Uganda v Tumwine (Criminal Session Case 274 of 1992) [1994] UGHC 108 (28 June 1994)

Justice F. M. S. Egonda - Ntende THE REPUBLIC OF UCANDA IN THE HIGH COURT OF UCAMDA AT SESSION. HOLDEN AT IBARARA CRIMINAL SESSION NO. 274/1992

........ PROSECUTOR $U_{G_{\text{null}}}, \dots$ **VERSUS**

$J$ . $T$ . $T$ . $I$ . $I$ . $E$ : $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ BEFORE: The Honourable Mr. Ag. Justice E. S. Lugayizi $R$ U L I $\mathbb{N}$ G:-

The accused herein John Patrick Tumwine alias Mpirimbi was indicted for the offence of robbery contrary to sections $272$ and $273(2)$ of the Fenal Code.

The indictment was made up of two counts which read as follows:

COUNT I: PARTICULARS OF OFFICE:

John Patrick Tumwine alias Mpirimbi and others still at large, on or about the 3rd day of February 1991, at Buoga Trading Centre, in Buhweju county in Bushenyi District, robbed BASITED JOSEPH of 1 crate of soda, 3 Bombas of cigarattes, 5 boxes of dry cells, 7 packets of match boxes, 4 bars of soap and cash shs. $35,000/=$ and at, or insiediately before or immediately after the time of the said robbery, used a deadly weapon to wit, a gun, on the said BASIIIE JOSEFH.

COUNT II: PARTICULARS OF OFFENCE:

John Patrick Tumwine alias Mpirimbi, and others still at large, on or about the 3rd day of February, 1991, at Bwoga Trading Centre, in Buhweju county in Bushenyi District, robbed TEOTURO HDABAH. ERIZE of cash shs. 450,000/=, a weighing scale with its stones, a pair of scissors, a spring balance, a travelling bag and various agricultural chemicals and at or immediately before or immediately after, the time of the said robbery used a deadly weapon, to wit, a gun, on the said TEOTURI NDABAH/ERIZE

$\frac{1}{2}$

When the indictment was read and explained to the accused, he denied having committed the offences in both counts.

$2 :$

$\frac{1}{2}$

In brief the facts of this case were as follows: That the accused and $\gamma$ still at large, on the night of 3rd February, 1991, broke into the home and shop of Teoturo Mdabahwerize and stole an assortment of goods and money some of which were later found in the accused's house and banana plantation.

To establish its case, the prosecution led by Mr. Magona (State Attorney) called one Ndabahwerize, a businessman and farmer of Bwoga village in Buhweju county, Bushenyi District, who is 52 years of age. This witness told court that in the night in issue, at around 2,00a.m., while he was sleeping at his home a gang of robbers attacked him. He managed to escape and ran away. As he did so, the robbers fired a gun in his direction. Later on, he made an alarm which was answered by villagers. The witness and the villagers subsequently returned to the scene of crime. They found that the robbers had made off with a weighing scale, its stones, UGS. 450,000/=, scissors, a small weighing scale for 25 kilogrammes, a lantern, supona for cows, agricultural chemicals, a dozen/glass plates, a carton of cigarattes, women's clothing and two big hand-bags from the witness's shop.

<sup>1</sup>his witness and others tried to follow the said robbers during the night but their efforts were in vain. Subsequently, PW1 recovered some of the said properties, for example the weighing scale and its stones, supona, the scissors, the small weighing scale of 25 kilogrammes and the bag. He found these items at the accused's house and banana plantation, but did not bring them to be exhibited during the hearing. This was mainly because he left them at home.

$.../3...$

Turing cross-examination PUL admitted that he did not know the accused and did not see him at the time of the attack.

$\cdot \cdot 3 \cdot \cdot$

$\cdot \cdot$

After court had received the evidence of F.11, the state closed its case.

In turn, the defence submitted a no case to answer. Mr. Kwizera counsel for the accused based his arguments here, on the fact that the prosecution had failed to show that the accused was part of the gang which attacked and robbed RM. using a gun on the night in issue.

Secondly, Mr. Mwizera also argued that even the allegation that the accused was found with some of the stolen property was not helpful to the prosecution case, since the said property was not exhibited during the hearing.

We therefore requested court to find there was no prima fuser c as proved against the accused.

ir. Ungona who represented the State agreed with counsel for the accused that the accused ought not to be called to his defence in this case.

A prima facio case was defined in the famous case of R. T. Bhatt v. H. [1957] B. A. 332 as,

> "one on which a reasonable tribunal, properly directing its aind to the<br>low and the evidence could convict if no explanation is offered by the defence".

The quastion facing court now is whether the prosecution case herein fells within the above definition or not?

However, before I get into the above discussion, I wish to point out here very briefly that since it is quite obvious that there is absolutely nothing on record relating to count 1. the accused cannot be expected to answer anything in respect thereof.

Accordingly, I shall limit my discussion of the above issue to count 11 or the Indictment.

As regards count 11, because FW1 categorically admitted that he did not know the accused before the incident and that he did not sec him at the time of the attack, it is clear that the only piece of evidence presently on record which tends to implicate the- accused is that portion of Pul's story to the effect that he found some of his stolen property in the accused's house and banana plantation.

However, vzhen the said piece of evidence is put to scrutiny, it is easy to discover that it is of very little value (if any) to the prosecution.

Apart from the fact that ordinarily, it would have been " the police or some other person in authority who would have been at the fore front of giving evidence to establish the fact , lnu.ee J. th? said property was actually recovered from, the ac?".s<?dfa hone and pl?ntation} the allegedly recovered property itself was nob ejdiibitecL

Secondly, court was left in the dark concerning the details of the circumstancessurrounding the recovery of the said property. Jorexample, what prompted Pv/1 to go on a search for the said property at th- accused's home? How soon after the saii robbery was the- property in issue recovered? To what extent was the police involved tn all this?

In view of all those short-comings, it is apparent th..-.t too prosecution case does not pass the test in Bhatt's case

In the circumstances, court has no choice but to find that no prii-ia facie case has been made out by the prosecution against v/ii0 accused &

I accordingly acquit the accused of the offence of aggravated robbery on both counts. He is hereby sot free, unless he is being lawfully held or com. rtbar ch.,.ryes.

E. S. Lugayibi Ag. JUDGE 28.6.1994.

$\mathbb{R}^{\mathbb{N}}$

Read before: At: 3.00p.m. Accused present. Mr. Wegona State Attorney. Mr. Baguma Carri/Clark. Assessors.

> E. S. Lugayizi As. JUDGI $20.5.1994.$

28.6.1994: 3.98p.m.: Accused present. Mr. Wagona for the State Mr. Baruna comrt clerk. The Assessors Court: Ruling read.

> $\cdot \quad \text{with} \quad \cdot$ I. S. Lugayizi Lg. JUDGD 28.6.1994

には、リア E. S. Lugayisi Ag. JUDGE 28.6.1994.

Read before: At: 3.00p.m. Accused present. Mr. Wagona State Attorney. Mr. Baguma Curri/Clark. Assessors.

$\mathcal{A} = \mathcal{A}$

E. S. Lugayizi Ar. $J$ $U$ $D$ $G$ $\mathbb{R}$ 20.6.1994.

$22.6.1994: 3.080$ m.: Accused present. Mr. Wagona for the State Mr. Baguna court clurk. The Assessors. Court: Ruling road.

> $\mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}}$ F. S. Lugayizi 43. JUDGE 28.5.1994