Wetuse Masete & Anor v Uganda [2000] UGSC 18 (4 August 2000)

# 2200 | 4 SE / POVY

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## **LHE BEBORGIC OF USADA**

## IN LHE SOURT COURT OF USANDA

## **VL WENCO**

WOKYZY-KIKONLOGO' 11'Z'C') (CORAM: ODER, TSEKOOKO, MULEUGA, KANYEIHAMBA,

#### CEIMINAL APPEAL NO: 37 OF 1999

#### **BELMEEN**

# MELNZE WVZELLE VND VNOLHEK >>>>>>>>>>>>>>>>>BhETTVNLZ

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<pre>DCV/DDV >>>>>>>>>>>>>>>>>>>>>>>>>>>>>BTERDO/DEVIDE</pre>

Engwau and Kitumba, J. J. A), in Criminal Appeal No. 50 of 1998) (Appeal from the decision of the Court of Appeal at Kampala (Berko,

#### **BEVZONZ LOB LHE CONBL DECISION:**

was also indicted for robbery, contrary to section $272$ and $273$ (2) of the convicted by the High Court and sentenced to death. The $\Omega^{nd}$ appellant murder contrary to section 183 of the Penal Code Act. They were Mukiibi, hereafter referred to as 2<sup>nd</sup> appellant, were jointly indicted for Peter Wetuse, hereafter referred to as $1^{st}$ appellant and William

dismissal which we now do. $12/06/2000$ , and intimated that we would give our reasons for the appealed to this court and, having heard the appeal, we dismissed it on appeal and confirmed both the convictions and sentences. The appellants The appellants appealed to the Court of Appeal which dismissed the Penal Code Act. He was convicted as charged but sentence was deferred.

possession. Omaswa ordered Corporal Nangosya to disarm the 1<sup>st</sup> overpowered Corporal Odikir and taken the corporal's gun into his own see what was happening, he noticed that the 1st appellant had heard someone calling "Mukiibi, Mukiibi" and when he turned round to of the group continued on their journey. Shortly afterwards, Omaswa appellant as he proceeded on the task of mending the sandals. The rest they needed repair. Omaswa instructed Corporal Odikir to wait on the 1<sup>st</sup> sandals of the $1^{st}$ appellant allegedly came off with him claiming that prisoners and prison officers reached Malukhu Primary School, the not be handcuffed with the rest of the prisoners. As the group of pleaded with the warders that because of his alleged bad leg, he should were handcuffed except women prisoners and the 1st appellant who had prisoners started their return journey to prison on foot. The prisoners who were taken to court. After court, the warders, wardresses and the Silver Omaswa, (PW2). The two appellants were among the prisoners Magistrate's Court under the overall charge of Chief Warder Grade II, Nangosya, were detailed to escort twenty two prisoners to Mbale Chief Bagenda, (PW4), wardress Chadiru and the deceased, corporal Charles of July 1993, Corporal Odikir Pampylio, (PW5), wardress Beatrice The evidence against the appellants in the High Court was that on the $1^{st}$

Ist appellant threw the gun he had grabbed from Corporal Odikir to the

appellant but when Corporal Nangosya cocked his gun, it jammed. The

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and times and charged with the offences. caused by a shot-gun. The appellants were arrested at different places of death of Corporal Nangosya was severe haemorrhage and shock and two guns were found in it. Medical evidence showed that the cause and returned them to prison. The doctor's vehicle was recovered later Primary School, came out of hiding, rounded up the remaining prisoners and drove off. Thereafter, Omaswa who had sought refuge in the car key from Dr. Othieno, got into the car with two of the other prisoners appellant and forced out of the vehicle. The 2<sup>nd</sup> appellant grabbed the motorcar, UM 1004 Suzuki. He was stopped at gunpoint by the 2nd Mbale, Dr. Richard Othieno, PWI, arrived at the scene in his official A few minutes after the shooting incident, the District Medical Officer of victim was rushed to hospital where he died a few hours after admission. 2<sup>nd</sup> appellant who cocked it and shot Corporal Nangosya with it. The

whom he ordered to shoot the $1^{st}$ appellant, but Omuswa did not do so. retained by Odikir. During the scuffle, Odikir threw his gun to Omuswa scuffle over some money given for the appellant by a relative but being escorted to prison with the other prisoners, he and Odikir had a scuffle. The 1<sup>st</sup> appellant made an unsworn statement and said that, while He only admitted to having escaped in the confusion that followed the in in bound or Dr. Othieno's vehicle and the guns which were found in it. fatal shooting of the victim. He also denied knowing anything about the disclosed by the prosecution witnesses with regard to the gun and the when he was informed of the details of the case. He denied all the facts this fact. He only came to know of the $1^{st}$ appellant on the 25/11/95 the 1st appellant was amongst the prisoners since he did not know of prison, he was handcuffed alone and that he was unable to say whether In his defence, the $2^{\rm nd}$ appellant testified that on the return journey to

