[2023] UGHC 243

# THE REPUBLIC OF UGANDA IN THE HIGH COURT UGANDA AT JINJA CRIMINAL SESSION NO. 47 OF 2020

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# **A1. LUGOBANGO HAMIS ALIAS MULINDA**

**A2. MPOYA BEN**

**ACCUSED**

# HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

## **RULING ON A PRIMA FACIE CASE**

Lugobango Hamis alias Mulinda(A1) together with Mpoya Ben (A2), hereinafter A2 will be referred to as the accused, were indicted with the offence of Aggravated Robbery contrary to Sections 285 and 286(2) of the Penal Code Act. It is alleged that the A1 and accused on the 1^st day of October 2019 at Namagera Village in Jinja District, robbed a one Mukaya Yusuf of his motor cycle Bajaj Boxer, red in colour Reg. No. UEY 759K valued at UGX 4,000,000 and cash amounting to UGX 30,000 all totaling to UGX 4,030,000 and or immediately before and after the said robbery used a deadly weapon to wit a panga to the said Mukaya Yusuf.

A1 entered a plea bargain agreement with the State on 9^th June 2020 which was registered in Court and was sentenced to twelve (12) years' imprisonment.

At plea taking, the accused pleaded not guilty to the indictment.

### **Representation**

The prosecution was represented by Ms. Pamela Orogot, a Senior State Attorney in the Office of the Director of Public Prosecutions. The accused was represented by Counsel Daniel Mudhumbisi on State brief.

### **Burden and Standard of proof**

The burden of proof in criminal matters rests squarely on the prosecution and does not shift to the accused unless it is exempted by statute. The standard of proof is

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high; the prosecution must prove all the essential ingredients of the offence beyond reasonable doubt.

Consequently, the prosecution had the burden to prove the following ingredients for the offence of Aggravated Robbery:

1) That there was theft of some property.

(2) That there was violence in the course of the theft.

(3) That there was actual use of a deadly weapon or threat to use it.

(4) The accused took part in the commission of the offence.

The prosecution led the evidence of Mukaya Yusufu (PW2), Wambi Ali (PW3), Nabirye Shadia (PW4), Musasizi Moses Godfrey (PW5), Detective Constable Iranya Charles (PW6), and Police Constable Bala Daniel (PW7).

Both the Prosecution and Defence agreed to Police Form 3 (PF3), the medical examination for PW2, the victim, which was tendered in as PEX1 and Police Form 24 (PF24), the medical examination for accused, was tendered in as PEX2.

#### The Law

At the close of the prosecution case, Section 73 of the Trial on Indictment Act (TIA) Cap 23 as amended, requires this court to determine whether or not the evidence adduced has established a prima facic case against the accused person. It is only when a prima facie case has been made out against the accused that he/she should be put to his defence.

Section 73(1) of the TIA provides that; - "When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence, if any, of the accused person before the committing court has been given in evidence, the court, if it considers that there is no sufficient evidence that the accused or any one of several accused committed the offence, shall, after hearing the advocates for the prosecution and for the defence, record a finding of not guilty".

### Prima facie case.

By law it is expected of the prosecution that, at the close of its case, it has made out a prima facie case, one on the face of it, is convincing enough to require that the accused person be put on his defence. Justice Stephen Mubiru in the case of Uganda Vs Obur Ronald & 3ors Criminal Appeal No. 0007 of 2019 (HC) stated that: -"A prima facie case is established when the evidence adduced is such that a

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reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence (See Rananlal T. Bhatt v R. [1957] EA 332). The evidence adduced at this stage, should be sufficient to require the accused to offer an explanation, lest he runs the risk of being convicted. It is the reason why in that case it was decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. The prosecution though at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after hearing both the prosecution and the defence.

According to "A Guide to Criminal Procedure in Uganda" B. J. Odoki 3^rd Edition at page 120, it is stated that in order for the Court to dismiss the charge at the close of the prosecution's case, Court must be satisfied that: -

- a. There has been no evidence to prove an essential element of the alleged offence, or; - b. The evidence adduced by the prosecution has been so discredited as a result of cross examination or, is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

#### **The Evidence**

The accused in this case was charged with the offence of Aggravated Robbery. Aggravated robbery is defined under Section 286(2) of the Penal Code Act as use or threatened use by the offender of a deadly weapon in the course of robbery perpetrated by him.

