Mwanga Francis v Attorney General [2005] UGSC 25 (21 December 2005)

THE REPUBLIC OF UGANDA IN THE UGSC AT MENGO   (CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, J.J.S.C.)   CRIMINAL APPEAL NO. 28 OF 2003   BETWEEN MWANGA FRANCIS: :::::::::: :::::::::: APPELLANT AND UGANDA: :::::::::: :::::::::: RESPONDENT     (An appeal from the decision of the Court of Appeal, (Hon. Justices G.M. Okello, C.N.B. Kitumba and C. B. Byamugisha, JJA.) Cr.Appeal No. 88 of 1999, dated 11-04-03).   JUDGMENT OF THE COURT: The appellant, Mwanga Francis was jointly indicted, tried and convicted together with Samanya Yunus and Naganda Gloria for murder contrary to sections 183 and 184 of the Penal Code Act by the High Court sitting at Jinja on 23rd July 1999, and sentenced to death. His appeal to the Court of Appeal was dismissed. The appeal by the two with whom he had been convicted was allowed by the Court of Appeal. He has now appealed to this Court. The brief facts of the case which were accepted by the trial court were that on 4th April 1999, the deceased a 5 year of girl was left at home by her mother, early in the morning. At around 8.00 a.m. Nakalema Florence (PW1) saw her in the company of the appellant going towards Kayunga Road. After sometime, the deceased's mother came and inquired from PW1 whether she had seen the deceased. PW1 told her she had seen her walking with the appellant. The matter was reported to the local council officials and later to Njeru Police Post. They started looking for the deceased and the appellant. At about 3.00 p.m. on the same day, the Police arrested the appellant. He denied any knowledge of the deceased or her whereabouts. On 5 April he revealed to the Police that the deceased was at the home of Samanya Yunus. When the Police was led by the appellant to the home of Samanya Yunus they found there Nagadya Gloria. On 6th April 1999, the appellant led Police Officers to two locations in Naminya Village where the remains of the deceased were recovered. On 7 April 1999, Dr. Nabangi of Jinja Hospital carried out a postmortem examination on the body of the deceased. He found the body to be of a female of apparent age of 5 years. He observed that she had a slaughtered head. The neck, the right thumb and the right second finger, private parts and the tongue were all missing. He concluded that the cause of death was acute heamorrhagic shock. He compiled a report which was received in evidence as Exh. PL On the same day, the appellant made a confession statement before D/WAIP Aye Fatuma, PW10, which the appellant repudiated at the trial. However, the confession statement was admitted in evidence at the trial without any objection by the defence and was marked Exh. P7. At the trial after hearing the prosecution evidence, which included the confession statement and the defence, the learned trial judge rejected the defence and convicted all the 3 accused persons and sentenced them to death. They appealed to the Court of Appeal as already stated. Appellant's appeal was dismissed whilst the appeal of the two others with whom he had been charged and convicted was allowed. The appellant has appealed to the Supreme Court on the following grounds: (1) That the learned Justices of the Court of Appeal erred in fact and in law when they upheld the finding of the learned trial judge that the appellant led the Police to the home of the 2nd appellant and also to recover the remains of the deceased where they had been buried and as a result came to a wrong decision. (2) The learned Justices of the Court of Appeal erred in fact and in law when they failed to evaluate evidence as a whole and thus came to a wrong decision. (3) That the learned Justices of the Court of Appeal erred in fact and in law to have upheld the finding that the appellant participated in the murder of the deceased.   There was a supplementary memorandum of Appeal which complained that: (1) That the learned Justices of the Court of Appeal erred in law and occasioned a miscarriage of justice in not giving the appellant an opportunity to be heard on the question of mitigation of sentence. At the hearing of this appeal, Mr. Muguluma, counsel for the appellant argued ground one and abandoned the second ground and submitted that ground 3 would be covered while arguing ground one. On the 1st ground, counsel submitted that the appellant never led the Police to the locations where the remains of the deceased had been buried and were found. He submitted that it was the Police who knew where the remains were and therefore who led the appellant to those locations where the remains of the deceased were found. At his trial the appellant denied the offence of murder. He denied having confessed to having murdered the deceased. He denied having led the Police to where the body and the head of the deceased were found. He stated that he was tortured by Police who led him to locations where the body and the head of the deceased were found. The learned trial judge rejected the defence and accepted the prosecution evidence and the confession statement, Exh. P7 and convicted him. On appeal to the Court of Appeal, the confession statement Exh. P7 allegedly made by the appellant who wanted to cleanse evil spirits for a consideration of one million shillings and that on that day he took the victim and handed her to the native doctor, was held to be inadmissible on the ground that failure by the trial judge to inquire from the appellant whether that confession statement attributed to him by prosecution was voluntarily made or not, occasioned a miscarriage of justice. We agree and would reiterate what we started in the case of Chandia - vs - Uganda S.C. Cr. App. No. 23 of 2001, inter alia that " ." It is not safe or proper to admit a confession statement in evidence on the ground that counsel for the accused person has not challenged or has conceded to its admissibility. Unless the trial court ascertains from the accused person that he admits having made the confession statement voluntarily, the court ought to hold a trial within - trial to determine its admissibility." See also Sewankambo & Others - vs - Uganda, SC Cr. Appeal No. 33 of 2001, Kawoya Joseph - vs - Uganda SC. Cr. Appeal No. 50 of 1999, Edward Mawanda - vs - Uganda, SC Cr. Appeal No. 4 of 1999 and Kwoba - vs - Uganda SC Cr. Appeal No. 2 of 2000." Therefore, the Justices of Appeal rightly, held that the confession statement ought not to have been admitted in evidence. The Justices of Appeal thereafter rightly in our view proceeded to consider whether without the confession statement the appellant's conviction for the murder of the deceased would still stand. They found that there were two sets of evidence which incriminated the appellant with the offence of murder. The first was the evidence of PW1 who stated that she had seen the appellant walking with the deceased taking the direction of Kayunga Road in the morning hours. The appellant never denied having been with the deceased on the material day in question though he stated that he had left the child playing with other children. Like the learned trial judge, the Justices of Appeal found that PW1 was a truthful witness and consequently held that the evidence of PW1 makes the appellant the person that was last seen with the deceased while she was still alive. We cannot fault the conclusion of the Justices of Appeal on this issue. The second set of evidence is the discovery of the remains of the deceased at locations pointed out by the appellant although he (appellant) claimed that he was tortured and that he was led by Police to where the remains of the deceased were found. In view of the unchallenged evidence of Police Officers who testified as PW2 and PW6, we cannot fault the Justices of Appeal's confirmation of the trial judge's rejection of the appellant's claim that it was the Police who led him to the locations where the remains of the deceased were found. The Justices of Appeal rightly upheld the trial judge's finding that it was the appellant who led the Police to the locations where the remains of the deceased were found. Although the appellant claimed in his defence that he was tortured by Police, it is inconceivable that he could lead the Police to the two locations where the remains of the deceased had been buried if he never knew those locations. In view of this finding, we find that the Justices of Appeal rightly relied on section 29A of the Evidence Act which provides that: "Notwithstanding the provisions of sections 24 and 25 of this Act, when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." Therefore, the Justices of Appeal rightly upheld the appellant's conviction by the High Court for the murder of the victim. In the circumstances, we find no merit in the appeal against conviction. It is accordingly dismissed. On sentence, the appellant through M/s. Katende Ssempebwa & co Advocates, with the consent of counsel for the respondent applied and were allowed to file the supplementary grounds of appeal against sentence. The ground is founded on the judgment in constitutional petition No 6 of 2003, in which the constitutional court held that a law making death penalty mandatory was unconstitutional. The parties in that case have filed Notice of Appeal. We heard arguments on the same grounds of Appeal in Criminal Appeal No 16 of 2004, Philip Zahura vs Uganda on the same grounds of appeal they intended to raise in that appeal. We intimated that we would make appropriate orders in similar cases. In this case we think that it is appropriate to follow our decision in Philip Zahura vs Uganda (supra), and exercise our discretion under article 22(1) of the constitution, to postpone confirmation of the sentence imposed in this case, until the determination of the pending appeal against the decision of the constitutional court in constitutional petition No. 6 of 2003. Dated this: 21st day of December, 2005. A. H. O. ODER JUSTICE OF THE SUPREME COURT J.W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT A. N.KAROKORA JUSTICE OF THE SUPREME COURT J. N. MULENGA JUSTICE OF THE SUPREME COURT G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT