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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA, JJ.S.C)
CRIMINAL APPEAL No.13 OF 2003
BETWEEN
1. MUREEBA JANET ] 2. ALIGA ISMAIL ] ::::::::::::::::: APPELLANTS 3. BYARUHANGA KASSIM ]
AND
UGANDA ::::::::::::::::::::::
RESPONDENT
[Appeal from the judgment of the Court of Appeal at Kampala (Mpagi-Bahigeine, Engwau and Kitumba, JJ.AJ dated 23rd March, 2001) In Criminal Appeal No.56 of 2000]
JUDGMENT OF THE COURT
The three appellants, Mureeba Janet (A1), Aliga Ismail (A2) and Byaruhanga
Kassim(A3) were convicted by the High Court (Kania, J)
after a full trial on two
counts of murder and they were each sentenced to death. The prosecution case and
the conviction of the
appellants were based on circumstantial evidence. Their
appeals to the Court of Appeal were dismissed. They have now appealed against
that decision. The prosecution alleged that on 6th of June, 1999, at
Ntinda village, the three appellants together with other persons, murdered
Namara Norah, alias, Peace Kamusiime
(1st deceased) and Gabriela Mureeba d/o
Charles Mureeba (2nd deceased).
The evidence adduced by
the prosecution and the facts found by the two courts below show that there was
a struggle of two women for
the heart of one man, Charles Mureeba. He a brother
of the Director of the Population Secretariat in the Ministry of Finance, where
the 1st deceased worked as a receptionist. The second deceased was
the offspring of the relationship between Charles and the first deceased.
The
two deceased lived together in Ntinda, a suburb of Kampala, at the time they
were murdered.
The prosecution adduced evidence to the effect that
the first deceased was a long time girl friend (or customary wife) of Charles
Mureeba who was the husband of the first appellant. It is not clear when the
first deceased and Charles started cohabiting together
as wife and husband.
However, the evidence shows that in 1996, when the first deceased was working at
the Uganda Population Secretariat
as a telephone operator/receptionist, Charles
hired a house for her in Kamwokya, a suburb of Kampala, where she had a
neighbour called
Kato Muhammad (PW1).
At some point in time she introduced Charles to Muhammad. In 1997, the first
deceased informed PW1 about A1's threats to her life.
A1 was regularly sighted
in Kamwokya. The deceased informed Muhammad that because of A1's threats to her
life, she wanted to relocate
to another place. She later moved to Najjanankumbi,
another suburb of Kampala. Shortly after moving there, she again sighted the
first appellant in her new place. Once more the deceased informed PW1 in 1998
that she must again relocate to yet another place.
By that time the first
deceased appears to have become so scared and frightened of the alleged menacing
threats of the 1st appellant to her life that she persuaded her
cousin, Kasabiti Rosette, (PW3) to join her and live with her in her new
residence at
Najjanankumbi. PW3 joined the first deceased about November, 1998.
By then the first deceased had become overwhelmed by the fear
that the first
appellant would kill her. So on 31/12/1998, the first deceased and PW.3
relocated to a new residence at Ntinda.
Meantime, during 1998, the first deceased reported to Naomi Kibaju (PW4) who
was then Ag. Head of the Population Secretariat that
the first appellant had
threatened to invade the office of the deceased to shoot her there. The deceased
was panicking while making
the report. She requested PW4 to provide transport to
take the deceased home. PW.4, provided the required transport to the deceased
and at the same time advised her to report the matter of threats and fears to
the police. Because of the persistent reports by the
first deceased of the
menace of murder threats by the first appellant and reports to PW4, the latter
transferred the deceased from
the reception office to an inner office and
assigned her other duties different from those of a receptionist. Even after
that reorganisation,
the deceased persisted in reporting to PW4 the constant
threats to her life from the first appellant. About late May, 1999, A2 and
A3
visited a Garage in Kisenyi, Kampala, where Bright Mugabi (PW5) worked as a
mechanic. PW5 and A2 had been in the army together
and they knew each other
well. A2 and A3 informed PW5 that they were desirous of hiring a self-drive
vehicle. A2 informed PW5 that
a certain rich woman had hired A2 to kill another
woman who lived in Ntinda. PW5 was unable to provide the desired vehicle.
Shortly
after, on a Sunday (6/6/1999) A2 and A3 returned to the garage at about
4.00 p.m, driving a white double cabin pick-up for repair.
PW5 participated in
repairing the vehicle. After the repairs, he opened the rear cabin door of the
vehicle to clean the inside of
the cabin. He found inside the vehicle, a brown
bag containing a blue overcoat and a gun which he thought was an SMG. Before he
left,
A2 requested the manager of the garage for a gunrivet and a drill. These
implements are normally used for pulling off or fixing number
plates on
vehicles. At about 5.30 p.m, on the same day, the two men drove away in the same
vehicle.
That same evening at about 6.30 p.m; Jolly Kapere (PW2) who lived about 100
metres from the deceased's residence, in Ntinda, and has
business there, saw a
white double cabin pick-up drive past her. There was a driver in the driver's
seat while two other people sat
in the back seat. Later, as she was going for a
party, she found the same vehicle parked by shops on a road which is normally
not
busy. One of its doors was open. She stopped on the way after hearing
gunshots. As she was returning home, she saw a man running
towards the pick-up.
He wore an overcoat and was carrying some object. The man ran from the direction
of the deceased's residence,
which was 100 metres away. He was as dark skinned
as A2. He entered the pick-up whose door was open, put the object which could
have
been a stick or a gun into the vehicle which then sped off. PW2 was able to
observe this because of security electric lights. It
was 7.35 p.m. Afterwards,
PW2 went to the scene where she saw the dead bodies of the two deceased
persons.
At about 7.30 p.m, the same evening Bessi Tumusiime, a niece of Charles, living in the same home with A1 received a telephone call. A1's house girl, Ayabare Mariam (PW.6) heard Bessi ask the caller "have you finished." A1, who had gone up country with Charles, returned to Kampala that evening about an hour after the call. After A1 had returned home, Ayebare PW.6 noticed that A1 was in an exhilarated mood and was exceedingly happy apparently after learning of the murder of the deceased from Bessi Tumusiime. A1 and Bessi indulged in rejoicing and dancing. A friend of A1 called Gorreti also arrived and joined in the rejoicing and dancing. They danced around as they said that now A1 was the winner and she would now have all the properties. This is how Ayebare described the situation;
"Gorreti, Bessi and Janet entered the house and they became very happy, They kept on rejoicing and dancing. Bessi told Janet that what has been troubling her was now over. The Malaya is killed. Now all
properties are yours. Janet told Bessi.
"Leave me, my daughter" She said all these words with a smile and joy."
On 7/6/1999, at about 8.30 a.m, A2 and A3 returned to the garage in the same pick-up. As PW5 was cleaning that vehicle, he heard A2 saying to A3 in Luganda "How could you fail to beat a mere a woman."
According to PW5 "to beat" a woman meant to shoot. The two then
conversed in a language, which PW5 thought was Nubian. A2 and A3 drove away in
their pick-up.
This time the vehicle bore no number plates in the usual place,
but there was a number plate placed on its (front) dashboard. Later
the same day
PW5 learnt of the murder of the deceased.
On 9/6/1999 a witchdoctor
visited A1's home where he slaughtered a chicken in what Ayebare (PW6) believed
was a ritual.
Subsequently the appellants and two other suspects were
arrested and charged with the murder of the two deceased
persons.
During trial all the three appellants denied the charges. In
her own defence, A1 made an unsworn statement. She denied the offences
and
denied that she knew the deceased. She claimed that she had been upcountry and
by the time the deceased was murdered, she was
away. She returned home at about
9.00 p.m on 6/6/1999. She went about her business until she retired to sleep.
She said that she
used to drive to Kamwokya everyday to pick-up her child. She
also said that on 9/6/1999 she had a moslem male visitor who slaughtered
a
chicken in her home. The visitor slaughtered the chicken because he was a
moslem. A2 gave evidence after affirmation. He said he
was a mechanic and a
driver. He denied the offences and raised an alibi to the effect that on
6/6/1999 he was in Kayunga Hospital
attending to a sick child. He denied
knowledge of Jemba Garage (Singha Singha's garage). He only knew PW5 and A3
while they were
all in Luzira Prison in 1996. He implied that PW5 testified
against him because of a grudge. The grudge arose from the fact that
while
the two were in Luzira prison in 1996, PW5, smuggled a saw into prison for
purpose of furthering a plot to escape from prison.
For that, A2 reported PW5 to
the prison authorities and as a result PW5 was punished. In his sworn defence,
A3 denied the offences.
He admitted he had known A2 since 1994. They were close
friends. They met in Upper Prison, Luzira. He also met PW5 in the same prison
from where PW5 developed a grudge against him because he (A3) was friendly to A2
who reported PW5 to prison authorities because PW5
attempted to escape. He
denied he visited Jemba garage with A2. He denied talking to A2 about shooting a
woman.
It is clear from the foregoing that the evidence against the appellants was
circumstantial. In a long and well reasoned judgment,
Kania, J; who tried the
case, believed the evidence of PW1, 2, 3, 4, 5, 6 and 8. He disbelieved the
defence and convicted the three
appellants. He acquitted two other co-accused.
The three appellants unsuccessfully appealed to the Court of Appeal. They have
now
appealed to this Court.
Initially, M. Owor & Co., Advocates, lodged a memorandum of appeal on
behalf of the first appellant. Subsequently the first and
the second appellants
filed a joint memorandum of appeal that contained nine grounds of appeal,
through a new counsel, Edward Ddamulira
Muguluma. The third appellant lodged a
separate memorandum of appeal through the firm of Messrs. Kunya & Co.,
Advocates. Subsequently,
following the decision of the Constitutional Court in
Constitutional Petition No.6 of 2003 (Suzan Kigali & 417 others Vs
Attorney General) Messrs. Katende, Ssempebwa & Co. Advocates, sought
to argue the appellants' appeal against sentence in the event that this Court
upholds the convictions of the three appellants. However, that aspect was not
argued and is still pending.
The nine grounds in the memorandum of
appeal for the first and second appellants were framed this way:
1. That the learned Justices of Appeal erred in fact and law when they upheld the finding of the trial judge of the High Court that the appellant A1 procured A2 and A3 to kill the deceased Namara and Gabriela and as a result came to a wrong decision.
2. That the learned Justices of Appeal erred when they upheld the finding that A1 was the First wife of Charles Mureeba and co-wife of Namara.
3. That the learned Justices of Appeal erred in fact and law when they upheld the finding that A1 had common intention with A2 and A3 to murder the deceased Namara and Gabriela and thus came to a wrong conclusion.
4. That the learned Justice of Appeal erred in fact and law in upholding the finding that A1 and A2 participated in the murder of Namara and her son Gabriela and as a result came to a wrong decision.
5. That the learned Justice of Appeal in fact (sic) and law upholding the finding of the High Court trial Court that A2 was on fateful night identified at Ntinda and thus came to a wrong decision.
6. That the learned Justice of Appeal erred in fact and law when they upheld the finding that the vehicle No.426 IDI seen in Ntinda by PW2 Jolly Kapere on the fateful night was the same vehicle seen at Kisenyi by PW5 Mugabi.
7. That the learned Justice of Appeal erred in fact and law when they upheld the finding of the trial Judge that here (sic) was enough circumstantial evidence was so water tight as to warrant a conviction of murder and as result came to a wrong decision.
8. That the learned Justices of Appeal erred in fact and law when they failed adequately to evaluate evidence as a whole, and thus came to a wrong decision.
9. That the learned Justice of Appeal erred in fact and law when they failed to consider the defence of the ALIBI put by the first and the second appellants.
Mr. Muguluma for A1 and A2
abandoned ground 2. He argued ground 1 and 3 together and ground 4 separately,
but during his submissions
on these grounds, he in effect argued the substance
of the other grounds of appeal.
The substance of grounds 1 and 3 can be
summarised in this way:
That the Court of Appeal erred when it
confirmed the finding of the trial judge that the first appellant procured A2
and A3 to kill
the deceased and that the three of them had a common intention to
murder the deceased. Learned counsel contended that his clients did not
murder the two deceased. Counsel submitted that the evidence of Bright Mugabi
(PW5)
first needed corroboration and secondly it was inconsistent. On the need
for corroboration, learned counsel contended that PW1 did
not know A1 so
presumably the rich woman allegedly mentioned by A2 and A3 could not be A1. That
PW5 connected A2 with the murder
because of what he allegedly heard and what he
saw in the pick-up in Singha Singha garage.
Counsel contended that
PW5's evidence regarding the gun, the murder weapon, was inconsistent with the
evidence of Gakyaro Francis
(PW13), the Ballistics expert. This is because
whereas PW5 claimed that the gun he saw in the brown bag was an SMG, PW13
testified
that the cartridges and the fired bullets which were submitted by
police to him for examination were of an AK47 gun.
Learned Counsel further contended that A1 should not be held guilty because
of the evidence of a fellow co-accused (Tumusiime) who
was acquitted by the
trial judge. He also contended that the words "Have you finished," and
"leave me alone", which PW6 stated were uttered by Tumusiime and A1
respectively, were hearsay and inadmissible. Mr. Vincent Wagona, a Principal
State
Attorney (PSA) in the DPP's chambers, on behalf of the respondent,
supported the decisions of the two courts below. The learned PSA
took a cue from
counsel for the appellants and also generally argued all the grounds together.
He contended that the circumstantial
evidence on the record was so water tight
that it warranted the conviction of the appellants. He adopted the prosecutions'
submissions
made during the trial and those made by Mr. Simon Mugenyi Byabakama,
a Senior Principal State Attorney, on behalf of the respondent
in the Court of
Appeal.
According to Mr. Wagona:
• Under the provisions of S.30 of the Evidence Act and the doctrine of res gestae, prosecution evidence of the threats by A1 incriminates her. He relied on the evidence of PWs 1, 3, 4 and 8 as incriminating A1. He cited Criminal Evidence by Richard May 4th Ed. (1999). • The search by A2 and A3 for a self-drive vehicle and the statements made by these two, especially about shooting a woman. This evidence incriminates A2 and A3. • PW6's evidence about the conduct of A1 after learning of the murder of the deceased, incriminates A1. • The evidence of PW2 of sighting a white double cabin pick-up near the scene of crime and the evidence of PW5 of seeing A2 and A3 driving the same pick-up in Kampala before and after the murder incriminates these two. • The distinction between PW5 and PW13 in the description of the gun as an SMG or AK47 is technical and not substantial to affect incriminating evidence against the two appellants.
We think that the arguments of the
learned Principal State Attorney have force.
As we observed at the beginning
of this judgment, the case against the three appellants is dependent on
circumstantial evidence. The
question of common intention which was argued by
Mr. Muguluma is tied to circumstantial evidence. There is no eye witness to the
murder of the deceased persons. In the trial court the prosecution and defence
counsel addressed the trial judge on the law governing
circumstantial evidence
and its application to the facts of this case. The learned trial judge in a long
judgment evaluated the whole
evidence and considered the various aspects of the
circumstantial evidence incriminating each appellant before he convicted each
of
them.
In the Court of Appeal, counsel for the three appellants argued
all the grounds of the Appeal in the two memoranda at some length.
We note that
when presenting their oral arguments in the Court of Appeal, all counsel for the
three appellants were critical of the
evidence of the key witnesses, especially
PW 1, 2, 3, 4, 5, 6 and 8, contending that the evidence was unreliable or
inconsistent
or both. Mr. Simon Mugenyi Byabakama, Senior Principal State
Attorney, who represented the respondent, opposed the appeal and took
pains to
explain why the evidence of those key witnesses (namely PWs 1, 2, 3, 4, 5, 6 and
8) was reliable and how it established
the guilt of each of the
appellants.
In a reasoned judgment, the learned Justices of Appeal rejected the arguments
of the appellants' counsel and concurred with the learned
trial judge that PWs
1, 2, 3,4,5,6 and 8 were reliable. The learned Justices concluded that A1
procured A2 and A3 to murder the deceased
persons and that the prosecution
evidence established a common intention among the three appellants in the murder
of the deceased.
Consequently the court dismissed the appeals.
Before
us we have two concurrent findings by the two Courts below that the evidence of
the prosecution is reliable and that the chain
of evidence established the guilt
of each of the three appellants beyond reasonable doubt. This Court and its
predecessors have decided,
in a string of cases, that except in exceptional
cases we are not required on second appeal to reevaluate the evidence as a first
appellate court does: See Kifamunte Henry Vs Uganda S.Ct. Criminal Appeal
No.10 of 1997-(Supreme Court of Uganda Certified Criminal Judgments
1996/2000), at page 280 and Bogere Moses & Another Vs Uganda,
(Supreme Court of Uganda certified Criminal Judgments 1996/2000) at page 185
and Bogere Charles Vs Uganda (Supreme Court of Uganda Certified Criminal
Judgement 1996/2000) at page 213.
On the facts, this appeal is
not one of such exceptional cases where we are required to re-evaluate the whole
evidence to enable us
to make our own inferences.
As found by the two
courts below, the conviction of the appellants depended wholly on circumstantial
evidence. There are many decided
cases which set out tests to be applied in
relying on circumstantial evidence. Generally, in a criminal case, for
circumstantial
evidence to sustain a conviction, the circumstantial evidence
must point irresistibly to the guilt of the accused. In R. Vs. Kipkering
Arap Koske and Another (1949) 16 EACA.135 it was stated that in order to
justify, on circumstantial evidence, the inference of guilt, the inculpatory
facts
must be incompatible with the innocence of the accused and incapable of
explanation upon any other reasonable hypothesis than that
of guilt. That
statement of the law was approved by the E. A Court of Appeal in Simon Musoke
Vs. R. (1958) EA 715 [and see Bogere Charles case (supra)]. In the instant
case, the learned trial judge and the Court of Appeal evaluated
the
circumstantial evidence and applied the tests set out in these three
decisions.
In summary, the evidence as found by the two Courts below
begins with the relationship between Charles and the first deceased. This
is
followed by the threats of A1 reported by the first deceased to PWs 1, 3, 4 and
8. Then there is evidence of the conduct of the
first appellant towards the
deceased. There is evidence of the conduct of the first deceased about A1's
persistent threats and the
reaction of PW4 to her reports of those threats.
There is the evidence of PW5. He saw the second and third appellants at garage
in
Kisenyi thrice; once while they were looking for a vehicle to hire and once
before and once after the murder of the deceased. A2
and A3 turned up at the
same garage at 8.30 a.m on 7/6/1999, in the same vehicle whose number plates had
been removed. PW5 heard
the two conversing about the shooting of a woman in
Ntinda. There is the evidence of PW2, who sighted a white double cabin pick-up
on 6/6/1999 at about 7.35 p.m at Ntinda, just 100 metres away from the residence
of the deceased just before and after the shooting
of the deceased. Lastly there
is the evidence of PW6 concerning the behaviour of A1 on the evening of 6/6/1999
after learning of
the murder of the deceased and further her (PW6's) evidence on
circumstances under which a chicken was slaughtered on 9/6/1999 by
a moslem man,
a witchdoctor.
Normally we would consider the case of each appellant separately, but in this
appeal, the case against A2 and A3 is intertwined. We
will first consider the
case of A1.
