[1994] UGHC 102

# Justice F. M. S. Egonda-Ntenole

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT

#### **MBARARA**

## CRIMINAL SESSION CLSE NO. 270/92

$UGANDA:$ ..... ....... PROSECUTOR

VERSUS

| Al. NDYABA | | |------------------------------|---------| | A2. BUTIRIMA | | | $\Lambda$ 3. BUTURO | | | A4. RWAKASHEIJA $\downarrow$ | ACCUSED | | | | | A5. MUTIIBA<br>A6. ZAKUMUMPA | |

BEFORE: The Honourable Mr. Ag. Justice E. S. Lugavizi

### **RILING**

The accused persons herein called Buturo; Mutiiba and Zakumumpa (hereinafter to be referred to as Al, A2 and A3) were indicted for the murder of four persons and attempted murder of another. The details of the indictment read as follows,

"COUNT 1

# PARTICULARS OF OFFENCE

Ndyaba, Butirima, Buturo, Rwakasheija, Mutiiba, Zakumumpa and others still at large, on or about the 4th day of April, 1979, at Mbagwa village, Kagango sub-county in the Bushenyi District, murdered IDDI TAMUKEDE. COUNT II

PARTICULARS OF OFFENCE

Ndyaba, Butirima, Buturo, Rwakasheija, Mutiiba, Zakumumpa and others still at large, on or about the 4th day of April, 1979, at Mbagwa village, Kagango sub-county, in the Bushenyi District murdered ABUDALA KYEGOMBE. COUNT III

# PARTICULARS OF OFFENCE

Ndyaba, Butirima, Buturo, Rwakasheija, Mutiiba, Zakumumpa and others still at large, on or about the 4th day of April, 1979, at Mbagwa village, Kagango sub-county in the Bushenyi District, murdered MUSTAFA MAEUYE.

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#### 2

# couijt iv

# r/7<ricuL^

Ndyaba, Butirima, Buturo, Rwakasheija, Mitiiba, Zakumumpa. and others still at large, on or about the 4th day of April, 1979; at Mbagwa village⁷ Kagango sub-county, in the Bushenyi District, murdered MANISURI MUTEE3I. COUNX X

# PA.' tTICtLARS OF pFF.'A'l CE

iLdyaba, Bitirima, Buturo⁹ Rwakasheija, Mutiiba, Zakumuripa and othorystill at largo, on or about the 4th day of April, 1979, at Mbagwa village, Kagango sub-county, in the Bushenyi District, unlawfully attempted to cause the death of one NURD NSU3UGAJ?

When the above charges wore read to Al, A2 and A3 they denied having committed the offences in issue⁰ In turn, the prosecution led evidence from six witnesses in a bid to prove its case against the three accused persons above•

In short, the case for the prosecution as can be gathered from the evidence; was that on 4th April, 1979? at around 10.00a.m. in Mbagwa village/Bushenyi district, a very big crowd of people wj^?h included ' an^ invaded Abudala Kyegom.be's home# They rearmed with spears, pangas,reeds and axes. They forcefully took away the said Abudala Kyogombc who was soon after found brutally wounded and abandoned in a nearby banana plantation, after which he died.

On the same day, around the same time, the said crowd also attacked the family of the late Iddi Tamukeddo and brutally killed him and his son Mustafa Mabuye. They also severely cut Nuru Nsubuga's hands whom they left in a critical state; and finally made off with Manisuri Mutoobi who has never been seen since, then.

Five of the prosecution witnesses (PW1, Pt-2, RD, PW4 ^d PW5) claimed to have known the three accused persons quite well before the incidents above. They said that the accused persons v/erc either friends or\* just village-mates whom they had seen for a long time.

At the end of the prosecution case, counsel for the accused persons, namdly Messrs, Zohurikize for Al and A3 and Mwene-- Kahima for\* A2 submitted that the pro suction had failed to giake out a prima facie case requiring thoir clients to be put on their defence.

Both counsel were of the view that tho evidence nt hand was so unreliable air¹ discredited. that it would be unwise to rely upon it. They.therefore urged court bo acquit, the accused persons.

Counsel for the state (Mr. Wagona) was of a different view. He believed that bhe statu witnesses had been able to spell out what happened on the day in issue, Thoir identification of the assailants could not be doubted since those people were well known to them before and the offences in issue took place during broad-day light. Mr. Wagona finally submitted that inconsistencies in the prosecution case should bo disregarded as minor. These were basically caused by passage of time. The events in issue happened fifteen years ago, and with the passage of time, it was unlikely that the witnesses would remember ever;/ detail of the events of 4th April, 1979, correctly. Mr. Wagona urged court to find that there was a prima facie case made out against Al, A2 and A3 and that they should be put to their defence.

Having had time to consider the prosecution evidence and the submissions of all counsel in respect of a no case to answer, I think I agree with counsel for the three accused persons that the prosecution evidence was most unreliable and discredited.

I will endeavour to justify the above conclusion by giving specific examples from the evidence c? a ^j cord.

I will begin with FWI's evidence.

FWI was one of the witnesses who said that she knew the. persons accused well, before the day in issue, and was sure they were part of the gang that attacked them on 4th April, 1979. She correctly gave A2 and A3's names, but could not name A1. She said that she had forgotten his name. However, when she later began to name the attackers, one by one, she mentioned Al's name. It was apparent at that point that she was not aware that the name she had mentioned, related to someone who was already before her eyes in court. The question that came to my mind then, was whether her apparent identification of the accused persons was real or merely based on guess work or something else?

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Again in another part of her evidence, PW1 told court that it was A3 who cut her husband on the head and thigh, yet in another part, she changed and pointed out that it was Ndyaba who did that.

Somewhere else, she told court that she was scared when the attackers went to their home on the day in issue. Later on, she denied the above and said that she was not scared and that was why she did not run away.

In another area of her evidence she said she did not know who speared her son Mustaffa Mabuye, yet soon after, she claimed that Mustaffa Mabuye was specified by A3 and others.

In yet another area of her evidence in court, PW1 claimed that when the attackers went to her home, they found her with her husband and children in the compound. However, her police statement which contained a was exhibited herein as "D1" different story. According to that statument, PWI was in the banana plantation peeling bananas at the said time.

Finally, PMI found it difficult to co-ordinate the events in issue with the time in which they were supposed to have taken place. According to her, Lule's Covernment allowed them to bury their dead relatives when it cans to power.

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However, she believed Lule's Government did not come into existence until after four or five months from 4th April? 1979.

In view of all the above, I sincerely found it difficult to rely on Pol's evidence.

The rest of the prosecution witnesses were not any better. When PW2 came to testify? ho claimed to know all the accused persons well. However? when he was asked to identify thorn? it was obvious that he knot? none of them. PW2 called Al"\* Ndyaba; A2 Butarima and A3 Buturoturo. Obviously there was something gravely wrong here. That identification was wrong:

PW3 in one breath told court that after the attack on their home, ho •went back to gro.ae cuttle, in another breath ha denied this and sc-id that after the above event? he- went straght to Rwandenzia's home. This "witness also admitted having forgotten some of the matters relating to this case.

As regards PW4, in one area of her evidence,she claimed that the attackers found her,, ' her husband.and children in the compound of their home, yet in another, she claims that for her she was digging at the said time and did not know what her husband was dping since he was at the back of the house.

The above apart, the five prosecution witnesses (i\*e PW1, PW2, PW3? PW and FW5) contradicted each other in many areas of their evidence particularly in regard to the injuries inflicted upon the persons who were killed (i.e Iddi Tamukoddet>Abdul Kyegorabe and Mustaffa) and m\$ny other matters.

Foroxamplc, while some witnesses claimed that Iddi Tamukedde was cut on the head raid one of the logs? others said he was cut on one of the legs and speared in, either the chest or abdomen. In fact K/A contradicted them ill and said Ndyaba cut off Tamukudde's leg around the knee and held it in his hands.

Some witnesses said Abudala Kyegombe was speared. Others claimed he was speared and dismembered.

WhilL, some witnesses claimed Mustaffa Mabuye had no injury on him, others said he had an injury either on the forehead or in the centre of the head.

One tvitness clu.imed that when Nuru Nsubugors hands were cut. he was abandoned 700 metres away from home, others said Nuru was abandoned on the verandah of their home by the assailants\$ yet others told court that he was left in the kitchen.

To make matters worse, every witness who testified after another (except PW2) claimed that he or she "was the one telling court the truth while that other (who came before) was either lying or had forgotten what transpired on the day in issue.

Indeed the climax was reached here, when P/J5 contradicted tr rest of the witnesses (who came before him) and appeared to be saying that ho was the only one telling the truth•

The law on what amounts to a prima facie case was quite clearly sot out in the case of Ramanlal T. Bhatt v. R [1957]E,A. at P,335o "A mere scintillci of evidence can never be enough: no any amount of worthless discredited evidence

Apart from the above unreliable and contradicted evidence, the prosecution in this case has no better evidence.

In the circumstances therefore, court has no choice here uxc^t to find that no prima facie case has been made out against rm ¹ the accused persons in this case.

I accordingly acquit them all of the offences herein; and order that they be released immediately,, unless they are being held on some other lawful charges.

Ag. JU ^D ^G ^E 15/C/1S94

& o

Read before:

Al} A2 and A3

Mr. Mwene Kahiraa for A2

Mr. Zehurikizo for Al and A3

One Assessor

Mr. Baguma C/clerk.

E. S. Lugayizi Ag. 15/-S/1994