Tabu v Uganda (Criminal Appeal 35 of 2017) [2024] UGSC 11 (2 February 2024)

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

[Coram: Owiny-Dollo, CJ; Tibatemwa-Ekirikubinza: Tuhaise: Musota; Madrama; JJSC

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# CRIMINAL APPEAL NO. 35 OF 2017

#### **BETWEEN**

#### <table> TABU RICHARD APPELLANT $15$

#### AND

## **UGANDA :::::::::::::::::::::::::::::::::::**

*[Appeal against the Judgment of the Court of Appeal at Kampala before: (Musoke,* Barishaki and Mugamba, JJA) dated 22<sup>nd</sup> August, 2017 in Criminal Appeal No. 15 20 of $2014$ ].

#### **Representation**

At the hearing of the appeal, Counsel Andrew Sebugwawo on State Brief represented the Appellant while Ms. Ann Kabajungu, Chief State Attorney represented the Respondent.

*The Appellant was present in court via video link from Luzira Prison.* $25$

*Both parties relied on their written submissions filed in Court.*

#### JUDGMENT OF THE COURT

#### **Facts**

The facts leading to this appeal as accepted by the lower courts are 30 that on the night of 11<sup>th</sup> March 2011, robbers attacked Mbula

- Trading Centre, Peta Sub-county in Tororo district. The robbers $\mathsf{S}$ broke into shops and fired a gun to disperse any residents in the vicinity. The robbers stole two motorcycles, a car battery, shaving machines, phone chargers and a phone. - A few days after the robbery, the Appellant (Tabu Richard) was arrested together with Okoth Julius (A1) and Okello Stephen (A2) as 10 suspects in relation to the robbery.

The prosecution case against the suspects was that after the robbery, intelligence reports given by Ongero Matulumayo (PW5) indicated that the stolen property was at the home of Oketch Tom s/o Owere Isaac who lived at Mawundo Village in Nagongera.

D/SP Birungi (PW7), and D/AIP Itte (PW8) together with other Police Officers went to Mawundo Village to search Oketch Tom's home. Exchange of gunfire ensued upon Oketch Tom putting up resistance and denying the police access to his house. He was over powered and a search was conducted that led to the recovery of items that were suspected to have been stolen on the day of the robbery.

Thereafter, the Appellant's home was also searched and a motorcycle with registration number UDN 836H which went missing on the day of the robbery was recovered. The Appellant was arrested and charged with aggravated robbery.

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The Appellant denied the charges. He denied stealing the motorcycle that was recovered from his home. It was his evidence that it was Okoth Julius (A1) who had given him the motorcycle so that he could use it for boda boda business.

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- The Appellant together with the two co-accused persons (Okoth $\mathsf{S}$ Julius 'A1' and Okello Stephen 'A2') were tried by the High Court on two counts of aggravated robbery. At the conclusion of the trial, all the accussed persons were convicted and each sentenced to 17 years' imprisonment. - Dissatisfied with the High Court decision, the three accussed persons 10 appealed to the Court of Appeal against both the conviction and sentence. The Court of Appeal found that the Trial Judge erred in finding that the participation of 'A1' and 'A2' in the robbery had not been proved beyond reasonable doubt and ordered for their immediate release. 15

However, the Court of Appeal found that the Appellant's appeal (Tabu Richard) had no merit and that the explanation given on how he came into possession of the stolen motorcycle was a mere fabrication. Consequently, the Court of Appeal upheld the Appellant's conviction and sentence.

Still dissatisfied with the Court of Appeal decision, the Appellant lodged an appeal in this Court against both the conviction and sentence on the following grounds:

- 1. The learned Justices of Appeal erred in law when they upheld the Appellant's conviction in the absence of evidence that he participated in the crime. - 2. The learned Justices of Appeal erred in law when they upheld the conviction of the Appellant basing on weak and unreliable circumstantial evidence.

