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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI CJ., ODER,TSEKOOKO, KAROKORA AND KANYEIHAMBA, JJ.S.C)
CRIMINAL APPEAL No.41 OF 2003.
BETWEEN
1.OTULE ATEKER CHARLES ]
APPELLANTS
2.ISABIRYE
PETER ]
AND
UGANDA RESPONDENT
[An appeal from the decision of the Court of Appeal at Kampala (Enqwau, Twinomujuni and Kitumba, JJ.A) dated 2nd day of December, 2003 in Criminal Appeal No.163 of 2001]
REASONS FOR THE JUDGMENT OF THE COURT
This is a second appeal arising from the decision of the Court of Appeal
which confirmed the appellants' conviction by the High Court,
at Mbale, for
murder. On 3 0/11/2 004 we heard and dismissed the appeal and promised to give
our reasons later. We now give those
reasons.
The facts of
the case are simple.
The appellants, Otule Ateker Charles (A1) and
Isabirye Peter (A2) are brothers. They both lived with the deceased,
Kasakya
Zubairi, in Bubulange village, Buseta Subcounty, in Pallisa
District. At some point A2 migrated to another village called
Namukai.
On the night of 17th - 18th March, 1999 while the
deceased and his wife, Jamila Kantono, (PW1) were sleeping, one Henry Kifumbo,
an LC1 Chairman of their village,
called out the name of the deceased from
outside. Upon realising that it was the Chairman calling, the deceased opened
the door of
his house. Kifumbo entered the house but declined to take a seat
that was offered by the deceased. Instead he told the deceased that
a resident
on the village had had a problem and that fellow villagers had refused to answer
his alarm and yet there was need for
help. Kifumbo did not disclose what the
problem was nor who the resident was. The deceased left his home in the company
of Kifumbo
and never returned home that night.
In the
morning PW1 decided to look for the deceased in the home of Kifumbo. There she
learnt that the deceased had in fact been taken
to Buseta subcounty
Headquarters. PW1 went there in search of the deceased. On the way she learnt
that the deceased was one of the
people suspected to have assaulted one Gondoko,
a brother of the two appellants. The deceased was by then detained in the cells
at
Buseta subcounty Headquarters. Upon arrival she found many people outside,
some of whom were armed with Pangas or sticks. The deceased
was taken out of the
cell so that he could be escorted to Tirinyi Police Station by one Magino, a
Defence Secretary of the LC I.
Magino carried the deceased on a bicycle.
Strangely the two appellants also followed while riding a bicycle peddled by A1.
Soon after,
Magino and the deceased returned again followed by the two
appellants. At 10.00 a.m, a brother of the two appellants called Otule
appeared
at the scene while armed with a panga and a metallic rod, with which he hit the
deceased. The deceased fell to the ground.
When the deceased attempted to get
up, the two appellants set upon him and cut him many times in the face, at the
back and on the
head using pangas, while asserting that he had assaulted
Gondoko. PW1 was then standing about only 10 paces away from where the deceased
was being assaulted. Because the appellants were armed with and were welding
pangas, people who were around feared to intervene to
save the
deceased.
During the process of the cutting of the deceased by the appellants, PW1 became frightened. So she retreated into a disused butchery and continued to watch the cutting of the deceased through a window on the wall of that butchery. The crowd left the scene. So did the appellants.
Later a Mr. Labani Kirya, the LC5 Chairman of Pallisa District, arrived
at the scene in his car. The chairman took the deceased to
Pallisa Hospital. PW1
went to the hospital where she found the deceased had already died and the body
was in Pallisa hospital mortuary.
She identified the body to a doctor who
carried out the postmortem examination. She reported the appellants to the
police as the
people who cut and killed the deceased.
At the trial both appellants gave sworn evidence in which each denied the offence. According to A1 on the night of 17th March, 1999 while he was at his home he learnt that his brother called Odidi Clement who lived 2Km away had been attacked. He went to Odidi's home where he discovered that Odidi had fled from his home to a neighbour's home where A1 traced him. Odidi who had sustained a cut wound was unconscious. A1 was assisted by three other people to take Odidi to Buseta Health Centre whereat Odidi was treated, before he regained consciousness. Odidi informed A1 that the deceased was among the people who broke into his house and assaulted him. Later A1 reported the assault of Odidi to LCs and DISO. In course of the day, A1 learnt that the deceased had been arrested and had been taken to Buseta subcounty Headquarters. A1 visited Buseta Headquarters and discovered that the deceased had been detained, inside a cell.
A1 proceeded to report the assault of Odidi to Tirinyi Police Station
where he was authorised to take Odidi to Pallisa Hospital. While
he was at
Pallisa Hospital attending to Odidi, the deceased was taken there 3 hours later
and died later the same day. A1 was
arrested on 13/7/1999 from his
home.
On the other hand, A2 testified that he lived in
Nanoko village, Tirinyi Subcounty. He denied
knowledge of PW1 and of the deceased. He denied the offence and raised an alibi
to the effect that on 12/3/1999 he was
admitted in Ngora Hospital where he
stayed till 29/3/1999. In other words he was away from the scene of crime at the
material time. He was arrested by Police on a certain
night at 4.00 a.m.
The trial judge believed the prosecution evidence and disbelieved the
appellants whom she described as liars. She found PW1 a credible
witness who
could not be mistaken about the identification of both of the appellants at the
scene of crime. The judge convicted them
and sentenced each of them to death.
Their appeal to the Court of Appeal was dismissed. They have now
appealed to
this Court. A1's memorandum of Appeal
contains two grounds while that of A2 contains only one ground. Mr. Kunya,
counsel for A1 argued the two
grounds separately. Mr. Mubiru argued
A2's ground of appeal. We will first consider A1's
appeal.
The first ground for A1 is formulated as follows:
The learned Justices of Appeal erred in law and fact in upholding
the conviction of the appellants on the basis of the unreliable
and
uncorroborated evidence of the single identifying prosecution
witness.
Mr. Kunya, for A1, submitted that the evidence of Kantono, PW1, the only
identifying witness was unreliable and was not corroborated.
He contended that
the trial judge neither warned herself nor the assessors of the possibility of
mistaken identification of A1 by
Kantono. That evidence on record shows that
there was a crowd of people and therefore PW1 must have had to crane her neck in
order
to see what was taking place. He contended that the Court of Appeal did
not properly consider the negative factors in this case.
Mr. Wagona, PSA, supported the decisions of the two courts below. He
submitted that the trial judge was alive to the issue of identification
and
argued that there was no possibility of mistaken identification of the two
appellants by PW1. In effect he argued that except
for the three brothers, the
crowd was not violent and there is no evidence that any other
person assaulted the deceased,
therefore the two courts were correct in relying
on the evidence of PW1.
The first ground of appeal in this Court was in effect the first ground
of appeal in the court below. In that court Mr. Wandera Ogalo
who represented
the appellants in effect made submissions similar to those made before us. He
there contended that circumstances
were not ideal for correct identification.
That the mob could have obstructed Kantono's view of what took place. So there
was a possibility
of mistaken identifications of the two
appellants.
In their judgment the Justices of Appeal stated
this
in respect of identification-
"We have in particular considered the evidence of PW1, who was the only identifying witness. We are satisfied that her evidence could not be anything but the truth. All requirements of proper conditions for correct identification were present. The offence was committed in broad day light at 10.00 a.m. The appellants were villagements of the witness (PW1) and had been known to her for a long time. The incident itself took a reasonable time to enable PW1 determine who had assaulted her husband, and who had not participated.
The witness herself was only
10 paces from the scene of the assault. Even when she got
frightened and hid herself, it was in an abandoned butchery where she could
still see what was going on. We think that her evidence put the appellants at
the scene of the crime. We also think that the alibi
of the appellants were
correctly rejected."
There are some features in the trial judge's summing up and judgment that
left a lot to be desired.
In summing up to the assessors in respect
of A1 the judge was rather unfair. She suggested that A1 was a liar because he
denied even
the most obvious things. She did not in her summing up direct the
assessors about the need for corroboration of PW1's evidence since
PW1 was a
single identifying witness. Neither did she caution herself in her judgment on
the need for such corroboration of the evidence
of PW1.
Be that as it may, we have reviewed the evidence and have considered the submissions of both counsel for the appellant and of the learned Principal State Attorney. We are unable to accept Mr. Kunya's speculation that PW1 had to crane her neck in order to observe what took place. There is no evidence to support this.
We are satisfied that the learned Justices of Appeal properly evaluated
the evidence and arrived at the
correct conclusions on
the facts. If any corroboration was required it was
provided by A1 who in his own sworn evidence stated that he was at the place
where the
deceased was on the day the deceased was assaulted. A1's explanation
as to why he visited the scene at 7.30 a.m on the fateful day
of (18/3/1999) and
by coincidence found a crowd of people there is incredible and not plausible.
Once PW1 who was at the scene of
crime was believed as a truthful witness, on
the facts of this case, it was inevitable that the guilt of the two appellants
had been
established beyond reasonable doubt. Therefore A1's first ground must
fail. These conclusions would in fact dispose of the appeal.
The second ground of appeal for A1 states:
The learned
Justices of Appeal erred in law and fact when they failed to subject the
evidence on record to a thorough evaluation and
hence reached an erroneous
decision.
Mr. Henry Kunya for A1 again contended, in respect of this ground, that
both the Court of Appeal and the trial judge failed to evaluate
evidence
especially on the arrest and the investigation of the case in as much as A1 was
arrested long after PW1 had reported the
murder to the police. Such unexplained
delays should be held in favour of A1's innocence. Mr. Wagona for the respondent
conceded
that there appear to be a mistake in the date of the arrest of A1 but
that that is not fatal. However the learned Principal State
Attorney submitted,
on credibility of prosecution evidence, that the trial judge found PW1 a
truthful witness as opposed to the two
appellants whom he found to be liars. The
trial judge saw PW1 and the appellants in the witness box and preferred to
believe PW1.
The Court of Appeal upheld the findings of the trial judge. We
think that the two courts were correct. Ground 2 must
fail.
The only ground for A2 states that:
The learned Justices
of Appeal erred in law when they decided that the contradictions and
inconsistencies in the prosecution evidence
were minor.
When arguing the ground, Mr. Mubiru, counsel for A2, contended that the Court of Appeal did not evaluate the evidence properly and so it did not reach proper conclusions on inconsistencies and various defects. That the courts below only relied on the truth-fullness of PW1 to found a case against A2. He pointed out differences in respect of the date of the death of the deceased as reflected in the evidence of the prosecution and on the indictment; he also pointed out lack of date of A2's arrest.
As indicated earlier when discussing A1's grounds of appeal, Mr. Vincent
Wagona for the respondent supported the decisions of the
two courts below,
although he conceded lack of evidence concerning the arrest of A2. He argued
that the evidence of Kantono placed
A2 at the scene of
crime.
On the date of death, Kantono's evidence is
definitive. The deceased left home on the night of 17/3/1999. On the following
i.e; 18/3/1999,
he was assaulted and cut with pangas by the appellants in her
presence. He was taken to Pallisa Hospital where he died the same day.
A1
confirmed the death in his evidence and therefore corroborates
PW.1.
We note that the learned judge did not properly evaluate A2's evidence of
alibi especially as regards A2's claim that between 12/3/99
and 29/3/1999 he was
hospitalised in Ngora Hospital. We do not accept the view of the learned trial
judge that the fact that A2's
wife never visited him in hospital is evidence
against A2. However the Court of Appeal held that the trial Judge acted properly
in
relying on the evidence of PW1 whom the judge found to be truthful. The Court
further agreed with the trial judge in rejecting the
alibi. These are two
concurrent findings by the two courts on reliability of PW1 and the rejection of
the appellants' alibi. In spite
of the said lapses by the trial judge, we are
satisfied that both courts were correct in relying on the evidence of PW1. We
are
also satisfied that the so called inconsistencies do not affect PW1's
testimony nor the fact of the murder of the deceased on
18/3/1999.
We have already held when we discussed ground 1 of A1's
memorandum that the evidence of A1 to the effect that on the material day
he was
at or near the place where the deceased was assaulted corroborates the testimony
of PW1 about A1's presence at the scene.
It is a pity that the prostiution chose
to call the barest of evidence in this case without explaining why but we are
satisfied that
there is ample evidence to support the conviction of both
appellants. Accordingly the only ground of A2 must fail.
It was for the reasons we have given that we dismissed the
appeal.
Delivered at Mengo this 2nd day of March 2005.
B .J. ODOKI
CHIEF
JUSTICE
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.
G.W. KANYEIHAMBA
JUSTICE OF THE
SUPREME COURT
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