[2000] UGSC 31

Hon Justice Kar JCom Bc<br>Final prognient.<br>27/7/2001

THE REPUBLIC OF UGAND

IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, MUKASA-KIKONYOGO, JJSC)

## CRIMINAL APPEAL NO. 7 OF 2000

**BETWEEN**

<table><tbody>TARINYEBWA MUBARAKA)::::::::::::::::::::::::::::::::: **KARIBA SOWEDI**

## **VERSUS**

**UGANDA**

**RESPONDENTS**

(Appeal from a conviction and sentence of the Court of Appeal at Kampala, Kato, Berko, Engwau, JJA., dated 24^th November, 1999 in Court of Appeal Criminal Appeal No. 25 of $1999).$

## JUDGMENT OF THE COURT.

This is a second appeal. It is from a judgment of the Court of Appeal dated $24^{\rm th}$ November 1999, confirming a conviction and sentence of death passed on $19^{\rm th}$ March 1999 by the High Court, sitting at Mbarara. The appellants, Tarinyeba Mubaraka and Kariba Sowedi, were tried on an indictment for aggravated robbery contrary to Sections 272 and 273(2) of the Penal Code.

The facts of the case as proved at the trial are briefly as follows: On 29/8/95 a trader called Swahibu gave Habasa

Francis, (PWl) Shs. 1,500,000/= to purchase coffee. Habasa Francis contacEed tlte appellanLs whom he knew deaIt. in coffee and gave the 1" appellant Shs. 5OO,O0O/= as deposiL for coffee. The appellanEs were able t.o supply him coffee worLh Shs. 350,000/=. The following day Lhe balance of Shs. 150,000/= was reLurned to Habasa who managed to purchase more coffee from oLher suppliers worth Shs. 100, OOO/=. So he remained with Shs. 1,O50,AOO/= and kept it. in an Omega bag. However, when he was returning home, he kept Shs-1,o0O,000/= rrrigh one Tema for safe cust.ody and retained ,n=. 50, 000/=.

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At abouE. 2:00.a.m. on 1"' Sept.ember L995, while Habasa and his wife Kiconco, (PW2); r^re re sfeeping, tshe door of his house was hit hard with a grindinq stone. The door broke and fell insj.de the house. A person ent.ered Ehe house flashing a torch liqhE. The int.ruder cut Francis Habasa on the left knee with a panga. Habasa got out of his bed, armed himself wiE.h his own panga and chased t.he int.ruder. There was bright. moonlight. When he got outside E.he house he found a second intruder. The two intruders engaged Habasa in a fight which lasE.ed for abouE 10 minut.es. He was able Eo recognj-se his assailants because of the brighc moonlight and also because he had seen E.hem during che day. During t.he fighC, Ehe j-ncruders kept. on asking Habasa where t.he Omega bag was. He Eold Ehem that it was in Che house. However, he disarmed A2 of t.he panga which he Ehrew in fhe house. He managed to escape from Ehem and ran to che bush. As he ran to E.he bush, he raised alarm. Aft.er he ran away, t.he inE.ruders ent.ered the house Eo geE the Omega bag and

demanded money from Kiconco (pw2) . She, too ran out of the house through Ehe rear gat.e. The intruders st.o1e Shs. 7O,OOO/= a weighing scale and a bicycle from the house.

On Ehe f olJ.owing morning when Habasa ret.urned E.o t.he house, he discovered thaE Shs, 7O,OOO/= his bicycle and t.he weighing scale had been stolen. Thereafter he was taken to Mbarara Hospital where he was admitt.ed for t.reat.ment. for t.he injuries he had sust,ained and was Ereat.ed for one mont,h.

Yorokamu Nyararj-, PW4 , LC 1 Chairman of Kicwamba cel- ] test.ified LhaE he arresc.ed the 1.. appeIJ-ant on information of one Rwakayoga. On his arrest, the 1". appellanE discfosed that he had spent the night of 3L/A/95 with r.he 2"d appeIIanE at. Kayaya school . Upon thaE informat j-on, Ehe second appellant was arrested. BoCh appellants were thereafEer charged.

In t.heir defence, each of them denied involvemenE. in Ehe robbery at Habasa,s home. Each of them raised alibj. and claimed t.o have spent t.he night in Eheir homes. The 1,. appellant denied ever dealing wiE.h Habasa in coffee business. He admitted Eo having gone E.o Nyarari on L/9/g5 tso co}lect. coffee which he had already paid for. He denied ever knowing 2"d appellant. He stated t.haE Habasa had framed him up because of Ehe dowry the first appellanC had demanded from him afEer he had separated wiEh his wife, ^a cousi-n of Habasa.

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After considering bot.h the prosecution evidence and Ehe defence of alibi, Ehe learned trial Judge held thaE. t.he appellant.s vrere correct.ly identified, He rejected the defence of aIibi. He convicted the appellants and sentenced them to death. Both appelLant.s appealed to t.he Court of Appeal which dismissed the appeal . The appellants appealed to this court on 4 grounds. However, when Ehe appeal came for hearing, the z"o ground of appeal was aband,oned because it was t.he same as ground 3 which had been abandoned in the Court. of Appeal but as we sha11 observe 1aE.e in this judgment. Counsel dj.d noE. make submissions on Ehis same ground. The grounds of appeal which were argued before us are as tollows: -

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- (1) That the learned Justices of Appeal erred in Iaw and in fact in their assessment of t.he evidence on record and interpreLat.ion of the 1aw regarding idenE. j.f ication when t.hey. concluded that t.he appellants were properly idencified. - (3) Thar. t.he learned JusE.ices of Appeal erred in law and in facE when t.hey relied solely on the evidence of. the prosecuEj.on and E.ot.aLly ignored t.he evidence adduced by the appellanEs. rhereby denying the appellants E.he benefit. of doubt. - (4) That. Ehe JusEices of Appeal erred in law and in ' fact when 'they failed Eo properly evaluiace evidence as a whole and thereby arrived aE a wrong conclusj.on which was a miscarriage of juseice.

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Mr. Yusufu of appeal t.oge ther . Nsibambi, Counsel for appellants, argued first and thereafter argued grounds ground ⁴ land3

On the 4'h ground Mr. Nsibambj. submitEed thaE it was incumbenE upon the Court of Appeal as a first appellace courE., to subject the whole evidence parEicularly evidence on t.he use of a deadly weapon, a panga, to a thorough scrut.iny. He submit.ted EhaE no panga \$ras Eendered in evidence to prove that a deadly \$reapon was used, He argued Ehat E.he person who picked iE from t.he scene did not. testify. He submit.ted that fail.ure t.o produce evidence of the person who picked a panga from the scene was a break in the chain of evidence. Therefore there was no sufficient. evidence adduced E.o prove Ehat a panga was used.

Mr. Wagona, . Senior SEaEe-Attorney, for respondent, submiEted that it. was escablished Ehat a panga which is a deadly weapon was used in the robbery. llabasa had t.estj.fied and maint.ained in cross - examinat j"on t.hat he was cuc wiEh a panga in the robbery. Habasa,s evidence was corroboraEed by his wife. He submit. Eed t.haE t.hat evidence was noE challenged in cross - examinaE. ion which meant t.haE the appellants had accepted t.he prosecuE.ion evi.dence. Once iE. was accepE.ed Chat a panga was used, Ehen iE was open to the trial court and E.he Court. of Appeal to hold thaE. an aggravat.ed robbery was committed.

We note thac although Counsel for appellant was t.o1d t.hat. he could noE argue ground 2 which was Ehe same ground. that. the appellants had abandoned before the Cour! of Appeal , when he came Eo argue ground 4, he stiI1 argued ground 2. He, in effecE. was raising a new point on second appeal which was not considered by the 1.. appellat.e court..

There is a weal-th f,or the appellanE of auEhorities for the couLd not. be permitted that Counsel Ehis. See view to do G. L Vidyarthan vs. p. Kakha (1q57) EA 527. Warehousing & . Ta ^f fera I i (7961) EA '] 5. Katafemwa vs. (unreported) and Habr Interna tional c ^Lt.l Ys- (SC) Al-araki a Kassam & Others (unreporEed).

be en new In t.he circumstances, since no leave of Ehe court had granted t.o argue the new issue on the second appeal, Counsel for appelIanE.s oughE not to have argued Ehe issue not considered by Ehe Court. of Appeal .

Be thaE. as it may, there was evidence \$rhich the E.rial court and E.he Court of Appeal accepted after analysing the enEire evidence that. Habasa was cut wiE.h a panga by 2"d appellant during t.he robbe.ry as a result of whj.ch he was hospit.alised for 29 days in Mbarara Hospital for treat.menE of Ehe injuries he had sust.ained in che robbery.

The learned t.ria1 Judge accepE,ed t.hat injury infficEed upon Habasa, t.here is knee and he is now walking on cruLches. as a of on Ehe his a result big scar

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we not,e EhaE. t.he appellants dj-d noE criticised the High Court for having convicted them upon Ehe evidence Eha! Habasa waa cuE with a panga during the robbery when Ehe appeal came t.o the Court of Appeal . The Erial Judge held in his judgment on the issue of a panga as follows: -

> "fE lras unforturrate Ehat the panga which was supposedJy used to cut pW7, Ehough recovered from the scene, r.l;as not put into evid.ence as an exhibit as Ehe rrri tness who recovered it was not avaiTabLe to tender iC. It was only tendered for identification by pVt who duTy and accurateTy described and Tater idenEified i E.

I accept the ewidence of put and pW2 that che atcackere cut pul with a panga. There is no doubc about tha?. The defence iEse-If does not concesE the cTaim by pvt that he was cut -by one of Ehe atEackera with ^a panga. tl

We agree with the above conclusion. In Jalnes solrahi ri & Another v. Uoanda (SC) Cr. Appeaf No. S of 1qaT (unreporEed) t.his court held Ehat: -

"Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in crossexamination, it must follow that he believed that the testimony given could not be disputed at all. Therefore, an omission or neglect to challenge the evidence in-chief on a material or essential point by crossexamination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible."

Clearly, the appellants never challenged PW1 and PW2 in cross-examination on the evidence regarding the use of the panga in the robbery, and in the absence of that challenge, the trial Judge was entitled to accept the prosecution's evidence that the attackers used a panga to cut PW1 during the robbery. In the circumstances, we cannot fault the trial Judge's conclusion that the prosecution had proved beyond reasonable doubt that a deadly weapon, i.e a panga, was used to cut Habasa during the robbery. In the result ground 4 would fail.

Grounds 1 and 3 were argued together. Counsel for appellants criticised the Court of Appeal for having based its decision solely on the evidence of the prosecution without considering defence evidence. Secondly, he criticised the court for not having addressed itself to the circumstances under which identification was made. He

submi.tEed that Lhe quashed and senLence appeerl shoul-d be al.lowed, convicEioll set as ide .

Mr. wagona, Senior suate-Attorney, for the respondentr submirted Lhat the evidence of identificat.ion had been properly considered by Ehe Court of Appeal and tshaE. there were facLors favourable for correcL identif icari'on. He submiELed that Ehese faccors included brighE moonlight.. Secondly, he submitted t.hat. Habasa sEruggled wiE.h Ehe aEEackers outside his house for 10 minuEes and lastly, Habasa and Kiconco knew both appellanE.s before. FurEhermore, Habasa had been with Ehe appellants earlier on Lhe same day. He submiEted EhaE Ehere could not have been any error as Eo identificaEion of the appellanEs. He conEended t.hat. once idenci,fication was considered EogeEher with the alibi and was accepted. then t.he alibi had E.o be rejected. In the circumstances, he submitted thats Ehe appeal should be dismissed.

Wj-th respect, we do noE agree wich the submission of appellant's CounseL Ehat the Court of Appeal did not consider l-he circumsEances under which identification was made and Lhat i- t. never considered the defence evidence. The Court. of Appeal considered the evidence regarding idenLifi-caEion of the appellanE and after anaLysing Ehe evidence, it criti.cised the rrial Judge where he had held Lhat where Ehe identifying wiLnesses were Ewo, Ehere was no need for corroboraEion as was required in respecL of ^a single identifying witness. 1t thereafter held as follows: -

"We therefore think that the learned trial Judge misdirected himself when he held that where the identifying witnesses are more than one, there is no need for corroboration. The need for supportive evidence is required where the conditions favouring correct identification are difficult. This is irrespective of the member of witnesses. We, however, do not think that the misdirection had occasioned any miscarriage of justice. In his summing up to the assessors, the learned Judge stressed the need for caution to ensure that it was safe to act on the identification evidence. In his judgment, he said that in order for court to act upon the evidence of identification, the court must duly be satisfied that the evidence is correct and free from possibility of error. He then proceeded to examine the factors for and against correct identification and came to the conclusion that conditions favourable for correct identification existed.

We think that the learned trial Judge was right in his evaluation of the evidence. T t is true that the witnesses were caught unaware and were blinded by the torch being flashed by the attackers, but the two attackers did stay for sometime at the

scene, both in the house and outside where Pw7 engage:c1 thern in a f ight . There was moonlight. Besides, both PW7 and PW2 kneul thr: appeJJants before the day of the irrcident. In fact, Ehe 2''a appeTTant sajd he was married to Ehe cousir: of PWl. PWI had met Lhe appeTTants three days before the day of the incident and a-lso during the evening preceding the night of Lhe incident in connection with the coffee business. ?hese factors were favourabLe for correct identif ication. "

We agree prope rl y wiEh the above conclusion. The Court. of applied the tesEs on idenE. i f icaE. ion set Appe a I out in

The issue of alibi was raised before the trial Judge. The crial- Judge held Ehat the appellants were under no obligat.ion Eo prove t.he alibi and that. iE was Ehe duEy of the prosecuE.ion E.o destroy iE. After analysing Che evidence regarding t.he defence of alibi, the Erial . Iudge reject.ed it as untruEhful . On the first appeal, however, the issue was not raised and so t.he Court of Appeal made no reference Lo it in j. Es judgment. We chink that on t.hat. account the appellanEs were noc enEiEled to re-open the issue of al-ibi on second appeal when it was never raised before Ehe Court of Appeal. In che circumst.ances Lhis issue is noE. properly before l-his court. In any case even if it had been properly raised before us, we are satisfied t.haE there was ample

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evidence of correct identification and therefore the trial Judge properly rejected that defence.

For the foregoing reasons we are satisfied that there is no merit in grounds 1 and 3 of the appeal. In the result those grounds must fail.

In conclusion, this appeal must fail. It is accordingly dismissed.

Dated at Mengo this $4$ th day of $M_{gust}$ , 2000.

Annu

A. O. H. ODER, JUSTICE OF THE SUPREME COURT.

J. W. N. TSEKOOKO, JUSTICE OF THE SUPREME COURT

Kun Koz .......................................

A. N. KAROKORA, JUSTICE OF THE SUPREME COURT.

ennyal

G. W KANYETHAMBA, JUSTICE OF THE SUPREME COURT

L. E. M. KIKINYOGO, JUSTICE OF THE SUPREMCOURT.