Kwoba Yosamu v Uganda (Criminal Appeal 2 of 2000) [2000] UGSC 8 (23 November 2000)

## **ODNIM TA** IN THE SUPREME COURT OF UGANDA REPUBLIC OF UGANDA

$KIKONAOCO'$ 11.3. C WAMBUZI, CJ, ODER, TSEKOOKO, MULENCA AND MUKASA-(CORAM:

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## **BELMEEN**

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Criminal appeal No. 4 of 1999] DCJ, Engwau And Kitumba, JA) dated 14th December, 1999 in Court of Appeal (Manyinde decision of the Court of Appeal at Kampala (Manyindo

on two counts by the High Court which sentenced him to death. Appeal which dismissed the appellant's appeal against his conviction for Capital robbery **UDCMENT OF THE COURT** This appeal is against the decision of the Court of

Charles the victim of the robbery and stole different items. that in this instance the appellant and his accomplices threatened to use a gun on Omondi allegations of robbery in the second count relate to robbery of Omondi Charles except before or immediately after the robbery used a gun on the said Olujia Wandera. Similar Olulia Wandera of one radio cassette, a bicycle and shs. $100,000$ at or immediately and others on 31<sup>st</sup> of December, 1994, at Kayanga village in Iganga District robbed The allegations laid against the appellant at his trial in the first count were that he

around the shop fled from the scene presumably after realising that the four were robbers. that time four people entered the shop disguised as customers. Some people who were They first attacked Olijja Wandera (IWI) in his shop between 8 p.m. and 9.00 p.m. At appellant and other persons while armed with a gun and sticks attacked Kayonga village. The case for the prosecution was that on the night of $31^{\text{st}}$ December 1994, the

to whom a report was made, reached the scene. Wandera fell down and became unconscious. He regained consciousness when the police, inside the shop. One of the unidentified robbers shot Olijja Wandera in the left shoulder. voice of one of the robbers called out the name Kwoba, one of the robbers who was Hitachi radio cassette and a black bag. The bag bore some red stripes. After the robbery a who never recognized them. They then robbed diverse shop goods, which included a The four people dressed in civilian clothes entered the shop and slapped Olijja Wandera

reported to Bugiri Police post. After the robbers left he came out. Many people had gathered. The robberies were quietly in hiding until the robbers had left. He did not recognize any of the robbers. No.8922BJ, his and his write's clothes and diverse household properties. Omondi lay robbers. The robbers entered and robbed from him a Mekosonic Dynamic radio cassette heavy gunfire, which was followed with banging to open the door of his shop by the house. The robbers ordered him to open the shop. When he did not respond, there was who were outside the shop saying that thieves had arrived. He locked all the doors of the $(PW2)$ another shopkeeper of the same village. While inside the shop he heard people On the same day at 10.00 p.m., robbers attacked the shop of Charles Omondi

his property and Omondi identified the radio cassette. Omondi (PW2) visited Bugiri police station where Wandera identified the black bag as purchase receipt. Probably on the same day ( $2^{nd}$ January 1995), Wandera (PWI) and bag. He claimed that the radio belonged to him. He could not produce to his arresters Bugin taxi park while in possession of a Mekosonic Dynamic radio cassette and a black In $C^{\text{m}}$ January 1995, the appellant was arrested by Haji S. Mugwa (P. W.3) at

which was red infront but grey at the rear and which he was carrying in a red bag. He (PW3) on $I<sup>st</sup>$ January 1995 while in possession of a Panasonic Radio, not Mekosonic, number of radios. He admitted that he was arrested at the taxi park by Haji S. Mugwa been a radio repairer for two years. That prior to 31<sup>st</sup> December 1994, he had repaired a In his sworn defence, the appellant denied the offences. He explained that he had

