Court name
Supreme Court of Uganda
Judgment date
19 February 2003

Chemonges Fred v Uganda (Criminal Appeal-2001/12) [2003] UGSC 7 (19 February 2003);

Cite this case
[2003] UGSC 7

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

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

CRIMINAL APPEAL NO. 12 OF 2001

BET WEEN

CHEMONGES FRED: :: :: :: :: :: :: :: ::
APPELLANT

A ND
UGANDA: :: :: ::
:: :: :: :: :: RESPONDENT

(Appeal from the judgment of the Court of Appeal in Kampala
(Mpagi-Bahigeine, Engwau, and Kitumba, JJ.A) dated 27-02-2001 in Criminal
Appeal
No. 12 of 2001).


REASONS FOR JUDGMENT OF THE COURT

This is a second appeal. The appellant was indicted and tried by the High
Court at Mbale on one count of murder, c/ss.183 and 184
of the Penal Code Act,
and two counts of attempted murder, c/s 197(1) of the Penal Code Act. He was
convicted of murder on the first
count and of attempted murder on the second
count. He was acquitted of attempted murder on the third count. He was sentenced
to death
for the conviction of murder, but the record does not show that he was
sentenced for the conviction of attempted murder, although
the record of the
trial court reads:

"Count 2: The sentence on second count is hereby
suspended."

The Court of Appeal also apparently repeated the omission when in its
judgment it simply said: "He was convicted and sentenced to death on the
first count while the sentence on the second was suspended."

This apparent omission to pass the sentence on appellant for attempted murder
was not referred to by both sides at the hearing of
this appeal, to enable us
deal with the matter under section 8 of the Judicature Statute, 1996.

The prosecution case against the appellant at the trial was that on 01-02-96,
at Cheming Market in Kapchorwa District at about 7.00
p.m. the appellant threw a
hand grenade into the shop of one Stanley Kuka (PW6), the victim of the crime
charged in the second count.
The grenade exploded, killing the deceased Michael
Chemisto and seriously injuring Nelson Bariteka and Stanley Kuka. The appellant
was identified at the scene of crime by Sokuton Geoffrey (PW2) and Sukuku Sadiq
(PW5). He was arrested in Jinja where he had run
to and was subsequently
indicted for the offences in question.

At his trial, the appellant put up an alibi that he was in Jinja at the
material time, where he had arrived on 29-01-96, to see his
siblings. The
learned trial judge accepted the prosecution evidence and rejected the
appellant's defence, convicting him, with the
consequences we have already
referred to. His appeal to the Court of Appeal was unsuccessful. Hence this
appeal.

We heard and dismissed the appeal on 10-12-2002, but reserved our reasons for
doing so, which we now proceed to give.

Three grounds of appeal were set out in the memorandum of appeal. The
appellant's learned counsel, Ms. Harriet Diana Musoke, argued
the first two
grounds together. They are that:

1. The Honourable Justices of Appeal erred in law and fact in their evaluation
of the identification evidence whereas the conditions
of identification were
unfavourable.

2. The Honourable Justices of Appeal erred in law and fact when they concluded
that PW1, Chebet Hadija, and PW2, Sokuton Geoffrey,
were credible eye witnesses
whereas their evidence was inconsistent with their statement that they recorded
at the Police Station.

The appellant's learned counsel submitted on these grounds that the evidence
of Chebet Hadija (PWl) could not be credible because
she did not know the
appellant before. She first saw him when the incident happened on 01-02-96. She
next saw him on the day she
testified at the appellant's trial namely on
23-10-98 and claimed to identify him in the dock. This was a dock identification
of
a person she had seen only once for the first time two years and ten months
previously. Learned counsel contended that in the circumstances,
Hadija's dock
identification of the appellant was not possible.

When Mr. Charles Elemu Ogwal, Assistant Director of Public Prosecutions,
appearing for the respondent, pointed out that the learned
trial judge did not
accept Hadija's evidence, the appellant's learned counsel abandoned the
point.

In her criticism of Sokuton's evidence, the learned counsel submitted that
although Sokutou said that he knew the appellant before,
he was not able to
recognize him as the person who hurled the grenade, because it was 7.00 p.m. at
sun-set and because the appellant
denied that he knew anything about the grenade
explosion or that he knew any of the persons injured in the incident.

In his reply opposing these grounds of appeal, the learned Assistant Director
of Public Prosecution contended that the appellant was
properly identified at
the scene of the crime. The incident happened at 7.00 p.m. when there was still
sunlight. He was well known
to Sokuton (PW2) before and PW2 was close to him at
the scene. He had seen the appellant earlier during the day when the latter
asked
the former for Shs. 500=, which he wanted to pay for condolences at a
funeral. In addition, Sukuku Sadiq (PW5) had seen the appellant
twice the same
day.

In view of the evidence of the prosecution witnesses, the learned Assistant
DPP submitted that the Court rightly found that the appellant
was properly
identified at the scene of crime.

The appellant's complaints in the first and second grounds of appeal are
similar to those which were made in the first and second
grounds of the
appellant's appeal in the Court of Appeal. That Court made the following finding
regarding evidence of identification
of the appellant by the prosecution
witnesses:

"From the evidence on record. We find that the appellant was known to
PW2 as a clansman. They used to exchange visits. PW2 had seen
the appellant
thrice during the course of that fateful day, 01-02-96, most importantly, the
incident occurred at around 7.00 p.m.
when there was still light. When the
appellant was fleeing from the scene of crime, he came into close proximity of
PW5 Sikuku Sadiq,
who was going in the opposite direction towards the scene to
find out what had happened. When PW5 saw him running away from the scene
he
inquired from him what had happened as indeed he expected him to know what he
was escaping from The appellant kept mum and instead
sped off, thus arousing
suspicion of PW5 who then raised an alarm and turned to chase him We agree that
inevitably there must have
been some commotion after the blast, but it occurred
inside the shop and not outside in the market place. We think that it is proper
to assume that people's attention must have been focused on the shop. The
likelihood of a stampede with people scampering in all
directions would have
been minimal. While we also agree with Mr. Kunya that people react differently
to different situations. It
was nevertheless a little strange for the appellant
to be running away from the scene of crime refusing to say why he was running
away; but instead increased his speed. PW2 and PW5 did not give contradictory
evidence as claimed by Mr. Kunya. Their testimonies
complemented each other. PW2
saw him at the scene and running away before PW5 saw him running towards him
When PW5 turned to chase
the appellant he was ahead of PW2. They need not have
viewed things from the same angle. We find that the learned trial Judge
correctly
found the appellant's conduct of running away corroborative of his
guilt, relying on the case of
Tenikabi -vs- Uganda (1975) EA 60
.
The Judge correctly applied the guidelines set down in Abdullah Bin
Wendo -vs- R (1953) 20 EACA. 166, Roria -vs- R (1967) EA 583
and
Nabulere and Others -vs- Uganda (1979) HCB 77
."

We are satisfied that the Court of Appeal was justified in holding that the
appellant was properly identified at the scene of crime.
It also found,
correctly in our view, that there were no contradictions in the prosecution
evidence in that regard. The prosecution
evidence on the appellant's
identification was therefore, credible.

In the circumstances, the first
ground of appeal failed.

Next we move to the second ground of appeal. The learned counsel for the
appellant did not complain against the evidence of Sokuton
(PW2) being
contradictory to his statement to the Police although that was one of the
complaints in the second ground of appeal.
However, the point was argued before
the Court of Appeal by the appellant's learned counsel. Mr. Henry Kunya, arguing
the appellant's
appeal in the Court of Appeal, had contended that there were
inconsistencies between the statement of Sokuton (PW2) made to the police
and
his evidence in court given on oath two years and ten months later. At the trial
Sokuton disassociated himself from the statement
he had made earlier. This is
similar to the argument the appellant's learned counsel attempted to put forward
before us, to the effect
that testimonies of prosecution witnesses were
inconsistent with their previous statements to the police.

