Musana & Another v Uganda (Criminal Appeal 25 of 1985) [1990] UGSC 21 (31 January 1990)

## THE SUPREME COURT OF UGANDA

### AT RENGO

(CORAM: MANBUZI, C. J., MANYINDO, D. C. J., ODER, J. S. C.)

# CRIMINAL AFFEAL NO. 25 OF 1985

#### **BETTEEN**

AUGUSTINE MUSANA 1. $\mathbf{v}$ $\mathbf{x}$ - APFILANTS 2. MCSES M. AI $\mathbf{x}$

$_{\rm{AIND}}$

UGANDA: - RESPONDENT

> (Appeal from the judgment of the High Court of Uganda<br>holden at Kampala (Karokora, J)<br>dated 13th September 1985).

# JUDGEMENT OF THE COURT:

The two appellants were convicted by the High Court sitting at Kampala on 13-9-85, of the murder of the deceased, James Ndazizale, contrary to Section 183 of the Penal Code. They were each sentenced to death. They have now appealed to this court against the convictions and sentences.

Briefly, the prosecution case was that at the material time the appellants lived and worked together in Mukono District. The first appellant was a local politician and member of the then ruling party (UPC). He was in charge of security. The second appellant, who was a soldier in the erstwhile Uganda National Liberation Army, was his bodyguard, together with another soldier by the name of Kibirige.

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His main business was buying and selling produce. house of the deceased and arrested him, allegedly on the ground that the deceased was feeding anti - Government elements who were said to be operating in the District. They took him to Kayunga Police Station where he was detained on their orders-The deceased was at the time residing at Kiterede Village in the same District of Kukono. Cn 31-6-81, the second'appellant, his colleague Private Kibirige and other persons went to the the instructions of the first appellant and' on

On 9-7-81, at about 6.00 a.m. Private Kibirige went to Kayunga Police Station and sought to take Police Constable Zema (P72) who was on duty at the station would not release the deceased to Kibirige. The latter then left the station but returned shortly afterwards with the appellants. The first appellant then hurled insults at PT2 and other Policemen present for their refusal to release the deceased to Kibirige. He even accused them of collaborating with the rebels, whereupon the policemen panicked and released the deceased to the appellants. The appellants then put the deceased in their Peugeot Pick-Up Registration No. UG 4326 and took him away. The vehicle was driven by Arafairi (TV'4). away the deceased as the first appellant wished to escort him to Vi^e - President Kuwanga in Kampala.

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\*

Later that morning the body of the deceased was? found on Lake Nabugani. It had bullet wounds. It appears that a Doctor Kakande carried out a postmortem examination on the body of the deceased soon after the incident but at the trial of the appellants the prosecution neither called Dr. Kakande nor sought to tender his postmortem examination Report in evidence .e hink that that evidence should have been led. If it was not available, then an explanation should have been given to the Court\* Ve were informed by learned state counsel that that report was lost together with the original Police file of the case. Dr\*. Christopher Kukasa (PT1) examined the skeleton of the deceased on 28-6-8J, at the burial site\*

The examination revealed a hole at the base of the back of the head and a crushed 5^h rib of the left side. The crushed rib was at the level of the heart and in the opinion of Dr\* Muleas a, it could have been caused by a bullet\* lie thought that death could have been due to damage to the heart and brain with resultant excessive heamorrhage.

It was the prosecution'<sup>s</sup> case that those bullet wounds had been inflicted on the deceased they denied the allegations. of the first appellant. the appellants made unsword statements in which by the second appellant and Kibirige on orders However, at their trial

A

They both pleaded alibis. The first appellant claimed that on 8th and 9th of July 1981, he was at of some fellows who were being trained there as special constabulary. He stated that he had police bodyguards only and denied ever having used the second appellant or Kibirige as his guards. Muwonge (FT5) "taking care" a place called Ntawo in Mukono District, with

The second appellant claimed that throughout July 1981, he was ferrying food in a lorry from Kampala to the Military Training School at Kabamba in Mubende District, and that he did not go to Mukono District that month or at all

Rafairi (PT4) was the star witness for the prosecution. His evidence which the learned trial judge accepted, was that at the material time he was a Government Driver, drivino motor vehicle Registration No. UG' 4-J26 which had been assigned to Eridadi Muwonge (P"'5) who was at the time Vice Chairman of the ruling party in Mukono Constituency. On 9-7-81, in the early morning hours, he drove the appellants and private Kibirige to Kayunga Police Station. The appellants took the deceased from the Police Station and put him at the back of the Pick-Up where he was guarded by Kibirige and second appellant. The first appellant sat in front with PT4. The latter drove the vehicle towards Lake Nabugani on instructions of the first appellant.

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Then they approached the lake the first appellant ordered T4 to stop which he did. The appellants and Kibirige then went out of the vehicle and stood at a distance where they held a brief private talk after which the first appellant ordered H74- to drive Kibirige, the deceased and the second appellant to the lake which F4 did\* The first appellant stayed behind, at his nearby second home • '"hen they arrived at the lake - shore, the second appellant and Kibirige ordered' the deceased to come out of the vehicle and board a small canoe that happened to be there The deceased obeyed. The two men who were each armed with a gun then shot the deceased in the head and left ribs. The deceased died almost instantly\*

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After that FT4 drove the two men to where they had left the first appellant. The appellants and Kibirige then held another private discussion after which PT4- drove them to the first appellants first hone in Kukono Town. He left them there and went back to join Huwonge (P:.r5)\* He later reported the incident to Muwonge.

As against the second appellant the evidence of was supported in part by that of Police Constable Zema (FT2) and Eyazika (P"5) who testified that the second appellant was one of the persons who forcefully took the deceased from <sup>z</sup>i\*26 driven by FJ'4. Kayunga Police Station in motor vehicle Ho\* US'

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Then there is the evidence of Lamek Lutaya (F''?) who lived near Lake Nabugani and who on the day of incident saw the second appellant, Kibirige and F74 in Motor vehicle No\* UG 4X26 heading towards the lake at about the time of the incident\* He knew all the three men well\* The medical evidence of "1 also supported F74'<sup>s</sup> evidence that the deceased was shot in the head and left ribs\*

The learned trial judge found that the second appellant's alibi failed in view of the strong and uncontradicted prosecution evidence which put the second appellant at the scene of crime at the material time\* The evidence against him was overwhelming\* Te find no merit in his appeal which is accordingly dismissed\*

The evidence against the first appellant is entirely circumstantial. That being the case, the test to be applied in the circumstances is that in order to found a conviction the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt and that before drawing the inference of guilt there must not be any co-existing circumstances which would weaken or destroy such inference. See: /~1967\_7 5. A. 52S\* Musoke v R E\*A\* 715, Tumuheirwe v Uganda

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The learned trial judge did not direct himself or the Assessors on this point although in his judgment he clearly considered the evidence against the first appellant on that basis.

$\overline{7}$

The circumstances were that the first appellant took the deceased out of the custody of the police by intimidation and when he was in a hostile mood; that although he claimed at the time that he was taking the deceased to Vice President Muwanga in Kampala, he did not infact do so but instead sent him to Lake Nabugani where he was killed; that when requested by the police to sign the Station Diary at Kayunga to the effect that he had removed the deceased from the police station, he refused to do so; that after giving secret instructions to his body guards he ordered PW4 to take them to Lake Nabugani where they killed the deceased; that after the murder and after his body guards had reported back to him, he did not even ask where the deceased was/that when (on 1C-7-81) the area sub - count Chief Lutaya ( $\mathbb{R}$ 7) reported to him that he had discovered the body of the deceased in the canoe on 9-7-81, the first appellant simply told him to go and mobilise youth - Wingers of the ruling party and sink the canoe together with the body of the deceased.

$\ldots \ldots \ldots /8$

*<*

His claim that he did not travel in the vehicle to him on 8-7-81, as the first appellant wished to travel in it on undisclosed official custody of the same\* It was his evidence that the vehicle was driven by whose evidence we have already outlined\* Pick - Up in question was destroyed by Muwonge (PJ5) who testified that he had lent the very duties on 9-7-81. According to P7.'5 the vehicle in question had been assigned to him and the appellant for use on official duties., P75 had

Also the first appellantrs claim that on the day of the incident he was at Ntawo was equally destroyed by his own witness V'andera (3^5) whose testimony was that the course for the a month before the deceased was killed. L'uwonge an official also confirmed this fact in his evidence. The alibi was therefore false and rightly rejected. (FT75) w^o participated in that course as constabulary had ended on 10th or 11th June, 1981,

are satisfied that the above circumstantial evidence leads to the irresistable inference that the first appellant had a common intention with the second appellant and Kibirige to kill the deceased. Like the trial judge, we

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In fact he was the mastermind. It is immaterial that he was not physically present when his bodyguards shot the deceased dead. Clearly they were acting on his orders. We have no doubt that the first appellant was properly convicted. His appeal is also dismissed.

DELIVERED at Mengo this: O. L.... day of the 1990.

S. W. W. WAMBUZI

CHIEF JUSTICE

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DEFUTY CHIEF JUSTICE

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JUSTICE OF THE SUPPEME COURT.