Court name
Supreme Court of Uganda
Case number
Criminal Appeal 4 of 2003
Judgment date
29 November 2004

Lutwama David v Uganda (Criminal Appeal 4 of 2003) [2004] UGSC 31 (29 November 2004);

Cite this case
[2004] UGSC 31






LUTWAMA DAVID : :::::::::: :::::::::: ::::::::::


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

(Appeal from Judgment of the Court of Appeal at Kampala before Hon.
L.E.M. Mukasa-Kikonyogo, DCJ., Mpagi Bahingeine, Berko JJ.A dated
18th day of February, 2003 in Criminal Appeal No. 112 of


This is a second appeal. It is from a judgment of the Court of Appeal which
dismissed an appeal against conviction by the High Court
of the appellant for
the murder of Sadiya Namutebi, the deceased.

The facts of the case as accepted by the two courts below were as

On 18th March 1007 the deceased, Sadiya Namutebi then
aged 7 years, was returning from school with her friends. One of the friends was
Nakiyimba, PW3. They met the appellant on the way. The appellant
called the deceased and asked her to assist him to carry something
for him,
though the appellant did not have anything with him to be carried. The deceased
gave her books to PW3 before she accompanied
the appellant. PW3 took the books
to the deceased's grand father, Mr. Kaggwa and informed him that the deceased
had gone with a man.

When the deceased failed to return, a search for the appellant and the
deceased was mounted. After ten days of fruitless search with
the assistance of
the Police, a decision was taken to seek the assistance of the Military Police.
Within a short time, the appellant
was arrested by the Military Police from his
hiding place at Mengo Kisenyi, Kampala. The appellant was taken back to
Sekiwunga village
from where the deceased had disappeared. The appellant led the
search party to where the body of the deceased was found hidden. The
body of the
deceased was taken to Entebbe Hospital and later transferred to Mulago Hospital
for post mortem. Although the post mortem
report was not tendered in evidence,
the learned trial judge believed the prosecution witnesses who saw the body of
the deceased
and stated that the neck had been cut but the head remained
attached to the body. The stomach had been cut open vertically, the legs
severed and the private parts, intestines and heart had been removed.

PW3 identified the appellant at an identification parade who was eventually
charged with murder. In his defence at the trial, the
appellant denied the
murder charge and stated that he was arrested at Mengo Kisenyi by armed men who
took him to Army Barracks from
where he was taken to Sekiwunga village to point
out where he had got firewood. While he was pointing out where he had seen
of firewood some villagers saw the body of the deceased. Thereupon the
Military Police arrested him and assaulted him before taking
him to Entebbe
Police Station from where he was picked at an identification parade by a child
he had seen before in the village where
he used to collect firewood. He denied
making a statement at Entebbe Police Station. He stated that D/lP Balikowa, PW4,
asked him
two questions in swahili after which he, PW4, asked if he knew how to
write his name. When he (appellant) answered in affirmative,
PW4 asked him to
sign his name on the statement so that he would release him. The appellant
signed the statement but instead of releasing
him the Police Officer charged him
with the murder of the deceased.

The learned trial judge rejected the
defence and believed the prosecution evidence on the basis of identification of
the appellant
by PW3 and his own repudiated/retracted confession in which he
implicated himself. She found him guilty, convicted and sentenced
him to death.
His appeal to the Court of Appeal was dismissed. He has now appealed to this
Court on three grounds which were argued

The first ground complained that the learned Justices of Appeal erred in
mixed law and fact in relying on the retracted and repudiated
confession that
was not properly admitted in evidence.

Ms. Owor, counsel for the appellant submitted, on 1st ground, that
the Justices of Appeal erred in holding that failure to follow guidelines
contained in the Chief Justice's circular
was not fatal to the conviction. She
submitted that the appellant's statement to PW4 ought to have been recorded in
Luganda which
the appellant spoke but not in English. She cited the Uganda
Police Standing Orders 7th Ed (1984) Rules 20, 21 and 26 (2) (3)
which inter alia require the recording officer to record the statement of
suspect in the language
spoken by the suspect. She submitted that this was
mandatory and yet the recording officer recorded the statement in English. She
contended that the issue of voluntariness of the appellant's statement was
crucial and argued that the issue of voluntariness of
the statement depended on
the procedure adopted by the recording officer. In the circumstances, she
submitted that the statement
ought not to have been admitted as its
voluntariness was in question. Counsel further complained that the learned trial
judge never
made a ruling on 1st complaint which concerned recording
of the statement in English instead of Luganda. The other complaint was that the
appellant signed
the statement after he was induced that if he signed the
statement he would be released.

Mr. Mulumba, PSA, for the respondent opposed the appeal. He submitted that
the Justices of Appeal properly upheld that though the
procedure in recording
the charge and caution statement from the appellant breached the guidelines
contained in the Chief Justice's
circular, failure to follow the guidelines was
not fatal to the conviction, since the recording officer cautioned the appellant
Luganda, and the appellant gave his statement in Luganda which the recording
officer knew even though he recorded the statement in
English. He further
submitted that the Justices of Appeal properly upheld the conclusions of the
trial judge on the charge and caution
statement and rightly held that failure to
comply with guidelines by recording officer was not fatal.

With due
respect to counsel for the appellant we reiterate what we stated in the
S.C Criminal Appeal No. 16/1997 Namubiru V Uganda
(unreported) that the Evidence (Statements to Police Officers) Rules
were revoked when the old section 24 of the Evidence Act was
repealed by Decree
24 of 1971. See also our decision in Festo Andera Asenua and Another V
Uganda S.C Criminal Appeal No. 1 of 1998

The relevant Section 23 of the Evidence Act, (section 24, in 1964 Edition)
provides as follows:

"(1) No confession made by any person whilst he is in the custody of a
Police Officer shall be proved against any such person, unless
it is made in the
immediate presence of -

(a) a Police Officer of or above the rank of Assistant Inspector,

(b) a magistrate.

(2) The Minister may, after consultation with the Chief Justice make rules
prescribing generally the conduct of procedure to be followed
by Police Officers
when interviewing any person and when recording a statement from any person in
the course of any investigation."

The Chief Justice in his directive Reference CJ/CB dated 2nd March
1973, to all magistrates on recording of extra judicial statement referred to
that section and said :-

"This section is designed to ensure that any statement made by a person
in police custody is voluntary. If, therefore, such a person
is brought before a
magistrate for the purpose of recording a statement from him, the magistrate
must ensure that no force, threat,
promise or any form of inducement is offered
to or allowed to operate on the person to induce him to make a

The learned Chief Justice set out the procedure to be followed and this court
reproduced the procedure in the case of Festo Andrea Asenua

We would observe that the learned trial judge was alive
to the question of following proper procedure when Police record charge and
caution statements from accused persons. She dealt with the complaint

"I would, however, remark that although there is nothing wrong with the
method used by Assistant Inspector Balikowa in recording accused's
charge and
contain statement, a better method should have been recording the statement in
the language used to communicate with the
accused. Later, the statement so
recorded would be translated into official language - English. The method that
Balikowa used is
short-cut probably designed to save time that is necessary for
a busy schedule. It carries with it risks of the statement being declared
inadmissible. The longer and rather cumbersome method is

On the complaint that the accused was induced to sign the statement with the
promise that he would be released once he had signed
the statement, the learned
trial judge found that the appellant told a lie. She held:-

"He cannot say that Balikowa talked to him in a language he is
illiterate in (English) and he did not understand, then in the same
breath tell
court that he understood only that portion of their communication which
tantalised him with the promise of release if
he signed the statement. The
accused talked with
Balikowa in Luganda which by his admission he
understands. That indeed is my finding."

After hearing evidence and arguments from both sides the learned trial judge
concluded that the accused's charge and caution statement
was admissible. She
found that it was freely and voluntarily made and that it was not induced by
threats or violence. Nor was it
a product of a promise made by Balikowa (who in
any case was not an investigating officer) that the accused would be released
he signed the statement. She concluded as follows:-

"I find the statement to he the correct recording (in English) of what
the accused communicated to Balikowa. The statement was read
back to accused in
Luganda. He approved it and signed."

The learned Justices of Appeal found that the procedure adopted by the
recording officer of the statement - breached the guidelines
contained in the
Chief Justice's Circular but held that the circular was only guideline and that
failure to comply with it was not
fatal to the conviction, because what was
relevant for the admissibility of the confession was that it must be

The Justices of Appeal further found that the learned trial
judge, after conducting a trial within a trial, had found that the statement
freely and voluntarily made. It had not been induced by threat or violence nor
that he would release him if he signed the statement.

We agree with the
conclusions of both courts. In the result, ground one must fail.

second ground complained that the Justices of Appeal was that they erred in
mixed law and fact by failing to consider the poor
legal defence accorded to the
appellant at the High Court. Ms. Owor counsel for the appellant cited the case
of Kawoya Joseph V Uganda SC Appeal No. 50/1999
(unreported) and Lobo V Salim (1961) EA 223, to
support her argument.

With due respect to counsel, the instant case is distinguishable from
Kawoya's case (supra). Although counsel in this trial may in some
aspects of the conduct of the defence have been casual, before the High Court,
the appellant himself, never raised any complaint before the trial judge. In
Kawoya case (supra), where Kawoya was called to defend
himself and stated:-

"I will not give evidence and I have no witness to call because my
lawyer is bent on my losing the case. I will not say

Clearly in that case that utterance showed that
counsel had acted contrary to the appellant's instructions.

