Hofni Topacho Ongiertho and 2 Others v Uganda (Criminal Appeal 1 of 93) [1994] UGSC 20 (4 March 1994)

Full Case Text

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## AT MENGO

(CORAM: MANYINDO - DCJ, CDCKI - JSC, PLATT - JSC)

## CRIMINAL APPEAL NO. $1/93$

#### BETWEEN

| A-1- HOFNI TOPACHO CHCIERTHC | | | | |------------------------------|--|--|--------------------------------| | A-2- NCAN ABBAS | | | $\ddot{)}$ :: :: :: APPELLANTS | | A-3- PHILIP ABCTH KARUNEN | | | |

### VERSUS

:: :: RESPONDENT $UGANDA: :: :: ::$ $\mathbf{11} \qquad \mathbf{11} \qquad \mathbf{11}$ $\scriptstyle :\; :$ $\pm\pm$

> (Appeal against Conviction & Sentence of the H/C decision hoden at Kampala by (Mr. Justice J. P. Berko) dated 15-1-93, in H. C. Cr. Ss. No. $7/92$ .

# JUDGMENT OF THE COURT:

The appellant and three other men, who were acquitted, were tried and convicted on an adictmentfor treason, contrary to Section 25(1) (c) of the Penal Code. Nine overt acts were alleged in the statement of offence. The first overt act alleged that the appollants and others on 5-8-90. held a Meeting at the International Television Sales premises in Kampala at which plans to overturn the Government by force of arms were discussed.

In the second overt act it was alleged that on 12-8-90, at the same place the appellants and others held a similar Meeting held on 17-8-90, at the same place by the appellants and others.

$.0/2.$

In overt act it was alleged that the appellants and two others met at Spring Garden Village, Kyambogo, near Kampala, and discussed further the plans to overturn the Government. Overt act 5 alleged that the first and third appellants and two other accused who v/ere acquitted held another meeting at the International Television Gales on 25-8-90, and discussed the Plot. Overt act 6 alleged th • t the appellants alone met at the same place on 27-8-90, and discussed the plot.

*2*

Overt act 7 alleged that the first and third appellants met alone at same place on 2.8-8-90, and discussed the plans to overturn the Government. Overt act 8 related only to the first appellant and other persons who v/ere not before the Court. The allegation was that they had met at "the Data Processing offices in Kampala" on 29-8-90 and discussed the plans to overturn the Government. And in overt act 9^^ v/as alleged that the first and third appellants and others, (but not the second appellant) had met at the open park opposite Kampala Railway Station on 29-8-90 and discussed plans to overturn the Government.

After hearing the evidence of both sides and submissions of Counsel in the caset the trial Judge summed up the case to the Assessors and, without waiting to hear the opinions of the Assessors, he decided, that the case against the fifth accused, one Ocan, had not been proved. He promptly acquitted him and ordered his immediate • release fr~ra custody.

Later the Assessors gave their joint opinion. It was delivered by one of them, Kayon^p. They advised the Judge to acquit all the appellants on all the overt acts as the allegations against them had not been proved by the prosecution.

At the nutset of his judgment the Judge ruled that the case against the first and third appellants in overt act 7 and against the first appellant in overt act 8 had not been established. He acquitted them. He stated that in fact he thought that they had no case to anser on the two overt acts but that all the same he had decided bo put those two appellants on their defence.

On overt act 1 he found the appellants not guilty and acquitted them. On overt act 2 he convicted the second and third appellants as charged but found the first appellant guilty only of aiding and abetting treason. He convicted him accordingly. On overt act 3 all the appellants were acquitted. On overt act 4 the second and third appellants were convicted as charged while the first appellant was convicted of aiding and abetting treason only. On overt act 5 the first and third appellants were acquitted. As already pointed out, the second appellant was not implicated in that act.

On oveft oct 6 the first appellant was convicted of aiding and abetting treason; the second and third appellants were convicted of treason. Surprisingly, the trial Judge made no specific finding on overt act 9, although he had found that the first andthird appellant, two co-accused (A3 and Ah) and others not before Court had met and discussed the overthrow of the Government as alleged in that overt act. May be the Judge was in a dilema here. Having acquitted the A3 and A4 how could he convict the first and third appellants? Yet in view of his finding he should have g-ne on to convict them. He was not entitled to leave the matter open. A decision had to be made one way or the other.

.. A.

- 3 -

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as follows:

"I am satisfied however from the evidence before me that the prosecution have proved the case against A1, A2 and A6 (the first, second and third appellants respectively). Though A1 did not attend and participate in the meetings which formed the overt acts, from the evidence in Court he aided and abetted the crime. By virtue of the provisions of $S$ 21(1) (c) and 35 of Penal Code Act A1 is a principal offender. I have found A1, A2 and A6 guilty of the offence."

