Fadhul v Uganda (Criminal Appeal 30 of 1989) [1990] UGSC 22 (24 December 1990)

# IN THE SUPREME COURT OF UGANDA\*

#### AT MENGO

(CORAM. MANYINDO, D. C. J., PLATT, J. S. C, & SEATON, J. S. C.)

## CRIMINAL APPEAL NO. ?O GF 1989

## BETWEEN

AND

ALI FADHUL appellant

UGANDA RESPONDENT

(APPeal from the conviction and sentence of the High Court of Uganda at Mbarara by (Mr. justice I. Mukanza) dated 27/9/198?)

IN

#### HIGH COURT CR. SS. CASE NO. 35/89

# <sup>F</sup> JUDGMENT OF THE COURT

The appellant was on 27/9/89? convicted by the High Court of the murder of one Tib^yungwa, contrary to Section 183 of the Penal Code and was sentenced to death. He now appeals against the conviction and sentence\*

. Five grounds of appeal were filed namely

- "1. That His Lordship the learned trial judge heard the defence case when he had already formed the- opinion that the appellant had murdered Tibayungwa as evidenced by the very detailed ruling at the end of the submission of no case to answer by the defence. - 2. That the learned trial judge misdirected himself on the burden of proof when he based the conviction upon the weakness of the defence rather than upon the strength of the prosecution case. - 3- That the learned trial judge erred in law and fact when he held that the prosecution had disproved the appellant's alibi. - 4. That the appellant was not afforded a fair trial in that witnesses for the prosecution were tampered with to the prejudice of his defence.

2/....

5. That the learned trial judge further erred in law and fact to come to various findings and observations which were not based on evidence which findings and observations influenced his decision in convicting the appellant.','

At the hearing of the appeal Counsel for 'the appellant abandoned the fifth ground\* V/e will consider the first and .fourth grounds together and first as they raise the fundamental question whether or not the appellant was afforded a fair trial• If he was not then he would be entitled to In this case the evidence of two prosecution witnesses was admitted during the preliminary hearing held under Section 64 of the Trial on Indictments Decree after which five other witnesses were called by the prosecution. After their evidence had been received the prosecuting Counsel closed the State case whereupon the submission of no case to answer. a retrial, at least. defence Counsel made a

In a detailed ruling the learned trial judge, rejected the submission. He correctly directed himself on the relevant law as spelt out in Bhatt v R (1957) E. A. 532 to the effect that a submission of no case to answer may bo upheld when:-

- a) there has been no evidence to prove an alleged essential element of the offence; - b) the evidence adduced by the prosecution has been discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

He then went on to make the following findings of law afcd fact which % fact of death of the deceased had been established beyond reasonable doubt; (2) that the deceased was bayoneted on the orders of the appellant;' (5) that although the appellant had not physically participated in killing the , gave rise to the complaint in the first ground of appeal; (1) that the

I

3/....

*2* -

deceased, he had the necessary common intention with the soldiers who had done the actual killing on his orders (here he relied on Section 22 of the Penal Code) and that the appellant, "like the three soldiers is equally criminally liable for the killing of the deceased, all the discrepancies in the evidence of the prosecution witnesses were not so fatal to the prosecution case because they did not point to deliberate untruthfulness-" and (^) that

Counsel for the appellant submitted that the above findings amounted to conclusive finding that the appellant was guilty as charged even before We think the point was well taken. As we a At the close of the case for the prosecution the trial judge is enjoined by Section 71 of the Trial on Indictments Decree to decide whether a case has been made out against the accused person sufficiently to require him to make a defence. Thus the Court will find that there is no case to answer if there is insuffficient cogent evidence his defence had been heard. understand them the principles to be applied on to answer are theseto require the defence to present its case. submission of no case

The burden is on the prosecution to prove its case beyond reasonable doubt when all the evidence has been heard. At the time of the submission }f no case to answer, however, the prosecution need not have proved their ?ase beyond reasonable doubt to prevent the submission being accepted. Che prosecution must merely prove >ut by the Court of Appeal for East Africa in Bhatt v R (Supra). a prima facie case and as was pointed

> "A Prima facie case must mean one where a reasonable tribunal, properly directing its mind to the lav/ and the evidence could convict if no explanation is offered by the defence.n

In that case it was also pointed out, quite rightly in our view, that t that stage the Court is net required to decide finally whether the vidence is worthy of credit or whether if believed it is sufficient to

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V....

prove the case conclusively. Clearly the final decision can only properly be made when the case for both sides has been heard.

In our judgment where a Court upholds the submission of no case to answer it should give reasons in details for such decision either in its ruling on the point or in its judgment. In the event of the submission being rejected then the Court should consider, in its ruling, the submission in general terms, paying particular attention to any At that stage the Court should not express any opinion or make any findings on the evidence of the prosecution to avoid prejudicing the final judgment or pre-judging issues without having heard all the evidence. *<sup>I</sup>* point of law raised and argued. <sup>I</sup> , . *fy*V

In the instant case it seems quite clear to us that having made the findings stated above, the learned trial judge was not in a position to objectively consider the defence case as he had already made up his mind that the appellant was guilty of the offence charged. In so doing he went far beyond the test in Bhatt v R (supra). In our view by deciding at that very early stage that the deceased had died at the hands of the appellant and that the appellant and other persons not before Court had killed him with malice aforethought, the learned trial bias which meant that he heard the appellant's case closad mind instead of an open one. In the circumstances it *~~*—<sup>~</sup> -———-—-\_\_ to be done when it should.^ with a judge created a cannot be sai<sup>d</sup> that although justice might have been done.,—it—was seen Z-'la

that while the third witness was testifying, the late Joe Mayanja who was representing the appellant stood up and complained that a Police Officer called Byabashaija who was involved in the investigation of the case was interfering with the State witnesses in that he would sit With regard to the fourth ground, the record of proceedings shows

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in Court, hear the evidence of a witness and then go outside and coach the witness who was to come next. The Counsel further stated that he had already informed the State Attorney about the conduct of Mr. Byabashaija When asked to reply the State Attorney said that he had nothing to say, presumably admitting that the allegation was true.

The trial judge then made the following order:-

"Court:- The Acts (sic) of Mr. Byabashaija are deplorable. $\rm_{He}$ should desist talking to witnesses whether in or outside the Court premises. He is however not stopped from attending Court. If this is seen again drastic measures will be taken against him."

Counsel for the appellant's submission is that that order was not enough, that the trial judge should have ordered a retrial or that at least he should have required Byabashaija to explain his actions to Court.

Counsel for the respondent took the position that since there was no evidence as to what exactly Byabashaija told the witnesses he would not be said to have interfered with them. That may well be true but given the fact that the State did not challenge the allegation and also given the strong stand taken by the Court on this point we see no reason NL. to doubt the allegation that the State witnesses were being briefed on being briefed on This and K with what was happening in Court before they went in to testify. the apparent bias of the trial Judge in favour of the prosecution meant that the appellant was not given a fair trial. We so find and in the circumstances there is no need for us to consider the second and third grounds of appeal. We accordingly allow the appeal, quash the conviction and set aside the sentence. As the trial of the appellant was defective it is ordered that he shall be retried by another judge as soon as is practicable. In the meantime he is to be remanded in custody.

DATED at Mengo this 24th day of December, 1990.

$-5-$

Signed:

S. T. MANYINDO DEPUTY CHIEF JUSTICE

H. G. PLATT JUSTICE OF THE SUPREME COURT

S. E. SEATON JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE

COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT