[2022] UGHCCRD 85

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT ENTEBBE

# $HCT - 00 - CR - SC - 283 OF 2020$

UGANDA...................................

#### **VERSUS**

1. MUGISHA FRANCIS SSALONGO

2. SIKAHWA RICHARD

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# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK, JUDGE

## Judgment

The accused persons 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 accused persons and others still at large on the 15^th day of August 2019 at Wamala Village in Wakiso District robbed Musinguzi Wilson Ruhweza of cash UGX 55,000,000/= (Fifty five million shillings only) and 15 immediately before or immediately after the time of the robbery used a deadly weapon to wit a gun on the said Musinguzi Wilson Ruhweza.

The prosecution summarized its case as follows;

On the $15^{th}/8/2019$ the complainant was called by a one Nuwamanya Bob to go to Nansana and meet a customer. The complainant is a land dealer; on getting to 20 Nansana the complainant found A1 Mugisha Francis sited in a car Toyota Harrier UAX 710B. A1 told the complainant to enter the said car and meet the people inside.

That the complainant entered the said car and found A2 ASP Sikahwa Richard 25 inside armed with a gun. There was also another person with a gun. The complainant was ordered by the accused persons to give them UGX $100,000,000/$ = or else be killed. The complainant called his friends and fellow land dealers who sold his houses and raised UGX 55,000,000/= which the accused persons took and let the complainant free. The complainant later reported the matter to Police and the accused were arrested and charged. 30

The accused denied committing the offence and pleaded the defence of alibi. A1 gave unsworn evidence while A2 gave sworn evidence and they did not call any witnesses save for themselves.

The prosecution in a bid to prove its case against the accused persons called 12 witnesses.

#### Representation:

Kiconco Agnes appeared for the State while Mr. WalugembeDauda represented A1 and Mr. Basiime Armstrong represented A2 both on private brief.

#### Burden of proof:

The burden of proof is on the prosecution to prove all the ingredients of the offence beyond all reasonable doubt. The burden never shifts except in some exceptional cases set down by law. (See: Woolmington versus DPP [1935] AC 322 & Uganda versus R. O. 973 Lt. Samuel Kasujja& 2 Others Criminal case No. $08/92.$ )

The accused person is presumed innocent until proven guilty or otherwise pleads guilty. It is not for the accused persons to prove their innocence; they only need to call evidence that may raise doubt of their guilt in the mind of the court. Any doubt in the prosecution case has to be resolved in favour of the accused persons.

### Section 101 (2) of the Evidence Act provides that;

"When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

It is further provided under **Section 103 of the Evidence Act** that;

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"The burden of proof as to any particular fact lies on that person who wishes the Court to believe its existence, unless it is provided by law that the proof of that fact lie on any particular person."

#### Standard of proof:

The standard of proof in criminal cases is beyond reasonable doubt. This however, does not mean proof with utmost certainty. If evidence is so strong 25 against an accused as to leave only a remote possibility in his favour, which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt; but nothing short of that will suffice. (See: Miller versus Minister of Pensions [1947] 2 ALL E. R. 372).

#### Resolution: 30

The prosecution must prove all the ingredients of the offence of Aggravated Robbery in order to sustain a conviction thereof. Therefore, prosecution must prove the following ingredients;

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- 1. That there was theft. - 2. There was use of violence. - 3. There was a threat or use of violence or using a deadly weapon or that the perpetrators caused grievous harm to the victim or even death. - 4. That it is the accused person who committed or participated in the commission of the offence. - 5. And where there is more than one person, then common intention must be proved.

#### Theft:

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**Section 254 (1)** of the Penal Code defines theft as; 10

> "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."

Therefore, for this ingredient to be proved there must be proof of what amounts 15 in law to be asportation that is carrying away of the property of the complainant without his/her consent or lawful claim of right. The property stolen in this case is alleged to be money worth UGX $55,000,000/=$ .

The defence counsel for A1 however, argued that there was no money to steal as the recount by PW2 showed that the robbery was conducted in a very public 20 place which is unbelievable.

Further, that it was the testimony of PW2 that he sent PW6 to bring for him an unspecified amount of money. That however, PW6 told court that he brought UGX 500,000/= which PW2 had asked for and that this was a grave contradiction.

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Counsel for A1 added that PW5 and PW6 testified in court that the suspected robbers took nothing from them individually, and even returned PW6's UGX $500,000/$ =. That the accused persons also took nothing from PW3 and PW4 yet they claimed to have been carrying huge amounts of money, and moreover at night, meaning that there was no money stolen, neither did the suspected robbery

30 take place.

> Counsel for A1 argued that the testimonies of PW2 and PW3 were contradictory in regard to how much PW3 withdrew to give PW2 the alleged UGX 45,000,000/=. That this contradiction was also grave indicating that indeed

there was no money that was stolen. 35

It was also submitted for A2 that the time PW3 is said to have withdrawn the money was a lie as the said time of 7:00PM is passed the working hours for finance trust bank. Secondly, that PW3 could not produce in court the receipt under which he withdrew the money nor could he explain where he got UGX $40,000,000/$ = in cash.

It was submitted for the prosecution through all its witnesses that the value of the money that was taken by the accused persons was UGX $55,000,000/$ = which is property capable of being stolen, and PW2 was a businessman who bought and sold houses.

In regard to this ingredient I find that PW2 told court how he was kidnapped and 10 robbed of UGX 55,000,000/= which was a result of him selling two of his houses one at Kabumbi at UGX 45,000,000/= and another at Wamala at UGX 10,000,000/ $=$ to PW3 and PW4 respectively. This evidence was corroborated by PW3 and PW4 who bought the said houses. PW2 ably narrated to court what transpired on the fateful day. $15$

It is settled law that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored. (See: Alfred Tajar v. Uganda, EACA Cr. Appeal No.167 of 1969).

In regard to the contradictions as pointed out by the defence, I find these as 20 minor and not grave. These contradictions do not touch the root of the case and are accordingly disregarded.

I find and hold that the prosecution proved this ingredient beyond reasonable doubt to the satisfaction of this court.

#### 25 Use of violence:

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The accused person used or threatened to use violence. For this ingredient, there must be proof of use of violence or threats of use of some force to overcome the actual or perceived resistance from the victim.

It was submitted for the prosecution that according to PW2's testimony he told court that he was called by Niwamanya Bob that there was someone who wanted to buy his house at Wamala trading Centre whereof he travelled from Nakasongola up to Wamala where he found the accused persons. That it was then that he was instructed to enter the accused's motor vehicle UAX 710B where A1 sat behind the driver's seat while holding a big gun and A2 sat at the side of the passenger having his pistol at his waist.

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State added that PW2 informed court that he was driven up to Nabweru play ground where the accused persons told him that they had been given orders to finish him unless he gave them UGX 100,000,000/=. That threats were made on his life until he asked the accused persons to allow him call some people so that he could sell off his houses and give them the money they wanted.

It was submitted for A1 on the other hand that PW5 stated that upon reaching the car in which PW2 was, PW2informed him that was very ok. That PW3 and PW4 also transacted freely and even one of the said robbers witnessed on the sale agreement and that they are the ones in possession of the said properties currently, and that from the reading of **PEX 6** made by PW2 himself, it clearly states that the agreement was made willingly. As such there was no violence or threat to use violence.

It is my considered view that it was the evidence of PW2 that the assailants had a big gun and a pistol. That the assailants told him that if he did not give them money, he would be killed. He thus, feared for his life and they instructed him $15$ not to say anything about the kidnap and robbery, he was therefore, under threat or violence but just had to corporate and give them the UGX 100,000,000/= or be killed but he pleaded with them, sold his two houses which fetched UGX $55,000,000/$ = that he gave to the assailants.

PW2, PW3, PW4 PW5 and PW6 all saw the assailants especially A1 who had a 20 big gun and was seated in the vehicle, A2 was seen with a pistol.

I find and hold that the prosecution has proved this ingredient beyond reasonable doubt.

### Use of a deadly weapon:

It was submitted for A1 that PW3 and PW4 freely drove around with the accused 25 persons and also transacted with PW2 without any suspicions. That this clearly shows that there were no guns involved.

Further, that the testimony of PW6 shows that there were indeed no deadly weapons, as he was called by PW2 told to go to his home to pick documents pertaining to the houses. That PW6 merely informed the wife of PW2 that he was in trouble and she gave him the documents that he returned to PW2.

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It is provided under **Section 286(3) (a) (i)** of the Act that,

"Deadly weapon" includes any instrument made or adopted to ...stabbing...or any imitation of such instrument which when used for offensive purposes is capable of causing death or grievous harm or is

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# capable of inducing fear in a person, that it is likely to cause death or grievous harm..."

According to PW2, PW3, PW4, PW5 and PW6 they said that they all saw A1 with a big gun seated in the Harrier and A2 with a pistol. This all happened while PW2 was being driven around to various places.

Although, the gun and the pistol were never recovered, the alleged vehicle used in the robbery was recovered, pictured and since it had also been stolen, it was returned to its owner, who had reported the theft of her car UAX 710B Toyota Harrier.

In the case of Uganda v. Katushabe, [1988-1990] H. C. B page 59, cited with 10 approval by Lady Justice Anglin in Uganda v. Isabirye Robert, High Court Criminal Session No. 78 of 2011, it was held that the failure to produce exhibits is not detrimental to the prosecution case if prosecution witnesses saw the exhibits and adequately described the same in court. It is clear that a big gun and a pistol were used in the commission of the offence. 15

I find that this ingredient was also proved beyond reasonable doubt by the prosecution. The perpetrators were armed and there was use of a deadly weapon on the victim, much as they were not tendered in court, but were well described to court.

#### Participation: 20

In this case it was submitted for A2 that PW2 said that he did not know any of the accused persons and there was no identification parade conducted. That there was only dock identification carried out. That the prosecution deliberately refused to call key witnesses who would have guided the court on whether there was a robbery or not and these include Kakuru Ramathan who the prosecution 25 witnesses insisted was the commander of the robbery, Nuwamanya James alia Bob, Sserwadda Benard Mpokota the area chairman I. C.1 of Nansana East One A, Bbaale James the area General Secretary who drafted the agreements on which the complainant purportedly sold his house.

It was submitted for A1 on the other hand that the PW2 gave contradictory $30$ evidence as to the number of people that were in the car with PW2. On one occasion it was said that they were 4 of them and then again that they were 5 of them. While PW3 and PW4 said that there were three people.

Counsel for A1 argued that the prosecution evidence was full of contradictions and their conduct was wanting and none of them knew the accused persons, 35 therefore, there was mistaken identity.


It was however, submitted for the prosecution that there was no mistaken identity of the accused persons as PW2's evidence was corroborated by that of PW3, PW4, PW5 and PW6. That the two accused persons were all placed at the scene of crime by the prosecution witnesses and the defence evidence is all full of lies.

The accused persons also denied the numbers that were linked to them by the call data that was adduced by the prosecution.

#### Analysis of court:

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In determining the issue of participation, this court reminds itself of the requirement to examine all evidence closely, bearing in mind the established $10$ general rule that;

> "An accused person does not have to prove his/her innocence. And that by putting forward a defence like alibi or any other, an accused does not thereby assume the burden of proving the defence except in a few exceptional cases provided for by the law. It is up to the prosecution to disprove the defence of the accused person by adducing evidence that shows that despite the defence, the offence was committed by the accused person." (See: Wamalwa& Another v. Republic, (1992) 2 E. A 358).

It is up to the prosecution to disprove the defence of the accused persons by adducing evidence that shows that, despite the defence, the offence was 20 committed and was committed by the accused. (See: Sekitoleko v. Uganda, [1967] $E. A 531).$

In the present case there was both direct and circumstantial evidence that put the accused persons at the scene of crime.

- PW2 Musinguzi Ruhweza told court that he knew the two accused persons as the 25 ones who stole from him on the 15th August 2019 at Wamala Village. That he was called by a one Bob his broker that there was someone who wanted to buy a house from him. He was told that they would meet at the Parish Chief's home called Mutongole. However, when he reached there, he only found Bob seated - outside with someone called Kakuru with a Harrier golden in colour UAX 710B. 30 That Bob came and greeted him and told him that Kakuru was the one who wanted to buy the house. That the two accused then told him to leave his car and enter theirs. That A1 had a big gun and cocked it and A2 had a pistol which he also cocked. That he was threated that they would end his life. That after entering - the car he was driven to Nabweru and was told that they had orders to finish him 35 and the only solution was to give them UGX $100,000,000/$ = so that they would spare his life.

$\overline{7}$ PW2 stated that he pleaded with the assailants because he had no money and requested that they allow him to call some people and he was allowed to make phone calls while on loud speaker. That he first called Ronald Kaboyo that he had gotten a problem and he brought UGX $500,000/$ = and he came with Ajuna. That PW2 gave the money to Kakuru who got angry and threw it back at him saying they knew he had more money. That he then asked to call other people who had been interested in buying his houses so he sent Ajuna to go and pick the documents pertaining to those houses which he brought.

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PW2 called Mugerwa who was interested in one of the houses who told him that if he wanted quick money, he would be able to pay only UGX $45,000,000/=$ . PW2agreed and Mugerwa came and found them at Shell Ku ma store where of a sale agreement was executed and the UGX $45,000,000/$ = was received.

PW2 added that he also called Kyaligonza who came and gave him UGX $10,000,000/$ = for the second house and another sale agreement was effected in 15 this regard. PW2 then had a total of UGX $55,000,000$ /= which was handed over to Kakuru in the presence of the two accused persons. That after he handed over the money he was dropped off to where his car was in Nansana and the car keys were handed over to him by Yusuf.

That after they had left he explained to Kyaligonza what had transpired who advised him to go to Police and report and he also told his wife after he went 20 home. That the following day he went to C. M. I and requested to see their boss, however, he saw the deputy commandant who he knew and explained to him everything and he was in turn advised to report the matter and make a statement.

Further, PW2 testified that he managed to track Kakuru with the same vehicle and he said that he was the one that convinced the accused persons not to kill 25 PW2. That out of the UGX $55,000,000/$ = that was robbed, he was given UGX $6,000,000/$ = which he offered to return. However, through his wife he only returned UGX 5,500,000/ $=$ and this money was given to the Divisional C. I. D Officer at Nansana called Juliet Nakalema. That the accused were then subsequently arrested. 30

PW3 Mugerwa Patrick corroborated the evidence of PW2 and he was the one who bought the house at UGX $45,000,000/$ and brought the said agreement to court.

PW4 Kyaligonza equally corroborated the evidence of PW2 and PW3; he is the one that advised PW2 to report to Police the very day the incident happened and 35 he also reported the robbery at Katoke. He also bought PW2's second house at $UGX$ 10,000,000/=.


PW5 AjunaLyazi also corroborated the evidence of PW2 and he is the one who PW2 sent to his home to pick the documents pertaining to the houses that were sold to PW3 and PW4 respectively.

PW6 Kaboyo Robert told court that he was called by PW2 that he had a problem and needed money. That he called PW5 to escort him to where PW2 was to see what kind of problem had befallen him. That with him he took UGX $500,000/$ = which he gave to PW2 and when PW2 handed it over to the Kakuru he threw it back at him. So PW2 returned the money to PW6. That at the time he found PW2 at Nabweru play ground with the accused persons and others.

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- $10$ PW7 D AIP Emukok Patrick told court that he received a case of robbery under Katoke. That he visited the scenes of crime and drew three sketch maps in respect to Scene I, II and III. And that he found some documents, receipts, agreements and Letters of agreements. They were all exhibited collectively as PEX7 and PEX8 respectively. - PW8 No. 59730D/Celungat Jacob visited the $1^st$ and $5^th$ scenes of crime that is $15$ the houses that were sold by PW2 and drew sketch maps.

PW9 A. S. P Lwetungu Ali, told court that he is the one that arrested A2 from Mubende on a matter of forgery and that A2 was on Police Bond for scandalous behavior and had many more cases pending at the Professional Standards Unit which was not denied by A2 at all. That he then took him to Nansana. He also stated that he received a car, a harrier gold in colour.

PW10 No. 67227 D/C Musa Dickson Sonko told court that he was given numbers to track to wit; Musinguzi Wilson 0753068410, Nuwamani James Bob 0708269831, Mugisha Francis 0757493035, Kakuru Ramathan 0701972200, 25 Sserwadda Bernard 0704128364, Musobye Geoffrey 0702697071, Kiggundu Yusuf 0753310185, Mugisha Francis 0701220788, Sikahwa Richard 0708165770, Mugerwa 0704772595 and Kyaligonza07053714791. That the tracking was for all the numbers from 4:00pm to 11:00pm on $15/8/2019$ .

PW10 stated that his duty was to find out the locations of these numbers at the 30 time the offence was committed. His findings were that A2 was talking to A1 at 7:07pm, A2 called A1 at 10:26 am while at Ndejje, at 4:00pm to 11:00pm A2 0708165770 was at Nansana and Nabweru.

A1 0757493035 was at Nansanaku ma store at 1:13pm, 6:26pm at Bwaise round about, made a phone call to Nabweru to Kakuru Ramathan at 7:20pm. PW10's report was marked as PEX9.

He further told court that PW2 was in the area where the crime was committed and was communicating with the prosecution witnesses. That the accused persons do know each other. That Mugerwa was in Nabweru at 7:21pm and brought the UGX $45,000,000/$ =. Kiggundu, A1 and A2 knew each other before, during and after the commission of the crime. That Kakuru Ramathan called A1 in Nansana Kabuube at 08:06pm. PW2 called Mugerwa at 17:52pm.

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PW11 D/Asp Nakawala Juliet in her testimony stated that there was a robbery case involving two officers at Katwe Police Station and being A. S. P A2 and Misobye Geoffrey who was attached to old Kampala Police Station. She interviewed PW2, recorded statements, and visited the scene of crime. That Kakuru Ramathan was arrested and stated he was used as a driver and was given UGX 6,000,000/ $=$ which he was willing to refund through his wife but returned only UGX 5,500,000/ $=$ which was exhibited by PW11 vide exhibit slip No. 00552 and handed it over to another officer. That she then instructed PW10 to track a given numbers. She was also the one that sent PW9 to arrest A2 from Mubende. This was after being told that A2 was in Mubende.

PW12 told court that the tracking results by Airtel are accurate and that while tracking they do not use details that are registered but rather the user at the time and holder of the phone carrying the sim card. That it is not uncommon that criminals use sim cards registered in other people's names and not their own names.

PW12 confirmed to court that the tracking results obtained from Airtel by PW10 are the correct results even if the numbers are not registered in the accuseds' names but were being used by them and in those particular areas the offence was committed on the fateful day. With which I entirely agree.

DW1 denied committing the offence and told court that he did not know any of the prosecution witnesses and therefore, had no grudge with any of them. That he was arrested after Ramdan called him so that they could meet.

