[2022] UGHCCRD 123

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

### **HCT-00-CR-SC-0514-2019**

**UGANDA :::::::::::::::::::: PROSECUTOR**

### **VERSUS**

**1. SAMIDI MOSES**

**2. SAFARI MAKOTI ::::::::::::::::::: ACCUSED**

#### **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

#### **JUDGEMENT**

The accused persons, **Samidi Moses** and **Safari Makoti,** are indicted on a single Count of Aggravated Robbery c/ss 285 and 286 (2) of the **Penal Code Act.**

It is alleged that on the 21st day of May 2018, at Sendawula zone Lungujja in Rubaga division found in Kampala district, the accused persons robbed one Bagyenda Hope of 3 mobile phones, 1 TV, a PlayStation console, a golden necklace, cash - 10,000,000/-, a wallet containing 450,000/-, a flat iron and 3 golden watches all valued at UgX 45,000,000/- and at the time of the robbery were in possession of deadly weapons namely sharp metal implements and administered a dangerous chemical to the victim.

The accused persons pleaded not guilty to the indictment bringing all the elements of this offence into issue.

The brief facts for the prosecution are that the first accused person, Samidi Moses, had for several months worked as a watch man for PW 1, Hope Bagyenda. The second accused person was said to be known to the first accused person as a guardian. At about 6.30 pm on the 21st day of May 2018, the victim returned to her home on Nsibambi Road in Sendawula zone, Rubaga division, Kampala District. She sat in her living room and was served food – Matooke and beans – by her house help, Nantongo Salome. At the time, the victim's children including Nimusiima Stoffel (PW 2) and Namanya Cherry (PW 10) were in her bedroom playing games on a PlayStation. Immediately after PW 1 ate the food she felt unwell and passed out. She woke up at 5.00 pm the next day to find herself in Abii Clinic in Wandegeya.

As the victim's children were playing in the bedroom men walked in and forcibly took away their phones. The intruders also ordered the children to show them where money was kept. The eldest, Nimusiima (PW 2) was punched when he resisted. The men were armed with long sharp implements that looked like pangas. They ordered the other children to lie down and cover themselves. PW 2 recognised Samidi Moses who had in the past, and for several months, worked at their home as a security guard. He also saw Patrick Bonane who was the person working as a watch man at the time. He recognised a third person as A2, Safari Makoti, who had a couple of months before come to the home saying he was Patrick Bonane's father.

That the men, including A2, directed Nimusiima to show them where money in the house was. That he took the assailants to a wardrobe which had 10,000,000/- in cash. From there he showed them another wardrobe where there were several foreign currencies.

That a number of other items were also picked and taken including suitcases full of clothing, phones, laptop computers, a blender, flat iron, a PlayStation console, microwave oven and cash. After carrying the items into a waiting car they left.

Thereafter the children realised that their mother had passed out. They called neighbours who helped to take the victim for treatment. The children also called their uncle Fred Bamwine who arrived at the scene with the police. They found all the lights on, there were long metallic objects in the compound and the house turned upside down. The police got half eaten food, matooke and beans, in a saucepan and a dish for serving food, abandoned in sitting room. Some of the food was in the kitchen.

Samples of the food were recovered and submitted to the Government Analytical Laboratory for analysis. The results showed that the food contained Carbofuran a highly toxic hazardous chemical.

The police traced for and arrested Patrick Bonane the watchman. Shortly after they also tracked down Samidi Moses and Safari Makoti.

The accused persons however denied participating in the commission of this offence.

A1 Samidi Moses stated that he worked as an Askari in Lungujja Mengo. That on the day of the robbery he was away in his village. On his return return he learnt that one John Turinabo, the person who had gotten him a job had been arrested by the Police. When he tried to inquire, the police arrested him instead and released John Turinabo. He was eventually taken to Court and remanded in Luzira Prison.

Safari Makoti, A2, stated that he was a herbal doctor selling herbal medicine. He stated that he knew Bonane Patrick as a patient he had once treated him for a backache. That Bonane sold fruits on a wheelbarrow and requested A2 to get him another job. That Safari took Bonane to Lungujja where he introduced him to people working on a building site and asked them to help get Bonane a job. Shortly thereafter, Safari was arrested by Police from Old Kampala Police Station who asked him how he knew Bonane. That he explained to them how he met Bonane but they tortured him for a month before he was charged him with this offence.

Bonane Patrick testified as DW 3. He stated that he knew A2, Safari Makoti, as a relative and herbal doctor from back home in Congo. That A2 had treated him for back pain. That A1 Samidi Moses is his uncle and had been a security guard at the home of the victim Hope Bagyenda. It was Samidi who got him a job at her place.

