Court name
Supreme Court of Uganda
Judgment date
18 May 2004

Kasirye Hamuza, Cpl and Ors v Uganda (Criminal Appeal-2001/44) [2004] UGSC 36 (18 May 2004);

Cite this case
[2004] UGSC 36

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT
OF UGANDA

AT MENGO

CRIMINAL APPEAL NO. 44
OF 2001


(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KATO,
JJSC.)

1. CPL KASIRYE
HAMUZA)
2. PC MUSINGO PETER
)
3. NURU KONDE WAISWA)
::::::::::::::::::::::
APPELLANTS
4. NDOLERIRE FRED
)
5. SGT KULE DENNIS
)

VERSUS

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

(Appeal from the Judgment of the Court of Appeal at
Kampala (Mukasa-Kikonyogo, DCJ, Okello and TwinomuJuni JJ.A) dated 28/8/2001 in
Criminal Appeal No. 70 of 1999).

JUDGMENT OF THE COURT

This is a second appeal. The appellants were convicted by the High Court on
five counts of aggravated ro b bery contrary to Sections 272 and
273 (2) of the Penal Code Act. The fifth appellant was, in addition, convicted
of murder contrary to sections
183 and 184 of the Penal Code Act, in count one.
They appealed to the Court of Appeal which allowed the appeal on count one as
regards
the fifth appellant and counts 3,4 and5 in respect of all the
appellants. The appeal was dismissed in respect of counts 2 and 6.
The appeal
before us now is in respect of those two counts.

The brief facts of the case as presented before the trial court and accepted
by it are as follows:

The appellants planned to go and ro b a coffee factory belonging to
one Sentongo Salongo at Jinja. The fourth appellant Fred Ndoleire hired a car
Reg. No. UBG 969 from
a tours agent known as Equator Tours and Travel Company in
Kampala for the purpose of accomplishing the plan. On 7/5/1996, Kasirye
and
Ndolerire, the first and fourth appellants respectively, left Kampala for Jinja,
in the said vehicle which was driven by Hamuza
Kasirye from Kampala to Jinja.
On reaching Jinja the two went to the home of the third appellant, Nuru Konde
Waiswa, where they were
joined by the other appellants and o btained two
pistols. The group then proceeded to the place of the intended ro b bery. On
arrival at the factory
Kasirye was recognised by the workers who greeted him as
a person whom they knew before. Thereupon Kasirye told his fellow ro b
bery
conspirators that the mission was impossi ble. The planned ro b bery in that
place was a bandoned. The team decided to go and
carry out ro b beries elsewhere
to avoid going back empty-handed. In order to execute the new plan, the group,
which at that time
did not include Nuru Konde Waiswa and Fred Ndolerire,
proceeded to Kamuli where they committed a num ber of ro b beries and one
murder.
The appellants were later on arrested at different places and times,
Kasirye, Musingo and Ndolerire made charge and caution statements
to the police,
but the trial Judge rejected them; he however admitted in evidence the
statements made by the same appellants to
the magistrate grade I, Mr. Auguandia
Godfrey Opifen, (PW7).

At the trial, all the appellants denied ever having committed the offences.
Each of them gave different defences. Kaisrye admitted
having been present when
the offences were being committed but he pleaded that he was acting under
compulsion. Musingo, Nuru Konde
Waiswa and Sgt. Denis Kule pleaded ali bi. Fred
Ndolerire, while admitting that he hired the vehicle from Kampala to Jinja, he
denied
that it was for the purpose of committing any offence. It was for the
purpose of collecting his de bts.

The learned trial judge rejected all the defences and convicted the
appellants and sentenced each of them to death. Hence this appeal.

The first appellant Kasirye Hamuza (A1) framed two grounds in support of his
appeal. They are: -

1. The learned
Justices of Appeal erred in law and fact when they upheld the trial Court's
finding that the doctrine of common intention
applied to the first
appellant.
2. The learned
Justices of appeal erred in law and fact when they upheld the trial
court's dismissal of the first appellant's defence of
compulsion.



Mr. Steven Mu biru who
appeared for this appellant, argued the two grounds separately. On the
first ground he su bmitted that the Justices of Appeal
were wrong when they held that the appellant shared a common intention with the
other appellants and that the appellant's counsel conceded
to that fact when there was no evidence to support that finding. According to
him, the appellant's counsel
at the trial conceded only to what happened at the
factory where the original plan a borted but not what took place later. Mr. Mu
biru further su bmitted that although the appellant took part in the hiring of
the vehicle he did not know that those who hired it
were going to use it for
stealing.

Mr. Michael Wamase bu Assistant D.P.P, who appeared for the respondent,
conceded that the Justices of Appeal were not correct when
they held that Mr.
Muguluma had conceded before them that the appellant had willingly participated
in the commission of the offences.


This is what their Lordships said
on this point:



"Mr. Edward Muguluma Damulira learned counsel for the first appellant
conceded that from the on set up to the site of the planned
robbery which
aborted the appellant was part and parcel of the plan to
rob".

With due respect to their Lordships, this passage does
not agree with what Mr. Muguluma said in that court according to the availa
ble
record. The following statement is what Mr. Muguluma said: -





"Mr. Mugulama for A1 states it is our submission that A1 had
nothing to do with the plan to rob Haji Sentongo of Jinja.
A1 was a mere
hire driver he was hired on 7/5/96 by Ndolerire "

We agree
with counsel on both sides that the holding by the Court of Appeal a bout the
purported concession by Mr. Muguluma concerning
appellant's participation in
the commission of the offences was not based on what was on the record. Mr.
Muguluma only conceded
to the appellant having been hired to drive a
vehicle from Kampala to Jinja.

On the issue of common intention, Mr. Wamase bu su bmitted that the
appellant was not a mere innocent driver who did not know for what the vehicle
had been hired. According to him the appellant must have known that the vehicle
was to be used in the ro b bery, as he was instrumental
in getting the vehicle.
He deceived the owner of the vehicle that it was to be used for
campaigning.


As far as this particular appellant was concerned, the
issue of common intention was not raised in the Court of Appeal,
so it was never considered. The court
dealt with the issue only in respect to Nuru
Konde whom the court found to have had common
intention. Since the question of common intention is a
matter of mixed law and fact, we have to consider it.

The appellant's own testimony shows that the appellant drove the
vehicle from Kampala up to the point when it got involved in an accident
after
the ro b beries had been committed. He raised the issue of compulsion to which
we shall return shortly. After considering
all the availa ble evidence we are
satisfied that the appellant had a common intention with the
other appellants to commit the ro b beries, which are the su
bject of this appeal. We are of the view that if
this point had been raised in the Court of Appeal, in view of the availa ble
evidence, that court would have
come to the same conclusion that there was
common intention between the appellant and the other appellants.
Ground 1 of the appeal must fail.


On the
second ground of appeal, Mr. Mu biru su bmitted that
their Lordships were wrong in holding that the appellant was not acting under
compulsion at the time the offences were being
committed. He attacked the
finding of the court that the appellant had said that he had been
recognized at the factory and that he and
others had decided to go to Kamuli to ro b. In his
view the evidence in support of that finding should
not have been admitted as it was hearsay from PW3 who was
not present at the scene. According to him the appellant
was not a willing participant, he was forced to do whatever he did by the armed
ro b bers.
Learned counsel relied on the authority of: Shepherd v R
(1988) 86 Cr. App. R. 47.

Mr. Wamase bu argued that the appellant was not acting under any duress as he
even went to check on his sister during the journey
for commission of the ro b
beries. According to him, if the appellant was under duress he could not have
failed to mention that fact
in his confession which he made before
the magistrate. He contended that the defence of
compulsion was not availa ble to the appellant.

Section 16 of the Penal Code Act sets out
circumstances under which an accused person can
rely on the defence of compulsion.



The section reads:

" A person is not criminally responsi ble for an offence if
it is committed
by two or more offenders, and if the act is done
or omitted only
because during the whole of the time in which it
is
being done or omitted the person is compelled to do or omit to
do the act
by threats on the part of the other offender or
offenders instantly to kill him or do him grievous
bodily harm if
he refuses;
but threats of future inJury do not excuse any
offence."

