[1991] UGHC 28

THE MONOVRABLE MR. JUSTICE A. R. SOLUADE

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT FORTAL CRIMINAL SECSION CASE NO. 42 OF 1990 UGANDA::::::::::::::::::::::::::::::::::: **VERSUS**

DANIEL TIBIHIKA::::::::::::::::::::::::::::::::::: BEFORE: THE HONOURABLE MRIJUSTICE I. MUKANZA

## JUDGMENT

The accused in this case is known as Daniel Tibihika. He is indicted with the offence of Attempted Murder contrary to section 197 (a) of the Fenal Code. The particulars being that on the 5th day of September, 1987 at a place called Rugororo village in Kabarole District attempted to murder one Michael Matabaro.

The case for the prosecution was that the complainant $P. W.3$ together with his wife P. W.4 lived at Rugororo village where they had emigrated around 1983. They bought a piece of land from one Alone Bazabayaho who had been sent away from the village for practising witchcraft. The latter sold the lower part of the land to the complainant P. W.3 whereas the upper part was sold to the accused person. In essence $\Gamma$ . 3.3 and the accused person were neighbours and their land shared a common boundary. In 1984 there arose a land dispute between the accused person and P. W1 3. The former went and uprooted the boundaries separating their respective pieces of land. Matters were reported to the authorities who decided in favour of P. W.3. The accused was warned not to interfere with the complainants land anymore.

$...$ ....................................

In April 1987 according to both P. W-.3 and P-. WA-the accused's wife went to the wife of P. W.3, (P.u.4) borrowed an empty jerricane when F. W.4 went to collect the jerricane she found that the jerricane had been cut into pieces by the accused person. Matters were reported to the authorities and the accused was ordered and did in fact replace the jerricane that he had cut into pieces. The accused was not happy\* He swore that there was something more to happen. The accused and F. WJ had been unfriendly after the two incidents.

On 5th September, 1987 P. W^. J together with his wife went to attend Church service. P. W.4 returned home earlier and for P. W. J left for home at around 7\*00 p.m. The homes of the accused and P. W\*3 were separated by 200 metres. Just as he had by passed the home of the accused by just about ¹⁰⁰ metres the accused emerged from infront swearing ::¹ son of Bagyenyi I am going to kill you." Immediately the P. W.3 accused speared him/grabbed the spear The accused using his two hands pressurised and inserted a spear in his chest. He tried to resist and grabbed it in order to avoid pushing the spear further in in the chest. As a result P. W.3 got speared and his lungs protrueded. He shouted and called for P. W.4 that he had been speared. His wife P. W.4 rushed to the scene and using her head dress she tied his chest which was bleeding profusely.

According to P. W.3 the accused was in a distance of a metre when he speared him. On answering to P. W.3's alarm P. W.4 saw the accused person running away from the scene in a distance of about 10 metres. The spear was abandoned at the scene and was exhibited in the court as exhibit F.-2.

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Meanwhile made an alarm which was answered to by their neighbours P. W.5 and others. P. W.5 is ^a neighbour to both the accused and complainant P. W. J. His story as regards the background of the incident is similar to those of P. W. J and P. WJ^f except he went further and informed the court that the two have been unfriendly and one time they were called and they settled.a land dispute between the two. And on another occassion they (residents) were called and settled the jerricane dispute. On 5th September 1987 F. W.5 answered the alarm and found F.w. J lying in the sitting room with a stab wound in the chest and his lungs were out. In the morning they found a spear at the scene and he collected the same and sent it to higher authorities, tie knew the spear. The accused used to use that spear in hunting wild pigs. .-.ccused was arrested and F. W.3 was taken to Virika Hospital for

treatment.

P. W.6 was the PC I of the area (. Resistance council ¹ Chairman) on 5/9/1987 between 1.00 & 2.00 a.m. on receiving report that F. WtJ had been speared he mobilised his people in the area and went to'P. W.3r^s home where he found the latter lying down in his house with a stab .wound. He talked to him. P. W.3 informed him that he had been stabbed by the accus person. They looked for the accused from his house but they could **not** find him. They found him in the house of a prostitute (Nakyawombekede). The prostitute disappeared. The accused triad to run away but because they were very many people they managed to arrest him. He visited the scepe where he picked up a spear. It had blood stains. He took the accused to higher authorities and P. W. J to Hospital. He identified the spear in court. .............,.............. ^A

**3**

The evidence of $F.-K.-1$ and $F.-K.-2$ was admitted under S. 64 of the TID Decree 26 of 1991. F. W.1 was Lr. Alitagalar Medical officer of Virika Hospital. On 11/9/1987 he medically examined and treated the complainant. He had a spear wound opigarstrium protruding. There was no sign of intestinal damage. He classfied the injury as dangerous harm. The medicatl report is exhibit P1.

