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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, J.J.S.C.)
CRIMINAL APPEAL NO. 28 OF 2003
BETWEEN
MWANGA
FRANCIS: ::::::::::
:::::::::: APPELLANT
AND
UGANDA: ::::::::::
:::::::::: RESPONDENT
(An appeal from the decision of the Court of Appeal, (Hon. Justices
G.M. Okello, C.N.B. Kitumba and C. B. Byamugisha, JJA.) Cr.Appeal
No. 88 of
1999, dated 11-04-03).
JUDGMENT OF THE COURT:
The appellant, Mwanga Francis was jointly indicted, tried and convicted
together with Samanya Yunus and Naganda Gloria for murder
contrary to sections
183 and 184 of the Penal Code Act by the High Court sitting at Jinja on
23rd July 1999, and sentenced to death. His appeal to the Court of
Appeal was dismissed. The appeal by the two with whom he had been
convicted was allowed by the Court of Appeal. He has now appealed to this
Court.
The brief facts of the case which were accepted
by the trial court were that on 4th April 1999, the deceased a
5 year of girl was left at home by her mother, early in the morning. At
around 8.00 a.m. Nakalema Florence (PW1) saw her in the company of the appellant
going towards
Kayunga Road. After sometime, the deceased's mother came and
inquired from PW1 whether she had seen the deceased. PW1 told her she
had seen
her walking with the appellant. The matter was reported to the
local council officials and later to Njeru Police Post. They started looking
for the deceased and the appellant. At about 3.00 p.m. on the same day,
the Police arrested the appellant. He denied any knowledge of the deceased or
her whereabouts. On 5 April he revealed to the Police that the deceased
was at the home of Samanya Yunus. When the Police was led by the
appellant to the home of Samanya Yunus they found there Nagadya
Gloria.
On 6th April 1999, the appellant led Police
Officers to two locations in Naminya Village where the remains of the deceased
were recovered.
On 7 April 1999, Dr. Nabangi of Jinja Hospital carried
out a postmortem examination on the body of the deceased. He found the
body to be of a female of apparent age of 5 years. He
observed that she had a slaughtered head. The neck, the right
thumb and the right second finger, private parts and the tongue were all
missing. He concluded that the cause of death was acute heamorrhagic
shock. He
compiled a report which was received in evidence as Exh. PL
On the
same day, the appellant made a confession statement before D/WAIP Aye
Fatuma, PW10, which the appellant repudiated at the trial. However, the
confession statement was admitted in evidence
at the trial without any
objection by the defence and was marked Exh. P7.
At the
trial after hearing the prosecution evidence, which included the confession
statement and the defence, the learned trial judge
rejected the defence and
convicted all the 3 accused persons and sentenced them to death. They appealed
to the Court of Appeal as
already stated. Appellant's appeal was dismissed
whilst the appeal of the two others with whom he had been charged and
convicted was allowed.
The appellant has appealed to the Supreme Court on the following grounds:
(1) That the learned Justices of the Court of Appeal erred in fact and in law when they upheld the finding of the learned trial judge that the appellant led the Police to the home of the 2nd appellant and also to recover the remains of the deceased where they had been buried and as a result came to a wrong decision.
(2) The learned Justices of the Court of Appeal erred in fact and in law when they failed to evaluate evidence as a whole and thus came to a wrong decision.
(3) That the learned Justices of the Court of Appeal erred in fact and in law to have upheld the finding that the appellant participated in the murder of the deceased.
There was a supplementary memorandum of Appeal which complained that:
(1) That the learned Justices of the Court 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.
At the hearing of this appeal, Mr.
Muguluma, counsel for the appellant argued ground one and abandoned the
second ground and submitted that ground 3 would be covered while
arguing ground one.
On the 1st ground, counsel submitted that the appellant
never led the Police to the locations where the remains of the deceased had
been buried and were found. He submitted that it was the
Police who knew where the remains were and therefore who led the appellant to
those locations where the remains
of the deceased were found.
At his
trial the appellant denied the offence of murder. He denied having confessed to
having murdered the deceased. He denied having
led the Police to where the
body and the head of the deceased were found. He stated that he was
tortured by Police who led him to locations where the body
and the head of the deceased were found. The learned trial judge rejected
the defence and accepted the prosecution evidence and the confession statement,
Exh. P7 and convicted him.
On appeal to the Court of Appeal, the
confession statement Exh. P7 allegedly made by the appellant who wanted
to cleanse evil spirits for a consideration of one million shillings and that on
that day he took the victim
and handed her to the native doctor, was held to
be inadmissible on the ground that failure by the trial
judge to inquire from the appellant whether that confession statement
attributed to him by prosecution was voluntarily made or not,
occasioned a miscarriage of justice.
We agree and would reiterate
what we started in the case of Chandia - vs - Uganda S.C. Cr. App. No. 23
of 2001, inter alia that " ." 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 has
conceded to its admissibility.
Unless the trial court ascertains from the accused person that he admits having
made the confession
statement voluntarily, the court ought to hold a trial
within - trial to determine its admissibility."
See also Sewankambo & Others - vs - Uganda, SC Cr. Appeal No. 33 of
2001, Kawoya Joseph - vs - Uganda SC. Cr. Appeal No. 50 of 1999,
Edward
Mawanda - vs - Uganda, SC Cr. Appeal No. 4 of 1999 and Kwoba - vs
- Uganda SC Cr. Appeal No. 2 of 2000."
Therefore, the
Justices of Appeal rightly, held that the confession statement ought not to have
been admitted in evidence.
The Justices of Appeal thereafter
rightly in our view proceeded to consider whether without the confession
statement the appellant's
conviction for the murder of the deceased would still
stand. They found that there were two sets of evidence which incriminated the
appellant with the offence of murder.
The first was the evidence of
PW1 who stated that she had seen the appellant walking with the deceased taking
the direction of Kayunga
Road in the morning hours. The appellant never denied
having been with the deceased on the material day in question though he
stated that he had left the child playing with other children. Like
the learned
trial judge, the Justices of Appeal found that PW1 was a truthful witness and
consequently held that the evidence of
PW1 makes the appellant the person that
was last seen with the deceased while she was still alive. We cannot fault the
conclusion
of the Justices of Appeal on this issue.
The second set of
evidence is the discovery of the remains of the deceased at locations pointed
out by the appellant although he (appellant) claimed that he was tortured
and that he was led by Police to where the remains of the deceased were
found. In view of the unchallenged evidence of Police Officers who testified as
PW2 and PW6, we cannot fault the Justices of Appeal's confirmation of the trial
judge's rejection of the appellant's claim that it
was the Police who led
him to the locations where the remains of the deceased were found.
The Justices of Appeal rightly upheld the trial judge's finding that it was the
appellant who led the Police to the
locations where the remains of the
deceased were found.
Although the appellant claimed in his defence that he was tortured by
Police, it is inconceivable that he could lead the Police to the two
locations where the remains of the deceased had been buried if he
never knew those locations. In view of this finding, we find that the Justices
of Appeal rightly relied on section 29A
of the Evidence Act which provides
that:
"Notwithstanding the provisions of sections 24 and 25 of this Act, when
any fact is deposed to as discovered in consequences of information
received
from a person accused of any offence, so much of such information, whether it
amounts to a confession or not, as relates
distinctly to the fact thereby
discovered, may be proved."
Therefore, the Justices of Appeal rightly upheld the appellant's conviction
by the High Court for the murder of the victim. In the circumstances, we
find no merit in the appeal against conviction. It is accordingly
dismissed.
On sentence, the appellant through M/s. Katende Ssempebwa & co Advocates, with the consent of counsel for the respondent applied and were allowed to file the supplementary grounds of appeal against sentence. The ground is founded on the judgment in constitutional petition No 6 of 2003, in which the constitutional court held that a law making death penalty mandatory was unconstitutional. The parties in that case have filed Notice of Appeal. We heard arguments on the same grounds of Appeal in Criminal Appeal No 16 of 2004,
Philip Zahura vs Uganda on the same grounds of
appeal they intended to raise in that appeal. We intimated that
we would make appropriate
orders in similar cases.
In this case we think
that it is appropriate to follow our decision in Philip Zahura vs Uganda
(supra), and exercise our discretion under article 22(1) of the
constitution, to postpone confirmation of the sentence imposed in
this case,
until the determination of the pending appeal against the decision of the
constitutional court in constitutional petition No. 6 of 2003.
Dated this: 21st day of December, 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
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