Court name
Supreme Court of Uganda
Judgment date
21 August 2003

Mweru Ali and Ors v Uganda (Criminal Appeal-2002/33) [2003] UGSC 29 (21 August 2003);

Cite this case
[2003] UGSC 29

REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ., ODER, TSEKOOKO, KAROKORA, AND
KANYEIHAMBA, JJ.S.C.)

CRIMINAL APPEAL No.33 of 2002

BETWEEN

1. MWERU ALI .........................................................
]

2. ABAS KALEMA .....................................................
] APPELLANTS


3. SULAIMAN SENKUMBA
....................................... ]

AND


UGANDA
..................................................................
RESPONDENT



[Appeal from a judgment of the Court of Appeal at Kampala (Kato, Engwau
and Kitumba, JJ.A.) dated 8th September, 2000 in Criminal Appeal No.
89 of 1999]

JUDGMENT OF THE COURT:

This is a second appeal. It is from the judgment of the Court of Appeal
dismissing an appeal against conviction, by the High Court,
of the appellants
for capital robbery.


On 30/11/1995, at 10.00 a.m., Mugisha Abas Ali,
[PW1],an accountant with Energo Company Ltd., of George Street, Kampala,
drew shs 25m/= from Barclays Bank, Kampala Road, and carried it in
a brief case
in a company car. He was accompanied by Mr. Zairia Matoric, a senior officer of
the company. On their way back to office
and upon reaching the gate of the
company offices on George Street, they were confronted by armed robbers who
robbed the money from
Mugisha and sped off in a waiting car. Mugisha reported
the robbery to the Central Police Station [CPS] Kampala, who started
investigations.
A man called John Mayanja was arrested on the same day in
connection with the robbery. The appellants and a number of other suspects
were
subsequently arrested either by the Police or by personnel from military
intelligence. In the course of investigations, a gun
was seized by D/Sgt Ogwal
[PW4] and other policemen from Katwe, in a home of a man called Sula. Because of
information given by the
appellant Ali Mweru about a gun, a policeman called
Kisale was traced in Kiboga and arrested in connection with the robbery. On
21/12/1995,
an identification parade was held at the CPS by D/AIP Otim [PW2]
where Mugisha purport to identify the first appellant Mweru and
John Mayanja.
(The latter was acquitted after trial). Confession statements were obtained from
Mweru and the second appellant, Abas
Kalema. Six suspects including the three
appellants were charged with the robbery.


During the trial, the
charge and caution statement (Exh. P. 1) of Ali Mweru, was admitted in evidence
without challenge. The confession
statement (Exh.P2) of Abas Kalema was also
admitted in evidence but after a trial-within-a-trial. In their respective
defences at
the trial, each of the appellants and the other co-accused raised
the defence of alibi and appellants retracted their respective
confession
statements, each claiming that his statement was not made voluntarily. At the
close of the trial, the only assessor
advised the judge to convict only Mweru
for capital robbery and Kisale for giving away the gun. The learned trial judge
found that
the prosecution had proved its case against the three appellants whom
he convicted; he acquitted Kisale. By then two other suspects
had
died.


The appellants appealed to the Court of Appeal. In that court,
the appellants complained about reliability of evidence on identification
at the
scene by Mugisha, as well as about the voluntariness of confession statements of
the appellants Mweru and Abas Kalema. The
trial judge was also criticised on his
conclusions regarding the fairness of the conduct of the identification parade
in respect
of Mweru. He was again criticised in respect of evaluation of
evidence generally. The Court of Appeal found that the identification
parade had
been conducted improperly and so the court disregarded that evidence. The Court
upheld the findings of the trial judge
on the rest of the grounds of appeal.
Consequently, the court dismissed the appeal. The appellants have now brought
this appeal.
Each appellant lodged a separate memorandum of
appeal.


There is some confusion about numbering of the appellants. In
this judgment we shall refer to Mweru Ali, Abasi Kalema and Sulaiman
Senkumba as
A1, A2 and A3, respectively and we shall consider the appeal of each appellant
separately.

APPEAL OF MWERU ALI (A1)

The Memorandum of Appeal, contained three grounds. At the hearing ground
three was abandoned. Grounds one and two were formulated
as follows: -

1. That the
learned Justices of Appeal erred in law and fact in finding that the second
appellant had been identified at the scene of
crime.
2. That the
learned Justices of Appeal erred in law and fact when they failed to re-evaluate
the evidence on record relating to:
-

(a). arrest of the
appellant.

(b). the gun (exhibit P3).

(c). the conduct of the second appellant.

(d). the charge and caution statement of the second appellant (exhibit
P7) and subsequently reached erroneous decisions.



Reference
to "second appellant" in 2 (c) and 2 (d) above is to Mweru Ali. Mr. Kunya,
counsel for the appellant, argued the two grounds
together. The thrust of his
arguments was that re-evaluation of evidence was not adequate. First, counsel
submitted that Mugisha,
[PW1], was a single identifying witness and that the
prevailing circumstances were not conducive to positive identification of the
appellant. Counsel contended that Mugisha was scared; that the robbery by
strangers took a short time and that on the facts Mugisha
had poor memory.
Secondly Mr. Kunya contended that there was insufficient evidence to link the
appellant to the gun used in the
robbery. Thirdly, counsel relied on a decision
of this Court [Kawoya Joseph Vs Uganda, Criminal Appeal No. 50 of 1998 (SC)
(unreported)]
for his contention that the trial judge "ought to have ascertained
whether it was proper to admit" in evidence the confession statement
of his
client. Mr. Kunya pointed out that the date of A1's arrest is unknown. In reply,
Mr. Elem Ogwal, Assistant DPP, submitted
that the prevailing conditions at the
time of the robbery favoured correct identification of the appellant by Mugisha.
He pointed
out that the Court of Appeal upheld the conviction of the first
appellant on the basis of his confession which had been admitted
without
objection. The learned Assistant DPP argued that absence of evidence of arrest
is not fatal in this case and that the gun
was linked to A1. There are aspects
of the evidence of Mugisha which must be treated with caution. Although the
robbery took place
during broad day light, at 10.00 am, and Mugisha claims to
have seen the robbers' faces very well, it is indisputable that the robbers
whom
he saw for about five minutes were strangers to him. The robbers surrounded the
car. One of them held a gun menacingly and he
admitted he was scared. The car in
which Mugisha travelled to the Bank and back was a car he was using regularly.
He could not remember
its registration number when he testified in court on
10/5/1999, four years after the robbery. In these circumstances his dock
identification
of A1, 4 years latter must be treated with caution. As against
that there is A1's confession statement in which he fully admits participation
in the offence. We revert to the confession a little later. There is the
question of whether the number of the gun used in the robbery
is 5710 or 6710.
PW4 gives the number of the gun as 6710 as does Mr. F. Bachara, the ballistics
expert. Their evidence appears reliable
and conclusive on the gun's number. With
regard to the recovery of the gun, PW4's evidence is somewhat unclear regarding
when the
gun was recovered. Mr. Kunya argued that his client has not been linked
to the gun which was used in the commission of the robbery.
Perusal of the
evidence of PW.4 and that of P/C. Wasswa (PW6) shows that Mweru's arrest and the
recovery of the gun were made more
than a week after robbery. The information
given by Mweru to PW4 led to the recovery of the gun. The trial judge held that
Mweru
got the gun from P.C. Kibale of Kiboga. The Court of Appeal correctly
applied the provisions of S. 29A of the Evidence Act to connect
the appellant to
the gun and to the robbery.


True there is no clear police evidence
about when Mweru was arrested. But in his own evidence Mweru testified that he
was arrested
by DMI officers from his residence at Old Kampala Police Barracks
at 7.30 p.m, on 8/12/1995, which is just over a week after the
robbery. D/ASP.
Obwona (PW7) confirmed that A1 was arrested by DMI. There should have been
evidence by the arresting officer, but
since the appellant admits his arrest
which was ultimately connected to this case, the absence of the arresting
officer's evidence
is not on the facts prejudicial to his conviction. The most
damning evidence against A1 is his confession statement (Exhibit P.6)
Mr. Kunya
contended that the trial judge "Ought to have ascertained whether it was proper
to admit the confession". This statement
was admitted in evidence without
contest. From the trial court record, the learned trial judge took trouble to
ascertain from A1
and his other co-accused [P/C. Kisale] whether they had agreed
that their statements be admitted. The answer was in chorus in the
words: -

"That is true. We have no objection".

In his
testimony about recording the charge and caution statement from Mweru, this is
what D/ASP Obwona stated: -

"I told him the nature of the charge being robbery committed along George
Street to the prejudice Energo Project. I explained to him
the substance of
charge. He understood it. I put it in writing and I invited him to countersign
it, as he understood. He signed.
After signing I read the caution statement to
him. I said that you need not say anything unless you so wish but I shall record
it
and it may be used against you. He understood the caution. He said he was
willing to make statement. He also signed the caution,
which he acknowledged he
understood. He told me his story. I recorded it. After I had recorded it I gave
it to him read through.
I asked him if he wanted to add or subtract any thing.
After reading through he said it was okay. I invited him to countersign. He
signed."

The witness was not cross-examined about this part of his evidence which is
important in so far as assessment by Court of admissibility
of the statement was
concerned. The witness was only asked whether he ever interacted with DMI
officers who had arrested Mweru. He
denied any such interaction. He did not know
when and where DMI arrested Mweru. It was when Mweru gave his defence on oath
that he
implicated Obwona in the torture before the charge and caution statement
was recorded. It is a little strange that Mweru, an ex-policeman,
allowed D/ASP
Obwona to say what he said, about the confession, in court without causing his
counsel to challenge Obwona by way of
cross-examination. Moreover, Mweru
admitted making the confession even though apparently due to fear. He claimed he
had been tortured,
mostly by Ogwal, but on 12/12/1995, Obwona also participated.
All these claims were not put to Ogwal nor to Obwona during cross-examination
of
these witnesses. .


The learned trial judge found that the confession
was true and voluntary and that it fully implicated the appellant in the
robbery.
The Court of Appeal agreed with the conclusions of the learned trial
judge regarding the confession statement as follows: -

"In the confession the first appellant gave a detailed account of the
preparation and the execution of the robbery. He stated that
he attended the
preparatory meeting with several other people at Owino market. He obtained the
gun, which was used in robbery from
P/C. Kisale of Kiboga Police Station.
After the robbery he received his share of the proceeds. As the first appellant
had in his
defence denied making the confession, the learned trial fudge treated
it as retracted confession and rightly so, in our view, and
looked for
corroboration. The confession was true. See Tuwamoi Vs Uganda [1967] EA
84. He found corroboration of the confession in the discovery of the gun,
exhibit P3, the conduct of the appellant which
led to the arrest of the other
suspects and the fact that he had been identified by PW1 at the time of robbery.
The learned judge
also relied on the confession of the second appellant. We
cannot fault the learned fudge on these
findings"



The criticism of the trial judge for
admitting the confession statement has no basis whatsoever because the appellant
and his counsel
each consented to the admission of the statement after the trial
judge had taken trouble to ascertain first from counsel and then
the appellant
Mweru himself whether the statement should be admitted in evidence. There was no
objection. With respect, Mr. Kunya's
criticism of the judge has no
basis.


It is quite clear that the case of Kawoya Joseph Vs.
Uganda
(supra) relied on by appellant's counsel is distinguishable and
does not apply to the circumstances of A1's case. There the appellant
Kawoya was
in total disagreement with his lawyer about the conduct of Kawoya's defence. We
agree with the conclusions of the Court
of Appeal. Accordingly both grounds 1
and 2 must fail. It follows that Mweru's appeal must fail. It is
dismissed.


APPEAL OF ABAS KALEMA (A2).
Abasi Kalema's
memorandum of appeal contained five grounds. At the hearing of the appeal,
ground two was abandoned.
The first ground states: -

The learned Justices of Appeal erred in law and in fact to uphold the trial
judge's decision to admit the extra-judicial statement
of bas
Kalema.



Mr. Ddamulira - Muguluma, counsel for this
appellant, contended that the charge and caution statement attributed to the
appellant
is full of deficiencies, was irregularly obtained, for instance, for
not recording it in Luganda, the vernacular language used and
spoken by A2.
Counsel relied on the cases of Androa Asenua and Another Vs Uganda Criminal
Appeal 10 of 1998 (SC) (unreported) (S.C)
and CPL. Wasswa and Another Vs Uganda
Criminal Appeals No.48 and 49 of 1995 (SC) (Unreported) for the view that the
statement should
have been written in Luganda.


Learned counsel
complained that although his client surrendered himself to Masaka Police on
28/12/95, he was only brought to Kampala
CPS on 29/12/95 where he was detained
in custody until 4/1/96, before a charge and caution statement was recorded from
him. Therefore,
he argued, the prolonged detention affected the voluntariness
and the admissibility of the statement which the Court of Appeal should
have
rejected.


