Ndahura v Uganda (Criminal Appeal 31 of 1991) [1993] UGSC 36 (5 May 1993)

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGLNDA

# AT MENGO

(COR. M: MANYINDO - DCJ, ODER - JSC, PLATT - JSC)

## CRIMIN. L APPEAL NO. 31/91

### $E \in T \cup E \in M$

NDAHURA GEORGE ::::::::::::::::::::::::::::::::::::

**WS**

UGANDA 11:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1

(Appeal against conviction & sentence of the H?C decision holden at Maurara<br>(Hon. Mr. Justice Schuzde) dated the .21st day of October 1991, from origi-<br>nal H. C. Cr. Ss. Case NO. 220/91)

### JUDGMENT OF THE COURT:

$\cdot\,.$

The appollant was on 21-10-91, convicted of the murder of uncle. Erifosi, by the High Court. He now appeals against the conviction and sensance, although no sentence was passed on hua.

The faces as found by the trial Judge, were that on 25-3-79, at about 10.30 a.m. the deceased and his two wives, Kyebetoni (WZ) and Soburaine (MB) were in their gurden, planting banana stems. The garden was near dadir home. The appollant and his you for brother, Kanyangey:, went to the deceased's garden and began to uproot the deceased's banant stems. The appellant armed with a sickla. When the decused asked the appellant any he had uprocted the banana stand, the appellant out him twice with the sickle on the nock almost severing it. The decouned died clmest inspantly.

$\sigma \circ \sigma \neq \sigma \circ \sigma$

$\mathcal{L} \sim \mathcal{L} \times \mathcal{L}$

The assault, was witnessed by PW2 who immediately raised an F.v3 was not in the garden as she had gpne home to prepare a meal, The alarm was promptly answered by PW3 Mumba (PW4) <sup>P</sup>'. V6 went and reported the incident to the He was a brother of the deceased. He was allowed to to burry.the deceased immediately as no further steps could be taken .in the matter due to thesstate of insecurity in the area at the time. The war of Liberation was afoot Ln the event there was no medical evidence as to rhe cause of death The trial Judge found as a fact that the deceased died of the injuries to the neck That finding has not been challenged Clearly the evidence the alarm\* authorities<sup>0</sup> scene of crime\* justified it-. and Mbangirinoha (PWp). who met the appellants running away from the Kyamutvgu (FV/6) and many others arrived at scene a little later,

The defence was one of alibi; the appellant claimed that he near Kampala at the material time. He had left his home Town of Bushenyi in Western Uganda in 19?8 and gone to. Gayaza where he stayed until 19S0: • whon ho vr. T f tod i^ connection It was then that the Pl-73 and P;.'6) camo up with the murder allegation<sup>o</sup> with a land dispute with certain persons, relatives of the deceased (F.72<sup>t</sup> was at Gayaza,

clearly proved that the deceased died at the hands of the appellant. His alibi raised no doubt in that evidenc Wo are satisfied that the evidence \*>f P ? P.<sup>73</sup> P.<sup>74</sup> and B7f

©•aft \*/ J « <sup>d</sup>

It was false and was rightly rejected as such by the trial Judge. However, it would have been useful if the prosecution had led evidence of the first report, if any, made by the witnesses to the authorities regarding the suspects in the case. Be that as it may, there was ample evidence to warrant the conviction. The general defences which would have reduced the offence to manslaughter wage considered and rightly ruled out by the trial Judge. We therefore dismiss the appeal against the conviction.

The grounds of appeal against sentence were couched in unclear terms. They state as follows:

- 1. That the learned trial Judge erred to convict the appellant without ascertaining the age of the appellant at the time the offence was committed. - $2\degree$ The learned trial Judge arred to hold that the appellant was a "man in his mid - thirties' when there was no evidence to support such a finding."

At the hearing of the appeal Counsel for the appellant explained the grounds. The complaint was that the appellant could not be sentenced to death as the available evidence showed that he was under the statutory age of 18 years when he committed the offence. The prosecution led no evidence as to the age of the appellant. As this Court has pointed out on several occasions, this is a serious ommission. The appellant stated in his defence that at the time of trial he was about 28 years old. This would put his age in March, 1979, at about 17 years at most.

In his judgment the trial Judge had stated that from his own observation of the appellant, the latter will mid-thirties,

$\approx$ 3 $\approx$

if the trial Judge was certain abou the age of the appellantwe. wonder why he did not pronounce the mandatory death sentence after convicting him We do not think that a trial Judge is free to determine the age of an accused person simply by observing him in the dock.

In our view in absence of evidence to the contrary? the claim of the appellant as to his age should have been accepted with the result that the Court should have been accepted *<sup>y</sup>* with the result that the Court, should have made an Order under Section IGt (1) of the Trial on Incictments Decree for the detention of the appellant, pending the order of the Minister of Justine <sup>0</sup> The Senior State Attorney who represented the QPP in the appeal was of the same view.

Ill the result it is ordered that tiie. appellant be detained at Upper Prison Lusira pending the Order of the Minister under Section 1C4 (2) of the Trial on Indictments Decree.

DATJD at. Mengo this 5th day of May, 1993


*c;*

DEPUTY CHIEF JUSTICE, S. T, MANYINDO

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

H. G. PLaTT.

JUSTICE OF THE SUPREME GOUT

I CERTIFY THaT THIS IS A TRUE COPY OF THE ORIGINAL

BABI.. JJMIRA 3. F. B.

REGISTR.'lR