Tumuhairwe v Uganda (Criminal Appeal No. 171 of 1999) [2000] UGSC 40 (9 March 2000)


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# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

## CORA}I: WAMBUZI, C. J.., TSEKOOKO, MULENGA, KANYEIHAMBAI KTKONYOGO,JJSC.

#### CRINIINAL APPEAL NO.l7l1999

#### BET\1'EEN

TUMUHAIRWE MOSES APPELLANT

#### VERSUS

I]GANDA RESPONDENT

(Appealtrom the deckion of the Courl of Appeal at Kampala belore (lustices Mpagi-Bohigeine, B\*ko, K urta, ilA) doted 2f Morch, <sup>1999</sup> in Criminal Appeal No. 57 o/199E)

#### JUDMENT OF THE COURT.

Tumuhairwe Moses herein after to be referred to as the appellant was indicted for murder contrary to Seclions I 83 and 184 of the Penal Code Act. He was convicted and sentenced to death on 31.898 by the High Court sitting at Fort Portal. The appellant's appeal to the Court of Appeal was dismissed on 23d March 1999. Hence, the appeal to this Court.

The prosecutron case as accepted by both the High Court and Court of Appeal was hriefly that, the appellant was the husband of Aida Businge Abwooh hereinafter to be called the deceased. The appellant and the deceased lived at Hamukungu fishing village in Kasese District in a rented room at the back ofa small shop operated by the deceased.

On 3d day April 1994 at about 9 p.m. the deceased was in her shop when the appcllant poured paraffin on her and set her ablaze. She was seriously bumt. She made an alarm which was answered by many people including P W. 2, Hadija Kabagenyr, the land lady. The deceased told Kabagenyi, P W 2, that she had been bumt with paraffrn. One Ndahurira Erveza, P. W 3. a Community Hbalth Worker was called to assist her He gave her some first aid but she had been severely burnt and he therefore advised the police to take her to hospital which was done later.

When Bazara Wilson, P. W 4, the L. C. Vrce Charrman visrted the scene the deceased told him that the appellant had bumt her. Emest Kule, P W. 5, who went to the scene in response to the cries from the deceased's home found the appellant at the scene. The appellant confess€d to him (Kule, P. W. 5), that he had bumt his wife, the deceased, because she had refused him sex. Kule, P. W. 5 helped the L. C. offrcials and the polrce to arrest the appellant who u,as later taken into police custodv

The deceased was taken and admitted to Kilembe Hosprta.l the following momrng of 414194. She was treated by Dr. Kato. Horvever, she died on 12.4.94 due to telanus which was consequent to the burns.

The appellant's defence was a complete denial. He said that he drd not torch the deceased as alleged by the prosecution witnesses. He set up an alibi. He was on the lake fishing during the period the incident took place. He rerumed the followrng moming only to be arrested by the pohce. Both gentlemen assessors and the leamed trial judge rejected the defence of alibi. In agreement with the assessors the leamed tnalludge found the appellant guilty as charged and sentenced him to death.

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Aggneved by the Judgment ofthe High Court the appellant appealed to the Court of Appeat which dismissed the appeal upheld the conviction and confirmed the death senlence.

The appellant's appeal to this Court was oriSinally based on the sole ground that :-

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# "The learned Justices of the Court of Appeal erred in law and fact when they rejected the defcnce alibi".

However, during the hearing of the appeal, with leave of this Court, Mrs Eva Kawuma, the leamed counsel for the appellant amended the memorandum of appeal. She added a second ground which she chose to argue asi the first ground. This ground was formulated as follows:-

> "The learred Justicer of Appeal erred in law by accepting the appetlent's confessions in the circumstancer of thic care".

In her submissions counsel conceded that the deceased died from the infection of tetanus consequent to the bums. There is no doubt from the circumstantial evidence adduced by the prosecution and relied on by bolh the High Court and Court of Appeal the deceased was set ablaze. However, it was not done by the appellant but by some other person. Counsel's particular quarrel was with the alleged confessions made by the appellant to Ndahurira, P. W. 3 and Kule, P. W. 5. To her they were rnadmissible as they were allegedly made in the presence of both the L. C. ofiicials and the police. Their admission contravened the provisions of S.24 ofThe Evidence Act which reads as follows:-

l. No confesrion made by a penron whilst he is in the custody of <sup>a</sup> Police Officer shall be proved against any such person unless he made it in the immediate prcsence of

## or a) a Police Officer of or above the rank of Assistant Inspector

### b) a lllagistrate

Further, Mrs. Kawuma submitted that the learned Justices of Appeal should not have rehed on a dying declaration made to Bazara Wilson, P. W 4 without corroboration

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Counsel abandoned the second ground concemlng, the defence ol alibi She concluded by asking the Court to give the appellant benefit of doubt by allowing the appeal, quashing the conviction and settrng aside the death sentence.

In reply, Mr. Wagona Vincent, Senror State Aftomey, supponed both the conviction and sentence. As far as he was concemed the confessions made to Ndahurrr4 P. W. 3 and Kule, P. W. 5, were made at different times and rn different crrcumstances. They should be treated differently. He submitted that Section 24 of The Evidence Act was not applicable to the confession made to Emest Kule. He further pointed out that it was not even challenged in cross-examinatron

With regard to the need for corroboralion of a dying declaration it was his submission that this was not a legal requlrement. h was a matter of practice. ln any case there was sufficient corroboration rn the form of the confession to P. W. 5, Kule. He submitted that there was sufficient evidence to implicate the appellant with the commission of the offence. He asked the Court to dismiss the appeal.

Upon listening to the submissions of Counsel for the appellant we are of the view that, counsel's argument with regard to the confession made to P. W. 3, Ndahurira Eryez4 is valid. When the appellant made the alleged confession to him, he (the appellant) was already in the custody of the police and L. C. oIficials. In examinationin-chief Ndahurira P. W. 3, stated inter alia that he found the police and L. C officials already at the scene. [n cross examination he replied that:\_

"When I went to the gcene eccused was in custody of the Police and L. C.'s ouride the house (muzigos). People were asking Mure why he had set fire on his wife. I also asked the same question end he raid she denied me ser".

Clearly this confesion is inadmissible. With respecl, both the High Court and Court of Appeal should not have based their decisions on it. See No.7770 P'C. Kikwcmbe vs. Uganda Criminel Appeal No. 1619l al p.4 (unreported).

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On the other hand, as it was rightly pointed out by Mr. Wagona, Senior State Attomey the provisions of Section.24 of The Evidence Act are not applicable to the staternent made to Ernest Kule, P. W. 5. Kule, P. W. 5, testified that the appellant made the statement to him before he was arrested and taken into custody by the police. He further stated that:-

## "He (the appellant) told me he had set fire on his wife beceuse she had refused him ser."

Kule went on to say that he assisted L. C. officials to arest the appellant. This piece of evidence was nol challenged in cross examination. Thd confession was voluntarily made and was believed as true. Both the ttgh Court and Court of Appeal were justified in relying on it.

With regard to the dying declaratron it is true dying declarations must always be received with caution because the test of cross examination may be wanting and the particulars of the violence may have occurred in circumstances of confusion and surprise. Generally speaking it rs very unsafe to base a conviction solely on the dying declaration ofa deceased person unless there is satisfactory corroboration.

However, as it was rightly pointed out by Mr. Wagon4 it is not a rule of law that rn order to support a conviction based on a dvrng declaration there must be corroboratron as there may be circumstances which go to show that the deceased could not have been mistaken It is only a rule of practrce.

See Okale vs. Republic 1965 E. A. 555; Tuwamoi vs. Uganda 1976 E. A. E4; Tomasi Omukono & others vs. Ugandr f 977 HCB 6l Kalisiti Ssebugwawo vs. Uganda Criminal Appeel No. 7 of 1987 (unreported). Tindigwihura vs. Uganda criminel Appeal No 9 of l9E7 (unreported).

In the present case there is nothing to suggest that the deceased was mistaken about her assailant. The dying declaration complained of by counsel in this case, must be true taking into account the circumstantial evidence before Court There was ample evidence before Court to implicate the appellant with the murder ofthe deceased.

For the aforesaid reasons we are unable to fault the decision of the Court of Appeal to uphold the judgment of the High Court and confirm the death sentence The ground of appeal relied on by the appellant must fail.

In the result the appellant's appeal to this Court is, dismrssed

DeliveredatMengo this ?l\$... dayof .. lY\*:4: zooo

Lr

SW ambuzi Chief Justice

T o Ju sticeo fthe Sunreme Courl

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J. N. Mulenga **Justice of the Supreme Court**

W. Aufanhandes<br>G. W. Kanyeihamba

Justice of the Supreme Court

L. E. M. Mukasa-Kikonyogo Justice of the Supreme Court.