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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODER, TSEKOOKO,
KAROKORA, KANYEIHAMBA, AND KATO, JJ.S.C.
CRIMINAL APPEAL NO. 35 OF 2002
1. TWINOMUGISHA ALEX ALIAS TWINE] 2. PATRICK KWEZI ] :::::::::::::::::::::::::::::APPELLANTS 3. JOHN SANYU KATURAMU]
VERSUS
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
[An Appeal from the decision of the Court of Appeal of Uganda:
Mukasa-Kikonyogo, DCJ, Engwau, and Twinomujuni, J.J.A, in Crim. App.
No. 1 of
2001 dated U/7/2002]
JUDGMENT OF THE COURT
This is an appeal against the decision of the Court of Appeal which dismissed
the appellants' appeals against their convictions for
two murders of Prince
Charles Kijanangoma and Stephen Kaganda alias Mulokole respectively and sentence
of death passed on 12/9/01
by the High Court.
We shall hereinafter
refer to Alex Twinomugisha alias Twine as A1, to Patrick Kwezi as A2 and to John
Sanyu Katuramu as A3.
The background to this case is that A3 was appointed the Prime
Minister (Muhikirwa) of Toro Kingdom, sometime in 1993 when Kingdoms
were
restored in Uganda. He was appointed by the late King Patrick Kaboyo Olimi II of
Toro. Before the appointment he was a prominent
businessman owning Give &
Take Forex Bureau in Kampala, Shell Petrol Station Kampala, Voice of Toro (VOT)
FM Radio in Fort Portal
and Rwenkuba Farm in Kabarole District. When King Kaboyo
died, he was succeeded by King Oyo, who was aged about 3 years. Not only
did A3
retain the post of Prime Minister, but he also became one of the three Regents
of Toro, entrusted with powers to run the Kingdom
on behalf of the King till he
becomes of age. However, there was a rift between some members of the royal
family led by Princess
Bagaya and Prince Kijanangoma on one hand and some of the
Regents of the Kingdom, of whom A3 was a leading member, on the other.
Opposing
members of the royal family, led by Prince Kijanangoma, wanted A3 removed as
both Regent and Prime Minister of the kingdom.
There were also disputes relating
to matters and control of the Toro Kingdom property, some of which went to
court. One such dispute
was the subject of a court case which was heard on
25th March, 1999 and in which A3 was a key witness. Prince
Kijanangoma was gunned down in Fort Portal after the adjournment of that
case.
However, on 23/3/99, before Prince Kijanangoma left Kampala for
Fort Portal to attend court, he telephoned Karamagi, PW14, and told
him that he
was going to attend court in Fort Portal. He requested him to tell Mboijana
James, PW19, that Katuramu, A3, was planning
to kill him and that killers had
been given Shs.6,000,000/= to finish him off. PW14 recorded the message and gave
it to Mboijana,
PW19, who admitted having received a note from Karamagi,
informing him that A3 had hired killers to kill him.
However, Mboijana stated that although he had not taken the note seriously,
two days later, he learnt that Prince Kijanangoma had
been gunned down. It is
important to note that when Prince Kijanangoma reached Fort Portal in the
evening of 23/3/99, he was disturbed
and reported to Mugenyi, PW8, that A3 had
hired killers to kill him. According to A1's confession it was on 23/3/99 when
the killers,
arrived in Fort Portal.
On 25/3/99 at about 9.00 p.m.
the deceased, Prince Happy Kijanangoma, was in Palace View Bar in Fort Portal in
the company of Ferri
Babara, PW7, having drinks together with A1. At that time
there was no electricity and so lit candles were being used to provide
light at
each table in the bar. As they drank, PW7 noticed a stranger enter the bar and
whisper to A1. A1 thereafter went outside
with the stranger. A few minutes
later, A1 and the stranger returned and stood at the main door of the bar. A1
shot Prince Kijanangoma
with a gun from about 5 metres away. Prince Kijanangoma
died instantly. Thereafter, A1 and his companion left the bar but in the
process
they also shot dead the nightwatchman of the Palace View Bar, one Stephen
Kaganda, alias Mulokole. During that attack, PW7
was also wounded. She left the
bar through the rear door while screaming. She was picked up by soldiers who
took her to Dr. Mairuka's
Hospital in Fort Portal from where she was transferred
to Mulago Hospital.
During the attack, Mugisha, PW1, was in the same
bar and witnessed what happened but never identified A1. However, as a result of
Police investigations; A1 was arrested at Kireka, Kampala, on 23/7/99, by
Captain Kayanja, PW11, who took him to the Directorate
of Military Intelligence
(D.M.I.). Later, A1 was handed to CPS at Kampala. In a charge and caution
statement, he confessed to have
been hired by A2 to kill Prince Kijanangoma at a
price of Shs.5,000,000/= plus Shs. 1,000,000/= for fuel. He was charged together
with A2, Bob Weswala, Okumu Rombo Jimmy and A3 who is alleged to have
masterminded and facilitated the plot to kill Prince Kijanangoma.
In
his defence, A1 denied involvement in the murders of the deceased persons and
advanced a defence of alibi that at the material
time, he was in Nairobi and
therefore could not have been involved in killing the deceased. A2 denied having
participated in the
murders of the two deceased persons. He stated that he was
arrested in Kasese when he was in his sister's shop a year after the alleged
murders. A3 denied having procured people to kill Prince Charles Kijanangoma and
stated that killing was not part of his business.
He stated that those who
testified against him did so because of the grudges against him on the grounds
that either some of them
had lost jobs in his companies while others wanted his
job of Prime Minister in the Toro Kingdom.
A1, A2 and A3 were
convicted by the trial Judge whilst the other co-accused were acquitted. The
conviction of A1 was based on his
confession, his identification at the scene of
crime on 25/3/99 by Ferri Babaara, PW7 as well as his identification at the
identification
parade by Babaara, PW7. The convictions of A2 and A3 depended
exclusively on circumstantial evidence. Their appeals to the Court
of Appeal
were dismissed with one Justice dissenting on the conviction of A3. The
dissenting Justice found that the circumstantial
evidence connecting A3 never
ruled out any co-existing circumstances that would destroy the inference of
innocence.
Each appellant has filed a separate Memorandum of Appeal in this appeal.
A1's Memorandum of Appeal was filed by Mr. Muguluma and contains 4 grounds, framed as follows:
1. The learned Justices of Appeal erred in fact and in law for having upheld the finding of the trial Judge that the charge and caution statement was voluntary and true and that it was properly recorded and was not a forgery and thus the Justices of Appeal arrived at a wrong conclusion.
2. That the learned Justices of Appeal erred in fact and in law for having upheld the finding that the appellant was identified by Babera, PW7 at the scene of the crime and at the identification parade in that the parade was properly conducted.
3. That the learned Justices of Appeal erred in fact and in law for having upheld the finding that the defence of alibi set up by the appellant was a forgery and that the learned Justices did not adequately consider evidence regarding such defence.
4. That the learned Justices of Appeal failed to evaluate and or did not adequately re-evaluate the evidence as a whole otherwise they would have come to a different conclusion.
Mr. Muguluma, counsel for A1 made
the same arguments he had made before the Court of Appeal. A1's complaint was
that the charge and
caution statement was recorded by two officers. The first
officer who only administered the caution never countersigned the portion
containing the charge and caution after A1 had signed it. Instead, another
officer Rwambarari, PW3, took over, read the charge and
caution statement to the
appellant and like the first, he did not countersign after A1's signature
either. Mr. Muguluma criticised
the procedure adopted by the officers who
recorded the charge and caution statement. He contended that this procedure
offended the
procedure approved by this Court in Asenua & Another V
Uganda (S.C.) Cr. Appeal No. 1 of 1998 (unreported). Another contention was
that A1 never made the confession at all and that the purported signature of the
appellant on the charge and
caution statement was a forgery. Lastly, it was
submitted that the alleged confession was not voluntary and that the learned
trial
Judge ignored evidence showing that it was obtained as a result of
torture.
