Court name
Supreme Court of Uganda
Case number
Criminal Appeal 25 of 2002
Judgment date
23 September 2004

Walakira Abas and Ors v Uganda (Criminal Appeal 25 of 2002) [2004] UGSC 28 (23 September 2004);

Cite this case
[2004] UGSC 28

IN THE SUPREME COURT OF UGANDA

HOLDEN AT MENGO


CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, AND MULENGA, JJ.S.C.



CRIMINAL APPEAL NO. 25 OF 2002


BETWEEN

1. WALAKIRA
ABAS
2. SGT. KIZITO
JOSEPH
3. MUWAKANIRA JOHN.
:::::::::::::::::::::::::::::::::::::::::::::::::::::
APPELLANTS

AND

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

{Appeal from the judgment of the Court of Appeal (Kato,
Okello and Engwau JJ.A) at Kampala, dated 22nd May 2002 in Criminal
Appeal No.49 of 2001}


JUDGMENT OF THE COURT.


The High Court of Uganda (Mwondha J.), sitting at Mubende on 11th
May 2001, convicted the above-named appellants on one count of
aggravated robbery under sections 272 and 273 (2) of the Penal Code
Act and
sentenced them to death. The robbery for which they were indicted and convicted,
was committed in the night of 30th June 1999, by three robbers at the
home of one Sulaiman Musisi, where they stole diverse goods and in the course of
the robbery used
deadly weapons. The three appellants appealed to the Court of
Appeal, but were unsuccessful, hence this second appeal.
Although Walakira
Abas, the 1st appellant, pleaded not guilty upon arraignment,
ultimately he did not dispute his participation in the robbery. Three
eyewitnesses,
Nabakema Sarah PW2, Livingston Musisi PW3, and Stephen Kalungi
PW4, identified him as one of the three robbers. A fourth witness,
Moses
Byamukama PW5, testified that the 1st appellant had used his bicycle,
without his consent, to transport some of the stolen goods. The stolen goods and
guns similar to
those the robbers had, were recovered in a shrine at the home of
the 1st appellant's parents. To crown it all, when the
1stappellant testified, he admitted that he participated in the
robbery. His only ground of appeal in this Court is that the Court of
Appeal
erred in upholding his conviction for aggravated robbery instead of substituting
one for simple robbery. We shall dispose
of his appeal first.

Ms. Musoke, learned counsel for the 1st appellant submitted that
there was no proof that the guns exhibited in court, were the guns, which the
robbers carried during the
robbery. Secondly, she submitted that none of the
eyewitnesses testified that the guns were used during the robbery. Thirdly, she
pointed out that when the guns were tested at the trial, only one was
functioning. She argued that the prosecution had not proved
that the
1st appellant had carried the functioning gun. Learned counsel
submitted that on the evidence before the trial court, the 1st
appellant ought to have been convicted of simple robbery.

In reply, Mr. Semalemba, Principal State Attorney, conceded that the guns
were not fired during the robbery, but contended that there
was ample proof that
the robbers "used" the guns to threaten the victims. He submitted that although
the indictment alleged that
the robbers "used a deadly weapon to wit a gun and
panga", the conviction on proof of only a threat to use a deadly weapon did not
occasion any miscarriage of justice. He also maintained that upon recovery, both
guns were tested and found to function and that
only later one failed to
function due to rust.

The 1st appellant raised the same issue in the Court of Appeal,
and in their judgment, the learned Justices of Appeal said -

"On the issue of guns, PW2, PW3 and PW4 testified that the thugs were
armed with 2 guns... We accept their evidence that no gunshot
was fired during
the robbery. We, however, find that the guns were used to threaten the
witnesses. PW3 had identified one of them
to be having a barrow which was cut
short. The following day, PW7 recovered 2 guns from the home of the
1st appellant. Both guns had their muzzles cut to make them shorter.
The evidence of PW7, in our view, tallies with the description given
by PW3 in
respect of one gun. The evidence of PW7 was ... that soon after the robbery,
Corporal Kwoba who was in charge of that search
operation test fired the guns in
his presence and both guns were capable of discharging bullets. His evidence was
not challenged
at the trial. Although the guns were not shown to PW3 at the
trial for identification, we agree ... that the 2 guns recovered from
the home
of the 1st appellant were the ones seen with the appellants during
the robbery. They were capable of discharging bullets in view of the evidence
of
PW7. ... we find that they were lethal or deadly weapons within the meaning of
section 273 (2) of the Penal Code Act."

