THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, C.J, TSEKOOKO, MULENGA, KANYEIHAMBA AND KATUREEBE, J.J.S.C.)
CRIMINAL APPEAL NO. 20 OF 2005
B E T W E E N
AREET SAM :::::::::::::::::::::::::::::::::::::::::::: APPELLANT
A N D
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal arising from the judgment and decision of the Court of Appeal at Kampala (Okello, Byamugisha and Kavuma, J.J.A), dated 5th March, 2004 in Criminal Appeal No.11 of 1998]
JUDGMENT OF THE COURT
The appellant together with one David Omujal were indicted, tried and convicted by the High Court (Arach-Amoko, J), at Soroti, of murder contrary to Sections 183 and 184 of the Penal Code and sentenced to death. They appealed to the Court of Appeal against both conviction and sentence. Before the hearing of their appeal, David Omujal died in prison custody and his appeal abated. The learned Justices of Appeal heard the appeal of the present appellant which they dismissed. He has now appealed to this court. There is only one ground of appeal framed as follows:
“1. That the learned Justices of Appeal grossly erred in law and fact when having found that the confession was inadmissible, failed to reevaluate the evidence before upholding the conviction”.
Counsel for the appellant, M/S Omonding, Ojakol and Okallany and for the appellant, Mr. Michael Wamasebu, Assistant Director of Public Prosecutions filed written submissions.
The facts of the case as summarized in the judgment of the Court of Appeal are as follows:
The deceased, Raymond Kwapi and his wife, Demetria Akiteng (PW1) were asleep in their house at Agurut village in Nyero Sub-county, Kumi District when around 9p.m they were attacked by assailants. The assailants fired gunshots from outside the house and when the deceased got up to investigate the incident, he was hit by the bullets through the closed door and died instantly.
The prosecution adduced evidence to show that two of the attackers were the appellant, Areet Sam and one Omujal David. Omujal was identified by Opade John Charles, the son of the deceased and Charles was also able to identify Omujal because he, Charles lived in a hut situated some 10 – 15 metres away from his parent’s house and he could clearly see that the appellant was wearing a short sleeved white shirt and black trousers. The appellant had entered the house of the deceased after the shooting and was clearly identified by PW1, because he, the appellant was carrying a grass torch by which he could be clearly seen. PW2 had heard the attackers speaking in Kiswahili and when he peeped through a hole of his door, he first saw and identified Omujal as Omujal moved around the deceased’s compound carrying a stick and actually walked to their kitchen. He could also recognize Omujal because he knew him as a person from his mother’s village and as the appellant and Omujal walked passed his house at some five to six metres distance.
After their arrest and police investigations, Omujal made a confession whose voluntary nature and truthfulness were believed by the learned trial judge after conducting a trial within a trial and it was admitted in evidence. On appeal, the Court of Appeal held, rightly in our opinion, that the confession had been improperly obtained by the police and therefore wrongly admitted in evidence by the trial court. It could therefore not be relied upon to convict the appellant.
It is on this basis that counsel for the appellant submitted before us that without the confession, the Court of Appeal erred in its subsequent finding that the appellant was guilty of murder. It was counsel’s contention that having found the confession inadmissible, the learned Justices of Appeal should have satisfied themselves that there was ample and independent evidence on which the appellant could be convicted of murder. In counsel’s opinion, this, the learned Justices of Appeal failed to do.
Counsel for the appellant was particularly critical of the findings of the Justices of Appeal when they stated that;
“The success of ground 2 does not alter the conclusion of the trial judge as she did not base the appellants’ conviction solely on his confession. According to her, the confession corroborates the evidence of identification by PW1 and PW2.”
Counsel contends that the learned Justices of Appeal merely adopted the findings of the trial judge without themselves considering all the material facts in the appeal and coming to their own conclusions on them as a first appellate court. Counsel cited a number of authorities in support of their submissions including Sirari Kisembo v. Uganda, Crim. Appeal No. 13 of 1998 (S.C), (unreported) and Walugembe Henry and 2 Others v. Uganda, Crim. Appeal No. 39 of 2003.
For the respondent, Mr. Wamasebu supported the conviction and the decisions of both the High Court and the Court of Appeal. He contended that the two courts below properly evaluated the evidence and applied the law to the facts of the case. He further contended that the way the sole ground of appeal is worded indicates that the appellant is only challenging the findings on facts of the two courts below. In counsel’s view, the challenge is not well founded. Counsel contended that this court has held in several cases that save in exceptional circumstances, it will not be required to reevaluate the evidence as if it were a first appellate court. In support of his submissions, counsel for the respondent cited this court’s decision in Kifamunte Henry v. Uganda, Crim. Appeal No. 10 of 1997 which counsel regards as being at all fours with the present appeal and R. Mohammed Ali Hasham v. R, (1941) EAC93 and R v. Hassan Bin Said (1942) EAC61.
In our view, counsel for the appellant has raised a pertinent issue with regard to a confession which was part of the evidence upon which the learned trial judge justified the conviction of the appellant and his co-accused. We also agree with counsel for the respondent that it is trite law that as a second appellate court we are not expected to reevaluate the evidence or question the concurrent findings of facts by the High Court and Court of Appeal. However, where it is shown that they did not evaluate or reevaluate the evidence or where they are proved manifestly wrong on findings of fact, this court is obliged to do so and ensure that justice is properly and truly served. In our opinion, the only question to answer is whether or not there was other ample evidence to support the appellant’s conviction without