On the issue of identification of A1, at the scene of crime,
Mr. Muguluma submitted that there were two eye witnesses to the shooting
of
Prince Kijanangoma, Mugisha, PWl, and Ferri Babara, PW7. Counsel contended that
the trial Judge chose to ignore the evidence of
Mugisha, PWl which was
favourable to the appellant and preferred to believe the evidence of PW7 when
both witnesses were at the scene.
Secondly, it was submitted by counsel for A1 that the conditions in the bar
where the deceased was shot dead were not favourable for
correct identification
because there was no proper lighting in the bar and the light from candles was
not enough.
Further, it was contended that the identification parade
was not properly conducted because Ferri Babara, PW7, was taken to the parade
by
one Omoding, PW18, who was one of the main investigating officers. It was
contended that this contravened one of the rules in
the case of Ssesanga
Stephen V Uganda Criminal Appeal No. 85 of 2000 (C.A).
On the defence of alibi, Mr. Muguluma complained that the prosecution failed
to adduce evidence to rebut the appellant's defence to
the effect that he was in
Nairobi on the material day when Prince Kijanangoma was murdered. He criticised
the trial Judge for taking
it upon himself to summon a witness to rebut
appellant's defence of alibi. He submitted that the trial Judge failed to
evaluate the
defence against the evidence of the Immigration Officer from Busia
and consequently failed to reach the correct conclusion.
Mr. Ngolobe,
Deputy Director of Public Prosecutions, for the respondent, submitted that the
issue regarding confession was whether
it was truthful, voluntary, and properly
admitted. He submitted on the issue of admissibility of A1's confession that the
learned
trial Judge conducted a trial within trial and found that it was
voluntarily made and was truthful. On the criticism that the statement
was
recorded by two police officers, he submitted that there was nothing wrong with
it since both officers read the charge and caution
statement to A1. He conceded
that none of these officers countersigned, but argued that this was an
irregularity which did not cause
any miscarriage of justice and in any case, it
was cured by the final signature at the end of the statement.
On the
claim that A1's signature was a forgery and that the statement obtained through
torture, he supported the Court of Appeal which
upheld the trial judge's
decision.
"The statement was so detailed that if it had been false it could not have fitted in with the rest of the prosecution evidence as it did. We are not convinced that the confession was obtained by torture or that it was not properly recorded or that it was a forgery "
Counsel further
submitted that on the admission of the confession against A1, all that was
required by the trial Judge was to warn
himself of the danger of acting on that
confession and must before founding a conviction on such a confession be fully
satisfied
in all the circumstances of the case that the confession was true. He
submitted that in the instant case, the learned trial Judge
looked for
corroboration which he found in the evidence of Ferri Babara, PW7, who clearly
identified A1 at the scene of crime. In
addition, PW7 identified A1 at the
identification parade as the person who shot dead Prince Charles Kijanangoma and
wounded her in
the Palace View Bar.
On the issue of alibi, counsel
submitted that this had been raised for the first time before the High Court
when the 1st appellant was giving his defence but the trial Judge
found that the documents he was seeking to rely on were forgeries.
Regarding the complaint that the court ought not to have summoned Immigration
Officer at Busia to prove travel documents, learned
Deputy DPP submitted that
trial Judge had powers to summon any witness at any time in order to meet the
ends of justice.
On the complaint that the investigating officer
ought not to have been present at the identification parade, counsel submitted
that
there was no evidence to prove that the investigating officer was at the
parade and that he interfered with the proceedings thereof.
He, however,
conceded that it was
improper for Omoding, who was the investigating officer, to take PW7 from
C.I.D. headquarters to CPS where identification parade took
place but contended
that this did not prejudice the identification since he was not present at the
identification parade.
He invited us to dismiss A1's appeal.
The case against A1 consisted of his confession. His confession was recorded
on 14/10/99. In the charge and caution statement which
was attacked, (we shall
be coming to the attack later) he stated inter alia that he himself and three
other men were hired by (A2)
to go to Fort Portal and kill Escobar. Other
prosecution evidence clarified that Escobar was Prince Charles Kijanangoma. A2
was to
provide fuel worth Shs. 1,000,000/= and fee of Shs.5,000,000/= for
killing Escobar. A1 and his friends went to Fort Portal where
they booked in
Continental Hotel in false names on 22nd March, 1999 - These were A1, Silver
Muhenda, Bob Smart and Fred who spent
a few days together waiting for an
opportunity to kill the deceased. The first opportunity was on 24/3/99 when the
Prince was found
drinking in Palace View Bar in Fort Portal, but the mission
flopped because of the appearance on the scene of one Kajabago who was
known to
A1. On 25/3/99 the deceased returned to the same bar and was shot dead by A1
himself. His companion shot dead a night-guard,
who was outside the bar. The two
killers thereafter retreated to the farm of John Katuramu, (A3), at Rwenkuba.
Earlier on Patrick
Kwezi (A2), had shown the two killers the farm as a safe
place for them to spend a night after the murder. The next day they were
joined
by Silver and Bob who brought Shs.4.7 million and fuel. The two (Sliver and Bob)
were brought by a driver, whose name A1 did
not know. When they found that the
money paid was less than the sum agreed upon for the job, they forced the driver
to drive them
to Kampala and thereafter removed the vehicle from him in order to
force Kwezi to pay them their full amount. On 27/3/99 at around
3.00 p.m. A2
paid the remaining amount after which the vehicle was handed to one George, a
brother of A2.
A1 was identified by F. Babara, PW7 both at the scene
of the crime and subsequently at the identification parade. There was other
evidence corroborating the confession of A1. The other evidence was given by
Milton Mwesige who found him at Rwenkuba farm and drove
him to Kampala on
26/3/99. All this evidence must be considered against the total denial of the
charge by A1 i.e. repudiation of
the confession and his defence of alibi that he
was not at the scene of crime.
We have carefully considered the
submissions from both counsel on the first ground. These complaints raised
before us were raised
before the Court of Appeal. That court considered the
issues of alibi and of the admissibility of the confession statement and it
held
inter alia,
We have carefully studied the evidence against the
appellant on this matter. Along with it we have considered the appellant's
defence
of alibi The most important evidence against the 1st
Appellant was his own confession. The learned trial Judge held a trial within
trial before admitting the confession. He was satisfied
that it was voluntarily
made and it was also true. He took pains to verify its truthfulness by testing
it against all other evidence
available including the defence of alibi The
statement was so detailed that if it had been false, it could not have fitted in
with
the rest of the prosecution evidence as it did. We are not convinced that
the confession was obtained by torture or that it was not
properly recorded or
that it was a forgery. We have no evidence before us to justify such an
inference being made."
We agree with the above conclusions and therefore we do not find any merit in the complaint that the charge and caution statement was not voluntary and true.
On the complaint that it was not properly recorded, we agree that it was
irregular for a police officer to record a charge and caution
without
countersigning after the signature of the suspect. It was irregular for the
second officer to take over from where the first
officer stopped without
countersigning after he had read over the charge and caution to the suspect.
Indeed it is quite irregular
for the two officers to record one statement
without satisfactory explanation. However, we think that failure by the
recording officer
to countersign after the charge and caution was read over to
the suspect was cured by the recording officer's signature at the end
of the
suspect's statement. We do not think that the omission by the recording officers
in this case to sign after charging and cautioning
the suspect was fatal to the
statement. Further, we agree with the Court of Appeal that there was no evidence
to prove that the confession
was a forgery.
On the issue of the
identification of A1, we think that on the evidence of his confession alone, the
trial Judge could justifiably
have convicted A1 of the two offences of murder.
However, there was other evidence which corroborated the confession. The
evidence
of Ferri Babara, PW7, was considered by the trial Judge, and the Court
of Appeal agreed with the trial court, that PW7's evidence
regarding her
identification of A1 at the scene of crime was truthful. There was further
evidence that on 24/3/99 she had met A1
in the same bar where she observed him,
because he kept going in and out of the bar. PW7's evidence of having first seen
A1 in Palace
View Bar on 24/3/99 tallies with A1's confession when he stated
that the plan to kill Prince Kijanangoma on 24/3/99 in Palace View
Bar flopped,
because he had found Kajabago who knew him in the bar during that night.