For the respondent, Mr. Elem Ogwal pointed out that the
Court of Appeal was alive to the necessity to, and failure by the police officer
to, record the charge and caution confession statement in the Luganda language,
which the appellant spoke. He argued that failure
to so record does not render
the statement inadmissible.


We have studied the two authorities cited
to us by Mr. Ddamulira Muguluma. We note that in the Asenua Case (supra) this
Court emphasized
the need for persons (Magistrates and policemen) whose
responsibilities are to record charge and caution statements to comply as
nearly
as possible with the procedure set out in the administrative instructions issued
by the then Chief Justice on 2/3/1973. In
the instructions, it is stated that
the statement should be recorded in the language which the accused speaks.
However, we have not
been persuaded that the recording of the statement in
English, rather than in Luganda language, caused injustice to the second
appellant.
We note that at the trial, the statement was admitted after a
trial-within-a-trial. D/ASP Rwenduru (PW.3) who recorded the statement
testified
about the procedure he followed. Other than not recording the statement in
Luganda, PW3 appears to have followed the correct
procedure before and after he
recorded the statement which he read back in Luganda to the appellant before the
appellant signed it.
The appellant signed it because he understood what was read
to him. Rwenduru's competence to speak Luganda and or to translate it
into
English, was not challenged in cross-examination. In his evidence during the
trial-within-a-trial, Kalema claimed that he made
three other statements,
apparently voluntarily. The one now under question was the fourth. The appellant
stated that PW3 did not
assault him nor do anything harmful to him. Indeed the
appellant complained to PW3 about alleged mistreatment meted to him by PW4
(Sgt
Ogwal) which clearly suggests that the appellant had some faith in Rwenduru. It
is to be noted that in this case the trial judge
was not even impressed with the
appellant in the trial - within a trial. The record of the judge implies that
the appellant feigned
illiteracy yet he appeared to know English.


The
case of CPL. Wasswa (supra) is authority for the view that it is wrong for
suspects to be detained in custody for long periods
before confession statements
are recorded from them. Clearly each case must be decided on its own facts. Here
the appellant testified
that he was arrested on 28/12/1995 in Masaka. That was
near the end of the year. It took some days before he was transferred to Kampala
CPS before 4/1/96 when he made his statement. Given that the appellant was
arrested just before the end of the year followed by the
new year public holiday
on 1/1/96, and considering that he was arrested away from Kampala, in this
particular case, these are circumstances
which we have taken into account.
Although the delay to record a statement from the appellant is deplorable, it
does not in this
case appear to us that that delay was deliberately designed to
cause the appellant to make an involuntary and untrue statement. Although
the
Court of Appeal did not evaluate the evidence surrounding the delay before the
statement was recorded, nevertheless the court
held that the statement was
voluntarily made and that the confession is true. We have not been persuaded
that the conclusions of
the Court of Appeal are wrong. Therefore ground one must
fail. Ground 3 and 4 state as follows: -

3. The learned Justices of Appeal erred in law and in fact to concur with
the trial judge to reject the second appellant's alibi.


4. The learned Justices of Appeal did not properly evaluate the evidence
(as a whole) on record in respect of
A2.



Mr. Ddamulira-Muguluma contended
that the trial judge did not evaluate evidence properly and that the Court of
Appeal did not appreciate
the fact that Mugisha did not identify his client at
the scene of crime. That there is inconsistency created by his client's
statement
in which he is recorded to have admitted taking from Mugisha the
brief-case containing the money whereas Mugisha himself testified
that it was
John Mayanja who took the brief case. Counsel submitted that this inconsistency
should be resolved in favour of his client.
Counsel also contended that the
Court of Appeal erred when it held that Mweru's charge and caution statement
corroborated the charge
and caution statement of Kalema, yet such evidence is of
the weakest type. Learned counsel contended that it was wrong for the
two
courts below to hold that his client purchased a vehicle after the robbery
because there was no evidence to support this. That
the date of purchase and of
resale of the vehicle before or after robbery was not given by prosecution. For
the respondent, the Assistant
DPP, Mr Elubu, submitted that the prosecution
evidence put Kalema at the scene of crime and therefore his alibi was
disproved.


We agree with learned counsel for the appellant that there
is some inconsistency regarding whether it was him or John Mayanja who
took the
brief case from Mugisha. But we think that this inconsistency is immaterial; for
in such a case, the robbery was a joint
enterprise among the robbers and whoever
seized the brief case, seized it on behalf of the group and in furtherance of
the common
enterprise. We have already held that Kalema's statement was properly
recorded and that it is truthful. In the statement the appellant
admits taking
the brief case. That establishes his guilt.


The learned Assistant DPP
quite properly conceded that Mweru's confession statement as corroborative
evidence of the information in
Kalemas statement is weak but he submitted that
it is lawful for court to hold that the two statements corroborate each other.
We
note that both appellants retracted their statements. We also note that the
two Courts below considered that fact and came to the
conclusion that Kalema's
statement was voluntary and that it is truthful. We have not been persuaded that
these findings are erroneous.
Since Mweru's statement was admitted without
challenge and as we accept the finding by the two courts below that Kalema's
statement
was voluntary and its contents are true, then if the two statements
talk about the same transaction, they (statements) must surely
be corroborative
of each other on those aspects on which they (statements) are in
agreement.


As regards incriminating evidence of the vehicle, the
finding that Kalema's confession statement is truthful leads to the inference
that its contents state what happened. Towards the end of the statement, it
reads: -

"During the distribution, I was given 1.7 million. After one week I bought
Motor vehicle Reg. No. 683 UBK and went home to Masaka
where J was arrested by
police in Masaka."



This must therefore mean that
Kalema used the share of the money robbed to buy a vehicle. It was argued that
shs 1.7/= was insufficient
to buy a car. However the statement does not say that
the car was purchased with only Shs 1.7m/=. Nor are we told whether the car
was
not paid for in instalments. Kalema in evidence during cross-examination agreed
that the car was his. He was a car dealer. He
had purchased the car for Shs
4.5m/ = five weeks before it was impounded. He had bought it in Kampala. There
is evidence by PW4 (Ogwal)
that after this car was impounded on 23/12/1995,
third parties claimed it. Kalema in his evidence acknowledged that car 683 UBK
was
his and was impounded by police when it was in possession of people to whom
he had sold it. Three weeks previously, the police impounded
the vehicle on
suspicion that robbery proceeds were used to purchase it. His claim that he was
a car dealer does not remove the possibility
that he used robbed money to buy a
vehicle and then sell it in Masaka. The date of robbery, i.e., 30/11/1995 is
very close to the
first week when Kalema claims to have purchased the vehicle in
question. Regarding the alibi we note that both the trial judge and
the Court of
Appeal evaluated evidence generally including the evidence of alibi before
rejecting the alibi. We have not been persuaded
that either court erred.
Therefore Grounds 3 and 4 must fail. The last ground states: -

The learned Justices of Appeal erred in law and in fact to uphold the
conviction of A2 where there was no summing up to the
assessors.



This ground concerns summing up to the
assessors. The complaint arises from the absence of the judge's summing up note
from the court
record. Mr. Ddamulira - Muguluma criticised the trial judge for
not accepting the only assessor's opinion that the accused persons
be
acquitted.


Learned counsel contended that there is nothing to show
how the trial judge addressed the assessor on the law and on the evidence.
Mr.
Elem Ogwal pointed out that there is evidence on the court record showing that
the judge summed up to the assessor and that,
in any case, the absence of the
note is not fatal to the case against the appellant. The record of the trial
court shows that after
the closing addresses by counsel for both sides on
14/7/1999, the judge adjourned court to 22/7/1999. He does not state the purpose
for the adjournment. However the record for 22/7/1999 shows that the one
remaining assessor gave his opinion covering two pages.
The opinion is lengthy
and unambiguous. The assessor specifically referred to the ingredients of the
offence of robbery. The assessor
advised conviction only of Mweru (A1) for the
robbery and not the others. He advised conviction of P/C. Kisale of the offence
of
theft of the gun but not of robbery. This leads to the presumption that the
assessor must have been guided along those lines by the
trial judge during the
summing up. We are supported in this by what the judge stated in his judgment in
which the learned trial judge
refers to his directions to the assessor as
follows: -





" I shall deal with the issue of admissibility of statement presently
including the directions given to the assessors regarding these
statements."



Later the learned judge again
stated: -

"I have carefully considered the circumstances of this case and warned
myself and assessor on the necessary caution to be taken when
relying

on the confessions "

From these
passages we infer that, though the summing up note is not on the court record,
the trial judge must have addressed the
assessor. In any case Mr.
Ddamulira-Muguluma has not pointed out any vital aspect of the case where
specific mention should have
been made to assessor by the
judge.


