedtohaveidentifiedthe appellant though described by the learned trial judge as favourable for positive identification, the appellant was a stranger to P'W'7 the sole identifying witness. The witness himself emphatically admitted so' Therefore,theCourtofAppealwouldhavefoundthattheevidenceofthat witnessneededtestingtoconfirmhisclaimofidentificationatthesceneof cflme.

ln STEPHE ^NMUGUME VS UGANDA CR. APPEAL NO. ²⁰0F ¹⁹⁹⁵ this court emphasizedthatidentificationparadeshouldbeconductedincaseswhere suspects are strangers to the identifying witnesses'

ln the instant case, the appellant was a stranger to P'W'7' There was thereforeneedtoconductanidentificationparadetogivehimopportunity to pick his attackers. The circumstantial evidence provided by P'W'4 was stated to corroborate P.w.7's evidence of identification' The learned trial judge at page 52 of his typed judgment stated as follows:-

"The identification of A 2 by A.1 (sic) is supported by the conduct of the accused when he met PW 4, Twesiime. PW 4 testified that when he asked A 2 about the motor cycle, A 2 attempted to run away and PW.4 was just helped by other people to arrest him. This was an act of a guilty person"

In its judgment, after reproducing a portion of PW.4's evidence relating to his knowledge of the appellant before the motor cycle robbery, his claimed sighting of the appellant and A1 conversing an hour before the motor cycle robbery, the appellant's attempted running away and his having had scars and wounds at the time of his arrest, the Court of Appeal confirmed that the conduct of the appellant was not the conduct of an innocent person. In that way the Court of Appeal confirmed what the trial judge had said.

Clearly, the Court of Appeal did not properly re-evaluate the evidence of this witness. Had it done so, as it should have, it would have found that the evidence of PW.4 was wanting in several aspects. Firstly, PW.4 did not state any where in his entire evidence that he had asked the appellant about the motor cycle as is contained in the judgment of the trial judge. PW.4 stated in his evidence only that at the time of his arrest the appellant attempted to run away. Secondly, PW.4's claim that he saw the appellant and A1 conversing an hour before the robbery of the motor cycle cannot be taken to be devoid of mistaken identity. PW.4 neither stated the distance between him on the one hand and the appellant and Alon the other nor did he claim to have talked to them. Therefore, the claim by PW.4 that he saw the appellant and AI conversing is not devoid of mistake identity.

We are further unable to accept that the attempted running away of the appellant was explainable to only his fear for the motor cycle robbery case' This is borne out from P. W'4's own evidence in cross-examination when he stated to the effect that at the time of his arrest' the appellant was faclng another robbery charge and that he was probably on bail and might have been going to court' The attempted running away could therefore be explainableontheappellant'searlierbrushwiththelawandwasfearing that his bail was being wrongfully cancelled'

On the scars and wounds which P'W'4 stated that the appellant had at the time of his arrest, we could find no evidence on record to connect those scars and wounds to the motor cycle robbery' The evidence of PW'4 which isstatedtocorroboratetheevidenceofidentificationisthereforeitself wanting in the result that it cannot corroborate another evidence' Therefore, there is insufficient evidence connecting the appellant to the motorcyclerobberyintheresultthatthereisinsufficientevidenceto suPport his conviction.

ln this regard we should reiterate what was stated by this court in MUTAG UBYA GODFREY VS UGAN DA CR. APPEAI NO. 8 OF 1998 that:-

"A Court of iustice is under o duty to ensure thot people who commitcrimesorepunishedinoccordancewiththeprocessol the law. This includes proper process of investigotions ond prool by satisloctory evidence that the suspect is guilty'

In the instant case, we are not satisfied that the above standard of proof is met. Consequently, we allow the appellant's appeal, quash his conviction and set aside the sentence imposed on him. We also order that he be set free forth with unless he is being held on some other lawful ground.

Dated at Mengo this: ... $2.7^{+11}$ day of: ... $7.2010$ , $2009$ .

J. W. N. TSEKOOKO

JUSTICE OF THE SUPREME COURT

Po Ballali

**B. M. KATUREEBE**

JUSTICE OF THE SUPREME COURT

M. OKELLO


JUSTICE OF THE SUPREME COURT

Kusaalaye

E. M. KISAAKYE

JUSTICE OF THE SUPREME COURT