Therefore the complaint that PW7 could not
properly have identified A1 cannot
stand.
We therefore agree with the Court of Appeal's conclusion that A1
was properly identified as the person who pulled the trigger that
released the
bullets that killed Prince Kijanangoma at Palace View Bar in the evening of
25th March, 1999. Therefore grounds 1,2,3, and 4 must fail.
In our view, A1 was rightly convicted.
The prosecution case against A2
and A3 is mainly circumstantial. It is scattered in various testimonies of
various witnesses. The
main prosecution evidence which implicated A2 was
especially given by Ernest Nkoba, PWl5, and Mwesige, a witness who was summoned
by court. This evidence was confirmed by confession of A1.
Before discussing the other pieces of circumstantial evidence implicating A2 and A3, we think that it is proper to consider and resolve one common complaint which was raised on behalf of A2 and A3 that the Court of Appeal erred when it held that Ernest Nkoba, PW15, and Mweige were not accomplices.
A2's complaint in ground 3 of his Memorandum of Appeal was as follows:-
12
"(3) That the learned Justices of Appeal erred on the facts and in law in
holding that Nkoba and Mwesige were not accomplices and
that their evidence was
sufficient as corroboration against the 2nd Appellant."
A3's complaint in ground 4 of his Memorandum of Appeal was:-
"(4) The majority of the learned Justices of Appeal made an error of mixed
law and fact when they held that Ernest Nkoba and Milton
Mwesige were not
accomplices and consequently upheld the conviction of the 3rd
appellant largely on their evidence."
Mr. Emesu, counsel for A2,
submitted that the evidence of both Nkoba, PW15, and Milton Mwesige should not
have been relied upon because
both were accomplices. The former provided money
and transport for the killers. Both of them were arrested and charged with the
same
offence, and it was contended that their evidence should not have been
relied upon.
In his written submission, Mr. Tusasirwe, counsel for A3, submitted at length
in support of ground 4 which complained that the Court
of Appeal had erred in
law and fact when it held that Nkoba, PW15 and Milton Mwesige were not
accomplices and thereafter upheld the
conviction of A3 in reliance upon their
evidence. He submitted that from the testimonies of these two witnesses, it is
clear that
they were accomplices with whoever killed the deceased. Several
authorities were cited defining accomplice - such authorities cited
included
Davies V DPP (1954) AC 378, Nassolo Hadija V Uganda S.C Cr. Appeal No. 129 of
2000, Canisio c/o Walya V R [1956] 23 EACA 453. In all these cases, there
seems to be no accepted formal definition of an accomplice. In CURGON DICTIONARY
OF LAW, PITMAN, 1957 at
page 74, the definition known as the Davies V DPP
definition describes an accomplice as either a person on trial for the
offence in question, against whom evidence of complicity has
been adduced or who
has confessed to participating in the offence. This is a limited definition. Mr.
Tusasirwe submitted that in
Nassolo case (supra), our courts have adopted
a more liberal view of accomplices, and have stated that even if a person is not
charged for the
offence, he may be treated as an accomplice for evidential
purposes, if on the strength of the evidence - adduced at the trial, it
emerges
that he participated in the crime either as a principal offender or as an
accessory before or after the fact.
Counsel submitted that these two
witnesses, PW15 and Mwesige were at least accessories after the fact.
Mr.
Ngolobe, Deputy Director of Public Prosecutions for the respondent, submitted
that the Justices of Appeal dealt with the reservation
which the learned trial
Judge had expressed about the credibility of those two witnesses, presumably
because they were in the first
instance, initially arrested and charged for the
same offence and secondly, because they appeared to have known more about the
case
than they cared to reveal. The trial judge cautioned himself before
receiving and accepting their evidence. He was, however, impressed
by these two
witnesses and accepted their evidence as reliable, giving detailed reasons in
his judgment.
In upholding the conclusion of the trial judge, the Court of Appeal stated:
"We find no reasons whatsoever to hold that these two witnesses were accomplices. It is true that they did certain things on the orders of their powerful master, like assisting people they apparently did not know, with money, fuel and other services, which people turned out to be killers. However, there is no evidence whatsoever, to show that Nkoba and Mwesige knew at the time that they were helping killers. In our view, they did not do any more than any employee would do in obedience to master's lawful order."
We agree with these conclusions.
Consequently, we find that Nkoba, PWl5 and Milton Mwesige were not
accomplices. Ground 3 in respect of A2 and ground 4 in respect
of A3 must
fail.
We now deal with A2's appeal. Six grounds were filed by Mr. Emesu of
Emesu & Co. Advocates on behalf of A2, namely:
1. That the learned Justices of Appeal erred in fact and in law and misdirected themselves in upholding the trial Judge's reliance on the 1st Appellant's retracted confession to base his conviction of the 2nd Appellant with the murder of the two deceased. 2. The learned Justices of Appeal erred in fact and in law in evaluating the evidence on record and they erred in upholding the finding of the trial Judge on the credibility of the prosecution witnesses bearing on the guilt of the 2nd appellant. 3. That the learned Justices of Appeal erred on the facts and in law in holding that Nkoba and Mwesige were not accomplices and that their evidence was sufficient as corroboration against the 2nd Appellant. 4. That the learned Justices of Appeal erred on the facts and in law in holding that circumstantial evidence on record sufficiently proved the guilt of the 2nd appellant with the murder of the two deceased beyond reasonable doubt. 5. That the learned Justices of Appeal erred in rejecting the 2nd appellant's defence.
6. That the above errors occasioned a miscarriage of justice to the 2nd
appellant.
Mr. Emesu, counsel for A2, argued all the grounds together. We have already
disposed of ground 3. Mr. Ngolobe, D/DPP argued them in
the same order. Mr.
Emesu submitted that the conviction of A2 which was upheld by the Court of
Appeal had been based on pieces of
circumstantial evidence and the confession of
A1 which implicated A2. Counsel submitted that the lower courts never verified
how
the pieces of circumstantial evidence were corroborated by A1's confession
in implicating A2. Further, counsel submitted that the
evidence of Ernest Nkoba,
PWl5, who provided money and transport for the killers and who was arrested and
charged with the same offence
should not have been accepted and acted upon. In
effect, one of the pieces of circumstantial evidence that was relied upon by the
lower courts was that on A3's instructions, PW15 surrendered one of the vehicles
belonging to Voice of Toro (VOT) to A2 on 21/3/99,
because A3 wanted A2 to do
some work for him. A2 retained that vehicle from that date until it was found
abandoned outside VOT offices
in the morning of 26/3/99 after the murder of
Prince Charles Kijanangoma. A2 never went back to PWl5. He was next seen by
Milton
Mwesige on 27/3/99 at the Saloon of Silver in Kampala. A2 then
transported Mwesige to Uganda House where A3 was expected, but was
not there.
Later, Mwesige was taken to A3's residence at Mbuya where he found A2. After
explaining to A3 how the vehicle had been
grabbed by people he transported from
Fort Portal to Rwenkuba Farm, A3 assured Mwesige that if it was taken by the
people who were
with Silver that vehicle would be returned to Fort Portal by A2.
He provided Shs.50,000/= for Mwesige's transport by public means.
A2 thereafter
drove Mwesige to the Taxi Park in the evening.
Clearly, we must state
that once the confession of A1 is accepted as true as we did and the evidence of
Nkoba,PW15 and of Milton Mwesige
is equally accepted as truthful as we did, the
guilt of A2 is established. From the confession of A1, A2, Silver, Fred and A1
met
in a bar at Nsambya, just opposite the Total Petrol Station on 21/3/99 and
discussed the plot to kill a certain person in Fort Portal
who was code named
Escobar. The price agreed upon for killing that person was shs. 5,000,000/=.