At the time he testified, DW 3 was a convict having entered a plea bargain over these same charges. He stated that he robbed Hope Bagyenda, but committed the offence with a different set of people and not the accused persons. That he had put chloroform in the food before the robbery. That A2 was arrested only because when DW 3 was taken into custody, the police found his contact in Bonane's pocket at arrest.

In criminal cases the burden of proof lies throughout on the prosecution (see **Okethi Okale V R 1965 E. A 555**). That burden will not shift to the accused person except in certain statutory cases not applicable here. The prosecution must prove each essential element of the offence to a standard beyond a reasonable doubt.

The essential elements of the offence of Aggravated Robbery are:

- 1. theft of property; - 2. use of a deadly weapon; and - 3. the participation of the accused.

## (See **Walakira Abbass & 2 O'rs Vs. Uganda S. C. Cr. Appeal No. 25 of 2005**).

i) Theft

PW 1 Hope Bagyenda was in the house when the assailants came in. Both PW 1 and her son (PW 2) stated that several items were taken from the house and never recovered. The things carried away were suitcases full of clothing, 8 mobile phones, laptop computers, a blender, flat iron, a PlayStation console, microwave oven, UgX 10,000,000/-, \$ 3,000 in cash 2 TVs, a golden necklace, a wallet containing 450,000/- , a flat iron and 3 golden watches. The total value of the items was approximated UgX 45,000,000/-. PW 2 stated that several trips were made by the intruders carrying items out of the house.

The question here is whether the above amounts to theft. **The Oxford Dictionary of Law** defines theft as the dishonest appropriation of property belonging to someone else with the intention of keeping it permanently.

The items listed above were taken from the complainants with the intention of keeping them permanently. Indeed, none of the items taken were ever recovered. It is also true that the assailants had no claim of right over them.

In light of the above I find that the element of theft has been proved beyond any reasonable doubt.

ii) The use of a deadly weapon

The accused persons deny being at the scene of crime.

PW 2 stated that he was punched when he hesitated to show them where money in the house was or and when he resisted them taking his phone. He said he received from punches from various directions.

Secondly with regard to a deadly weapons, PW 2 saw that 4 of the assailants were armed with implements shaped like pangas. Each of these weapons was sharp edged and about a metre long and 3 inches wide. When PW 6, Detective Constable Waiswa Abdullah, the Scenes of Crime officer from Old Kampala Police station got to the scene, he recovered items shaped like pangas abandoned at the scene. He described them as sharp implements. These items were not properly exhibited but properly described by both PW 2 and PW 6. It has been held that when an exhibit used as a weapon cannot be produced in evidence it should be described as carefully and as exactly as possible by witnesses who saw it used (see **Charles Komiswa vs Uganda 1979 [HCB] 86**). I am satisfied with the description given by these witnesses. It is trite that a panga is deadly weapon. Any weapon shaped like a panga therefore fits the description of a deadly weapon.

The other aspect is the food that was eaten by the victim. She stated that she was served food when she got home. When the police got to the scene they found the remains of matooke and beans in a dish and a saucepan. There was also a clay plate on the table. Both the victim and the girl who cooked the food ate it. They both passed out with the victim retained in hospital for almost 24 hours.

The food and the dishes were exhibited and submitted to the Government Analytical Laboratory for examination. The request was to investigate the possibility of the presence of toxic elements. The officer who examined the food was called Musa Wakabi (PW 5). He was a government analyst with 11 years of experience. He also held a Master's Degree in Analytical Chemistry besides A Bachelors degree in Chemistry and several related diplomas. This officer's competence was therefore impeccable and not in doubt.

PW 5 explained to the Court that he applied a technique called Gas Chromatography – Tandem Quadruple Mass Spectrometry and found that the food in serving dish contained a substance called cabofuran. This is a chemical commonly called Furadan, an agricultural pesticide which once ingested can be fatal. It has a WHO rating of highly hazardous. On a scale of 1, 2 and 3 it has toxicity rating of 2. It also causes spasms, convulsions and uncoordinated movements.

Subsection (2) of Section 286 (3) of **the Penal Code,** as amended, defines a "deadly weapon" as an instrument made or adapted for stabbing or cutting, and (ii) any substance, which when used for offensive purposes is capable of causing death.

Looking at the legal definition of a deadly weapon I find that the metallic implements used and found at the scene fit the definition of deadly weapon.

Secondly, Carbofuran or Furadan, the chemical found in the food that was in the serving dish is a pesticide that, according to the expert, can cause death once consumed. The fact that the food was laced with it showed that the perpetrator meant for it to be eaten and indeed the victim and her house-help Salome ate it. The victim was knocked out for several hours after.

In these circumstances this court holds and finds that two types of deadly weapon were used in this case. In the result the second element namely, the use of a deadly weapon has been proved beyond reasonable doubt.

3) Participation

The accused persons both denied committing this offence and set up alibis.

A1 Samidi Moses asserted that that on the day of the robbery he was away in his village.

Safari Makoti, A2, said that he is a herbal doctor selling herbal medicine. That he knew Bonane Patrick as a patient but did not commit this offence.

DW 3 corroborated the account given by both accused persons. It was his evidence that he carried out the robbery with other people and not A1 or A2 essentially substantiating the alibi set up by the accused persons.

By setting up an alibi, the accused persons did not assume any duty of proving it. The onus remained on the Prosecution to prove to the required standard that the accused was at the scene of crime. (See: **Moses Bogere and Anor Vs Uganda S. C. C. A No. 001 of 1997).**

The prosecution relies exclusively on the two identifying witnesses PW 2 and PW 10, Namanya Cherie to place the accused persons at the scene. Both state that they saw Bonane Patrick - DW 3, participating in the robbery on the 21st of May 2018.

It was the evidence of PW 2 Stoffel Nimusiima, that the assailants entered the bedroom where his siblings and himself were playing games on the PlayStation armed with panga like weapons and tried to grab his phone. At first it was two, A2 Safari Makoti and another. That when he saw A2 he recognised him as a man who had been to the home about 2 or 3 months before stating that Bonane was his son and he wanted to see his son's workplace. That day A2 had walked around the house with Bonane.

A2 demanded that PW 2 show them where money in the house was kept. That the lights were on the whole time the incident unfolded. In his estimation it started at 9.00 pm and went on to 10.30 pm. That he saw Bonane and A1 carry things out of the house making at least five trips in and out. PW 2 asked him why are you doing this to us?

The first responders to the scene were led by one Fred Bamwine. He had been called by a sister of the victim and went first to the Police before they came to the house. That when he arrived he found that all the lights in the house on. This tends to support the assertion by PW 2 and PW 10 that the lights in the house remained on throughout the robbery.

From the above it is clear that the prosecution is relying solely on identification evidence to establish the participation of the accused persons. I am alive to the need for caution. I also take note of the relevance of the holding in **Abdalla Nabulere and Other vs Uganda Cr App No 9 of the 1978** where it was held that,

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 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. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.

It is a paramount consideration here to test and ensure that any evidence made in identification is free from the possibility of error. Both PW 2 and PW 10 state that the incident lasted for more than an hour. I have examined PE 5 - the pictures of the scene of crime. It is clear that the rooms in the house are all no more 5 metres in length and width. Therefore the observation of the intruder by PW 2 was made at all times from close proximity and no more than 5 meters each time. This incident happened after 9.00 pm but all the lights in the house were kept on. Additionally, both accused persons were well known to PW 2. He had seen A2 on the day he came to the house previously, and A1 had been a watch man at the home for several months. These were not strangers to PW 2. That from the time they entered these people spent much of the time with PW 2 forcing him to reveal and point them to where money in the house was kept. At one stage they were close enough to punch him.

It is true that PW 2 is in essence a single identifying witness. That all the accused persons have stated they were not at the scene. In this case however both PW 2 and PW 10 saw Bonane participating in the robbery. This is a fact he has admitted to.

Bonane in admitting that he was one of those who carried out the robbery testified that he did not know whom he carried out the offence with. That he did not know their names. That in any event it was dark on the day of the robbery and he could not properly identify those others he stole with. These explanations are incredible and collapse because they are unbelievable.

I have examined the evidence of identification. In my view the conditions under which the accused persons were seen were conducive for a proper and correct identification. It is especially pertinent that A1 was well known to PW 1, since he had worked in the home for long time as a guard. In fact DW 3 had said that A1 was the guard in the home from whom DW 3 took over.

When closely examined it is clear that any possibility of error is greatly diminished in these circumstances. It is my view that the accused persons were clearly identified at the scene of crime. For that reason their alibi cannot stand and shall be disregarded as packs of lies.

In the result it is the finding of this court that the accused persons participated in the commissions of this offence.

The assessors advised this court to find the accused persons guilty as all the elements of the offence had been proved.

In the result, and in agreement with the assessors, this court finds:

- 1. **Samidi Moses** - 2. **Safari Makoti**

*guilty* of the Offence of Aggravated Robbery Contrary to sections 285 and 286 (2) of **the Penal Code Act** and hereby *convicts* them.

# **……………..…..……………………………**

# **Michael Elubu**

**Judge**

**25.10.2022**