The appellants were sentenced to death. Hence this appeal, based on seven grounds, namely:-

- $111.$ The learned trial Judge erred in law when at the conclusion of the prosecution case he did not make a finding and ruling as to whether or not a primea facie case had been made out against the appellants. - The learned trial Judge erred in law when he did not inform $2.$ the appellants ner recorded their replied as to their rights before they gave their defences. - The learned trial udge erred in law when he convicted the $3.$ 1st appellant of the offence of Aiding when he had not been charged with it. - The learned trial Judge erred in law when he failed to $4.$ require and record the opinion of the 2nd assessor. - The learned trial judge erred when he failed to resolve $5.$ the discrepancies and contradictions in the prosecution evidence in favour of the appellants.

$.../5.$

The learned trial judge erred when he relied on his own 6. theories unsupported by buidence to reject the appellant's cases.

$-5-$

The led ned trial judge erred when he shifted the burden $7.$ of proof from the prosecution to the appellants."

The Memorandum of appeal was drawn and filed by Mr. Paul Byaruhanga on 18-10-90, when he was representing all the three appellants, on a state brief. But by the time the appeal was c called for hearing the first appellant had retained Mr. Cwori as his new Counsel, on a private brief. At the hearing Mr. Oweri adepted Mr. Byaruhanga's memerandum but abandened Greunds 1.2. 4 and 6. He argued Grounds 3,5 and 7 which concerned his client. Mr. Byaruhanga abandoned Grounds 1,2,3 and 4 and argued 5 and 6 only. Grounds 1,2 and 4 were abandoned on the ground that they were "of no consequence."

We agree that there was no merit in Ground 4. But we would say this on grounds 1 and 2. Section 71 of the Trial on Indictments Decree clearly requires a trial Judge to decide, at the close of the prosecution case, whether the accused has a case to answer or not. If a prima facie case has nt been out against him then he must be acquirted at that stage and not latter. If he has a case to answer then the options available to him under section 71 (2) must be explained to him before he makes his defence.

In this case Counsel for the appellants informed the trial Judge that they did not wish to make submissions of no case to answer. May be that influenced the Judge's decision on the matter but it is the duty of the Court and no one else to decide whether the accused has a case to answer or not.

$...16.$

The C~urt must decide the matter one way or the other whether there is a submission by Counsel or not. Be that as it may, we are satisfied that the irregularity did not occasion a miscarriage of justice in view ofthe conclusion the trial Judge reached on those two overt acts.

The convictions of the appellants were grounded on the e evidence of Army Sergeants Morgah Armdam (P. V/1) and Stephen Musana (P.7.2). They wore Military Intelligence Officers who participated in the alleged meetings as spies. They prepared reports of these meetings. The reports were put in evidence as corrobnraticn of their oral testimony. As against the first appellant his retracted confession was relied on.

Their testimony was, briefly, that sometime in May 1990, the Military intelligence received information from Private Buntuki (P.-V/.6) a member ofwthe Military Intelligence Directorate, to the effect that a group of people were plotting to overthrow the Government violently. The group was^trying to recruit Government soldiers into its ranks. Accordingly, the Directorate of Military Intelligence detailed P. W.1 and P. W.2 tn infiltrate the group of plotters which they did. Among the plotters were the appellants. At the time the first appellant was employed §y IntcrnatiohaT Television Sales Ltd. As Assistant Sales Manager; the seconcl ap^fellant is a former-''MaijVrt ivn the defunct Idi Amin Military Regime and the third appellant was self' •employed. Thereafter they attended a series of meeting ad detailed in the overt acts. According to P. U.1 and P. W.2 the meetings at the International Television Sales were facilitated by the first appellant who allowed the plotters to meet in his office. The first appellant also arranged for the meeting at Spring Garden Village, Kyambogo to be held in his counsin's house. He even provided their transport to and fro. Kyamboge. He did mt attend the meeting in his office except once (on $28-8-90$ ) but even then he said nothing during that meeting.

$-7-$

The appellants denied the charges. The first appellant denied that he nermitted his office to be used by the appellants and the witnesses. He denied having even facilitated the meeting at Kyambege. The second and third appellants denied having attended any of the alleged meetings.

We will deal with the case against the second and third appellants first. The trial Judge found that P. W.1 and P. W.2 had given contradictory evidence on overt acts NCs. 1,3,4 and 7. With regard to overt act 1 he found that there was a major discrepancy in their evidence which:-

> went to the rest of the prosecution's case which depended on the credibility of the two key prosecution witnesses."

As a result he acquitted all the appellants. On ever act 3 he did not believe the evidence of P. W.2 in view of a serious conflict in his evidence and one of the reports (exh. P3) which was complied by $P. W.1$ and $P. W.2$ . He said:-

> "the contents of the said report and the evidence of P. W.2 about what were discussed at the meeting are so conflicting that the two cannot be reconciled and a sense made out of them. The inconsistencies and contradictions between P. W.2's evidence in covert and the report Exh. P.3 cannot be said to be minor."

> > $.18.$

He held what overt act 3 had not been proved. In fact P. W.2 was a self confessed liar. He admitted that he and P. W.1 had lied to the Court about their reports - that they had written them at Lubiri Barracks immediately after the meetings with the appellants when the truth was that they had written them three menths later and then back-dated them. This is how P. W.2 put it:-

> "The reports were written three months after the arrest of the accused persons so all that I have told the Court that we recorded our report after every meetings are all lies."

Even some of the reports were show to be false. For example, in one report (Exh. P3) it was alleged that A5 ( Ocan) had attended the meeting of 27-8-90, at Kyambogo. Yet in Court P. W.1 and P. W.2 said nothing about that. The trial Judge found as a fact that A5 did not attend the alleged meeting and accordingly acquitted him of overt act $4$ .

P. W.1 and P. W.2 did not only contradict each other in material respects but did not support each other on other points. For example, in respect of overt act 2 the trial Judge found that:-

> "P. J.1's talk about he and P. W.2 promising to recruit soldiers from Lubiri Boracks and that they had 23 guns and 20 trusted soldiers at Lubiri Barracks is not supported by $P. W.2'''$

The Assessors in the case did advise the trial Judge that as P. W.1 and P.7.2 had already been found not to be credible witnesses on all the overt acts. With respect, we think the Assessors were fight. As the two key witnesses had been very badly discredited, they should not have been relied upon to convict any of the appellants on any of the overt acts which formed a series of same transaction. $...19.$

In the result, we allow the appeal of the second and third appellants. The first appellant had raised an interesting point of law in ground 3 of apperl. His complaint is that since he was charged with treason, it was not open to the trial Judge to convict him of aiding and abetting treason which is not a minor and congnite offence. The offence of treason is set out in section 25 of the Penal Ocde, the relevant parts of which state as $fellows:-$

$-9-$

- $1125.$ (1) ..ny person who - (a) $- -$ - (b) $---$ - - (c) Contrives any plot, act or matter and expresses or declares such plot. act or matter by any utterance or by any evert act in order, by force of arms, to everturn the Government as by law establidhed; - (d) $aids$ or abets another person in the commission of the foregoing acts, or becomes an accessory before or after the fact to any of the foregoing acts, or conceals any of the foregoing acts.

commits an offence and shall suffer death."

Overt act is defined in section 35 of the Penal Code as $follcws:-$

> "35. For the purpose of any offence defined in this Chapter (Chapter VII covering treason and offences against the State) when the manifestation by an overt act of an intention to effect any purpose is an element of the offence, every act in furtherance of the commission of the offence defined or every act of conspiring with any person to effect that purpose and every act done in furtherance of the purpose by any of the persons conspiring, shall be deemed to be an overt act manifesting the intention."

> > $.../10.$

As already pointed out, the trial Judge held that aiders and abotors are principal offenders by virtue of the provisions of Sections 21(1)(c) and 35 of the Penal Code. Section 21(1) (c) states:-

> (1) Then an offence is committed, each $"21.$ of the following persons is deemed to have taken part in c mmitting the offence and to be builty of the offence, and may he charged with actually committing it, that is to say

- $(a) = - -$ - $(b)$ - - - (c) every person who aids or abets another person in committing the offence."

Clearly section 21(1) (c) is a general provision, making aiders and abettors principal offenders. There is a specific offence of aiding and abetting in section 25(1) (d). The prosection chose not to proceed under this section by amending the charge after it had transpired, from the evidence, that the first appellant had not participated in the actual plot but that he might have facilitated the plotters semehow. As the trial Judge rightly found, the prosecution did not prove that the first appellant participated in any of the overt acts.

The question then is, in view of the specific offerce in section 25(1) (d) was the trial Judge rightto invoke the general provision in section 21(1) (c)? We think net. The first appellant could have been charged with aiding and abetting under section 25(1) (d) but was The evidence led by the prosecution clearly focused on not. the overt acts as stated in the particulars of the offence and naturally the first appellant applied the defence to those overt acts only.

$.../11.$

We are satisfied that he was wrongly convicted under section 25(1) (d). His appeal^suceeds on that account. We do not find it necessary to go into the question whether there was sufficient evidence to warrant the conviction.

In the result the appeal is allowed. The appellants' conviction is qhashedj'.nd sentence set aside. The appellants are to be released from custody forthwith unless otherwise lawfully held.

DATED AT MENGO THIS .. A.tJi.. . .. day of .. XWjl.,......................... 199^

S:. T. MANYINDO

DEPUTY CHIEF JUSTICE

THIS IS TO CERTIFY THAT THIS IS THE T7UE COPY OF THE ORIGINAL. B"J. ODOKI

JUSTICE OF THE SUPREME COURT

V>'W-w> A. L. KYEYUNE AG. ASST. REGISTRAR

17th November, 199^ H. G. PLATT

JUSTICE OF THE SUPREME COURT