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## **Prayers:**

The Appellant prayed that the appeal be allowed, the conviction quashed and that he be set free.

## Grounds 1 and 2

Both the Appellant and Respondent counsel submitted on grounds 1 $10$ and 2 together. The grounds will therefore be dealt with by Court together.

## **Appellant's submissions**

Counsel submitted that there is no evidence on record that the Appellant participated in the robbery and was at the scene. The Trial 15 court and the Court of Appeal did not make any finding that the Appellant had participated in the robbery. The Court of Appeal confirmed the Appellant's conviction on page 12 of its judgment premised on the fact that:

- (i) a recently stolen motorcycle was recovered from the Appellant's 20 house. - (ii) The Appellant was in Kenya after the robbery.

Counsel argued that the above two factors alone did not constitute evidence of participation in the robbery especially where the 25 Appellant accounted for how the motorcycle ended up in his house. That the evidence relied upon by the Court of Appeal may be evidence of strong suspicion but not actual participation in the crime. That therefore, the Court of Appeal erred in applying the doctrine of recent

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- possession of stolen property. This is because the Appellant $\mathsf{S}$ accounted for how he acquired the said motorcycle but the courts below relied on attractive reasoning and conjecture to confirm the Appellant's conviction. - Counsel further argued that the person in recent possession was 10 Okoth Julius 'A1' who brought the motorcycle to the Appellant and not the other way round. In his words, counsel submitted that the law on recent possession 'ignores' the fact that the suspected stolen property may have exchanged many hands before it reached the person from whom it is recovered and that person may actually know 15 nothing about the property having been previously stolen.

Further still, counsel submitted that there is no evidence on record whatsoever placing the Appellant at the scene of crime. That no witnesses saw him at the scene nor were any deadly weapons used 20 at the scene of crime recovered from him.

#### **Respondent's reply**

Counsel for the Respondent supported the decision of the Court of Appeal. Counsel submitted that the explanation given by the 25 Appellant on how he came into possession of the motorcycle was not credible for the following reasons:

First, a motorcycle by its nature does not easily change hands being an item that is peculiarly identifiable by particular numbers. That the period of time between the robbery and when the motorcycle was

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found in the Appellant's bedroom is too short to support the inference $\mathsf{S}$ that the stolen motorcycle had changed hands before it came into the Appellant's possession.

Second, the Appellant had the motorcycle in his bedroom and it was covered by a wooden bed and plywood. This showed an intent to conceal the motorcycle knowing that it was unlawfully acquired; thus, he was not just a mere innocent receiver of stolen property but a participant in the robbery.

Third, the Appellant's conduct of running away to Kenya for a period of about a year was not conduct of an innocent man.

- Counsel submitted that the above reasons were inculpatory facts 15 which were incompatible with the innocence of the Appellant and cannot be explained upon any other reasonable hypothesis other than that of guilt. In support of the foregoing submission, counsel relied on Section 113 of the Evidence Act Cap 6 as well as the - authority of Kantillal Jivarai and Another vs. R [1961] E. A. 6, $20$ where the Court of Appeal for East Africa held that:

*It is of course, well established ... that, a court may presume that a* man in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. This is in reference of fact which may 25 be drawn as a matter of common sense from other facts including in particular, the facts that the accused has in his possession property which it is proved has been unlawfully obtained shortly before he was *found to be in possession of it."*

Premised on the above authority, counsel submitted that the learned 30 Justices of Appeal rightly presumed that the Appellant was hiding

the motorcycle, he was not an innocent receiver and that his $\mathsf{S}$ disappearance from the village for close to a year was not a coincidence.

Therefore, the learned Justices of Appeal rightly held that the Appellant's defence that the motorcycle was given to him was a fabrication and rightly upheld the conviction.

In conclusion, counsel prayed that this Court finds that Grounds 1 and 2 of the appeal lack merit and the conviction as well as sentence of the Appellant be upheld.

