|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Uganda: Supreme Court |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO.
(CORUM: ODER, TSEKOOKO, KAROKORA, MULENGA AND
KANYEIHAMBA, JJ.S.C.)
CRIMINAL APPEAL No.04 OF
2004
BETWEEN
BAGATAGIRA
MUJUNI APPELLANT
AND
UGANDA
RESPONDENT
[An Appeal from the decision of the Court of Appeal at Kampala (Okello, Twinomujuni and Kitumba, JJ.A.) dated 16th July, 2004 in Criminal Appeal No.128 of 2002]
JUDGMENT OF THE COURT
This second appeal is from the decision of the Court of Appeal upholding
the conviction by the High Court of the appellant for the
offence of
murder.
The facts of the case are simple. The appellant, Bagatagira Mujuni, and the deceased, Byandagara Moses, lived in Kyempisi village, Mbarara District. Apparently the appellant owed the deceased some money. On the same village, the father of the appellant engaged Bagorogonza Tumusiime (Tumusiime) to distil a local brew called Enguli for the former.
On the 1st July, 1999, at 1.00 p.m., the appellant and the
deceased went to where Tumusiime was distilling Enguli. They appear to have
arrived
at the same time. The appellant was carrying a panga. After a while, the
deceased demanded that the appellant pays the debt there
and then. Apparently
the latter did not have money, so he promised to pay it the next day. The
deceased persisted in demanding for
the money. At that stage, Tumusiime left the
two and proceeded to attend to the Enguli distillation by replenishing fire. As
he was
proceeding, he heard the deceased groan with pain and when Tumusiime
looked back at the two, he noticed that the deceased lay on
the ground while the
appellant had raised one of his arms up poised to cut the deceased with the
panga. The appellant then cut the
deceased. Tumusiime ran away from the scene
and proceeded to inform members of the family of the deceased about what he had
observed.
As the appellant was fleeing from the scene while carrying his panga, he met Twinomujuni Richard (PW2). When Twinomujuni inquired of the appellant about what had happened, the appellant told Twinomujuni "to leave him alone" as he continued running away from the scene. At the Enguli distillery, Twinomujuni found the deceased lying dead in a pool of blood, while more blood was oozing out from a cut wound at the back.
According to Gideon Safari, PW3, a teacher and villagemate of deceased
and the appellant, after the incident, the appellant disappeared
from the
village until he was arrested in Tanzania, ten months later.
At his trial, the appellant put up an alibi to the effect that he was
not at the scene on the day the deceased was murdered,
claiming that he had
gone to Tanzania on 27/6/1999 in search of employment. The learned trial
judge rejected that
alibi and convicted and sentenced him to
death. Upon appeal to the Court of Appeal based on six grounds,
the
conviction and the sentence of death were confirmed by that court. From
that confirmation the appellant has preferred this
appeal which was
originally founded upon three grounds formulated by his
counsel, Mr. Robert Tumwiine.
With leave of the Court Messrs
Katende Ssempebwa & Co., Advocates, also counsel for the appellant,
filed a supplementary
ground of appeal in respect of mitigation of the sentence
of death.
Mr. Robert Tumwiine lodged a written statement of his arguments in support of the appeal. He abandoned the second ground of appeal but argued the remaining two grounds together. Mr.Vincent Okwanga, Ag. Senior Principal State Attorney also lodged a written statement of arguments on behalf of the respondent.
Consideration of mitigation on sentence would depend on our decision in
regard to the conviction of the appellant.
Grounds one and three of
appeal are worded this way –
1. The Honourable Justices of Appeal erred in law and fact when he (sic) failed to correctly reevaluate the appellant's evidence, especially his defence of alibi.
2. The Honourable Justices of Appeal erred in law in confirming the conviction of the appellant that was based on the prosecution evidence that was tainted with falsehoods, contradictions and inconsistencies.
Mr. Tumwiine's arguments in substance consist of two parts. First he criticised the Court of Appeal on its alleged failure to re-evaluate the appellant's evidence. Secondly he criticised the Court for relying on evidence which he contended was tainted with falsehoods, contradictions and inconsistencies. We may point out that in presenting the arguments, learned counsel oscillated from one set to the other.
It is convenient to start with the second leg of learned counsel's contentions. According to him Bagorogoza Tumusiime (PW1) and Twinomujuni Richard (PW2) were unreliable prosecution witness and,
therefore, the two courts should not have relied on them to disprove the appellant's alibi. According to counsel,
"(a) PW 1 was being employed by the Appellant's father who refused to pay him and this biased him. (the witness)
(b) PW 2 purportedly met the appellant
running with a panga and did not mind making an
alarm.
These are the same arguments which Ms Nafula
had argued on behalf of appellant in the Court of Appeal.
In
reply Mr. Okwanga argued that the evidence of the two witnesses disproved the
appellant's alibi.
We agree with the submission of Mr. Okwanga. The two witnesses and the appellant were village mates. Each had known the appellant since childhood. The incident happened during broad day time, at 1.00 p.m. These facts were not challenged. No question of mistaken identification was raised nor could be properly raised at all. The two reasons advanced by Mr. Tumwiine are far fetched and have no sound basis. In our opinion the learned trial judge considered the evidence of the two witnesses and the alibi before he reject the latter.
The Court of Appeal properly re-evaluated the evidence before it
concurred with the trial judge that the two witnesses were credible
and that
they put the appellant at the scene of crime. In our opinion, the Court of
Appeal, like the trial court, justifiably rejected
the appellant's alibi. We
cannot fault any of the two courts. We think that the appellant ran to Tanzania
after the murder to escape
justice but not before the murder to look for
employment as he claimed.
Next Mr. Tumwiine contended that there were contradictions between the
post mortem report on the one hand and the evidence of
Tumusiime (PW1)
and of Mugisha Gideon Safari, (PW3) the teacher, on the other. Counsel appears
to argue that although the post
mortem report (Exhibit P.1) shows that there was
only one cut wound, Tumusiime stated that the appellant inflicted two cut wounds
on the deceased. He further contended that Safari's testimony suggests that
either the head of the deceased or both the head and
the trunk had been severed
off from the rest of the body. Counsel contended that the Court of Appeal should
have treated the evidence
of PWl and PW3 as lies and therefore the Court should
have quashed the conviction. For the respondent Mr. Okwanga argued that any
of
the contradictions are minor and do not go to the root of the prosecution case.
He supported the decisions of the two courts.
With respect to Mr.
Tumwiine, we think that the contradictions he pointed out are not material. We
perused the record of appeal and
we do not find anywhere in the evidence of
Tumusiime, where he stated that any part of the body, let alone the head or the
trunk,
had been severed as claimed by Mr. Tumwiine, Further, neither Tumusiime
evidence nor the post mortem report show that there were
two cut
wounds.
Mr Tumwiine's arguments regarding contradictions in the evidence of PW1
as to the cuts inflicted on the deceased are the same arguments
which Ms. Nafuna
raised in the Court of Appeal on behalf of the appellant. That court considered
the post mortem report, the evidence
of Tumusiime and how the learned trial
judge had evaluated that evidence. The Court of Appeal considered two
authorities including
the famous case of Alfred Tajar Vs Uganda EACA
Criminal Appeal No. 167 of 1969 which sets down applicable tests on the
reliability of the evidence of a witness who is perceived to have given
contradictory
evidence. The Court found that there was no grave inconsistency
between the evidence of Tumusiime and the post mortem report. The
Court held
that the injury revealed by the report was consistent with the evidence of
Tumusiime, namely that the deceased
sustained a cut wound. The Court of Appeal
therefore agreed with the trial judge that Tumusiime's evidence was reliable. We
respectfully
agree with that conclusion. In the result, the two grounds have no
merit and must fail.
There is no merit in the appeal against
conviction and it is accordingly dismissed.
It is now convenient to advert to the supplementary ground of appeal that reads as follows; -
That the learned Justices of Appeal erred in law and occasioned a miscarriage of justice in not giving the appellant an opportunity to be heard on the question of mitigation of sentence.
We did not hear counsels' arguments on this ground. However earlier in
the same session, we considered arguments on a similar ground
of appeal in the
case of Philip Zahura Vs Uganda (Supreme Court, Criminal Appeal No.16 of
2004) and made a ruling that is applicable to all pending criminal appeals in
capital offences
convictions, namely that where we uphold a conviction in a
capital offence in which the accused has been sentenced to death, we would
make
an appropriate order as to sentence. Accordingly, as we did in Zahura appeal
(Supra), we exercise our discretion like we did in Zahura appeal and
postpone confirmation of the sentence in this case under Article 22 (1) of the
Constitution, until the determination of the pending constitutional
appeal against the decision of the Constitutional Court in Constitutional
Petition
No.6 of 2003.
Delivered at Mengo this 24th day of August 2005.
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
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/ug/cases/UGSC/2005/19.html
.PDF of original document
.RTF of original document