THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, AND

MULENGA, JJ.S.C. )

CRIMINAL APPEAL NO. 20 OF 2000

B E T W E E N

OKWONGA ANTHONY: :::: : : ::: : : : : : : : : : APPELLANT

AND

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

(Appeal from the judgment of the Court of Appeal (Manyindo, DCJ, Berko and
Twinomujuniu, JJ.A.) dated 23.3.2000 in Court of Appeal Criminal Appeal No. 1 of
1998 arising out of the High Court of Uganda at Arua (Rubhy Opio Aweri, Ag.
Judge, Judgment dated 30.4.99 in Criminal Session Case No. 207 of 1998).

JUDGMENT OF THE COURT

This is a second appeal. It is against the decision of the Court of Appeal

dated 23.3.2000 upholding the judgment of the High Court which convicted the
appellant and sentenced him to death and to terms of imprisonment for certain
offences.

1
In the High Court the appellant was indicted on four counts and convicted on three of
them. In court I, he was charged and convicted of murder of Veneranda Pinyanga,
contrary to section 183 of the Penal Code Act and was sentenced to death. In count II
he was charged and convicted of kidnapping with intent to murder Jurodano Onen,
contrary to section 235(a) of Penal Code Act and was sentenced to 15 years
imprisonment. In count III, he was charged with aggravated robbery contrary to
sections 272 and 273(2) of the Penal Code Act and he was acquitted. In count IV, he
was charged and convicted of attempted murder of Acelma Giriker, contrary to
section 197 (a) of Penal Code Act.
The particulars of the offence in each of the counts were that the appellant
He with other persons, still at large committed the offences on the 3 rd day of
was June 1980 at Angal village, Nyaravur Division, Nebbi District.
sente
nced The prosecution evidence as accepted by the trial court and the Court of
to 15Appeal was as follows:
years
impri
The appellant in 1980 was an Under Secretary in the Ministry of Internal
sonm
Affairs, in Kampala. He had a house and a farm at Angal village,
ent.
Nyaravur division, Nebbi District. He was well known to the prosecution
The
witnesses. During the night of 2 nd June, 1980, the appellant's home was
impri
attacked by unknown people who shot at his house with a gun. The
sonm
appellant reported the incident to Nebbi Police Station, but was advised to
ent
report to the Army. The appellant suspected Jurodano Onen, the victim in
sente
court II, to have been among the people who attacked his house. In the
nces
morning of 3 rd June, 1980, the appellant went in his motor car, a Mercedes
in
Benz, to the home of Jurodano Onen, looking for him. He was seen by
count
Clouds Opoka (PW3) . The appellant was armed with a pistol. When he
s II
did not find Jurodano Onen there, he proceeded to the home of Jurodan
and
Onen's mother, Acelma Giriker (PW4), looking for Jurodano Onen and
IV
inquired where Jurodano was. When the appellant did not get satisfactory
were
answers from Acelma, he shot her with a pistol in the arm. The appellant
suspe
also shot Acelman's daughter, Veneranda Pinyanga, in the groin, as a
nded.
result appellant continued to look for Jurodan Onen. Madalena Neguwon
of (PW5), saw her husband, Jurodan Onen, being arrested by men who
whic alleged that they had been sent by the appellant. Jurodano Onen was taken
h sheto Angal football ground. Celestimo Okumu saw the appellant at the
died football ground together with other people torturing Jurodano Onen who
shortl was later put in the boot of the appellant's car and was driven away. There
y was general panic in the village, and Jurodano Onen's relatives went into
after hiding. The body of Veneranda was buried three days afterwards by
wards Lawrence Okello Wange (PW6) and other porters on the instructions of
. the brothers of Angal Catholic Mission. Opoka Clouds (PW3), a brother
of Jurodano, emerged out of hiding afterwards and reported the incident to
Nebbi Police Station, where he was arrested instead, and handed over to
Celes
the Army. He spent two months in military barracks before being released.
tino
The prosecution did not adduce any police evidence concerning
Oku
investigation of the case and arrest of the appellant.
mu
(PW7
), aIn his sworn defence, the appellant set up an alibi. He testified that on 2 nd
broth June, he was in Kampala carrying on his duties in the Ministry of Internal
er ofAffairs. He was in Angal on 30/6/80, when his home was attacked. He
Jurod reported the matter to the military authorities who carried out their
an investigations without him. He saw the people gathered at Angela football
Onen ground and heard that Jurodano Onen had been arrested, but he never
, went there. The charges against him had been politically motivated by his
witne opponents in order to prevent him from contesting Nebbi District Local
ssed Council Chairmanship elections. The appellant called his neighbour,
the Kanutu Kakusa (DW1) in support of his defence. DWl's evidence was to
incid the effect that the appellant's home was attacked and that military
ents personnel investigated the incident. The learned trial judge accepted the
at prosecution evidence, and rejected the defence, convicting the appellant
Acel with the results we have already referred to.
ma's
home
. The
The Ten grounds were set out in the Memorandum of Appeal. Mr. Remy
appel Kasule, the appellant's learned counsel, abandoned the second ground, and
lant's argued the rest in the order in which they were set out in the
appea memorandum. We shall deal with them in the same order.
ls
again
The first ground is that their Lordships of the Court of Appeal erred in
st
law when they held that PWl was properly declared a hostile witness by
convi
the trial judge and that no injustice was caused to the appellant by such
ction
declaration. Mr. Kasule's submission under this ground is that the trial
and
court's record does not show whether the statement made by Celestino
sente
Avunga (PWl) was shown to the witness; whether the trial judge looked
nces
at, and studied, the statement and resolved that it was a departure from the
of
witness' evidence in court; and whether it was pointed out to PWl that his
impri
evidence was different from his police statement. In the circumstances,
sonm
counsel contended, the learned trial judge had no basis for declaring PWl
ent to
a hostile witness for the prosecution.
the
Court
of The record of the trial court shows that PWl gave some evidence in

Appe examination-in-chief, led by the prosecuting State Attorney, Mr. Wagona.

