[1996] UGHC 20

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NEARARA

## CRIMINAL SESSION CASE NO.206/95

UGANDA. . PROSECUTION

VS

BENON TUMUSHABE . . ACCUSED BEFORE: THE HON. MR. JUSTICE E. S. LUGAYIZI RULING:

The accused in this case (one Benon . Tumushabe alias Singura) was indicted for the offence of defilement c/s 123(1) of the Penal Code Act\*

The particulars of the indictment alleged that the accused on or about the 30th day of August⁹ 1993, at Rutooma Trading Centre^ unlawfully had sexual intercourse with one Jenifer Namara, a girl under the age of 1S years\*

Because the accused denied the said indictment, the prosecution called tvzo witnesses (i\*e^a Bamanya Fred (PW1) and Richard Ndyahwerwa (PW2)) in a bid to prove its case against the accused.

In brief, the said two witnesses testified as follows: Ji' ⁱ ⁱ

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That around August, 1993⁹ one Kikoyogo, who is the father of Jenifer Namara (the complainant in this case) began looking for the said girl near PWl's lodge in Rutooma Trading Centre.

The girl had been missing from home for four days. Subsequently, the girl was found; and later she led PW1, Kikoyogo and a number of others to Room Nooil of PWl's lodge where the accused was sleeping.

On interrogation, the accused and the complainant admitted that they knew each other. Kikoyogo then agreed that the two could marry if, the accused paid him UGS.50,000/= as dowry.

The Accused agreed and was J.eft to go and look for the dowry.

However, subsequently, the.accused was arrested and Kikoyogo took the matter to PVJ2 who was the RC 1 Ohali of the ,-area,

PW2 in turn referred the matter to the RC 2 Chairman®

After the above evidence, the State offered no further evidence since it had failed to get the rest of its witnesses to come to court⁵ and more particularly, the complainant who was now married end would perhaps prefer to enjoy her marriage without risking to distabilize it with reminders df 'past events.

Be that as it may, the effect of what the prosecution did above is, in my view, the same as closing its "case\*

It is therefore now the duty of this Honourable court to decide whether on the available evidence the prosecution has made out a prima facie case against the accused which would reoxuire him to make his defence.

(See Hofni Tqpacho Ongiertho & *2* Others v. Uganda (Criminal Appeal No.1/93))-

In the celebrated case of R. T. Bhatjt v R (1957) E-A® at P.332, a prima facie case was referred to as,

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"One on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence."

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Since Bhatt (Supra) more light has been thrown upon what amounts to a prima facie case in a string of cases which include Uabiro alia Musa v \_R(196O) E. A®18; Alfred Atou (1974) HCB 179\* ja and Others v Uganda (1974) HOB 254? etc. From those cases,it is now also agreed that where at the close of the prosecution case, an essential ingredient of the offence in issue

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remains unproved, Court would not be entitled to find that there was a prima facie case made out against the accused.

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In the instant case, all we have on record as evidence from the prosecution at the close of their case, is a brief account narrating that the complainant (a girl) who had been missing from her father's home for four days was later found. She then led her father and others to the accused: and the accused agreed to pay dowry to the girl's father so that he would marry her.

Obviously, the above evidence falls short of the standard in Bhatt (supra) and what the other three cases cited above would require; for under it, all the essential ingredients of the offence of defilement $c/s$ 123(1) of the Penal Code Act (i.e. that the complainant was under $18$ years of age on the material day; and sexual intercourse between the accused and the complainant) have ''' not been proved by the prosecution.

In the circumstances Court has no choice but to find that no prima facie case has been made out against the accused to require him to make his defence.

I would accordingly acquit him of the offence of defilement; and order his immediate release, unless he is being held on some other lawful charges.

> $2$ $1$ $1$ $1$ $1$ $2$ $3$ E. S. Lugayizi JUDGE $22/3/96$

## $22/3/96: 4.00$ p.m.

Accused present. Mr. Tibayeite for accused. Mr. Wagona for the state Mr. Baguma Court clerk Court. Buling read.