Court name
Supreme Court of Uganda
Judgment date
19 February 2003

Sewankambo Francis and Ors v Uganda (Criminal Appeal-2001/33) [2003] UGSC 9 (19 February 2003);

Cite this case
[2003] UGSC 9

THE 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 2001

BETWEEN

1. SEWANKAMBO
FRANCIS
2. KIWANUKA
PAUL
3. MUTAYA
MUZAIRU
: : : : : : :
:
APPELLANTS

AND

UGANDA: :::: :: : : : : :
RESPONDENT

(Appeal from the decision of the Court of Appeal in Kampala (G. M. Okello,
A. E. Mpagi-Bahigeine, and J. P. Berko, JJ.A.), dated .
. in Criminal Appeal No.
14 of 2000).


JUDGMENT OF THE COURT

The three appellants were convicted by the High Court at Masaka of simple
robbery, contrary to sections 272 and 273(1) of the Penal
Code Act and were each
sentenced to ten years imprisonment. They were also ordered to suffer corporal
punishment of ten strokes of
the cane, to pay to the complainant compensation of
Shs. 50,000= each and to undergo Police supervision for three years after
completing
their terms of imprisonment.

The facts of the case as accepted by the trial court and the Court of Appeal
were briefly as follows:

The complainant, Semakula Hussein (PWl), and another person not named, were
on 19-08-97 at 5.45 a.m. travelling in a Toyota Corolla
DX car No. 128 UAN from
Lamunu Fishing Village when, at Wakasanke, they found the road blocked by trees
placed across it. When they
stopped, some people flashed a torch at them and
ordered them to get out of the vehicle and lie down, which they did. Their
attackers,
who had two guns, demanded money from them and Semakula handed to
them Shs. 110,000=. The attackers tied Semakula's hand those of
his companion
behind their backs, and disappeared.

Thereafter, Semakula and his companion managed to untie their hands but could
not find their motor vehicle. In it were bottles containing
traditional medicine
which they had been selling. They walked to Nyendo Police Post and reported the
incident.

In the meantime, the first and the second appellants were arrested by LDU's
in the morning of the same day. They had in their possession
a toy gun. On
interrogation by the Police, the two appellants named the third appellant as a
person who had also participated in
the robbery. The Police proceeded to his
home, but did not find him. They found his wife and searched the home. They
recovered an
SMG gun, a magazine containing 17 rounds of ammunition and some
bottles containing traditional medicine. Subsequently, the third
appellant was
also arrested. All three appellants each made a charge and caution statement in
which he confessed participation in
the robbery. Each gave a detailed account of
the part he played. They were all eventually indicted jointly on five counts of
aggravated
robbery contrary to sections 272 and 273(1) of the Penal Code
Act.

At the trial the appellants' confessions, which were recorded by Police
Officers, were each admitted without any objection. All the
appellants were
represented by a Lawyer on state briefs. In their respective sworn evidence in
defence, the appellants repudiated
their confessions and set up a defence of
alibi which the learned trial judge rejected. He convicted all the appellants of
simple
robbery charged in the second count only. In that court, the appellants
were charged with robbery only of Shs. 112,500=. He acquitted
them of aggravated
robbery in all the five counts of the indictment. Following the conviction, the
learned trial judge made the consequential
orders to which we have already
referred. Aggrieved by the decision and orders of the trial court the appellants
appealed to the
Court of Appeal against conviction and sentence.

Their appeals against conviction and against the sentence of ten years
imprisonment, compensation to the complainant and police supervision
after
completion of the sentence of imprisonment were dismissed. The Court of Appeal
allowed the appeal against corporal punishment
and set it aside. Hence this
appeal.

