[2011] UGHC 187

### **REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT JINJA

## HCT-03-CR-SC-0179 - 2007

UGANDA.......

........ PROSECUTOR

#### **VERSUS**

**A1 ODEKE PETER** A2 OBWANA G. A3 ETUDI M

#### ..... ACCUSED

## BEFORE: THE HON. MR. JUSTICE AKIIKI - KIIZA

#### **JUDGMENT**

The three accused persons are indicted on a single count of Murder contrary to section 188 and 189 of the Penal Code Act in that, they on the 11^th June, 2007 at Bukonde village in Bugiri District, murdered Atebat Aiseri.

On their part, the accused persons denied the offence. The burden of proof is upon the prosecution to prove the above allegations against each of accused person beyond reasonable doubt. The accused persons have no duty to prove that they did not commit the offence. The prosecution must prove the case against each accused person separately.

The ingredients of Murder are as follows:-

- A human being, must be died, $i)$ - The death must have been caused unlawfully. ii) - The killer had malice aforethought. iii) - The accused persons participated in the murder. $iv)$

During submissions, both the defence and the prosecution Counsel, agreed that, the death, the unlawfulness of that death and the killer having malice aforethought had been proved by the prosecution beyond reasonable doubt. Given the nature of the evidence adduced in Court, I am in complete agreement with that submission. In the premises therefore, I find that, Etabat Aiseri, the victim in this case, is dead, that her death was caused unlawfully and that whoever killed her had malice aforethought. The defence however, contested the alleged participation of any of the accused persons in the murder.

Participation of an accused in a crime can be proved by direct eye witness account and/or by circumstantial evidence. In this particular case there is no direct evidence implicating the accused persons in the victim's murder, and the prosecution is seeking to rely on circumstantial evidence and their confessions to prove the case against them. Circumstantial evidence is good evidence, but must be of such nature that, it shows the accused are the only ones who must have committed the offence, and there is nothing to show that somebody else might have committed the crime (See generally the case of SIMON MUSOKI VS. R [ 1958] EA 715.

According to PWI, the deceased in this case was her grand mother. That her mother had disappeared earlier on in 2007, and A1 had told them, that, he had met her on her way to a Crusade, in Jinja. That on the 14/6/2007 the deceased in this case asked A1 where PWI's mother was, and that A1 told them, that, if she thought that it was him, who had killed the PWI's mother and others, then she ( the victim in this case) would also follow in the same way.

That then A2 and A3 came and warned the deceased not to accuse A1 of killing her mother (PWI's mother). That on the 18/6/2007, while at home she saw a lot of flies and a stench from a maize garden. Then she saw something like a human body and

she run back and informed others. It was found that it was the body of her grand mother (the deceased). That people came, including all the accused people. The LCs and police came and the body was put in the house. That the deceased had disappeared on 11/6/2007 and the body was found on the 18/06/2007 (after a week). PWI also told court that, there was a land dispute between A1 and her mother and the deceased and that they used to quarrel a lot.

According to PW2, he was the LC. I Chairman of the area. That on the 20/6/2007, he attended a clan meeting at PWI's home over the death of the deceased, in this case. They suspected the accused to have committed this offence. To him, there was no grudge between the deceased and the accused person.

According to PW3, he was a relative of the deceased and the accused persons. That he had organized a clan meeting following the death of the victim in this case. Wherein the accused were suspected to have killed the deceased's daughter earlier on as A1 had claimed that she had gone for a Crusade in Jinja but was found dead. Hence they suspected that they killed the deceased in this case, when she inquired about the whereabouts of her daughter. According to him, there was a land dispute between A1's family and the deceased over the boundary line.

PW4, is a police officer attached to Bugiri police station. That he recalled he rescued the accused person from mob justice and took them to Bugiri police station. That when they got A3, he appeared to blame A1 and A2 for his trouble. From Bugiri, the accused were transferred to Jinja Central Police Station.

The second line of the prosecution case regards charge and caution statements made by the accused person to PW5, Detective AIP Okurut. All the accused persons, retracted and/or repudiated their statements, hence I held a trial within a trial and

found that, all the accused did not only make the charge and caution statements to PW5, but that they made them voluntarily, and hence they were admissible against them.