In the instant case, the defence was raised at
the trial and before the Court of Appeal. Both courts considered the defence
and rightly,
in our view, rejected it. The assessors also rejected it. The
conduct of the appellant before and after the ro b beries cannot
be said to
be that of a person who was acting under compulsion. Although the appellant in
his statement to the Magistrate

(PW7) kept on using expressions like "I was directed" or "I was ordered" that
does not necessarily mean he was not a willing participant or
he was acting under compulsion. The Shepherd case (Supra),
which was cited to us by the appellant's counsel, is distinguisha ble from the
present case. Firstly, in that case
the question of compulsion was not put to
the jury, unlike in the present case where the learned trial judge clearly
summed up to
the assessors on the issue of compulsion. Secondly, in that case
one of the persons, whom the appellant alleged to have forced him
to participate
in the theft, actually assaulted the appellant at the court premises when the
hearing of the case was going on, which
was not the case in the present case.
First appellant's second ground of appeal must fail.


The second
appellant, Musingo Peter (A2) raised 3 grounds of appeal but the second ground
was a bandoned. The remaining two grounds,
which were argued before us,
are:





1. That the Honourable Justices erred in law and fact when they relied
on extra-judicial confessions to confirm the conviction whereas such
extra-judicial
confessions were not
corroborated.

2

3. That the Honourable Justices erred in law and fact when they relied
on common intention to confirm the conviction whereas the principles of common
intention
were not proved by the prosecution.

Ms. Diana Musoke, who appeared for this appellant, argued the two grounds
separately. On the first ground she su bmitted that the
Court of Appeal erred
when it relied on the confession of Ndolerire (A4) to convict the second
appellant. According to her, that
confession did not show that the appellant was
in any way involved in the commission of the offences. In her view, the
confession
only showed that the appellant moved with those people. On the second
ground she su bmitted that the appellant did not have any common
intention with
those who were involved in the commission of the offences nor did he take
part in the ro b beries.


On his part, Mr. Wamase bu argued that the
confession made by Ndolerire against the appellant was corro borated by the
evidence
of Fa biano Byantalo (PW1) and that of Kiyim ba (PW2). In his view
there was overwhelming evidence against the appellant who had
a common intention
with the other ro b bers.


We shall consider the two grounds together.
Not only did the second appellant have common intention with the other ro b bers
but he
actively participated in the ro b beries. This appellant was
identified at the scene of crime by Fabiano
Byantalo (PW1), Ro bert Kiyim ba (PW2) and Ngo bi Kasi ba Godfrey (PW5). The
Court of appeal, in our view, properly evaluated
the evidence incriminating the
second appellant as the following passage shows:





"In the instant case PW1 and PW2 identified appellant No.2 at different
scenes of crime on the same day during a broad daytime. PW1
described the
appellant as the person who had a pistol and was the very person who ordered the
driver to get out of the motor vehicle.
He was the person who ordered the
witness to remove his wristwatch. He was also the person who took from the
witness's pocket cash
of Shs. 65,000/=. PW1 stated that the operation lasted for
3 minutes.




PW2's testimony also corroborated that of PW1 that A2 was the person who had
a pistol. PW2 stated that he identified this appellant
better when the appellant
was moving around some 5 to 6 meters from the vehicle. It was about 5 p.m. and
the operation lasted 5 minutes.
He had known the appellant before because he had
trained with him as policemen at Masindi Police Training School. After the
training,
he lived with him at Naguru Police barracks for 1 1/2

years before they again returned for further training together. From the
above evidence, we are satisfied that the identification
of appellant No 2 by
PW1 and PW2 could not have been mistaken. The conditions under which he was
identified favoured correct identification"

With due respect to the learned counsel for the appellant, we do not agree
that the appellant's conviction was based on the confession
of the fourth
appellant. The conviction was based on the identification evidence as indicated
a bove. We, however, agree with her
when she says that Fred Ndolerire does not
specifically mention the name of the appellant as Peter Musango. Be that as it
may, Peter Musingo was properly identified at the
scene of crime by PW1 and PW2. He could have been
convicted even if the confession of Ndolerire was to be ignored. We find no
merit in the two
grounds of appeal, which must fail.

That leads us to the case of the third appellant, Nuru Konde Waiswa (A3). The
appellant lodged 6 grounds of appeal but the second ground was a
bandoned. The remaining 5 grounds which were argued are:

1. That the learned Justices of Appeal erred in law and in fact
when they upheld the finding that the Appellant No.3 housed the robbers and
issued them
with guns which were kept at his place for operation and as a result
came to a wrong decision.

2

3.That the learned Justices of appeal erred in law and in fact when
they upheld the finding that there was common intention.

4.That the learned Justices of Appeal erred in law and in fact when
they held that the extra-judicial statement of Ndolerire was rightly used
against
his co-accused and as a result arrived at a wrong decision.

5.The learned Justices of Appeal erred in law and in fact when they
failed to find in favour of the appellant the contradictions in the prosecution
case.

6.That the learned Justices of Appeal failed in law and in fact to
evaluate evidence as a whole.



The gist of Mr. Muguluma's su
bmission was that their Lordships in the Court of Appeal were wrong to base
their decision on the confession of Ndolerire who was an
accomplice with the third appellant. He contended
that Ndolerire in his confession did not say that the guns were supplied
by the third appellant. He also argued that since
Ndolerire did not spend a night at the home of the
appellant he could not tell who slept there.


Mr. Wamase bu conceded
that there was no evidence to corro borate Ndolerire's confession
against the appellant who was an accomplice. In his view the
evidence which would have corro borated the confession was found to
be inadmissi ble.

The case against this particular appellant was that he accommodated the ro b
bers a night before the ro b beries and that on the
fateful day he
provided them with the guns, which were used in the ro b beries. There is
no dou bt that the conviction of this appellant was su bstantially
based on the
confessional statement made by his co-accused. Section 28 of the Evidence Act
makes it lawful to take into account
co-accused's confession incriminating a
fellow co-accused with whom he/she is being tried together. The appellant in
this case is
not only a co-accused but an accomplice with the fourth appellant.
The law relating to the evidence of an accomplice is contained
in section 131 of
the Evidence Act which reads thus:



"131. An accomplice shall be a competent witness against an accused person
and a conviction is not illegal merely because it proceeds
upon the
uncorroborated testimony of an accomplice".

Although the law
as stated a bove does not require corro boration in support of accomplice's
evidence, a practice has developed in
our courts requiring corro boration or in
its a bsence a warning by the judge to himself and assessors on the danger of
basing
a conviction on uncorro borated evidence of an accomplice. (See:
Fabiano Obel & Others
-V- Uganda (1965) EA 622). The learned
trial judge was alive to this practice, for in his judgment, he said:



"Haji also told PW6 Sgt Walimbwa that it was Mukonjo A6 who shot
Mudooba. This would also be accomplice evidence and the law on accomplice
evidence is
clear.
Such evidence should not be used as a basis for
conviction. Rather it lends assurance to other evidence. It would therefore
require
corroboration by some other independent
evidence".

In his summing up notes to the assessors he said:-"Accomplice
Evidence
:


Court not to rely on this as a basis for a conviction. Usually desirable to
get corroboration from some independent
evidence".


The learned trial Judge however, did not correctly apply the a bove principle
to the facts relating to the case of the
third appellant. The assessors were not
satisfied with the evidence against this
appellant so they advised that he be
acquitted.

The Court of Appeal glossed over the issue
and concluded that the statement of co-accused Ndolerire could be used to
convict the appellant. Had both courts isolated
the position of the appellant
from that of the other appellants, they (courts) would have found that there was
no independent evidence
to corro borate Ndolerire's
confession against this appellant. We agree with Mr. Muguluma's
contention that in his confession Ndolerire did not specifically say that the
appellant had given the guns to
the ro b bers, he simply said:

"That is all. Another point probably is that these guns which were used were
picked. I believe, from Haji's place in Jinja".

That statement clearly shows that Ndolerire was not sure that the guns were
picked from the appellant's home.

We agree with the su bmissions of both counsel that the statement of
Ndolerire was not sufficiently corro borated to warrant the
third appellant's
conviction. The issue of common intention could only be considered against him
if there was some other evidence
incriminating the appellant in the commission
of the ro b beries. The appellant's grounds 1,3 and 4 of appeal must
succeed.


In view of our decision on grounds 1, 3 and 4 we
see no point in considering grounds 5 and 6.

There are four grounds of appeal in respect of the fourth appellant,
Fred Ndolerire, (A4)|They are: -

1. That the learned
Justices of the Court of
Appeal erred in law in upholding
the finding of the learned trial judge that the extra judicial statement made by
the 4th
Appellant before the Magistrate was
voluntary.
2. That the learned
Justices of the Court of
Appeal erred in law and on the
facts in holding that the extra judicial statement made by the 4th
Appellant was a full confession of the offences indicted on the
2ndand 6th counts and that the said extra judicial
statement was sufficient to support the conviction of the 4th
appellant of the offences of aggravated robbery indicted on the 2nd
and 6th
counts.
3. That the learned
Justices of
Appeal erred in law and on the facts in upholding the
finding of the trial judge that the 4th appellant had shared a common
intention with his co accused to travel from Jinja to Kamuli and commit
the offences of robbery with aggravation indicted on the 2nd and
6th counts.
4. That
the above errors occasioned a miscarriage of justice to the
Appellants.

Mr. Emesu, who represented
the appellant in this appeal, argued the grounds generally. He su bmitted that
the trial within trial was
not conducted properly as far as his client was
concerned. According to him that trial was in respect of A1 and A7 therefore it
was
wrong for the trial judge to hold that the trial within trial had proved
that the appellant had made his statement voluntarily. In
his view that trial was held prematurely as the appellant's statement had
not yet been tendered for consideration by the court. He further
contended that their Lordships were wrong to
hold that the appellant's statement was a full
confession, because the confession was in respect of an offence
which was not committed, on this point he cited: R V Mali Kiiza s/o
Lusota (1941) 8 EACA 25. In his view, the
appellant's statement was not relevant to what happened
in Kamuli after the original plan at Jinja had a borted. According to the
counsel, the circumstantial evidence concerning the hiring of the
vehicle by the appellant was not enough to warrant
his conviction, as there was no common intention in
respect of what happened at Kamuli.

Mr. Wamase bu conceded that there was an irregularity in the
way the trial judge handled the trial within trial concerning this appellant.
He, however, argued that the irregularity
had been cured by the appellant
having been given a chance to testify in the trial within trial. He contended
that the confession
was voluntarily o btained as the magistrate who wrote the
confession testified that there were no threats at the
time the confession was being made. Mr. Wamase bu, further argued
that the confession was not confined only to what happened at Jinja
but was
extended to Kamuli under the doctrine of "Transferred intention". As the
appellant facilitated the ro b bers with transport and fuel and the ro b beries
were actually committed, he had common intention
to commit the ro b
beries.

The record shows that the first complaint by Mr. Emesu
was not raised in the Court of Appeal. Ordinarily we
would not have considered that point but in interests of justice we
have decided to consider it.


As rightly conceded by Mr.
Wamase bu, the manner in which the trial within
trial was conducted in respect of the fourth appellant was
irregular. It was not proper for the trial Judge to proceed with the trial
within trial in respect
of this appellant when the ground for such a trial had
not been laid. The proper procedure to be followed was for the
prosecution to call the person who recorded the confession to testify a bout it
and if
the defence o bjected to the admissi bility of that confession then a
trial within trial would have been conducted. We are, however,
of the view that
the irregularity did not cause any miscarriage of justice as the
appellant in fact testified in the trial within trial proceedings. His
active participation in the proceedings cured the
procedural irregularity.

On the issue of the appellant's confession not having been voluntary, we are
satisfied that the Court of Appeal was justified in
holding that the confession
was voluntarily o btained. Their Lordships finding, with which we agree, was as
follows: -



"Clearly, there was no way the appellant could have seen a policeman
standing outside the Magistrate's chambers pointing a gun at the
appellant while
his statement was being recorded. That claim cannot be true. As for the alleged
earlier threats, we think that, the
caution administered to the appellant by the
Magistrate before recording the appellant's statement effectively removed them.
We are,
therefore, satisfied that the extra-judicial statement was voluntary and
was rightly admitted in evidence."


With due respect to Mr. Emesu, we do not agree with his contention that the
appellant's confession was irrelevant to what
happened in Kamuli and that he had no common
intention with those who went to ro b
there. The purpose of hiring the vehicle
was to use it for ro b bery, it is immaterial where that ro b bery was
eventually committed. The appellant had a common intention
with that group which
went to Kamuli with the vehicle hired by him, although he remained in Jinja.
According to his evidence in
court and that of the first appellant, Hamuza
Kasirye, the appellant refueled the vehicle while in Jinja; his explanation that
the
fuel was intended to take the vehicle back to Kampala cannot be true in
view of what happened. The Court of Appeal, correctly in
our view, held that the
appellant was criminally lia ble under the doctrine of common intention. We find
no merit in the grounds
of appeal raised by the appellant. They must
fail.


The fifth and last appellant Sgt. Kule Denis (A5) presented
four grounds of appeal: -

1. That the learned Justices of appeal erred in law and fact in
finding that the accomplice evidence of A1 put the appellant at the scenes of
crime

2. That the learned
Justices of Appeal erred in law and fact in upholding the identification
evidence of PW1 and PW2 as a basis for
conviction.
3. That the learned
Justices of Appeal erred in law and fact in rejecting the Appellant's
defence of alibi.
4. That the
learned Justices of Appeal erred in law and fact in confirming the
conviction of the Appellant without a thorough re-evaluation of the evidence
on
record.

Mr. Kunya who represented the appellant argued the four grounds separately.
On the first ground he su bmitted that the Court of Appeal
should not have
based the appellant's conviction on the evidence of the first appellant who was
an accomplice and who had a reason
for implicating the fifth appellant and that
reason was not considered by the two courts below.

On the second ground he argued that the evidence of PW1 and PW2 was not credi
ble, as the two witnesses did not know the appellant before and
conditions favouring correct identification did not exist. As for the third
ground the learned counsel contended
that the Court of Appeal and the trial
court did not consider the appellant's defence of ali bi, had that defence been
considered
a dou bt would have been raised in favour of the
appellant.
Regarding the fourth and last ground, the counsel su bmitted that
there were points, which were raised at the trial but were never
considered by
the court. He gave as an example, the manner in which the appellant was arrested
at Kirinya prison where he had been
detained for a different offence of trading
without a licence.

On his part, Mr. Wamase bu, su bmitted that there was
overwhelming evidence against the appellant. That
evidence was to be found in the testimonies of PW1 and PW2 and
the confessions of A1 and A4. He contended that conditions for correct
identification of the appellant
existed.

In our view, the first three grounds of appeal were a bly handled by
the Court of Appeal as follows: -



"The main complaint in grounds 3 and 4 was that the trial Judge
accepted wholesale the prosecution case and rejected the appellant's alibi
without giving it judicious consideration. We find
no merit in this complaint.
The accomplice evidence of A1 put the appellant at the scene of crime. That
evidence was amply corroborated
by clear evidence of identification by PW1 and
PW2. as seen above the evidence of identification was thorough. The witnesses
described
clearly the parts played by the appellant in the commission of the
offence. That ruled out the alibi put by the appellant"

In
our opinion the Court of Appeal was justified in reaching the a bove decision.
The appellant's conviction was not based on the
evidence of the first appellant
alone but also the evidence of PW1 and Pw2 who saw the appellant at the scene
of crime. Even if
the evidence of the first appellant were to be ignored,still
the fifth appellant would have been convicted on the evidence of PW1
and PW2.
That disposes of grounds 1, 2 and 3 raised by the appellant's counsel. The
three grounds must fail.
As for the fourth and last ground of appeal where
the counsel complained that the court did not consider the manner in which the
appellant
was arrested, we would like to say that the point was not
relevant to the outcome of this case. The court having rejected appellant's
defence
of ali bi, it is immaterial whether the appellant was arrested while at
Kirinya Prison or somewhere else. The appellant's story that on 7/5/1996
he was in Kasese where he had gone to buy some clothes was, in our view,
rightly rejected by the trial court and the Court of Appeal which believed the
evidence of prosecution witnesses (PW1 and PW2)
plus the evidence of the first
appellant who saw the appellant committing the offences. The fourth ground of
appeal must also fail.
In conclusion, we find no merit in the appeals of Cpl
Kasirye Hamuza (A1), P.C. Musango Peter (A2), Ndolerire Fred (A4) and Sgt Kule
Dennis (A5) Their appeals are accordingly dismissed.
We have, however, found
merit in the appeal of Nuru Konde Waiswa (A3). His appeal is allowed. The
convictions on both counts are quashed and the sentence imposed upon him is set
aside. Unless
he is being held in Prison for some other lawful purpose,
he is to be set free forthwith.



Dated at Mengo this 18th day of May
2004.

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

J.N. MULENGA
JUSTICE OF THE SUPREME COURT

C.M. KATO
JUSTICE OF THE SUPREME COURT