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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA, J.S.C.)
CRIMINAL APPEAL NO. 25 OF 2001
BETWEEN
HAJI MAKUBO NAKULOPA ::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(An Appeal from the decision of the Court of Appeal of Uganda: C.M. Kato, J.P. Berko, and Twinomujuni, J.J.A, in Crim. App. No. 25 of 2001 dated 1/10/2002)
REASONS FOR THE COURT'S DECISION
The appellant, Haji Makubo Nakulopa together with Sulaiman Makika were
jointly tried and convicted by the High Court sitting at Jinja
for murder in
1st count and aggravated robbery in 2nd count. On appeal
to the Court of Appeal, Sulaiman Mukika's appeal was allowed while that of the
appellant was dismissed on both counts.
We heard his appeal on 3rd July 2003,
dismissed and reserved our reasons for the decision. We now proceed to give
them.
The appellant was a traditional medicine man who had a shrine in
Bwondha village Iganga District. The deceased, an army Lt, was a
client of the
appellant and it appears the two engaged in some business. On 21/10/94 the
deceased visited the appellant having been
invited there by the appellant. He
travelled in his official vehicle, Santana Reg. No.44 RA 131. He went as invited
to see the appellant,
his traditional medicine man who had been previously
treating him. The deceased never returned to his home.
One Lt.
Twinamasiko Fred, PW2, a brother-in-law of the deceased whilst travelling from
Jinja to Kampala saw the deceased's vehicle
parked on the roadside in Mabira
Forest. When PW2 went to a deceased's home, he learnt that deceased had not
returned. When he went
to Mbuya, he learnt that the deceased had disappeared and
that the army was arranging for a search. PW2 joined the search party.
The body
of deceased was discovered on 27/10/94 in the appellant's shrine at Bwondha. The
postmortem on the body was performed by
Dr. Wabinga of Mulago Hospital. He found
that the cause of death was due to multiple injuries following gunshot
wounds.
The evidence against the appellant is circumstantial inclusive of
his confession. These circumstances are these. A friend of the appellant
persuaded the appellant to get a gun from the deceased. The deceased came to
visit the appellant after the latter had invited him
by trickery. After the
deceased reached appellant's home, the appellant had the deceased shot dead at
his shrine. Through the effort
of Lt. Twinamasiko, a brother-in-law of the
deceased and information provided by the parish chief, Samuel Nambaga, PW6, a
search
was mounted, resulting in discovery of the deceased's dead body in
appellant's shrine. Evidence established that the deceased died
of gun shot
wounds. The appellant was arrested along with other persons. They were charged
with the murder and robbery.
After his arrest, on 2/11/94, the appellant
made a charge and caution statement before PW10. Kaswa James, Magistrate Grade
I. In the
statement, the appellant gave details of how the deceased was killed
by shooting although he himself denied shooting the deceased.
At the
trial the appellant denied having killed the deceased but admitted that the
deceased had visited him previously and that the
deceased came to his home in
the morning of 21/10/94 in a Santana. The appellant treated the deceased before
the latter left at 11
a.m. and went back. On 26/10/94 soldiers and police
arrested him from his home and when they searched his house, they found a
briefcase,
TV and Radio in his house. They tied him with ropes and tortured him,
demanding to know where the body of deceased was. He became
unconscious. He
denied having made a statement to a Magistrate. He further denied having any
shrine at all. He stated that people
who said that he had a shrine told
lies.
The trial judge believed the prosecution evidence and disbelieved the defence evidence and convicted the appellant on both counts. His appeal to the Court of Appeal was dismissed. The appellant has now appealed to this court against the decision of the Court of Appeal. The Memorandum of Appeal contains two grounds. The first states:
(1) The learned Justices of Appeal erred in law and fact in confirming the appellant's conviction and sentence on the basis of his extra judicial statement.
The first ground was substantially similar to ground
one in the Court of Appeal and arguments made there by Mr. Kunya are same as
those made before us.
The thrust of 1st ground revolves around
extra judicial statement, which was admitted in evidence as Exh.P6. Mr. Kunya,
counsel for appellant submitted
that it was improper for the trial judge to
admit it in evidence without conducting a trial within trial. Counsel submitted
that
failure by the trial judge to seek opinions of the appellant or his counsel
if they had anything to say about the admissibility of
the confession statement
before it was received in evidence deprived the appellant of the benefit of a
fair trial. He cited the case
of Sewankambo & others V Uganda
Cr Appeal No 33 of 2001 (S.C.) (unreported) to support his argument. He
contended that the Court of Appeal should have held that the
statement was
inadmissible and therefore should not have been relied upon.
Mr. Wagona Principal State Attorney appearing for the State supported the
conviction and sentence. He argued both grounds together.
He submitted that
although in Sewankambo & others case (supra) the
Supreme Court held that it was not proper to admit in evidence confession
statement on the ground that counsel for appellant has
not challenged it or has
conceded to its admissibility, he contended that each case should be considered
at on its own facts and
peculiarity. He contended that although there was
nothing to indicate that the trial judge inquired from defence counsel or from
the appellant whether they objected to the admissibility of the confession
statement, there were reasons in the instant case to justify
the reliance on
that statement to uphold the Court of Appeal's decision.
He adopted the
submission he made before the Court of Appeal and further submitted that the
case of Sewankambo (supra) was distinguishable from the
present case because that case was characterised by other aspects affecting the
voluntariness
of the statement.
Counsel submitted that appellant's claim that he was unconscious when the
statement was made is untrue because the magistrate, PW10,
who recorded the
statement said that the appellant was all right when he made the statement.
Therefore he could not have been unconscious.
He was arrested on 26/10/94 and
the statement was recorded on 3/11/94. The doctor's report was dated 10/11/94
unlike in Sewankambo's case where there was no medical
evidence adduced.
Although the appellant stated in his confession
statement that he was beaten after his arrest, he never told the police the
circumstances
under which the deceased was killed. He stated that he told the
police the circumstances under which the deceased was killed after
the body was
discovered.
Counsel submitted that there were other pieces of
circumstantial evidence from which an inference of guilt could be conclusively
made
- e.g. such as identity card of the appellant which he had given to John to
take to deceased as testified to by PW4, the deceased's
body being found between
the cave and appellants shrine, the motor vehicle tyre marks seen by PW6 leading
to the hills where the
appellant had a shrine on the very day PW6 had seen the
vehicle parked at the home of the appellant and the appellant's denial that
he
had a shrine despite other overwhelming evidence that he had one.
We are persuaded by the submissions of Mr. Wagona. Regarding admissibility of confession statement, we would refer to our judgment in the case of Omaria Chandia V Uganda Cr. Appeal No.23 of 2001 S.C. (unreported). Whilst dealing with admission in evidence of a confession statement allegedly made by an accused person prior to his trial, the supreme court justices stated, inter alia:
"because of the doctrine of the presumption of innocence enshrined in Article 128(3)(a) of the Constitution where, in a criminal trial, an accused person has pleaded not guilty, the trial court must be cautious before admitting in evidence a confession statement allegedly made by an accused person prior to his trial. We say this because we think that an unchallenged admission of such a statement is bound to be prejudicial to the accused and to put the plea of not guilty in question. It is not safe or proper to admit a confession statement in evidence on the ground that counsel for the accused person has not challenged or had conceded to its admissibility. Unless the trial court ascertains from the accused person that he or she admits having made the confession statement voluntarily, the court ought to hold a trial within trial to determine its admissibility." See also Kawoya Joseph V Uganda Cr. Appeal No.5 of 1999 S.C. (unreported),Edward Mawanda V Uganda Cr. Appeal No.4 of 1999 S.C. (unreported) and Kwoba V Uganda Cr. Appeal No. 2 of 2000 (S.C.) unreported.
We wish to distinguish the
instant case from the above cases where we did not approve of admitting
confession statements without conducting
a trial within trial. We are unable to
agree with counsel for appellant's submission that the trial judge erred in
admitting the
confession statement without conducting a trial within trial or
without drawing appellant's or his counsel's attention about the
implication of
admitting the confession statement. We wish to point out that a trial within
trial is conducted when a confession
statement is objected to on such grounds as
that the appellant was tortured or induced for the purpose of making the
confession statement.
In the instant case, the appellant stated that after his
arrest on 26/10/94, he was assaulted and tortured as a result of which he
became
unconscious. He does not state that he made the confession statement because of
being tortured. In fact, he does not state
that he made any confession statement
before a magistrate. In the circumstances we think that if there had been any
threat caused
by such torture on his arrest on 26/10/94 then any such threat
caused by such torture must have been removed by the lapse of time
between the
time he was arrested and when he made the statement on 3/11/94.
In
the result we find that the confession statement was made voluntarily and
rightly admitted. Further we think that appellant's claim
that because of the
torture he was subjected to after his arrest he became unconscious and did not
know that he went to the magistrate
and recorded a statement which was admitted
as Exh.P6 was rightly rejected, because the confession statement was so long and
so detailed
that it could not have been invented or imagined. In some aspect,
the confession statement confirmed the evidence of Mrs Muhangi,
the deceased's
widow, to the effect that one John took appellant's identity card to the
deceased to lure the deceased to visit the
appellant in October 1994. Secondly,
the confession statement shows that the appellant told the deceased to remove
his uniform and
wrap himself with a bark cloth before he smeared his body with
native medicine. This confirmed. PW2's evidence that when the body
of the
deceased was discovered between the cave and the shrine, it was found wrapped in
bark cloth.
In the result we found that the confession statement was true
and was rightly admitted as having been voluntarily made. Therefore
ground one
failed.
The second ground of appeal complained that the Justices of Appeal erred in
upholding the decision of the trial judge on the basis
of unreliable
circumstantial evidence against the appellant. Mr. Kunya, counsel for appellant
submitted that the alleged inculpatory
facts against the appellant did not
irresistibly point to the guilt of the appellant. He contended that the
appellant's identity
card which he gave to one John to take to the deceased, the
gunshots which PW 6 heard coming from the direction where the appellant
had a shrine, the motor vehicle tyre marks leading to where the appellant had
a
shrine and the discovery of deceased's body between the cave and appellant's
shrine could all be explained away because, he contended,
that these did not
irresistibly point to appellant's guilt.
Mr. Wagona, Principal State
Attorney, on the other hand, submitted that the above circumstantial evidence
coupled with the appellant's
denial that he had a shrine despite the prosecution
overwhelming evidence that he had it irresistibly pointed to appellant's
guilt.
We found no merit in the submission made for the appellant on this ground.
Both the High Court and the Court of Appeal dealt with
all the inculpatory facts
against the appellant raised before us on this ground and had rightly found, in
our view, that they irresistibly
pointed to appellant's guilt.
We
found that from the evidence of PW4, one John came with identity card of the
appellant to deceased's home to ask the deceased to
go to the appellant's home.
The deceased, who was then sick, on seeing appellant's identity card, accepted
to visit the appellant
on the following day. On 21/10/94 the deceased left his
home in an army uniform while driving his Santana vehicle and went to appellants
home in Iganga. This was confirmed by appellant's confession statement who
stated that he gave his identity card to one John in order
to take to the
deceased to lure him(deceased) to come to his home so that John and Ahamada
could remove a gun from the deceased.
On 21/10/94 PW6, saw a man in
an army uniform sitting in a Santana vehicle at the home of the appellant. When
he returned from inspecting
his parish, he never found the vehicle at
appellant's home. However, when he moved towards Malongo hills, he saw vehicle
tyre marks
leading in the direction of the hills where the appellant had a
shrine. Soon thereafter he heard several gunshots. This was confirmed
by
appellant's confession statement where he stated that by the time the deceased
arrived at his home, John and Ahamada had already
gone to take cover at his
shrine, ready to remove the gun from the deceased and that when he arrived with
the deceased at the shrine
and after the deceased had removed his uniform and
put on a bark cloth and went to smear himself with the native medicine, John
got deceased's uniform and wore it and got the gun, corked it and shot deceased
three times resulting in deceased's instant death.
On the following day
of 22/10/94 when PW 6 met the appellant and asked him why his visitor was
scaring people by shooting gun; the
appellant never denied. Instead, he told PW6
that when his visitor comes next time, he will warn him not to do so. According
to the
evidence of PW2, when the dead body of deceased was found, it was found
wrapped in a bark cloth lying between a cave and a shrine.
Clearly, the above incuplatory facts against the appellant were incompatible
with the innocence of the appellant and incapable of
explanation upon no other
reasonable hypothesis than that of guilt.
It was because we were
satisfied that the above circumstantial evidence and the confession statement
proved the guilt of the appellant
that we dismissed the appeal.
Dated at Mengo this 29th day of October 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
J. N. MULENGA
JUSTICE OF THE SUPREME
COURT
G. W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT.
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