Was the first deceased a wife to Charles? Describing the
deceased as a wife may not be accurate. But the evidence of PW1, PW3, PW8
explains the relationship. PW3 referred to Charles as a husband of the deceased
and A1 as her co-wife. The evidence of PW1 who was
a neighbour and friend of the
deceased since February, 1996 shows that in 1997 the deceased introduced Charles
in 1996 as a boy-friend.
Charles used to visit the deceased regularly and spent
nights at the home of the latter. The relationship resulted in the birth of
the
second deceased. Ordinarily the deceased could be described as a customary wife
to Charles.
Threats: From the evidence on the record it would seem that the deceased trusted PWs 1,3,4,6 and later PW8. The deceased first reported A1's threats to PW1, a close neighbour and friend in 1997. She repeatedly reported these threats to PW1 even after she relocated first to Najjanankumbi and eventually to Ntinda, where she was murdered. According to PW1-
"Norah died around 5/6/1999. I last talked to her 3 or 4 days before she died, on phone. She told me she had no life. When I last talked to her, she was pregnant. The same day she told me she talked to Mureeba Charles who did not care."
During cross-examination, this witness repeated receiving reports from the
deceased about A1's threats to kill the deceased and that
in 1998, the deceased
reported sighting A1 in Kamwokya, where the witness and the deceased lived.
Although it is possible to explain
the appearance of A1 in Kamwokya on presence
of her relatives in that area, on the evidence available most likely she went
there
to check if Charles was at the residence of the deceased, where his car
could be parked. The evidence which this witness stated in
court is
substantially the same as the contents of his statement to the police which he
made on 10/6/1999, barely 4 days after the
murders. We do not quite appreciate
why his police statement (Exh. DI) was tendered in court on the application of
second counsel
for the first appellant. Indeed on the basis of section 155 of
the Evidence Act, that statement corroborates the evidence of
PW1:
That section reads as follows: -
"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 maybe proved."
In this case PW1 made the
statement barely 4 days after the murder of the deceased to the police who are
the authority legally competent
to investigate the fact of the murder
circumstances. In the police statement PW1 mentioned A1's threats.
According
to PW3, the threats of the first appellant had created a lot of fear in the
first deceased. So the first deceased asked
PW3 to join her and live with her
in Najjanankumbi, where the deceased had lived for 2 months. PW3 joined the
deceased on 3/12/1998.
The deceased declared that she felt insecure and feared
that her co-wife (A1) could easily kill her as the residence was in a sparsely
populated area. The deceased was by then pregnant. The deceased got a house in
Ntinda where both the witness and the deceased moved
on 31/12/1998. One day
during (March), 1999, the deceased returned home soon after going to her place
of work. She was "scared and shivering" and reported that she had just
received a threat from A1 on phone. In April, the deceased reported that A1 had
phoned and quarrelled
with the deceased on phone for 30 minutes. This last
report is corroborated by the evidence of Kyomukunda Rosemary, PW.8, who
replaced
the deceased, in February 1999, as a receptionist. The deceased was
transferred to an inner office. According to PW8, in April, 1999
a woman
telephoned and inquired if she was talking to the deceased. The woman caller was
eventually connected to the deceased. The
conversation was so long and drawn-out
that some other officers in the offices complained about it presumably because
they could
not access the telephone line. Later the deceased informed PW8 that
the caller "was her co wife Janet who was threatening her." PW8 noticed
that the deceased "was not happy." PW8 was not cross-examined on this damning
evidence. So the two courts justifiably
held that it was evidence admissible
under S.30 (a) of the E. Act. Ms. Naome Kibaju, (PW4) acted as Ag. Director of
Uganda Population
Secretariat in 1998. One afternoon in 1998, the deceased went
to her office panicking and reported that "some body" was threatening
to shoot
her (deceased). She therefore needed transport to take her away. Transport was
provided. Later the deceased telephoned PW4
to say it was her co-wife who had
threatened her. PW4 advised the deceased to report the matter to the police. The
deceased was relocated
to an inner office, obviously for safety. Even after that
reorganisation, the deceased continued to report to PW4 more threats on
her life
from the first appellant.
The learned trial judge considered these
reports as dying declarations or statements admissible in evidence under S.30
(a) of the
Evidence Act. In the Court of Appeal, counsel for the first appellant
criticised the trial judge contending that the evidence of
PW1,3, 4 and 8
regarding the threats was hearsay and therefore inadmissible since there was no
sufficient proximity between the threats
and the occurrence of death in order to
form a transaction. The Court of Appeal referred to several authorities and to
the manner
in which the learned trial judge evaluated the evidence of the four
witnesses on this subject and upheld his conclusions.
The learned judge had
concluded that:
"In the premises, I am of the view that the statements made to each of
these four witnesses constitute circumstances of the transaction
leading to the
deaths of the deceased and as such are admissible."
The Court of
Appeal agreed with the interpretation of the law [S.30(a)] by the trial judge
and his application of that law to the
facts of this case. We have no basis upon
which to fault these conclusions.