DW2 raised the defense of Alibi and told court that on the day the offence was allegedly committed was at his home in Zzana the whole morning and later 30 received a call from his friend Asuman Rwenshaka whom he met in Ndeba at round 2:00pm. They later went to Happy Boys in Busega for a drink and the said Asuman Rwenshaka dropped him back home. That even though he was on suspension that did not mean that he had no gun in his possession. He denied 35 committing the offence. He also told court that he had no grudge with PW2 and did not know any of the prosecution witnesses. He raised the defence of alibi during his testimony.

In the case of Nankwanga Fauza& Others v. Uganda CSC No. 243/2015, Lady Justice Eva Luswata followed the decision of the Supreme Court of Nigeria sitting at Abuja in Tajudeen Iliyasu versus The State SC 241/2013 which considered circumstantial evidence in great detail. It was held that circumstantial evidence;

".... is evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics..., this is so for in their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person, caused the death of the deceased person. Simply put, it meant that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence.

She went ahead to say that however, the court cautioned that ".... such circumstantial evidence must point to only one conclusion, namely that the offence had been committed and that it was the accused person who committed it."

The defence mainly relied on the plain statements of the witnesses, discrediting the testimonies made on oath as being contradictory to the Police statements. However, this court will go by the evidence given in court on oath and subjected to cross examination as per the case of Lawrence Mwayi and Others v. Uganda, Criminal Appeal No. 162 of 2001, where it was stated that;

> "It is well established that where a police statement is used to impeach the credibility of a witness and such statement is proved to be contradictory to his testimony, the court will always prefer the witness' evidence which is tested by cross-examination.

In the instant case PW2 was held hostage by the accused persons and others in order to get money from him. That he was taken around to different places including, Nansana, nabweru and senge. It is clear from the prosecution evidence that PW2 spent quiet sometime with the accused persons as they drove him around the various places as he tried to get them the money that they wanted so that they could spare his life. PW2 told court that he had no mental issues.

The whole ordeal occurred between the hours of 16:00 and 21:00 where of PW2 was able to identify the accused persons as his assailants. The whole incident took about four hours or so and this gave him ample time to identify his perpetrators. The accused persons were also seen by PW3, PW4, PW5 and PW6. There were also sufficient conditions to enable these prosecution witnesses to identify the two accused persons, thus, there cannot be a claim of mistaken identity.

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In the case of Abdala Nabulere & Another v. Uganda Cr. App. No. 9 of 1978 $(1979)$ it was held as follows:

"Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications, The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused."

PW10 also gave the court cogent and reliable evidence as to how all the accused persons, PW2 and others at large were all with the areas of Nansana, Nabweru, BwaiseSenge of the day and time the offence was committed.

DW2 told court that he was called by a friend to go drinking however, this friend was not called as a witness.

PW2 also maintained that he did not know the accused persons and what a coincidence it would be that he decided to pick out the two accused as his 20 assailants from the people in the country. PW2 said that he had no grudge with the accused persons and only met them the day he was kidnapped and money take from him to a tune of UGX 55,000,000/ $=$ .

## Common intention:

**Section 20** of the Penal Code Act provides:~

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"Where 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 it's commission was a probable consequence of that purpose, each of them is deemed to have committed the offence".

In the case of **Kisegerwa and Another v. Uganda, Criminal Appeal No. 6 of 1978** 30 (Court of Appeal) it was held that;

> "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 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."

In the instant case there were more than two people in the commission of the offence, particularly the two accused person were the ones who had the weapons $\mathsf{S}$ during the commission of the offence and were identified clearly by PW2, PW3, PW4, PW5 and PW6. The two accused persons had a common goal in executing the offence.

I find and hold that the prosecution proved this ingredient to the satisfaction of 10 this court and brought the accused persons to the scene of crime.

I accordingly find that the prosecution ably proved its case beyond reasonable doubt.

I also agree with the opinion of the two assessors and find the two accused personsguilty of the offence of Aggravated Robbery contrary to sections 285 and **286(2)** of the Penal Code Act. They are hereby convicted as indicted.

HON. OYUKO ANTHONY OJOK

**JUDGE** 20 30/9/2022

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