We are unable to fault the findings of the learned Justices of Appeal in this
respect. Having regard to the evidence as a whole, we
find it irresistible to
infer, as the courts below did, that the guns exhibited at the trial, are the
guns the eyewitnesses saw during
the robbery. In addition to the similarity of
the exhibited guns to the description given by PW3, the proximity in time
between the
robbery and the discovery of the guns, and the finding of the guns
along with the stolen goods, lead to only that inference. We are
also satisfied,
as was the Court of Appeal, that PW7's evidence was sufficient proof that the
guns, which were tested in his presence,
could discharge bullets and were,
therefore, deadly weapons. We would add that the 1st appellant's
testimony that one of the robbers had directed him how to operate the gun he
carried, also tends to corroborate the evidence
that the gun could function.
Besides, it is immaterial if the 1st appellant carried a defective
gun since clearly the robbers had a common intention. Finally, we agree that
there was ample proof
of threatened use of the deadly weapons. A threat to use a
deadly weapon need not be in express or direct terms. In the instant case,
throughout the incident the victims were at gunpoint while either lying down or
being shoved about. The principal victim of the robbery,
PW2, testified that
when the robbers took her to the siting room demanding for money, they asked her
to chose between money and life.
Another witness, PW4, testified that the
robbers repeatedly threatened to kill any of the victims who move from where
they were ordered
to lie. It would be farfetched to deduce that the threats were
to kill without use of the guns. The allegation in the indictment
was that the
robbers used a gun and a panga on the complainant's family. In light of the
evidence, the indictment ought to have been
amended to reflect that they only
threatened to use guns. However, we are satisfied that failure to so amend did
not prejudice the
appellants or otherwise lead to a miscarriage of justice. In
the circumstances, the first appellant's ground of appeal fails. We
find no
merit in his appeal, which we dismiss.

The 2nd and
3rd appellants filed separate memoranda of appeal, and were
separately represented. However, their grounds of appeal are virtually the
same.
Both complain that the Court of Appeal failed to properly re-evaluate the
evidence; and each contends that that court erred
in upholding the trial court's
finding that he participated in the robbery. The arguments of Mr. Ddamulira
Muguluma and Mr. Kafuko,
their respective counsel, are also similar and can be
summarised together. The main thrust of learned counsel's submissions is that
the convictions of both appellants depended solely on identification evidence.
Both learned counsel contend that the evidence is
unreliable because during the
robbery, which occurred at night, the conditions favourable to correct
identification were difficult.
The frightened victims had no sufficient
opportunity to clearly observe the assailants who were strangers and who ordered
them at
gunpoint to lie down and not look at them. Besides, neither of them was
found with any of the stolen goods; and the 1st appellant who
confessed to the robbery, testified that they did not participate in it.
Finally, both counsel submitted that the arrest
of the two appellants was not on
strength of identification by the eyewitnesses, but rather on suspicion by LC1
Chairman and other
undisclosed people. Counsel put forward a hypothesis that the
eyewitnesses may have identified the appellants as the robbers, because
of that
suspicion and the resultant arrests. Each submitted that it was not proved
beyond reasonable doubt that his client participated
in the robbery. In the
alternative, both adopted the argument by the 1st appellant's counsel
that what was proved was simple, not aggravated robbery. The learned Principal
State Attorney submitted in reply,
in respect of the 2nd and 3
rd appellants, that during the robbery the conditions favoured
correct identification. Although the moonlight was not bright it combined
with
torchlight throughout the incident, which lasted for about two hours, to enable
the witnesses to see their assailants clearly.
Because of that, at the trial the
witnesses were able to consistently detail what each of the appellants had done
during the robbery.
He conceded that the Court of Appeal erred to say that the
1st appellant implicated the other two appellants, but submitted that
no miscarriage of justice was thereby occasioned since the eyewitnesses
properly
identified them.