I will start with that made by A1. It was admitted in evidence as exhibit PEI. In his statement to PW5, A1 started that, he had killed the deceased and her daughter and her husband over land matters which they had grabbed from his family. That in may 2007, he had convinced A2 and A3 to assist him murder the victim. That he promised to give them a cow each if they assist him to accomplish his mission. That they first dealt with Christine ( the deceased's daughter). That after 3 weeks after killing Christine, they decided to kill Etabat Aiseri, the victim in this case as well. That it was around 1p.m., on a date he could not recall that he and the two coaccused went for her and found her alone at home seated at the verandah. That they dragged her behind the toilet and struggled her to death and thereafter laid her body on the shrubs behind her toilet. That he planned the murder without the knowledge of his relatives.

According to A2's charge and caution statement, (Exhibit PE3), he told PW5 that, Etebat Aiseri was his grandmother and that he had participated in her killing upon the instigation of A1 due to land wrangles. That in May 2007, A1 approached him and A3 to assist him to carry out the task of killing some people, including the deceased in this case in return to getting a cow each from him (A1). That he first hesitated, and A1 approached him twice and that on the third occasion he and A3 agreed to assist him in his mission, but no date was set.

That on a date he cannot recall, A1 took them to show them the disputed piece of land between A1 and the victims. That they first killed one Christine and buried her, and then washed themselves in water mixed with herbs and were given a meal.

That after 3 weeks A1 called them to his house and they moved to the home of $\frac{1}{2}$ . Etabat Aiseri (deceased in this case) and A1 emerged pulling her by her neck and that, she was already dying and that A1 put her in the shrubs and they then moved away at about 1p.m. in the afternoon.

According to A3's charge and caution statement, (exhibit PE2), he denied committing the offence, but that he was present when A1 was strungling two women to death, including Etabat Aiseri, who is the victim named in this case. He said A1 killed the deceased over land matters, and that A1 had called him from his home as well as A2 and had taken them to the disputed land in a maize garden. That 3 weeks later he saw A1 kill the victim in this case and threw her into the shrubs after struggling her near the toilet, then they went away but later they were arrested and taken to the police.

At the hearing, all the accused persons swore and denied the offence. According to A1, on the 19/6/2007, while in his garden, he heard an alarm around mid day and when he answered it, he found that the victim in this case is dead and the body was behind the toilet and it was already decaying. That on the 20/6/2007, he saw himself being arrested and taken to the police on allegations that he had killed the deceased. He denied having a land dispute between himself and the deceased. He admitted implicating each other in their charge and caution statements, as their strategy in defending themselves.

As for A2, he also swore and denied the offence and that he recalled seeing the body of the deceased on the 19/6/2007 and was subsequently arrested over this case. He told court further that they discussed among his co-accused what to say in their charge and caution statements, in their defence while at the police station.

$\mathsf{S}$


A3 on his part also swore and denied the offence. He told court that he came to know about the case on the 19/6/2007 when he heard an alarm, and upon answering it, he found that, the victim in this case was dead and the body was behind the toilet. He was subsequently arrested on the 21/6/2007 from his home and was taken to Bugiri Police Station before he was eventually transferred to Nalufenya Police Station in Jinja. He also told court that he and his co-accused had discussed what to say before making the statements to the police.

Those in brief are the facts. I have carefully considered all the evidence on record from the prosecution witnesses and from all the accused persons. I will consider the case against each accused person separately staring with A1. The prosecution main thrust of their case against A1 is the charge and caution statement he made to PW5. In that statement he does not implicate himself alone, but also implicates his co-accused. As I have already outlined above, he gives the background of his desire to kill the deceased over a land dispute between the parties. This is also talked about by both A2 and A3 in their respective charge and caution statements. He told pW5 further that, in May 2007, he decided to kill those who had taken his land. These included one Christine, whom is not a subject of the present case, and Etabat Aiseri. He said he got the assistance of A2 and A3 and they dragged her form her home to the toilet and struggled her and hid the body in a shrub. That before he could give the 2 cows to the co-accused persons, he was arrested.

I am aware A1 retracted/repudiated his statement and I held a trial within a trial after which I found that, the accused had made the charge and caution statement, and he had also made it voluntarily and it was admitted in evidence as exhibit PEI.

I warned the assessors as I warn myself of the need for caution and to look for corroboration before relying on such confession. However corroboration is not



necessary if the court is fully satisfied after considering all the material points and surrounding circumstances that confession is true. (see the case of **BWIRE** WYCLIFF & ANOTHER VS. UGANDA S. C. U Cr. App. No. 12/2002). After carefully considering A1's charge and caution statement I am satisfied that A1's confession was unequivocal admission of having not only participated in the killing of Etabat Aiseri, but that he was the brain behind the whole thing. He was the Chief planner and he took pains to convince his friends (A2 and A3) to assist him and even offered a reward of a cow each after a successful execution of his plan. His charge and caution statement is so detailed that no one else, let alone, PW5, could have known its contents, save the accused himself. He gives the background leading to the commission of the crime, his plans and his invitation of A2 and A3, the promise of the reward, then the killing of the victim in this case. He also revealed the place where they found her, and where they threw her body. He even gives the details of the arrest. It is my considered opinion that, in such circumstances whatever he told PW5 must have come from him and was a true sequence of what he had done on the material day. Hence there is no need to look for corroboration of his confession in such circumstances. However, even if corroboration was necessary, this could be got from the statements of his coaccused persons who all implicated him. This was the view of their Lordships in the BWIRE WYCLIFF case already cited above. In the case of MOHAMMED MUKASA AND ANOTHER VS. UGANDA, S. C. U. Cr. Appl. No. 27/95, the Supreme Court stated as follows:-

" If the accused makes a full confession and tars himself with the same brush and the statement is sufficient by itself to justify a conviction of the maker of the offence from which he is being tried jointly with the other accused, the statement was taken into consideration or as evidence against the coaccused."

$617$ In the instant case, A1's co-accused, especially A2's confession, implicates not himself (A2) but also A1. hence in my considered view offers adequate corroboration to A1's confession. That apart, what the accused told PW5, is also corroborated to some extent, by what the prosecution witness had told court. PWI, PW2 and PW5 told court about land wrangles between A1 and the deceased which the accused also told PW5 in his confession. Also they talked about finding the deceased's body in the bush (stench) behind the toilet. This was also so stated by A1, in his charge and caution statement. Apart from what the prosecution witnesses had told the court, even A1 himself in his defence in court, confirmed finding the body of the deceased, behind the toilet. In the above circumstances, I am satisfied beyond reasonable doubt, that, the accused confession was true and can be safely be relied upon by this court. The accused on his part, denied the offence. That he simply saw himself being arrested from his home and that he made the statement under pressure. He also told court that, he and his colleagues had made a defence strategy to agree on what to say. The accused never impressed me, as a truthful person. He was unsteady while testifying and he struck me as a person who knew more than what he was willing telling the court. On the other hand the prosecution witnesses impressed me as truthful witnesses and largely gave their evidence in a straight forward manner. I accept what they told the court as truth, and I dismiss the accused's testimony as mere lies. The Assessors have advised me, to find accused guilty as indicted and on the evidence before me, I entirely agree with them. All in all, I find that the prosecution has proved the participation of A1 in the murder of Etabat Aiseri beyond reasonable doubt and I find him guilty of the same contrary to Section 188 and 189 of Penal Code Act and I convict him accordingly.

I now turn to A2. The prosecution is also basically relying on his charge and caution statement he made to PW5, which he retracted/repudiated at the trial but after

$40$

holding a trial within a trial, the court found that the accused did not only make the statement under charge and caution, but he also had made it voluntarily, hence it was admitted in evidence as exhibit PE3.

In that statement, A2, told PW5 that he had been approached and persuaded by A1 to assist him and kill people who had grabbed their land. He identified one Christine whom they killed first and then the victim in this case, Etabat Aiseri. After killing Christine, A1 took them at his home and they cleansed themselves with herbs and water before he served them with millet and chicken in addition to promising him and A3, a cow each. That 3 weeks later, they all three accused people were together when A1 pulled the victim in this case (Etabat Aiseri) by the neck, and then the old woman died. That A1 put the body under a shrub and they went away. Then after about one week, the body of the old woman was found and he was arrested along with the others. I warned the assessors as I warm myself of the need to be cautious while dealing with a retracted/repudiated confession. The court should get other independent corroborative evidence before relying on such confession to convict the accused. However as we have already seen while reviewing the case in regard to A1, the court can convict without such corroboration if it is satisfied that considering everything about the case, the accused's confession was true (TUWAMOI VS. UGANDA [1967] EA 84 and the BWIRE WYCLIFF case by the Supreme Court cited earlier on). A careful perusal of exhibit PE3, clearly shows that, A2 gave a detailed account of events from the beginning upto his arrest. It is my considered opinion that, such details were only on A2's knowledge and he correctly related to them what he told PW5, could not have been "cooked" by PW5 as there was no way he could have accused such details.

In the premises therefore I accept A2's confession as correct and true. Hence there was no need for corroboration. However, even A1's confession implicated A2 and is

admissible and provable against A2, as A1 points himself with tar as he does A2. These two corroborates each other (See the case of MOHAMMED MUKASA AND ANOR. VS. UGANDA, S. C. U. Cr. App. 27/95).

Also some aspects of A2's confession, like the existence of a land dispute between A1 and the deceased and family was also in his confession. A2 in his testimony in court denied the offence. He said that he had come to know about the death of the victim on the 19/6/2007 through the Gomborora Chief and the LC. I Chairman. That he was later arrested by the police on the 21/6/2007 and that while at the police, they agreed to blame each other.

I have carefully reviewed the evidence before me, and I have critically analysed the demeanours of all those who testified from both sides. I find that the accused was not speaking the truth. He was shaky and unsteady while on the witness stand. On the other hand the prosecution witnesses were largely truthful and reliable. I therefore dismiss his denial and his entire evidence as mere lies, intended to hood via the court. I accept the prosecution evidence as truthful and reliable. The assessors have advised me to find the accused guilty as indicted. Given the evidence as I have shown herein above I entirely agree with them.

All in all, and in full agreement with the assessors, I find that the prosecution has proved that A2 participated in the murder of Etebat Aiseri contrary to section 188 and 189 of the Penal Code Act and I find him guilty of the same and I convict him accordingly.

I now turn to A3. For him in his charge and caution statement, he never accepted taking part on the crime. However, he said he witnessed A1 killing Christine and the victim, Etabet Aiseri who is the only subject of this case. Apart from this denial, he

told PW5 all the other details, as stated by A1 and A2. However, what he told PW5 does not technically qualify to be a confession, within the law.

In the case of JULIUS MUBANGIZI VS. UGANDA S. C. U Cr. App. No. 55/2000 the Supreme Court stated as follows:-

" A statement is not a confession unless it is sufficient by itself to justify the conviction of a person making it, of the offence which he is tried."

In my view, what A2 told PW5 (exhibit PE2) does not sufficiently, by itself to justify his conviction of the current offence he is being tried for. However, having said that, he had A2, are implicated by A1's confession and as we have already seen herein above, A1's confession can be used to implicate A3, as A1, had implicated himself in killing of Etibat Aiseri in this case. (see MUHAMED MUKASA CASE as cited above) being present but did nothing to prevent A1 kill the victim or at least report the incident to the authorities, this also implicates him (see BIRIKADDE VS. UGANDA [1986] HCB 6).

The accused in his defence denied the offence. Accused said he simply saw himself being arrested. After reviewing the entire record and the demeanours of all the prosecution witnesses and that of the accused, I find that, the prosecution witnesses were truthful and reliable but the accused struck me as a mere liar. He was shaky and avoided direct eye contact while testifying. I found his denial as a desperate attempt to escape the consequences of his action and I accept the prosecution evidence as representing the truth.

The Assessors advised me to convict A3 as well as the prosecution had succeeded in putting him at the crime. On the evidence before me, I entirely agree with them. In

$11$

the premises therefore I find the accused guilty as indicted contrary to section 188 and 189 of the Penal Code Act, and he is convicted accordingly.

Akiiki - Kiiza Judge $21/11/2011.$

$22/11/2011$ : Accused present. Muwagaya for state. Osille for Accused.

**Court**: Judgment read in open court.

Akiiki – Kiiza Judge $21/11/2011.$

**Resident State Attorney:** Murder is a serious offence. The life of an innocent old woman was brutally brought to an end just over a land dispute. We pray that the court pass a stiff deterrent sentence to send a message to the community that land disputes are not solved through violence.


That it would be a good lesson to the accused.

Akiiki - Kiiza Judge $22/11/2011.$

## Allocutus:

Osillo: I have a joint allocutus for all three accused persons after talking to them. They are praying for leniency. No previous record, A1 is 40 years old, A2 is 47 years old and A3 is 30 years old. These ages the convicts are capable of reforming. They can become good citizens. They have families to look after. They also pray that, court takes into account the 4 years they have spent on remand, since their arrest on 2007. We pray for a lenient sentence.

Akiiki – Kiiza Judge $22/11/2011.$

## Court: Sentence and reasons thereof:-

All accused persons are allegedly first offenders. They have spent 4 years on remand. I take this period into account while considering the sentence to impose on them. They have also prayed for leniency and have families to look after.

However, the accused committed a serious offence, murder carries a likely death as a possible maximum sentence. The victim was an old woman weak and defenceless who appears to be a relative to some of them. They wantonly and selfishly took

away her life. This was sort of revenge by A1 who convinced his colleagues to end her life.

Such behaviour must be condemned by all and law abiding citizens of this country. Putting everything into consideration, I sentence each accused person to a term of 25 (twenty five) years imprisonment.

Right of Appeal explained.

Akiiki – Kiiza Judge 22/11/2011.