We think that the conclusions of the learned trial judge and the upholding
thereof by the Court of Appeal are justified. In our opinion
the reports made by
the deceased to PWs 1,3,4 and 8 are those
envisaged by section 30(a) of the
Evidence Act.
S.30 (a) of the Evidence Act states: -
"Statements, written or verbal of relevant facts made by a person who
is dead ...................... are themselves relevant facts
in the following
cases, (a) When the statement is made by a person as to the cause of his death,
or as to any of the circumstances
of the transaction which resulted in his
death, in cases in which the cause of that persons death comes into question and
such statements
are relevant whether the person who made them was or was not at
the time when they were made, under expectation of death, and whatever
may be
the nature of the proceeding in which the cause of his death comes into
question."
The conduct of A1 soon after the murder as
testified to by PW6 and the reports of the four witnesses summarised earlier in
this judgment,
irresistibly point to the guilt of the first appellant. A study
of the evidence of PW6 shows that though she appeared to be of little
education,
she had a remarkable memory. She witnessed what transpired on 6/6/99 and 9/6/99.
In Court she remembered everything that
went on immediately after Janet
returned. PW6 testified in part as follows-
"Beginning with the month of June 1999. A1 friendship between Gorretti, Janet and Bessi became closer. They used to talk secretly in the sitting room for long periods.
Whenever there were visitors they talked for shorter periods. They met
secretly for about one week and Janet and her husband went
to the village on a
Friday and came back on a Sunday. I was left in the house with Bessi and the
children. The Sunday they returned
at 7.30 p.m. I was in the house with Bessi.
Some one rang to Bessi. She answered it having picked the phone. I was I metre
away from
Bessi when she was talking on
phone
I only heard Bessi's answer. She said "Have you
finished."
PW6 noticed that Bessi was very pleased with the telephone message. Bessi
went away. About an hour latter A1 and Charles returned
from their weekend
journey to the village. Bessi also returned about that time. "Without entering
the house, Charles drove away,
as Gorreti arrived. Gorreti, Bessi and Janet
entered the house. They were exceedingly happy. They started dancing with great
joy.
Bessi then told Janet that what had been troubling her was over because the
malaya had been killed and the properties will all be
hers. Janet replied in
English while smiling saying - "leave me, my daughter." Thereafter A1, Bessi and
Gorreti entered and stayed
in A1's bedroom.
On 9/6/1999 at 2.00 p.m,
Gorreti, brought a Moslem witchdoctor to A1's home. A1 ordered the witness to
catch a chicken which she did.
A1 ordered the witness to enter the house. A1,
Gorreti, Bessi and the witch doctor remained outside. From the sitting room the
witness
watched what the quartet was doing. The witchdoctor slaughtered the
chicken by severing off its head. He did that while Janet, Gorreti and Bessi
were standing together with the witch doctor. The chicken was boiled which
the three ladies ate but the witchdoctor did not. Some days later PW6 heard
Bessi talking to Gorreti
on telephone. Bessi expressed fears that her
witchdoctor would not protect her because she was about to be arrested. By then
A1 had
been arrested. Because of all this, PW6 left A1's home on 3/7/1999.
Before these events she had never seen a witchdoctor in that
home.
The witness was not shaken in cross-examination. The time when
Bessi received the telephone call, i.e, about 7.30 p.m, tallies with
that given
by Jolly Kapere (PW2) who, at about 7.30 p.m, saw a gun man enter the pick up in
Ntinda.
We have no doubt that the evidence of PW6 shows that the first
appellant was fully involved in planning and securing the murder of
the
deceased. The regular meetings of A1, Bessi and Gorreti a week prior to the
murder were most probably about the deceased. The
rejoicing by the trio
immediately after the murder confirms this. Bessi and Gorreti are lucky to have
been acquitted by the trial
judge.
Mr. Tusubira who represented the
first appellant in the Court of Appeal addressed that court on what he called
wrong evaluation of
evidence by the learned trial judge about the source of
threats and also on the credibility of PW5 and PW6. With regard to the
reliability
of the source of threats, the Court of Appeal stated this:
" Like the Learned trial judge, we agree with learned Senior Principal State Attorney that from the evidence on record, first appellant was the only co-wife the deceased was worried about and scared of which led her into shifting residences.
The evidence of Kato, PW1, who was a close friend and neighbour of the
deceased was that the deceased one day told him that she was
going to shift from
Kamwokya because she had received threats from the first wife of Charles Mureeba
and that she had also spotted
her in Kamwokya where the deceased lived. The
first appellant in her testimony confirmed that of PW1, shows that the first
wife of
Mureeba feared by the deceased is none other than the first
appellant"
The Court of Appeal re-evaluated relevant evidence on
the source of the threats. It re-evaluated the evidence of PW5 and his
credibility
before the court supported the finding by the trial judge that the
circumstantial evidence established the guilt of the first appellant.
All her
grounds of appeal have no substance and they must fail.
On the
evidence available we find it convenient to consider the cases of A2 and A3
together. The grounds of appeal for A2 have been
reproduced already. The three
grounds of appeal for the third appellant are framed in the following words:
1. That the learned Justices of Appeal erred in fact in finding that there was sufficient circumstantial evidence linking the appellant to the commission of the offences.
2. That the learned Justices of Appeal erred in fact and law in finding that the doctrine of common intention had been sufficiently proved Unking the appellant to the commission of the said offences.
3. That the learned Justices of Appeal erred in fact and law in confirming the conviction of the appellant without a thorough re-evaluation of the evidence on record.
Arguments presented in the Court of
Appeal on behalf of the two appellants by their respective advocates have been
repeated before
us. The Court of Appeal, as a first appellate Court,
re-evaluated the evidence, as it was bound to do, and came to the same
conclusions
as the learned trial judge that PW5 and PW2 were reliable witnesses
and that the two appellants were not. So the Court of Appeal
dismissed their
appeals.
Before us, as we have mentioned, Mr. Ddamulira Muguluma argued the appeal of
A1 and A2 together. We have referred to the gist of the
arguments already in
relation to A2. Learned counsel contended that because PW5 had allegedly seen a
gun in a bag in the pick-up
driven by A2 and latter he learnt that a woman in
Ntinda had been shot dead, PW5 therefore connected A2 to the murder of the
deceased.
Learned counsel also argued that the evidence of PW5 as to the gun he
sighted in the pickup is inconsistent with the evidence of
the Ballistics expert
as to the technical name of the gun.
In respect of A3 his counsel, Mr. Kunya,
argued grounds 1 and 3 together followed by ground 2 separately. Ground 1 is
about sufficiency
of circumstantial evidence to link the 3rd
appellant to the commission of the offences. Ground 3 is a criticism of
the Court of Appeal on lack of adequate re-evaluation of the
evidence. In
connection with these two grounds, Mr. Kunya, for A3, began by adopting the
submissions of Mr. Ddamulira Muguluma on
similar grounds made earlier in respect
of A1 and A2. Learned counsel then contended that the circumstantial evidence on
record was
insufficient and could not incriminate A3.
Counsel contended that
the evidence does not establish that the vehicle seen by PW5 in the garage was
the same vehicle which PW2 saw
in Ntinda the same day so as to connect it with
A3. Learned counsel further contended that PW5 did not give the registration
number
of the vehicle until the end of his examination -in-Chief in court. He
submitted that there could be a mistake in the identification
of the double
cabin vehicle. He criticised the prosecution for its failure to call one Julius,
an apparent registered owner of the
vehicle to testify. Mr. Kunya appeared to
argue that the circumstantial evidence given by PW.5 should not have been
accepted as it
"left a lot to be desired." He contended that there was no
evidence incriminating A3 and further that there was no nexus connecting the
vehicle produced in evidence
to that sighted at Ntinda. While arguing ground 2,
Mr. Kunya contended that there was no evidence establishing common intention
between
A2 and A3 contending that PW5 only suspected A3 because he saw A3 and A2
moving together. Mr. Wagona, PSA, supported the decisions
of the two courts
below. Earlier in this judgment we referred to the submissions of Mr. Wagona
while considering the appeal of the
first appellant. The learned Principal State
Attorney submitted that circumstantial evidence is about the cumulative effect
of the
totality of the evidence and therefore different pieces of evidence
should not be looked at in isolation from each other. He relied
on Criminal
Evidence by Richard May (Supra). He referred to the utterance made by A2 to
A3 about missing money by failing to "beat a woman" and A2's conversation
with PW5 when the former wanted the latter to get a self drive vehicle for hire.
This was evidence of two people
working for a common purpose. This showed common
intention. The Principal State Attorney argued that PW5 and the Ballistics
expert
(PW13) referred to the same weapon, a gun, contending that the two courts
below correctly relied on the evidence of the expert as
to the technical name of
the gun. The Principal State Attorney submitted that the vehicle which was seen
twice by PW5 in the garage
was the same vehicle seen by PW2 in Ntinda and it was
the same vehicle which was produced in evidence at the trial. Mr. Tumusasira
for
A1 had argued in the Court of Appeal that the evidence of PW5 was incredible and
unreliable because, according to counsel, PW5
told lies and was inconsistent in
his testimony. That was because PW5 had stated first that he traded in potatoes
and later that
he was a spy and lastly that he was a mechanic; that although he
claimed he had met A2 and A3 three times, it turned out that he
had met them 6
times.
The evidence against these two is purely circumstantial and
consists essentially of the evidence of Mugabi Bright (PW5) and of Jolly
Kapere
(PW2). We have already summarised the evidence of these two witnesses and that
of the two appellants. The evidence of PW5
and the appellants shows they knew
each other. According to PW5, A2 and A3 visited a garage in Kisenyi a few days
before the murder
of the deceased seeking to hire a vehicle on self-drive basis.
A2 asked PW5 to look for such a vehicle. A2 confided in PW5 the purpose
for
which the vehicle was needed which was that a rich woman in Ntinda wanted them
to murder somebody and A2 needed a vehicle for
transport to do the job. Two days
later the two appellants checked on PW5 who said he had not succeeded in getting
a vehicle. The
two appellants went away. Another two days later (on 6/6/1999)
the two appellants turned up at the garage in late afternoon driving
a white
double cabin pick-up for repair. PW5 saw a bag inside the vehicle containing a
gun and an overcoat. Before leaving the garage
the two appellants borrowed a
rivet gun designed to remove from or fix number plates on a vehicle. The two men
drove out of the garage
at 5.30 p.m. Kisenyi, where the garage was, is almost in
the central part of Kampala. The vehicle was a white double cabin pick-up.
At
about 6.30 p.m in Ntinda, a suburb of Kampala, on its Eastern side, a white
double cabin pick-up drove past PW2 as she was returning
home.
There
were three people in the vehicle: a driver in the driver's seat and two other
passengers seated in the rear cabin. PW2 reached
home, dressed up and proceeded
to a party. On her way she saw the same white pick-up parked on a road which is
not normally busy,
about 100 metres away from the residence of the deceased. One
door of the vehicle was open. This was about 7.30 p.m. There was light
provided
by electric security lights. As she moved a distance, she heard gun shots. This
frightened her and so she turned to return
home. As she neared the same pick-up,
a dark skinned man (like A2) approached the vehicle while wearing an overall and
carrying an
object which, to PW2, appeared like a stick or a gun. The man was
one metre from her. He entered the pick-up which had no number
plates. (The
rivet must have been used to remove the numbers). The pickup sped away. She then
learnt that the deceased had been shot
dead. She visited the scene. The
following day, PW5 attended to the two appellants and their pick-up at the same
garage. The evidence
of the two appellants is to the effect that both were not
at the scene of the crime. A2 claimed that since 5/6/1999 he was in Kayunga
Hospital attending to a sick child. A3 was else where. Of course PW5 did not
testify that he saw the two appellants shoot the deceased.
But A2 mentioned that
their mission was to murder a woman.
In its judgment the Court of Appeal considered the activities, the status and background of PW5 in some detail before it accepted the conclusions of the trial judge that PW5 was a reliable witness. This is how the Court of Appeal dealt with the evidence of this witness:
"Like the learned trial judge, we find that the inconsistencies mentioned above were minor and the trial judge was right to reject them as they did not go to the root of the case. We find from the evidence on record that Mugabi did not report the murder immediately to his superiors because he feared for his life. The late recording of a police statement should not be visited on the witness as investigation of crime is the work of the police. With regard to Mugabi's police statements [(Exh.P2 and P3. These should really be exh.D2 and D3 because they were introduced by defence)] the learned trial judge was justified in rejecting them because they were exhibited as part of evidence but were put in for identification only and the police officer who recorded them was not called to be cross-examined on the matter. Mr. Mugabi's testimony in court was more preferable and carried more weight as it was given on oath and he was rigorously cross-examined on it. We find that the learned trial judge was justified in relying upon his evidence: See Ojede S/o. Odyek Vs.R.(1964) E.A.499.
We find that Ayebale Miriam's evidence in Court carried more weight.
Police statement by Mugabi and Ayebale should not have been considered
at all as
they not properly put before court."
The learned Justices of
Appeal had earlier set out those aspects of Mugabi's evidence which Mr. Tusubira
contended rendered the witness
unreliable and incredible before the justices
found that the witness was in fact reliable. That demonstrates that the learned
justices
re-evaluated the evidence on record before upholding the findings of
the trial judge. We have not been persuaded that the learned
justices erred in
their conclusions.
In connection with exh.P2 and P3 we would like to correct the apparent confusion arising from the passage quoted above. It is apparent that the two statements were not properly proved and admitted in evidence.
So it is inaccurate to say that "Mugabi testimony in Court was more
preferable and carried weight." It is trite that for a police statement to
be treated as evidence, it must be properly proved and admitted in evidence
unless the
authenticity of that statement is not challenged.
If it is
not proved it cannot be acted upon by any court. So it cannot be a basis for
saying that a witness's evidence in court is
more preferable and carried more
weight than the statement which was not properly admitted in evidence at the
trial.
As regards PW2, Jolly Kapere, we think that this witness testified about what
she saw and experienced. She saw the pick-up thrice
within a period of about one
hour. She was helped by electric security lights to see the vehicle and the man
who entered it after
the shooting. The person whom she described as answering to
the appearance of A2 was as close as one metre away from her. There was
electric
light to help her observe the man.
In the circumstances of this case her
evidence corroborates that of PW5 as to the double cabin pick-up which was white
and the overcoat
and the probability of a gun. In these circumstances, we think
that there was ample circumstantial evidence to support the convictions
of A2
and A3. Their grounds of appeal have no merit and therefore their appeal must
fail.
In conclusion this appeal has no merit and it is accordingly dismissed.
Delivered at Mengo this 21st day of July 2006.
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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