Ntomi v Uganda (Criminal Appeal 21 of 1991) [1992] UGSC 18 (21 December 1992)

## IN THE SUFREME COURT OF UGAMDA

## AT MENGO

(CORAM: MANYINDO, D. C. J., CDER, JSC., PLATT, JSC)

CRIMINAL APPEAL NO.21/91

## BETWEEN

NTOMI WILSON APPELT ANT $:$ : $\dddot{}$ : $\ddot{\cdot}$ $\Delta$ N D

**UGANDA** $\cdots \quad \cdots$ $\div$ : RESPONDENT.

> (Appeal from conviction and sentence of High<br>Court holden at Fort Portal (Hon. Mr. Justice I. K. Mukanza)dated the 16th day of July, 1991 from H. C. CR. SS. No. 162/91)

## JUDGEMENT OF THE COURT

In this case the appellant was tried and convicted for the murder of one Selegio isingoma, contrary to section 183 of the Penal Code. The conviction was grounded on the alleged confession of the appellant and the dying declar tion of the deceased. Court also found corroboration in the medical evidence - the post mortem report.

The problem is that Councel for the appellant allowed the charge and caution statement, amounting to a confession, to be admitted in evidence without objection but then his line of cross examining the Police Officer who recorded it clearly showed that his instructions were that the story had been concocted by the Police Officer.

It is obvious that Counsel should have challenged the

... $/2$

admissibility of the statement, and as this Court printed out in Bikuiau vs. Uganda Criminal Appeal 24/89 , the trial Judge should also have probed the matter. A trial within a trial should have been held. It could no have been held after the statement had been read out in Court. As it is the appellant did not get a fair trial in this regard.

If the confession is removed then only the dying declaraticn remains. It needed corroboration which was wrongly found in the medical as that evidence was improperly admitted allegedly under 3.64 of TID which must be held before and not after the prosecution has called witnesses.

It seems clear to us that there was no proper trial in this case. The appellant was therefore wrongly convicted. We allow his appeal, quash the conviction and set aside the sentence. There will be a betrial before another Judge. In the meantime the appellant is remanded in custody.

DATED at Mengo this 21st day of December, 1992.

S. T. MANYINDO

••••I **/** *Certify that this is a true Copy of the Original* ............... *Registrar <sup>C</sup>nfrcn'.<. Cojr: cf Uganda,*

A. HTcr. CDE< JUSTICE CF SUPRE'ET COURT

DEPUTY CHEF JUSTICE

H. G. PLATT JUSTICE C? SUPREME COURT