Isimbwa and Another v Ugandqa (Criminal Appeal 13 of 1991) [1993] UGSC 28 (14 January 1993)

# INTHE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: WAMBUZI, C. J., ODER, J. S. C. & PLATT, J. S. C,)

### CRIMINAL APPEAL NO. 13 OF 1991

BETWEEN

1. Patrick isimbwa

2. MOHAMED KASSIM OYEKA alias OKELLO

AND

# UGANDA :::::::::::::::::::: RESPONDENT <sup>7</sup> /o

APPELLANTS

<7

(Appeal from the conviction and sentence of the High Court of Uganda at Kampala (Kato, j.) dated 21/2/1989)

IN

## CRIMINAL SESSION CASE NO, \$2 OF 1989

### JUDGMENT OF THE COURT

The two appellants together with 2nd Lt, Amon Munyaka, as the first accused person, and two others, had been charged with and tried for robbery, contrary to sections 272 and 273(2) of the Penal Code. The indictment had alleged that all the accused persons had on 29\*12\*88 at Nakasero robbed the complainant PaRSIS OKaO, <sup>a</sup> widow (PW1) of numerous items of household property and cash and threatened to use a gun against the complainant. In an alternative count, the 1st accused had also been charged with receiving and retaining stolen property contrary to section 298(1) of the Penal Code. At the close of the prosecution case two of the accused persons were found to have no case to answer and were acquitted. The 1st accused and the appellants were put on their defence. At the end, the 1st accused was acquitted of the charge of robbery and the two appellants were convicted of simple robbery, contrary to sections 272 and 273(1)(h) of the Penal Code and each sentenced to six years' imprisonment and six strokes of the caJOe, It was also ordered that they should remain under police

supGj\*v3-sion for «a period of four years after completion of their sentences- They have now appealed against the conviction and sentences.

- 2 - .

The learned trial Judge omitted to make a finding one way or the other regarding the alternative count against the 1st accused person. Before we proceed to consider the grounds of this Appeal, we would like to make some observations about that omission. The particulars of that count had been that on 31.12.1988 at Makerore Kivulu in Kampala, the 1st accused person had received or retained a large number of household goods many of which were items which had been stolen from Parsis Okao (PW1) on the day of the robbery in question. The evidence supporting that count had come from <sup>a</sup>IP Charles Gatunye of Wandegeya Police Station (PW2). Briefly it was that on information received Ka a house at Makerere Kivulu'at whi^h the 1st accused was mid -wmis durincr th«» woajf'ph- , The yielded the i . . . <sup>I</sup> goods which became the subject matter of the alternative count.

In his defence to both the charge of robbery and the alternative count of receiving and retaining' stolen property, the 1st accused made an unsworn statement to the effect that the house in which the goods had been found was that of his girl friend, one Kabasomi, where he had stopped as a visitor for a few days after he had been discharged from Mulago Hospital before he was due to proceed to his unit. While he was still at his girl friend's house, a police corporal delivered the goods in question at Kabasomi\*s house on 30.12.1988. When he asked Kabasomi about the owner of the goods, she informed him that they belonged to her brother, one Mutabuzi, a Policeman. In the circumstances, the 1st accused had no reason to suspect that the goods were stolen property since it was a policeman who had delivered them there.

When acquitting the 1st accused of the charge of robbery the learned trial judge accepted his explanation of how the goods wefe delivered at the house where he and the goods were found during the 1

#### The learned trial Judge said this:-

".... there was no evidence by prosocution to prove that the house where those items were recovered belonged to A.1. The mere fact that $A.1$ was found at the house is not enough. In his statement A1 informed the court that those things had been taken there by a policeman called Mutabazi and that he had no reason to suspect them to have been stolen. This statement by A1 was never contradictod. Prosecution would have improved their case greatly by calling Mutabazi and the with Kabasomi who would possibly have told the court as to who was the owner of the house. I accept the explanation as given by A1 regarding the circumstances in which the things came to the house where he had<br>visited his girl friend Kabasomi as to<br>truthful.

The learned trial judge emitted to make a finding on whether the 1st accused person was guilty or not on the alternative charge of recontains or retaining stolen property. This happened although Mr. Tumusingize counsel for the 1st accused at the trial had addressed the trial court regarding the alternative count; and the learned trial judge himself had advised the assessors on that count in his summing up to them. This was an irregularity for which we would normally have ordered a retrial. In the circumstances of this case however, we do not think that a retrial should be ordered in respect of the alternative count because, in our view, the evidence as accepted by the learned trial judge is such that had he adverted to the matter, he would inevitably have acquitted the 1st appellant of the alternative count. For these reasons we think that there is no basis to order a retrial and we shall not do so.

As the learned trial judge found in agreement with both the assessors, there appears to have been no doubt that on the night of 29.12.1988 at 11.00 p.m. when PUI returned from an outing a gang of armed men forced Parge See Mat at Nakasero. They then robbed her of a Targe $4/$

quantity of household goods\* Some of the articles of properties were later recovered by the police from various parts of Kampala and PW1 identified them as her property\* Such property included the following:- black and white TV set, woollen blanket, coloured TV set, video deck, electric stabiliser, loud speaker, parts of a music system, knife, bunch of keys, telephone answering machine, travelling bag and 26 tapes\* According to the evidence of PW1, the incident of robbery took 1/2 hours\* There was electric light in both the sitting and bedroom from which the property was stolen\* She was, therefore, able to see the robbers. She also claimed to have identified the appellants at identification parades which were later held at Wandegeya police station on 9\*1\*1989\* Further, according to the prosecution evidence, some of the stolen articles, namely the coloured TV set, telephone received, woollen blanket, louder speaker, knife and bunch of keys were found at Makerere Kivulu in the house of one of the appellant's co-accused, who alleged that the items had been taken there by the two appellants. It was also claimed in the prosecution evidence that the black and white TV set was recovered from the house of the 1st appellant on Upper Kololo Terrace in Kololo.

In his defence, the 1st appellant testified that on the night of 29.12.1988 he was in his house at Prince Charles Drive, Kololo, where he had returned at 7\*00 p.m\* after duty\* The following morning, he went to his place of work. He was arrested on 6\*1.1989, and taken to Wandegeya Police Station by a policeman called Mutabazi, from whom the 1st appellant was claiming payment of shs 50,000/- being the balance of the sale price of his radio for which the policeman had paid only shs 20,000/-\*

The 2nd appellant;-also?.put -up -afi^alibi iirhis^defencb t8 the"' effect that on the night in question he spent the whole night in his

5/....

- <sup>4</sup> -

house at Naguru Godown. He was arrested on 9.1.1989 on allegations that he did not have a licence to deal in paraffin and hoes which he was found to have loaded in a vehicle on Wilson Street in Kampala.

The learned trial judge accepted the evidence of PW1 regarding her identification of the 1st appellant at the scene of the crime and at the identification parade. The learned trial judge, however rejected the prosecution evidence about the recovery of the black and white TV set from the house of the 1st appellant, because no evidence was adduced to indicate that the house in which the T. V. set had been recovered was occupied by the 1st appellant, since the item was recovered in his absence. Moreover, the 1st appellant had testified that he was living on Prince Charles Drive and yet the T. V. set was recovered from Upper Kololo Terrace.

In the circumstances, the conviction of the 1st appellant was based only on the evidence of a single identifying witness namely PW1.

In the case of the 2nd appellant, the learned trial judge rejected the evidence of the identification parage regarding him, on the ground that the identification parade res not held in accordance with the rules laid down in R. V. Mwango s/o Mana (1936) 3EACA 29. and Sentale v. Uganda (1968) EA 365 at 369. Notwithstanding, his rejection of the evidence concerning the identification parade, the learned trial Judge still convicted the 2nd appellant on the evidence of PW1 that she had identified him at the scene. Similarly, the conviction of the 2nd appellant was based on evidence of identification by a single witness and no other evidence.

The Memorandum of appeal contained eight grounds of appeal as follows:-

$6/$ $\cdots$

$\mathcal{A} = \mathcal{A}$

$11 -$ The learned trial Judge misdirected himself in finding that all the conditions<br>necessary for proper identification were present at the time the prosecution witness identified the two accused persons.

