Otim v Uganda (Criminal Appeal 16 of 1993) [1994] UGSC 24 (25 October 1994)

## IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: MANYINDO, D-. C. J, ODOKI, J. S. C., & PLATT, J. S. C)

## criminal APPEAL NO. 16 OF -1993

OTIM GABRIEL OGOLA ::::::::::::::::::::::::::::::: APPLELLANT

# VERSUS

UGANDA I::::::::::::::::::::::::::::::::::::::::::: RESPONSENT

(Appeal from the judgmtnt of the High ^ourt of Uganda at Gulu (Okello J.) dated 7th July 1993).

## I N

### CRIMINAL SESSIONS CASE NO. 281 OF 1992.

### REASONS FORJUDGMENT:

The Aepellapt was convicted of murder contrary to section 183 of the Penal Code, and was sentenced to deaths He appealed to this Court against the conviction and sentence\* We heard the appeal and dismissed it. We reserved the reasons for our decision which we now give,.

The brief facts of the case were that on 20th January, 1990 at about 9\*00 P\*m, the Appellant and other rebels attacked the home of Marko Odong (PWl) who was an RC II Chairman of Panga Parish in Gulu District. They arrested several people from the home of Odong and assaulted them using a panga. Later they burnt down several houses and led the deceased, who was the wife of Odong, and two other women, including Agnes Ajok (PW2), away from Odong's home. On the way the deceased was assaulted by the Appellant with a panga, causing multiple injuries from which she died the following day at Labara dispensary.

The Appellant surrendered under the Presidential amnesty in 1991 and started staying in Gulu Municipality. Later one of the victims found him in town and reported the matter to the security authorities. The Appellant was consequently arrested and charged with the murder of the deceased. He denied the charge and pleaded an alibi to the effect that at the time of the offence he was at his home in Amuru village. T he learned judge accepted the evidence of the prosecution and found that the Appellant was properly identified by two eye-witnesses during the night of the incident. He rejected the Appellants alibi as false and found that the Appellant had been a rebel at the material time. He found the appellant guilty as charged.

The Appellant appealed to -this Court on two grounds. The first ground of appeal was that the learned judge erred in law in holding that the Appellant was properly identified. The second ground was that the learned judge erred in rejecting the Appellant's alibi which ought to have raised a reasonable doubt.

Mr. Akampurira, learned counsel for Appellant, argued both grounds together. He submitted that the conditions under which the Appellant was identified were not favourable to correct identification. He pointed out that the attack took place at night, and under circumstances of surprise. The Appellant was not stationary but was moving up and down. Odong (PW1) had not seen the Appellant for the last three years and therefore could not recognise him by voice or appearance. Ajok (PW2) was too frightened to recognise the Appellant. Moreover she contradicted herself as to how she recognised the Appellant.

As regards the defence of alibi raised by the Appellant, Mr. Akampurira submitted that the Appellant claimed to be staying at Amuru at the time of the incident although he did not indicate where he was at the material time, ^e submitted that the Appellant denied the offence and he ought to have been believed that he was framed up because of a land dispute between Odong and his father.

.... /3

The learned judge found that there were tv/o eye-witnesses to the identification. He accepted the evidence of PW\*l that when the Appellant emerged at the camp fire where the witness and his family were .sitting, the Appellant warned that whoever runs away would be shot. PW1 recognised the Appellant's voice and saw him physically. He was able to recognise him by the light from the camp fire. He had known the Appellant since 1985\* The Appellant was armed with a panga and a spear. He saw the Appellant grab his son Oryem and tie his hands at the back using the sleeves of his shirt. The Appellant then turned on to PW1 and tried to tie his hands with his Kaunda shirt, but failed because the sleeves were too short. Then the Appellant cut him three times on the back with a panga\* As he was crying, Oryem managed to run away and the Appellant chased him. In the meantime he escaped and hid in the nearby bush. He saw the Appellant return to his home and set all three houses on fire. He also saw the Appellant leading the three women away including the deceased. -Early in the morning he was informed that the Appellant had seriously cut the deceased. Later he reported th© matter to NRA soldiers at Alaro. Consequently the Appellant was arrested.

The evidence of PW1 was supported by the evidence of his daughter-in-lav/ Agnes Ajok (PW2). Her evidence which the learned judge accepted was to the effect that although she did not recognise the Appellant at the camp fire. She identified him on the way as he led-. them away from their home after setting fire on the houses. She testified that she identified him because the night was not very dark, and also from the light from the burning houses.

She saw the Appellant cut the deceased all over the body with a fcanga. Tt was at this moment that she ran away. She testified that she had known the appellant before because he used to visit their home cr Pass through it.

- 5

The learned judge found that the two witnesses were truthful. He believed them that they properly and accurately identified the Appellant from different positions. He found that both witnesses had known the Appellant before. The Appellant admitted that PW1 knew him very well. He found that there was sufficient light from the camp fire to enable PW4 to identify the Appellant. He found that PW1 had ample opportunity to identify the Appellant. He found that PW2 knew the Appellant before and that she was able to identify the Appellant with the light from the burning houses from where she was waiting for the accused under the guard of the Appellant's colleague.

We are unable to agree with learned counsel for the Appellant that the learned judge erred in holding that the Appellant was properly identified by the two prosecution witnesses in view of the evidence on record. We agree with the learned judge that the conditions were favourable to correct identification. The Appellant was well known to the witnesses. There was ample light from the camp fire and from the burning T houses. he incident took some considerable time as the Appellant engaged himself in arresting and assaulting several people. The witnesses were frightened by the attack, but the attack was not calculated or executed in such a way as to prevent proper identification of the Appellant. We think that there was ample evidence of identification <Pf the Appellant. Accordingly, the first ground of appeal must fail.

The learned judge rejected the Appellant's defence of alibi as fabricated. It was submitted for the Appellant that the learned judge erred in doing so and that instead he should have found that the defence cast a reasonable doubt in favour of the Appellant.

The Appellant who gave evidence on oath, denied attacking the homo of Marko Odong on 20.1.1990 or killing the deceased.

He claimed that in 1990 he was living in Amuru. He denied joining the rebel group of Lakwena. He stated that in January, 1991 he and his sister were abducted by rebels and taken to the bush where he stayed until June 1991 when he escaped and rep?r'ted to the Local Defence Unit (LDU) at Lacor\* In June 1991 he joined the LDU. Later he was arrested following a report against him by Marko Odong. He claimed that Odong made the allegations against him because of a land dispute between him and the Appellant's father.

The hppeiiant admitted in cross-examination that he had an identity card (Exh. P.l) issued to him on 20.5.91 by the Jago of Amuru, and that it did not bear the stamp or the signature of the Jago (Chief). The identity card however, indicated that ho was a resident of Laliya in Gulu Municipality. The card was found on him at the time of his arrest. «•.

The Appellant also admitted that a Graduated tax ticket No.7^96 (Exh. P.2) issued in his name by Gulu Municipal Council for the year 1990 was found with him at the time of his arrest. The ticket showed that the Appellant was a resident of Laroo within Gulu Municipality. He also had a residence permit (Exh. P.5) dated 7»^\*91 issued by RC of Laliya Parish showing that he was a resident of Laliya.

The learned judge found as a fact that the Appellant lied about his whereabouts in 1990 because the documents found on him indicated that during that year he was a resident of Laroo in Gulu Municipality, and not a resident of Amuru as he claimed. We think that the learned judge was justified in making this finding. Indeed none of the documents found on the Appellant indicated that he was a resident of Amuru in 1990. The identity card purportedly issued by the Jago of Amuru was neither signed nor stamped, and in any case it was issued on 20.5.91 after the Commission of the offence

The learned judge also found that the Appellant lied about his whereabouts in 1990 because he was a rebel and needed such documents to facilitate his movements. We are unable to say that the judge cam^. to a wrong conclusion on this matter\* The Appellant claimed he had been abducted by rebels in January, 1991 • 'Je are inclined to agree with the learned judge that the Appellant was with the rebels in January, 1990 and that his defence of alibi was properly rejected. He was one of the rebels who attacked the home of Marko O^ong, and killed th© deceased. The motive for the attack was because Marko Odong was an Rc and therefore a Government agent. The appellant inflicted serious cut wounds on the deceased with a panga and must have intended to kill her. We were therefore satisfied that the Appellant was properly convicted of the murder of the deceased.

b

Accordingly we dismissed the appeal.

25th Dated at Mengo this 199^ , " October day of ........

(signed)

S. T. MANYINDO DEPUTY CHIEF JUSTICE.

(signed)

B. J. ODOKI JUSTICE OF THE SUPREME COURT

(signed)

H. G. PLATT JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE •' COPY OF THE ORIGINAL.

'

A. Ij. Kyeyune

AG. ASST. REGISTRAR/SUPREME COURT.

■■■■ ■■