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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, AND MULENGA,
KANYEIHAMBA, JJ.SC.)
CRIMINAL APPEAL NO. 17 OF 2004
OFWONO
SAMUEL ::::::::::::::::::: VS ::::::::::: UGANDA
(An appeal from the judgment of the Court of Appeal at Kampala (Okello,
Eugwau and Kitumba, JJ.A) in Criminal Appeal No. 220 of 2002
dated
8th November,
2004)
JUDGMENT OF THE COURT
This is a second appeal against the decision of the Court of Appeal
dismissing the appellant's appeal against conviction and sentence
to death by
High Court for robbery with aggravation, contrary to sections 285 and 286 (2) of
the Penal Code Act.
The background to the appeal briefly is that on 5/11/99, at about 10.30 p.m at Namataba Zone in Kampala, one Kabaho Nathan (PW 2) and his wife Kabaho Windred (PW 3) returned home in a hired taxi from their shop. When they were at the gate of their house, gunmen emerged, put them at gunpoint and demanded for money. PW 3 surrendered to one of the robbers her handbag containing Shs:
800,000/=. The robbers fired a gun, smashing the windscreen of the taxi car.
There was electricity light from security lights of the
house. PW 2 and PW 3
were able to see the robbers. PW 2 and PW 3 then went into hiding in the banana
plantation near the house. One
Kityo, shot by the robbers, was subsequently
admitted in Mulago Hospital casualty ward. During the same night the appellant
was found
lying down on the compound of someone near the scene of the robbery.
The appellant had bullet wounds on the arm and in the chest.
When No. 28416 D/C
Charles Kemba, (PW5) asked him if he knew how he had sustained the injuries, he
explained that his fellow robbers
had shot him. PW5 took him to Mulago Hospital:
When PW2 and PW 3 went to visit one Kityo at the Hospital they found that the
appellant
had also been admitted in the same ward. Both witnesses saw and
recognized the appellant as one of those who had robbed them. On
16/11/1999,
W/D/IP Balidawa Margaret (PW 4) recorded a charge and caution statement from the
appellant. In the statement, the appellant
admitted participation in the
robbery, but during the trial he retracted and repudiated his confession. After
holding a trial within
a trial, the judge admitted the confession statement as
having been made voluntary and as true. The statement was admitted as exhibit
P.3.
In his defence, the appellant denied participation in the
offence. He said that he was shot by unknown people as he was returning
to his
brother's house. The learned trial judge rejected the appellant's defence, and
believed the prosecution evidence, convicting
the appellant as indicted. His
appeal to the Court of Appeal was unsuccessful. Hence this appeal, based on two
grounds, which are
firstly, that the learned Justices of Appeal erred in law and
fact when they upheld a conviction based on an unsatisfactory confession,
and
secondly that the learned Justices of Appeal erred in law and fact when they
failed to judicially evaluate the evidence on record
thereby coming to a wrong
decision.
Mr. Noah Sekabojja learned counsel for the appellant said that he would argue
both grounds of appeal together, but in essence his
argument revolved only
around the first ground. He contended that, the appellant's evidence in the
trial within the trial shows that
there was no confession in the real sense.
That evidence shows that the appellant was illerate. He said that he was told to
sign
the statement before he could be taken for treatment. Policemen were not
the ones guarding him at Mulago. He was a mechanic but he
had never gone to
school. He gained experience on the job. He knew how to write his name although
he had never gone to school. Learned
counsel submitted that the confession was
not made by the appellant because he did not know that it was a
confession.
Ms. Kagezi, State Attorney, supported the conviction. She
submitted that there was no merit in the appellants' complaint against Court
of
Appeals upholding the finding that the confessions was corroborated by medical
evidence. The wounds found on him amounted to such
corroboration. The medical
report was 10 days old, having been made on 17th November
1999.
In our opinion, the learned Justices of Appeal made a thorough
evaluation of the evidence of the circumstances of the appellant's
confession
and other evidence in the case as a whole and reached their own conclusion
upholding the guilt of the appellant. Regarding
the appellant's confession
statement, the learned Justices of Appeal referred to the appellant's confession
that he and his colleagues
planned the robbery. They stopped PW 2 and PW 3 at
the gate of their house and robbed them of the bag containing money. After the
robbery someone arrested the appellant. Patrick shot at the person who had
arrested the appellant and they had a struggle. In the
process the appellant was
accidentally shot in the leg. He had to be carried by his fellow robbers. When
his fellow robber, Kiwa,
was tired of lifting him up, the other robber, Patrick,
shot the appellant in the abdomen and was left for dead. The learned trial
judge
found that the appellant's confession was true. Relying on the authority of
Tuwamoui Vs Uganda (1962) EA. 84 the learned Justices of Appeal
agreed with the learned trial judge that on the confession alone without
corroboration, the appellant
could be convicted. The trial Court and the Court
of Appeal found that the evidence of PW 2 and PW 3 corroborated the appellant's
confession. We are unable to fault both courts in this regard.
The learned Justices of Appeal also found that apart from the aspect of the
number of pistol/s that were used during the robbery and
recognition of the
appellant at the scene of crime, PW 2 and PW3's testimony corroborated the
appellant's commission of the crime.
Both witnesses testified that robbers who
had a pistol attacked them at their gate. When the pistol was fired the
windscreen was
smashed. The robbers demanded money at gunpoint and PW 3
surrendered her bag containing the money.
The learned Justices of
Appeal found further corroboration of the appellant's confession in the medical
evidence by Dr. Taddeus Birungi,
PW 1 and the medical report PE1. This evidence
showed that the appellant had a fracture of the right leg, and was a larcerated
wound
on the abdomen. The wounds were about 10 days old. The medical report was
made on the 17th November 1999, which was about twelve days after the
robbery. The injuries described in the medical report tallied with what the
appellant stated in his confession. The appellant stated that Patrick had
accidentally shot him on the leg. Subsequently because
Kiwa was tired of
carrying him, Patrick shot him in the abdomen leaving him for dead. The learned
trial judge was therefore right
to base the appellant's conviction on his
confession, which was made voluntarily, true and was corroborated. The learned
Justices
of Appeal, rightly so in our view upheld this finding. There was ample
evidence to support his conviction.
In the circumstances, the two grounds of appeal must fail and we find no
merit in the appeal. It is accordingly dismissed.
Regarding sentence,
the appellant in this case, along with appellants in other cases listed for
hearing in the same session, who had
been sentenced to death, filed
supplementary grounds of appeal maintaining that the Court of Appeal erred in
upholding the death
sentence as mandatory. The supplementary ground was based on
the decision of the Constitutional Court No. 6 of 2003 in which it was
held that
the law rendering death sentence mandatory was unconstitutional. We heard full
arguments of the supplementary ground in
Criminal Appeal No. 16 of 2004.
Phillip Zahura Vs. Uganda and intimated that our holding thereon would
be applied to other appeals in which the sentence of death had been imposed as a
mandatory
sentence. Accordingly we order as we did in the Philip Zahura case
that in exercise of our discretion under Article 22 (1) of the
Constitution we
postponed confirmation of the sentence until disposal/determination of the
Appeal against decision of the Constitutional
Court in No. 6 of 2003,
Constitutional Petition.
Dated at Mengo this 21st day of December 2005
A.H.O. ODER
JUSTICE OF THE SUPREME COURT
J. W.N. TSEKOKO,
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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