al When it appeared to the learned State Attorney that PWl's evidence was

were different from what he had said to the police in a statement recorded from
reject him (PWl), the State Attorney decided to treat him as a hostile witness.
ed byAccording to the court record he then applied to tender PW1's statement
that to the police as follows:
Court
.
Henc "Wagona. I am tendering this document in exhibit. The purpose
e, is that its contents are to be compared with what he has stated in
this connection with a view of applying that he be treated as a hostile
appea witness so that subsequently his evidence is expunged from the
l. record then I would proceed with other witnesses. The reason is
that the story recorded from him is a complete reverse of what the
 witness
tendering of PW1's police statement as an' exhibit. From then on the court
is
record
now reads as follows:
telling
court.
"Mr. Wagona: - While prosecution is free to choose which
So
witness to testify, the prosecution relies on the recorded
prosec
statement. It is on that basis that the accused was basically charged and
ution
greatly inconvenienced if on that basis an accused is charged and the
would
witness comes to court and tells a different story then it becomes a
not
serious matter in which case one wonders why the witness has
like to
suddenly changed. You need to have the same on record for
rely on
comparison. No injustice will be occasioned. So the prosecution has
his
lost interest in him not because he is telling a story unpalatable to
eviden
the state but because that story is a reverse of what he told the police.
ce,
It cannot therefore be relied upon by the prosecution or even the court.
then
You first look at the statement to justify you declaring him
you
hostile.
declare
him
Court: - In my view the tendering of this statement is merely for the
hostile.
" purpose of comparison to enable court declare the witness hostile. It is not
for any use against any party. I therefore see no harm in the proposal by
the learned State Attorney.
The
appel "Wagona: - I apply that this witness be declared hostile on the ground
lant's that his police statement is complete reversal of his testimony.
defen
Piwang: - The matters put to the court was known to the witness. He
ce
stated that the police had asked him about some incidents in Panyimur. As
couns
a matter of fact he said he did not see the accused. The prosecution does
el,
not like that part. The witness is not hostile. If the prosecution does not
Mr.
use him, I leave it to the discretion of the court.
Piwa
ng, Court: - In my view a hostile witness is determined when his testimony is

objec contrary to his statement. This is the position here. I am therefore

ted to declaring this witness hostile. The prosecution can therefore continue to
X X as if cross-examining him".

The first ground of appeal is similar to the first ground of appeal in the
court below except that there the appellant also criticized the learned trial
judge for treating PW2 as a hostile witness.

Mr. Kasule also represented the appellant in that court. The arguments he
made there are similar to the ones he has now made in this court. The
Court of Appeal dealt with the matter in the relevant part of its judgment
as follows:

"The Evidence Act provides:

"S.152. The court may in its discretion, permit the person who calls a witness
to put any question to him which might be put in cross examination
by the adverse party.

153. The credit of a witness may be impeached in the

following ways by the adverse party, or with the consent of court,
by the party who calls him -

(i) by proof of former statements

inconsistent with any part of his evidence which
is liable to be contradicted.

(ii) .............................................................."
In Sankar's Law of Evidence (supra) at p.1318 the learned author writes:

"A hostile witness is one who from the manner in which he gives
evidence (within which is included the fact that he is willing to go back
upon previous statement made by him) shows that he is not
desirous of telling the truth [Penchanan vs R.34 C . W .N. 526:
A1930, C.276: 51 C.L.J. 203].

"The matter as to whether permission should or should not be given to cross

examine one's witness however hostile he may appear to be, is eminently one
in the discretion of the trial judge and his decision except in very exceptional
circumstances is not open to appeal (emphasis is ours).

Before allowing a witness to be declared hostile it would have been usual for a
judge to look into the statement made before the investigating officer to see
whether the witness was actually resiling from the position taken during the
investigation". It is clear from the legal authorities quoted above that it is
within the discretion of the trial court to allow the prosecution to cross
examine - its own witness. When the court allows the. prosecution to cross
examine its own witness, the trial judge must look at the police statement and
determine whether the witness is departing from it. In this case, the prosecution
applied to treat PWl hostile and the learned trial judge ruled as follows:
"In my view a hosti l e witness i s determined when hi s testimony is contrary
to his statement. This is the position here: I am therefore declaring this
witness hostile."

This ruling of the judge clearly shows that he looked at PWl's police statement
and found that it contradicted his testimony in court. We appreciate that the
ideal procedure would have been for the prosecution to tender in evidence the
 police statement as an exhibit, or for the learned trial judge to record parts of
the police statement which were contradictory to PW1's testimony in court. In
our view PWl was properly declared a hostile witness . . . We find that there
was no injustice caused to the appellant by reason of PWl being declared a
hostile witness . . . Ground 1 therefore fails".

We are satisfied that the learned Justices of Appeal correctly applied the relevant law to
the facts of this case, and rightly upheld the learned trial judge's declaration of PWl as a
hostile witness. The learned prosecuting State Attorney did in fact apply to tender
PW1's police statement in evidence. The defence counsel objected to its admission but
in the end left it to discretion of the court. The learned trial judge ruled in favour of
admission of the statement in evidence.

However, there is no indication why the statement was not admitted in evidence and
marked as an exhibit. Be that as it may, we think that no prejudice was caused to the
appellant by non-admission of the statement. The appellant was represented by counsel
at his trial. As the trial court. record shows his defence counsel apparently appreciated
and followed the departure of the witness' testimony as explained to the court by the
learned prosecuting State Attorney. The learned defence counsel did not ask that the
statement be shown or explained to the witness personally. What is important is that the
learned trial judge looked at the statement for purposes of comparing it with the
witness' testimony, and found that the witness' evidence was a departure from his
statement.

It is up to a party calling a witness to apply that he or she be declared hostile. The

opposite party does not have to agree though it may oppose the application. It is for the
trial court, in its discretion to declare a witness hostile and allow the party calling
him/her to cross-examine the witness. In the circumstances, with respect, we do not
find any merit in Mr. Kasule's arguments in this regard. The first ground of appeal
must, therefore, fail.
The third ground of appeal is that their Lordships of the Court of Appeal erred in law in
holding that Exhibits Dl, D2, D3 and D4 were not properly admitted in evidence and
were therefore,, rightly not considered by the trial judge. In his submission under this
ground, Mr. Kasule indicated that Exhibit Dl was a statement which the Police had
recorded from Opoka Clouds (PW3), D2 was a Police statement by Acelma Ciriker
(PW4); D3 was the Police statement of Madalena Negumu (PW5) , and D4, was a
Police statement of Celestino Okumu (PW7). These statements were admitted in
evidence by consent. In the Court of Appeal, it was argued for the appellant that as
there were discrepancies between the confession statement and the prosecution
witnesses' evidence in Court, the witnesses' veracity should have been discredited. Yet
the Court of Appeal held that because the witnesses denied they made the statements,
the statements could not be used to contradict their evidence. That was an error by the
Learned Justices of Appeal, Mr. Kasule argued.

In his reply, Mr. Wamasebu, Principal State Attorney, submitted that, strictly speaking,
the Police statements were not exhibits. They were received for identification
purposes only.

exhibits. They were received for identification purposes only. They were not
proved by the Police Officers who recorded the statements, as should have been
done. Consequently it was correct to ignore them. Learned Counsel relied on
the cases of Des Raj Sharma -vs- Reginam (1953), 19, EACA, 310; and Kontar Singh
Bharaj and Another -vs- Reginam 1953) 22, EACA, 134. In any case, the Principal
State Attorney submitted, the discrepancies between the Police statements of the
witnesses and their evidence were minor. He did not point out the minor
discrepancies. Consequently the contention that the discrepancies were minor
does deserve our attention.

What happened about the Police statements of the four prosecution witnesses at
the trial appears to be as follows:
First, PW3's statement, Exhibit D1. PW3 was cross-examined by the learned
defence counsel, Piwang. The relevant part of the record runs as follows:

"Piwang: We are ready to proceed with cross-examination. XX - Piwang:

I made my statement to Police in 1994. That was my first statement.