The learned Justices of Appeal summarised the case against the three
appellants together in the following passage of the court's judgment
-

"The following morning after the robbery, the 3 appellants were
arrested and some of the properties robbed the previous night... were
found in a
shrine at the home of the 1st appellant's father. The information
leading to the recovery of those items including the 2 guns was voluntarily
given by the 1st appellant who admitted having participated in the
robbery together with the 2nd and 3rd
appellants.

There is overwhelming evidence on record that during the robbery,
PW2, PW3 and PW4 properly identified the 3 appellants, which led
to their arrest
the following morning.
There was moonlight and a torch light at the material
time. The whole episode took about 2 hours. The distance between the attackers
and the witnesses was at close proximity. In fact PW3 also recognised that one
of the guns had its barrow cut short.

On the night in question, PW5 also recognised the 1st
appellant who was in company of 2 other people whom the witness did not
identify. The evidence of the 1st appellant which he later retracted, put the
2nd and 3rd appellants at the scene of robbery.
We are
therefore satisfied that conditions were favourable for correct identification.
The learned trial judge was justified to hold
that the 3 appellants were
properly identified...
." (emphasis is added).

At the outset, we have to point out, in agreement with the Principal State
Attorney, that the learned Justices of Appeal misdirected
themselves on a
material aspect of the evidence. While it is correct that in his evidence the
1st appellant admitted participating in the robbery, it is an error
to say that he admitted doing so "together with the 2nd and
3rd appellants";
and that his evidence "put the
2nd and 3rd appellants at the scene of robbery."
On the contrary, he expressly dissociated the two appellants from the
robbery, and testified that he committed the robbery together
with two different
persons from Kampala whom he mentioned to the police, but the police failed to
trace them. He named those others
as Mohammed Kabalu and Sevume John. We are
unable to trace the origin of this error. Both the recorded evidence and the
trial court
judgment, show that the 2nd and 3rd appellants
are only implicated by identification evidence of PW2, PW3, and
PW4.


This Court and its predecessors have in a chain of decisions
elaborated on principles applicable to cases where the guilt of an accused
person depends on only identification evidence. See Abdulla Bin Wendo
& Another vs., R
(1953) 20 EACA 155; Roria vs.
Republic
(1967) E.A.583; Moses Kasana vs. Uganda Cr. App.
No. 12/81(1992-93) HCB 47; Abdala Nabulere and Another vs. Uganda
Cr. App. No. 9/78 (1979) HCB 77; George William Kalyesubula vs.
Uganda
Cr.

App. No. 16/97; Moses Bogere and Another vs.
Uganda
Cr. App. No. 1/97 SCD (CRIM) 1997/2000 p.185. The court
may rely on identification evidence given by an eyewitness to the commission
of
an offence, to sustain a conviction. However, it is necessary, especially where
the identification be made under difficult conditions,
to test such evidence
with greatest care, and be sure that it is free from possibility of a mistake.
To do so, the court evaluates
the evidence, having regard to factors that are
favourable, and those that are unfavourable, to correct identification. Before
convicting
solely on strength of identification evidence, the court ought to
warn itself of the need for caution; because a mistaken eyewitness
can be
convincing; and so can several such eyewitnesses: Abdullah Nabulere &
Another vs. Uganda
(supra). As much as possible therefore,
the court must evaluate not only material that supports the accuracy of the
identification,
but also material which tend to raise doubt on it.