$-5 - 1$

- 2\* The Judge erred when he held that the irregularity of the identification parade was immaterial in the nature and circumstances of the case. - The learned Judge erred when he failed to dismiss the evidence of PW2 as being untruthful. - 4. The learned trial Judge misdirected himself in holding that there was sufficient evidence to destroy the defence of alibi of A\*\*\* and A5<sup>j</sup> basing himself on irregular identification in paragraphs <sup>1</sup> and 2 hereof. - The learned Judge failed and/or neglected to investigate, make a finding and weigh the evidence of and A5 relating to the circumstances under which they were arrested. - 6- The learned trial Judge erred in finding that there was theft inspite of the glaring break in the chain of evidence. - 7• In view of paragraphs 1, 2, ^3 5 and 6 hereof, the trial Judge erred in basing a conviction and sentence of inadequate evidence. - 8. The trial Judge erred in Passing a harsh and excessive sentence against the accused persons.«

Mr. Christopher Bwanika, learned counsel for the Appellants, argued grounds one, and two separately, but we found it more convenient to take the two grounds together, since they relate]to identification which^'w^ think, is the most importaht is'sue in thisrap]?£Q4\*^ T?he learned counsel's submissions in this regard attacked the finding of the learned trial Judge that PW1 had properly identified the two appellants. He contended firstly, that conditions for such identification did not exist, because it was not clear what kind of lights were in PW1's flat during the robbery - whether it was a lamp or other kind of light; the robbers were strangers to PW1 who had never seen them before; the 1st appellant's mouth and nose were covered with a piece of cloth and yet PW1 claimed.she could identify him by his eyes and hair which were not covered; and PW1\*s ability to properly observe what was happening must have been impaired by a drink of beer which she had taken.

7/....

Secondly, the learned counsel contended that the learned trial judge should have found that the identification parade was a nullity in respect of both the appellants, due to irregularity with which the identification parade was conducted and because PW1 had seen both the appellants at Wandegeya Police Station before the parade was held there.

We find that some of these criticisms are well founded. This is a case in which the convictions of the appellants were based only on the evidence of identification by a single witness, the evidence of possession of recently stolen property having been rejected, rightly so in our view, by the learned trial Judge. It was necessary, therefore, for the learned trial Judge to properly direct the assessors and himself on the law regarding such evidence and to apply it in the case before him. The law regarding identification by a single witness is now well settled. It has been laid down in the leading cases of Abdala Bin Wendo and Anor. V R (195318, 20 EACA, 166; and Roria V. Rep (1967) EA, 58?, and numerous decisions of this court including Tomasi Omukono 8c Another v. Uganda Cr. APP\* No. 4 of 1977 (unreported); George William Kalyesubula y Uganda, Cr. App\* No. 16 of 1977, (unreported); Fabiano Olukudo v Uganda, Cr. App« No. 24 1977, (unreported); Abudala Nabulere and 2 other v Uganda Cr. App. No.9 of 1979 (Unreported); and Moses Kasana v Uganda Cr> ^pp. Nov 12 of 1981^ (Unreported) Briefly, the law is that although identification of an accused person can be proved by the testimony of a single witness this does'"riot' lessen the need for testing with the greatest care the evidence of such witness regarding identification especially when the conditions favouring correct identification are difficult. In such circumstances what is needed is other evidence pointing to\_guilt from which it can be reasonably concluded that the evidence of identification can safely be accepted as free from possibility of error. The true test is not whether the evidence of such a witness-is•reliable.

<sup>J</sup> 8/....

- 7 - A witness may be truthful and his evidence apparently reliable and yet there is still the risk of an honest mistake particularly ;in identification. The true test is that laid down in the cases we have referred to vzhich, briefly, is whether the evidence can be accepted as free from the possibility of error.

While thereforei a court can ' base *a* conviction on the evidence of a single identifying witness, it is necessary it observe certain safeguards. The first is that the evidence of the witness must be tested with great care by examining the circumstances under which the Identification was made- The second is that the trial Judge should seek supporting evidence if possible and in any event warn himself and the assessors of the special need for caution before convicting on the evidence of a single witness. In the case of Abudala Nabulere (supra), this court said this:

> "Where the case against an accused depends. wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The Judge should then examine closely the circumstances the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused. AH these factors go to the quality of the identification evidence. If the quality is good the danger of a mistaken identity is reduced but the poorer the quality the greater the danger." (sic).

In the instant case we find that the learned trial Judge properly warned himself and the assessors on the danger of reliance on the evidence of PW1 alone for conviction of the appellants. He also bore in wind the conditions which are necessary for correct identification

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9/...

of an accused person. The learned trial Judge then made his finding on identification regarding the 1st appellant as follows:-

> ''Turning to the case of the complainant Mrs\* Okao was persistent that she recognised this accused•while in the house and when outside and later on she identified him at an identification parade which was conducted at Wandegeya Police Station on a date which she could not remember. I accept her evidence as truthful she certainly had enough time to recognise this particular person considering the amount of time she kept him under observation and the fact that there was light in the house."

With respect, we think that although the learned trial Judge properly directed himself and the assessors on the law to be applied, yet we are unable to agree that in the circumstances of this case, the evidence of identification from PW1 would rule out the possibility of mistake on her part. Firstly, because the appellants were complete strangers to her; she was seeing them for the first time. Secondly, although according to her evidence, there appears to bo no doubt that the lights Which luminated the bedroom and the sitting room during the incident were electric lights and that PW1 had about *Vh* hours in which to observe her assailants during the robbery, yet the 1st appellant had covered -his mouth and'nose with *a* piecd of cloth; in. PWI's own' evidence she said:

> ''but still I could recognise him from his eyes and hair which were not covered." ; '•

She did not say how she was able to recognise the 1st appellant from his eyes and hair.. There was no evidence that the 1st appellant's 4 eyes and hair 'had any peculiarities that were striking or unique. Thirdly, the identification.parade at which PV/1 claimed to have. identified\* the 1st appellant was render0d valueless because she had seen both the appellants before the identification Parade. Her evidence in this regard reads as follows (on page 13):- " 10

- 9

"1 cannot r-emember exactly at what time I reported the matter at Wandegeya Police Station, but it was in the morning not afternoon, when I went there, I found there A1, the next time I went there was during mid-day when I was called to go and identify some of my things but none of those things were mine, at about 1.00 p.m. ,on the same day I went back and identified some of my things, I found A<sup>2</sup><sup>r</sup> and a5 at Wandegeya on. a date I cannot remember. It could have been 51•12\*88, The identification parade was held on 9«1.1989, but I had seen a^ and A5 earlier than that date at Wandegeya Police Station when I found them in an office where A2! and A5 were with officers recording .their statements, apart from the officers there were other suspects. I was asked if I know the suspects, and I picked A<sup>2</sup>\*- and A5? I had been specifically called for that purpose and it was before 9\*1\*1989\* On 9\*1\*1989, I was kept in an office and and A5 were put in a group of about 10 people and I was asked to pick the suspects I picked A2\* and a5 that was behind Wandegeya Police Station. I picked them because I had seen them on the day they robbed me."

An identification parade is usually intended to test the consistency oj£ a witness regarding her or his identification of a suspect whom he or she claims has participated in a crime of which she or he was an eye witness. At such a parade, the witness would be expected to identify a stranger whom she may have seen for the first time at the scene of crime. But if the witness is shown the suspect or sees the suspect in the hands of the police before the identification parade, then the evidential Yp.ue of such parade is rendered useless. Tha\_t\_ is what happened in the instant case. In the circumstances, with respect, we think that the learned trial Judge should not have placed any evidential value on the evidence of PW1 and of <sup>d</sup>/aIP Charles Okori (PW5) who conducted the identification parade. In the circumstances and in view of the conditions which were not favourable to correct identification, for example the 1st appellant being a stranger to PW1 11/.•• •

and the 1st appellant's mouth and nose being covered, other evidence was necessary which pointed to the guilt of the 1st appellant and from which it could be reasonably concluded that the PW1\*s evidence of identification was free from a possibility of error. As it is, no such evidence was available. In the circumstances, we think that the danger of relying on the identification evidence of Pffl fr-lofle. was. not eliminated.

With regard to the identification of the 2nd appellant (who was A5 nt the trial) the learned trial judge's finding was made in the following passage of his judgment

> ''concerning a5 the complainant ,told the court in her evidence that this particular accused remained guarding her all the time although she was lying down. She also testified that she had identified him at an identification parade. It must be said that the identification parade in respect of A5 was quite irregular and did not conform with the rules laid down in the cases of R. V. Mwango s/o,Mana (19?6) EACA 29, and Sentale y.' Uganda (l968) EA 5^j ai in £l?af 6Ke- same volunteers were used in the parade where PW1 identified the accused A5 was also shown to PVJ1 before the identification parade was conducted. The identification parade was of no use to the prosecution as far as A5 is concerned, Jjut tyiat in itself does nof mean that PW1 did not see hirn at <sup>&</sup>gt; her house." '

The evidence regarding the identification Parade concerning the 2nd appellant having been rendered useless as the learned trial judge, properly in our view, foun'd, the''only evidence of identification left which connected the 2nd appellant with the crime charged in this case was that of identification at the scene. As it happened the consistency of PW1 in that regard was not tested in any way. In the circumstances, as in the case of the 1st appellant, we do not think that the evidence of PW1 alone was free from a possibility of error such a« to justify a conviction of

the 2nd appellant on that evidence alone\*

In the circumstances, we think that grounds one and two of the appeal should succeed\*

• Next we move to consider ground three\* As far as we were able to understand the learned counsel for the appellants, the evidence of PV/2 which he criticised the learned trial judge for accepting under this ground relates to the alleged recovery of a TV set at the house of the 1st appellant and the manner in which the exhibits generally were handled\* With respect, we think "that there was no merit in this criticism\* Firstly, becuase the learned trial judge did not accept the prosecution evidence that a TV set was found in the 1st appellant's possession\* On the contrary, he rejected such evidence out-right and gave reasons for doing so. secondly, the learned trial judge himself criticised the prosecution for having handed over to the complainant, PW1, all the recovered property before it was tendered as exhibit at the trial\* The learned trial judge then proceeded to remark that the consequent irregularity was not so material to the instant case, for the prosecution case was not wholly dependant upon the existence of the exhibits\* We agree with the learned trial judge that since the exhibits in question were not of a perishable nature, it was irregular for the prosecution to have handed them over to the complainant prematurely without some reasonable explanation\* However, as the exhibits did not serve any useful purpose of connecting the appellants with the crime with which they were charged, the irregularity with which the exhibits were handled did not, in our opinion, occasion any miscarriage of justice\* In the circumstances, we think that ground three of the appeal should fail\*

Regarding ground four, the learned counsel for the appellants criticised the finding of the learned trial judge thnt there was 1V.. I

sufficient evidence from PW1 to destroy the alibis of the -^appellants. We have already referred to the respective evidence of the appellants regarding their alibis. This is what the learned trial judge said in this connection:-

> ''All the 5 accused persons raised a defence of alibi. It is trite law that when the defence puts up an alibi as a defence, it is the duty of the prosecution to negative or destroy that defence but the accused does not bear the burden of proving that defence: Nabulere and 2 others v. Uganda (1979) HCB 77 at page 80. In the present case, <sup>I</sup> find that the prosecution has not adduced evidence to destroy A1 ' s alibi but there is sufficient evidence from PW1 to destroy the defence of alibi put up by *A\*+* and A5\* 1 accept A1<sup>1</sup> s story that he was not at the home of PW1 on the night of 29.12.1988 to be truthful but not that narrated by, A^ and A5\* It is my firm opinion that conditions favouring correct identification of A^ and A5 by PV/1 at the scene of crime existed and she (PW1) properly identified them at her home on the night in question."

With respect, we do not agree with the learned trial judge's conclusion that conditions for correct identification of the appellants by PW1 existed in the circumstances of this case. Our reasons for saying so have already been expressed elsewhere in this judgment, which it is not necessary to repeat here. In the absence of any other evidence connecting the appellants with the offence beyond PW1's identification evidence, we think that the appellant's respective alibis raised a doubt about their participation in the crime charged against them. That doubt must be resolved in their favour. In the circumstances, we think that ground four of the appeal should succeed.

What we have said under grounds one, two, three and four, in our view, also covers and disposes of grounds five, six and seven, which the learned counsel did not argue.

In the circumstances, we find that the prosecution did not prove the case against the appellants beyond reasonable doubt.

It would, therefore, be unsafe to allow the conviction against them to stand.

In the result, this appeal is allowed, the iconviction against each appellant is quashed and the sentences set aside\* It is ordered that the appellants should be released forthwith unless held on some other ground.

The appeal against conviction havirg succeeded, that also disposes of the appeal against sentence.

Before leaving this case, we would like to express our disquiet about the manner in which the police investigators of this case failed to take the necessary steps of simple procedures of carrying out identification parades. This is a failure which wo have come across in raany cases in recent months. We would not like to believe that CID officers who investigate such cases are not unaware of the rules regarding identification parades. The difficulty appears to be part of a general problem of slow improvement in the standard of criminal investigations which still pervades the work of the Criminal Investigation Department. In the circumstances we would like to direct that this judgment be brought to the attention of the Attorney General.

DATED at Mengo this 1^th day of January, 1993\*

Sgd: S. W.'J. V/AMBUZI CHIEF JUSTICE

> A. H. O. ODER JUSTICE OF THE SUPREME COURT

H. G. PLATT JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE CO£Y -QF. THE ORIGINAL..

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT - 14 -