Juuko v Uganda (Criminal Appeal 68 of 2016) [2019] UGSC 93 (24 January 2019)

## ) THE RTPUBLIC OF UGANDA IN THE SUPREME COI'RT OF UGANDA AT KAMPALA

Coram: Arach-Amoko, Mwangusya; Opio-Aweri; Buteera; Nshimye;JJ. S. C.

### CRIMINAL APPEAL NO. 68 OF 2016.

### BETWEEN

## FRED JtruKO ::::::: :::::: ::: APPELLANT

### AND

#### UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESFONDENT 15

(Appeal aising from the judgment of Justices of the Court of Appeal, Geoffreg Kiryabuire, Poul Mugamba, Catherine Bamugerereire, JA).

### JUDGMENT OF THE COURT.

This is a second appeal against the judgment of the Court of Appeal that was delivered on the 20tn day of December 2016 arising from the judgment of the High Court at Mpigi. 20

The appellant was indicted for Aggravated Robbery contrary to Section 285 and 286.21 of the Penal Code Act.

# 2s Back Eround to the Appeal.

Between 17th and 18th November 20 1O at or a-round 10:45pm at Nansana 718 Zone in Wakiso District, the appellant Fred Juuko robbed Emmanuel Sentongo of shillings 133,0OO/: (One hundred and thirty three thousand), a Nokia 1600 Mobile Phone and a Bajaj Boxer Motor Cycle and at or immediately after the said robbery used a deadly weapon, namely a hammer on the said Emmanuel Sentongo. The appellant was tried and convicted as charged and sentenced to fourteen years imprisonment.

35 He appealed to the Court of Appeal against the sentence on the ground that the learned Trial Judge erred in law when she

's sentehced him to fourteen years imprisonment without deducting th.e 3Yz years the appellant haci spent on remand.

The Court of Appeal dismissed the appeal and held that the Learned Trial Judge had followed the correct procedure in passing the sentence and specifically thc Judge had taken into 10 account the period the offender had already spent on remand.

The appellant was dissatisfied with the decision of the Court of Appeal and appealed to this Court on the following grounds, that:-

1. The learned Justices of the Court of Appeal erred in law 1s by injudiciously not allowing the appellant to present grounds ln the memorandum of Appeal filed on lotb July 2O14 and allowed one ground of the memorandum of Appeal filed on 27h July 2O16 thereby occasioning miscarriage of justice.

- 2. The learned Justices of the Court of Appeal erred in law by not deducting remand period making it an illegal custodial imprisonment sentence of 14 years that was imposed upon the appellant by the trial Court. - <sup>25</sup> The appellant prayed Court to allow '.he appeal, make <sup>a</sup> declaratory order that the appellant's memorandum of appeal that was filed in the Court of Appeal on loth July 2O14 be heard on merit by the Court of Appeal and for the Court to reduce the sentence against the appellant by deducting the period spent on remand. 30

### <sup>5</sup> Reprbsentation.

Dunng the hearing of the Appeal, the appellant was represented by Mr. Rukundo Seth while the respondent was represented by Ms. Kabajungu Ann, Senior State Attornev .

Both Counsel frled and adopted their written submissions.

#### Submisslons: 10

### Grouud oae

## The appellant.

Learned counsel for the appellant submittcd on the first ground that the learned Justices of the Court of Appeal erred in law for not considering the appellant's memorandrrm of appeal filed on 10 July 2Ol4 but instead considered the one filed by the appellant's counsel on 27 July 2014. Counsel argued that it was an error for the Court of Appeal to ignore the l"t memorandum of appeal and to proceed with the second one as if a supplementary memorandum under Rtrle 67 (2) of the Court of Appeal Rules had been frled. Counsel invited this Court to invoke its inherent powers under Rule 2 (2) of the Rules of this Court by allowing the appellant to introduce the ground against conviction as raised in the memcrandum dated 10th July 2O14. 15 20

#### The respondent. 25

In reply, Ms. Kabajungu opposed the appellant's submission and contended that the Court of Appeal did not err by not considering the memorandum of appeal dated 10th July 2014. She argued that all along the appellant was personally before the Court when his counsel was arpnring the appeal wherein he emphatically stated that the appeal was based on only one ground, namely that the period spent on remand was not deducted from the 14 years imprisonment.

# s Coneideration.

We have perused the record of proceedings in the Court of Appeal. The record shows that when the appeal was cailed for hearing, the only ground which was placed before the Court of Appeal for hearing was about failure by the trial Court to deduct th.e 3Yz years that had been spent on remand before conviction. We presume that those were the instructions from the appellant. We further presume that if those were not his instructions, the appellant would have objected immediately before Court about the same.

The appellant who did not object before the Court of Appeal, can nct now turn around and purport to fault the Court of Appeal for a wrong they never committed. We do not find it proper for tJ:e appellant to attempt to invoke the inherent powers of this Court under Rule 2(2) of the Rules of this Court either. Inherent powers 15

20 of this Court are restricted to applications for the purpose of achieving the ends ofjustice or to prevent abuse ofthe process of the court. In the instant case no error of justice was committed by the Court ofAppeal.

25 For those reasons this ground must fail for being an afterthought.

## Ground two.

## Appellant

Counsel for the appellant submitted that the trial Court and the Court of Appeal did not take into account the period the appellant had spent on remand. Counsel relied on the case of Rwabugande Moses v Uganda, Supreme Court Appeal I{o. 25 of 2Ol4 where this Court stated that the period spent on remand has to be deducted from the sentence imposed.

### Reepondent

5,,

Ms. Ann Kabajungu in her reply conceded that the trial Court did not deduct the period of 3 '/z years that the appellant had spent on remand from the sentence of 14 years imprisonment.

10 Conslderation.

It is now trite law by virtue of clause (8) of Article 23 of the Constitution that a trial Court when sentencing a convicted person is required to take into account any period the convict spent in lawful custody.

1s The trial Judge while sentencing the appellant herein observed as follows:-

nConsidering tlrc sentencing Guidelines, the starting point for such a cn-me, where there is mitigation of sentence should range from 3O gears. Prosecution has praged court to pass a 25 year 20 impisonment term; the defence counsel has proposed 1O gears impisonment........... Considering the period spent on remand of 3)/z lears, the ciranmstances of this case, the injuies inflicted upon the uictim as well as the grauitg of the offence and the manner of inflicting the. (sic) Howeuer consideing the 3t/z gears 2s spent on remand, I herebg sentence gou to fourteen (14) gears impisonment."

The Court of Appeal agreed with the learned trial Judge and stated as follows:-

n....................... Artic\e 23 (8) of the Constittttion does not 30 necessailg require an qrithmetic approach to sentencing uhich includes subtracting the time spent on remand. What is required of the Court is that the peiod the pisoner has spent on remand is

5 taken into consideration before the passing of the sentence. The Supreme Court decision of Kizito Senkula v Uganda, Criminal Appeal No. 24 of 2001 clearly stated:-

"As we understand the provisions of Article 23 (8) of the *Constitution, it means that when a trial Court imposes a term of* imprisonment as a sentence on a convicted person the Court should take into account, the period which the person spent on remand prior to his/her conviction. Taking into account does not mean an arithmetic exercise" .................................... judge in this case followed the correct procedure in passing the *sentence. Both the mitigation and aggravating circumstances* were considered. The learned trial judge specifically took into account the time the offender had already spent on remand....."

$\overline{7}$

$\alpha$

We agree with the above conclusion of the Court of Appeal. The above decision of the Court of Appeal came out on the 20<sup>th</sup> December 2016. By that time the principles enunciated in the Kizito Senkula (supra) and a host of other cases were still the law. At that time the sentencing regime did not require the deduction of the period spent on remand to be effected in a manifestly arithmetic way.

Rwabugande Moses (supra), however, changed the law on the 3<sup>rd</sup> 25 March 2017 where this Court found it right to depart from its earlier decisions mentioned above and changed the sentencing regime where deduction of the time spent on remand did not require an arithmetic deduction. Rwabugande Moses (supra) set in a new sentencing regime whereby time spent on remand before 30 conviction has to be arithmetically deducted from the term of imprisonment imposed. For the above reason the Court of Appeal cannot be faulted for following the then prevailing position of the law. This is because at the material time the sentence imposed

$\mathbf{6}$

- and confirmed by the Court of Appeal was legal and it remained so since that was prior to the decision in Rwabugande case. The same reasoning was articulated by this Court in **Osherura Owen** & another vs Uganda, Criminal Appeal No. 50 of 2015, where it was held as follows:- - "We note also that the appellant in this appeal were convicted and 10 sentenced on 26<sup>th</sup> April 2012. The Court of Appeal rendered its decision on 20<sup>th</sup> April 2015. Needless to say it would be moot to suggest as the appellants appear to intimate that either the High *Court or the Court of Appeal could possibly have taken cognizance* - of Rwabugande Moses $\nu$ Uganda (supra), a decision rendered in 15 *2017.* Suffice it to say that the decisions of the two lower courts *did not depart from the provisions of the Constitution".*

For the above reasons we find no merit in this appeal.