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charged with the murder about which he knew nothing. House, Kampala, where he had gone to meet a relative. Later he was large till the $25^{\text{m}}$ November, 1995, when he was arrested in Uganda millet field that he heard a gun shot. He subsequently escaped and was at millet field to save his life. It was during the time when he was in the s in bid bas yows as a the last them then the last appellant. The last appellant the range $1^{st}$ appellant. Odikir then demanded to have the gun back so that he could personally

sentences imposed by the learned trial judge. of Appeal dismissed the appeal and confirmed both the convictions and evaluated the evidence and came to an erroneous decision. The Justices Court of Appeal on the ground that the trial judge had wrongly appellants were sentenced to death for murder. They appealed to the also found the $\Omega$ <sup>nd</sup> appellant guilty of aggravated robbery. The two appellants guilty of murder of Corporal warder Charles Nangosya. He The learned trial judge accepted the prosecution evidence and found both

inadequately. He submitted that in failing to re-evaluate the evidence as Justices of Appeal failed to re-evaluate all the evidence or did so evidence of the appellant himself was not evaluated. In any event, the on the evidence of Omaswa and wardress Bagenda, while the Muguluma contended that the conviction of his client was based mainly in convicting him of aggravated robbery. For the 1<sup>st</sup> appellant, Mr. of Appeal contained an extra ground, namely that the courts below erred more or less similar grounds except that the $\sum_{n}$ appellant's Memorandum Mukiibi. Each appellant filed a separate Memorandum of Appeal with Masette, and Ms. Diana Musoke represented the $2^{nd}$ appellant, William Before us, Mr. Muguluma represented the 1<sup>st</sup> appellant, Wetuse

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those cases in which this court should itself re-evaluate the evidence. required by law, the Justices of Appeal were in error and this was one of

appellant should have been believed and acquitted. contradicted. It was therefore counsel's contention that the $2^{nd}$ in his own defence that he had been handcuffed at all times was not established by the prosecution. Moreover, the testimony of the appellant Musoke further submitted that no common intention had been corroporation, the $2^{nd}$ appellant should have been acquitted. Ms. could not have corroborated the evidence of robbery and that, without Counsel further contended that the evidence given by wardress Bagenda influenced the trial judge to convict and sentence the $2^{nd}$ appellant. the Justices of Appeal had failed to re-evaluate the evidence which Ms. Musoke, learned counsel, for the $2^{nd}$ appellant, also contended that

aggravated robbery against the 2nd appellant. to support the offence of murder against both appellants and of Mr. Okwanga's further contention that there was overwhelming evidence before confirming the findings and decisions of the trial court. It was showed that the Justices of Appeal properly re-evaluated that evidence evidence on record was sufficient to support the convictions and also convictions and sentences of the appellants. He submitted that the For the State, Mr. Okwanga, Senior State Attorney, supported both the

$(PW2)$ and wardress Bagenda $(PW4)$ . The incidents occurred at trial judge and the Court of Appeal believed the eye witnesses, Omaswa, applicable, were satisfied that there was no ment in the appeal. The connsel's submissions on behalf of the appellants and, considered the law Having perused the records of proceedings in this appeal, and heard

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decided to dismiss the appeal. Appeal sufficiently re-evaluated the evidence. For these reasons we evidence of witnesses. We were also satisfied that the learned Justices of the appellants that either court erred in believing and relying on the credibility of witnesses. We were not persuaded by either counsel for scene during the commission of the offences. The issue was really one of Iunchtime during broad daytime. Appellants admitted being on the

DATED AT MENGO THIS DAY OF Argust 2000 $n$

*INCLICE OF THE SUPPLIER COURT* **A. H. O. ODER**

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THE SUPREME COURT POLICE I'M'N' LZEKLOOK

*INCLICE OF THE SUPPLIER COURT* I'N' WOLENGA

*INCLICE OF THE SUPPLIER COURT* KANYEIHAMBA Dal *ins*

*INCLICE OF THE SUPPLIER COURT* T. E. M. MUKASA KIKONYOGO