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IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA,
JJSC)
CRIMINAL APPEAL NO. 15 OF 2001
BETWEEN
BUKENYA PATRICK
)....................................................................
MUNSURU
RAJABU) APPELLANTS
AND
UGANDA RESPONDENT
(Appeal from the decision of the Court of Appeal at Kampala by the Hon.
Justices Kato, Berko, Mpagi- Bahigeine, JJA dated 26th April 2001 in
Criminal Appeal No. 15 of 1999)
JUDGMENT OF THE COURT
This is a second appeal. The appellants were tried and convicted by the High
Court sitting at Fort Portal on 17"' March 1999 for aggravated
robbery contrary
to sections 272 and 273(2) of the Penal code and were sentenced to death. Their
appeal to the Court of Appeal was
dismissed on 26th April 2001. They appealed to
this court.
The facts of the case were as follows: -
On 8th May, 1996 at
about 3:00 am while the complainant, Hussein Sebbi (PW6), was sleeping together
with members of his family at his home
in Nzara Fort Portal Municipality, a
group of robbers forced the rear door open and entered the house. The robbers
had a panga and
torches. They demanded money from him. One of the robbers placed
a panga on the throat of Hussein Sebbi (PW6) and threatened to cut
him if he did
not produce money. The robbers collected a number of household properties which
included a brief case, a suit case,
clothes such as one brown suit, a white and
black Kaunda suit, one black pair of shoes and cash Shs. 300,000/= from his
room. From
another room the robbers took a small brief case labelled "President"
and a hand bag containing ladies clothes. One of the young
girls in the house
called Fatuma Ismail (PW8) recognised the second appellant by voice. The rest of
the robbers were not recognised.
On 17/6/96 when the complainant was driving in Fort Portal town he sighted
the first appellant wearing his Kaunda suit which had been
stolen on 6/5/96. He
stopped and greeted him. The first appellant was scared and then started running
away. The complainant raised
an alarm and many people answered the alarm, chased
him and arrested him. He was handed over to police. The police interrogated the
lst appellant and as a result of the interrogations, the police
recovered some property from appellant's home at Rugombe Fort Portal
- Kampala
road.
At the trial the first appellant made an unsworn statement denying participation in the robbery. He stated that on 9/5/96 his mother sent him to Fort Portal to buy drugs for her. He met one Nyakojo Rogers who borrowed Shs. 4,000/= from him and handed some clothes to him as security. However, on 17/4/97 while the lst appellant was wearing a shirt which was one of the clothes Rogers Nyakojo had given to him as security for the loan of Shs. 4,000/=, PW6 met him and caused his arrest. After the 1st appellant was arrested and handed over to police CPL Okello, PW7, stated that he decided to search 1st appellant's home from where he recovered more property stolen during the robbery at PW6's home. The evidence connecting the 2nd appellant with robbery was that during the night of the robbery Fatuma, an 11 years old girl (PW8) identified him by his voice which she knew before the robbery.
However, immediately after the robbery, the 2nd appellant disappeared from
the area. When he re-appeared in the area in April 1997,
he was arrested and
charged for the robbery together with the 1st appellant. At the trial
he denied involvement in the robbery.
The learned trial Judge accepted the prosecution evidence and rejected the
defence of both appellants and convicted them. Their appeal
to the Court of
Appeal was dismissed hence this appeal.
The appeal to this court is based on four grounds; namely,
(1) The learned Justices of Appeal erred in law on relying on the uncorroborated evidence of a child of tender years, who was a single identifying witness, in upholding the conviction and sentence against the 2nd appellant.
(2) The learned Justices of Appeal erred in fact and law by upholding that the doctrine of recent possession applied to the 1st appellant.
(3) The learned Justices of Appeal erred in fact and law by relying on the circumstantial evidence that was improbable and insufficient in upholding the conviction and sentence against the two appellants.
(4) The learned Justices of Appeal erred in fact and law when they rejected the defence presented for the two appellants.
Mrs. Eva Luswata Kawuma argued grounds one and four together concerning the second appellant and then grounds 2, 3 and 4 for the 1st appellant Mr. Michael Wamasebu, Assistant Director of Public Prosecutions opposed the appeal.
Mrs. Eva Luswata Kawuma started with the second appellant whose defence was
an outright denial of the charge and had set an alibi
that he never went to
Njara village on 8/5/96 where the robbery took place. The thrust of counsel's
argument was that it was wrong
for the trial Judge to rely on the evidence of
identification by a single identifying witness Fatuma (PW8) who was a young girl
aged
11 years without corroboration. She contended that sudden disappearance by
the second appellant from the area was not corroboration.
In our view, the Court of Appeal rightly accepted the finding of the trial Judge to the effect that PW8 had known the 2nd appellant for 3 years; and that the 2nd appellant used to go to her grandfather's shop at Njara trading centre at least three times a month where she would hear him talk. The Court of Appeal re-evaluated the evidence of Fatuma (PW8) before upholding the finding of the trial judge. This is how the court re- evaluated the evidence before rejecting the appeal.
"We think, that the instances narrated by PW8 were sufficient to enable her to identify the voice of the 2nd appellant. She even told the police that she did recognise the voice of the 2nd appellant during the robbery. That led the police to look for him. We do not, however, agree with the learned counsel that the evidence of PW8 required corroboration as a matter of law. At the time of the incident she was 11 years, but she was 14 years at the time of trial. She was therefore not a child of tender years since the issue as to whether a child is of tender years arises only at the time of trial and not when the offence was committed. See John Muchami alias Kalule vs. Uganda Cr. Appeal No. 3 of 1993 (SC) unreported.
We therefore think that the evidence of PW8 alone was enough to connect
the 2nd appellant with the offence. But it so happened that
her evidence is, in
actual fact, corroborated by the sudden disappearance of the 2nd appellant from
the village soon after the robbery.
We find no merit in the appeal of the 2nd
appellant."
We reiterate what we stated in John Muchani alias Kalule v Uganda
(supra) that the issue as to whether a child is of tender years
arises only at the trial but not when the offence was committed. We may add
that
corroboration in such a case is not a requirement by law. However, in the
instant case there was an unchallenged evidence of
PW7 (No. 23577 CPL Okello)
that after the robbery, Fatuma (PW8) told them that she had identified A2 as one
of the robbers from his
voice which she knew very- well. D/CPL Okello testified
that after the robbery A2 disappeared from the area and that when he (A2)
surfaced in the area, police got information and arrested him. We think that the
conduct of A2 as described above provided sufficient
corroboration to PW8's
evidence of identification.
In the result, grounds one and four must fail.
We turn to grounds 2, 3 and 4 which attacked the conviction of the 1st
appellant of robbery on the basis of the doctrine of possession of
recently stolen property. Mrs. Eva Luswata Kawuma argued these
grounds together
and contended that the 1st appellant explained how he came into
possession of the property. Mr. Michael Wamasebu for respondent opposed the
appeal and urged
us to dismiss it. He argued that the 1st appellant's
explanation as to how he came into possession of stolen property was not
credible.
The Court of Appeal reviewed the entire evidence and arguments of
counsel from both sides. The Court then upheld the conclusions of
the trial
judge to the effect that the 1st appellant's possession of Kaunda
shirt and other properties belonging to PW6 soon after the robbery, without any
reasonable explanation
and that the possession was incompatible with his
innocence. It concluded that the learned trial judge was right to convict the
1st appellant of robbery on the doctrine of recent possession of
stolen property.
We reiterate what we stated in Magidu Mudasi v Uganda Cr. Appeal No. 3 of 1998 (SC) (unreported) that:-
"It is now well established that a court may presume that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen unless he can account for his possession. This is an inference of fact which may be drawn as a matter of common sense from other facts including the particulars of the fact that the accused has in his possession property which it is proved had been unlawfully obtained shortly before he was found in possession. It is merely an application of the ordinary rule relating to circumstantial evidence that the inculpatory facts against the accused person must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt.
We repeated the same principle in the case of Bogere Moses & Anor v Uganda Cr. Appeal No. 1 of 1997 (SC) (unreported) where we stated that:-
"It ought to be realised that where evidence of recent possession of
stolen property is proved beyond reasonable doubt, it raises
a very strong
presumption of participation in the stealing so that if there is no innocent
explanation of possession, the evidence
is even stronger and more dependable
than the eye witnesses evidence of identification in a nocturnal event. This is
especially so
because invariably the former is independently verifiable while
the later solely depends on the credibility of the eye witness."
In this case the trial court considered whether the 1st appellant was a thief and not a receiver and concluded that:-
"These were personal effects which could not readily pass from hand to hand and could not have done so over night, any way. The accused said he used to sell shoes and at times do masonry work. He was not trading in second hand items and was not even selling them at the time of the arrest. He had decided to wear them as his own. Before inferring the guilt of an accused person from circumstantial evidence, the law enjoins me to ensure that there are no other co-existing circumstances which would weaken or destroy the inference. I have seen none in this case "
The learned trial judge then further reviewed the evidence against A1 before
convicting him.
We agree with the Court of Appeal that the 1st appellant's explanation was not consistent. At first he stated that he had bought Kaunda shirt from Kyomuhendo who in fact denied having sold it to him. In court the first appellant changed his story and stated that the Kaunda shirt was part of the properties one Rogers Nyakojo gave to him as security for a loan of Shs. 4000/= he (1st appellant) lent to him on 9/5/96. However, PW9, the mother of the 1st appellant testified that on 9/5/96 when she sent the 1st appellant to buy drugs for her, he returned with a bag containing properties and gave it to his wife and that the shirt he was found wearing on 17/6/96 was among the properties that were in the bag. The court of Appeal concluded that:-
"The first appellant was therefore found in possession of some of the
stolen property within 24 hours after they were stolen. He gave
contradictory
explanation as to how they came into his possession. That raises a very strong
presumption of participation in the
stealing. The trial judge was therefore
right to rely on the doctrine of recent possession of stolen property to convict
the 1st
appellant."
We have not been persuaded that either the trial judge or the Justices of
Appeal erred in law or in fact in their conclusions. In
the result, grounds 2,3
and 4 must fail.
Therefore this appeal has no merit. It is accordingly dismissed.
Dated at Mengo this 19th day of December 2002.
A.H.O ODER,
JUSTICE OF THE SUPREME COURT
J.W. TSEKOOKO,
JUSTICE OF THE SUPREME COURT
A.N. KAROKORA,
JUSTICE OF THE SUPREME COURT
J.N.
MULENGA,
JUSTICE OF THE SUPREME COURT
G.W. KANYEIHAMBA,
JUSTICE OF THE SUPREME COURT.
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