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IN THE SUPREME COURT OF UGANDA
HOLDEN AT MENGO
CORAM: Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba
JJ.S.C.
CRIMINAL APPEAL NO.42 OF 2001
Between
1. BAGUMA STEPHEN 2. TUMUSIME JOHN:::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS
And
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from decision of the Court of Appeal (Mukasa-Kikonygo, DCJ., Kato
& Kitumba JJ.A.) at Kampala, in Criminal Appeal No.8/2000,
dated
2nd August 2001).
JUDGMENT OF THE COURT
Baguma Stephen and Tumusime John, were convicted and sentenced to death by
the High Court sitting at Fort-Portal on 11.1.00, for aggravated
robbery
committed in the night of 17.3.98, at the house of Bagonza Jackson, within
Fort-Portal Municipality. The Court of Appeal
upheld the convictions and
sentences. The two appellants have appealed to this Court against the decision
of the Court of Appeal.
According to the evidence accepted by the
trial court, the two appellants broke into the house at around mid-night. They
were armed
with pangas, knives and iron bars and had torches. They ordered the
occupants to remain quiet otherwise they would be cut. One of
them wielding a
panga, threatened to cut Jackson. He pushed him under the bed and forced him to
lie there facing down. Jackson remained
in that position throughout the
incident. The appellants demanded for money. Jackson's wife, Suzan, surrendered
to them all the money
in the house piece meal, up to a total of shs.800, 000/-.
They then ransacked the house, grabbing and taking away an assortment of
clothing and other household goods.
There were six occupants in the
house when the robbers broke in. Four of them gave evidence, namely: Jackson as
PW1, Suzan as PW2,
their son, Murungi Dan, as PW4, and the house girl, Mary
Kajumba, as PW3. Jackson and Suzan were sleeping in their own bedroom, Dan
was
sleeping in the sitting room, and Mary was sleeping in another room with the two
who did not testify. Jackson did not recognise
any of the assailants. Mary
recognised both Baguma and Tusiime as the assailants. Suzan recognised Baguma
only, and Dan recognised
Tusiime only. None of the witnesses knew either
appellant by name. They only knew them by appearance, because they used to see
them
at their respective places of work. The day after the robbery, in the late
afternoon, the three witnesses who had variously recognised
the assailants went
to town with two police officers, to look for the appellants. They first came
across Tusiime who was identified
by Mary and Dan. He was arrested and taken to
the police station by one of the police officers. Later, Baguma was also seen at
a
restaurant. Mary and Suzan identified him to John Gagwa, PW5, the police
officer that had stayed behind. When PW5 informed him that
he was under arrest,
Baguma attempted to escape. He was chased, captured, and taken to the police
station. In the evening of that
day, the police searched the homes of the
appellants, but they did not recover any of the stolen property.
Each
appellant gave evidence on oath denying the charge, and setting up an alibi in
defence. Tusiime further contended that his arrest
was not because of
identification by any of the witnesses. He said that one Saulo, pointed him out
to a policeman, alleging that
he had also been involved in the robbery,
whereupon he was arrested and beaten without being told what he had done. Baguma
also testified
that Saulo was with a group of people who tried to grab him and
force him to enter a car. He explained that he tried to run away
fearing for his
life. The trial court rejected the appellants' defences, and believed the
prosecution evidence; hence the convictions.
In this appeal, the
appellants are represented by different counsel. Consequently, they filed
separate memoranda of appeal. However,
some of the grounds of appeal are almost
identical. In each memorandum, the appellant complains that the learned Justices
of Appeal
erred in upholding the finding of the trial court that he was properly
identified, and in its decision to reject his defence of alibi.
In addition,
Baguma complains that the learned Justices of Appeal erred when they -
• held that the contradictions in the prosecution case
were minor;
• failed to properly and adequately evaluate
the evidence as a whole. Tusiime's third complaint was that the learned
Justices of Appeal erred
• in confirming the conviction and sentence...in absence of
satisfactory proof of the ingredients of the offence.
Mr. Ddamulira
Muguluma, the learned counsel for Baguma, submitted that during the robbery, the
light was not sufficient to enable
the witnesses to identify the assailants. He
argued that the contradictions and inconsistencies in the prosecution evidence
were
indication that the evidence of identification was not sufficiently
reliable to support the convictions. He enumerated the alleged
contradictions
and inconsistencies, and maintained that each witness had his/her own version of
what transpired during the robbery.
He particularly criticised the evidence of
Suzan, because she had not known Baguma before the robbery, and because,
according to
counsel, she did not identify him to the police independently.
Counsel also criticised Mary's evidence of identification of Baguma,
because she
claimed that she recognised him outside the house, where there was no light. He
complained that the trial court had wrongly
failed to allow Baguma to call a
witness that he had all along indicated he wanted to call. He also criticised
both courts below
for failure to take into consideration Baguma's explanation
that his attempt to escape from arrest was due to genuine fear for his
life. He contended that the Court of Appeal had erred in failing to re-evaluate
all that evidence.
Mr. Kunya, learned counsel for Tusiime, also
criticised the Court of Appeal for failure to re-evaluate the identification
evidence,
and in particular for not taking into consideration, conditions that
were unfavourable to correct identification during the robbery.
He submitted
that the witnesses were awakened from sleep, and that they must have been in
fear during the ensuing commotion. He argued
that the fact -
• that neither of the two witnesses who claimed to have recognised Tusiime during the robbery, had given his description before his arrest; and • that in the search of Tusiime's house in the afternoon following the robbery, none of the stolen goods were found,
raised substantial doubt on the
identification evidence. He also maintained that the Court of Appeal had,
without re-evaluation, accepted
the prosecution evidence wholesale, and failed
to consider Tusiime's defence of alibi that was tenable. Finally, Mr. Kunya
submitted
that the prosecution had failed to prove beyond reasonable doubt, an
essential ingredient of the offence, namely: that the assailants
had used or
threatened to use a deadly weapon. The assailants' weapons were neither produced
in evidence nor described sufficiently
to rule out the possibility that what the
witnesses saw, were imitation weapons. Counsel cited Wasaja vs. Uganda
(1975) EA 181, in support of his contention that the prosecution had to prove
that the weapon in issue was deadly. According to him,
the evidence adduced in
this regard was too weak to support a conviction for robbery with
aggravation.
Mr. Elem Ogwal, the learned Assistant Director of Public
Prosecutions, submitted that the Court of Appeal had properly re-evaluated
the
evidence, and had correctly addressed issues pertaining to identification and
the defence of alibi. On the question of proof
of use or threatened use of a
deadly weapon, the learned Assistant DPP argued that a panga, like a knife, is a
basic tool for offensive
purposes, and is therefore a deadly weapon. Evidence
that the assailants threatened to use a panga was sufficient proof that they
threatened to use a deadly weapon.
The learned trial judge properly
directed the assessors and himself on the care that must be taken when the
prosecution case rests
solely on visual identification. He considered and
evaluated the evidence adduced against each appellant, the night conditions
under
which the witnesses were able to see their assailants, and the
discrepancies in the prosecution evidence. He also considered each
appellant's
defence of alibi, as well as Baguma's explanation of his attempt to escape from
arrest. He was satisfied -
• that the conditions were favourable to correct identification; • that the discrepancies were minor; and • that the defences of alibi, and Baguma's explanation, were false.
He
concluded, as did both assessors, that each of the appellants had been correctly
identified as a participant in the robbery.
In their judgment, the
learned Justices of Appeal carefully reviewed the trial court judgment. In
particular, they considered in detail,
the way the trial court handled the
issues of identification, discrepancies and the defences of alibi, which were
subject of the
grounds of appeal. They found no fault in the judgment, and
upheld its findings. The fact that they expressed their conclusions in
that
manner is not an indication that they did not re-evaluate the evidence. We are
satisfied that in the process of the said careful
review of the trial court
judgment, they re-evaluated the evidence and came to the same conclusions of
facts as the learned trial
judge did. The contention that they did not is
without substance. In Henry Kifamunte vs. Uganda, Criminal Appeal No.
10/97, we held that as a second appellate court, we do not have to re-evaluate
the evidence, except in the clearest
of cases, as where the first appellate
court has failed in its duty to do so. This is not a case requiring
re-evaluation of the evidence
by this Court, as that was appropriately done by
the first appellate court. Accordingly, we find no merit in the grounds of
appeal
in which the appellants raise the issues of identification,
discrepancies, alibi and re-evaluation of evidence.
Whether the
prosecution did not prove an essential ingredient of the offence of aggravated
robbery, is a question of mixed law and
fact. For that reason, we accepted to
consider Tusiime's third complaint, although it was not canvassed in the Court
of Appeal. In
the indictment, the particulars of offence recited that the
appellants "threatened to use deadly weapons, to wit knives, on the said
BAGONZA JACKSON". All the four eyewitnesses testified variously, that the
assailants were armed with knives, pangas and iron bars. However, only Jackson
testified about the threat to use any of them. He said -"I saw people
entering the house. They were two. They had a powerful flashlight, pangas,
knives and an iron bar. I was told to keep quiet and that in case I made any
noise I would be cut. We pushed to our bedroom. One of the assailants
raised a panga to cut me. I was ordered to lie down. The one armed with a
panga and knife stepped on my leg and ordered me to lie facing down. I was
pushed
under the bed and one of the assailants told me that if I looked at
him he would cut me. I was ordered to give them money." (emphasis is
added) The learned trial judge directed the assessors and himself, that one of
the ingredients of the offence, which
the prosecution had to prove, was the
"use or threatened use of a deadly weapon" in the robbery. In
holding that the ingredient was proved beyond reasonable doubt, he expressly
relied on that portion of Jackson's
evidence. The issue that Mr. Kunya raises is
whether that evidence goes far enough to prove that the weapons in question were
real and not imitation weapons.
The Court of Appeal for East Africa, in Wasaja vs. Uganda (supra),
considered a similar issue in relation to threatened use of a gun. At p. 182,
the court observed -
"Of course it is for the prosecution to prove all the
ingredients of the offence, including that the weapon used to threaten was a
deadly weapon. It may be that the judge was not satisfied on this point. In our
view, once it is proved that a weapon is a deadly
weapon, then using it to
intimidate the victim of a robbery by pointing it at him is a sufficient threat
within the meaning of s.273(2)
aforesaid. The vital consideration is that the
weapon must be shown to be deadly in the sense of 'capable of causing death
'. As we have indicated, toy pistols, broken guns incapable of discharging
bullets or guns without ammunition, or imitation guns are
not, and cannot be
deadly weapons. There was no evidence in this case that the gun held by the
appellant was a deadly weapon. For
all we know it may have been a harmless
imitation." (emphasis is added). In that case the trial judge had declined
to convict for aggravated robbery under s.273 (2) of the Peal Code
apparently
because he was not satisfied that the appellant had threatened to use the pistol
he wielded. The Court of Appeal said
that that was a wrong reason, because the
wielding of the pistol was sufficient threat. Nevertheless, it was of the view
that the
trial judge rightly convicted for simple robbery, rather than
aggravated robbery, because there was no proof, beyond reasonable doubt,
that
the pistol was a deadly weapon. The trial court in the instant case, considered
the issue in the context of a submission by
defence counsel to the effect that
proof of the ingredient required proof of grievous harm to the complainant.
After recalling Jackson's
evidence, the learned trial judge said -
"..defence counsel submitted that for this ingredient to be proved the perpetrator must have caused grievous harm to the complainant in execution of the robbery and proof of grievous harm would be by medical evidence which was not adduced in this case. My understanding of s.273 (2) of the Penal Code is that this ingredient is proved if the offender does any of the following:-
1. uses a deadly weapon 2. threatens to use a deadly weapon 3. causes death 4. causes grievous harm
A deadly weapon is defined by the same section to include "any instrument made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death."
The instruments used in this robbery fit into
this definition and it is immaterial that the complainant or any of the
occupants in the house was (not) injured. I therefore hold that the second
ingredient has also been proved.... beyond reasonable doubt." (emphasis is
added).
Evidently, in holding that the instruments used in this
robbery fit into the statutory definition of a deadly weapon, the learned
trial
judge not only took into account the common knowledge that knives and pangas are
used for stabbing and cutting, but also inferred
that what the witnesses saw,
and subsequently described to the court, were real knives and pangas, and not
imitations. We agree that
in a case where the decision to convict for capital or
simple robbery depends on the nature of the weapon used or threatened to be
used, it is legitimate and indeed desirable for the trial court to probe for
detailed description of the weapon in issue. However,
it cannot be correct to
suggest that in any case, where such probe is not done, the possibility of the
weapons being imitations is
necessarily not ruled out. Much depends on the
weapon in issue. A witness testifying merely that, he saw a robber armed with a
gun,
may well raise a reasonable doubt, whether the gun was loaded or capable of
functioning. On the other hand, short of mere speculation,
no such doubt arises
from testimony that the robber was armed with such simple and plain weapon as a
knife or a panga. In our view,
this case is distinguishable from Wasaja vs.
Uganda (supra). In the circumstances of the instant case, the trial judge
had no cause to doubt that the weapons were what the witnesses
described them to
be. Accordingly, it was not an error to hold that the weapons were deadly, and
that all the ingredients of the
offence were proved beyond reasonable doubt.
Tusiime's third ground of appeal must also fail.
In the result, we find no
merit in this appeal, and we dismiss it.
Dated at Mengo this 12th day of November 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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