Tinkamalirwe v Uganda (Criminal Appeal 27 of 1989) [1991] UGSC 21 (19 June 1991)

Full Case Text

## IN THE SUPREME COURT OF UGAI'DA

# AT MEMGO

CCORAM: WAMBUZI, C.7., PLATT, J. S. C., & SE;TOU, J. S. C.)

criminal appeal NC. '27/89

'BETWEEN

SAPAPIO TINKAMALIRWE *'.a* - APPELLANT

"an6

'UCi'JlDA :::v :Vsv A; ://X RESPONDENT (Appeal against conviction and sentence of

the High Court decision holden at Fort P Portal by (Hon. Mr. Justice J. P. M. Tabaro) dated 4/8/89)

#### OR. SS. CASE NO. 52 OF 1988

### JUDGMENT OF THE COURT

This is an appeal from four convictions heard in the High Court at. Fort Portal. The Appellant was on 4 th August 1989 convicted Code and on each of two further counts for an offence of Robbery with aggravation contrary to sections 2?2 and 275 (2) of the Penal Code. on' each of two counts for an offence of Kidnap'ing with intent to murder stated to be contrary to section 255(1) (a) of the Penal

The particulars of offence in the first count were laid as follows:-

> ''Count I: Sarapio Tinkamalirwe, Akiiki Pam and others still at large on the 16th day of May, 1985 at Nyabigumba village in Kabarole District seized, forcibly took away Charles Barimukyabo against his will with intent that the said Charles Barimukyabo may be murdered or be disposed of as to be put in danger of being murdered."

The particulars of offence in the second count were the same save that the name of the victim was Bifabusha.

The particulars of offence in the third count were laid as follows:-

#### "Count J:

Sarapio Tinkamalirwe, A.kiiki Ram and others still at large on the loth day of May? 1985 at Myabigumba village in Kabarole District robbed Elizabeth Kiiza Barimukyabo of her Shs 2,000/- and at or immediately before or immediately after the said robbery threatened to use a deadly weapon to wit a knife on the said Elizabeth Kiiza Barimukyabo."

The particulars of offence in the fourth count were the same save that the name of the victim was Stephen Dagada and the amount stated to be robbed was shs. 5>000/-.

The Appellant was sentenced by the Court in the following terms:

"Accused shall suffer death in the manner authorised by law."

The facts of the case may be summarized briefly as follows: The Appellant was Chairman of the UPC FOB Kisomoro village. Towards the end of April, 1985? NBA soldiers ("rebels") came into his area- UIILA soldiers ("government") came into his area to confront them. War .occured between th.\* two groups of soldiers. The Appellant, fearing to be arrested by the NBA soldiers, fled the area.

On 16th May 1985 there were gunfire shots by UNLA soldiers. This scared most of the people settled in the area? many of whom fled. Chariest Barimukyabo and Bifabusha (who shall be referred to so were Elizabeth Kiiza, Violet Kyanzi, Bagada and Stanley Kacho, hereafter as "the deceased victims") were among those who fled;

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prosecution witnesses 3,4,5 and 6 respectively. On the way they were arrested by UPC Youth Wingers and taken to the office at Nabibyumba alleged to be in the control of the Appellant.

The arrests were said to be on the ground that -those arrested were feeding the "rebels-" The Appellant was stated to have beaten the deceased, victim-s, .and later handed them ovc-r to "Government soldiers land rover. In September, 1985? bones allege: to be those of the deceased victims were discovered, collected and burzLsd by their relatives, without any report to the Police. who took them away in a

The complainants in Counts three and four, Elizabeth Kiiza and Bagada (PWsJ & 5) allegedly had their moneys taken from them when Government soldiers and the Appellant returned from having taken the deceased victims away.

Mr. Zabwe, who appeared for the Appellant, argued three grounds of appeal as follows:

- "1. The learned trial Judge erred in law in that he rejected the Appellant's alibi when the circumstances and evidence were such that it was available to him. - 2- The learned trial Judge erred in law in that in his evaluation of the evidence he failed to scrutunize the prosecution evidence and that this led him not to appreciate that the evidence against the Appellant was a mere afterthought. - 3- The learned trial Judge erred in law in that he held that the discrepancies in the prosecution case were minor when in fact they were major and they did affect the prosecution case adversely-"

We turn to the grounds of appeal and wiild-bal with the grounds of appeal altogether although they were argued separately.

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It appears from the record of proceedings that at the trial the Appellant set up an alibi that he fled to Myabigumba and then went days before the offences charged were allegedly committed. He explained in an unsworn statement that he did so, fearing for his life since he belonged to the Government side, being local' UPC Chairman; he spent semetime less than of one Mugumu; Then he went to the home of one Kabege, where he stayed until July, 1985; subsequently he moved to one Kilo's place and on 25th September 1985 he had hoped to return home but on that day he was arrested by the NRA. a month there, at the home to Muguma in Fort Portal town on the 1^th May, 1985? that is, two

In support of his alibi the Appellant called two witnesses: businessman who testified that on 11th May 1985 be met in Fort Portal with the Appellant who told him he was wanted by the MPA and by 15th May or 16th May 1985 the Appellant had left the placj, and Tereza Tinkamalirwo (DV/3), his wife, who testified that the Appellant fled his homo for Fort Portal on 9th or 1^th May, 1985 - she could not remember the exact date\* It will be noted that both of these to the date when the Appellant left home for the Fort Portal area\* a date in 1985 which he thought was witnesses were rather vague as Edison Kaliba, a

The learned Judge in his judgment dealt .first with the discrepancies and contradictions of the defence witnesses' testimony. He was Particularly severe with the evidence of Tereza (DV/3) 1 of whom he remarked that:

"Needless to state, an honest v/itness who had forgotten the date would have said so at the outset." (P.7)

The Judge found that the defence account of the date in and that "The contradictory versions of the alibi from Kaliba (DWII) and Tereza Kiiza (DVJIII) clinch it as a pack of despicable lies". Then the Judge considered the prosecution case. question was 'blearly shaky"

The Appellant bad, according to the evidence, always been known to Kyanzi (PW4) and Bagada (PW5)- They testified that they had been taken to the Appellant's office on q6th May 1985 at Nakigumba by Youth Wingers. After being beaten by the Appellant and the Youth Wingers, they had seen the Appellant stab one of the deceased victims, Badimukyebo, in the mouth under the tongue with a knife. Later a UNLa Land Rover came from the Fort Portal direction carrying armed soldiers in uniform. The Appellant stopped the vehicle and put in it the deceased victims, who were tied with their hands behind their backs. The Appellant stabbed Barimukyabo in the ribs as he handed them over to the soldiers. The deceased victims were covered with tarpaulin and stepped on by the soldiers. The Appellant boarded the vehicle, which then left, taking the Kascsc direction. Around midday the vehicle returned.

It was then, according to the prosecution witnesses that the money, which was the subject of counts 3 and A, was taken away from the complainants, Kiiza (PV/J) and Bagada (P7/5) • The learned Judge noted that all of these events were alleged to have taken place during broad daylight. He considered some discrepancies in the prosecution case:

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1 . Batuma (PW2) testified that he went with other relatives to Ngororo in Kabonero to collect the presumed bones of the missing persons for burial whereas Kiiza (PWJ), Kyanzi (PV/^) and Bagada (PW5) testified that he did not go there\*; he only made a report of the disappearance to the Police. The Judge believed PV/J, 4 and 5 and rejected PV/2's evidence on this point as ''over - indulgent" and a lie. 2. Kiiza (PWJ) testified that she did not know the people manning the road block at Busiiba but in her police statement she had said that among the Youth Wingers she knew one Friday s/o Bowera\* Kyanzi (PW4) also testified that Friday was known to her. Kiiza (PWJ) explained this discrepancy by stating that she had forgotten some of &lt; the details due to long passage of time. The Judge observed that; "This would appear to be an honest explanation".

3- Bagada (PY/5) in his testimony denied stating to the police that it was the youth wingers who stabbed Barimukyabo in the mouth and ribs. The Judge observed that previous statement cannot be believed unless a sufficient explanation is offered. He then commented that: a witness who departs from his

> "It is possible the police officer who recorded the statement misquoted the witness•"

The learned Judge then directed himself (correctly) that it is not every inconsistency that will result in a witness's testimony1 It is only grave inconsistency, unless satisfactorily of • a witness being rejected. Minor inconsistency will not usually have that effect unless the court thinks tiiey point being rejected: which explained,/will usually, but not necessarily, result in the evidence

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?/...•

to deliberate untruthfulness. In the instant case, the Judge considere that the material. The crucial questions were "what transpired at Nyakigumba and whether the witnesses correctly identified the Appellant as the man to whom the arrested people were handed and whether what he did was witnessed by the witnesses". The learned Judge answered these questions in the affirmative. "apparent discrepancies" in the prosecution evidence were not

Learned counsel for the Appellant asked this court to disagree with the learned Judge first, because of his whole approach to the decision, - by considering separately first the defence case and then the prosecution case; secondly, because of the relative severity with which he treated discrepancies and contradictions of the defence witnesses and the indulgence with which he treated those of the prosecution witnesses. -matters on which he had to make a

We believe, with respect, that the learned Judge's method of approach was undesirable to say the least. Unless there is some particular conduct or issue raised by the defence that requires a preliminary decision, called upon to plead, it seems preferable in the judgment to proceed it is stated by the witnesses, then to set out the defence case as set out by the Appellant and his witnesses, if any, and subsequently to indicate the court's findings on the whole of the evidence. accused person remaining mute when with the setting out of the prosecution case first, as e.g. the

In the instant case we have given careful thought to whether the learned Judge's approach caused him to come to wrong conclusions or conclusions unsupported by the evidence. It appears that he gave little, if any, consideration to the apparent silence of the prosecutior

- 7 witnesses Kiiza (PW3), Kyanzi (Pt'/4) and Bagada (P'J5) during the . period immediately after the alleged commission of the offences charged; they only spoke up about it when the bones were fortuitous! discovered some four months later\* This is explicable, however, by the general confusion which prevailed in the area during that can take judicial knowledge. It is apparent from the evidence that the prosecution witnesses, like most other people in the area, fled their homes in fear and only returned some months later; during their absence they would not have known what fate had befallen the deceased victims\* It may have appeared fruitless in those circumstances to approach the police authorities (if they were operating normally) with their reports. time, of which we

We also observe, in passing, that the defence counsel apparently challenged the prosecution witnesses in cross-examination on the discrepancies and contradictions between their testimony in court and their police statements\* In these instances, however, when the witnesses denied that such discrepancies or contradictions existed, defence counsel failed to have the police statements made exhibits in the case. This made it difficult for us, as an Appellate court, to differ from the learned trial Judge on a finding as to whether the witness was or was not deliberately lying in court-

in the cicumstances, any conclusion different from the trial Judge on the facts concerning the offences charged in counts 1 and 2. we do not fool justified in coming to

The learned trial Judge's direction on the ingredients of the offence of Kidnapping with intent to murder was misleading, as we shall show\* After the direction he stated how he applied it to the

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9/...

facts in the following words:

"As appears above there is ample evidence that the accused participated in the beating of Barimukyabo and Bifabusha as well as tying them with ropes (made of sisal)• He stabbed Barimukyabo in the mouth and ribs both of which are vulnerable parts of the body. Having put Barimukyabo and Bifabusha into the Land Rover occupied by soldiers armed with guns, the victims were covered with tarpaulin and sat or stepped upon. Accused travelled on the same vehicle. In my opinion these circumstances admit of only one inference - intention to murder the victims or to put them in danger of being murdered."

The learned Judge appears both in the passage above and in his direction to the assessors, to have misunderstood the ingredients of the offence in section 2J5(I)(a) of the Penal Code\* The ingredients are.not that the Appellant had formed the "intention to murder the victims or to put them in danger of being murdered". The section states: "may be murdered or be disposed of as to be The section provides a broader intent than the intent to murder or to put in danger of being murdered. put in danger of being murdered."

*W-...*

This misdirection allows this court to return to the words of the charge and decide whether the Appellant had formed the intent set out therein. think that the facts proved that the Appellant disposed of the victims so as to put them in danger of being murdered. The learned Judge's misdirection has occasioned no miscarriage of Justice. It is therefore curable under the proviso to S. J31(I) of the Criminal Procedure On all the evidence we

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We now turn to the counts 3 and 4. According to S.273(2) of the Penal Code, the offence of robbery is aggravated:

> "where at the time of, or immediately before or immediately after the time of the robbery, an offender uses or threatens to use a deadly weapon or causes dearn or grievous harm to any person

made or adapted for stabbing or cutting and any instrument which, when used for -offensive purpose, 1© likely to cause death". "Deadly weapon" is defined in S.273(2) to include "an instrum

Th-\*- argument before us on behalf of the Respondent, it had been before the trial court, was put thus: A knife had been used to stab the deceased victim Barimukyabo under the tongue and in th\* ribs. (It was not exhibited nor was its size and type described.) What ever its type and however small it might be, once the court accepted that it was a knife, it fell within the definition of a deadly weapon. This was an essential ingredient of the offence.

We agree with learned counsel up to this point. However we found ourselves in disagreement with- him. that the other ingradienta of the offence had been proved. According to the evidence, the knife was used not on the complainants, Kiiza (PV/3) and Bagada (PW but on the deceased victim Barimukyabo. According to S.273(2), if the deadly weapon, to wit, the knife had been used on or caused grievous harm to "any person", the offence was committed.

or immediately before, or immediately after the time of the robbery". The knife was used on the deceased victim between 9,00 a.m. and 9\*30 a.m\* of the day in question. The robbery did not occur until around 12\*00 noon. The learned Judge dealt with this aspect (at p.12 of the judgment)' But such use must be "at the time of,

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as follows:

$\epsilon$ $\cdot$ .

> Money belonging to Elizabeth Kiiza $\mathbf{H}$ (PWIII) and Stephen Bagada (PWV) was taken by the accused after the Youth Wingers had got the same from the complainants. According to the testimony of Bagada (PW5) the accused on returning from Kasese direction threatened that those who would fail to produce money would not survive death either. This was made soon after the Complainants (had) seen the accused stab one of the missing persons in the mouth and ribs, to wit, Balimukyabo while Bifabucha was also tied with a rope, as wall as Balimukyabo. Balimukyabo was stabbed with a knife, which in my opinion, is a deadly weapon without any doubt. The complainants remained behind under the custody of the Youth Wingers and other people who were working in conjunction with the accused. In my opinion. the kidnapping of Balimukyabo and Difabusha and threat to kill those who would fail to produce money constituted one transaction. I find the complainants in Counts III and IV marted with their money as a result of this threat of deadly violence from the accused, especially as they had seen him employ a deadly. weapon (knife) on the victims. I, therefore, convict the accused on Count III and count IV." (Underlining added)

It will be observed from the above that the learned Judge considered a lapse of three hours to be "soon after"; he then deemed "soon" to be equivalent to "immediately" as used in S.273(2)

Thus an Act of violence committed in the course of a kidnappin was deemed to constitute "one transaction" with a threat to kill in a robbery some hours later.

The authorities which are relevant traditionally speak of the act of violence in the crime of robbery being used in order to obtain or retain the thing stolen, or to overcome resistance to its being taken. If, for example, a thief pulls out a knife when he

$12/..$

victim or says to him nYour money or your life" the use of the deadly weapon or threat of its use may be deemed to be, >a part pocket book and before running off with it, the air, to deter the victim or onlookers from pursuing him to recove: the stolen property. demands money from a a thief fires shots in of one transaction; similarly, if, after snatching a

These are examples of use or threat of use of a deadly weapon "at the time of, or immediately before, or immediately after the time of the robbery"\* To use the phrase to cover such events as occurred in the instant case seems, with respect, to stretch the meaning of th< beyond the permissibj bounds. words "immediately before, or immediately after"

We are of the view, with respect, that th.jre was no evidence to support the finding that the Appellant committed the offence of aggravated robbery. The use of proximate in time to the taking of the money from the victims by the Appellant. However, there was ample evidence to support of simple robbery. a deadly weapon was not sufficiently a finding

We now turn to consideration of sentence. The learned trial Judge, after convicting the Appellant on all counts charged did not impose a separate sentence on each count. As th'? record shows the following advice was given by the learned State Attorney:

> ''Sentence on Counts III and IV is mandatory. Sentence on Counts I and II counts not mandatory."

> > **13/....**

12 "

Defence counsel submitted in mitigation that the Appellant was large family. The court then pronounced sentence as follows: an old man with a

> ''Accused shall suffer death in the manner authorised by law\*"

We would observe that death was the only sentence that could be imposed on jco-H\*iiction -o-f tha nffence of aggravated robbery in counts three and four. It was not, however, mandatory on counts one and tw it was the maximum penalty\* The learned. Judge should have imposed the mandatory death sentence on each of counts three and four. He should then have imposed whatever sentence he deemed appropriate on each of counts one and two. If he decided to impose the maximum punishment of -death on counts one and twoT he should have set out less severe penalty was inappropriate in the instant case. the reasons why, in his view, a

For the reasons we have ''.already indicated, this appeal must be allowed. The conviction on Counts three and four are hereby quashed and the sentences set aside. •We substitute convictions for simple robbery c/s 272 of the Penal Code on each of the Counts three and four. The circumstances of the offences merit severe punishment but in view of the facts urged in mitigation and the long period span in custody on remand we impose a sentence of 10 years imprisonment on each of counts one and two and seven years imprisonment on each of counts three and four, the sentences to run concurrently.

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According to S.274 A of the Penal Code, a person sentenced under the provisions of S.27J should suffer, in addition to imprisonment, corporal punishment. However, the Appellant appears to be considerably more than 4\$ years of age. In accordance with S.108,(c) of the Trial on Indictments Decree, we therefore make no order for corporal punishment.

Dated at Mengo this 19th day of June, 1991«

Signed:

S. VJ. W. WAMBUZl CHIEF JUSTICE

## H. G. PLATT JUSTICE OF THE SUPREME COURT

E. E. SEATON JUSTICE OF THE SUPREME COURT

I CERTFY THAT THIS IS A TRUE

COPY CF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT