(CORAM: ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, MUKASA- KIKONYOGO, JJSC)
CRIMINAL APPEAL NO. 7 OF 2000
(Appeal from a conviction and sentence of the Court of Appeal at Kampala, Kato, Berko, Engwau, JJA. , dated 24th November, 1999 in Court of Appeal Criminal Appeal No. 25 of 1999).
JUDGMENT OF THE COURT.
This is a second appeal. It is from a judgment of the Court of Appeal dated 24th November 1999, confirming a conviction and sentence of death passed on 19th March 1999 by the HighCourt, sitting at Mbarara. The appellants, Tarinyeba Mubaraka and Kariba Sowedi, were tried on an indictment for aggravated robbery contrary to Sections 272 and 273(2) of the Penal Code.
The facts of the case as proved at the trial are briefly as follows: On 29/8/95 a trader called Swahibu gave Habasa
Francis, (PW1) Shs. 1,500,000/= to purchase coffee. Habasa Francis contacted the appellants whom he knew dealt in coffee and gave the 1st appellant Shs. 500,000/= as deposit for coffee. The appellants were able to supply him coffee worth Shs. 350,000/=. The following day the balance of Shs. 150,000/= was returned to Habasa who managed to purchase more coffee from other suppliers worth Shs. 100,000/=. So he remained with Shs. 1,050,000/= and kept it in an Omega bag. However, when he was returning home, he kept Shs. 1,000,000/= with one Tema for safe custody and retained Shs. 50,000/=.
At about 2:00 a.m. on 1st September 1995, while Habasa and his wife Kiconco, (PW2), were sleeping, the door of his house was hit hard with a grinding stone. The door broke and fell inside the house. A person entered the house flashing a torch light. The intruder cut Francis Habasa on the left knee with a panga. Habasa got out of his bed, armed himself with his own panga and chased the intruder. There was bright moonlight. When he got outside the house he found a second intruder. The two intruders engaged Habasa in a fight which lasted for about 10 minutes. He was able to recognise his assailants because of the bright moonlight and also because he had seen them during the day. During the fight, the intruders kept on asking Habasa where the Omega bag was. He told them that it was in the house. However, he disarmed A2 of the panga which he threw in the house. He managed to escape from them and ran to the bush. As he ran to the bush, he raised alarm. After he ran away, the intruders entered the house to get the Omega bag and demanded money from Kiconco (PW2) . She, too ran out of the house through the rear gate. The intruders stole Shs. 70,000/= a weighing scale and a bicycle from the house.
On the following morning when Habasa returned to the house, he discovered that Shs, 70,000/= his bicycle and the weighing scale had been stolen. Thereafter he was taken to Mbarara Hospital where he was admitted for treatment for the injuries he had sustained and was treated for one month.
Yorokamu Nyarari, PW4, LC 1 Chairman of Kicwamba cell testified that he arrested the 1st appellant on information of one Rwakayoga. On his arrest, the 1st appellant disclosed that he had spent the night of 31/8/95 with the 2nd appellant at Kayaya school. Upon that information, the second appellant was arrested. Both appellants were thereafter charged.
In their defence, each of them denied involvement in the robbery at Habasa's home. Each of them raised alibi and claimed to have spent the night in their homes. The 1st appellant denied ever dealing with Habasa in coffee business. He admitted to having gone to Nyarari on 1/9/95 to collect coffee which he had already paid for. He denied ever knowing 2nd appellant. He stated that Habasa had framed him up because of the dowry the first appellant had demanded from him after he had separated with his wife, a cousin of Habasa.
After considering both the prosecution evidence and the defence of alibi, the learned trial Judge held that the appellants were correctly identified. He rejected the defence of alibi. He convicted the appellants and sentenced them to death. Both appellants appealed to the Court of Appeal which dismissed the appeal. The appellants appealed to this court on 4 grounds. However, when the appeal came for hearing, the 2nd ground of appeal was abandoned because it was the same as ground 3 which had been abandoned in the Court of Appeal but as we shall observe late in this judgment. Counsel did not make submissions on this same ground. The grounds of appeal which were argued before us are as follows
(1) That the learned Justices of Appeal erred in law and in fact in their assessment of the evidence on record and interpretation of the law regarding identification when they concluded that the appellants were properly identified.
- That the learned Justices of Appeal erred in law and in fact when they relied solely on the evidence of the prosecution and totally ignored the evidence adduced by the appellants, thereby denying the appellants the benefit of doubt.
- That the Justices of Appeal erred in law and in fact when they failed to properly evaluate evidence as a whole and thereby arrived at a wrong conclusion which was a miscarriage of justice.
Mr. Yusufu Nsibambi, Counsel for appellants, argued ground 4 of appeal first and thereafter argued grounds 1 and 3 together.
On the 4th ground Mr. Nsibambi submitted that it was incumbent upon the Court of Appeal as a first appellate court, to subject the whole evidence particularly evidence on the use of a deadly weapon, a panga, to a thorough scrutiny. He submitted that no panga was tendered in evidence to prove that a deadly weapon was used. He argued that the person who picked it from the scene did not testify. He submitted that failure to produce evidence of the person who picked a panga from the scene was a break in the chain of evidence. Therefore there was no sufficient evidence adduced to prove that a panga was used.
Mr. Wagona, Senior State-Attorney, for respondent, submitted that it was established that a panga which is a deadly weapon was used in the robbery. Habasa had testified and maintained in cross-examination that he was cut with a panga in the robbery. Habasa's evidence was corroborated by his wife. He submitted that that evidence was not challenged in cross-examination which meant that the appellants had accepted the prosecution evidence. Once it was accepted that a panga was used, then it was open to the trial court and the Court of Appeal to hold that an aggravated robbery was committed.
We note that although Counsel for appellant was told that he could not argue ground 2 which was the same ground that the appellants had abandoned before the Court of Appeal, when he came to argue ground 4, he still argued ground 2. He, in effect was raising a new point on second appeal which was not considered by the 1st appellate court.
There is a wealth of authorities for the view that Counsel for the appellant could not be permitted to do this. See GL. L_ Vidyar than vs P. Kakha (1957) EA 527. Warehousing & Forwarding vs., Jafferali (1963) EA 385. Katalemwa vs.
Attorney-General Supreme Court civil appeal No. 28 of 1987 (unreported) and Habre International Co. Ltd Vs. Ebrahim Alarakia Kassam & Others Civil Appeal No. 4 of 1999 (SC) (unreported).
In the circumstances, since no leave of the court had been granted to argue the new issue on the second appeal, the Counsel for appellants ought not to have argued the new issue not considered by the Court of Appeal.
Be that as it may, there was evidence which the trial court and the Court of Appeal accepted after analysing the entire evidence that Habasa was cut with a panga by 2nd appellant during the robbery as a result of which he was hospitalised for 29 days in Mbarara Hospital for treatment of the injuries he had sustained in the robbery.
The learned trial Judge accepted that as a result of the injury inflicted upon Habasa, there is a big scar on his knee and he is now walking on crutches.
We note that the appellants did not criticised the High Court for having convicted them upon the evidence that Habasa was cut with a panga during the robbery when the appeal came to the Court of Appeal. The trial Judge held in his judgment on the issue of a panga as follows
"It was unfortunate that the panga which was supposedly used to cut PW1, though recovered from the scene, was not put into evidence as an exhibit as the witness who recovered it was not available to tender it. It was only tendered for identification by PW1 who duly and accurately described and later identified it.
I accept the evidence of PW1 and PW2 that the attackers cut PW1 with a panga. There is no doubt about that. The defence itself does not contest the claim by PW1 that he was cut by one of the attackers with a panga."
We agree with the above conclusion. In James Sowabiri & Another v, Uganda (SC) Cr. Appeal No. 5 of 1990 (unreported) this court held that:-
'Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross- examination, it must follow that he believed that the testimony given could not be disputed at all. Therefore, an omission or neglect to challenge the evidence in-chief on a material or essential point by cross- examination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible."
Clearly, the appellants never challenged PW1 and PW2 in cross-examination on the evidence regarding the use of the panga in the robbery, and in the absence of that challenge, the trial Judge was entitled to accept the prosecution's evidence that the attackers used a panga to cut PW1 during the robbery. In the circumstances, we cannot fault the trial Judge's conclusion that the prosecution had proved beyond reasonable doubt that a deadly weapon, i.e. a panga, was used to cut Habasa during the robbery. In the result ground 4 would fail.
Grounds 1 and 3 were argued together. Counsel for appellants criticised the Court of Appeal for having based its decision solely on the evidence of the prosecution without considering defence evidence. Secondly, he criticised the court for not having addressed itself to the circumstances under which identification was made. He submitted that the appeal should be allowed, conviction quashed and sentence set aside.
Mr. Wagona, Senior State-Attorney, for the respondent, submitted that the evidence of identification had been properly considered by the Court of Appeal and that there were factors favourable for correct identification. He submitted that these factors included bright moonlight. Secondly, he submitted that Habasa struggled with the attackers outside his house for 10 minutes and lastly, Habasa and Kiconco knew both appellants before. Furthermore, Habasa had been with the appellants earlier on the same day. He submitted that there could not have been any error as to identification of the appellants. He contended that once identification was considered together with the alibi and was accepted, then the alibi had to be rejected. In the circumstances, he submitted that the appeal should be dismissed.
With respect, we do not agree with the submission of appellant's Counsel that the Court of Appeal did not consider the circumstances under which identification was made and that it never considered the defence evidence. The Court of Appeal considered the evidence regarding identification of the appellant and after analysing the evidence, it criticised the trial Judge where he had held that where the identifying witnesses were two, there was no need for corroboration as was required in respect of a single identifying witness. It thereafter held as follows
scene, both in the house and outside where PVJ1 engaged them in a fight. There was moonlight. Besides, both PW1 and PW2 knew the appellants before the day of the incident. In fact, the 2nd appellant said he was married to the cousin of PW1. PW1 had met the appellants three days before the day of the incident and also during the evening preceding the night of the incident in connection with the coffee business. These factors were favourable for correct identification."
We agree with the above conclusion. The Court of Appeal properly applied the tests on identification set out in Abudala Nabulele & Another v. Uganda(1979) HCB 77.
The issue of alibi was raised before the trial Judge. The trial Judge held that the appellants were under no obligation to prove the alibi and that it was the duty of the prosecution to destroy it. After analysing the evidence regarding the defence of alibi, the trial Judge rejected it as untruthful. On the first appeal, however, the issue was not raised and so the Court of Appeal made no reference to it in its judgment. We think that on that account the appellants were not entitled to re-open the issue of alibi on second appeal when it was never raised before the Court of Appeal. In the circumstances this issue is not properly before this court. In any case even if it had been properly raised before us, we are satisfied that there was ample
evidence of correct identification and therefore the trial Judge properly rejected that defence.
For the foregoing reasons we are satisfied that there is no merit in grounds 1 and 3 of the appeal. In the result those grounds must fail.
In conclusion, this appeal must fail. It is accordingly dismissed.