E. W.2 David Mubadi a police officer of Fort Portal. His evidence was that he was coming from Kyenjojo to Fort Portal when the O/C Kyenjojo handed to him a spear together with the accused person and handed the same to C/C crime and the suspect was later taken to court.

In his sworn statement the accused testified that he knows 1.8.3. They are neighbours. His land shares a common boundary with that of the complainant. The man who sold land to both of them was sent away from the village because of practising witchcraft. His relationship with the complainant was good. They used to visit each other. 44e never borrowed any jerricane from F. W.3 but his wife did so. The jerricane his wife borrowed got broken. It had very many patches but because those people had none to use he provided them with another jerricane. He did not destroy their jerricane delibarately.

His land shares a common boundary with Matabaro and the boundary was demarcated by a big tree. The boundaries were not there it was the "Munyenye tree" P. W.3 sold the middle part of their land to one Lazaro Baguma. His land was involved $O_n$ being questioned about the matter $\mathbb{F} \cdot \mathbb{W} \cdot \mathcal{F}$ replied that he sold/Lazaro his own land not his. He reported the incident to the authorities who demanded local drinks before so that they fix boundaries for them. P. W.3 refused to make any contribution because ". said was not the aggrieved party.

$\cdots \cdots \cdots /5$

$\overline{4}$

On 5th September 1987 he went to church and after prayers he went to bar. He went to Church with very many people including the complainant. He went to bar at 1.00 p.m. He was taking porridge and left for home at around 6.30 p.m. On the way he found people selling Waragi and he tested. He drank about 200 litres. After that he went home straight. On reaching home/did not find his wife present. He proceeded to another place her sister in law's home.

After walking passing his land he found Matabaro. He was on the way going home. Matabaro (F. W.3) enquired from him where he was going and he replied him. He gave the way for him. He stood near the road side. then the accused was about to by pass him. P. W.3 grabbed his spear which he had held on his shoulder. He struggled to get his spear from F. W.3 but the latter grabbed it firmay. He thought since P. W.3 was drank he feared he could spear him. He released the spear and then walked backwards in the direction he had come from. He slept and at around 5.00 a.m. people went to arrest him accusing him of having speared P. W.3. They were demanding money to transport the victim to Hoslital. He instructed his elder brother to sell whatever he could get hold of: His properties were sold and money was realised from the sale:

He left the spear in the hands of P. W.3. He did not know that F. W.3 had been injured otherwise he could have ran away, He never planned to ...... injure Matabaro. He carried the spear in order to protect himself

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$\mathsf{S}$

Matabaro was also in the bar. He was drank and was staggering. he was sorry to hear that Matabaro was injured. He conceded the spear exhibited in court F2 belonged to him.

As I directed the assessors the burden of proof in criminal cases rests with the prosecution to prove the charge against the accused person beyond reasonable doubt. This burden of proof does not shift except in a few excetptions. This not being one of the those exceptions. I directed them therefore the prosecution must show that the accused had the positive intention unlawfully to cause death to Michael Matabaro 1. W.3 See Mustafa Daga s/o Andu v R. 1950 17 EACA P. 140. R vs Gwempazi s/o Mukonzho 1943 10 EACA P. 101.

An attempt is defined in our penal Code S. $369(1)$ as when a person intending to commit an offence begins to put his intention into execution by means adopted to its fulfilment and manifests his intention by some overt acts but does not fulfil his intention to such an extent as to commit the offence."

(2) It is immaterial

- (a) except so far as regards punishment whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is by circumstances independant of his will or whether he desists of his own motion from the further execution of his intention. - (b) That by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

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$\mathsf{G}$

The burden on the prosecution is therefore first to prove the intention and secondary to prove an overt act sufficiently proximate to the intended offence. The intention will in the majority of cases only be capable of proof by inference and it follows in such cases that the act must be of such a character as to be incompatible with any other reasonable explanation. Secondly even if the intention is established, the act must not be two remote from the alleged intended offence Spray J. in Musa s/o Saidi ^v 1962 EA Page 4^4 at P. 453/ Se.e...alad. Pjuwandikwa vs 2. 1959 EA 18. Uganda vs Faskali Byebirohwa..1976 . HCB-Fage 189, Everest Kugabi vs Uganda 1976 HCB . Page 124/

In the instant case P. W. J testified that after a church service and on his way home he met the accused person who emerged from infront of him armed with a spear and declared "¹ son of Bagyenyi I am killing you\*'.' Immediately he speared the complainant in the chest ^j Ke was Using his two hands in order that the spear might penetrate far. deep inside ^a matter that was resisted by F. W. J and eventually the accused abandoned the spear and fled. He was seen by P. W.4 ten metres away leaving the scene. The latter had come to answer the alarm. The doctor F. ¹ • who examined and treated the complainant found that he had a st al. wound on the chest and an epigastrium was protruding as a result of the injury he classifed the injury as a dangerous harm.

In his defence the accused admitted having met P. W. J on the date in question but argued that P. W. J who was drank tried to take away the spear from him and a struggle ensued. He thought since P. W\*3 was drank he might spear him. He abandoned the spear and left the scene. He did not know at what stage the complainant had been speared if he had known he would have escaped-! The learned counsel representing the accusr submitted that the accused did not have the guilty intention to cause death of the complainant\*.

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There wae na existing between the man and that the land issue belonged to the past. The accused carried the spear because of wild animals still roaming about in the village. If he had wanted to finish up the accused he would not have abandoned the spear but he would have pulled it out and go away with it.

I was opportuned to watch both the prosecution witnesses and the accused when they gave their testimonies in court and I seem to believe the prosecution witnesses. The positive intention to unlawful cause death to the complainant could be deduced from the surrounding circumstances or by inference, (The accused and the complainant were not friendly. On one occassion there was a land dispute between the ² which was settled in favour of the complainant. Then there followed the jerricane issue which the accused cut into pieces and was ordered by the authorities in the area to replace as per the evidence of P. W. J,- F. W.4 & F...'.5\* The accused on **the** last occassion of April ¹⁹⁸⁷ when he was told to replace the jerricane he had cut he informed the complainant that something more is coming. This in my mind were series of act of an intention on the part of the accused which formerly ended up in the stabbing of the complainant with a spear. The accused denial that he never speared the accused were lies. Now on the date of the incident the accused left the bar went home armed himself with a spear and returned to meet the complainant. His utterances that "I son of Bagyenyi" I am killing you." and the immediate stabbing of the complainant in the chest such ^a vulnerable part of the body and using a lethal instrument such as a spear are in no doubt positive intention that the accused unlawfully wanted to cause death to F. W. J. • I reject his version that he was carrying a spear to protect himsenf from wild pigs around. He armed himself with ^a spear with ^a view to kill the deceased and he abandoned the spear at the scene because P. W. J had held it firmly in order to stop further penetration of the same; and at the same time " he abandoned

noise se<br>or an alarm calling F. W.4 for $\tau_{\text{R}}$ spear because 1-4.3 had made / 国产 新生生物 assistance. The accused admitted the spear Ex. 1.2 belonged to him. this the cac. The spearing of the complainant was an overt act sufficiently proximate to the intended offence of murdering the complainant. In effect the lovert act is incompatible with any other reasonable explanation. $-920$

. The overt act is

not too remote from the alleged intended offence. P. W.3 was only lucky that he resisted further penetration of the spear in the stomach or else if he had relaxed some vital organs of his body might have been injured and that would have caused his death.

be it immaterial The accused would have also committed the offence/whether he did all that was necessary of his part in completing the commission of the offence or whether the complete fulfilment of his intention was by circumstances independent of his or whether he desisted of his own motion from the further execution of his intention or that by reasons of circumstances not known to the accused it was impossible in fact to commit the offence. S. 369 of the Penal Code Supra.

This brings me to consider another aspect of this case! That is identification. Whether the accused was properly identified as the person who speared the complainant. P. W.3 was the single identifying witness when he was speared. I am aware of the warning in Rorias case 1967 E 983 as regards the evidence of a single identifying witness. The true lest is whether the evidence of identification could safely be accepted as free from the possibility error. There were however circumstances which suggest that the accused was properly identified as the man who speared the complainant. In the first place the accused and . the complainant were neighbours. Their pieces of land share a common boundary. They had known. each other since 1983. At the time of the incident it was not yet

$\ldots \ldots / 10$

cUrk. It was around 7. CO p.m. according to the evidence of P. W.3 and his wife P. W.^. The confrontation between P.vi.3 and the accused must have taken sometime bee a. se they struggled over the spear. In which case ¹ . ³ must have been able to recognise the accused- P. W-3 informed this court that they were separated by one metre at the time of the confrontation. Definately the complainant could not have mistaken the accused fcr some one else. Moreover P. W.^ on answering to her husband's cries and or an alarm that he had been speared P. W.4 saw the accused run away from the scene just in a distance of about ¹⁰ metresi And to crown it all the accused did not deny the fact that he had an encounter with I. W.3 at khat particular time. The accused even conceded that the spear Ex P.2 was hisi The spear was picked at the scene by PUV.5\* I believe that P. Wi3 Sc PlVh^ & P\*Wi5 told this court the truthl

Besides that the conduct of the accused was not that of an innocent person. V-hen P. W.6 and his group the villagers went to arrest the accused person. They did not find him at home. He slept elsewhere. He was found in the house of a prostitute and when they tried to arrest him he tried to avoid arrest and ran away even the woman (the prostitute) also fled. The accused was trying to run away because of his guilty conscious that h had speared the complainant and he did not sleep in his house for similar reasons. m

Moreover according to the accused person after he had been arrested by P-. W\*6 and the residents of the area demanded that the accused produces money in order that they hire transport to take the complainant P. M.3 to Hospital. The accused in his own testimony instructed his elderbrother to sell his property and raise money for transport- That piece of evidence show that the accused was guilty conscious of what happened and that was why he so readily gave in to raise money to take the victim

....../11

**10**

to hospital for transport. Accused was not pressurised in so acting.

$1 - 1$

As regards contradictions and or inconsistences in the prosecution's case if any those were minor and they did not point to deliberate untruthfulness and could be ignored. See Tajar EACA Cr. App. No. 167 of 1969, Leornad Aniseth v R. 1963 EA P. 206 Uganda vs Dusman Sabuni 1981 HMB P. 1.

From what has been explained above I am satisfied that the prosecution has proved its case against the accused persor beyond reasonable doubt. accused's I reject the/ story as being lies. In the end I am in full agreement with the opinion of gentlemen assessors that the accused be convicted as indicted. I find the accused guilty of the offence of Attempted murder contrary to section 197 (a) of the Penal Code and I convict him accordingly.

Hueger ( I. MUKANZA J U D G E 23/7/1991

$23/7/1991:$ Accused before court.

Mr. Bireije Resident Senior State Attorney present. Mr. Mugamba counsel for the accused person present. Mr. Kiiza & Mr. Bagonza present. assessors:

Court: Judgment is read and signed in the open court.

( I. MUKANZA ) JUDGE 23/7/1991.

. . . . . . . . . . . / 12

\* Bireii^: This court *has* correctly found the accused guiltyi •-0 intentionally wanted to murder Matabaro. The offence of which the convict has been found guilty carries a sentence of life imprisonment. Its a serious offence. The convicted persons had other avenues to take to settle their grievances. For this reason he thought to take away ^a life as a means of solving grievances such person deserves a heavy sentence. The convicted person said he was sorry but I submit that he was not genuinely sorry because the act was not an accident. Many people have died because of land dispute and court can only protect society by •severally punishing'those associated with land disputes^ We have no record of the previous conviction. The complainant was extremely lucky net to have died. So in the circumstances I pray that a severe sentence be given to the convicted person.

vir. Mugamba: The court in its verdict could do as it pleases. But ^I pray that in considering the sentence to be passed court should take into consideration the early age of the accused. The accused is aged ³⁵ years. He is married with ³ young children whom he acts as bread winner. He is a first offender and that he is sorry of what took place. Already he- is a victim of the dreadful disease of tuberclosis which doubtless might further be compounded by his long stay in prison. Also the court could consider the fact that while sentence could be necessary for confinement the convict could turn out to be a good citizen outside.. I:- has been on remand for ⁴ years. This period must be considered when j. sssing sentence. In all I pray that the court could exercise leniency wnen passing sentence.

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## REASON FOR SENTENCE

The accused is ^a first offender. He has been on remand for about ⁴ years. He has a wife and ³ children to cater for. He is suffering from tuberclosis but all the same I feel he committed a serious offence which carries the maximum of life sentence. The accused though annoyed .s he happened to be Should not have taken the law into his own hands. The accused should have taken the matter if any to the authorities.

In the premises the accused is sentenced to ⁹ (nine) years imprisonment. R/A explained.

( I. MUKANZaQ. JUDGE 23/7/1991

ijr« Bireije: This court has correctly found the accused guilty\* •a^O intentionally wanted to murder Matabaro. The offence of which the convict has been found guilty carries ^a sentence, of life imprisonment Its a serious offence. The convicted persons had other avenues to take to settle their grievances. For this reason he thought to take away ^a life as a means of solving grievances such person deserves a heavy sentence\* The convicted person said he was sorry but I submit that he was not genuinely sorry because the act was not an accident\* Many people have died because of land dispute and court can only protect society by severelly punishing those associated with.land disputes. We have no record of the previous conviction; The complainant was extremely lucky net to have died. So in the circumstances I pray that a severe sentence be given to rhe convicted person.

Hr. Mugamba: The court in its verdict could do as it pleases. But I pray that in considering the sentence to be passed court should take into : consideration the early age of the accused. The accused is aged ³⁵ years\* lie is married with ³ young children whom he acts as bread winner. \* He is ^a first offender and that he is sorry of what took place. Already he is ^a victim of the dreadful disease of tuberclosis which doubtless might further be compounded by his long stay in prison. Also the court could consider the fact that while sentence could be necessary forconfinement the convict could turn out to be a good citizen outside\* de has been on remand for ⁴ years. This period must be considered when passing sentence. In all I pray that the court could exercise leniency '.'.neh passing sentence.

/13