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REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KATO, JJ.S.C.)
CRIMINAL APPEAL 52 OF 2000
BETWEEN
SGT. MUSOKE WILLIAM:::::::::::::::::::::::::::::::::: APPELLANT
AND
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
[Appeal from judgment of the Court of Appeal at Kampala
(Manyindo DCJ, Mpagi-Bahigeine and Berko, JJ.A.) dated 29th November, 2000
in
Criminal Appeal No. 59 of 1999]
JUDGMENT OF THE COURT
This is a second appeal. It arises from the decision of the Court of Appeal
dismissing an appeal by Sgt. Musoke William, the appellant,
against his
conviction, by the High Court, for capital robbery and murder. Upon conviction,
the High Court sentenced him to death
in respect of the first court to
robbery.
In the High Court, the appellant and three other persons
were tried by Onega, J, on an indictment containing five counts. In counts
1 to
4, they were indicated for robbery with threatened use of a gun against diverse
persons in Bunafu village on the night of 7/1/1995.
In the fifth count the
appellant alone was indicted for the murder of Matovu Siliveste.
The
prosecution case was that on the night of 7/1/1995, the appellant together with
Mutwalibu Katende, Maganda Ali and Mutalya Azedi
at Bunafu village, in Iganga
District robbed Mudhungu Patrick (PW1), Rose Mwendeze Muwanika (PW2), Tadeo
Inensiko (PW3), Nyiro Vincent
(PW4), among other persons. In the course of the
robbing, Matovu Siliveste, father of Mudhungu, was shot dead by the robbers. The
appellant was arrested the following morning near Iganga railway station in
possession of some of the properties robbed from Bunafu
village. This connected
him to the robberies and the murder. The other suspects were arrested later in
the day.
During the course of the trial in the High Court, Mutwalibi
Katende jumped bail. The appellant and the remaining two accused each
set up
alibi as their defence, namely that each was not at the scene of the crime when
the offences were committed. The learned trial
judge believed the prosecution
evidence in respect of the appellant and Muganda Ali and convicted them. He
acquitted Mutalya Azedi.
The two appealed to the Court of Appeal. That court
upheld the conviction of the appellant but allowed the appeal of Muganda whom
it
acquitted and set free. The appellant has now brought the present appeal to us.
It is based on four grounds of appeal. These grounds
are an amalgamation of two
memoranda of appeal. The first dated 25/2/2000 and containing three grounds was
filed by Kakooza &
Kawuma, Advocates. The second from which only ground
three concerning the appellant's defence of alibi was lifted from the memorandum
dated 10/9/2002 filed by Messrs Ddamulira & Muguluma, Advocates. The appeal
was argued by Mr. Ddamulira Muguluma while Mr. Vincent
Okwanga, a Principal
State Attorney, representing the Respondent, opposed the appeal. Mr. Ddamulira
Muguluma argued grounds 1 and
2 together and grounds 3 and 4
separately.
Grounds 1 and 2 are formulated this way -
1. That the learned Justices of Appeal erred in fact and law by finding that the charge of murder had been proved beyond reasonable doubt
2. The learned Justices of Appeal erred in fact and law by finding that the charge of aggravated robbery was proved beyond reasonable doubt.
We must point out that in the trial
court, Miss Nassiwa, who represented the appellant and who appears to have put
up a strong fight
for her clients, in effect, conceded the fact of the
occurrence of robbery and that of the murder. Her contention was that her
clients,
the appellant inclusive, never participated in the commission of the
crimes.
Earlier on in her submissions in support of no case to answer
and later in her final address in the High Court, Miss Nassiwa, did
not raise
the issue of non-proof of any ingredient of either robbery nor of murder.
According to the record, her contention was in
her own words, that -
"If there was robbery and deadly weapon was used, the prosecution did not adduce evidence to prove the accused committed the offence" (of robbery).
Her contentions were on identification. In the
Court of Appeal the two complaints raised before us now never formed part of the
appeal
nor were they argued. Therefore and, with respect to Mr. Damulira
Muguluma, it was misleading for learned counsel to argue that the
Court of
Appeal erred in fact and law to find that robbery and murder were proved beyond
reasonable doubt. In the Court of Appeal,
the arguments by Mr. Ssengoba who
represented the appellants there and argued the appeal, were substantially
similar to those of
Ms Nassiwa, namely, that conditions did not favour correct
identification. Because of the approach adopted by Mr. Ssengoba
in arguing
the appeal in the court below, that court rightly concerned itself only with
reevaluating the evidence relating to identification
and then concluded that the
evidence of Mudhungu (PW1) and Nyiro (PW4) was,
"Enough to connect the first appellant with the offence."
That clearly shows that the Court of Appeal was
satisfied with the evidence on identification of the appellant.
In the High Court the learned trial judge found that the offences of robbery and murder had been committed.
This is how he put it:
"To start with robbery there is ample evidence on record to show that there were a series of theft and that a deadly weapon was used. Both the defence counsel and the prosecution agree on this. Patrick Mudhungu, Inensiko Tadeo, Rose Mwendeze and Nyiro Vincent all told court how their various properties were robbed. Some of the items robbed were found hidden in the bush while others were found with A1 (i.e. Appellant). All the witnesses clearly told court that they heard gunshots Mzee Matovu was killed by a gun. It is therefore obvious that there was theft and that a deadly weapon was used. In this way the only ingredient in issue is as to whether or not the accused (sic) or any of them participated in the robbery."
This finding by the learned
judge was not challenged in the Court of Appeal. In the memorandum of appeal in
that court nothing is
mentioned about this finding. Therefore the Court of
Appeal was not moved to consider that finding, or rather the findings because
the judge made a further finding that the deceased was killed by use of a
gun.
After the two findings, the learned trial judge then went into
detailed evaluation of the prosecution evidence relating to identification
and
held that the evidence of Nyiro (PW4) and D. Kahigidha (PW6) prove
that the appellant was at the scene of crime. The judge then considered the
evidence of Fundi (PW5) and Malinga (PW8) which he found to link the
appellant to the robbery. Inensiko testified that his microphone was
robbed that night. The judge believed Nyiro that the appellant was with
Inensiko's microphone at night and that when the appellant was arrested
it was still in his possession.
We have had to reluctantly allude to
evidence on identification because of the approach adopted by Mr. Ddamulira
Muguluma when arguing
grounds 1 and 2.
We must point out, with respect to
Mr. Damulira Muguluma, that in his address to us while arguing grounds 1 and 2
he did not in effect
argue these two grounds. He merely used evidence on
identification to challenge uncontested findings of the fact of murder and
that
of robbery and those arguments on identification are relevant to ground three
which we shall discuss presently. On the basis
of the evidence of
Inensiko and Nyiro which we need not quote here, we are satisfied
that if the issues of whether murder and or robberies were committed had been
raised
and argued in the Court of Appeal, that court would have found that
robberies and the murder had been committed. Consequently grounds
1 and 2 have
no merit and the same must fail.
In ground 3 the complaint is that the learned Justices of Appeal failed to
properly evaluate the evidence on the record and as a result
came to erroneous
judgment. Mr. Damulira Muguluma argued that Mudhungu (PW1) and
Nyiro (PW4) upon whom the Court of Appeal relied did not see the
appellant at the scene of crime. Counsel contended that Mudhungu (PW1)
claimed belatedly in his evidence to have seen the appellant. Counsel argued
that the witness did not have enough time to
identify the appellant. He also
contended that the evidence of Nyiro (PW4) is inconsistent concerning
whether or not he was able to see the shooting of the deceased. He argued that
Nyiro is not a truthful
witness.
Mr. Ddamulira Muguluma in effect
argued that the prevailing circumstances did not favour correct identification.
He further contended
that the goods claimed to have been found in possession of
the appellant upon his arrest belonged to the cyclist who gave him a lift
on a
bicycle. Learned counsel also contended that neither Nyiro nor P/C
Kesinge identified the properties properly. Counsel argued that the Court of
Appeal did not evaluate this evidence properly.
Mr. Okwanga relied on
Isongoza W. Vs Uganda, Supreme Court Criminal Appeal 6/98 (unreported)
for the view that as the appellant was arrested while in possession of stolen
property
and as he did not satisfactorily explain how he got in possession of
the property, the appellant must be the thief. When court expressed
concern
about the procedure adopted in production of exhibits in the trial court, the
learned Principal State Attorney opined that
the trial judge erred in not
marking the exhibits when they were tendered in court, but contended that the
irregularity is not fatal
to the prosecution case because it did not occasion a
miscarriage of justice to the appellant.
In the trial court, the issue of identification of the appellant and his
co-accused as well as whether the gun produced in court was
the gun used in the
commission of the crimes were canvassed. It was argued that the trial judge
failed to resolve the inconsistency
between the evidence of Fundi and
Sgt. Malinga about whether the gun produced in court was the gun found on the
appellant. This is because whereas Malinga testified that the gun could
fire, Fundi stated that it could not fire. True the learned trial judge
did not allude to the introduction in evidence of the exhibits. But he
was firm
in his findings that the properties found at Musitta tree where Nyiro was
released and the properties found in possession of the appellant upon his arrest
were properties which had been robbed by the
appellant and his group. The judge
also found that the evidence of Nyiro established that the appellant is
the gunman who carried the gun with which the murder was
committed.
As already noted, the complaints raised for the
consideration of the Court of Appeal were the defence of alibi and the
contradictions
and insufficiency in prosecution evidence. In the Court of Appeal
Mr. Ssengoba in matter of fact concentrated on the issue of identification
of
the appellant and did not raise any complaint about production of exhibits in
court. The Court of Appeal considered the complaints
argued there and
re-evaluated the evidence of Mudhungu, of Nyiro (PW4) of Fundi
(PW5) and of Malinga (PW8) before holding that the evidence of
Nyiro placed the appellant at the scene of crime and that the evidence of
Fundi corroborated that of Nyiro. The Court of Appeal also
concluded that the appellant was correctly identified and that, therefore, his
alibi was destroyed. So
the court confirmed his conviction. We have reviewed the
evidence of these witnesses but we have not been persuaded that the Court
of
Appeal erred in its conclusions.
The claim by Fundi that the gun could not fire is a little puzzling.
But the appellant solved that puzzle. The appellant claimed he took his gun from
the armoury and took two full magazines on 7/1/95. Upon his arrest he was found
armed with a gun with the two magazines; one full,
the other without seven
bullets. His expatriation at that time was that he fired these missing seven
bullets in self defence after
Fundi had shot at and injured him. The
courts below did not believe this version of his. Malinga on the other
had testified that there was shooting before he went to the scene where the
appellant was arrested. Whatever the case,
clearly the appellant's evidence
established that the gun found in his possession was functional. The appellant
must have known it
was functional before he carried it. In any case
Nyiro, a key witness who was believed by the two courts below, testified
that at night the appellant fired his gun. In these circumstances
there can be
no doubt that the gun with which the appellant was found upon his arrest could
fire.
We have alluded to the handling of exhibits by Sgt. Malinga and
P.C. Kisiige (Pw9). The evidence of the latter about the exhibits
was not
challenged and although the trial judge's procedure of the production and
marking of the exhibits is irregular and unsatisfactory,
this did not prejudice
the appellant nor does it occasion any miscarriage of justice. Accordingly we
find no merit in ground 3 which
must fail.
The fourth and last ground
of appeal is that the learned Justices of Appeal erred in fact and law for
having rejected the alibi set
up by the appellant.
Mr Ddamulira
Muguluma contended that the Court of Appeal erred when it stated that the
appellant's defence did not amount to an alibi.
Mr. Okwanga contended
that there was no alibi raised and that if there was any then the identification
of the appellant at the scene
destroyed his alibi.
It is true that at first the Court of Appeal held that -
"The defence of the appellant did not amount to an alibi."
However after the court summarised the appellant's defence, it considered his defence as an alibi although the court was not clear when it said -
"He (Appellant) was therefore in the Magamaga Barracks on the night of 7/1/95. The incident took place at night. Therefore he was in position to participate in the offences. He was seen at the scene of the robbery by both PW1 and 4".
Here the judgment of the learned Justices appears confusing some how, but they went further and stated -
"The trial fudge did not only believe the evidence of PW1 and PW4, but he found the defence of the first appellant remarkable and improbable."
We agree with this last conclusion. Ground
four has no merit and it fails.
There are two matters upon which we
desire to comment. First, as pointed out earlier, Mutwalibi jumped bail before
he could give his
defence. The trial judge proceeded with the trial and heard
the defence of the other accused persons No Nolle prosqui
was entered by the Director of Public Prosecutions in respect of Mutwalibi
yet the judge made no findings in respect of his case.
That is erroneous. The
DPP should have entered a nolle. As it is, the trial of Mutwalibi was not
concluded. Secondly, the trial judge
erroneously deferred passing sentence on
the appellant on counts 2,3,4 and 5. He should have passed sentences on all
counts and then
deferred execution of these four sentences. We make these
comments for the guidance of other trial Judges. Otherwise these irregularities
have no material effect on the case.
In conclusion we find no merit in this appeal. It must fail. It is dismissed.
Delivered at Mengo the 19th day of May 2003
A.H.O ODER
JUSTICE OF SUPREME
COURT
J.W.N. TSEKOOKO
JUSTICE OF SUPREME COURT
A. N. KAROKORA
JUSTICE OF SUPREME COURT
J. N. MULENGA
JUSTICE OF SUPREME COURT
C.M. KATO
JUSTICE OF SUPREME COURT
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