In the instant case, the appellant did not complain before the High Court
against counsel's conduct of his defence. Furthermore, the
issue was not raised
in the Court of Appeal, to warrant a complaint that it was wrongly decided. Rule
81(1) of the Rules of this
Court provides as follows:

"81(1) A memorandum of appeal shall set forth concisely and under
distinct heads without argument or narrative; the grounds of objection
to the
decision appealed against, specifying the points which are alleged to have been
wrongly decided, and the nature of the order
which it is proposed to ask the
court to make. "

Therefore, in our opinion the criticism against the Justices of Appeal that
they erred in mixed law and fact by failing to consider
the poor legal defence
accorded to the appellant at the High Court is unjustified. The issue was never
raised for consideration by
the Court of Appeal. In the result this ground must

The third and last ground complained of is that the learned Justices of
Appeal erred in law by failing to subject the entire record
to fresh scrutiny
and evaluation thereby occasioning miscarriage of justice. Ms. Owor submitted
that the Justices of Appeal failed
to re-evaluate the evidence on record. On the
other hand, Mr. Mulumba, P/SA submitted that the Justices of Appeal properly
the entire record to scrutiny and came to the right

The Justices of Appeal re-evaluated the evidence concerning
the circumstances of how the appellant came to be arrested, his extra
statement and his identification by a single identifying witness and concluded

"Although identification of an accused person can he proved by the
testimony of a single witness, this does not lessen the need for
testing with
the greatest care the evidence of such witness regarding identification,
especially when the conditions favouring correct
identification are difficult.
In such circumstances what is needed is other evidence pointing to guilt from
which it can be reasonably
concluded that the evidence of identification can
safely be accepted as free from possibility of error. The true test is not
the evidence of such witness is reliable. The true test is whether the
evidence can be accepted as free from the possibility of error.
See Tomasi
Omukono & Another V Uganda Cr. Appeal No. 4 of 1977 reported in (1977) HCB

They also cited with approval the case of Abudalla Nabulele &
Others V Uganda Cr. Appeal No. 9 of 1979 reported in (1979) HCB 77
and considered the finding of the trial judge on identification of
the appellant where she held inter alia:

"I have carefully considered Nakiyimba's evidence of identification of
the accused. I am satisfied that she observed the accused on
the 18/3/97 when
the accused took Namutebi. She was sharp enough to report her observation to
Kaggwa, Namutebi's grand father.

Nakiyimba later saw the accused at a bush in Sekiwunga as he led people
to Namutebi's body. She later correctly identified the accused
at Entebbe Police
Station. 1 believe that in identifying the accused Nakiyimba was not assisted by

The Justices of Appeal found that although the learned trial judge had
properly directed herself and the assessors to the danger of
reliance on the
evidence of PW3 alone to connect the appellant with the offence, they were
unable to agree that in the circumstances
of the case, PW3's evidence of
identification would rule out any mistake on her part, because the appellant was
a complete stranger
to her when she said she saw him (appellant) take the
deceased. Secondly, although the incident happened during day time, there was
evidence regarding length of time she took in observing the appellant. Thirdly,
PW3 being young, due allowance for her immaturity
had to be taken into account.
Fourthly, they attached less importance to her identification of the appellant
at Sekiwunga village
where the body was found since the appellant was the
suspect brought to the scene. Fifthly since the appellant was the man in the
hands of Police some ten days earlier at Sekiwunga village, the identification
parade at Entebbe Police -Station was valueless. The
Justices of Appeal however
concluded as follows:

"In the circumstances, with respect, we think that the learned
trial judge should not have placed any evidential value on the evidence
of PW3
regarding identification parade and her identification of him in the bush. In
our view, the condition were not favourable
for correct identification.
Consequently other evidence was necessary which would point to the guilt of the
appellant and from which
it could reasonably be concluded that PW3's evidence of
identification was free from a possibility of error. Such evidence was available
on the record and we think the learned trial judge was right to rely on it to
conclude that PW3's evidence of identification was
free from possibility of

We need only to refer to few of the circumstantial evidence the learned
trial judge relied on. The first was the sudden disappearance
of the appellant
after the incident from Sekiwunga village where he had been a regular visitor.
The second was the discovery of the
body of the deceased not so long after the
arrest of the appellant. The evidence on record shows that the villagers started
to search
for the girl soon after PW3 reported to Kaggwa, the deceased's grand
father. Kisubi Police joined in the search on 19/3/97. When
the combined search
party made up of the Police, villagers were not getting any results, the
Military Police was brought in on 28/3/97.
The appellant was arrested on the
same day. The following day on the 29/3/97 the body was found. It was not a
matter of coincidence
that the body was found in the bush where the appellant
used to collect firewood. The judge was right to reject the appellant's claim
that it was the villagers who found the body. There is also his charge and
caution statement, Exh. PI, which implicates him in the
murder of the

In our view, the evidence of identification supported by the other
evidence we have alluded to above destroyed the appellant's alibi.
The judge was
right in so finding. "

In our view, the Court of Appeal cannot be faulted in its re-appraisal of and
conclusion on the evidence as indicated in the above
passage. Therefore ground
three must tail. In the circumstances this appeal must fail. It is accordingly

Dated at Mengo this: 30th day of
November 2004.