It appears from the record that Sekoton (PW2) made his statement to the
police in Kupsabiny, and it was recorded by a Police Officer,
D/C Mbabazi who
only had a working knowledge of Kupsabiny. It appears that the Police Officer
did not properly follow what PW2 told
him. The Police Officer was not called to
prove the statement against PW2, whose testimony about the statement at the
trial was as
follows:

"I made a statement to the police in Kupsabiny to a Police Officer who
spoke Kupsabiny, but it was not perfect Kupsabiny. The statement
was not read
back to me but I simply signed it. I am the one who reported the case and made a
statement. J never told the police
(sic) at trading center at 3.00 p.m. what J
said was that I arrived at 9.00 a.m., I did not say while I was there one
Chemonges Fred
alias Brown asked me for cigarettes. I did not tell the Officer
that J refused telling him I had no money. The contents of the
statements are
not mine."

D/CP1. Bumeto David (DW1) testified at the trial that D/C Mbabazi, who
recorded PW2's statement, was speaking in Kupsabiny, a language
he had
learned.

Regarding the submission that PW2's evidence at the trial was contradictory
to his previous statement to the police, the Court of
Appeal said this:

"PW2 denied most of the contents of the statement which was never
proved against him

It is well established that where a police statement is used to impeach
the credibility of a witness and such statement is proved
to be contradictory to
his testimony, the court will always prefer the witness' evidence which is
tested by cross-examination. The
learned trial Judge was, therefore, entitled to
prefer PW2's court testimony as against his police
statement."


Since PW2's police statement was never proved against him, the issue that his
testimony was contradictory to his police statement,
therefore, did not arise,
in our view. We agree with the learned Justices of Appeal that the learned trial
judge was entitled to
prefer PW2's testimony as against his police statement. In
the circumstances the second ground of appeal failed.

The third ground of appeal is that: The Honourable Justices of Appeal
erred in law and fact when they rejected the appellant's defence of alibi which
ought to have raised
a reasonable doubt.

Under this ground, the appellant's learned counsel referred to his unsworn
statement made in his defence that he went to Jinja on
29-01-96 to see his
father's children. The father had died and the appellant had to assist them. He
stayed there until 10-02-96,
when he was arrested by a policeman. This means
that the appellant was away at the material time from the area where the offence
in question was committed. The learned counsel for the appellant contended that
the Justices of Appeal did not consider the appellant's
alibi.

In reply, the learned Assistant DPP. submitted that the prosecution evidence
clearly disproved the appellant's alibi. The appellant
was seen at his home and
in the area earlier in the day. He was also identified at the scene of
crime.

With respect, we think that the appellant's learned counsel was unjustified
to criticize the learned Justices of Appeal that they
did not consider the
appellant's alibi. They in fact, did so, as the following passage of their
judgment shows:

"Lastly, Mr. Kunya contended that the learned trial judge erred in
rejecting the appellant's alibi in view of the questionable evidence
of PW2 and
PW5 regarding identification. Mr. Wagona submitted that the learned trial judge
having accepted the evidence of identification
had to reject the alibi because
it had been destroyed by identification. The learned trial judge after analyzing
the evidence of
PW2 and PW5, the identifying witnesses, together with that of
PW3, D/CPI. Cheptai, the arresting Officer who arrested the appellant
in Budondo
on 10-02-96 concluded:

"Having believed the evidence of PW2 Sokuton Geoffrey and PW5 Sekuku
Sadiq, I found that the prosecution has successfully displaced
the alibi of the
accused and placed him squarely at the scene of crime as the person who hurled
the grenade that fatally injured
Chemsto Michael. His alibi accordingly
rejected."

We agree with the learned judge's finding. It is trite law that the
appellant did not have to prove his alibi, but once the prosecution
had
succeeded in placing him at the scene of crime, this entitled the learned judge
to reject his alibi. See Siraji Sajjabi -vs-
Uganda, Criminal Appeal No.
31/89."

In our opinion, the learned Justices of Appeal correctly found that the
appellant's alibi was disproved by the prosecution. The alibi
did not raise any
reasonable doubt about the appellant's guilt.

For these reasons, we dismissed the appeal. We were satisfied that the
appellant had been properly convicted. There was ample evidence
to support the
conviction.

Dated at Mengo this 20th day of February,
2003.

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

G. W. KANYEIHAMBA
JUSTICE OF THE
SUPREME COURT

C. M. KATO
JUSTICE OF THE SUPREME
COURT