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other radios. claimed that he had taken the police to his radio workshop where the police saw many possession were new and different from the ones produced in court during his trial. He appellant with the present offences. He testified that the bag and the radio found in his which he had packed the radio were handed to the police who eventually charged the people assaulted the appellant alleging that he was a thief. He, the radio and the bag in respect of the radio, the appellant had none. Thereafter Mugwa and a group of other arrested him for disorganizing other passengers. When Mugwa asked for the receipt in taxi. Because of the disagreement, the conductor reported him to Mugwa ( $PM$ ) who disagreed with a conductor of the taxi who wanted to store the radio in the boot of the respective owners on $31^{st}$ December 1994. He testified that before he was arrested, he intended to deliver it to Bagitano Paul. He had delivered some two other radios to the

appeal. this court against the decision of the Court of Appeal. There is only one ground of The convictions were upheld by the Court of Appeal. The appealant has now appealed to convicted on both counts. He appealed to the court of Appeal against his convictions. The learned trial judge believed the prosecution and disbelieved the appellant whom he At the conclusion of the trial the assessors advised for conviction on both counts.

all reasonable doubt. finding of the trial judge that the offences of aggravated robbery had been proved beyond ground of appeal is that the learned Justices of Appeal erred in law in upholding the As formulated in the supplementary memorandum of appeal the complaint in the

about the name of the radio found in the possession of the appellant when he was possession of the radio cassette and the bag, and that Mugwa ( $PM3$ ) contradicted himself counsel argued that in his defence the appellant had explained how he came into during the robberies and that the appellant was identified as one of the robbers. Learned prosecution failed to prove that theft had been committed, that a deadly weapon was used Mrs. Eva Luswata Kawuma, Counsel for the appellant, contended that the

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$P/C$ Menya and such non-compliance occasioned injustice. Decree, 1971, was not complied with in recording the memorandum of the evidence of record of the memorandum of agreed facts she said that $S$ .64 of the Trial on Indictments were not marked by the police. After the court drew her attention to the irregularity in arrested. She submitted that there was a break in the chain of evidence of exhibits which

accepted and acted on that evidence. weapon which evidence was not challenged in the courts below. The two courts below Court of Appeal. He argued that in any case there was evidence of use of a deadly conceded at the trial that a deadly weapon was used and the issue was never argued in the the issue of use of a deadly weapon should not be raised before us because it was supported the judgements of the trial judge and of the Court of Appeal. He submitted that Mr. Michael Wamasebu, Principal State Attorney, appearing for the respondent,

weapon, a gun, during the robberies. Charles Onyango (PW2) already referred to in this judgment proves the use of a deadly ample evidence of use of deadly weapon. The evidence of Olijja Wandera (PWI) and With respect, we agree with the learned Principal State Attorney that there was

Mugwa about the name of the radio cassette is minor. asked us to uphold the finding of the trial judge that the inconsistency in the evidence of defective mechanism which holds radio cells and its antenna was also defective. He which stand for the name of the owner, Charles Omondi (PWZ). The same radio had a peculiar identification marks. The radio had a serial number and bore the initials " $C$ . O". effect that the exhibits were sufficiently identified. He said that each of the exhibits had In regard to the two exhibits, the learned Principal State Attorney submitted in

Mugwa handed them over to Bugiri Police Post to their production in court, occasioned The break in the chain of the evidence of transmission of exhibits from the moment arguments of the Principal State Attorney in regard to the peculiar features of the radio. Subject to what we say later about non-compliance with $S.64$ , we accept the

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radio is minor. learned trial judge that the inconsistency in the evidence of Mugwa about the name of the have not been persuaded that either court erred in making the finding. We agree with the have not been persuaded that $\omega$ the trial the two exhibits were produced without objection. In these circumstances we indeed the same items which were found in possession of the appellant upon his arrest. At based on the assessment of evidence that the radio and the bag produced in evidence are with the situation where the two courts below have made concurrent findings of fact believed the prosecution version and rejected the appellant's version. We are thus faced ones produced in evidence, the assessors and both the trial judge and Court of Appeal maintained in his sworn evidence that the items found on him were different from the two items as some of the property which was robbed from them. Although the appellant the exhibits, namely Wandera and Omondi visited the police station and identified the were handed to the Bugiri Police by Mugwa on the same day. Apparently the owners of January 1995, the appellant was found in possession of the same two exhibits, which items were robbed on the night of $31^{st}$ December 1994. Two days later, i.e., on 2<sup>nd</sup> by the trial judge, does not affect the evidential value of the radio and the bag. The two by the exclusion of the evidence of P. C. Menya for non-compliance with S.64 of the TID

trial judge mitigated the injustice, if any. appellant's counsel of the statement of evidence of constable Menya as recorded by the that the non-compliance did not occasion injustice and that the admission by the the provisions of S.64 of TID. The learned Principal State Attorney however contended Mr. Wamasebu quite properly conceded that the trial judge did not comply with

(1) If an accused person who is legally represented pleads not guilty, $\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E}[\mathbb{E$ - : $\text{zwollof}$ as best the value as a set of (2) and (2) but (1) $\text{A}$ . In so follows:

will promote a fair and expeditious trial. and of the advocate for the prosecution to consider such matters as hearing in open court in the presence of the accused and his advocate the court shall as soon as is convenient hold a preliminary

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".bəli and by his advocate and by advocate for the prosecution, and then accused in a language that he understands, signed by the accused and the memorandum shall be read over and explained to the the court shall prepare a memorandum of the matters agreed (2) At the conclusion of a preliminary hearing held under this section, $\Delta$

(a) Prepare a memorandum of the matters agreed in the presence of the According to subsection (2) the following steps are mandatory. The court must:-A preliminary hearing is intended to promote a fair and expeditious trial.

accused and his advocate.

- (b) The memorandum must - (i) be read over and $(i)$ - (ii) be explained to the accused. - sccused. (c) The explanation must be made in a language understood by the - (d) The memorandum must be signed:- - (1) $\hat{p}$ postpoor such as $p\lambda$ the accused, - (ii) by his advocate, and - (iii) by the advocate for the prosecution $\theta$ - (e) Then it must be filed as part of the record.

statement of No.28499 P. C. Menya A. to be:-The record of the trial on 15<sup>th</sup> January 1999 so far as relevant shows the admitted

handed in. As I was on later I rearrested the suspect and detained cassette Mekosonic and 1 black bag and the exhibits were also called Kwoba Yosamu suspected to have stolen one radio RC III Kapyaga Sub-county here in the office with one suspect called Sulait Mugwa Local Defence at the same time Chairman late shift 2 with P. C. Seruwagi around 2.30 p.m. one man "I do recall very well that on 2<sup>nd</sup> January 1995 I was on duty

expipit Later on the suspect was transferred to Iganga CPS together with the him in cells and the exhibits were exhibited attached to the file.

Mr. Liga: That is correct we admit the statement".

counsel for an appellant to concede criminal responsibility on behalf of an appellant. No.4 of 1999 (unreported), we pointed out that in a criminal case it is improper for Recently, in the case of Mawanda Edward vs Uganda, Supreme Court, Criminal Appeal Liga admit in the instant case, the correctness of the "statement" on behalf of the accused. (2). These provisions do not authorise an advocate for the accused to admit, as did Mr. State Attorney. These are mandatory requirements under the provisions of subsection apparent that neither the appellant nor his advocate signed the memorandum. Nor did the explained the memorandum to the accused at all and in a language he understands. It is assisted hin the trial. There is nothing avalative driven as a priority of the learned japanical point of the priority of the priority of the priority of the priority of the priority of the priority of the priority of the After recording that, the learned trial judge proceeded to select two assessors who

preliminary hearing is held. judges must comply with the mandatory requirements of section $64(2)$ whenever a evidence of P. C. Menya was improperly admitted and is not part of the record. Trial comply with the requirements of $S.64(2)$ of the TID. We accordingly hold that the any injustice that could have been occasioned by the failure by the learned trial judge to correctness of the statement purporting to be a memorandum of agreed facts mitigated with respect, accede to Mr. Wamasebu's view that the admission by Mr. Liga as to the have been explained to him as required by $S.64$ (2). In the circumstances, we cannot, In this case the recorded memorandum was damning to the accused. It should

that the stolen property was found in the possession of the appellant. Be that as it may, the exclusion of the admitted evidence leaves ample evidence

regarding transmission of the exhibits is fatal to the conviction. We reject the argument of counsel for the appellant that the lacuna in the evidence $W$

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the ground of appeal fails and the appeal on both counts is dismissed. There is ample evidence to support the conviction of the appellant. Accordingly

- To yab sint Dated at Mengo-000Z

Chief Justice iznam $sW. W. R.$

V H O ODEK

**INZIGE OF SUPREME COURT**


**INZIGE OF SUPREME COURT**


**INZIGE OF SUPREME COURT** F. E. W. WILKOZY-KIKONZOGO

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