In
the instant case, both the trial court and the Court of Appeal evaluated the
evidence concerning the circumstances under which
the eyewitnesses saw their
assailants. Both found that the conditions were favourable to correct
identification. While ordinarily
we would not be inclined to interfere with that
concurrent finding, we note that neither court considered if the evidence was
free
from the possibility of mistake. The fact that the witnesses, with the aid
of moonlight and torchlight, saw the assailants at close
range for the duration
of about two hours, does not necessarily rule out the possibility that they were
mistaken when the following
morning they identified the two appellants as two of
the robbers. It is noteworthy that the witnesses did not know the appellants
before the incident. More significant, however, is the fact that there is
evidence on record, albeit from the defence, to the effect
that the two
companions of the 1 st appellant in the robbery were different from the two
appellants. As we have just noted, in his
evidence at the trial, the
1st appellant who confessed to the robbery, testified that his
companions in the robbery were Mohammed Kabalu and Sevume John. He said
that he
did not know the two persons who were arrested after him, to wit the co-accused.
The learned Justices of Appeal did not evaluate
that evidence. On the other
hand, the trial judge who adverted to it, rejected it on grounds, which we find
unsustainable. In her
judgment, the learned trial judge said -

"A1...in his sworn statement (he) admitted that he was on a mission to
steal and he did steal with two other people of whom he gave only one name
for each.
He said that he stole and or robbed with one Senvume and
one Kabalu. When he was asked the description of the Senvume and Kabalu the
description fitted A2 as Senvume and A3 as Kabalu.
Even the prosecution
witnesses had described their assailants as A1 described them when giving their
testimony. The issue that remains
is whether A2 and A3 were put squarely at
the scene of crime."
(emphasis is added)

After reviewing the evidence on the conditions favourable to correct
identification and the defence evidence, the learned trial judge
concluded
-

"The accused persons had been squarely put on the scene of crime.
Much as A1 had volunteered to be sacrificed because he is the one who kept
the loot, may be he was
the master planner, the
evidence against the other 2 accused persons was so incriminating and pointed to
the guilt of all 3 accused persons as indicted..."
(emphasis is
added)

The assertion that the 1st appellant gave only one name for
each
of his companions in the robbery is incorrect because the record shows
that he gave two names for each. In as much as this was a cause
for doubting or
rejecting the 1st appellant's version that he was with different
persons, as it appears to be, it is a misdirection. Secondly, the bold finding
that
the 1st appellant's description of his companions fitted the two
appellants is not borne out by the recorded evidence. What appears in the
record
of his cross-examination in that regard simply reads thus -

"Senvume was tall and brown. The short one was Sevume who was short and
fat."

Even if allowance is made for possibility of a slip in recording the name of
one person twice, the descriptions are so commonplace
that they can hardly be
basis for the finding. Lastly, the learned trial judge's conclusion that the
1st appellant volunteered to be sacrificed and
may have been the master planner of the robbery, is not deducible
from any recorded evidence. It appears to be a theory conceived by the learned
trial judge to explain
away the clear and direct evidence that otherwise raises
serious doubt on the identification of the two appellants as participants
in the
robbery. This is a serious error in law. It cannot be over emphasised that a
trial court must decide issues before it on basis
of evidence adduced and not on
basis of its own theories or conjecture.

As we have already observed the
learned Justices of Appeal did not evaluate the 1st appellant's
testimony that cast doubt on the identification of the 2nd and
3rd appellants. They were content to hold that proper
identification during the robbery, led to the arrest of the appellants.
A scrutiny of the evidence concerning the arrests of the 2nd
and 3rd appellants, however, tends to show equivocation as to what
led to the arrests, namely between identification by the eyewitnesses
and
suspicion by LC1 Chairman and other unnamed persons. In respect of
identification by PW2, the arrest led to the identification
rather than the
reverse. According to her testimony, the police brought the appellants to her
home after arrest, asking if she knew
them. Although PW3 and PW4 participated in
the search for the robbers and arrest of the appellants, their evidence shows
that local
suspicion was a major factor leading to the arrests. PW3 testified
that he went with an armed policeman for the search, following
bicycle tyre
marks, which eventually disappeared. At Kalonga, they met the LC1 Chairman
Nsozinga to whom they disclosed, inter alia, that one of the
robbers was in army uniform. That Chairman told them -

"that there is a man at his village who fits the explanation of the
witnesses. He also said that there is another man whom they associate
with.

We proceeded to Nsozinga and when I saw A2 I identified him straight away. He
was still in army uniform
and he was light skinned. I had recognised his
face features."

The witness further said that the Chairman took them to Kirumbi, where the
3rd appellant was arrested. Neither the policeman who went
with PW3 nor the Chairman LC1 who led them to the two appellants gave
evidence. PW4 testified that he went on the search in a group, including
OC and two LDU's, and they met some people to whom they mentioned that
one
robber was in army uniform and the other two were in jackets, and that in
apparent response -

"Those people told us that they knew A2 because he steals so
much.
... We were shown A2 and he was the actual man. ... He was in an
army uniform.
It was around 10.00 am but was still sleeping. The face was
exactly of the robber who attacked us...A3 was arrested by another group
I found
when he had been arrested with his overcoat on...."

It is from the evidence of PW3 and PW4 that counsel derived the
hypothesis that the two appellants were arrested on strength of suspicion by the
LC1 Chairman and the unnamed people, that a soldier in the village and
his usual associate "fit the explanations of the witnesses", and
that their arrest influenced the witnesses to identify them as the robbers. The
appellants did not canvass that hypothesis at
their trial or in their first
appeal. As a result, we lack the benefit of its evaluation by the lower courts.
Nevertheless, we are
constrained to consider it as it goes to the root of
evaluation of the identification evidence. Since the case against the two
appellants
depends solely on identification evidence, it is imperative to
consider both the aspects that tend to strengthen and those that tend
to weaken
it. (See Bogere Moses & Another vs. Uganda
(supra).


Moses Byamukama, PW5, was not an eyewitness to the
robbery, but he appears to have encountered the robbers soon after the robbery.
He was the owner of a bicycle, which the 1st appellant admittedly
stole for using to transport some of the stolen goods. He testified that in the
night in question he discovered
that his bicycle was missing from the person he
left it with while he had a drink. The latter informed him that the
1st appellant had earlier wanted to borrow it but he refused.
Thereupon PW5 went about looking for the 1st appellant whom he knew,
until he came across three people who tried to hide from him. He testified thus
-

"I went to the lady (from) whom A1 had bought a drink and I saw people
who were peeping at me ... when I wanted to recognise them
by going back they
took cover. They were three of them. As I was going towards where they were they
ran away. I followed them asking
why they were running when they were strangers
on the village. I told them I was going to raise alarms. They stopped and I
found
they were together with A1. I didn't recognise them. He apologised and we
went to their home we got the bicycle from the shrine and
handed it back to
me."

PW5 was the only witness from the area where the robbers took their loot. He
recognised the 1st appellant but not his two companions. In his
testimony, he did not identify the other appellants as the companions. The
record does
not show if he was asked about them. Although not conclusive, his
testimony is more consistent with the claim by the 1st appellant that
his companions were strangers from Kampala rather than locals from the area. We
are constrained to observe that in
a properly conducted investigation, the
suspects would have been put on an identification parade to ascertain if this
witness and
PW2, both of whom did not participate in the arrests, could identify
them. That was not done.

In conclusion, considering all the foregoing matters, we are unable to uphold
the concurrent decision of the two courts below, that
the participation in the
robbery by the 2nd and 3rd appellants was proved beyond
reasonable doubt. We think the evidence raises reasonable doubt on their
identity, which doubt must
be resolved in their favour. In the circumstances, we
allow their appeals, quash their convictions and set aside the sentences imposed
on them. We order that the 2nd and 3rd appellants be set
free unless held for any other lawful cause.

Dated at Mengo this 23rd day of September
2004.


B.J. Odoki
Chief Justice

A.H.O. Oder
Justice of the Supreme Court

J. Tsekooko
Justice of the Supreme Court

A.N. Karokora
Justice of the Supreme Court

J.N. Mulenga
Justice of the Supreme Court.