## Court's consideration

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It is the Appellant's contention that the learned Justices of Appeal 15 erred in upholding his conviction in absence of evidence linking him to the participation of the crime.

Participation of an accused person in an offence of aggravated robbery is a crucial element that ought to be proved beyond reasonable doubt by the Prosecution.

A perusal of the judgment of the Court of Appeal shows that the court re-evaluated the evidence regarding the Appellant's participation in the crime and stated as follows:

"*The trial Judge made a finding that A3 was a full participant in*" the crime having been found with recently stolen property. He $25$ added that the stories of A3 having left for Kenya to nurse his sick aunt and that the motorcycle had been given to him were *fabrications.*

$\mathcal{T}$ It was not in contention that the stolen motorcycle belonging to $\mathsf{S}$ PW4 was recovered from A3's home when a search was conducted.

*The doctrine of recent possession of stolen property was* considered in Bogere Moses & anor v Uganda, Supreme Court **Criminal Appeal No.01 of 1997** *where it was stated as follows:*

It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very *strong presumption of participation in the stealing so that if there* is no innocent explanation of the possession, the evidence is even stronger and more dependable than eye-witness evidence of *identification in a nocturnal event. This is especially so because* invariably the former is independently verifiable while the latter *solely depends on the credibility of the eye witness.*"

While considering the doctrine of recent possession of stolen property to the facts before it, the Court of Appeal Justices concluded as $20$ follows:

"We are not convinced by the evidence of A3 [Appellant in this Court] that the motorcycle had been given to him by Okoth for the purpose of starting a boda boda business. First of all, he did not contest the fact that the motorcycle was hidden in his house where it was covered with plywood and a bed. It is questionable why he would take the precautions of hiding the motorcycle in such a manner if he was just an innocent receiver. We do not find it a coincidence that A3 disappeared from the village for close to a year during the same period when the motorcycle was recovered. We

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accept the trial Court's findings that A3's defence that the motorcycle $\mathsf{S}$ *was given to him was a fabrication.*

In the result, we find no merit in A3's appeal and dismiss it accordingly. We uphold the conviction and confirm the sentence passed against him."

- Section 113 of the Evidence Act (Cap. 6) provides that: "The court 10 may presume the existence of any fact which it thinks likely to have *happened, regard being had to the common course of natural, events,* human conduct and public and private business in their relation to the *facts of the particular case."* - In applying the doctrine of recent possession, a court is permitted to 15 make an inference that the possessor of the property had knowledge that the property was obtained by commission of an offence or that they were a party to the crime.

This Court in its 2022 decision of Hassan Kagende vs. Uganda

- **Criminal Appeal No. 55 of 2020** enumerated the following four (4) 20 elements which **must** be proved before a conviction of guilty can be secured on the basis of the accused's recent possession of stolen property: - the property was found with the suspect; $i$ - $25$ - the property belongs to the complainant; ii) - that the property was recently stolen from the complainant; iii) - No plausible reason has been given by the suspect for the $iv$ possession of the stolen property.

- It is pertinent to note that evidence of possession of recently stolen $\mathsf{S}$ property is circumstantial in nature. It is trite law that although circumstantial evidence is not direct, it is often the best evidence. Hewart, CJ in Taylor Weaver and Donovan [1928] 21 Cr. Appeal **r.20,21** observed that: - "... circumstantial evidence is very often the best. It is evidence of $10$ surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial."

It is therefore not proper to argue as the Appellant's counsel did that just because the conviction was based on circumstantial evidence. $15$ that evidence was weak and could not be relied upon.

Be that as it may, it is necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt.

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In cases of possession of recently stolen property, co-existing circumstances which would weaken the inference of guilt include the possibility of the accused being an innocent receiver or acquiring of property through appropriate means without prior knowledge that it was stolen. In the case of **Kigoye and Another vs. Uganda [1970] E. A 402**, it was held that before a court can rely on the doctrine of recent possession, the possibility of the accused being a receiver must be removed.