The memorandum of appeal originally contained four grounds of appeal, but
when the hearing of the appeal commenced the appellants'
learned counsel, Mr.
Moses Kuguminkiriza abandoned the fourth ground of appeal, which was against
sentence. Thereafter, the learned
counsel argued the remaining grounds in the
order in which they were set out in the memorandum of appeal. Towards the end of
his
submission, the appellant's learned counsel also abandoned the third ground
of appeal saying that it had been covered by his arguments
regarding the first
and second grounds of appeal.

The two remaining grounds of appeal are set out in the memorandum of appeal
as follows:

1. The learned Justices of the
Court of Appeal erred in law and fact when they held that simple robbery was
proved against the appellants
beyond reasonable
doubt.
2. The learned Justices of the Court of
Appeal erred in law and fact when they held that the confessions by the
appellants (Exbts. P.5,
P.6 and P.7) were properly admitted and relied upon by
the presiding judge.

We shall consider ground 2 of the Appeal first. In his submission under this
ground, the appellants' learned counsel, Mr. Moses Kuguminkiriza,
first referred
to the evidence of D/IP Otim (PW4) concerning how he recorded the charge and
caution statements from the first and
second appellants in which they confessed
to have participated in the robbery. D/IP Otim tendered the confession
statements which
were admitted in evidence without any objection as prosecution
exhibits P.5 and P.6 respectively. The learned counsel also referred
to the
evidence of D/AIP Rwenduru (PW5), who narrated how he recorded a charge and
caution statement from the third appellant in
which he confessed to have
participated in the robbery. PW5 also tendered in evidence the third appellant's
confession statement
as prosecution exhibit P.7, without objection by the
defence. The learned counsel submitted that although the appellants were
represented
by counsel at the trial the record does not show whether the learned
trial judge asked the defence counsel whether there was any
objection to the
admission of the confession statements. He contended that the absence of record
showing whether or not such a question
was put to the defence counsel showed a
failure of justice, because the confessions were relied on by the learned trial
judge to
convict the appellants although they had each repudiated or retracted
the confessions. For instance, the third appellant said in
his evidence in
defence that a policeman took his watch. Learned counsel contended that had the
learned Justices of Appeal considered
the circumstances in which the appellants
said the confession statements were recorded, they would not have acted on the
confessions.

The learned Principal State Attorney, Mr. Vincent Okwanga, opposed this
ground of appeal. In his submission, he contended that the
learned trial judge
and the learned Justices of Appeal properly acted on the appellants'
confessions. The learned trial judge followed
proper procedure in admitting the
confessions. The Police Officers who recorded the confessions gave evidence
about how they recorded
the statements, which indicated that they followed the
proper procedure in doing so. The defence raised no objection before the
confessions
were admitted in evidence. The learned Principal State Attorney
contended that a trial judge should not go prompting defence counsel
on what he
or she should or should not do during a trial. He is an impartial umpire in the
trial. The learned counsel submitted that
in the instant case, the learned trial
judge had no duty to invite objections to admission of the confessions from the
appellants
or their counsel. Moreover, failure by the defence to object to the
confessions at the material time means that, they were admitted.

With respect, we do not agree with the submission of the learned Principal
State Attorney. We shall say more about this later in this
judgment.

Secondly, the learned Principal State Attorney submitted that the courts
below rightly believed the appellants' confessions as true
because the
statements contained minute details of how the appellants committed the robbery.
The confessions also agreed with the
prosecution evidence in certain respects.
For instance, the first appellant's confession statement concerning arrest was
corroborated
by the evidence of PW1 and PW2; and PW2's evidence tallied with the
first appellant's confession. The learned Principal State Attorney
submitted
that the prosecution evidence that the second appellant ran away when being
arrested is confirmed by the 2nd appellant's own evidence that when
he was asked what the bag he was carrying contained, he ran away. All these
showed that the defence
evidence was all lies, which justified the learned trial
judge's rejection of the defence evidence. The learned Justices of the Court
of
Appeal re-evaluated the prosecution evidence including the appellant's
confessions and found that the charges against the appellants
had been proved to
the required standard.

