Nyakahuma Mohamed & Anor v Uganda [2000] UGSC 12 (12 December 2000)

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# **LHE BEBABFIC OF ACTION**

## IN LHE SOMERME COORT OF USANDA

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## NYAKAHUMA MOHAMED

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$\sim$ (E661 fo SLZ ON aspo Fort Portal (Katutsi J.), on 19<sup>th</sup> November, 1998 in Criminal Session $\alpha$ $\alpha$ $\beta$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ Shimilino end I $\mathcal{A}$ and $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in $\mathcal{A}$ in (An appeal from the judgment of the Court of Appeal (Okello, Engwau

## **INDEWENL OF THE COURT**

8.30 p.m. the occupants of motor vehicle $Reg. No. UPN 342$ , who were The facts of the case are that in the night of 23<sup>rd</sup> August, 1991, at around robbery contrary to sections $272$ and $273$ of the Penal Code Act. the appellants' appeal against conviction and sentence for aggravated This is an appeal from the judgment of the Court of Appeal dismissing

was done. occupants of the vehicle to return on board and be driven away, which property they had with them. After the incident, the robbers ordered the the occupants had their persons searched by the attackers and robbed of took away personal effects of the occupants mentioned above. Some of The third robber ransacked the vehicle and They were beaten up. The victims were ordered out of the vehicle and forced to lie down. robbers two of whom were armed with a gun and a stick respectively. and Mr. Denis Tibandeke, a driver, fell into an ambush staged by three Rwabiita, a member of Parliament, Miss Florence Mutegeki, a housegirl, included Beatrice Basemera Buttime, a Minister's wife, Hon. Deo after reaching Kyenjojo in the Kabarole District. The occupants who travelling from Kampala to Fort Portal were stopped and fired at shortly

appeal. appeal to the Court of Appeal was heard and dismissed. Hence this and convicted of aggravated robbery and sentenced to death. Their identified as two of the robbers. They were arrested and later charged passengers in it. Two suspects who turned out to be the appellants were that same day, the police stopped a bus coming from Fortal with incident to Kyenjojo police post. In the course of their investigations, At the earliest opportunity in the morning, the victims reported 5<sub>the</sub>

The Memorandum of Appeal contains the following grounds;

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the subject of the indictment. the doctrine of recent possession of property that was not confirmed a conviction and sentence of robbery, based on The learned Justices of Appeal erred in law when үэл

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- the case, thus erring in law when they confirmed the principles of the doctrine of recent possession to the facts of $-7$ The learned Justices of Appeal did not properly apply the - conviction and sentence relying on the evidence of PW6 and The learned Justices of Appeal erred in law to uphold a $-\varepsilon$

sentence.

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evidence and subject the same to fresh scrutiny. The learned Justices of Appeal did not reevaluate **Shift** $-t$ PW7 which was full of contradictions and inconsistencies.

detect the error made by the trial court. Appeal failed to reevaluate the evidence and therefore were unable to wrongly applied the doctrine to the facts of this case while the Justices of perceived the doctrine per se, it was his contention that the learned judge both the learned trial judge and the Justices of Appeal defined and that whereas the appellants had no problem with the manner in which was the doctrine of recent possession of stolen property. He submitted appellants were convicted and sentenced to death for aggravated robbery I of the appeal, Mr. Tayebwa submitted that the basis upon which the for the appellants, abandoned grounds 3 and 4 of the appeal. On ground conuse During the course of his submissions, Mr. Tayebwa, learned

a liar and unreliable witness and therefore any property disclosed by her judge had rejected the evidence of Mrs. Buttime whom he described as Alenda, PW7. Counsel further contended that in any event, the trial property of other witnesses, namely, Deo Rwabiita, PW6, and John yet the conviction on that count was based on the evidence and stolen property listed therein belonged to one Mrs. Beatrice Buttime, PWI, and the indictment against the accused in the High Court show that the Mr. Tayebwa contended that the particulars of the offence in count 1 of

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Uganda Crim. App. No. 21. of 1991... Crim. Appeal No. 4 of 1999 (S. C.) (unreported), and E. Kasaija $v$ . cited R. V Tambuvi (1958) E. A. 212, Mawanda Edward v. Uganda, Magistrates' Courts' Acts 1970 to support his submissions. He also the Itial On Indictments Decree, 1971 and section 8 (2) of the a miscalliage of justice. Learned counsel cited sections 20 and 137 of conclusions as a first appellate court was such an error as to amount to reevaluate the evidence so as to enable them come to their own omission by the learned Justices of Appeal to detect this error and possession of recent stolen property. Counsel further contended that the to rely on that property as justifying the application of the doctrine of indictment. It was therefore an error on the part of the learned trial judge false evidence could not be relied upon as the foundation of the

law did not require that a victim or victims be named in an indictment. from the complainants and had acted under a common purpose and the bedor yind sud severally found in possession of all the property robbed counts. He contended that the appellants and the deceased convict had supported both the conviction and sentence of the appellants on both For the respondent, Mr. Okwanga, Senior State Attorney, initially

still permissible under the law for this court to uphold the conviction on Decree does not require that victims of a robbery be named, and that it is however, contended that as section 20 of the Trials On Indictment have been enumerated in count 1 of the indictment. Mr. Okwanga property of Deo Rwabina, $PM6$ , and John Alenda, $PM7$ , should also drawing up of the indictment in count I was erroneous. The stolen During the course of his submissions, Mr. Okwanga conceded that the

count 1.

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that the accused persons had stolen the property during the commission stolen property and the accused persons led to the irresistible inferences (unreported). In all these cases, however, the linkage between the George William v. Uganda, Crim App. No. 11 of 1999, (S. C.), Uganda, Crim. Appeal No. 6 of 1999 (S. C.), (unreported) and Kaddu Crim. Appeal No. 4 of 1999 (S. C.) (unreported), **Izongoza William v.** The same principle was applied in Mawanda Edward v. Uganda, property during the raid, six days after the commission of the offence. because the appellants were found in possession of some of the stolen application of the doctrine of recent possession of stolen property murder of a man found dead after the raid, on the basis of the committed in the raid. The appellants were nevertheless convicted of the appellants as having participated in the robbery and in the murder Tanganyika, none of the prosecution witnesses could identify the out a raid on a small trading centre at Muganga in East Lake Province of **Andrea Obonyo V. R** (1962) E. A. 542, in which a gang of men carried governing the doctrine of recent possession of stolen property. u previous decisions, courts have stated and amplified the principles inclutably to the alleged commission of the offence. In a series of has no other explanation that it implicates the suspect firmly and must be of such nature as to leave no reasonable doubt that the linkage which it is to relate and the link between that evidence and the suspect the prosecution or the court. To justify its application, the evidence to circumstantial evidence, the doctrine is not to be taken $\lg\text{htly}$ either by receiving of the stolen property in question. Since it is based on justify a conviction for a crime committed, other than that of mere species of circumstantial evidence which, a court considers sufficient to In our view, the doctrine of recent possession of stolen property is a

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which provides that: principle contained in the provisions of S. 112 of the Evidence Act of the offences for which they were indicted. The cases reflect the

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of the accused. Count 1 of the indictment against the appellants and the property must be clearly and properly identified and found in possession witnesses identifying the same must be truthful. In any event, the stolen property alleged to have been recently stolen must be credible and the However, for the doctrine to be applied properly, the evidence of the

deceased convict in this case read as follows:

Particulars of Offence Aggravated Robbery C/SS 272 and 273 (2) of the Penal Code Act. "Connt I ZIVLEWENL OF OFFENCE

deadly weapon, to wit a gun on the sad Mrs. Beatrice Buttime." o pasu visaddor immediately after the time of the said robbery used a τωυ μο μο μο γοος σηρογού οπό τρις εναίας μας αι οι μου γοος από γρας του μου γοος προγού του γραμίας του του $10000$ in solution one camera, one kitenge, two bundles of keys, $1480700$ Handbag containing many valuables, three passports one with No. Mrs. Beatrice Buttime of cash $SAs.$ 370,000. District robbed slowed in the Xabliv is $N$ at $N$ and $N$ are $X$ and $N$ are $X$ and $N$ are $X$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ are $N$ and $N$ ar $\mathcal{M}$ ογσμωμος μηθειλοικέ Βαβοητα αιλ στη χειρική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξική μεταξι

Buttime of whom and others, the learned trial judge said, regarding these items of property was given only by Mrs. Beatrice the deceased affer they were arrested and searched. The testimony enumerated in count I were found on the persons of the appellants and It is quite clear from the evidence of witnesses that none of the items

John Kamanyire, to be disgraceful witnesses. Each of them made "I found PWI, Mrs. Buttime, PW3 Denis Tibandeke, and PW4,

$"$ $\partial$ sl $\partial$ σίαιπε which examined in light of the whole evidence were clearly

have proved their case on each count. complete agreement with both gentlemen assessors, that the prosecution judge was in error to consequently conclude that, "I am therefore in Having so observed, we are of the view that with respect the learned trial

and sentence set aside. We therefore allow the appeal on this ground. The conviction is quashed of Appeal ought to have reevaluated the evidence in relation to ground<br>and as they did not do so the appeal on this ground must succeed. the same Decree saves the conviction under the same count.. The Court the Trial on Indictment Decree, 1971, nor do we think that section 137 of indictment does not comply fully with the provisions of sections $20$ of We agree with learned counsel for the appellants that count I of the

on support of ancone of Counsel contended that, therefore, on that basis, ground 2 of the appeal that they had been mere receivers of stolen property was not ruled out. supported by the two accused persons at their trial. The possibility truthful witnesses. The prosecution did not disapprove the defences of $(PMG)$ , and John Alenda $(PWP)$ merely because they appeared to be in citor to place greater emphasis on the evidence of Deo Rwabilta, stolen property and not robbers. He contended that the two courts were that the appellants and the deceased convict were mere receivers of court and the Court of Appeal erred in failing to consider the possibility On ground 2 of the appeal, Mr. Tayebwa submitted that both the trial

belonging to John Alinda, PW7, and worn by the Wilberforce Bagonza, possession of the first appellant and a shirt and a jacket identified as identified as belonging to Deo Rwabiita, PW6, and found in the and which came to be enumerated in count 2 included one wrist watch evidence about the stolen property found in possession of the appellants learned Justices of Appeal in reevaluating it. He contended that the by either the learned trial judge in assessing the evidence or by the of the indictment. Counsel contended that, no error had been committed For the respondent, Mr. Okwanga supported the conviction on count 2

the second appellant...

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trial judge was correct to conclude that, robbery and the said gun was recovered by the police. In our view, the the nearby palars where they had hidden the gun they used in the persons were able to take the investigating police officers and others to was corroborated by the fact that, on questioning, the two accused confirmed by the Court of Appeal The evidence of these two witnesses evidence was accepted by the learned trial judge and his decision was The trial judge found PW6 and PW7 to be truthful witnesses. пэдГ raid on the motor vehicle in which the witnesses had been passengers. had all been robbed from the witnesses the previous night during the We agree with Mr. Okwanga that the watch, the shirt and the Jacket

$\sim$ *auii inous a cons uivim spuby pagubyoxa* that the two men were the thieves. This wrist watch could not have puil I $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ on $\mathcal{A}$ was found that $\mathcal{A}$ is a $\mathcal{I}$ of $\mathcal{A}$ of $\mathcal{A}$ is written and $\mathcal{A}$ of $\mathcal{A}$ on $\mathcal{A}$ is a match was found The doctring and to satisfies the doctring of recepting the index and the satisfies the satisfies the satisfies the satisfies the satisfies the satisfies the satisfies the satisfies the satisfies the satisfies the satisfie

The learned Justices of Appeal having remarked that the trial judge a deadly weapon used were stated in and accepted by the trial court. The facts that there was a robbery in which property had been stolen and

based the conviction of the two appellants on the doctrine of recent

possession reiterated that doctrine thus,

pomusorg silin nolots (sic) recently stolen will be presented no sboog nim banol si ohm norva a person who is foots or infl"

$v$ of any explanation as to how came to power to possess the $\mathcal{L}$ iniod nug to be a very very line appear in Sun point. Visual singligible on the value of the stabilistic value of the stabilistic value of the value of the value of the value of the value of the value of the value of the value of the value of the value of the value of the val instant case, the trial judge was satisfied on the evidence that the came to be in possession of those goods or property. ayı uj ay moy suipidxa linisioniffus uosaad ipyi ssajun faiyi ayi aq oi

this case. In **Izongoza William v. Uganda** (op.cit), we said, possession of recently stolen property to the facts and circumstances of assessed the evidence and rightly applied the doctrine of correctly In our view, both the learned trial judge and the Justices of Appeal

$\mathcal{L}$ convict the accused of vobbery." explanation otherwise the evidence of recent possession is taken as a result of robbery, the accused must offer some credible no not sow because it is a spoof to noise several principles of some position of some position of the solution of the solution of the solution of the solution of the solution of the solution of the solution of the solution theth, if the prosecution adduced adequate evidence to show that the case of circumstantial evidence surrounding a robbery or in criminal cases always lies on the prosecution. In off that slur shi of $\mathcal{L}$ such that $\mathcal{L}$ is a substitution of the such that $\mathcal{L}$ is a substitution of the substitution of the substitution of the substitution of the substitution of the substitution of the substitution of the subs

Let us reiterate what was said in **Simon Musoke** v. R. (1958) E. A. 715,

that,

appeal.

"Han that of guilt." sisəyiodi əldanısını vəhio van noqu notinani başayı və başayı van noqu noqu noqu noqu sisəhidi və başayı və başayı və başayı və başayı və başayı və başayı və başayı və başayı və başayı və başayı və başayı və başayı və baş inculpatory facts are incompatible with innocence of the accused, the court must, before deciding on a conviction, find that 'εκς[πειλεί] πρου είνειπητιαί ενιθείας Suipuədəp əspɔ $p$ $u_{\parallel}$

In consequence, we find that there is no merit in the second ground of

conviction is dismissed. In respect of that count.

If must accordingly fail and in the result the appeal on

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# **TOURNER OF THE SUPPLIER COURT**

T. E. M. MUKASA-KIKONYOGO

CAN KANYEMIBA<br>KANYEMIMAMBA

*<u>INZLICE OF THE SUPPLIER COURT</u>*

**TOURNER OF THE SUPPLIER COURT**

*INZALCE OL LHE ZOBKEWE COOKL*

**TOTALICE OF THE SUPPLIER COURT**

$400$

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A. N. KAROKORA

T. W. N. ISEKOOKO

DATED AT MENGO, THIS LAM. DAY OF LOC. 2000 shall each suffer death in the manner authorised by law.

Statute, 1996. Mohamed Nyakahuma and Wilberforce Bagonza you impose sentence ourselves which we do under section 8 of the Judicature which covers count 2 of the indictment. Accordingly, we are obliged to $\Delta$ and set aside the sentence but confirmed the conviction on ground 2 count. We have allowed the appeal on ground I, quashed the conviction sentenced them on the first count but suspended sentence on the second Having convicted the appellants on both counts, the learned trial judge