- In the present appeal, the Appellant explained how he came into $\mathsf{S}$ possession of the stolen motorcycle which was found at his home following a search conducted on 17<sup>th</sup> March 2011. The Appellant stated that the motorcycle found in his possession had been given to him by Okoth Julius (A1) on 13<sup>th</sup> March 2011 to be used for boda boda business instead of him making chapattis. He further stated 10 that on 14<sup>th</sup> March 2011, he received a call from Kenya that his aunt was sick and needed to be taken care of. He therefore departed for Kenya and left the motorcycle in his house. On 18<sup>th</sup> March 2011, he was informed that the motorcycle had issues. - It is important to note that the robbery had occurred on $11$ <sup>th</sup> March 15 2011, in which two motorcycles and other properties went missing.

In re-evaluating the Appellant's defence of being an innocent receiver of stolen property, the Court of Appeal Justices noted first and foremost that the Appellant did not contest the fact that the motorcycle was hidden in his house by covering it with plywood and a bed. The Court of Appeal Justices stated that it was questionable why the Appellant would take precautions of hiding the motorcycle in such a manner if he was just an innocent receiver.

Furthermore, the Justices of Appeal noted that the Appellant's disappearance from the village for close to a year during the same 25 period when the motorcycle was recovered was not conduct of an innocent man.

Apart from the above evidence, this Court also takes note of the Police Officer's (PW8) evidence who conducted the search at the Appellant's home and found that the recovered motorcycle's genuine number

- plate had been changed from UDN 836H to UDP 093E. If indeed the $\mathsf{S}$ Appellant was an innocent receiver, why would he have changed the motorcycle's number plate? We note that the Appellant gave no explanation to the change of the motorcycle's registered number plate. This points to the irresistible conclusion and fact that the Appellant intended to conceal the identification of the motorcycle as 10 part of the property which went missing as a result of the robbery. The act of concealing the motorcycle's identification also points to the irresistible fact that the Appellant was part of the persons who carried out the robbery. - Thus, we agree with the above findings and conclusion made by the 15 learned Justices of the Court Appeal that the Appellant was not an innocent receiver of the stolen property (motorcycle) so as to absolve him from criminal liability arising from the doctrine of recent possession. - We also note the fact that it was the finding of both lower courts that 20 the Appellant's explanations on how he came into possession of the motorcycle was unsatisfactory. It is trite law that this Court will not ordinarily interfere with the concurrent findings of the lower courts except where it is shown that the two courts were grossly wrong in their finding or misapplied principles of law. (See: **Kazarwa Henry** $25$

vs. Uganda SCCA No.17 of 2015 and Kakooza Godfrey vs. Uganda SCCA No.3 of 2008).

We therefore hold that the unexplained possession of recently stolen property by the Appellant was incompatible with innocence. We are also satisfied that the four elements listed above in **Hassan Kagende**

**vs. Uganda (supra)** were in place to sustain the conviction and $\mathsf{S}$ sentencing of the Appellant on the basis of possession of recently stolen property.

## Conclusion

In the result, we hold that this appeal lacks merit and it is hereby dismissed. The Appellant's conviction and sentence of 17 years' 10 imprisonment is upheld.

We so order.

$2$ <sup>rel</sup> day of <u>Februal</u> 2024. Dated at Kampala this. 15 HON. JUSTICE ALFONSE OWINY-DOLLO **CHIEF JUSTICE.** Malenn 20 HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT. HON. JUSTICE PERCY TUHAISE, 25 JUSTICE OF THE SUPREME COURT. $\cdots$ HON. JUSTICE STEPHEN MUSOTA JUSTICE OF THE SUPREME COURT. 30 HON. JUSTICE CHRISTOPHER MADRAMA, JUSTICE OF THE SUPREME COURT. delivered as dive Judgment 13