I made a second statement because Police went to me at home.

No action was taken in 1994.

I was told that the Policeman who went to me that my first statement had got
lost.

I know that policeman who told me of the loss. He is called Mr. Olodi.

He (Olodi) did not tell me how the statement got lost.

The first statement I made was from Nebbi Police Station.

I did not know about giving number in cases in Police. I was not given a
number. I am a butcher."

Thereafter a lengthy cross-examination followed.

He was not cross-examined any more about his police statement until after the
end of the cross-examination, when the record reads:

"Piwang: I wish to tender this Police statement of witness as defence exhibit.

W eg ona : No objection.
Court: Police statement admitted in evidence as defence exhibit D1."

We must observe here that the Police statement about which PW3 was cross-
examined does not appear to have been identified by him. Even if it was shown
to him for that purpose, it appears that he denied that it was the one recorded
from him.

According to PW3, he made two statements. The first one at the Police Station
in 1994 and a subsequent one at home. He does not say when the latter one was
recorded; nor whether that was what became Exhibit D.1. Exhibit D.1 was
recorded on 25-04-97, the date it bears. The Police Officer who recorded
Exhibit D.1 was not called to prove that it was a statement recorded from PW3.
Although the statement was admitted in evidence as an exhibit, it appears to
have been marked as such more for identification than as an exhibit in evidence.

Acelma Giriker (PW4), was also cross-examined about her statement to the
Police. Presumably the statement is Exhibit D2, for, there is nothing from her
to indicate that it was. D2 was recorded on 29-04-97, at Ata-West Village,
Pamura Village, not at Bono as PW4 implied in cross-examination. The record
runs as follows:

"XX - Piwang:

Yes I made my statement when the Policeman came to my home.

I cannot remember the date Policeman came.

In 1997, I was in Panyimur in a place called Bono. Bono is within Nebbi

District. Bono is far from Angal.
I cannot remember reporting to the Police.
 The Police came to my home twice. That day he came at 10.00 a.m.

I did not tell the police that I saw Okwonga with another man.

The Policeman could have added that statement about seeing Okwonga
and another man.

My statement was not read back to me. I signed it (thumb-mark)."

Further on in cross-examination she said:

I told Police the dying declaration of the deceased. I do not know why it
was not recorded in my statement.

"- I was shot as I was running away from Okwonga.

The bullet got the back of the arm/palm. It was me who ran about three
steps and I was shot. It was not Okwonga who moved three steps behind.
The Policeman lied there. Okwonga that day was putting on a uniform. I
did not know what uniform it was I did not state that the accused was in
civilian clothes. "

PW4 thus denied that the statement was read back to her although she thumb-
marked it. She said that the Police Officer who recorded the statement could
have added in it something she did not say. The Police Officer recorded what
was a lie. In view of what PW4 alleged in cross-examination, the Police Officer
who recorded the statement should have been called to prove that he recorded
what PW4 told him and that he/she read back the statement to the witness (if he
did), and that the witness signed the statement to confirm what was recorded
from her. In the absence of such Police evidence it was impossible to pin down
PW4 that the statement was a correct record of what the Police had recorded
from her.

Madalena Negumu (PW5) was the wife of Opoka Clouds, PW3. Her cross-
examination by Mr. Piwang about her statement to the police, it appears, was
very scanty. Parts of the relevant record reads.

"- Yes I heard the gun shots while at Celestino's place. I heard the gun shots
with my ears. I was not told by Celestino. The Police misquoted me."

In further cross-examination she said:

"- I can't recall when I made the statement. I think 1997. The
statement was recorded from our home."

When PW5 said that the Police misquoted her, it appears she was thereby
implying that the Police recorded what was different from what she had said. In
the circumstances, it was necessary to call as a witness the Police Officer who
recorded the statement from PW5 to say that he/she recorded what PW3 said.
No police evidence was adduced to that effect.

Celestino Okumu (PW7) was also cross-examined about his statement to the
Police. The statement is presumably D4 because the witness apparently was
not asked to identify the statement he was talking about. The relevant
record in this connection runs as follows:

"- Yes I made Police statement.

I made statement at Opoka's home.

 They found me I had already taken some drinks but all the same I made I
wrote my statement.

The Police demanded that I give my statement so I could not tell them to
allow me to sober up first. I had to comply and make my statement.

I have told Court that I had taken Waragi at that time. But what I have told
Court is the truth.

Waragi can make you forget. Waragi is bad.

If you drank yesterday', you could not forget now because waragi could
have evaporated. But that day we were drinking when they came for our
statements. "

PW7 apparently was drunk when his Police statement was recorded. He needed
to sober up before he made his statement, but he was not allowed to do so. He
had to make a statement to the Police. It appears that this witness's statement
could not be relied on because he made it when he was drunk. This is what he
implied in his answers in cross-examination. He may or may not have lied about
his having been drunk at the material time. The Police Officer who recorded the
statement would have said in what state of drunkardness or sobriety PW7 was
when the statement was recorded from him. The Police Officer was not called.

In view of what transpired in the trial court and submissions made to the Court
of Appeal regarding the statements recorded by the Police from these witnesses
in relation to their evidence in court, the learned Justices of Appeal had this to
say:
 "On contradictions between the witnesses' testimony in Court, and their
Police statements, learned State Attorney submitted that statements were
denied by the witnesses, and the defence did not prove that the witnesses
actually made those statements. The State Attorney relied on - Ojede s/o
Odyek - vs- JR. (1962) EA 494, in which it was held by the Court of
Appeal for Eastern Africa that where a witness challenges his/her
Police statement, it must be proved strictly by calling a Police
Officer who recorded it if it is to be used to discredit him or her.

In his judgment the learned trial judge did not consider the witnesses' Police
statements and rightly so in our view, as they were not properly admitted in
evidence. We do not agree with Mr. Kasule's submission that since the State
Attorney did not object when the defence tendered Exhibits D1, D2, D3, and
D4 in evidence, the learned trial judge should have considered these
statements.

The witnesses denied making these statements. For example, Celestino Okumu
(PW7) said that he had consumed Waragi and the Police did not allow him
time to sober up before recording his statement. Acelma testified that she told
the Police about the dying declaration but they did not record it. In such
circumstances, it was absolutely necessary to call the Police who recorded the
statements. The duty to call the Police was neither on the prosecution nor on
the court, as Mr. Kasule suggested. The appellant was represented by Counsel
and the prosecution had fulfilled its duty by availing the defence the Police
statements. See - Thairu s/o Muharo (1954) EACA, l8 7, and
Amisi & Others -vs- Uganda (1970) EA. 662. "

In the case of Ojede s/o Odyek vs R (1962) E.A. 494 the appellant was
convicted of murder on circumstantial evidence. At the trial, a statement made
by a defence witness to the Police was without proper proof put in evidence and
used to discredit the witness. There was no note on the record that she had
identified the document and at the trial the witness had refused to admit part of
the contents of the statement and challenged its interpretation. On appeal, it was
held; (i) as the witness was illiterate, the statement had been recorded in another
language through an interpreter and the witness had patently challenged both
the contents and interpretation of the statement, strict proof was called for if it
was to be used to discredit her evidence; (ii) the respondent should have called
the recording officer to prove the statement but the failure to do so had
occasioned no miscarriage of justice since there was creditable evidence from
other witnesses.

In - Kantar Singh Bharaj and Another -vs- Reginam (1953) 20, EACA 134 the trial
Magistrate at the appellant's trial, refused to allow the defence to cross-examine
a prosecution witness A on a statement made by him to a Police Officer B . On
the first appeal the Supreme Court of Kenya held that in virtue of section 145 of
the Indian Evidence. Act (the equivalent of our section 153 of our Evidence
Act) the trial Magistrate was wrong in doing so. There were only two
unimportant discrepancies between A's statement and his evidence before the
Magistrate. On further appeal it was held, inter alia, that where it is sought to
cross-examine a witness, on a previous statement, with a view to discrediting
him, the proper procedure to be followed, and the effect of such cross-
examination is as follows:
''When the witness gives his evidence, the defence should call for the earlier
statement recorded by the Police. The defence are entitled to see this
statement and to cross-examine the witness on any appropriate discrepancies.
The person who recorded the earlier statement should then be called to prove
and put in as an exhibit the statement. But that does not make what is said in
the statement substantive evidence at the trial. Its only purpose and value is to
show that on a previous occasion, the witness has said something different
from what he has said in evidence at the trial, which fact may lead the court
to feel that his evidence at the trial is unworthy of belief. "

We agree with the procedures laid down in - Ojede s/o Odyek (supra) and Kontar
Singh Bharaj (supra) on how a previous statement by a witness should be
handled in a trial court to discredit the witness' credibility in court. The
decisions are applicable to the instant case and yet such procedures were not
followed.

In Des Raj Sharma -vs- Reginam (1953) 20 EACA 310 it was held that there is a
distinction between exhibits and articles marked for identification; the term
"exhibit'' should be confined to articles which have been formally proved and
admitted in evidence. We agree with that view. In this connection, see also:
Sydney Golder & Others (1961) 45, Cr. App. Report, 5; Balala (1914) EA 402; and
Amer v Rep. (1972) EA 324.

In the instant case, the prosecution witnesses' statements to the Police, D1, D2,
D3 and D4, were admitted in evidence, though with consent, without having
been proved by the Police Officer (or Officers) who recorded them from the
witnesses. Since the makers of the statements denied that the statements
reflected what they had told the Police, it was necessary to call the Police
Officers to prove the statements not withstanding the admission in
evidence of the statements without objection by the prosecution. The only way
to disprove the witnesses' allegation of incorrect recording of their statements
was to adduce evidence of rebuttal by the statements. If it was proved that the
statements were correctly recorded, then they could be used to discredit the
evidence in Court of persons who made the statements. Only the Police Officers
who had recorded the statements could do so.

In the circumstances, we are unable to fault the learned Justices of Appeal in the
conclusion they made in the passages of their judgment to which we have
referred under the consideration of this ground of appeal. The ground of appeal
must fail.

The fourth ground of appeal is that the learned Justices of Appeal erred in law
in holding that all inconsistencies and contradictions in the prosecution case
were not intended to deceive the Court but were due to lapse of time.
In his submission under this ground of appeal, Mr. Kasule listed certain
contradictions and referred to some which were indicated before the Court of
Appeal. He then contended that the Court of Appeal acknowledged that the
learned trial judge had considered only two, not all the, contradictions in the
prosecution evidence. But it too, did not look at each inconsistency or
contradiction one by one, although it agreed with the learned trial judge that the
contradictions were minor and did not go to the root of the case.

The learned Counsel's contention that there were

inconsistencies or contradictions within the prosecution evidence is,
indeed, correct. For instance, at the trial, Acelma (PW4) said that
the appellant went to her home alone. She did not see anybody else with the
appellant, but Celestino Okumu (PW7) said that the appellant went there with
another person whom he did not know before. Acelma Giriker (PW4) also said
that the appellant's car was parked at her home, but Okumu said that the car was
parked at the junction to Acelma's house. The learned counsel also submitted
that Acelma did not say that she saw Celestino at her home although he testified
that he was there and witnessed the appellant shoot Veneranda dead and shoot
Acelma's hand.

In cross-examination, Celestino said that Acelma told lies if she said that he
(Celestino) was not at her place. He was, indeed, at her home and greeted her.
He then suggested that may be she said so due to her age, and that she was half
deaf and forgot a lot and she did not see very well. The record does not show
that Acelma was asked whether Celestino was present at her home at the
material time. We think therefore, that it is not fair to accuse her for having said
that Celestino was not present. It is not the same as if Celestino's presence was
put to her and she denied it. Her failure to say that Celestino was present does
not necessarily mean that she said Celestino was not there.
Another contradiction Mr. Kasule referred to is that Acelma said that the
appellant was not in uniform, but Okumu said that he was. With respect there
was no such contradiction. In cross-examination PW4 said:

"- Okwonga, that day was putting on uniform.

I do not know what uniform was.
I did not state that the accused was in civilian clothes."
In cross-examination, PW7 said:

" - Okwonga had uniform. He was in Prisons Uniform, dressed like those who
bring prisoners)."

Mr. Kasule contended that two other contradictions which the Court of
Appeal did not address concerned distances between the various places
where the appellant was alleged to have committed the offences.
The other regards the date of the incidents. Whereas the
prosecution said that the appellant committed the offences on 03-06-80,
the appellant said in his sworn testimony that on 03-06-80, he was in Kampala.
It was on 30-06-80, that he was in Angal. With respect, we do not see any
contradictions. According to the prosecution witnesses, all the incidents
happened in Angal Village. There is no evidence to show that there
were long distances between the scenes of the incidents. Regarding the date
of the incidents, all the prosecution witnesses gave the 03-06-80,
as the material date. The learned trial judge believed them and
rejected the appellant's claim that he was not in Angal on 03- 06-80. The
learned Justices of Appeal agreed with the learned trial judge's findings, inter
alia, that the appellant was at Angal on the morning of 03-06-80, committing
the offences.

Mr. Wamasebu, in his reply, contended that the Court of Appeal did not consider
only two inconsistencies as argued by Mr. Kasule. It considered all the
inconsistencies and found that they were not major or intended to deceive the
court. This was consistent with the learned trial judge's finding. With regard to
the date of the incidents, Mr. Wamasebu contended that the Court of Appeal was
correct to accept the date of 03-06-80, because the sequence of events tallied
with that date. More importantly the Court of Appeal found that the appellant,
by his own evidence, put himself in the vicinity of the crimes.
In any case, the issue of date was not one of major consideration at the trial.

In his judgment, as we understand it, the learned trial judge considered and
resolved as minor the following contradictions.

i) whether the appellant shot Acelma as she was running or she was shot
while facing: the appellant;

ii) Contrary to Celestino's evidence, Acelma did not mention his

presence at her home at the material time;

iii) Whether the appellant went alone or with another person to Acelma's home;

iv) Whether PW3 went with a Parish Chief or alone with Acelima to
report to the Police; and

v) Whether the appellant parked his car at Acelima's home or at the junction
to her home."

The learned trial judge prefaced his consideration of the contradictions by

saying:
 "There were some contradictions in the testimonies of prosecution witnesses.
In my view, they were minor. For instance, there is contradiction whether
....''

This, with respect, does not mean that he considered only two, contradictions.
He appears to have considered all the contradiction in the prosecution evidence.

The Court of Appeal dealt with the contradictions as follows:

"In his judgment the learned trial judge considered some of the contradictions,
whether Acelma (PW4) was shot while running away or while facing the
appellant; whether the car was parked at Acelma's home or by the roadside
and the fact that Acelma did not mention the presence of Celestino Okumu at
her home. He found that these contradictions were minor and did not go to
the root of the case and could be explained away by forgetfulness due to lapse
of memory. The judge also directed himself on the law of dying declarations;
that is evidence of the weakest kind and so requires corroboration. We agreed
with the Judge's findings and directions. The appellant was well known to all
the prosecution witnesses and the offences were committed in broad day light.
The witnesses testified 19 years after the incident. We are of the opinion that
the inconsistencies and contradictions which were in their evidence were not
intended to deceive the court but were due to lapse of memory. The time and
places in our view are not material. The appellant was moving in a motor
vehicle and according to the indictment all the offences were committed at
Angal Village. The appellant was at Angal Village on the morning of 03-06-80,
committing the offences. The learned trial judge properly directed himself on
the law of dying declarations. He was right in our view to find corroboration in
the evidence of Celestino Okumu (PWl) as he found him to be a truthful
witness."
In the light of the evidence available on the record and the findings of the learned trial
judge we agree with the conclusions of the learned Justices of Appeal regarding
contradictions and inconsistencies in the evidence of the prosecution witnesses. The
fourth ground of appeal must fail.

The fifth ground of appeal is that the Court of Appeal erred in law in holding that
failure by the prosecution to call the Police Officers who investigated the case or
arrested the appellant did not weaken the prosecution case. In his submission under this
ground Mr. Kasule said that it was common ground that the appellant was tried 18
years after the crimes in this case were committed, and that no investigating and
arresting Police Officers were called as witnesses. Contrary to the prosecution case the
appellant's defence was that on the morning after the attack on his house, there was a
military operation in Angal. After the attack, his sister - in - law saw
someone running away from the appellant's home, who resembled Jurodamo Onen, the
subject of count II. Under these circumstances, Mr. Kasule contended, it was vital for
the prosecution to call the investigating Police Officer to testify about the events soon
after the incidents and about 17 years later. The learned counsel relied on - Bogere
Moses and Another -vs- Uganda, Crimina l Appea l No. 1 9 7 (SCU) (unreported).

In his submission in reply, Mr. Wamasebu said that at the trial, the prosecuting State
Attorney sought adjournments to call Police witnesses. Mr. Wamasebu conceded that
Police investigating Officers would have clarified certain matters in the case had they
given evidence. He contended, however, that failure to adduce evidence from them was
not fatal to the prosecution case.

At the trial of the case, Mr. Wagona the prosecuting State Attorney, sought and was
granted adjournments on 31-03-99, and on 01-04-99. The purpose of the adjournments
was to call prosecution Police witnesses who had been expected to come but did not
turn up. Thereafter, the trial record reads:
 "Wagona: I have failed to serve the witnesses I had intended to call. These
were the Police Officers who participated in inquiring and arresting and
interrogating the accused. They are believed to be in Gulu. On two occasions
they have failed to turn up. I have decided to dispense with them and now
close the prosecution case."

The effect of failure by the prosecution to call Police investigating and arresting
Officers to give relevant evidence at a trial was considered by this court in - Bogere
Moses and Another -vs- Uganda Crim ina l Appeal No. 1/97
(SCU) (unreported) , in which the court referred with approval to what Sir Udo
Udoma, CJ said in - Rwaneka -vs- Uganda (1967) EA, 768 at page 771.

"Generally speaking, Criminal Prosecutions are matters of great concern to

the State; and such trial must be completely within the control of the Police
and the Director of Public Prosecutions. It is the duty of the Prosecutors to
make certain that Police Officers who had investigated and charged an
accused person, do appear in court as witnesses to testify as to the part they
played and the circumstances under which they had decided to arrest and
charge an accused person. Criminal prosecutions should not be treated as if
they were contests between two private individuals."

This Court also followed its own earlier decision in - Alfred Bumbo and Others
-vs- Uganda, Criminal Appeal No. 28/94 (SCU) (unreported), in which it had
said:

"While it is desirable that the evidence of a Police investigating Officer and of

arrest of an accused person by the Police, should always be given, where
necessary, we think that where other evidence is available and proves the
prosecution case to the required standard, the absence of such evidence would
not, as a rule, be fatal to the conviction of the accused. All must depend on the
circumstances of each case whether Police evidence is essential, in addition,
to prove the charges."
We agree with the Court's view in - Rwoneka -vs- Uganda (supra); and in - Alfred
Bumbo and Others -vs- Uganda (supra).

At the trial, the prosecution made efforts to have investigating and/or arresting
Police Officers come to give evidence but were unsuccessful. The trial was
adjourned twice for that purpose. As the Police Officers were said to be in Gulu,
only about two Districts away from the venue of the trial, may be
the efforts would have been successful if more diligence was applied. However,
be that as it may, our view is that the absence of Police evidence was not fatal
to the appellant's conviction as there was other evidence to support the
conviction. The fifth ground of appeal must, therefore, fail.

The sixth ground of appeal is that the learned Justices of Appeal erred in law
when having held that the trial Judge considered the prosecution case in
isolation of the defence proceeded to hold that the appellant was properly
convicted and no prejudice was caused to him.

The sixth ground of appeal is similar to ground four in the appeal to the Court
of Appeal, which was that the learned trial Court erred in law and in fact when
he considered the case for the prosecution in isolation of the defence case,
finding the appellant guilty before considering his defence. The arguments there
were also similar.

As we understand this ground and the relevant arguments there appear to be two
different aspects of this ground of appeal. One is to the effect that the learned
Justices of Appeal erred by upholding the learned trial judge for first accepting
the prosecution evidence in isolation and then considering the appellant's
defence to see whether it rebutted the prosecution. The other is to the effect that
the learned Justices of Appeal also agreed with the learned trial Judge for
accepting the prosecution evidence and finding the prosecution case proved
beyond reasonable doubt before considering the contradictions and
discrepancies in the prosecution evidence.

Under this ground Mr. Kasule confined his attack to the learned judge's
finding that the appellant had shot and killed Veneranda, the
victim, in the first count, and the Court of Appeal's handling of that finding. He
submitted that the learned trial Judge found that it was the appellant who had
shot the deceased, Veneranda, before the considering his defence of alibi.

According to Mr. Kasule, the trial Court's judgment shows that the learned trial
judge convicted the appellant without considering the latter's defence of alibi
and the evidence of Karutu Kakusa ( (DW2). Further, that the learned trial judge
first considered all the evidence in support of the prosecution case and then
dealt with discrepancies in the prosecution evidence. Consequently, the
prosecution case was considered in isolation of the defence case and the
evidence of DW2. The Court of Appeal agreed with what the learned trial judge
did did. In addition, it did not consider the defence of alibi or any other defence
evidence.

The learned counsel relied on - Suleiman Katusabe -vs- Uganda Criminal Appeal
No. 7 of 1991, (S.C.U) (unreported), which was cited with approval by this Court
in - Bogere Moses & Another -vs- Uganda (supra).

Mr. Wamasebu conceded that the learned trial judge fell into the error pointed
out by Mr. Kasule, but submitted that the Court of Appeal as the first appellate
court looked at the evidence as a whole and found that there was sufficient
evidence to support the finding that the appellant shot and killed Veneranda.

We are troubled by the manner in which the learned trial judge appears to have
dealt with the appellant's alibi before finding him guilty on count I. His manner
of approach would appear to be contrary to what this Court said in - Kifamunte
Henry -vs- Uganda Cr. Appeal No. 10/97 (SCU) (unreported) and in - Bogere Moses
& Another - vs- Uganda, Cr. Appl. No. 1/97 (SCU) (unreported) .

In his judgment, the learned trial judge reviewed in detail the evidence of
each and every prosecution witness and the appellant's evidence of his
alibi. When considering the evidence before him regarding count I, he said:

"The fourth and most crucial issue now is whether it was the accused person
who was responsible for the killing of the deceased. The prosecution relied
normally on the evidence of Acelma (PW4) and Celestino Okurno (PW7) . The
evidence of Acelma (PW4) was to the effect that the accused went to her home
and asked her where Jurodano was. She told him that Jurodano could be at his
(Jurodano's) home at Nyaravur. The accused had a pistol. The accused shot
her hand (palm) with that pistol as she ran away. After running away she
(PW4) heard the deceased yelling and making an alarm. "Why has Okwonga
killed me." The circumstance that it was accused who was seen at the home of
Acelma with a gun; that the accused attacked Acelma and shot her on the arm
as she was running away and that as she was coming back she heard the
deceased cry in the name of the accused "why has Okwonga killed me" all go
to show that it was the accused who must have shot the deceased."

The evidence of Acelma was corroborated by that of Celestino Okumu (PW7)

who was an eye witness. He stated that he saw the accused person at the
home of Acelma (PW4) . The accused went in a car. He had a pistol.
Accused asked Acelma where Jurodano was. The accused looked very
angry/gloomy. The accused then shot Acelma on the arm. By then the
deceased was inside the house. When the deceased came out, the accused
shot her in the groin. The above evidence is also fortified by the dying
declaration of the deceased. When Acelma (PW4) returned home, soon
after being shot by the accused, she found the deceased lying in a pool of
blood. The deceased was not yet dead. She (deceased) was crying
repeatedly "why has Okwonga killed me.
In the instant case, I find that corroboration is provided in the evidence of
Celestino (PW7) who was an eye witness who saw the accused shot both
Acelma (PW4) and the deceased.

The defence relied on the defence of alibi and went ahead to deny any
involvement in this offence. I did warn the assessor that where an alibi is raised
it is the duty of the prosecution to disprove it. The duty of the accused person is
merely to raise it. The disproving- it is upon the prosecution as it is not the duty
of the accused person to prove or disprove his innocence and/or guilt.
 In the instant case, I was convinced by the evidence of Acelma (PW4) and
Celestino Okumu (PW7) who did see the accused as he went to the scene of the
crime and shot the deceased. The accused was placed at the scene of the crime.
I shall discuss the issue of contradiction and discrepancies raised in this case
after considering all other counts. Suffice it that I am satisfied that the
prosecution did prove beyond reasonable doubt that the accused was the one
who had killed the deceased. I do not agree with the gentleman
assessor that the accused was not properly put at the scene of the crime. I shall
discuss the discrepancies and contradiction which he relied upon in due course.
(the underlining is ours)

In their judgment, the learned Justices of Appeal agreed with the appellant's
criticism of the learned trial judge that he considered the prosecution case in
isolation of the defence and found the appellant guilty before considering the
defence, which procedure was fundamentally wrong. With respect, our view is
that such criticism of the learned trial judge is not justified, because the passage
of his judgment to which we have just referred above appears to indicate that he
considered the appellant's defence of alibi together with prosecution evidence
before concluding thus: "Suffice it that I am satisfied that the prosecution did prove
beyond reasonable doubt that the accused was the one who killed the deceased. I
do not agree with the gentleman assessor that the appellant was not properly- put at
the scene of the crime. "

This is especially so, we think,' because the learned trial judge was well aware
of the appellant's alibi, the evidence regarding which he had reviewed in detail.
May be it was a regrettable style that he did not say more in his consideration of
the appellant's defence of alibi.

It is also evident that he did not say expressly why he disbelieved the
appellant's alibi and believed the prosecution evidence, but this was implied in
what he said in regard to the evidence of Acelma (PW4) and Okumu (PW7).
In any case, we think, that even if the learned trial judge committed the kind of
errors criticized by this court in - Kifamunte Henry - v s- Uganda (supra), they
were cured by the Court of Appeal's re-evaluation of the evidence in this case as
a whole and making its own conclusions.

The Court of Appeal dealt with the matter this way:

"Submitting on ground six and ten together, the learned Counsel for the
appellant contended that the appellant's alibi was not considered by the court.
Relying on Bogere and Another (supra) Mr. Kasule submitted that the learned
trial judge should have given reasons why he believed the prosecution
evidence and not the appellant's alibi.

We appreciate Counsel's argument. However, we are satisfied that the

prosecution evidence put the appellant on the scene of crime at the material
time. Acelma (PW4) and Celestino (PW7) saw the appellant torturing
Jurodano Onen and putting his body in the boot of his car. This as we said
before was during broad day light. The appellant's alibi was that he was in
Kampala on 3rd June 1980, when the offences he was alleged to have
committed took place. He was at his home in Angal on 30th June 1980 when
his house was attacked. He reported to Nebbi Police Station and on advice of
the police, reported to the Military- Unit at Pakwach. The military police
carried on their investigations without him. He saw people at Angal Foot ball
pitch and heard that Jurodano Onen had been arrested. In cross-
examination theappellant testified that his sister, Agatha, who answered his
alarm, saw someone like Jurodano Onen running away from the appellant's
home. We find that by this evidence, the appellant put himself at the scene of
crime on the day Jurodano Onen was kidnapped. The appellant was a
prominent figure in the area and the prosecution witnesses knew him well. We
do not accept Mr. Kasule's contention that the witnesses implicated him in the
four offences nineteen years ago on political grounds. Had the learned trial
 judge considered all available evidence, he would have concluded, as we do,
that the appellant's alibi was a pack of lies. It is remarkable that the evidence
of Celestino Okumu (PWl) showed that there was a meeting in which the
appellant admitted the offences in question and he even promised to settle the
matter with him. Celestino Okumu was not challenged on these matters in
cross-examination. Grounds 6 and 10 fail."

The above passage shows that the Court of Appeal complied with its duty
provided for in rule 29 of the Court of Appeal Rules, which states:

"29(1) On any appeal from a decision of a High Court acting in the exercise of its
original jurisdiction, the Court may —

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

(b)...............................................................................................................''

Where these provisions have been applied, this court has interpreted it to mean
that on a first appeal from a conviction by a judge, the appellant is entitled to
have the appellate court's own consideration and views of the evidence as a
whole and its own decision thereon. As the first appellate court, the Court of
Appeal has a duty to rehear the case and to reconsider the material
evidence before the trial Judge. It must then make up its own mind not
disregarding the judgment appealed from but carefully weighing and
considering it. See - Pandya -vs- R (1951) EA 336; Ruwala -vs- R (1951) EA 510;
Okeno -vs- Republic (1912) EA 32; Kifamunte Henry -vs- Uganda. Cr. App. No . 10
of 1991. (SCU) (unreported) and Bogere and Another -vs- Uganda (supra), and the
more recent case of Odong Justine -vs- Uganda Cr. App. No. 13/2000 (SCU)
(unreported).
At the risk of repetition, but for the sake of clarity, this court put it this way in
the case of - Bogere Moses (supra):

"As a first appellate court, the Court of Appeal has power to take into
consideration, evidence lawfully adduced at the trial but overlooked in the
judgment of the trial court and to base its own decision on it. In doing so
however, the appellate court must bear in mind that it did not have the
opportunity to see and hear the witnesses, and should, where
available on record, be guided by impression of the trial judge on the manner
and demeanor of witnesses. What is more, care must be taken not
only to scrutinize and re-evaluate the evidence as a whole, but also to be
satisfied that the trial judge had erred in failing to take the
evidence into consideration."

In the instant case, we are satisfied that as the first appellate court, the Court of
Appeal re-evaluated the evidence in the case as a whole. It re-evaluated the
evidence of the various prosecution witnesses and that of the appellant about his
alibi, concluding that his alibi was a pack of lies. It then found that the
prosecution evidence and the appellant's evidence put him at the scene of crime.

Both the learned trial judge and the Court of Appeal held, in effect, that the
alibi was unsustainable because the prosecution evidence and the appellant's
own evidence put him at the scene of crime. What then amounts to an accused
person being put at the scene of crime? In Bogere Moses (supra), this court
answered the question as follows:

"We think that the expression must mean proof to the required standard that
the accused was at the scene of crime at the material time. To hold that such a
proof has been achieved, the court must not base itself on the isolated
evaluation of the prosecution evidence alone. Where the prosecution adduces
evidence shoving that the accused person was at the scene of crime, and the
defence not only denies it, but also adduces evidence showing that the accused
 person was elsewhere at the material time. It is incumbent on the court to
evaluate both versions judiciously and give reasons why one and not the other
version is accepted. It is a misdirection to accept the one version and hold that
because of that acceptance, per se the other version is unsustainable."

What this court said in - Bogere Moses and Another -vs- Uganda
(supra) and Suleiman Katusabe -vs- Uganda, (supra) is still good law.

We have already referred to the contradictions and inconsistencies in the

prosecution case, which the learned trial judge considered and resolved
as minor. After considering them, he ended his judgment by holding that the
prosecution had proved its case against the appellant beyond reasonable doubt.
He said:
"On the one hand I found the prosecution truthful. PW7 especially gave a
very detailed account of the incident to the extent that when this matter flared
up in the district, the accused proposed a meeting with the elders to negotiate
for blood compensation but later on failed to turn up on the scheduled date. All
in all I find that the prosecution has proved the case against the accused
beyond reasonable doubt in count 1 , 2 , and 4 ''.

This passage of the judgment of the learned trial judge clearly shows that he
reached the conclusion that the offences had been proved against the appellant
on the three counts after considering the inconsistencies and contradictions in
the prosecution and defence evidence, and resolving that they were minor.
About contradictions, the Court of Appeal said, inter alia:

"We agree with the submissions of counsel that the appellant was convicted
on counts I, II and IV and acquitted on count III before the contradictions
were considered. This being a first appellate court, the appellant is entitled to
have this Court's own consideration and re-evaluation of the evidence as a
whole. We have the duty to re-evaluate the evidence which was before the
 trial court and make up our mind, bearing in mind that we did not have a
chance to see the witnesses. See - Kifamunte Henry -vs- Uganda Cr. App. No.
10/97 (unreported. We find that there is sufficient evidence that the appellant
was seen in broad day light by PW4 and PWl committing the offences with
which he was convicted. As we said earlier, the contradictions in their
evidence are m inor. Had the learned trial judge considered the evidence in
the proper manner, he would have come to the same conclusion. As we have
pointed out already, there were no major contradictions. "

We are satisfied that the Court of Appeal came to the right decision in this
regard, and no miscarriage of justice was occasioned to the appellant.

In the circumstances, ground six must fail.

The seventh ground of appeal is that their Lordships of the Court of Appeal
erred in law when they held that the appellant's alibi was a park of lies and that
the prosecution evidence put the appellant at the scene of crime at the material
time. Mr. Kasule did not argue this ground. What we said in consideration of
ground six disposes of this ground as well. We do not see any merit in it. It
must also fail.

Ground eight of the appeal is that the Court of Appeal erred in holding that the
misdirection of the trial judge as to the burden of proof was of no effect and did
not cause a miscarriage of justice. Mr. Kasule did not argue this ground of
appeal, either. Nor did he show to us how the trial judge shifted the burden of
proof. Again, in view of what we said discussing ground six, we do not think,
strictly speaking, that there was a misdirection by the Court of Appeal on the
burden of proof. There was no shift of the burden of proof. In any case, even if
there was such a shift, in view of the Court of Appeal's re-evaluation of the
evidence in the case as a whole and making its own finding that the prosecution
had proved the three charges against the appellant beyond reasonable doubt, no
miscarriage of justice was thereby occasioned. Ground eight of appeal must
therefore, fail.

Ground nine of the appeal is that the Court of Appeal erred in law when, having
held that the proceeding of the trial was irregular, failed to hold that the
irregularity nullified the trial. The complaint in this ground of appeal is related
to the learned Justices of Appeal's comment at the end of their judgment as
follows:

"Before we take lea v e of th is case, w e w ish to comment on one matter.

During the trial of this case, when PWl was being cross-examined, one of the
gentlemen assessors sought leave of the trial judge to leave because his child
was sick. The judge dispensed with his attendance and continued the trial with
only one assessor. The procedure was irregular. The trial judge should have
adjourned the trial for a while to enable the assessor attend to his sick child
and then return. In case the gentleman assessor was unable to return, the
judge should have selected another assessor to replace him because PWl was a
hostile witness and his evidence was of no effect in the case. No other witness
had testified at that stage. "
Mr. Kasule contended that in the circumstances, the Court of Appeal should
have nullified the trial. He relied on - Mugisha Joseph -vs- Uganda Cr. App. No .
12 of 1984 (CAU) (unreported; and - Abudu Komakech -vs- Uganda, Cr. App. No.
1/88.(unreported). In the instant case, learned counsel contended, the
irregularity was not curable.

In reply, Mr. Wamasebu submitted that this matter was not raised as an issue in
the Court of Appeal, which expressed its view per incuriam. In any case, the
learned Principal State Attorney submitted, under section 67(1) of the Trial on
Indictment Decree 1971, the High Court has discretion to continue with a trial
in the presence of one assessor if the second assessor is prevented from
continuing with the trial for sufficient reasons. In the instant case, therefore, the
absence of one assessor during most of the trial did not render the trial a nullity.
Mr. Wamasebu contended that the instant case is distinguishable from the case
of - Abudu Komakech -vs- Uganda (supra).

Section 67(1) of the TID provides:

"67(1). If, in the course of a trial before the . High Court, at any time before
the verdict, any assessor is from sufficient cause prevented from attending
throughout the trial, or absents himself, and it is not practicable immediately
to enforce his attendance, the trial shall proceed with the aid of the other
assessors."

In the case of - Mugisha Joseph -vs- Uganda, Cr. Appeal No. 123/84 (CAU)
(unreported), the appellant was with another convicted of murdering three
persons in Masindi District in 1979, and sentenced to death. He appealed to this
Court on the grounds, inter alia, that the learned trial judge erred in proceeding
with the trial with only one assessor, thus rendering the trial a nullity. What
happened at the trial was that when the first prosecution witness came to testify
after the lunch adjournment one of the assessors could not continue to sit. It was
not clear what exactly happened. The record on that point read:

"Court: One of the assessors is unable to sit. We shall proceed with one
assessor."

Thereafter the trial continued although with only one assessor. Counsel for the
appellant Mr. Buyondo contended that the trial was a nullity in view of the
provision of section 3(1) of the Trial on Indictment Decree, which states as
follows:
 "3(1). Save as provided by any other written law, all trials before the High
Court shall be with the aid of assessors, the number of whom shall be two or
more as the Court thinks fit."

He also referred to section 67(1) of the T.I.D. and submitted that the provisions
of section 67(1) applies only when the court is sitting with three or more
assessors. In that case if one of them is unable to continue sitting, then the other
two assessors would suffice.

For the state, it was submitted by Mr. Zindonda, Senior State Attorney, that it
was quite in order for the High Court to continue with one assessor. He referred
to - Obura -vs- Uganda Cr. App. No. 1/81 (CAU) (unreported) , and Kashaija & 2
Others -vs- Uganda Cr. App. No. 131/16, (1977)HCB. 50. The Court then said:

"With respect we think Mr. Buyondo misconstrued the provision of section

67(1) of the Trial on Indictment Decree which provides as follows:

"If in the course of a trial before the High Court at any time before the
verdict; any assessor is for sufficient cause prevented from attending
throughout the trial, or absents himself, and it is not practicable
immediately to enforce his attendance, the trial shall proceed with the aid of
the other assessors."

In - Kashaija & 2 Others -vs- Uganda (supra), the High Court had sat, as usual,
with two assessors. During the course o f the trial, one assessor absented
himself, and the learned trial judge ordered the trial to proceed with the
remaining assessor. On appeal, it was argued for the appellant that what had
happened was an incurable irregularity because under section 67(1) of the Trial
on Indictment Decree, where an assessor absents himself the trial must proceed
"with the aid of other assessors." It was argued there, as it was argued by Mr.
Buyondo in Mugisha Joseph (supra) , that the word "assessors" is in the plural,
and means that there must always be more than one assessor.

The then Court of Appeal for East Africa did not agree. It held that by section 3
of the Interpretation Decree 1976, expressions in the plural includes singular
and it therefore followed that the word "Assessors" at the end of section 67(1) of
the Trial on Indictment Decree must be construed as meaning "Assessor" as the
case may be.

We agree with that interpretation, which was followed by the Court of Appeal of
Uganda in Obura -vs- Uganda (supra) and in Mugisha Joseph.

In - Mugisha Joseph (supra). Counsel for the appellant did not raise the question
whether there was sufficient cause for the absence of the second assessor. So
the point did not fall for decision. It would seem however, that the learned trial
judge in that case was satisfied that the assessor was unable to continue to sit.
In the instant case, our view is that although the prudent course would have
been for the trial judge to start the hearing afresh with new assessors because
the trial had not gone far, the learned trial judge was entitled under section
€7(1) of the Trial on Indictment Decree, to proceed with one assessor. We agree
with what the court said in - Mugisha Joseph -vs- Uganda (supra) , and in -
Kashaija & 2 Others -vs- Uganda (supra), and in - Obura -vs- Uganda (supra).
Those decisions are applicable to the instant case.

The case of - Abudu Komakech -vs- Uganda (supra), is distinguishable from the
instant case because although two assessors were sworn in before the
commencement of the trial one of them had disappeared when the trial
commenced. At his own instance, another person who had not been sworn in as
an assessor sat in his place as an assessor. When the learned trial judge realized
what had happened, he discharged the 'imposter,' assessor, so to speak, and
continued with one assessor until the end of the trial. In effect, therefore, the
trial in that case never commenced with two assessors. Consequently, this court
upheld the argument on appeal that the trial was a nullity. That was not the case
in the instant case.

In the instant case the trial started with two assessors, and when the second
assessor did not come back after the learned trial judge had permitted him to go
and attend to his sick child, the learned trial judge was entitled to continue the
trial with the aid of the remaining one assessor under the provisions of
section 67(1) of the T.I.D. In the circumstances, we find no merit in
ground nine of appeal. It must, therefore, fail.
Ground ten is that the Court of Appeal erred when it held that the suspended
sentences of 15 years imprisonment on convictions of kidnapping and attempted
murder were not harsh and excessive. This ground appeals against severity of
15 years imprisonment. Under section 6(3) of the Judicature Statute, 1993 such
an appeal should not have been brought to this Court. The ground of appeal is
therefore, incompetent. We do not have to consider it.

We are satisfied that the appellant was rightly convicted. There was ample
evidence to support the convictions on the three counts of the indictment,
namely, counts I, II and IV.

The convictions are accordingly upheld.

In the result the appeal must fail. It is accordingly dismissed.

Dated at Mengo this 10th Day of January 2002.

B. J. ODOKI
CHIEF JUSTICE

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

J. N. MULENGA
JUSTICE OF THE SUPREME COURT

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

A. N. KAROKORA
JUSTICE OF THE SUPREME COURT