Mukhwana Hudson & Anor v Uganda [2000] UGSC 10 (8 May 2000)

# IN LHE SUPREME COURT OF UGANDA AT MENGO **THE REPUBLIC OF UGANDA**

## $VND WNKV2V - KIKONKOCO' 11.3°C)$ (COBVW: MVWBOZI - CI, ODER, TSEKOOKO, KANYEIHAMBA,

#### CKIWINVT VDDEVT NO.31 OF 1999

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**NGANDA**

**TYMES MAMMIMI**

**NOSAUH ANAWHAUM 1.**

### in Court of Appeal Criminal Appeal No.62 of 1998) (OKETTO' WAVCI-BYHICEINE VND LMINOWOYON' YYV) (An appeal from the decision of the Court Appeal at Kampala

### **KEVZONZ ŁOK LHE INDEWEAL OŁ LHE CONKL'**

then appealled to this Court. robbery. Their appeal to the Court of Appeal was dismissed on $28^{th}$ April, 1999. They ordered to pay Shs.250,000/=as compensation to James Wakhama, the victim of the each sentenced to a term of imprisonment for seven years, 6 strokes of the cane and offence of robbery contrary to sections 272 and 273(1) (b) of the Penal Code and were On S/11/1999, the appellants were convicted in the High Court by Kania, J., of the

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later. We now give our reasons. On $\lambda$ <sup>m</sup> March, $\lambda$ 000, we heard the appeal, dismissed it and promised to give our reasons

gun on the said lames Wakhama. Wakhama of Shs. 180,000/= and diverse shop goods and used a deadly weapon, namely, a persons on 26<sup>m</sup> day of March, 1995, at Buwasiu village in Mbale District robbed lames The charge laid against the appellants was that the two appellants together with other

from a neighbouring parish of Bukhabusi. So he knew these robbers. Wakhama also recognize three of the robbers who included the two appellants. These robbers came outside the shop. Because of the bright from the torches, Wakhama was able to down. They stepped on him. They were tlashing torches inside the shop and from Wakhama as they harassed and assaulted him and his girl friend. They made him lie let in the rest of the robbers. After entering, these robbers demanded for money from of done shi to roob shi naqo of babasaorq bas done shi of the shop to to the shop to robbers ordered Wakhama to lie down. He obeyed and lay down. One of the robbers window. James Wakhama saw two of the robbers, each armed with a gun. The two and fell inside the shop. The robbers flashed torches into the shop through the open his shop. He got out of bed. Then the robbers hit a window of the shop which collapsed girl friend in his shop was invaded by a gang of robbers. He first heard footsteps outside the shop. At mid-night of 26<sup>th</sup> March 1995, James Wakhama who was sleeping with a village, Bunamulunyi Parish, Buwabwala sub-county, Mbale District. He used to sleep in The prosecution case was that lames Wakhama (PWI) operated a small shop at Buwasiu

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presumed that this was done by the robbers. minutes after the robbers left the house, there was a gun shot in the distance and it is Dis girl friend who in turn untied him. He then got outside and made an alarm. About 30 whole episode, lasted two hours. After they had left, Wakhama was able to move, untile The robbers put Wakhama in polythlene paper and left him for dead. They then left. The Instead of shooting him, the robbers assaulted him and tied him as well as his girl friend. them so they wanted to kill him. One of them ordered that Wakhama should be shot. neighbouring Parish of Bukhabusi. The robbers realised that Wakhama had recognized Wakhama had known members of the gang very well because they all come from a recognized the voice of the first appellant as he ordered Wakhama to lie down.

robbery before he was taken for medical treatment. Wakhama was accompanied to Magale Police Post where he made a report of the Wakhama informed Wakabenga that the first appellant was one of the robbers. Robert Wakabenga (PW4) who found Wakhama lying or hiding in a banana plantation. A number of people answered the alarm. Among the first to answer the alarm was

High Court. Therefore a nolle prosequi was entered in respect of his case. the offence of capital robbery. Matege died before the trial of the appellants started in the other persons. The two appellants together with one Anthony Matege were charged with The following day, police from Magale Police Post arrested the appellants together with

claimed by way of alibi that he was sleeping in his home at the time of the robbery. The At the trial, the two appellants made brief unsworn statements. The first appellant

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they were arrested on $26^{in}$ March, 1995, the day after the robbery. second appellant denied any knowledge of the offence. Both appellants admitted that

earlier. toppety $C/S$ 272 and 273(I) (b) of the Penal Code and sentenced them each as stated appellants of robbery C/S 272 and 273 but convicted them of the offence of simple evidence proved only the offence of simple robbery. He therefore acquitted the believed the prosecution case, disbelieved the appellants and found that the prosecution robbery. The learned trial judge addressed himself to the relevant law and the facts, he conviction for simple robbery. The second assessor advised conviction for capital The two assessors believed the evidence given by Wakhama. The first assessor advised

upheld the decision and orders of the trial court. proved beyond all reasonable doubt. The Court of Appeal dismissed the appeal and erred in law and fact when he made a finding that the offence of simple robbery had been The appellants appealed to the Court of Appeal on the sole ground - that the trial judge

argued in the Court of Appeal which that court rejected. reasonable doubt. In reality this ground of appeal was the same ground which was finding of the trial judge that the offence of simple robbery had been proved beyond substituted to read that the learned Justices of Appeal erred in law by upholding the The appeal before us is also founded on one ground which, with leave of the court, was

the arguments which she had raised in the court below. She conceded there was theft. In arguing the ground of appeal, Miss Eva Kawuma, counsel for the appellant, repeated

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Miss Betty Khisa, Principal State Attorney, supported the decisions of the two courts Court of Appeal should not have believed Mr. Wakhama, the single identifying witness. appellants' alibis were not disproved. In summary she argued that the trial judge and the claim that he sustained any injuries during the incident. She further argued that the be proved by evidence of injuries. In any case Mr. Wakhama, the complainant, did not on Wakhama. With respect, we think that this argument has no merit. Violence need not $\mathbf{B}$ (1953) 20 EACA 166. She argued that medical evidence did not establish any injuries in the cases of Roria vs. Republic (1967) EA 583 and Abdallah Bin Wendo vs. credibility of evidence applicable to evidence of a single identifying witness as set forth strong enough to justify conviction of the appellants. She referred us to tests of She contended that the evidence of Wakhama, a single identifying witness was 'not

:sbrow gniwollof: The Court of Appeal dealt with the complaint raised by Ms Kawuma in that court in the

shi tuo berniog foird state on state bride, pointed out the $γ$ γγε χαλημική του γραμινος για χαλημική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γραμική γ identification, the said lack of credibility of the witness rendered the identification was made appeared to be favourable to correct ομι ήλια τορη του τησι γρια τρίτη που τρίτη που τρίτη που τρίτη του τρίτη του τρίτη του τρίτη του τρίτη του τρί grave contradictions which rendered it unreliable. It was argued for the the evidence of PWI, the sole identifying witness, contained numerous $\mu$ The only complaint that was raised at the hearing of this appeal was that

contradictions in the evidence of $PMI$ ....................................

pelow.

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known Al from childhood.................................. that he recognised the first appellant's (A1) voice when he spoke. He had were being flashed from both inside and outside the house. He also stated to was able to identify them with the aid of the torch lights that According to the witness, be identified his assailant when the year into year with stabilized the Suns ontside, he never said that he identified who they were at that time. nitw sidosq owi was sh moor shi oini behaal singi hoog shi madosq owi was sh moor shi oini behaal siya shi moor shi behaal shi moor shi behaal shi moor shi behaal shi moor shi behaal shi moor shi behaal shi moor shi behaal $i$ the sole identifying withess. Firstly, $i$ with $i$ the $i$ that $i$ the sole identify, $i$ the sole identified in the $i$ We could not agree that there was any grave contradictions in the The Court of Appeal considered the complaints raised by Ms Kawuma.

Jacket. In our view, that failure does not affect his identification of the the witness had never before in his evidence described the colour of the contradiction. This could be explained away on lapse of time. Besides, ογιαν αίδο αίδο από σιρο δημιο ολή του για αξυ μπο για πορρείνει και συν γας το μισηριά το μισηρία το ποι λογού το μεταικό το μεταικό το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισηρία το μισ Secondly, we do not agree that failure of $PMI$ to recall the colour of the

complex made index those favourable conditions.

$\alpha$ ppellant come is a contradiction. A parish could have several villages. come put hoid world spilling the second $s$ <sub>tup</sup> $\eta$ <sub>addp</sub></sub> Thirdly, we do not agree that knowing the parishes from which the

"SƏSSƏUIIM both agreed on. There was no contradiction in the evidence of these $\mu$ modo $\mu$ $\mu$ modo $\mu$ $\mu$ $\mu$ $\mu$ $\mu$ $\mu$ $\mu$ $\mu$ state of the moonlight as not bright, PWI did not at all describe the state of the fateful night is without say any basis. Whereas PW4 described the $\mu$ in the innormal problem in the problem is the problem in the problem in the problem in the problem in the problem is a problem. Fourthly, the submission that there was a contradiction between the $\Gamma$

for these reasons that we dismissed the appeal on $7<sup>th</sup>$ march, 2000. been persuaded that the learned Justices erred to justify any interference by us. It was of the learned Justices of Appeal are based on ample evidence in this case. We have not Likewise the trial judge found no difficulty in doing so. We think that the conclusions $\mathbb{R}^2$ We note that both assessors had no hesitation in accepting the evidence of Wakhama.

'UMO the attention of the court for correction. In this case we have discovered this on our appear in appellate courts that they (counsel) are under a duty to draw such omissions to over this omission. We would like to urge counsel especially State Attorneys who S.123 (1) of the Trial on Indictments Decree, 1971 (TID). The Court of Appeal glossed We note that the trial judge failed to impose a Police Supervision order as required by $W$

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TID, 1971 and make the required order of police supervision. court and order that the court shall comply with the provisions of section 123 (1) of the opportunity to address the court on the issue. We accordingly remit the case to the trial trial court should have imposed but normally an accused person should have an We have powers under 5.8 of the Judicature Statute, 1996 to make this order which the

Delivered at Mengo this. 1000Z MOW JO APPY

**TOURNER OF THE SUPPLIER COURT** A. H. O. Oder **CHIFE INZLICE** $izndm_{\mathcal{M}}$ .

*INZLICE OF THE SUPPLIER COURT* Капуеіћатьа *INSTICE OF THE SUPREME COURT* J. W. N. Tsekooko

**10. ALICE OF THE SUPPLIER COURT** Кікопуодо $F'W'T$