While disagreeing with the assessor's opinion to acquit some
of the accused persons (including A2 and A3), the learned judge stated:

"The gentleman assessor advised this court to convict P/C. Mweru [A1] of
the offence of aggravated robbery. He then advised me to
acquit all the
rest of other accused persons, for reasons given earlier J accept his
advise in respect of A1, P/C.
Mweru and A3 P/C Kisale. I also accept his advise
regarding A2 John Mayanja. I do not with respect accept his advice regarding
Abasi
Kalema and Sulaiman Senkumba who actively committed the robbery with P/C
Mweru and others."



It is our opinion that, and
with respect to learned counsel, this passage shows that the learned judge gave
reasons for not accepting
the assessor's advice before he convicted the
appellants.

Ground 5 has no merit and it must fail and so must the appeal
of Kalema which is dismissed.

APPEAL OF SULAIMAN SENKUMBA (A3)
Ms. Diana Harriet Musoke who
replaced Messrs Tusasirwe & Co. Advocates filed a fresh memorandum
containing three grounds in respect
of the third appellant. In the first ground,
the complaint is that the Justices of Appeal erred in law and fact when they
confirmed
that the 3rd appellant was the same person as Sula Bulega
whereas there was no evidence to prove this. Ms. Musoke criticised the trial
judge for
not finding whether Sulaiman Nsubuga is the same as Sula Bulega. She
also criticised the Court of Appeal for upholding the finding
of the trial judge
that Sula was Sulaiman. In counsel's view, a wrong man was before the trial
judge. The learned Assistant DPP supported
the judge's finding. He agreed with
the trial judge that the case of Ombeka Vs. Republic (1968) EA 132, relied on by
appellant's
counsel, is distinguishable from the present case because in the
former, the name of Ombeka was not cited in the charge sheet, instead
a
different name was cited. Yet despite that anomaly, Ombeka in fact pleaded
guilty and was convicted. The learned Assistant DPP
contended that there was
overwhelming evidence against A3. First the gun connected to the robbery was
found in his residence at Katwe.
Then he was identified during the trial by
Mugisha, the person who saw him at the scene of crime. Third Mweru and Kalema,
who are
co-accused, implicated him in their respective confessions. The
Assistant DPP argued that Sula is short form for Sulaiman.

We note that in their confession statements appellant Mweru (A1) and
appellant Semakula (A2) mention the name Sula. Mweru's statement
covers 8
pages. He mentions the name Sula in five of the pages. In that statement, Mweru
indicates that a gun was got from Sula's
residence in Katwe. In his statement,
Kalema mentions the name Sula at least once in relation to the events which
occurred after
the robbery. In the statement Mweru says that Sula and Emmanuel
waited for Kalema and another person at Makerere and these two joined
Mweru in
the car which took them to Nsambya from where they shared the robbery money with
18 other persons.


In his judgment, the trial judge was clearly alive
to the question of the identification not only of the third appellant but also
of the other co-accused persons. The judge stated: -

" What made the issue of identification of this accused crucial was
therefore the fact that he was identified at the scene of crime
by a single
witness. Secondly he denied his name "Sula" while answering to the name Sulaiman
Senkumba by which he had been indicted."

Thereafter the learned judge referred to the now famous tests which the
predecessor to this Court set out in Nabulele and another
Vs. Uganda (1979) HCB
72. The judge considered Mugisha's evidence and concluded this way: -



"I believe the testimony of Mugisha (PW1) This particular accused
bore the gun and came very close to the vehicle in which the
complainant sat. He also spoke ordering
them to surrender the brief case. The
events occurred in clear day time at a time (10.00 a.m.) when the complainant
was still fresh
and alert. The identification parade which should have been
organised in respect of A5 would have highlighted the consistency of
this
witness. But its absence though a disturbing error of police ineptitude, was not
destructive to his positive recognition of
his assailant. Though the assailant
was not known to him before, he presented in a favourable atmosphere enabling
his being identified
by the witness."



In their
judgment, the learned Justices of Appeal agreed that the circumstances were
favourable for correct identification of A3 who
was A5 during the trial. They
then stated: -

"We agree with the learned trial fudge that the third appellant is the
same man who was identified by PW1 at the scene of crime and
in court as being
one of the robbers. He is also the same man referred to by the first and second
appellants in their confessional
statements as Sula. The mere fact that the
prosecution did not call local council officials who arrested him, in our view
does weaken
(Sic) the prosecution case. Whether the third appellant was arrested
at Namasuba or at Najjankumbi, in our view is
immaterial."

In view of the contents of the confessions of Mweru and Kalema we agree with
the above conclusions of the Court of Appeal. Ground
one must fail.

The
complaint in ground two is that the Justice of Appeal erred in law and fact in
their evaluation of identification evidence because
conditions were not
favourable for correct identification of A3. In away we have considered the
substance of this ground.

On the issue of identification, the judge considered the conditions under
which the appellant was identified and came to the conclusion
that the
conditions were ideal to correct identification. These conditions were that the
robbery was committed in broad day light,
the witness saw the appellant while
the witness was in a car with clear glasses, the appellant pounced on him
wielding a gun, the
witness saw the appellant point a gun at Motorich's head,
the witness saw the faces of three robbers including the appellant very
well; he
heard the appellant speak Luganda, and ordered him and his party in the car to
surrender the brief case in which there was
money, and the incident lasted about
5 minutes. The main attack on the identification by Mugisha that he may have
been mistaken because
his description of the colour of the vehicle he was using
did not tally with that of other witnesses was rejected by both the trial
court
and the Court of Appeal. In our opinion the two lower Courts came to the right
conclusion on this inconsistency. In the first
place, it was not material
inconsistency because the colour of the vehicle was not an issue. Further it is
immaterial that he could
not remember the Registration number of the vehicle.
The fact that he was scared by the robbers, does not mean that he could not
identify the robbers whom he watched for 5 minutes while they were carrying out
the robbery of the money from the vehicle in which
he was passenger. There is no
evidence that he was injured or that his vision was blocked or interfered
with.


The other weakness raised by Ms. Musoke in his identification
evidence is that no identification parade was conducted in respect of
this
appellant. This was a serious omission but it is not so serious as to undermine
his visual identification at the time of the
robbery. Identification parade
evidence if it had been held would merely confirm or support the visual
identification.


PW.1's dock identification of the appellant was also
attacked as of no evidentially value. Because of the incrimination of this
appellant
in the confessions of Mweru and Kalema, we think that the
identification in court tends to strengthen the witness's evidence that
the
person whom he identified at the scene of crime as one of the robbers is the
same as the appellant. We therefore agree with the
conclusions of the two lower
courts that the conditions were favourable to correct identification and that
PW.1 correctly identified
the third appellant

There is some circumstantial evidence tending to support the identification
of the appellant by Mugisha as a single witness. As pointed
out under ground 1,
in the confession of Mweru, he implicates A.3 as the man who kept the machine
gun, and who carried it to the
scene of robbery and put the victims at gunpoint.
The gun was subsequently recovered in a house believed to be his. Kalema also
seems
to implicate this appellant as the man who rushed to the targeted vehicle
holding a gun. There is also evidence that this appellant
disappeared from his
home in Katwe and even changed the place of residence, apparently to avoid
arrest. This circumstantial evidence,
though weak in some respects, tends to
implicate the appellant, and renders strong credence to the evidence of
identification by
a single witness. This evidence was sufficient to support the
conviction as the two lower courts found. Ground two must therefore
fail.


Ground 3 is a complaint that the Justices of Appeal erred when
they rejected appellant's alibi without credible evidence adduced putting
him at
the scene of crime. In our opinion there was credible evidence placing the
appellant at the scene by PW.1 and the confessions
of the co-accused. It is true
the police did not check out the truth of the appellants alibi that he had gone
to see his wife in
Kagando Hospital. The wife he said he had gone to visit at
Kagando Hospital to nurse died while the appellant was in prison. She
could have
been a useful witness for either side. But even if he had gone to Kagando, he
could have done so after the robbery as
evidence of his absence from Katwe at
the time of search of his house shows. Whatever the case was, he was hiding from
the long arm
of the law which eventually caught up with him at Namasuba.
Therefore this ground must also fail. In consequence his appeal must
fail.

The result is that the appeals of the three appellants are dismissed.

Delivered at Mengo this 21st day of August
2003.





B.J. ODOKI
CHIEF JUSTICE

A.H. ODER
JUSTICE OF SUPREME COURT

J.W.N.TSEKOOKO
JUSTICE OF SUPREME COURT

A.N. KAROKORA
JUSTICE OF SUPREME COURT

G.W. KANYEIHAMBA
JUSTICE OF SUPREME
COURT