Fuel money was agreed at shs. 1,000,000/=.
A2 was the person to provide the
money. After the meeting, A2 travelled to Fort Portal and was able to secure a
vehicle from PW15.
The evidence has shown that, the vehicle which was handed to
A2 by PW15 was not returned to him. It was found abandoned outside VOT
offices
in the morning of 26/3/99 after the murder of Prince Kijanangoma. This conduct
is inconsistent with the innocence of A2,
We think that A2's abandonment of the vehicle outside VOT office at night and
his disappearance from Fort Portal after Prince Kijanangoma
was shot dead marked
the end of the job assigned to him by A3. We believe and accept A1's confession
that it was A2 who had hired
the killers to do the job and that he was the one
who led Fred, one of the killers, to Rwenkuba Farm after killing the Prince. We
further believe that, the presence of Fred and Alex at Rwenkuba Farm on 26
March, 1999 after Prince Kijannangoma was gunned down
the previous night was
corroborated by Milton Mwesige who found both on the farm. Mwesige next met A2
at Silver's Saloon in the morning
of 27th March, 1999 after which he
drove him (Mwesige) to the Uganda House to meet A3. However, later Mwesige was
taken to A3's residence
at Mbuya where he again found A2. After A3 had assured
Mwesige that the vehicle was safe if it had been taken by people who were
with
Silver, A3 gave him (Mwesige) shs.50,000/= for his transport to Fort Portal.
After that A2 drove and dropped Mwesige at the
Taxi Park in the evening of
27/3/99 and disappeared never to be seen till he was sighted and arrested in
Kasese one year later.
We are satisfied that there was ample evidence
to justify the conviction of A2. Therefore grounds 1,2, 4,5 and 6 must fail. In
the
result, A2 was rightly convicted.
We now turn to the appeal of A3. Ten grounds of appeal were filed on his behalf by Mr. Tusasirwe of M/s Tusasirwe & Co. Advocates, to wit:
1. The learned Justices of Appeal made an error of mixed law and fact when they accepted and upheld the confession of the 1st appellant, a co-accused person and used the same to confirm the conviction of the 3rd Appellant.
2. The majority of the learned Justices of Appeal made an error of mixed law and fact when they failed to subject material evidence to fresh scrutiny and thereby confirmed the conviction of the 3rd appellant in disregard of the inconsistencies and contradictions in the prosecution evidence.
3. The majority of the Justices of Appeal made an error of mixed law and fact when they upheld the conviction of the appellant on the basis of evidence which the trial Judge had found unreliable and/or had not considered and relied on when convicting the 3rd appellant.
4. The majority of the learned Justices of Appeal made an error of mixed law and fact when they held that Ernest Nkoba and Milton Mwesige were not accomplices and consequently upheld the conviction of the 3rd appellant largely on their evidence.
5. The majority of the learned Justices of Appeal erred in law when they misapplied the law relating to circumstantial evidence to uphold the finding that the 3rd appellant participated in the murder of the deceased persons thereby wrongly convicting the 3rd appellant.
6. The majority of the learned Justices of Appeal erred in law when they upheld the conviction of the 3rd appellant by the trial Judge who himself stated that after looking at the evidence as a whole, he was left in doubt as to the 3rd appellant's guilt or innocence.
7. The majority of the learned Justices of Appeal erred in law when they shifted the burden of proof to the 3rd appellant and applied a higher standard of proof than is stipulated by law and wrongly reached the conclusion that the 3rd appellant's guilt was proved beyond reasonable doubt.
8. The majority of the learned Justices of Appeal made an error of mixed law and fact when they upheld the conviction of the 3rd appellant on the basis of the prosecution evidence in isolation and disregard of the 3rd appellant's defences,
9. The majority of the learned Justices of Appeal made an error of mixed law and fact when they made findings of fact and law not founded on the evidence on record.
10. The learned Justices of Appeal made an error of mixed law and fact by upholding the decision of the lower court when the trial Judge did not properly address the assessors on the law and evidence to enable them give him a sound opinion.
We have already disposed of ground 4 of his
appeal. The prosecution evidence which implicates him was the evidence of Nkoba,
PWl5,
Milton Mwesige together with A1's confession which we have already dealt
with whilst discussing A1's and A2's appeals. Other evidence
is circumstantial
as found in the conduct of A1, A2, Silver and A3 himself.
On ground one, Mr. Tusasirwe, Counsel for A3 submitted that the majority of the Justices of Appeal used A1's confession, a co-accused, to confirm the conviction of A3 on both counts. He contended that this was clear from the following passage from their judgment:
"The prosecution case against Patrick Kwezi and John Sanyu Katuramu is largely circumstantial. It is scattered in various testimonies of the prosecution and other witnesses. The main evidence is the confession of the Ist appellant as corroborated by several prosecution witnesses ."
Counsel further submitted that the Justices of Appeal accepted without criticism the evidence of Francis Mugenyi, PW8, that the deceased told him before his death that Katuramu A3 had paid shs.6,000,000/= for people to kill him. He contended that the Justices of Appeal did not find that this kind of evidence was hearsay. Counsel further submitted that since the justices chose to accept A1's confession, then they were not entitled to disregard part of the confession where the alleged motive to kill Escobar whom the court finds is Happy Kijanangoma is given thus:
"The person to be killed was code named Escobar. I was told that this Escobar had one time laid an ambush to Kwezi and his brother, George, along Fort Portal Mutende road where he wanted to kill them but they survived Now the two wanted to revenge to this character, Escobar."
Mr. Ngolobe Deputy DPP conceded quite rightly in our view, that A1's
confession could only lend credence to other evidence against
A2 and A3. He
submitted that there was evidence against both A2 and A3. We agree with his
submissions that in addition to A1's confession,
the evidence of Nkoba, PW15
fully implicated A3 in facilitation of the murder of the deceased persons.
According to that evidence,
when A2 arrived in Fort Portal, he went to PW15 and
requested for the telephone. After he had talked to A3, he handed the receiver
to Pwl5. A3 instructed PW15 to release a company vehicle to A2, because he (A3)
wanted A2 to do work for him. A3 further directed
Pwl5 to provide some money and
fuel to A2. PW15 complied with the directives of A3, the boss of VOT. Early in
the morning of 26/3/99
after Prince Kijanangoma had been gunned down the
previous night, A3 called PWl5 to his residence and directed him to get
300,000/=
and give it to his visitors who were at the VOT offices. Secondly, he
directed him that Milton Mwesige, the driver of VOT should
take his (A3's)
visitors to Rwenkuba farm. When Mwesige went to pick the visitors, he found that
one of them was Silver Muhenda,
whom he knew as a person hailing from the same
place with him. It should be noted that according to A1's confession Silver
Muhenda
was the person who connected Patrick Kwezi to A1 at Nsambya, just
opposite the Total Petrol Station when the plot to kill Escobar
was first
hatched.
Further the evidence of Mwesige showed that when he reported
to A3 in Kampala on 27/3/99 that his vehicle had been robbed from him
by people
he had picked from Fort Portal and taken to Rwenkuba farm, A3 told him that if
those people were with Silver, then the
vehicle is safe. This clearly associates
A3 with the murderers of the deceased. On top of Mwesige's evidence, Edward
Luyonga, PW21,
proves that A3 frustrated the Police from 22 tracing Motor
vehicle Reg.725 UCB. It is clear that the conviction of A3 was not based
solely
on A1's confession. The Justices of Appeal treated the rest of the prosecution
evidence as circumstantial evidence corroborating
A1's confession and connecting
A3 with the crime. Further, we think that although the evidence of Francis
Mugenyi, PW8, and Karamagi,
PWl4 appears to be hearsay, that evidence was
admissible under section 30(a) of the Evidence Act as report which Prince
Kijanangoma
made to these two witnesses relates to his death.
Section 30(a) states that:
"Statements, written or oral of relevant facts made by a person who is dead, are themselves admissible in the following cases:-
a) When the statement is made by a person as to the cause of his death or which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are admissible whether the person who made them was or was not at the time when they were made under expectation of death"
The East African Court of Appeal dealt with some what similar case in R V Kabateleine c/o Nchwamba (1946) 13 EACA 164, where the deceased, two days before she had been burned to death in her house, had told the headman that the accused was threatening to burn her house because he said, she had caused the death of his father by witchcraft. The Court of Appeal held that this was not "a general expression indicating fear or suspicion" but "one directly related to the occasion of death" and that it was therefore admissible.
In the result, we agree with the Court of Appeal that the evidence of Francis Mugenyi was admissible.
In our view, the Justices of Appeal were correct when they said,
"We hold the view that the evidence of the two witnesses (Nkoba and Mwesige) is very important for its role in corroborating the confession of A1 and also in connecting A2 and A3 with the crime."
We have held that these witnesses were not accomplices. Therefore their evidence was admissible and it fully corroborated A1's confession and also connected A2 and A3 with the crime.
In the result, ground one must fail.
Grounds 2 and 3 of A3's appeal were argued together. These grounds are set
out on pages 18 and 19 of this judgment. We therefore do
not need to reproduce
them here. Mr. Tusasirwe counsel for A3 filed a long written submission dealing
with these grounds. He submitted
that although the Justices of Appeal took note
of their duty as a first appellate court to reevaluate the whole evidence on
record
and subject it to exhaustive scrutiny and come independently to its own
conclusion as to whether the findings of the trial court
can be supported as was
stated in Pandya V R [1957] EA 336 see Ruwala V R [1957] EA 570 and
Bogere Moses & Anor V Uganda SC Cr. Appeal No 1 of 1997, they did so as
a formality and merely accepted the findings of the trial judge without
scrutinizing the evidence on
which those findings were supposedly based. Counsel
submitted that as far as the evidence seeking to prove that A3 participated in
the murder of the deceased of procuring the killers was concerned, the
prosecution evidence was riddled with contradictions and
inconsistencies.
He submitted that the law on contradictions and inconsistencies is well
settled. Major contradictions and inconsistencies will usually
result in the
evidence of the witnesses being rejected unless they are satisfactorily
explained away. Minor ones, on the other hand,
will only lead to rejection of
the evidence if they point to deliberate untruthfulness. See Alfred Tajar V
Uganda EACA Cr. Appeal No.167 of 1969 (unreported) see also Sarapio
Tinkamalirwe V Uganda Sc.Cr.Appeal No.27/1989.
Counsel submitted
that this court is therefore bound to scrutinise the evidence and come to its
own conclusion. See Henry Kifamunte V Uganda SC. Cr. Appeal No. 10/97. He
submitted that the prosecution evidence that sought to prove that A3 procured
the murder of the deceased was that of PW15, Mwesige.
Edward Luyonga, PW21,
Joseph Sunday Baba PW19, SSP Omoding PW18, James Mboijana PW19, SS P Bivagara,
PW20 and Francis Mugenyi, Pw8.
He contended that the Justices of Appeal never
scrutinised the conduct of the above witnesses in order to determine whether A3
procured
the murder of the deceased.
Mr. Ngolobe D/DPP submitted that
the Justices of Appeal properly reappraised the whole evidence on record and
came to their own conclusion.
On the question of inconsistencies and
discrepancies, he submitted that although PW15 stated that he had withdrawn
shs300,000= from
the bank, the evidence showed that shs200,000/= was withdrawn
from the bank. However, he contended that since shs 300,000/= was given
out by
PWl5, to A3 's visitors, he could have got shs 100,000/= from the office. He
submitted that the amount issued was a matter
of details but not substance -
which could be due to lapse of time.
We wish to point out that our
decision in Kifamuntu case (supra) is not authority for the view that we
are bound to scrutinise evidence and come to our own conclusion. In our view,
the Justices of
Appeal rightly re-appraised the prosecution evidence along side
that of A3 before making their conclusions on each ground. On contradictions
and
inconsistencies, we would refer to the following passage to show that in their
judgment the Justices of Appeal considered contradictions
in the evidence of
Nkoba, PW15 and Mwesige and held that:-
"We do not agree with counsel that the evidence of the two witnesses destroyed each other or was destroyed by their previous statements on the subject There were minor discrepancies in their evidence which did not go to the root of their credibility. There is for example the matter whether the Shs.300,000/= Ernest Nkoba gave to associates of killers was all from the bank or not There is, however, evidence that Shs.200,000/= was withdrawn from the bank that day and that Shs.300,000/= was paid out Whatever the source was, the fact remained that Shs.300,000/= was paid out to the companions of the killers on the order of A3. There is also the matter of discrepancy as to how many times Milton Mwesige went to Rwenkuba Farm on the morning after the murder and whether he returned to Fort Portal that day or not We think and agree with Mr. Ngolobe that the evidence of Mwesige on the matter was more detailed than that of Nkoba and the discrepancy is on details rather than substance. We think that a witness who has given evidence in court in a convincing manner and is subjected to vigorous cross-examination may be a credible witness despite the fact that he/she may have previously signed a different version of the story outside the court The impression the witness makes on the court overrides other considerations when assessing the credibility of that witness. We hold, in agreement with the learned trial Judge, that Ernest Nkoba and Mwesige are credible witnesses and their evidence not only corroborated the confession of A1 but it also implicated A3."
What the learned Justices of Appeal said in the last nine lines of the above
passage of their judgement suggests that the evidence
of a witness in court
which is inconsistent with a statement he/she had previously made should be
preferred to the previous statement.
If that is what the learned Justices of
Appeal meant we are unable, with respect to agree with that view. The
credibility of a witness
should always be considered in the light of a previous
inconsistent statement he/she has made if any. Nevertheless, we agree with
their
conclusion that Ernest Nkoba and Mwesige appeared to be credible witnesses, and
that A1's confession lends support to their
evidence. We think that the Court of
Appeal did re-evaluate the evidence touching on A3's procurement of killers of
the deceased.
They considered the confession of A1, the evidence of PW15 and how
upon A3's directives, he handed a motor car, belonging to VOT
to A2, to enable
the latter to do some work for him. He handed him money for fuel. Since 21/3/99
the vehicle was found abandoned
by A2 outside VOT offices on 26/3/99 - The
learned Justices of Appeal considered the evidence of Mwesige at length,
evidence of Edward
Luyonga, PW21, evidence of Mugenyi, PW8 and A3's conduct and
concluded that A3 financed the plan to kill the Prince, coordinated
it and took
all the steps to destroy all evidence that could have led to the discovery of
the culprits early enough. Further, we
think that the inconsistencies and
contradictions in the evidence of Francis Mugenyi, PW8 and his Police statement
which counsel
for A3 raised, were raised for the first time before this court.
They were never raised before either the trial court or the Court
of Appeal.
Therefore, the lower courts cannot be criticised as having been in error for not
resolving those contradictions and inconsistencies
which were never raised
before them for determination. In the result, this complaint has no merit.
Consequently grounds 2 and 3 must
fail.
On ground 5, Counsel for A3 submitted that the learned Justices of Appeal did not properly apply the principles of law relating to circumstantial evidence and in so doing, they sustained erroneous conclusion reached by the trial judge on the basis of circumstantial evidence. Counsel submitted that the Justices of Appeal did not properly apply the principles of law laid down in the case of Simon Musoke V R 1958 EA 775 where the East African Court of Appeal stated:
"In a case depending exclusively an circumstantial evidence, the judge must find, before deciding upon a conviction, that the inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt"
The counsel submitted that according to the
case of Teper V R 2 [1952] A C 480 at page 489 which was cited with
approval in the case of Simon Musoke V R (Supra). "It is also necessary,
before drawing the inference of the accused's guilt from circumstantial evidence
to be sure that there are no other co-existing circumstances which would weaken
or destroy the inference."
In the instant case counsel submitted that because Prince Kijanangoma had
made many enemies who could have had motive to kill him
and therefore it would
not be safe to base A3's conviction on circumstantial evidence in the instant
case. He submitted that the
court must be convinced beyond reasonable doubt that
all other possibilities have been ruled out. He further submitted that according
to A1's confession, Prince Kijanangoma had tried to kill A2 and his brother,
George, in an ambush. Why could they (George and A2)
not have been responsible
for his death, trying to revenge?
On the issue of links, counsel
submitted that there was no evidence to corroborate that PW15 gave a vehicle to
A2 on instruction of
A3. The evidence came only from PW15. If the vehicle had
been given to him by PW15, how could he have abandoned it outside the offices
of
PW15. Even on second link, the evidence came from PW15. On giving shs.300,000/=
to A3's visitors, Mwesige does not say he saw
money being given to A3's
visitors. On the issue of vehicle 725 UBC disappearing from the roads in Uganda,
there was no evidence
that Police looked for it and failed to get it. In
conclusion, counsel submitted that if the link existed after the alleged offence
was committed, then the person is only guilty of accessory after the fact which
is much lesser offence than the actual offence charged.
Mr. Ngolobe
submitted that all the links of circumstantial evidence which the Court of
Appeal accepted proved that A3 participated
in the murder of Prince
Kijanangoma.
The following passage from the judgment of the Court of Appeal shows the care with which the Court received the evidence against A3.
"From the evidence adduced by the prosecution it is easy to infer that he (A3) had a motive to kill Prince Kijanangoma. The Prince had become a thorn in his neck, he had published a very serious allegation, including murder of late King Kaboyo Olimi II and adultery with Queen mother against A3 and went as far as purporting to dismiss him from his various jobs/posts within the Kingdom. He was busy mobilising members of the royal clan of the Kingdom to remove him from the leadership of the Kingdom. All this, however, does not amount to evidence that A3 planned or masterminded the death of the Prince. He may have wished it but that is not enough "
After the above
statement the Justices of Appeal listed 5 links of circumstantial evidence upon
which it concluded that A3 participated
in the murder of Prince
Kijanangoma.
The first link which the Justices considered was in the
evidence of Ernest Nkoba. PW15, who was then the Manager of Voice of Toro
(VOT)
owned by A3. When A2 arrived in Fort Portal a few days before the murder of the
deceased, he reported to PW15 and asked to
be allowed to speak to A3 on the
office telephone. After he had spoken to him, A2 handed the receiver of the
telephone to PW15. A3
instructed PW15 on telephone to give a vehicle, fuel and
money to A2, as he wanted him (2) to do some work for him. A2 used the vehicle
for some days. When Prince Kijanagoma was gunned down during the night of
25/3/99, that vehicle was found abandoned outside the VOT
office. A2 was no
where to be seen in Fort Portal.
The second link was that on the morning, following the murder of Prince Kijanagoma, A3 who was in Fort Portal called PW15 to his house at 7.30 a.m. and gave him two orders
1. To get shs.300,000/= from the funds of VOT and give it to his (A3's) visitors whom he would find at the offices of VOT.
2. To direct his official driver, Milton Mwesige, to take his, A3's, visitors to his farm at Rwenkuba farm.
According to PW15, A3's orders
were complied with. From the confession of A1, the evidence of Mwesige and
Nkoba, PW15, we now know
A3's visitors were Silver Muhenda and Bob Smart, the
original conspirators in the murder of deceased prince. From the confession
of
A1, A1 and Fred were then hiding at Rwenkuba farm after committing the murders,
the previous night.
The third link relates to the involvement of vehicle No 725 UBC, Toyota Corolla, the property of VOT, which Mwesige used to take A3's visitors to Rwenkuba farm on 26/3/99 after the murder of Prince Kijanagoma. These visitors forced Mwesige to take them to Kampala. On reaching Kampala, one of the visitors grabbed the vehicle and took it away. When Mwesige reported to A3 on 27/3/99 what appeared to him to be robbery, A3 calmly told him, "if the vehicle is with Silver, then it is Ok." He gave shs.50,000/-to Mwesige for his transport back to Fort Portal by public means. In this connection, the following is what the Court of Appeal said;
"In our view, A3 must have known Silver and his group were in Fort Portal. He must have approved the mission and that explains why he agreed to leave his company vehicle with Silver/Bob for a while longer after the execution of the Fort Portal mission. It is also significant to note that on 27/3/99 Mwesige found Kwezi, A2, at A3's home in Mbuya "
We must say
that this can only be an inference drawn by the majority learned Justices of
Appeal from other relevant evidence. After
the above conclusion on the 3
rd link, the Justices of Appeal proceeded to deal with the
4th link and stated:
"The fourth link is the way M/V Reg. No 725 UBC disappeared from Uganda roads a few weeks after the murder of Prince Kijanangoma. Edward Luyonga PW21, was in 1999 a Manager of Give and Take Forex Bureau, one of A3's companies in Kampala. As a Manager, he used to drive M/V Reg No 725 UCB before it was transferred to Voice of Toro in Fort Portal. He used to live in Bukoto where Give and Take Forex Bureau had a housing estate for its staff. He lived upstairs of a block where the company's Chief Mechanic Babu Singh, was resident downstairs. One week after the death of Prince Kijanagoma, he saw the vehicle being driven by A3's driver, one Kawesa Ramathan. He drove it to the company's housing estate and handed it to Babu Singh the company mechanic. The vehicle appeared to have mechanical defect as it had a broken exhaust pipe and was making a lot of noise. It was parked in one of the garages.
As the evidence of
Luyonga ,PW21, is long, we shall briefly summarise it. His evidence was that on
the following Saturday as he drove
to the office, he heard Radio Simba from his
car radio announcing that the same vehicle was wanted by Police. That the car
was used
by people who murdered Prince Kijanangoma. When he reached the office
he went back to check whether this was the car in the garage.
He found it was
the vehicle Police wanted. He tried to contact A3 on telephone. He could not get
him. He tried to contact Chris Katuruma,
he could not get him. At 1 pm he got
Chris Katuruma and reported to him. When he finally saw A3 and told him about
the radio announcement,
A3 wondered how the car he was using at the time
Kijanangoma was killed be the car the murderers of Kijanangoma used.
A3 contacted the Police at Jinja Road Police Station. However, at 1 am a vehicle came to Bukoto housing estate of the Give and Take Forex Bureau. He woke up and through the window, he saw A3 and two men come out of a Ford Escort car which used to belong to late King Kaboyo. He saw Babu Singh open the garage. One of the men entered the garage. He heard noise from the rear of the Ford Escort. He could hear noise from the garage where 725 UBC was parked. He saw one man squatting and removing the rear number plates from Ford Escort car. There was security light which enabled him to see what was going on. He saw A3 pacing about. He saw number plates of Ford Escort removed from the front - The number plates from the Ford Escort were taken inside. After about an hour, one man drove the 725 UBC out. A3 entered the vehicle and it was driven out without lights on. The 3 men drove 725 UBC bearing the number plates of Fort Estate. The Ford Escort remained outside without number plates.
On Sunday, he saw the Ford Escort parked outside without number plates. At 9,30 am he we went to church. When he returned from the church at 1 pm, he found Ford Escort gone.
The Court of Appeal re-appraised the evidence relating to A3's handling of
the suspected vehicle, its connection to the murder and
considered the criticism
of the trial judge by Mr. Ayigihugu, counsel for A3, in the Court of Appeal. The
Court of Appeal considered
A3's unsworn evidence relating to the suspected
vehicle, the manner A3 took not only to disguise its identity but also to ensure
that it totally disappeared. The majority Justices of Appeal then upheld the
decision of the trial Judge, who believed the evidence
of Luyonga, PW21, and
rejected that of A3 and concluded that Luyonga's evidence led to the inevitable
conclusion that A3 had cause
to desire the disappearance of M/V 725 UBC in
connection with the murder of Prince Kijanangoma.
At the time he gave
evidence, Luyonga, PW21, had been dismissed from his employment in Give and Take
Forex Bureau, one of A3's companies.
He was owed unpaid salaries about which he
had written in vain. We think that in accepting PW21's evidence regarding how A3
handled
the Motor Vehicle 725 UBC, the trial and the majority of the Justices of
Appeal did not show that they took this into account. Nevertheless,
we agree
with the conclusion of the majority of Justices of Appeal that PW21's evidence
incriminated A3. We are therefore not persuaded
by Mr. Tusasirwe's criticism of
the evidence of PW21 that he over dramatised it. The majority Justices of Appeal
linked A3 to the
murder of the deceased because of A3's failure to actively
participate in consoling the royal family and the arrangement for and
final
burial of the Prince. With respect, we do not attach much importance on this
link. This is speculation which has no sound basis.
Considering the conflicts that existed between certain members of the Toro
royal family, the deceased, including Princess Bagaya,
and A3, it would have
required extra courage for A3 to remain and mix comfortably with members of the
royal family. Consequently,
we think that his failure to remain in Fort Portal
and be with the bereaved people cannot by itself alone lead to the inference
that
he participated in the murder of Prince Kijanangoma. We think that legally
he had no onus to explain why he never remained in Fort
Portal and be with the
bereaved people of the Kingdom.
The last link of A3 with the murder of Prince Kijanangoma which the majority Justices of Appeal found was in the evidence of Joseph Sunday Babu, PW22. He was a former employee of Give and Take Forex Bureau and at the time of his testimony in May, 2001, he had been dismissed from the company. He testified that in early 2001 before his dismissal, he drove one Chris Katuramu to Luzira Prison to see his brother, A3. He had already done so before for about eight times. On this occasion, they found there a businessman called Dembe who also had gone to see A3. This witness heard A3 give instructions to Dembe and Chris Katuramu to do all they could to see that Babara Ferri, PW7, and Milton Mwesige disappear and if need be, money should be used to achieve this objective. That was before the two people gave their evidence at the trial.
We realised from Sunday Babu, PW22's evidence that he was dismissed from Give
and Take Forex Bureau on 2nd February, 2001. According
to his evidence by the
time he was dismissed, he had already visited Luzira Prison with Chris Katuramu
when he heard A3 give out
instructions to Dembe and Chris Katuramu as earlier
stated. That was on 2/4/2001 before Ferri Babara, PW7, and Mwesige who testified
in court on 4th April, 2001 and 16th July, 2001
respectively. We respectfully agree with the majority Justices of Appeal that
the reason why A3 wanted the two witnesses
to disappear is because they would
give evidence which would incriminate him.
Mr Tusasirwe submitted
that in effect the Justices of Appeal conceded that none of the above pieces of
circumstantial evidence conclusively
damn A3. They then take the rather strange
route of bundling it all together and then find that taken as a whole, the
scattered incidents
some of which are of the court's own invention, collectively
prove the case against A3. He contended that there was nothing to show
that A3
conceived a plan to assassinate the deceased. There was no proof of him paying a
cent to the supposed assassins or even being
in touch with them. There was
nothing to show that he coordinated their movements or even knew of those
movements. In other words,
there was no scintilla of proof of procurement. On
the available evidence, we are not persuaded by these arguments. We agree with
the Justices of Appeal who held that:
"We would agree that considered in isolation, these incidents separately do not prove any murder charges against A3. However, considered together alongside the events that started in Nsambya on Sunday 21st March, 1999 up-to the Thursday 25th March, 1999 when the deceased was gunned down and onwards to the day in early April, 1999 when M/v Reg. No. 725 UBC disappeared and up-to October, 1999 when A3 was arrested, there is no doubt left in our mind that A3 conceived the plan to kill the Prince, he financed it, coordinated it and took all the steps to destroy all evidence that could have led to the discovery of the culprits early enough."
Therefore ground 5 must fail. The conclusions on ground 5 would really dispose of A3's appeal. We shall, however, consider briefly the other grounds.
Grounds 6 and 7 were argued together. Mr. Tusasirwe submitted that the
prosecution did not prove its case against A3 beyond reasonable
doubt. He
contended that the evidence for and against A3 through which the connection
could only have been implied was the alleged
phone - call by PW15, the payment
which he (PW15) clearly did in his own right; the sending of men, whom PW15
referred to as his,
to Rwenkuba farm, their stay at Rwenkuba farm, A3's
knowledge whereof was never established, their alleged use of a vehicle which
they were given by PW15 himself, their stopping at 3rd appellant's
Petrol station in Kampala in his absence, their supposed association with Kwezi
who as a relative had every reason to
be in A3's premises, but who was never
shown to have had contact with A3, other than through the statement of
PW15.
Counsel contended that against all logic, the learned trial
judge convicted A3 on the basis of A1's confession that was seemingly
inadmissible as corroborated by PW1 5, a former prime suspect and an obvious
accomplice to the alleged killers and even accepted
as truthful witness like
Baba and Mwesige.
Counsel criticised the Justices of Appeal for having adopted more or less the
same approach the trial judge had taken - by accepting
wholesale the evidence of
PW15, Mwesige, Sunday, Mugenyi and Luyonga. The Justices of Appeal thereafter,
found that given their evidence,
the 3rd appellant therefore must
have had hatred against the Prince and although many others also hated him, A3
must be the one who killed
the Prince. That being so, his defence must therefore
be a lie.
Finally, he contended that the learned trial judge made the
most disjointed and shocking statement on the whole record, when he stated:
"After looking at the evidence as a whole I am left in doubt that the prosecution have proved their case against the accused beyond reasonable doubt Since he procured the texts of the Prince he is equally responsible for the death of the night watchman."
Last it be thought that the judge meant that he was left in no doubt, perusal of the original record will show that he was dead serious, yet the first finding which is actually the logical finding given the evidence, should have had the result of acquitting the appellant
We have perused
the judgment of the Court of Appeal and nowhere in the judgment did the court
resolve the complaint raised in ground
6. However, we think that whether the
sentence conveys what the judge meant to say or whether it was a typographical
error can be
gathered from reading the preceding paragraph to that sentence and
the conclusion of that paragraph.
After the learned trial Judge had considered the evidence of Luyonga, PW21, regarding radio announcement that M/v Reg. No. 725 UBC was wanted by police as having been used by people who were suspected to have murdered Prince Kijanangoma - and how Luyonga (PW21) had seen Kawesa bring that vehicle and pack it in one of the garages of their company's estate at Bukoto and how Luyonga (PW21) stated that he later saw A3 supervise the removal of the registration number plates from that vehicle and replace them with the number plates from Ford Escort car which used to belong to late King Kaboyo Olimi. This was after midnight on the date in question. We have already referred to the evidence of PW21, in this judgment. After he had considered the above evidence, he considered the evidence of Milton Mwesige who drove the vehicle back from Fort Portal and handed it to Kawesa Ramathan, the driver of A3. He thereafter considered the evidence of SSP Magoola, PW22, who stated that at that time, he was stationed at Jinja Road Police Station and that A3 rang him in connection with the vehicle in question. Thereafter, the learned trial Judge referred to A3's statement from the dock where he stated:
"It is true when an announcement was made on one of the F.M. Radio station alleging involvement of that vehicle UBC 725 in the murder of Happy Kijanangoma I quickly rang the police because I knew the person who was using the vehicle and where it was stationed at the time."
The learned trial Judge then stated:
"This bold assertion of fact when tested against the background of the evidence of Nkoba, Mwesige and Luyonga coupled with the fact that the vehicle disappeared from the roads of Uganda, the message it conveys rings loud and clear. Is it reasonable to suppose that A3 was not aware of what was going on?'