Before we take leave of this matter, we would like to disagree with the Justices of the Court of Appeal when they observed that it is 20 possible for Court to take into account the period the appellant spent on remand and still pass a sentence of life imprisonment or death.

Article $23(8)$ does not encompass instances where the sentence handed down is either life imprisonment or the death penalty. 25 The provision applies only where the sentence is for a term of imprisonment or a quantified period of time which is deductable. See; Magezi Gad v Uganda SC Crim Appl No. 17 OF 2014) $[2017].$

The appeal is accordingly dismissed. 30

Dated at Kampala this. 26th Dovember 2018.

**ARACH-AMOKO, JSC.** MWANGUSYA. JSC

OPIO-AWERI, JSC.

$10$ $\mathbb{R}$ $ERt$ BUTEERA, JSC. $\bullet$ NSHIMYE, JSC.

$15\\$ ## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL COURT NO. 31 OF 2014

Coram: (Arach-Amoko, Mwangusya, Opio Aweri, Mwodha, Tibatemwa-Ekirikubinza JJSC)

## Betweeu

| 1. Opolot Justine | | |-------------------|------------| | 2. Agamet Richard | Appellants |

## And

Uganda Respondent

[Appeal from the decisions of tle Court of Appeal at Kampala before Nshimge, Buteera, and Kalstnt, JJA Criminal Appeal No. 155 of 2009 date lst JulA, 20141

## JUDGMENT OF MWANGUSYA, JSC IDISSENTING

I have had the opportunity of reading the judgment of the Court and I do not agree that the Conviction of the appellants by the High Court which was upheld by the Court of Appeal is sustainable by the evidence adduced by the prosecution. I find that the evidence relied upon by both Courts falls short of proving the case beyond any reasonable doubt as required by the law.

The background of the case and the circumstances leading to this appeal are well laid out in the judgment of the Court and I need not repeat them except in so far as they are relevant to this judgment. The evidence adduced by the prosecution shows that at the time the assailants allegedly attacked the home of the

deceased persons there were five occupants. These were Kulume Janet, (deceased) and mother of Orieno Amos (also deceased), Alupi Janet (PW3), Olobo Naphtali (PW4) and Andrew Bosco (PWS). PW5 was also a victim of the murderous assault but he miraculously survived the serious injuries he sustained during the attack. The prosecution relied on the surviving occupants of the home all of whom claimed to have identified the two appellants as the persons who killed the deceased persons and badly injured PWS.

According to all the three witnesses, they were in their room when they were alerted to the attack on their home by their mother. They all gathered in their mother's room where she had lit a lamp (tadoba). PW3 hid under a bed while PW4 hid among sacks of rnaize. The two claimed to have recognised the assailants whom they knew very well with the aid of the tadoba. The two witnesses claimed that the attack took about an hour. I think this is an exaggeration because from the description of events, the assault on the victims could not have taken that long. The evidence showing that there was light, that the two appellants were well known to the witnesses and the duration the incidence took led to the conclusion by the two Courts below that the prevailing conditions enabled the three witnesses to identify the two appellants and there was no possibility of error. I do not share this view. On the contrary I do not believe that PW3 who testified that he was hiding under a bed, PW4 who hid among the sacks of mai.e and PWS who was seriously injured during the

attack had an opportunity to clearly recognise the appellants as claimed.

According to the case of Moses Bogere and Another vs Uganda (SCCA No. 1 ot 19971 which was cited by both Court, this Courts has laid down three material considerations when faced with case which is mainly dependant on visual identification(s). These are:-

- 1. Whether there were factors or circumstances which at the material time rendered identification of the attackers difficult notwithstanding that there were those which could facilitate identification. - 2. Whether the absence of evidence of arrest and/or police investigation had any or no adverse effect on the cogency of the prosecution case - 3. Whether the appellant's defences of alibi were given due consideration.

In respect of the hrst issue the Supreme Court gave the following guidelines:-

"This Court has in very many decided cases given guidelines on the approach to be taken in dealing with evidence of identification by eyewitnesses in criminal cases. The starting point is that a Court ought to satis fy itself from the evidence whether the conditions under which identification is claimed to have been made were or were not diflicult. and to warn itself of the possibility of mistaken identitv. The Court should then proceed to evaluate the evidence cautiouslv so

that tt does not convict or uphold a conviction . unless it ls satisfied that mistaken identitv is ruled out. In so doing the Court must consider the evidence as a whole, namely the evidence if any of factors favouring correct identificatlon together with those renderlng tt dtfllcult.

It is trite law that no piece of evldence should be weighed except in relation to the rest of the evidence. (See Suleman Katushabe Vs Uganda S. C. Cr. App. No 7 k of f991) unreported" (underlining provided)

The finding of the trial judge on the circumstances under which the identifications of the appellants were made was that he did not wish to dismiss the submissions that the conditions were difficult to favour correct identihcation. He hastened to add that the difhcult conditions were upset by the consistent and corroborating evidence of the PW3, PW4, and PWS who was according to the judge observed the assailants for the long time.

In the first place while I agree that there was light in the room where the attack took place and the witnesses were relatives of the assailants I do not share the view that the three eyewitnesses had an opportunity to clearly observe the assailants for Court to come to the conclusion that the difficult conditions were 'clearly upset' by their evidence. I do not comprehend how from their hiding places PW3 and PW4 would be able to identify the assailants. This leaves only PWS who was himself a victim of the assault in the difficult conditions acknowledged by the trial Judge.

Secondly in view of the finding by the trial judge that the conditions favouring correct identifrcation were diflicult what was required was 'other' evidence to support the evidence of visual identification. The Supreme Court in the case Moses Bogere and Another vs Uganda (Supra) held as follows:-

"In Moses Kasana Vs Uganda Cr. App. No 12 1981 (1992-93) I. ICB 47 this Court which cited the two foregoing decisious with approval, underlined the need for supportive evidence where conditions favouring correct identification are diflicult. It is sald at P. 48 "where the conditions favouring correct identification are difficult there is need to look for other evidence, whether dlrect or circumstantial, which goes to support the correctness of identification and to make the trial Court sure that there is no mistaken identification. Other evidence may consist of a prlor threat to the deceased, naming the assailant to those who answered the alarm, and of a fabricated alibi."

There was no other available evidence that Court would rely on to support the evidence of identification in the difficult conditions acknowledged by the Court.

On the second consideration the Police bungled some evidence that would have lent credence to the evidence of identification in difficult conditions.

The first of such evidence was a hat which according to PWS the first appellant left at the scene. The scene was visited by ASP Mwanga Baker who, at the time of the incident was O. C. Kachumbala Police Post. He testified as follows:-

"I made an investigatlon at the scene and was able to recover a few exhlblts. After recovering the exhibits I arrested the accused from the acene. One was arrested at the scene when the burial was taking place by I/C CID I arrested one on the day of the post-mortem i.e. Agamet Richard. I seut the two to Bukedea where they were charged.'

This witness did not specify any of the exhibits he recovered from the scene. He did not tender any exhibit during the trial. Specifically he did not mention that he had recovered any hat which was identified by any of the witnesses as belonging to any of the appellants thus rendering the evidence of the hat worthless.

The other evidence that was rendered worthless was evidence by PW4 that he had ran to his uncle, Odong James whom he informed that thieves had entered their house wanting to kill them. He never narned any of the thieves and by the time of the trial James Odong had a mental problem and could not testify. The significance of the evidence of the persons in authority to whom an immediate report is made was discussed in the case of Lt. Jonas Aiaomugisha Vs Uganda (SCCAI No 19 19 of 2()15) where this Court stated as follows:-

"The desirabtltty of the evidence of the persons in authority to whom an immediate report is made was stressed in the case of Kebla and Another V. Republic [196fl EA 8O9 where the former Court of Appeal for East Africa cited with approval the following passage from Shabani Bin Ronald V. R. (1940 EACO 60.

"We deslre to add that in cases like this aud indeed in almost every case in which an immediate report has been made to someone who is called as a wituess evidence of details of such report (save such portions of it as may be inadmissible as being given at trlal. Such evidence frequently proves most valuable, sometimes as corroboration of the evidence of the wltness under Section 157 of the Evidence Act, and sometimes as showing that what he now swears is an afterthought, or that he is purporting to identify a person whom he really did not recognise at the tlme, or an article which is not really his at all."

That which applies to the Police in his regard also applies to the Chiefs. Another case Tekerali s/o Korongozi and others vs Reg (1952O 19 EACA 259 emphasises the same point atP.260 in the following terms:-

"Their important can scarcely be exaggerated for they often provide a good test by which the accuracy of the later statements can be judged, this providlng a safeguard against later establishments or the deliberately made up case. Truth with ofiten came out in a statement taken from the witness at a time when recollection is very fresh and there has been no opportunity for consultation with others."

There were three witnesses who claim to have identified the two appellants. There is no evidence that the identities of the appellants were mentioned to anybody let alone the Police. The Police officer who visited the scene immediately after the incident

should have investigated more on this point and his failure weakens the evidence of identification.

The other piece of evidence that would have been explored further by the prosecution was the suggestion that A. 1 was identified by his voice. The Court can only rely on identification by voice where there was evidence on record that the witnesses were familiar with the appellant's voice.

In case of Sabwe Abdu vs Uganda (SCCA No 19 of 2OO7l it was established that the witnesses were familiar with the appellant because he lived a quarter of a mile from their home, they always passed by his home as they went to school and they used to hear him speak to other people. The appellant used to come to their home where they would hear him speak to their father.

While I acknowledge that the first appellant was an uncle to the witnesses, it does not follow that they knew his voice. The prosecution should have established how they knew he appellant's voice.

On the defence of alibi both appellants stated that they were in Kampala and only travelled to the village to attend the burial of the deceased persons.

The first appellant who was a securiqr guard stated that he was on night duty between 6.00p.m. and 6.00a.m. while the second appellant who used to run a Kiosk stated that on 28.1 .2OO7 he run his business as usual and only to be told on 29. O1.2OO7 at 6.00 a.m. as to what happened in the village. The two appellants called a witness, Oriono Lazarus (DW3) who testified that he is the one who had called the first appellant to inform him of what had happened. A prosecution witness, Alupi Janet FLA (PW3) also testified that the two appellants were arrested when they came for burial from Kampala.

There are two well established principles in regard to the defence of alibi. The first one which both Courts correctly stated is that an accused person who raised the defence of alibi does not assume the burden of proving it. The burden to disprove it remains with the prosecution. The case of Moses Bogere and Anor Ve. Uganda (Supra) has given guidelines as to how <sup>a</sup> defence of alibi should be handled. The Court stated as follows:-

"The passage cited earlier in this judgment shows that the learned trial Judge held the defences to be unsustalnable because "through the evidence of the four (4) eyewitnesses the accused has been put at the scene of crime" "what they amounts to putting an accused at the scene of crime? We thtnk that the expression must mean proof to the required staudard that the accused was at the scene of crime at the material time. To hold that such proof had been achleved, the Court must not base itself on the isolate evaluation of the prosecution evidence alone, but must base itself upon the evaluatlon of the evidence as a whole where the prosecution adduces evidence showing that the accused incumbent on the Coult tq qvaluate bqth yetqroqs judiciary person was at the scene of crime, and the evidence showinq that the accused was elsewhere at the material time. it is

and sive reasons whv one and no other version is acceoted. It is a mlsdirection to acceDt one version and then hold that because of that acceptanqe per se the other version unsustainable." (Underlining provided

In his consideration of the defence of alibi this what the trial judge concluded:-

6This conclusion leads me to consideration of the defences of altbi put formrarded by each of the accused persons. Having believed the nrosecution evideuce that the evewitnesses positively identified Al and A2 the assailants. I am unable to believe the defence stoty that they were in Kampala at the time of offence. It is the trite that once an accused person puts in place a defence of altbi he has not duty to prove it. The duty to disprove the defence of alibi lies on the prosecution." (underlining provided)

Then the Court of appeal made the following conclusions:-

"We also agree with the learned trlal Judgets evaluation of evldence as set out above. We also agree wlth his conclusion. A person cannot be in two places at the same time. The learned JudEe havins believed the Drosecution witness and having found that the appellants had both been placed at the scene of crime the JudEe had no option but to reiect the appellants alibi."

It is not necessary for the prosecution to adduce any further evidence to disprove the alibi have placed the appellants on the scene of crime.

Be that as it may, defence of alibi set out by the appellants does not appear to have been credible. The flrst appellant stated in his testimony in Court that he was on duty as <sup>a</sup> security guard on the night of 28lOLl2OO7.

t'

That he was guarding Mididas Hotel in Kampala and has signed for a gun the evening before and signed out the next morning at a.m. However. no other evldence was brought to prove this, in view of the strong prosecution evidence putting him on the scene of crime.

He stated that he had travelled from Kampala to Kachumbala for burial of the deceased person on a motor cycle and the journey took 4 hours. The second appellant put the time at 5 hours. It is possible that the appellants could have travelled from Kampala to the scene of crime and then back within a period of 8 - 1O hours.

Similarly we do not find the 2 appellants alibi to have been credible at all for the same reasons.

In any event, the defence in this partlcular case set up the defence alibi after the closure of the prosecution case. It would not therefore have been possible for the prosecution to produce other evidence to disprove the alibi at this stage of the trial."" (underlining provided)

Quite clearly the trial judge fell into the error of Iirst believing the prosecution case before rejecting the alibi and so did the Court of Appeal. The Court of Appeal went even further and shifted the burden of proof when they stated that no other evidence was

brought to prove that the appellant had been on duty as he claimed. The appellant did not assume such a burden.

tl

t

According to the prosecution the offence was committed between 3 and 4 a.m. DW3 who testified that he is the one who informed the Iirst appellant of the murder stated that he rang him on 29l. OL.2OO7 at 6:O0 a.m.

In my view it was speculative of the Court of Appeal to find that the appellants travelled to Kachumbala, committed the murder and travelled back Kampala. Yet the alibi of A. 1 was that he was on duty throughout the night and nobody can tell where he was when DW2 rang him.

The other well established principle is that an accused person who wishes to rely on the defence of alibi must raise it as the earliest opportunity The Court of Appeal cited with approval the case of R vs Sukha Singh S/O Walir Siugh & Another [1939] 6 EACA 145 where it was observed as follows:-

t'if a person is accused of anything and his defence is an alibi, he should bring forurard that alibi as soon as he can because, firstly if he does not bring forward until months aftenrards there is naturally a doubt as to whether he has not been preparing in the interval, and secondly, if he brings it fonvard at the earliest moment it will give prosecution an opportunity of inquiring into the alibi and if they are satisfied as to its genuiness proceedings will be stopped."

The two appellants were arrested by two different Police Officers. According to ASP Mwanga Baker (PW6) he is the one who arrested the second appellant while the first appellant was arrested by incharge CID. The In Charge CID did not testify at the triai. It was not established from PW6 if the second appellant said anything at the time of his arrest. During the trial the 1"t appellant was cross examined on a charge and caution statement which the state Counsel sought to tender as an exhibit but the trial judge declined in the following ruling.

r) ll,

,

## ttThls statemeut cannot be allowed in now because rules are clear on admitted charge and cautlon statemeuts".

The trial judge did not indicate under what rule the statement was disallowed because a statement that sought to show discrepancies between the appellant's evidence in Court and his previous statement is admissible so long as it is not incriminating as to the amount to a confession. It was from this statement that Court would have established whether or not the hrst appellant disclosed his alibi at the first opportunity and there was no basis for the finding by the Court of Appeal that the appellant hrst disclosed his alibi when the prosecution had closed its case and the Police had opportunity to investigate its genuineness.

The Police officer who arrested him did not testify at the trial so it is diflicult to tell as to whether or not the appellant did not disclose his alibi either at the time of arrest or when the made his charge and caution statement. It was an easy alibi to investigate and the failure to do so leaves doubt as to the whereabouts of the appellant at the time of crime was committed.

In conclusion, the Court has established principles of law to be followed when faced with a case dependant on identification in

diflicult conditions and burden of proof in cases where alibi is raised as a defence. I have illustrated that instead of following the principles the two Courts below disregarded them. In the case of alibi the Court of Appeal shifted the burden of proof as I have demonstrated.

In the circumstances the judgment of the Court of Appeal from which this appeal arises should not allowed to stand. I would therefore allow this appeal, quash the conviction and set aside

the sentence. 3rs <sup>4</sup> Dated this Day of Jq,,. \* 201q

Mw sya Eldad,

'1 i

I

)

I

WSTICE OF THE SUPREME COURT