The learned Justices of Appeal dealt with the complaint in the second ground
of appeal this way:





"On ground. 2, Mr. Kibonda argued that the trial Judge ought to have asked
the appellants if they objected to the admissibility of
their charge and caution
statements before admitting and relying on them On the other hand, Mr. Wagona,
Senior State Attorney, who
appeared for the state, contended that the trial
judge was justified in admitting and relying on those confessions since counsel
who represented the appellants at the trial did not object to their
admissibility. We agree. The appellants were represented by a
Lawyer. Since he
did not object to the admissibility of the confessions in evidence, the trial
judge was justified in so admitting
them He did not have to inquire of the
appellants if they had any objection to their admissibility. We cannot fault the
trial judge
in admitting these confessions in evidence. As regards his relying
on them, it is clear from their evidence that the appellants
repudiated/retracted
these confessions. The trial judge, therefore, had to treat
them as such with the attendant requirement of a warning that such evidence
must
be received with a caution. Once that warning is made, the trial Judge does not
even need to look for corroboration and can
legally convict on the
uncorroborated repudiated/retracted confessions provided that he is satisfied
that in all the circumstances,
the confession is true. This was the point stated
in
Tuwamoi -vs- Uganda (1967)EA, 84, at 91 which is still good
law."

We have carefully examined the record of the trial court in this regard. In
his evidence, D/IP Otim (PW4) testified at length regarding
how he first
recorded the confession statement from the first appellant. He also read out to
the court the contents of the confession.
His evidence in part reads:





"After recording it from A.1., I read it back to him and he said that they
were true. I signed and he also signed by writing (put
in marked
P.E.5)"

D/IP Otim also testified at length how he recorded the second appellant's
confession statement and read it out to the court the contents
of the document.
He ended his examination-in-chief by saying:

"He stated further that he led PW2 and another Police Officer together
with A.I to the home of A.3 where they recovered an SMG gun
with some
ammunitions and then led them to Masaka Police where he made the statement
before me. I then signed it, so did A.2 by themselves,
printing on each of the
sheets after reading them to him and he found them correct (put in and marked as
P.E.)."


DA.I.P Rwenderu (PW5) recorded the confession statement from the third
appellant. He also read out the document to the court. The
relevant part of his
testimony reads:

"He again said that during the arrest one of the Police Officers took his
Seiko watch; I read it back to him, then he signed and I
counter-signed, (put in
marked RE.1)."

As the record shows, it appears that the learned trial judge did not give
either the defence counsel or the appellants any opportunity
to say anything
about the confession statements before the documents were admitted in evidence
as prosecution exhibits. It would
seem therefore, that there was no way the
appellants or their defence counsel could have raised any objection to the
admissibility
of the confession statements in case they wanted to do so. Not
surprisingly, therefore, no objection was raised.

The issue of whether a confession the admissibility in evidence of which has
not been objected to by the defence can be admitted in
evidence, without a trial
within a trial to determine its admissibility can be used to convict an accused
person has been considered
by this Court in recent cases. The clearest and the
most relevant decision of this Court was in the case of Omaria Chandia
-vs- Uganda, Criminal Appeal No. 23 of 2001 (SCU)
(unreported). In that
case the appellant was convicted by the High Court of the murder of his wife in
Owino Market in Kampala, where
the deceased was a trader in a stall. Several eye
witnesses saw the appellant stab the deceased to death with a knife.

A confession statement allegedly made by the appellant was admitted in
evidence without objection from counsel for the appellant.
His appeal to the
Court of Appeal failed because, apart from his alleged confession, there was
ample evidence from eye witnesses
to support the conviction.

In his appeal to this Court, one of the grounds of appeal was that the
learned Justices of Appeal erred in fact and in law when they
admitted the
charge and caution statement, extracted from the appellant.

Regarding that ground of appeal this Court said:





"Firstly, we would reiterate what we have stated in our recent decisions
that because of the doctrine of the presumption of innocence
enshrined in
Article 28(3)(a) of the Constitution where, in a criminal trial, an accused
person has pleaded not guilty, the trial
court must be cautious before admitting
in evidence a confession statement allegedly made by an accused person prior to
his trial.






We say this because an unchallenged admission of such a statement is bound
to be prejudicial to the accused and to put the plea of
not guilty in question.
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
or she admits having made the confession statement voluntarily, the
court ought to hold trial within a trial to determine its admissibility.
See
Kawoya Joseph -vs- Uganda, Criminal Appeal No. 50 of 1999,
(SCU)
(unreported) Edward Kawoya -vs- Uganda, Criminal Appeal No.
4 of 1999 (SCU)
(unreported) and Kwoba -vs- Uganda, Criminal Appeal No. 2
of 2000 (SCU)
(unreported).




Therefore, and with respect, we think that it was improper for the learned
trial judge to admit in evidence the confession statement
(exhb. P.3) of the
accused on the basis that his counsel did not
object."

Applying the Court's decision in Omaria Chandia's case (supra)
to the instant case, our view is that it was improper for the learned trial
judge to admit in evidence the confession
statements of the three appellants
(Exbt. P.5, P.6 and P.7) on the basis, that neither the
appellants nor the defence counsel challenged the admissibility of their
confession statements, and
without holding a trial within a trial to determine
the admissibility of the confessions.

A part from the failure by the trial judge to ascertain from the appellants
whether the confessions could be admitted, there are other
unsatisfactory
features in the case which affect the voluntariness of these confessions. First,
we think that it is irregular for
one Police Officer to record alleged
confession statements from two suspects charged with the same offence arising
from the same
incident. The temptation on the part of the policeman to use
contents of statement to record a subsequent statement cannot be ruled
out. In
the instant case, we note that A.I.P. Otim (PV.) recorded the alleged confession
of the second appellant after he had recorded
a similar confession from the
first appellant. Second, the same Police Officer apparently did not have a
Luganda interpreter to interpret
communication between him and the first and
second appellants. According to Otim himself, he mixed Luganda and English when
speaking
to the appellants and recording the alleged confessions from the first
and second appellants. Third, all the appellants claimed that
they were
assaulted by the police before they were made to sign or thumb-print the alleged
confessions. Indeed, the first applicant
claimed that he was assaulted and
injured on the left leg which was treated by Dr. Ssekitoleko. Strangely
enough, the prosecution did not adduce any evidence of medical examination in
respect of all the appellants.
No explanation was given.

In the circumstances, with all due respect, the Court of Appeal misdirected
itself to say, as it did, that the learned trial judge
properly admitted the
appellants' confession statements in evidence.

The appellants' confession statements in question was the only evidence
implicating them with the offence charged in the second count,
in which they
were jointly charged with robbery of Shs. 112,500= from the complainant. The
money was not found in possession of the
appellants. Nor was it recovered. The
appellants were strangers to the complainant and his companion, who were victims
of the robbery.
They did not recognize the appellants, nor identified them as
the robbers. There was no other evidence which supported the appellants'
conviction other than the confession statements. In the circumstances, their
conviction of simple robbery cannot be left to stand

In the circumstances the second ground of appeal must succeed. The success of
that ground disposes of the appeal. It is not necessary,
therefore, to consider
the remaining ground of appeal.
2003_900.png

In the result, this appeal succeeds. It is accordingly, allowed and its
ordered that the appellant's conviction for simple robbery
C/SS.272 and 273(1)
of the Penal Code be and is hereby quashed. The Court of Appeal's decision
up-holding their conviction for simple
robbery and the order upholding the trial
courts sentences of the appellants be and is hereby set aside. Each and all of
the three
appellants are also set free forthwith, unless held on some other
lawful grounds. If they have already paid any compensation to the
complainant,
the same should be refunded to them by the complainant.

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

B.J. ODOKI
CHIEF JUSTICE

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