Uganda v Lubwama (HCT-00-CR-SC-1370-2016) [2018] UGHCCRD 127 (30 May 2018)

Full Case Text

#### **THE REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT ENTEBBE

#### HCL-00-CK-2C-T320-50TP

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

#### **NEKSUS**

#### **ACCUSED** LUBWAMA PATRICK

## BEFORE: HON. MR. JUSTICE J. W. KWESIGA

### **JNDGMENT**

and in defence he maintained that this is a fabricated case. a girl aged 13 years. The accused person pleaded not guilty to the charge HIV+ and a lawful guardian performed a sexual act with Namatovu Hadijja, 2016 at Bwebajja Dawe LC.1- Sisa Sub-county, Wakiso District while being the Penal Code Act. The prosecution alleges that during the month of July Lubwama Patrick is indicted under Section 129(3) and $A(a)(b)$ and (c) of

elements of the offence:priwollof and fullob aldenosear broyed avorg the following For the state to get a conviction in this case, the prosecution evidence

- That the alleged victim was a girl aged below 14 years. $(e)$ - That the accused person performed the act. $(q)$ - That the accused person was her guardian or person in authority. $(c)$

a person with authority over the girl. home at school. Therefore, it is not in dispute that he was her guardian or School in which the alleged victim was a pupil in P.2 and resident in his Patrick is the Director and head of a school called St. Andrew Primary According to the evidence of both the prosecution and defence, Lubwama

and she learnt that the accused had beaten and detained her at school. Namatovu Hadijja. She complained that Ziadda had not returned home children's teacher beat up Ziadda Birabwa her daughter and defiled PWI, Nuru Nakanjako, the complainant's evidence is that the accused, her

to PW1 on which date he defiled her. private parts. That the accused had once defiled her but disclose Namatovu told her that the accused had been touching her breasts and While she had gone to the school to follow up the beating of Ziadda,

case put never gave court any helpful evidence. PW2, Imbikia Juliet (D/c) on $4^{\text{m}}$ August 2016 started investigation of this

July 2016, within a week's period. nZS no anob vibagalle sew frament made defilement was allegedly don S7th intercourse earlier. The hymen had got raptured long ago and no injuries conit that he found that this girl was sexually active and had sexual PW4, Denis Asiiku a Clinical Officer who examined the alleged victim told

with her and whether it was by the accused person. and what remains to be resolved is whether there was sexual intercourse of age. The prosecution proved the fact of age beyond reasonable doubt by PW4 Asiiku Denis that she was 13 years and therefore, below 14 years Namatovu, the victim. Her testimony and her appearance also confirmed The most important evidence in this matter is the testimony Hadijja

witnesses shall in any case be required for the proof of any fact". provisions of any other Law in force, no particular number of because S.133 of the Evidence Act states:- "133- Subject to the act because she is involved. It would be enough evidence to prove this act Under normal circumstances, the victim has direct evidence of the sexual

bib and him is different and amplitude in same room with a maid. She did because it is an agreed fact that she was in his school and was residing in credibility of her evidence. There is no doubt that she knew the accused In view of this provision of the Law, proof of a sexual act will depend on

$·w.d$ 00: $\angle$ sexual intercourse and she started bleeding. He represted it next day at the bedroom, put her on the bed, held her breasts and thighs he had children of the accused. According to her evidence in 2017 he called her to household work to raise her school fees. She lived with Margie and other

səsuədxə ısəsuədus achool expenses. her stay in his home to assist the maid as she went to school to daughter seeking to study. This girl was needy, so he admitted her and let accused admitted the girl was brought to him by Ziadda Mbawa, PW1's evidence because these two are the alleged participants in the act. The This evidence of a sexual act is evaluated with the accused's defence home and to police at Bwebajja for medical examination at Najjanankumbi. wife) who in turn told PW1 Nakanjako. Nakanjako immediately took her That she told Margie (DW2) and Juliet who told her mother, the Accused's

Nakanjako, the complainant. poor parents which he declined to do and this led to a conflict with PWI, pysio demanded that the accused pays money to help the girl's

beating Deating Namatovu. of 6 people to attack the accused. On $\mathsf{A}^{\text{th}}$ August 2016 he was arrested for aggravated the bad relationship and PW1 came to the school with a group He punished Zaidda, a daughter of PW1 for escaping from school, this

Exhibit CE1 & CE2). He denied participation thoughout the trial. His police statements (pain and charge and caution were admitted as court

$A, \gamma$ a immediately returned to the sitting room where they normally sat watching school, she brought the book, took it to him in his bedroom and called Hadijja Namatovu to fetch for him a book he had forgotten at alleged. She lived with the girl in the same room. One day the Accused The alleged victim never told her of any defilement as she .seil blot DW2, Margaret Atim (Margie) told court that the complainant and victim

$3 \mid b$ $g \in G$

basis of fabricating a defilement case. the conflict between Nakanjako over beating her daughter Ziadda as the CEZ, the charge and caution statement gave a detailed account showing

find some other evidence in the case as a whole to balance the evaluation. evidence of these key witnesses to resolve this issue. It is necessary to and the victim. If this is to be believed, it would create doubt in the tabrication and possible false evidence of PW1 and PW3, the complainant In my view, the accused person's evidence establishes a motive for

**9107** $\partial_i$ ir's had raptured long ago and most probably before $27^{cn}$ July PF.3A on 3rd August 2016. He found in signs of recent penetration. The According to PW4, Asiiku Denis who examined the victim under police form

responsibility of the accused. been sexually active and the hymen rapture has not been proved as the days before the date of examination. The victim was confirmed to have alleged to have done it which placed the offence to have been within 6 to 7 Therefore, this could not be around the period when the accused person is the rapture of the hymen, it took place two weeks or more before. 2016 was an attempt to defile. He explained that from the appearance of The record history in PF3A states as narrated by the victim that on $27^{th}$ July

recent injuries. He saw no injuries at all. victim, the examining Medical Officer ought to have seen evidence of before the medical examination and had led to bleeding as alleged by the In my view, if the alleged sexual act had been done within 6 to 7 days

been depicted as a complainant who pursued the arrest and malicious which has been discredited by the medical report and above all, she has witness whose evidence depends on the alleged information of the victim that the accused had defiled her. The complainant on the other hand is a Secondly, Margie (DW2) denied ever being told by the victim as she alleges

allegations of Aggravated Defilement. prosecution to punish the accused person for a different purpose using

believable evidence that he actually defiled this girl. that the accused person had opportunity to defile the girl, there is no state proved that the would be victim is a girl aged below 14 years and defilement against the accused beyond reasonable doubt. Whereas the of the Assessors that the prosecution has not proved the case of Considering all the above evidence together, I agree with the joint opinion

The accused person is hereby found not guilty and acquitted.

Dated this 30th day of May 2018.

1. W. Kwesiga

## **PybuC IsinT**

810Z/SO/0E

In the presence of:-

- > Ms. Nshekanabo for accused person. - ASS suilul ewritation Drief for Mr. Tuhairwe Julius SA for state. - Ms. Boogere Gorret Court Clerk.