|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Uganda: Supreme Court |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA
JJ.S.C.
CRIMINAL APPEAL NO. 7 OF
2004
BETWEEN
BAGUMA
FRED::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
AND
UGANDA
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from judgment of the Court of Appeal (Okello, Engwau and Kitumba JJ.A) at Kampala, in Criminal Appeal No.29 of 2003 dated 5th October 2004).
JUDGMENT OF THE COURT.
This appeal arises from the judgment of the Court of Appeal upholding a High
Court decision in which Baguma Fred, the appellant, was
convicted for defilement
of Agnes Nalusiba, a girl below the age of 18 years. The case against the
appellant was that on 16 April
2001 he took Agnes to his house and had sexual
intercourse with her. The appellant denied the allegations and called evidence
in
defence. The trial turned on the credibility of Agnes and the appellant. The
learned trial judge was satisfied that Agnes told the
truth and believed her. He
rejected the appellant's defence and convicted him as indicted. The appellant
unsuccessfully appealed
to the Court of Appeal, hence this second
appeal.
Initially, the appeal to this Court was against both conviction and sentence. However, in the written submissions filed under r.63 of the Rules of this Court, Mr. Tumwiine, counsel for the appellant, expressly abandoned the appeal against the sentence and pursued one ground of appeal to the effect that
"the Court of Appeal erred in failing to re-evaluate the appellant's evidence and in confirming the conviction."
In the written submissions, learned counsel pointed out that at the trial the appellant had set up the defence of alibi and although he did not thereby assume any obligation to prove it, he called his wife to testify in its support. He criticized the trial judge for believing the uncorroborated evidence of Agnes in preference to the defence evidence. He also criticized the Court of Appeal for endorsing that preference without re-evaluating the defence evidence. Secondly, learned counsel submitted that the Court of Appeal erred in upholding the finding by the trial court that the fact of sexual intercourse had been proved when the medical evidence did not support that finding. Learned counsel stressed that if the Court of Appeal had properly re-evaluated the medical evidence it would have concluded that penetration, which is an essential ingredient of the offence of defilement, had not been proved beyond reasonable doubt.
In a written reply for the respondent, Ms Alice Komuhangi, Senior State
Attorney, submitted that the Justices of Appeal had correctly
re-evaluated the
prosecution evidence and rightly concluded, in agreement with the trial judge,
that sexual intercourse was proved,
notwithstanding medical evidence that no
injuries were found on the victim. She however, conceded that the Justices of
Appeal did
not re-evaluate the appellant's evidence but argued that this was
because counsel for the appellant had not raised the issue before
them. In the
alternative, she submitted that the failure to re-evaluate that evidence did not
occasion any miscarriage of justice
because the trial court had adequately
evaluated the evidence.
In the Court of Appeal, the ground of appeal
against conviction was -"The learned trial Judge erred in law and fact when
he failed to properly evaluate the evidence on record thereby coming to a
wrong conclusion which led to a miscarriage of justice. " However, the
record shows that at the hearing, counsel for the appellant addressed only one
aspect of the evidence; namely, the apparent
discrepancy between Agnes' evidence
that she had sex with the appellant and the medical evidence that there
was no sign that penetration had occurred. He did not point to any other
evidence that was not evaluated. In dealing with this ground
of appeal in their
judgment, the learned Justices of Appeal similarly confined themselves to the
question whether sexual intercourse
had been proved. They first noted that in
the trial of sexual offences the court should not act on uncorroborated evidence
of the
victim, but that after warning itself of the dangers of doing so, it may
convict on it if it is satisfied that her evidence is truthful.
They also
observed that proof of sexual intercourse need not be by medical
evidence. They went on to say -
" The learned trial judge found the victim a truthful witness and
believed her evidence. We think that even without
corroboration, the trial judge was justified to convict the
appellant on the sole testimony of the prosecutrix whom he found to
be truthful Mr. Kafuko-Ntuyo criticized the trial judge for
failure to give reason for preferring the evidence of the victim to the
medical
evidence. We think that this criticism is unfounded. The trial judge found the
medical evidence not credible because the opinion of
the doctor that there was no sign of penetration was based on his
finding that there were no injuries in her private parts. The trial judge
dismissed that opinion when he said that "injuries are not an essential
ingredient of a sexual offence." We agree. It is not necessary to
establish injuries in or around the victim's private parts to
prove penetration. The slightest penetration suffices to prove sexual
intercourse.
The trial judge, therefore, gave reason for preferring the victim's
evidence to the medical report. We find no merit on this ground.
It therefore
fails"
The appeal was thus decided solely on the narrow point that the medical evidence did not necessarily disprove sexual penetration and that therefore, the trial judge was justified to convict solely on the evidence of Agnes whom he found to be truthful. We agree that the medical evidence did not necessarily discredit Agnes' evidence. Its import was that no evidence of recent forced sexual intercourse was found on her body. Her hymen had been ruptured a long time earlier. However, the ground of appeal was much wider, and the appellant was entitled to the decision of the Court of Appeal on the material evidence as a whole including the defence evidence. We do not accept the submission by Ms Komuhangi that the Court of Appeal was justified or entitled to omit re-evaluation of the defence evidence because the appellant's counsel did not advert to it. First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. [See Pandya vs. R (1957) EA 336, Ruwala vs. R (1957) EA 570, Bogere Moses vs. Uganda Cr. App. No.1/97(SC), and Okethi Okale vs. Republic (1965) EA 555]. Lastly, having regard to the judgment of the trial court, we are also unable to accept Ms Komuhangi's alternative submission that the omission by the Court of Appeal did not occasion a miscarriage of justice. It is evident from the judgment of the learned trial judge that he relied virtually exclusively on the demeanours of witnesses to determine the credibility of the evidence. He said —
"I have carefully considered all the evidence on record and I have critically analysed the demeanours of all the prosecution witnesses and that of the accused and that of his wife, DW1.1 am satisfied that the victim told court the truth. She was straightforward and consistent. She never contradicted herself materially, if at all. The accused person and his wife however, never impressed me as truthful people. They struck me instead as mere liars, trying to protect each other. They were both shaky and kept shifting while testifying."
The learned trial judge went on to note that the appellant's wife testified that she had been sickly and that she had not seen who arrested her husband; and surmised
"This shows that her sickness must have been
serious and she could not have known whatever was happening in their home.
Therefore she was not in a position to vouch for her
husband's
actions."
With due respect, we think that the trial
judge's evaluation of the evidence was not
balanced. There were other
material aspects of the evidence
bearing on its credibility, which he should have
taken into consideration but did not. In our view, on
the principle enunciated in case of Bogere
Moses vs. Uganda (supra), this is a proper
case where the failure of the Court of Appeal
to re-evaluate evidence makes it incumbent on this Court to reevaluate
it.
The evidence in this case is in three segments. The first is Agnes' testimony
on which the case against the appellant solely rests,
as there was no other
evidence to corroborate hers on any material fact. The second concerns the
lead-up to the appellant's arrest,
and the third is the defence evidence. Agnes
who used to reside with her elder sister, Nanziri Nastanzia, testified that she
met
the appellant at about 6 p.m., on 16.4.01, after she failed to get a taxi to
take her to the village to visit her mother. The appellant invited
her to go with him, which she accepted to do but waited till nighttime.
She explained that she decided to go with him, rather than return
to her
sister's home about one mile away, because darkness was approaching. But that
explanation seems to be questionable because
Nanziri testified that their home
was less than a mile from the main road and that Agnes could not have failed to
return home at
around 7 p.m. Furthermore, Agnes testified at first that she
knew the appellant as a friend and later
she said that though she used to see the appellant at the (taxi) stage,
she did not know him personally before 16.4.01. The two versions cannot
both be true. If she meant that they became friends from 16.4.01,
then it does not seem credible to us that because of the approaching
darkness alone she would have accepted
an invitation to spend a night with a man unknown to her. Be
that as it may, she testified further that she
went with the appellant to a film hall at Bulenga first where they
stayed till 10 p.m., and then went to his home on a boda boda. At
the house they went to bed, had sex twice and slept. She
left at 6 a.m. and took a taxi to her mother's home.
After some days, she returned to her sister's home.
Three prosecution
witnesses; namely, Nanziri, Jumba Walusimbi and P/C Wakeda,
testified on the lead-up to the arrest. We are
unable to ascertain from their evidence the date of the
appellant's arrest. Nanziri said it was the day after Agnes disappeared from her
home. The arresting officer,
P/C Wakeda, said it was on the day after he
received a report from Nanziri on 19.4.01. The appellant said he was
arrested two days after he met Agnes on 16.4.01.What is certain, however, is
that the arrest
was at Nanziri's initiative prior to receiving any information,
let alone complaint from Agnes. Nanziri testified that on the date
of the
incident she sent Agnes to fetch water with one Nakyejwe but the latter returned
without Agnes. She was informed by one Jumba
that he saw Agnes at Mityana taxi
stage, and by school children that they saw Agnes at the appellant's home. As
she was anxious about
the disappearance of her young sister, she reported to the
LC Chairman who sent her to Bulenga Police Post with a letter. There,
she was
given policemen who came and arrested the appellant at his home. They searched
for Agnes in the house but did not find her.
After about three days, Agnes
returned home and said that she had been with "Nakibuuka's aunt" but said
nothing about staying a night
with the appellant. Furthermore, Nanziri testified
that she did not know the appellant before the case. P/C Wakeda testified that
on 19.4.01 at 9.30 p.m., he received a report of defilement from Nanziri. The
following day he went with two LDU's to arrest the
appellant. Nanziri and
the area chairman led him to the appellant's
home. They found the appellant in his house
at about 6.30 a.m., and arrested him. He never saw the victim.
The third witness was Jumba Walusimbi, an LC V Councilor. This witness does not
appear to be the Jumba who saw Agnes at the taxi stage and/or the
LC Chairman who gave Nanziri the letter to the police, since in his
evidence he did not refer to either incident. He testified that the police
came
to his home with Nanziri and informed him that they wanted to arrest the
appellant for illegally keeping a girl whose name he
did not know. He took them
to the appellant's home where they found the appellant but not the girl.
For his part the appellant testified that on 16.4.01, at about 6 p.m., while
returning from Kampala, he saw Agnes with one Robert at Kasasi stage. He
greeted them and went home. Later he went to play ludo at the trading center and
returned home at 8.30 p.m.
That night he stayed with his wife and two children.
Two days later at about 6.30 a.m., a policeman accompanied by LDU and Nanziri,
arrested him at his house and took him to the police post. Subsequently, he was
told that he was arrested for Agnes' disappearance.
He denied that Agnes ever
slept at his house and/or that he defiled her. There was no grudge between him
and Agnes. However, he had
previously broken-up a love relationship with
Nanziri, which did not please her. He thought Nanziri framed him up for that
reason.
The appellant's wife, Brenda Naluyinda, testified that throughout the
month of April 2001 she was at home all the time as she was
three months
pregnant and sickly. She said that the appellant had not brought Agnes to their
home on 16.4.01.
Several features in the evidence are unsatisfactory.
First, the circumstances surrounding the appellant's arrest
raise a number of unanswered questions. The day after Agnes
disappeared from home, Nanziri went to
report to the LC Chairman and the police. What she said to the former is
not on record, but according to P/C Wakeda she reported to the police a
case of defilement. Yet, according to Nanziri's own evidence, the only
information she had at that juncture was that Jumba had seen Agnes at a taxi
stage, and school children had seen her at the appellant's
home. Neither Jumba
nor the school children testified. Their information to Nanziri, therefore, was
hearsay. In particular, the information
of the school children was not
admissible to prove that Agnes had been at the appellant's house. More
significantly, however, two questions arise. One is: at
what time could the children have seen Agnes at the appellant's house, if
at all, since Agnes said she went there in the night at 10 p.m., and
left early
morning at 6 a.m.? The other question is: why did Nanziri rush to accuse
the appellant of defiling or keeping Agnes before she
had information of the defilement from the victim, or before attempting to
verify that she was
confined? At best she appears to have acted on mere
suspicion, and at worst to have acted on "a preconceived
idea"!
Secondly, it appears to us extraordinary that after she returned, Agnes did
not report to her elder sister what had befallen her at
the hands of the
appellant, which would be expected of a normal victim of such offence. She
testified that she later went to make
a statement to the police. She
probably did this on 25.4.01, the day when the police sent her for
medical examination. Even if it were assumed therefore, that
Agnes was shy or unwilling to disclose the incident
to her elder sister because she had been a willing
participant, that would not explain who or what persuaded her about ten days
later to disclose the incident
to the police and eventually to the court.
Equally, it is odd that having caused the appellant's arrest on suspicion that
he had
seduced her young sister, Nanziri did not seek to confirm her suspicion
from the supposed victim when she returned or thereafter till the
trial. She testified -
"When I asked PW1 where
(she) had been, she told me that she had
been with Nakibuuka's aunt. I never asked her
about staving with accused. I have never asked her
about accused up to now. PW1 has never told me about
Baguma (accused) and herself." (Emphasis
is added). In our view, this apparent indifference is, to put it mildly,
inconsistent with the anxiety to which she claimed
Agnes' disappearance put her.
It rather adds to our concern that her rush to make the unverified report
appears to be suspicious.
The other unsatisfactory feature in the evidence is
Nanziri's insistence that she did not know the appellant before the case. She
claimed -"I had never known accused before this case. I was
shown accused by other people and I did not know whether he knew
me or not. It is not true that he was my lover..." P/C Wakeda, however,
got a different impression. He testified
"It was the complainant who led me to the house of accused. Her name was one Nanziri. The door for accused was open. It was
around 6.30 a.m., and I saw accused in his house. The people
with whom I went to arrest him did not know him. It was Nanziri who pointed accused to me (Baguma). She identified him while we were inside the house. I asked Nanziri how she knew Baguma - it appeared she knew Baguma before." (Emphasis added). This evidence tends to show that Nanziri lied when she denied knowledge of, and relationship with the appellant prior to the incident.
Taking into consideration all the observations we have set out, we are inclined to the view that the assessment by the learned trial judge of the credibility of the evidence was wrong. We are mindful of the fact that the trial judge had the advantage of seeing and hearing the witnesses, which we did not. However, we reiterate the legal position, which was upheld by the East African Court of Appeal in Pandya vs. R (supra) and has been applied over time in other decisions of this Court and its predecessors, that -
" When the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on credibility of witnesses whom the court has not seen."
In such circumstances the appellate court should not shrink from overruling
the decision of the trial court, if upon carefully considering
the judgment it
concludes that it is wrong. In our view, the totality of the improbabilities,
inconsistencies and apparent falsehoods
in the evidence of the two
sisters, as well as the unanswered questions, in the instant
case, portrays the defence evidence in more plausible light than
the learned trial judge viewed it when he said in his judgment -
"I do
not see why the victim should frame the accused over the alleged lost love
between her elder sister and the accused." Considering the
deficiencies we have highlighted in the sisters'
testimonies, we are not able to share the
confidence of the learned trial judge that Agnes could not participate in a
frame-up if there was one. While we would
not go so far as to hold that the
appellant's claim of a frame-up was proved, we are of the firm view that it was
not ruled out.
We therefore hold that at the very least, the matters we
have pointed out raised reasonable doubt
in the prosecution case, and the appellant ought to have been
given the benefit of that doubt. In the result, we think that it is not safe to
uphold the conviction of the appellant. We allow the appeal, quash the
conviction and set aside the sentence imposed on him.
Before taking leave of this case, we are constrained to comment on a tendency of some trial judges to short-circuit evaluation of evidence by stereo-type lauding of the manner and demeanour of witnesses for the party that the trial judge has decided should win and damning those of the opposite party. An observation in the judgment that the witnesses were straightforward, unshaken and/or consistent, or were shaky, evasive, and/or shifty, to illustrate the manner and demeanour of the witnesses, is hardly impressive where it appears to be a mere recollection of what transpired during the hearing. It is more reliable and carries more weight with the appellate court, when it is accompanied by corresponding notes that the trial judge made contemporaneously with the recording of evidence as he/she heard and observed the witnesses.
DATED at Mengo the 1st day of November 2005
A.HO. 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.
THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT
MENGO
(CORAM: ODOKI, CJ; ODER; TSEKOOKO; KAROKORA;
AND KANYEIHAMBA; JJSC.)
CRIMINAL APPEAL
NO. 3 OF 2004 BETWEEN
NUUHU ASUMAN
KIBUUKA: :::::::::: ::::::::::
APPELLANT
VS
UGANDA: ::::::::::
:::::::::: RESPONDENT
(An appeal from the decision of the Court of Appeal at Kampala (Hon.
Justices S. G. Engwau, C. M. B. Kitumba and C. K.
Byamugisha) dated 10th June 2004, in Criminal Appeal
No. 23 of 2000).
JUDGMENT OF THE COURT ...
This is an appeal against the decision of the Court of
Appeal which dismissed the appellant's appeal against the conviction by
the High Court for the offence of kidnapping with intent to murder
contrary to
section 235 (l)(a) of the Penal Code Act and sentence of 20 years
imprisonment.
The brief facts of the case were as follows:
The appellant and Aida Nankya, PW1 lived in his home at Kazo as husband and wife despite the fact that they were related as uncle and niece, PW1 being a daughter of the appellant's brother. They eventually produced a baby boy, Ibrahim Kibuka, who was aged 6 months at the time he was kidnapped.
Mariam Nansubuga, PW4 who was the sister to PW1. knew
about the love affairs between the appellant and PW1 because when
the appellant and PW1 were still in love, the appellant used to send money to
PW1 through
her (PW4). However, in 1998, PW1 left the appellant's home and went
to live at Natete with her brother, Asumani Mukasa, PW3.
On the night
of 24th October 1998, at 8.00 p.m., the appellant sent for PW1 to go
and meet him. PW1 left her brother's home and went to meet the appellant,
but
she returned to her brother that same night. Later the same night at 11.00 p.m.
the appellant sent for her again. However, her
brother, PW3, this time requested
PW1 to take her child with her which was crying. PW1 took her child with her
when she went to meet
the appellant. On reaching where the appellant was, the
appellant requested to be allowed to hold the child as he used to do in the
past. PW1 handed the child to the appellant. The appellant did not return the
child to PW1. He, instead, entered a stationary special
hire vehicle which he
entered and was driven away together with the child. PW1 returned to PW3, crying
saying that her child had
been taken away by the appellant. PW3 advised her to
report to the authorities on the following day. On the following day, PW1
reported
the matter to her mother who advised that she should report to the
authorities. PW1 tried to trace the appellant at his home but
could not find
him. She reported to authorities and later to a Police Station. The appellant
was later arrested. The child, Ibrahim
Kibuka, has never been seen alive again.
The appellant was indicted with kidnapping with intent to murder.
In
his defence, the appellant denied the charge and pleaded the defence of alibi to
the effect that at the material time he was at
the Mosque between 7.00 p.m. and
10.00 p.m. praying. He stated that after his prayer, he went to the home of
Yusuf Kurumba DW2, and
later went to his own home and slept till the following
day. He denied having indulged in an incestuous relationship with PW1. He
called
DW2 to support his alibi.
The learned trial judge believed the
prosecution evidence, rejected the defence of alibi, convicted and sentenced him
as already stated.
His appeal to the Court of Appeal was dismissed
and hence this appeal. The appellant has filed the following four grounds of
appeal.
(7) That the learned Justices of Appeal erred in law and fact when they found that it is the appellant who kidnapped pw1's child;
(2) That the learned Justices of Appeal erred in law and fact when they failed to properly re-evaluate all the evidence before it and thereby erroneously confirmed the conviction of the appellant; (3) That the learned Justices of Appeal erred in law and fact on the issue of alibi and as a result arrived at a wrong decision; (4) That the sentence of 20 years was harsh and excessive in the circumstances.
Mr. Ojokol, counsel for the appellant, in written submissions argued grounds 1 and 2 together. He submitted that the offence of kidnapping with intent to murder comprises of two elements; namely, the prohibited conduct of or taking away by force or fraud and secondly the specific intent to commit an offence of murder. He cited the cases of Mukoome Moses Bulo - vs - Uganda Cr. Appeal No. 12 of 1995 (SC) and Ibrahim Bilal - vs - Uganda, Cr. Appeal No. 5 of 1995 (SC) (unreported) for the above proposition.
Counsel submitted that although the Court of Appeal after reviewing the
evidence on record concluded that the learned trial
judge properly evaluated the
evidence and came to the right conclusion that it was the appellant who
kidnapped PW1's child, it was his contention that the Justices
of Appeal never
properly directed themselves on the law and evidence in respect of the charge of
kidnapping with intent to murder.
He cited the cases of
Abbasi & Anor - vs -Uganda, Cr. Appeal No. 10 of 1995
(SC) and Bogere Charles - vs -Uganda, Cr. Appeal No. 10 of 1997
(SC) (unreported) for the proposition that the first
appellate Court has a duty to properly scrutinise and re-evaluate the evidence
of both the prosecution
and the defence. He concluded that if it had done so, it
would have found that the evidence of identification of the appellant by
PW1 did
not rule out the possibility of mistaken identity or even of a frame-up. Counsel
cited section 6(1)(a) of the Judicature
Act and the cases of Kifamunte
Henry - vs - Uganda, Cr. Appeal No. 10 of 1997 (SC) and Bogere
Moses & Kamba - vs - Uganda Cr. Appeal No. 1 of 1997, (SC)
(unreported), for the proposition that except in the clearest of cases,
this Court as a second appellate court, is not required to
re-evaluate the
evidence like a first appellate court. Counsel contended that the instant case
was one of the clearest of cases which
makes it incumbent upon this Court to
re-evaluate the evidence. He submitted that in the instant case PW1 was a single
identifying
witness who claimed to have identified the appellant when the
appellant took away the child from her (PW1) and therefore, her evidence
required corroboration.
Counsel submitted that there was no witness
who corroborated PW1's evidence to the effect that the appellant kidnapped the
child.
He submitted that PW3's evidence to the effect that when she went away at
night with the child and returned without it, crying that
the appellant had
taken it from her could not corroborate PW1's evidence on reliance
on section 155 of the Evidence Act, since no Police reports were produced to
court in evidence.
On the issue of specific intent to have the victim
murdered, counsel submitted that it was essential for prosecution to prove the
intention of the appellant to murder. Counsel contended that the appellant was
not placed in a position whereby he had to rebut the
presumption. He further
contended that the intention could be presumed if the victim had not been seen
or heard of within a period
of six months or more. This presumption is provided
for under section 235(2) of the Penal Code Act as
follows:
"Where a person so kidnapped or detained is thereafter
not seen or heard of within a period of six months or more, the accused person
shall be presumed to have had the intention and knowledge
stipulated in paragraph (a) and (b) of subsection
(1)."
Counsel cited the case of Godfrey Tinkamarirwe
& Anor - vs - Uganda, Cr. Appeal No. 5 of 1986 (SC) for the
proposition that in law on a charge of kidnapping with intent to murder, it is
necessary for the prosecution to establish
that at the time of kidnapping there
was a contemporaneous intent that the victim be murdered or put in danger of
being murdered.
Counsel submitted that in the case of
Mukombe Moses Bulo (supra) the court
held that sub-section (2) of section 235 of the Penal Code Act casts a burden on
the appellant to prove that he
did not have that intention. The appellant in
that case failed to rebut the presumption. Counsel submitted that in that case
the
charge had made reference to sub-section (2) of section 235 of the Penal
Code Act, unlike in the instant case where sub-section (2)
was omitted in the
charge.
In conclusion, counsel submitted that the offence of kidnapping
with intent to murder was not proved and therefore the Court of Appeal erred to
confirm the conviction
and sentence against the appellant. Therefore, he prayed
that grounds 1 and 2 should succeed.
Ms. Alice Komuhangi, Senior
State Attorney supported the Court of Appeal's decision to confirm the
appellant's conviction and sentence
for the offence of kidnapping with intent to
murder.
She submitted that the Justices of Appeal properly directed
their minds to the law and evidence in respect of the charge of kidnapping
with
intent to murder contrary to section 235 (l)(a) of the Penal Code Act. She was
in agreement with counsel for appellant regarding
the ingredients which
constitute the offence charged. Counsel also agreed with counsel for the
appellant that the Court of Appeal
as a first appellate court had a duty to
re-evaluate the evidence for both the prosecution and the defence but contended
that the
Court of Appeal in the instant case had properly evaluated the evidence
and arrived at the right conclusion.
Turning to the evidence of PW3, the learned Senior State Attorney submitted
that the prosecution evidence was not that he saw the
appellant take the child,
but that he saw PW1 leave his house with the child going outside where she had
been called and only saw
her coming back, crying and reporting that the
appellant had taken away the child from her.
Learned Senior State Attorney submitted that the Justices of Appeal rightly
applied section 155 of the Evidence Act when they held
that PW3's evidence
corroborated PW1's evidence in as far as identification of the appellant was
concerned. She submitted that since
PW3 was in court and gave evidence on oath
and was cross-examined, the production of police report was not necessary.
Counsel submitted
that throughout the trial, the learned trial judge found and
the Justices of Appeal agreed that although PW1 was a single identifying
witness, she was truthful and credible whose evidence was corroborated by other
pieces of evidence.
On the issue of specific intent to cause the
victim to be murdered, and omission of sub-section 2 of section 235, the Senior
State
Attorney's reply was that it was not necessary to include that sub-section
in the Indictment. She cited section 22 of the Trial on
Indictment Decree (TID)
which clearly stipulate what should be contained in the
Indictment.
She submitted that whatever was contained in the
particulars of the offence was good enough to sufficiently explain to the
appellant
of what he was charged with. She submitted that sub-section (2) of
section 235 of the Penal Code Act is an explanation of how the
intention in
sub-section (1) thereof can be presumed. She submitted that in the instant case
it was rightly presumed.
We agree with the submissions of counsel for the appellant that the 1st appellate court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and defence. See Abasi & Anor -vs - Uganda, (supra) and Bogere Charles - vs - Uganda, (supra).
However, we do not agree with counsel's submission that the Justices of
Appeal never properly scrutinised and re-evaluated the evidence
of both the
prosecution and the defence.
The learned justices of Appeal scrutinised and re-evaluated the evidence of
both sides and considered how the learned trial judge
had treated the evidence
of PW1 as a single identifying witness during conditions which were not
favourable for correct identification.
They never faulted her finding that she
was satisfied that PW1 knew the appellant before as they were related and as she
had met
him (appellant) that night. They did not fault her finding of her
observation as to her demeanour and truthfulness.
In our view, the Justices of Appeal rightly found that PW3's evidence
corroborated PW1's evidence that it was the appellant who kidnapped
the child.
They found that PW1's statement to PW3 that it was the appellant who kidnapped
the child was made at about the time the
fact of kidnapping the child took place
and therefore satisfied the provisions of section 155 of the Evidence Act, which
provides
as follows:
"155. In order to
corroborate the testimony of a witness, any former statement made
by such witness relating to the same fact at or
about the time when the fact took place, or before
any authority legally competent to investigate the fact, may be
proved."
We reiterate what we stated in the case of
Ndaula John - vs - Uganda (SC) Cr. Appeal No. 22 of 2000 that
-
"In Uganda, a former statement made by a witness, which
satisfies the conditions stipulated in section 155 of the Evidence Act, is
provable as corroboration of the testimony of that
witness. The conditions stipulated in the section are that the former statement
must have been made either (a) at or about the time
when the fact took place or (b) before any authority
legally competent to investigate the fact. The statement made by
the complainant in the instant case to witnesses who answered her alarm should
have been viewed in that context."
Therefore, we agree with the Justices of Appeal that in the
instant case the report by PW1 when she returned soon after the time the child
was taken away from her, crying and reported to PW3 that her child had been
taken away by the appellant, satisfies the provisions
of section 155 of the
Evidence Act is provable against the appellant.
The Justices of Appeal further and rightly in our opinion found that the
evidence that PW4 was substantially truthful. They rightly,
upheld the findings
of the learned trial judge that PW4 knew about the love affairs that existed
between the appellant and PW1 as
she (PW4) was the conduit through whom the
appellant sent money to assist PW1.
The issue of specific intent to cause the victim to be murdered was seriously
argued by Mr. Ojakol in his submissions. The learned
trial judge had addressed
the issue in her judgment in the following passage thus:
"The
fact that the accused was the father of the abducted child was
neither here nor there particularly because section 235(2) of the
Penal Code Act stipulates that the intention to murder at the time of taking
away, can be implied if the victim remains unaccounted for, for
six months or over. It is not in dispute therefore that the accused had a
contemporaneous
intent to murder since all evidence indicate that the victim has
never been recovered to-date. Reliance on section 235(2) of the
Penal Code Act does not burden the prosecution with any further
need to prove the intention for the offence. Relying on section 235(2) of the
Penal Code Act,
the accused is assumed to have had the desired intention to
commit the offence."
The learned trial judge found the accused guilty and convicted him for
kidnapping with intent to murder contrary to section 235(1 )(2)
of the Penal
Code Act.
We think that although the prosecution omitted to mention
sub-section (2) of section 235 of the Penal Code Act (supra) in the statement
of
the offence ,the omission did not occasion a miscarriage of justice nor did it
prejudice the appellant. The particulars of the offence must have
conveyed to the appellant the offence for which he was tried. The
particulars of
the offence in this case took care of that omission when it
stated:
"Nuuhu Asumani on the night of
24th/25th of October 1998, at Natete in
Kampala District forcefully took away Ibrahim Kibuka
aged about 6 months from its mother against her will, with intent
that such a child may be murdered or may be so
disposed of as to be in danger of being
murdered."
Be that as it may, we do not agree with the
submission of the learned Senior State Attorney that it was not necessary to
include sub-section
(2) of section 235 of the Penal Code Act in the statement of
the offence. In our view, the inclusion of the sub-section is necessary
for the
purpose of informing the appellant the relevant ingredient which the prosecution
must prove in order to secure a conviction
against the accused.
We
think that sub-section (2) of section 235 of the Penal Code Act is an
explanation of how the intention in sub-section (1) thereof,
can be presumed. In
our view, the prosecution evidence, brought out the fact that since its kidnap
in October 1998, the child has
never been seen or heard of. Therefore, the
intention to murder was rightly presumed and proved.
Consequently, we
cannot fault the Justices of Appeal for confirming the findings of the learned
trial judge. In the result, we find
no merit in grounds 1 and
2.
Ground 3 raised the issue of whether the Justices of Appeal erred
in law and fact on the defence of alibi. The law on the defence
of alibi is well
settled and is that — "An accused person who raises a defence of
alibi does not have a burden of proving it. " See
Sekitoleko -vs - Uganda 1967 EA 531, R -vs -Johnson [1961] ALLER 967,
Leonard Aniseth - vs - Republic [1963 EA 206.
The mode of evaluation of evidence in case where the accused raises an alibi in his defence was settled by this court in the case of Moses Bogere & Another -vs - Uganda (SC) Cr. Appeal No. 1 of 1997. There we stated:
"Where the prosecution adduces evidence showing that the accused person
was at the scene of crime, and the defence not only denies
it, but
adduces the evidence, showing that the accused person was elsewhere at the
material time, it is incumbent on the court to evaluate
both versions judicially and give reasons why one and not the
other version is accepted."
The learned Justices of Appeal
reviewed all the evidence both for the prosecution and the appellant and
concurred with the learned
trial judge in rejecting the appellant's alibi. We
agree with the conclusion of the two courts. Mr. Ojakol, counsel for the
appellant
has not persuaded us that either court erred.
Therefore, grounds 3 fails.
Ground 4 raised the issue of right of Appeal against severity of sentence of
imprisonment to this Court.
Section 5 of the Judicature Act deals with appeals to the Supreme Court in
Criminal matters. Its sub-section 3 specifically debars
appeals to this Court
against severity of sentence. It provides that:
"In the case of
an appeal against a sentence and an order other than one fixed by
law, the accused person may appeal to the Supreme Court against the sentence or
order, on a matter of law, not including the severity
of the
sentence."
The sentence of 20 years imprisonment is not
unlawful. The ground must therefore fail.
All in all, we find no merit in this appeal. It is accordingly
dismissed.
Dated at Mengo this: 4th day of: November, 2005.
B.J ODOKI
CHIEF JUSTICE
A. O. ODER
JUSTICE OF THE SUPREME
COURT
J.W. N. TSEKOOKO
JUSTICE OF THE
SUPREME COURT
A. N. KAROKORA
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/2005/24.html
.PDF of original document
.RTF of original document