After stating that A3 had told a lot of lies and falsehoods in his dock statement and citing the case of Rex V Erunasani Sekono & Another (1947) 14 EACA 74 and explaining the relevancy of the case, he concluded thus:
"after looking at the evidence as a whole I am left in doubt that the prosecution have proved their case against the accused (A3) beyond reasonable doubt" Since he (A3) procured the death of the Prince he is equally responsible for the death of the night watchman who was killed in the process of liquidating the Prince. I am in complete agreement with the assessors that I find him (A3) guilty of the charges on each count and accordingly convict him as charged"
Clearly, the phrase "after looking at the
evidence as a whole I am left in doubt" does not convey what the Judge meant
to say in view of his reasoning prior to the phrase and after the
phrase/sentence. The phrase
that fits and conveys what the Judge meant to say
is: after looking at the evidence as a whole. I am left in no doubt.
In fact the Judge meant to say that "after looking at the evidence as a
whole, I am left in no doubt that the prosecution have proved their case against
the accused beyond
reasonable doubt." And in fact that was his conclusion.
Therefore, ground six must fail.
We think that the complaint in ground 7
has already been resolved in the course of resolving ground 6 and when we were
discussing
ground 5 which dealt with whether or not A3 participated in the
murder of the deceased persons. We shall therefore not go into the
matter again.
In the result, this ground fails.
On ground 8 of A3's appeal Mr.
Tusasirwe submitted that the law on the need to consider the evidence of both
sides was clearly laid
down in Abdu
Ngobi V Uganda S.C. Cr. Appeal No.10 of 1991 where this court stated that:
"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not
taken until all the evidence has been considered the proper
approach is to consider the strength and weakness of each side, weigh the evidence as a whole, applying the burden of proof as always resting upon the prosecution and decide whether the defence has raised a reasonable doubt"
He submitted that the High Court in the instant
case came to its decision virtually without considering the defence case save to
declare
him a liar.
Counsel submitted that the Justices of Appeal did not improve the matter. In one paragraph, they summarised what appellant stated in his unsworn statement as follows:
"The defence of A3 was a total denial of the offence. He said he was not in the business of killing, because it did not make commercial sense. He stated that most prosecution witnesses had fabricated evidence against him due to grudge either being former employees who fell out with him or official (sic) in Toro Kingdom or who hated him because of his position in the Kingdom."
It is true that both the trial judge and the
Justices of Appeal never seriously considered the defence of A3, which was a
total denial
of the offence. He then stated that most of the prosecution
witnesses had fabricated evidence against him due to grudges either being
former
employees who fell out with him in
Toro Kingdom or who hated him because they had been dismissed from employment
in his companies.
We wish to reiterate what we stated in Abdu Ngobi V
Uganda (supra) and Suleiman Katusabe V Uganda S.C. Cr. Appeal No. 7 of
1991 (unreported) that:
"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that final decision is not taken
until all the evidence has been considered
The proper approach is to consider the strength and weakness of each side with the evidence as a whole, apply the burden of proof as always resting upon the prosecution and decide whether the defence has raised a reasonable doubt in the prosecution case."
We note that in the instant case A3's denial of the offence was considered
against the prosecution evidence and we think that the
lower courts had to
determine whether the evidence by prosecution witnesses proved that despite the
denial, and the allegation of
grudges the prosecution evidence was
overwhelming.
On the evidence of A3's witness, Rev. Kyalimpa vis-a
vis the evidence of Francis Mugenyi, about threats by A3 in the meeting held
at
Muchwa, the court never based its decision on the threats of A3. So failure to
address that discrepancy was not fatal.
The Justices of Appeal never considered specifically the evidence of
Tinkasimire, DW1 about how only Shs.200,000/= was withdrawn from
the bank on the
date in question, but that issue of inconsistencies and contradictions regarding
that amount was addressed by both
courts and resolved. We have already dealt
with it in this judgment. The defence which A3 raised was that shs.50,000/=
which he gave
to Mwesige was not to assist him in his journey back to Fort
Portal after the vehicle was grabbed from him by A3's visitors who had
forced
him to drive them to Kampala.
We think that A3 did not deny giving Shs.50,000/=. He denied giving money to
him because his visitors had forced him to drive them
to Kampala and had
thereafter grabbed the vehicle from him. His defence was that he gave the money
on a humanitarian ground because
Mwesige had a sick sister in
Kampala.
We think that when A1's confession is considered together
with Nkoba, PW15's evidence, it becomes clear that Mwesige was forced to
drive
to Kampala on 26/3/99 by A3's visitors whom he had transported from Fort Portal
to Rwenkuba Farm and who thereafter forced
him to take them to Kampala. When
Mwesige became stranded he reported to A3 who gave him Shs.50,000/= for his
transport back. We
think that Mwesige's evidence would be preferable to A3's
defence.
On the whole, although some of the defence evidence was not
seriously considered, no injustice was caused since the general denial
of A3,
that he had nothing to do with murders, was disproved by the prosecution
evidence which the courts below found to be overwhelming
and we agree. In the
result, ground 8 must fail.
On ground 9 of A3's appeal Mr. Tusasirwe, counsel submitted that the
appellate court like the trial court was not entitled to put
forward theories
not canvassed in evidence or counsel's speeches. See Justine Nankya V Uganda
S.C. Cr. Appeal No.24 of 1995 (unreported). Counsel submitted that there
were examples of serious speculation and conjecture on the part of the court and
introduction of factual
findings not founded on evidence which prejudiced A3. An
example of this, was the so-called the 5th link which came from its
own imagination to the effect that A3 did not assist the young King in making
burial arrangements but instead
rushed to Kampala on 26 March 1999 and that he
did not remain behind and stay with his bereaved people.
We resolved this complaint when we were discussing the 5 link of A3's
participation in the murder of Prince Kijanagoma. In any evident,
we think that
the circumstantial evidence linking A3's participation in the murders of the
deceased persons is so overwhelming that
the error complained of in this ground
is not sufficient to alter the finding. In the result, this ground must
fail.
Ground 10 of A3's appeal complained that the Justices of Appeal erred in law and fact when they found that the trial judge properly addressed the assessors on the law and evidence to enable them give a sound opinion. Counsel for A3 cited Godfrey Tinkamalirwe V Uganda [1988-1990] HCB 5 where this court stated that:
"under section 81(1) of the Trial on indictment Decree (TID) the trial Judge is required at the close of the case of both sides to summarise the law and the evidence in the case to the assessors. Needless to say, he must do so correctly and impartially, leaving the assessors free to farm their opinion independently. The summing up must not leave room for a reasonable man to think that the Judge did favour one side unfairly at the expense of the other of some people left the Court thinking that the Judge was biased, they could lose confidence in the Court as a custodian of justice."
With respect, we
think that this ground is not maintainable, because it was not raised before the
Court of Appeal and considered by
the Justices of Appeal. Therefore, it is
erroneous to criticise the learned Justices of Appeal as having erred when the
complaint
was not raised before them for consideration. In any case, the learned
trial Judge correctly and impartially directed the assessors
on the law and
evidence. For instance, on one issue he directed the assessors as follows:-
The accused, A3, gave a statement from the dock.. He was fully entitled to do this and no adverse views can be taken on this. His defence was a general categorical denial of any involvement in the crime. He dinied any dealing with Kwezi (A2). If you believe the evidence of Ernest Nkoba (PW15) that Kwezi (A2) talked to A3 on phone from PW15's office and that A3 instructed PW15 to give A2 a vehicle to use on his (A3's) errand, then here, A3 told a calculated and deliberate lie.
Clearly, the direction to the assessors by the learned trial judge left no
room for any one to think that the judge favoured one side
unfairly at the
expense of the other. In the result, ground 10 must fail.
For the foregoing reasons, A3's appeal has no merit. It must fail.
In the result, the appeals by all the three appellants must fail. They are
accordingly dismissed.
Dated at Mengo this 21st day of May 2003.
A.H.O. ODER
JUSTICE OF THE SUPREME COURT
J. W. N.
TSEKOOKO
JUSTICE OF THE SUPREME COURT
A.N. KAROKORA
JUSTICE OF THE
SUPREME COURT
PROF. G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
C.M. KATO
JUSTICE OF THE SUPREME COURT
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