THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO
(CORAM: ODER, JSC; TSEKOOKO, JSC; KAROKORA, A.N. JSC;
MULENGA, JSC; AND KIKONYOGO, JSC.)

CRIMINAL APPEAL NO.3 OF 1998

BETWEEN
MAGIDU MUDASI ………………………………………………………………APPELLANT

AND
UGANDA……………………………………………………………………… RESPONDENT
(Appeal from decision of the Court of Appeal of Uganda at Kampala
Manyindo, DCJ; Kato, JA; and Berko, JA
dated 30.4.1998
in Criminal Appeal No.7 of 1996)

JUDGEMENT OF THE COURT

This is a second appeal from a decision of the Court of Appeal of Uganda. The appellant, Magidu
Mudasi, had been tried and convicted by the High Court on an indictment consisting of two
counts. The first count was robbery, Contrary to Sections 272 and 273(2) of the Penal Code Act,
the particulars of which were that the appellant with others still at large on or about the 3rd
February, 1990 at Busamaga Village in Mbale District robbed one Jackson Waniala of a Motor
Car Registration No. UXK 276, and at or immediately after the said robbery used a deadly
weapon, namely a club on the said Jackson Waniala. The second count was murder, Contrary to
Section 183 of the Penal Code Act, the particulars of which were that the appellant and others
still at large on the 3rd, February 1990 at Bwase Village in Tororo District murdered the said
Jackson Waniala.

On conviction after his trial, the appellant was sentenced to death on the first count. The sentence
on the second count of murder was suspended. He then appealed to the Court of Appeal against
the convictions and sentence, but his appeals were dismissed. The conviction and sentence were
upheld. The appellant has now appealed against the decision of the Court of Appeal.

The facts of the case established by the trial court and accepted by the Court of Appeal are
briefly as follows. The deceased, 28 years old man, was a special-hire taxi operator in Mbale. He
and the appellants were friends. On the morning of 3.2.1990 at about 4.00 a.m. the deceased
collected his taxi car from the home of his mother, Foronika Wanyenze (PW5), where the
deceased normally parked his taxi car at night. When he went to collect the car on this occasion,
the deceased was in the company of the appellant and another person. The deceased woke up his
mother and informed her that the appellant and others wanted the deceased to assist them to
collect the appellant’s wife from Budaka. Foronika (PW5) saw and recognised the appellant. She
knew him before as they all lived in the same village in Mbale. Foronika (PW5) saw the
appellant enter the garage with the deceased to collect the car. There was bright electric light,
which enabled her to see and recognise the appellant, but she did not recognise the other person
who was in the appellant’s company. That person stood outside near the lamp post. The deceased,
the appellant and the third person drove away in the deceased’s car. That was the last time
Foronika (PW5) saw her son (the deceased) alive.

When two days passed and the deceased had not returned home, Foronika (PW5) reported the
matter to the Police at Mbale. The Police gave her a letter, with which to go to Budaka Police
Post in search of her son. When she arrived there, Budaka Police showed to PW5 a shirt and
trousers which the police at Budaka had removed from the dead body of an unknown person who

had been discovered killed half a mile from Budaka Police Post. PW5 instantly recognised the
clothes as those of her son.

The police at Budaka had on 3.2.1990 at about 8.00 a.m. discovered the body of the deceased
already lying in a bush half a mile from Budaka Police Post. The deceased appeared to have been
killed. The police officer who first saw the body, Gastaphino Lwanga I.P. (PW4), noticed some
marks around the neck. The marks appeared to have been caused by a rope or a rubber band.
When two days had passed without any person claiming the body of the deceased, the Budaka
Police had it buried, but preserved the clothes in which the body was dressed when it was
discovered.

It was on 6.2.1990 that the mother of the deceased Foronika (PW5) and other relatives travelled
to Budaka, where she identified to the police the body of the deceased after it had been exhumed.
The matter was then reported to Mbale police where the body of the deceased was taken. On the
same day, Dr. Wanziguya carried out a post mortem on the body of the deceased at Mbale
Hospital, and made a post mortem report (exhibit P1).

In his testimony, the doctor said that he identified a dark mark around on the neck, and a
depressed skull at the frontal bone. Internally, he observed brain damage. The cause of instant
death was brain damage. Instrument used was possibly a hammer or an iron bar. The dark mark
around the neck could have been a result of strangulation, caused by a rope or a wire.
Strangulation was applied first but due to some resistance, a hammer was then used. The doctor
ruled out that the injury was likely to have been caused by the steering wheel or dashboard.

On 13.2.1990 the appellant and a companion, one Wambede Issa, were found in Mukono with
the car of the deceased, trying to sell the car in that area. They were arrested on 17.2.1990.
The appellant and his companion informed Haji Hamudani Lubega (PW3) and the Police at
Mukono that the car was theirs.

On 17.2.1990 persons who knew the motor car as belonging to the deceased went to Mukono for
it. The motor car was later taken to Mbale where Foronika (PW5) identified it as her deceased
son’s car. The appellant and his companion, Wambede Issa, were subsequently charged with the
offences in the present case, but the latter died in prison before he was tried. At his trial the
appellant put up an alibi, and explained how he came to be found with the deceased’s motor car
at Mukono.

His defence was to the effect that on 3.2.1990, he was in Moroto Town, which he left at 2.00
p.m. for Mbale. He reached his home in Mbale at 8.30 p.m. On the following day, he met one
Eddy Nyanganya. The latter asked the appellant to drive car No. UXK 276, a Toyota Corolla to
Mukono, and proposed to pay him shs.30,000/ for the assignment. The appellant drove the car to
Mukono as agreed. He was accompanied by one Issa Wambede. Nyanganya did not accompany
them.

When the appellant and his companion arrived in the car at Mukono, Issa Wambede directed him
to go to the home of Haji Hamudani Lubega (PW3). The appellant and Issa Wambede stayed at
PW3’s for nine days. During that time, Issa Wambede was dealing in cattle until 14.2.1990, when
he and the appellant were arrested by the police.

The appellant maintained that he was only hired to drive the car to Mukono and that he did not
know the deceased. He also denied that he and Issa Wambede killed the deceased: or that he
informed PW3 that the car belonged to him and Issa Wambede.

At the conclusion of the trial both the assessors believed the prosecution evidence, rejected the
appellant’s defence of alibi and advised for a conviction. The learned trial judge accepted the
prosecution version of events and disbelieved the appellant’s defence, convicting him and
sentencing him to death as we have already mentioned. The appellant’s appeal to the Court of
Appeal against convictions and sentence failed. Hence this appeal.

Two grounds of appeal were set out in the Memorandum of Appeal. Firstly that the learned
appellate Judges erred in convicting the appellant without evaluating the evidence; and secondly
that the appellate Judges erred in holding that the circumstantial evidence warranted a conviction
without scrutinizing the appellant’s defence. The Memorandum of Appeal, as amended with the
leave of the court, also prayed that the appeal be allowed, the convictions be quashed the
sentence be set aside and the appellant be set free unless held on other lawful ground.

Mr. Leonard Musika, learned counsel for the appellant, argued the two grounds of appeal
together. He submitted first that the Court of Appeal ought to have subjected to scrutiny the
prosecution evidence of identification of the appellant in relation to the contradictory evidence
from Foronika (PW5) and Caleb Muhore, D/IP (PW7) with regard to whether an identification
parade was held; and in relation to the appellant’s evidence that Foronika (PW5) was not known
to him before the incident. In her evidence that Foronika (PW5) was not known to him before the
incident. In her evidence Foronika (PW5) said that she knew the appellant before the deceased
died, because she lived in the same village as the appellant in Mbale. However, this was
contradicted by the appellant in his evidence that PW5 was unknown to him before. Foronika
also said in cross—examination that she identified the appellant at an identification parade. That
was inconsistent with that evidence. D/IP Caleb Muhore (PW7) testified that he did not put the
appellant and his companion on an identification parade. The learned counsel contended that if
an identification parade was held for Foronika (PW5) to identify the appellant it meant that
Foronika (PW5) did not know the appellant before, which would be consistent with the
appellant’s evidence that he did not know PW5 before. It the Court of Appeal had re-evaluated
the evidence in the manner suggested, the learned counsel contended, the Court of Appeal would
have come to a different conclusion, namely that Foronika (PW5) did not know the appellant
before.

Secondly, the appellant’s learned counsel submitted that the Court of Appeal ought to have
invoked its powers under rule 29 of the Court of Appeal Rules and called additional evidence as
the learned counsel put it:

On the part of the defence to ascertain the allegations of the defence whether the circumstances
he came to the vehicle was right.”

As authorities for his submissions the learned counsel cited the cases of Amisi Dhatemwa, alias
Waibi v Uganda , Criminal Appeal No.23 1997 (CAU) (1978) HCB 217 and Bogere and V
Uganda, Criminal Appeal No.11 of 1997 (SCU) (Unreported).

Ms. Khisa learned Principal State Attorney (PSA) for the responded, in her reply, supported the
Court of Appeal’s decision. She observed that only one ground of appeal was argued in the lower
court. That ground of appeal was to the effect that the learned trial judge had erred in law and
fact in convicting the appellant on insufficient prosecution evidence. Certain alleged
unsatisfactory aspects of the prosecution evidence were pointed out by the appellant to the Court
of Appeal. The first of these were that PW5’s evidence of identification of the appellant should
not have been accepted by the learned trial judge because she had lied when she said that she
knew the appellant before. In the learned Principle State Attorney’s view, PW5 did not lie in that
regard because she and the appellant lived in the same village of Busamaga, which was a good
reason for the two knowing each other. Secondly, the presence of bright electric light had
enabled PW5 to clearly see the appellant when he and the deceased went for the deceased’s
motor car; and that the evidence of identification of the appellant was properly reevaluated and
rightly accepted by the Court of Appeal.

The learned Principal State Attorney also referred to the second issue, which had been raised by
the appellant before the Court of Appeal. This related to how the appellant came to be in
possession of the deceased’s car at Mukono. It had been argued by the appellant before the Court
of Appeal that the learned trial judge wrongly accepted the evidence of No.14293, P/C Karenget
(PW1), Grace Turyagumanawe, SP (PW2) and Haji Hamadani Lubega (PW3) in this regard.
Here, again, the learned Principal State Attorney submitted that the Court of Appeal properly
evaluated the evidence and accepted the prosecution evidence as truthful and as cogent
circumstantial evidence which clearly connected the appellant with the offence charged. The
appellant’s evidence that he was hired by Nyanganya to drive the car to Mukono was rightly
rejected by both the trial court and the Court of Appeal, it was contended. It was an afterthought,
as such an explanation had not been given on the first opportunity.

Regarding the appellant’s criticism that the Court of Appeal ought to have invoked its powers
under rule 29 and called additional evidence, but it did not, to verify the appellant’s version of
how he came to possess the deceased’s car, the learned Principal State Attorney contended that
the criticism was misconceived for the following reasons. Firstly as the appellant did not give his
explanation to the police officers who arrested him and his companion at Mukono, it was
apparent that the explanation he gave at his trial regarding how Nyanganya allegedly hired him
to drive the car was an afterthought. Secondly, in the light of the clear evidence from Foronika
(PW5) that she recognized the appellant when he and the deceased went away in the car, there
was no need for the Court of Appeal to have called additional evidence under rule 29 of the
Rules of the Court of Appeal.

The grounds of appeal, and the submissions made before us by both learned counsel, in our view,
raised three main issues. The first is the criticism that the Court of Appeal convicted the appellant
without evaluating the evidence. The second which, in essence, is a part of the first one, is that
the Court of Appeal erred in holding that the circumstantial evidence warranted a conviction
without scrutinising the appellant’s defence. And the third is whether the Court of Appeal ought
to have called additional evidence to verify the appellant’s explanation of how he came to be
found in possession of the deceased’s car. The three issues overlap, but we shall consider them
separately and in the same order.

The legal duty of a first Court of Appeal to re-evaluate the evidence on which a trial court has
founded a conviction is now well settled. In the case of any appeal from a decision of our High
Court acting in its original jurisdiction, it is provided in rule 290 (a) of the Court of Appeal Rules
as follows:

“the Court may-

(a) re-appraise the evidence and draw inferences of fact:”

This means that where an appeal turns on a question of fact, the Court of Appeal has to bear in
mind that its duty is to rehear the case, and the court must reconsider the material before the trial
court with such other materials as it may have decided to admit. The court must then make up its
own mind, not disregarding the judgement appealed from, but carefully weighing and
considering it; and not shrinking from overruling it if on full consideration the court comes to the
conclusion that the judgement is wrong. When the question arises which witness is to be believed
rather than another and that question turns on manner and demeanour, the Court of Appeal
always is, and must be, guided by the impression made on the trial judge who saw the witness.
But there may obviously be other circumstances, quite apart from manner and demeanour, which
may show whether a statement is credible or not; and these circumstances may warrant the court
in differing from the trial judge, even on a question of fact turning on the credibility of witnesses
whom the appellate court has not seen. See Dinkerri Ramkrishna Pandya v R (1957) E.A.336. In
Pandya’s case (Supra) the appeal to the Court of Appeal turned entirely on a scrutiny of a
watchman’s evidence when considered in the light of other testimony and on evaluation of the
evidence as a whole by the trial and the appellate court. The Court of Appeal said this on page
337:

“But the Parties to the cause are nevertheless entitled, as well on questions of fact as on questions
of law, to demand the decision of the Court of Appeal, and that court cannot excuse itself from
the task of weighing conflicting evidence and drawing its own inferences and conclusions,
though it should always bear in mind that it has neither seen nor heard the witnesses, and should
make due allowance in this respect.”

These principles have been echoed and applied in many cases by our court and it predecessors.
See the cases of Shantilal Maneklal Ruwala v R (1957) E.A 570; Selle v Associated Motor
Boat Co. (1968) E.A 570 Okeno v Republic (1972) E.A 32, Bogere and Another v Uganda,
Criminal Appeal No.1/97 (SCU) orted2 and Kifamunte Henry v Uganda, Criminal Appeal
No.10/97 (SCU,) (unreported).

In Shantilal M Ruwala (Supra). The Court of Appeal said, at page 573:

“We do not take this to mean the appellate court should write a judgement in a form appropriate
to a court of first instance. it is sufficient on question of fact if the appellate court, having itself
considered and evaluated the evidence, and having tested the conclusions of the court of first
instance drawn from demeanour of witnesses against the whole of their evidence, is satisfied that
there was evidence upon which the court of first instance could properly and reasonable find as it
did. If the conclusions of the appellate court are merely expressed in terms such as these, that, in
itself, is no indication that the appellate court has failed to make a critical evaluation of the
evidence.”

In the instant case the substance of the appellant’s criticism of the learned trial judge in the Court
of Appeal was that the learned judge was wrong to come to the conclusion that the appellant had
robbed and murdered the deceased when the evidence of PW5 upon which that conclusion was
based had not been properly evaluated in the light of the other prosecution evidence adduced to
the court. It was contended that Foronika (PW5), the mother of the deceased told lies to the trial
court when she said that she knew the appellant well. It was also argued that the appellant had
offered sufficient explanation regarding how he came to be in possession of the deceased’s motor
car, and that his explanation ought to have been believed by the learned trial judge.

As can be seen from what we have said earlier in this judgement, criticisms labeled at the Court
of Appeal were similar to those made against the leaned trial judge before the Court of Appeal.
The Court of Appeal dealt with the evidence of recognition of the appellant and the
circumstantial evidence of possession of the deceased’s motor car in the following terms:
“Apart from the evidence of PW5 (Foronika Wanyenze) who saw the appellant leaving with the
deceased in the same vehicle on the fateful morning, the prosecution case was based on
circumstantial evidence. The learned trial judge quite ably dealt with this issue in his judgement
and came to the conclusion that the deceased must have been killed and robbed by the appellant.
We have no reason to disagree with the Judge’s finding on this point. There was sufficient
circumstantial evidence to support his finding. The last person to be seen in the company of the
deceased was the appellant who was later found in possession of the very vehicle in which he left
with the deceased. The appellant’s explanation that the vehicle had been given to him by one
Nyaganya cannot be true in view of what he told the police at the time of his arrest that the
vehicle belonged to him and one Issa. He did not say he had been hired by Nyanganya to drive it.
There was evidence that Issa was looking for buyers while the appellant was looking after the
vehicle at the home of PW3. Clearly the mission to the home of PW3 was to dispose of the stolen
vehicle. It is remarkable that the appellant said that he went to the home of PW3 on 4/2/90 when
according to PW3 he went there on 12/2/90. We do not agree with Mr. Muhwezi’s contention
that PW5, the mother of the deceased, did not recognize the appellant at the time she saw him
leaving with her son. There was enough light from an electric lamp at the garage, the appellant
was well known to PW5 who used to see him at the deceased’s house and on the night in
question she took some time talking to the deceased and the appellant before they left for
Budaka, PW5 certainly recognized the appellant as the very person whom she saw going away
with her son in her motor vehicle.”

The passage we have just referred to from the Court of Appeal judgement clearly indicates that,
the Court of Appeal evaluated both the prosecution and defence evidence in the case, like the
learned trial judge, and rejected the appellant’s defence and accepted the prosecution evidence.
After re—evaluation of the evidence the Court of Appeal found that the appellant was properly
identified by the mother of the deceased, Foronika (PW5) as the person who went to her home
and went away with the deceased in the car. The Court of Appeal also found that the appellant’s
version of how he came to be in possession of the car as being a lie. It found this to be sufficient
circumstantial evidence to support the appellant’s conviction by the trial court. We shall shortly
say more about the circumstantial evidence.
In our view the Court of Appeal considered the evidence, evaluated it itself and drew its own
conclusion and decided that on the facts there was ample evidence to support the appellant’s
conviction. There can be no standard form of judgement of a Court of Appeal. A First appellate
court does not have to write a judgement in a form appropriate to a court of first instance. In the
instant case we have no doubt that the Court of Appeal did all that it was expected to do in
discharging its duty as a first appellate court. The first ground of appeal must therefore fail.

The evidence which the Court of Appeal considered and accepted against the appellant included
that of his possession of the deceased’s car so soon after it had been stolen. It was exactly nine
days from 3.2.1990, when the appellant and the deceased drove away in the car from PW5’s
house in Mbale to 12.2.1990, when Haji Hamudani Lubega (PW3) first saw the appellant and his
companion Issa with the car at PW3’s home in Mukono.

It is now well established law that a court may presume that a man in possession of stolen goods
soon after the theft is either the thief or has received the goods knowing them to be stolen unless
he can account for his possession. This is an inference of fact which may be drawn as a matter of
common sense from other facts including, in particular, the fact that the accused has in his
possession property which it is proved has been unlawfully obtained shortly before he was found
in possession, it is merely an application of the ordinary rule relating to circumstantial evidence
that the inculpating facts against accused person must be incompatible with innocence and
incapable of explanation upon any other reasonable hypothesis ‘than that of guilt. According to
the particular circumstances, it is open to a court to hold that an unexplained possession of
recently stolen articles is incompatible with innocence. On finding of possession of property
recently stolen, in the absence of any reasonable explanation by the appellant to account for his
possession, a presumption does arise that the appellant was either the thief or a receiver.
Everything must depend on the circumstances of each case. Factors such as the nature of the
property stolen, whether it is of a kind that readily passes from hand to hand; and the trade to
which the accused person belongs can all be taken into account. See Andrea Obonyo V R (1962)
E.A. 542.

Although very often circumstantial evidence is the best evidence it must always be narrowly
examined because evidence of this kind may be fabricated to cause suspicion on another.
Consequently before inferring the guilt of an accused person from circumstantial evidence, it is
necessary to ensure that there are no other co-existing circumstances which would weaken or
destroy the inference.

In the instant case the trial court and the Court of Appeal accepted the evidence that the appellant
and the deceased were seen driving in the deceased’s car away from the latter’s mother’s house.
He was the last person seen with the deceased alive. Nine days later (a short time) the appellant
and his companion were found in Mukono in possession of the car, trying to sell it. Both the
appellant and his companion told Grace Turyagumanawe, S/P (PW2) and Haji Hamudani Lubega
(PW5) that the car belonged to them, yet they did not produce any document pertaining to the
car. The appellant, apparently, did not tell PW2 and PW3 that he had been hired to drive the car
from Mbale to Mukono by one Nyanganya, which is what he said in his defence. His explanation
when he was found with the car was that it belonged to him and Issa. This as other evidence
showed was a lie. In the circumstances, the trial court and the Court of Appeal were justified in
accepting the prosecution evidence and rejecting that of the appellant. As we have said before in
this judgement, the Court of Appeal made a reevaluation of the relevant evidence. The criticism
that the Court of Appeal accepted the circumstantial evidence against the appellant without
scrutinizing his defence is, with respect, unjustified. The second ground of appeal should,
therefore, fail.

Rule 29(1) (b) of the Court of Appeal Rules, l996, provides:

“On any appeal from a decision of a High Court acting in the exercise of its original jurisdiction
the court may

(b) In its discretion, for sufficient reason, take additional evidence or direct that additional
evidence be taken by the trial court or by a commissioner.”

The principles upon which an appellate court in a criminal case will exercise its discretion in
deciding whether or not to allow additional evidence to be called for the purposes of the appeal
were set out clearly in Lord Parker, C.J. in R vs Parks, (1969) All ER at page 364 as follows:
“Those principles can be summarized in this way: First the evidence that it is sought to call must
be evidence which was not available at the trial. Secondly, and this goes without saying, it must
be evidence relevant to the issues. Thirdly, it must be evidence, which is credible evidence in the
sense that it is capable of belief.

Fourthly, the court will, after considering that evidence, go on to consider whether there might
have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that
evidence had been given together with the other evidence at the trial.”

These principles were adopted by the Court of Appeal for East Africa in the case of Elgood v
Regina (1968) E.A. 274, in which the court said at page 276:

“We wish to stress that it is only in very exceptional cases that this court will permit additional
evidence to be called.”

In our view these principles do apply with equal force to the exercise of its discretion to call
additional evidence in a criminal case by the Court of Appeal under rule 29(1) (b).

Applying these principles to the instant case our view is that the criticism against the Court of
Appeal that it ought to have called additional evidence to verify the appellant’s evidence as to
how he came to be in possession of the deceased’s car has no merit for the following reasons:

Firstly, no application was made to the Court of Appeal for calling additional evidence on behalf
of the appellant. It is usually the practice that such applications are made by one party or the
other requesting the Court of Appeal to exercise its discretion under rule 29(1) (b). In the case of
(Supra) the application to call additional evidence was made by the appellant.

Secondly, the learned counsel for the appellant did not indicate the nature of additional evidence
which the Court of Appeal should have called and who was to give the additional evidence.
Thirdly, some of the principles laid down in the R v Parks (Supra) were not complied with. For
instance it was not shown that the evidence which could have been called on appeal was not
available when the appellant was tried. If the additional evidence was to be adduced by
Nyanganya, which it is reasonable to presume would have been the case, it was not shown that
Nyanganya was not available at the time of the appellant’s trial. Fourthly the circumstances
favouring positive identification of the appellant by Foronika (PW5) were so good that there
could have been no mistake on her part. Hence the identification was so clear that there was no
need to verify the appellant’s evidence by additional evidence. The trial court and the Court of
Appeal were entitled to accept PW5’s evidence, as they did, rather than the appellant’s evidence,
which was rejected. Fifthly, it was not shown that this was a very exceptional case warranting
calling of additional evidence.

For the reasons given, this appeal must fail. It is accordingly dismissed.

Dated at Mengo this 2nd day of October 1998.

A.H.O. ODER
JUSTICE OF THE SUPREME COURT.

J. N.W. TSEKOOKO
JUSTICE OF THE SUPREME COURT.

A. N. KAROKORA
JUSTICE OF THE SUPREME COURT.

J.N. MULENGA
JUSTICE OF THE SUPREME COURT.

L. M. MUKASA-KIKONYOGO
JUSTICE OF THE SUPREME COURT.