In the case of Oryem Richard & Another Vs Uganda Criminal Appeal No. 2 of 2002 (SC), the Supreme Court laid down the following four ingredients that have to be proved by the prosecution for the offence of aggravated robbery.

Therefore, for the accused to be required to defend himself, the prosecution must have led evidence of such a quality or standard on each of the above essential ingredients to prove the offence of Aggravated Robbery.

### (1) That there was theft of some property.

Section 254 (1) of the PCA defines the offence of theft as: - "A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing."

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Further, Section 254 (2) (a) of the PCA states that as: - A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he or she does so with an intent permanently to deprive the general or special owner of the thing of it."

In the case of Uganda v Asea (Criminal Session 1234 of 2016) [2019] UGHCCRD 6 (7 February 2019) Justice Stephen Mubiru in the case of Aggravated Robbery stated that: - 'The first element, taking of property belonging to another, requires proof of what amounts in law to an asportation (that is carrying away) of the *property of another without his or her consent.*"

In the case of Sula Kasiira v Uganda (Criminal Appeal No. 20 of 1993) [1994] UGSC 8 (16 October 1994) the Supreme Court in regards to what amounts to theft stated that:

"For a restatement of the law on taking or carrying away as an element of theft, the learned trial Judge referred to paragraph 1484 in Vol. 10 of Halsbury's Laws of England, 3rd Edition, which reads as follows:

1484 Asportation. There must be what amounts in law to an asportation (that is carrying away) of the goods of the prosecutor without his consent; but for this purpose, provided there is some severance, the least removal of the goods from the place where they were is sufficient, although they are not entirely carried off. The removal, however short the distance may be, from one position to another upon the owner's premises is sufficient asportation, and so is a removal or partial removal from one part of the owner's person to another. There must, however, be a complete detachment of the goods if attached. In cases where asportation cannot be proved, but where the prisoner intended to steal and did some act in furtherance of that object, he may be convicted of attempting to steal. The offence of larceny is complete when the goods have been taken with a felonious intention, although the prisoner may have returned them and his possession continued for an instant only.

The Supreme Court further stated that the law as restated therein, represents the legal position in Uganda regarding the act of taking or carrying away as an element of the crime of theft.

To prove theft, the prosecution relied on the evidence of PW2 Mukaya Yusuf, the victim, who testified that on 1/10/2019 at 8:00 a.m. while at Buyala stage, A1 approached him to take him to Namagera. That when PW2 started riding the motorcycle, A1 asked him to lend him the motorcycle so he could pick another person. That later on, A1 used the motorbike to bring the accused to the boda boda

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stage and that afterwards, PW2 then rode A1 and the accused to Namagera where he was diverted to a place called Wansimba and was requested to ride through a narrow path leading to a forest. PW2 declined to ride his motorcycle through the narrow path since it would damage his motorcycle. That A1 and the accused then disembarked from the motorcycle and walked through the narrow path. As A1 walked into sugarcane plantation, the accused told PW2 that the people that they were looking for were in another location. Thereafter, A1 requested PW2 for his mobile phone in order to make a call. That after the phone call, A1 told PW2 to leave since he could not find the people he was looking for. That as PW2 was mounting the motorcycle, he was cut at the back of his head with a panga. PW2 informed Court that he identified A1 as the person who cut him.

Court observed the cut at the back of the victim's head and inquired where the accused was at that time when he was injured. PW2 replied that the accused was standing by as he watched the events. On being injured, PW2 left the motorcycle at scene of crime and walked away and on the way, he met a lady who raised an alarm which attracted a motorcycle rider to his rescue. The motorcycle rider took PW2 to a Pharmacy in Namagera where he was referred to Jinja Referral Hospital. That the motorcycle rider then took him to Buyala stage where his friends decided to take him to Jinja Referral Hospital.

PW3, Wambi Ali a motorcycle rider at Buyala Trading Centre testified that on 1/10/2019 while at the boda boda stage, PW2 left with two unidentified men between 9:00am and 10:00am and that after a short while, PW2 returned to the boda boda stage and told him that the men he had left with earlier, had cut his head. PW3 informed Court that PW2 had informed him that he identified one of the men as Hamis, the son to Malijani who is $\Lambda1$ in this case.

During cross examination, PW3 was asked if he saw the accused at the boda boda stage to which he responded in the negative. PW3 further testified during cross examination that PW2 had told him that he had been cut at the back of his head by Hamis and another man.

PW5, Musasizi Moses, a retired Inspector of Police testified that on 1/10/2019 while at Butagaya Police Station at around 10:00am, he received a phone call from the GISO of Butagaya called Mugote, who informed him that there was an abandoned motorcycle near the forest at Butagaya Town Council. That when he arrived at that location, he found the abandoned motorcycle and the GISO at the scene of crime with other villagers. That the motorcycle was Reg. No. UEY 759K, Bajaj Boxer. That the GISO informed PW5 that it was abandoned by thieves who had taken off in the sugarcane plantation alongside the forest. That he rode the motorcycle to

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Butagaya Police Station. PW5 also testified that he received information from Buyala Police Station that the motorcycle had been hired by thieves from Budondo and a case had been reported at Buyala Police Station where he took the motorcycle and handed it over to Detective Iranya, the Investigating Officer.

PW6, Detective Constable Iranya Charles, testified that on the 1/10/2019 the accused was brought to Buyala Police Station by a boda boda rider. That the accused asked him to pay the fare for the motorcycle ride which he declined. That the accused looked unstable and informed PW6 that he had been with his friend called Hamis (A1) on the boda boda and that they were both going to cut sugarcane. That on the way, A1 cut the boda boda rider with a panga on the head. That later, he got information that some people were trying to rob a motorcycle in Butagaya and that one of the suspects who had stolen the motorcycle was at Police.

That later on, the motorcycle was recovered by Police at Butagaya and was brought to Buyala Police Station. That after receiving the motorcycle, he exhibited it as a red Bajaj motorcycle with the Registration Number as UEY 759K.

PW6 explained to Court that later on, the owner of the motorcycle, Margaret Nsubuga presented documents to him that proved that she was the owner of the motorcycle. PW6 testified that on being satisfied with the proof of ownership documents presented by Margaret, he gave her the motorcycle. PW6 tendered in the exhibit slip in respect of the motorcycle which was marked as PEX3.

During the hearing, the Defence raised an objection that the motorcycle was not exhibited in Court. In reply, the Prosecution submitted that failure to produce an exhibit was not fatal as long as the witness had adequately described it to Court. The Prosecution relied on the case of Uganda Vs Asiimwe Moses HC. Criminal Session No.107 of 2002 holden at Masaka and Sebugwawo Vs Uganda CS. C. CA No.7 of 1987 (unreported) to support this position.

In the case of Uganda V Wanyama Ivan and 3 Others (351 of 2020) 2022 UGHCCRD 23 (1 June 2022) Hon: Justice Isaac Muwata stated that: -

"What amounts to fraudulent taking or conversion is explicitly defined in section 254(2) of the same Act. In fact, only possession appears to be a pre-requisite for proof of theft under the definition of 'special owner' stipulated in section 254(2). Nonetheless, in the case of Omorio David & Another vs. Uganda Criminal Appeal No. 20 of 2011 (SC) it was held:

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Page 6 of 11 "We think that 'possession' as contained in the definition of 'special owner' does not mean lawful possession. A person can steal property from a person who is not in lawful possession of it."

"The provisions of section 254(1) of the Penal Code Act do not negate proof of the offence of theft by a complainant that is neither in possession nor ownership of the stolen item but can attest to the stealing of such item by a person with no claim of right thereto. See: Uganda Vs Abdu Mukasa IICSC No.0016 of 2012."

"Therefore, in proving theft there is no legal requirement to prove ownership. Once asportation of the property takes place without the consent of the one in possession, then theft has occurred. See: Sula Kasiira v Uganda Criminal Appeal No.20 Of 1993 (SC) (Supra)".

From the evidence adduced, the prosecution has proved the ingredient of theft of property as PW2 who was in possession of the motorcycle lost its possession. The issue that the motorcycle was not exhibited is not fatal as the exhibit slip tendered in as PEX3 clearly indicates the motorcycle that was retrieved by PW5 from the scene of crime after it was abandoned by $\Lambda$ 1 and the accused at the scene. The rightful owner had procedurally claimed for the same.

The above cited cases indicate that any slight removal of property by a person from a person who is in possession amounts to theft. I therefore find that sufficient evidence has been adduced to prove the ingredient of theft against the accused.

### (2) That there was violence in the course of the theft.

The prosecution evidence in this respect was that PW2, the victim was physically assaulted and he sustained grievous harm on his body. PW2 clearly testified that he was cut with a panga by A1 at the back of his head. PW3 also testified and confirmed that PW2 told him that the two men with whom he had left the boda boda stage had cut his head and he showed him the injury at the back of his head

The violence carried out to PW2 the victim is confirmed by Dr. Katumba Andrew in the medical report dated 2/10/2019 exhibited as PEX2 which indicated that a panga (sharpened wedge object applied with much force) was used to inflict injuries on PW2 and which injuries on PW2 were characterized as grievous harm.

From the evidence adduced, the prosecution has proved that there was violence prior to the robbing of the motorcycle. I therefore find that sufficient evidence has been adduced to prove that violence was occasioned by A1 and under the doctrine of common intention that I have in detail explained under the 4^th element/ingredient of the offence, I find that the ingredient of violence was proved against the accused.

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#### (3) Whether the accused was armed with a deadly weapon before, during or after the theft.

In the case of Uganda v Waisswa Henry and 2 others Criminal Session case no. 420 of 2010, citing Section 286 (2) of the Penal Code Act, a defined a deadly weapon to include: -

#### "an instrument made or adapted for shooting or cutting, and any imitation of such instrument"

To prove use or threat to use a deadly weapon, the prosecution relied on the evidence of PW2. PW2 in his direct testimony informed Court it was A1 who cut the back of his head with a panga as he mounted the motorcycle and as $\Lambda$ 2 watched.

Dr. Katumba Andrew, in the medical report dated 2/10/2019 exhibited as PEX2 indicated that the injuries suffered by PW2 were occasioned by the use of a panga (sharpened wedge object applied with much force) and were characterized as grievous harm.

From the evidence adduced the prosecution has proved the use of a deadly weapon and specifically a panga that caused the victim's injuries by $\Lambda1$ while the accused watched A1 inflict the injuries on PW2.

Therefore, I therefore find that sufficient evidence has been adduced to prove that the accused had a common intention with $\Lambda 1$ to inflict the injury on PW2.

## Whether the accused participated in the robbery?

The established principles with regard to identification evidence were laid down in the case of Abdallah Nabulere & Anor Vs Uganda Criminal Appeal No. 9 of 1978, Court observed that:

"the judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence".

PW2 in his testimony testified that at around 8:00am, A1 approached him about a job and that he lent A1 his motorcycle who went and picked the accused. That PW2 ferried both A1 and the accused on his motorcycle to go and cut sugarcane.

PW2 also testified that he knew the accused for about 3 years at Kyomya Village. PW2 further testified that on arrival at Namagera, he was directed to divert to Wansimba village. That it was the accused who told him that the people A1 was

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looking for were in another location. That later $\Lambda$ 1 told him to leave since they could not find the people they were looking for. That PW2 on mounting his motorcycle A1 the cut the back of his head as the accused was watching the events.

PW7, PS Bala Daniel testified that when he received the case file in October 2019 and discovered there was need to re-interview PW2, he summoned him for the purpose of identifying the accused persons. That at the time they were arrested, PW2 was in hospital. That he interviewed PW2 who told him that he knew the suspects very well. That they had approached him at the boda boda stage at Buyala to transport them to go and cut sugarcane. That the accused had a panga in his hand. That when they got near the sugarcane plantation, the accused and A1 told PW2 to stop and when he got off the motorcycle the accused's colleague A1 picked the panga and cut PW2 on the back of the head. He further testified that PW2 told him that after the attack, he fell down and became unconscious but was able to see the two men take his motorcycle despite being weak.

PW2 further testified that when he interviewed the two accused persons who were in separate cells at different Police Stations, he found out that the accused ran to the Buyala Police Station and reported himself because some people who were at the scene wanted to lynch him. That when he interviewed A1 at Buwenge Police Station, A1 told him that it was true that they had cut the victim and had also taken the motorcycle from him but that he was advised by the accused to do so. That when he interviewed the accused at Kagoma Police Station, the accused told him that it is true it was his Alwho told him to cut PW2 and take his motorcycle but that it was his colleague A1 who picked the panga and cut PW2 with the intention of stealing the motorcycle.

# Section 20 of The Penal Code Act provides as follows;

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence."

In the case of Simbwa v Uganda (Criminal Appeal No. 23 of 2012) [2014] UGCA 57 (3 December 2014) the Court of Appeal, referred to the case of Kisegerwa and Another v. Uganda Criminal Appeal No. 6 of 1978 (Court of Appeal) elaborated on the above provision thus:

"In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the

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offence...an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions and the omission of any of them to disussociate himself from the assault." (*Emphasis mine*).

In the case of Uganda V Wanyama Ivan and 3 Others (supra) Hon: Justice Isaac Muwata stated that: -

"In order to render the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence.

An unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions and the omission of any of them to disassociate himself from the assault. See: R vs-Tabulayenka s/o Kirya and Others [1943] 10 E. A. C. A. 51

It is immaterial whether the original common intention was lawful so long as the unlawful purpose develops in course of events meaning that even if the accused person were trying to enforce the arrest of PWI as they alleged, an unlawful purpose ensued in the course of this arrest thereby occasioning grievous body harm and taking money and a phone belonging to the victim."

After thoroughly examining the evidence adduced by the prosecution, it is clear the accused took part in the commission of the offence. A1, together with the accused hired PW2 to take them to Namagera to cut sugarcane. On reaching Namagera, both the accused and A1 diverted the course of the journey to Wansimba which led to the forest. From the description of PW2 the area that the accused and A1 took him to was an isolated place. PW2 told Court that it is the accused who told him that the people A1 was looking for were in another location. That later A1 told PW2 that they should all leave since the people he was looking for were not in that location. As PW2 was mounting his motorcycle, A1 cut PW2 with the panga at the back of his head as the accused just looked on. The fact that the accused and A1 took PW2 to an isolated place where it would be difficult for PW2 to be found or get help coupled with the fact that the accused did not do anything to rescue PW2 when A1 attacked and cut the back of his head, I find that the acts and omissions by the accused formed a common intention with A1 to cause grievous harm to the PW2 and to rob his motorcycle. At no one time did the accused disassociate himself from the unlawful purpose. The only time that the accused is seen to disassociate himself from

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the crime is when he went and reported himself at the Police and this was only because of the fear of being lynched.

It is thus my conclusion that the accused is liable both individually and collectively under the doctrine of common intention.

As to the issue of identification, it is not in doubt that this incident took a relatively long time. It was not sudden. It took place in the morning and the daylight eased the identification of the accused and A1 by PW2. PW2 testified that he previously knew A1 and that is why he trusted him and gave him his motorcycle to go and pick the accused whom he also knew before the incident. That there is no way PW2 could be that trusting to be taken in an excluded place if he did not know A1 and the accused and this in turn enabled PW2 to have ample time to correctly observe and identify the role of each assailant.

Therefore, in conclusion, I find that there is sufficient evidence that has been adduced to connect the accused to the commission of the offence of Aggravated Robbery as charged.

I therefore, find that a prima facie case has been made out requiring the accused to be put on his defence for the offence of Aggravated Robbery contrary to Sections 285 and 286(2) of the Penal Code Act. Therefore, Court shall proceed to hear the accused's defence.

I so order.

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HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE** 17^th October, 2023.

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