THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO
(CORAM: TSEKOOKO, KATUREEBE, OKELLO, TUMWESIGYE AND
5 KISAAKYE, JJ.SC.)
CRIMINAL APPEAL NO. 22 OF 2004
BETWEEN
ORYEM RICHARD: :::::: :::::: :::::: :::::: APPELLANT
AND
10 UGANDA: :::::: :::::: :::::: :::::: RESPONDENT
(An appeal from the Judgment and Orders of the Court of Appeal (Mpagi-
Bahigeine, Kitumba and Byamugisha, JJ. A), dated 14 th October 2004, at
Kampala in Criminal Appeal No.61 of 2001 from High Court Civil Suit No.
64 of 1992).
15
Criminal procedure – aggravated robbery – C/S 272 AND 273 (2) of the
Penal Code Act – Rule 30(1) of the Court of appeal rules – duty of the first
appellate court to re-evaluate evidence on record and come to its own
conclusion – whether failure to discharge that duty constitutes an error of
20 law.
Evidence – proper identification – whether appellant was properly identified

JUDGMENT OF THE COURT

This is a second appeal from the decision of the Court of Appeal which confirmed the conviction
25 and sentence passed by the High court.
The prosecution case as accepted by the two lower courts is that on 07-07-99 at about
7.30 p.m. at Nyendo Motor Cycle Riders’ (Boda - Boda) Stage in Masaka District, the appellant,
Oryem Richard, and A1 (who did not appeal), approached the complainant, Mbogo, PW.7 who
was a boda-boda rider. They asked him to transport them to Captive. He had not known them
30 before. However, after ten minutes of negotiation they agreed on the fare and set off for the
destination. On the way along Captive Road, the appellant and A1 told the complainant that they
 had reached. When the complainant stopped, the appellant and A1 ordered him to surrender the
motor cycle or lose his life. One of the assailants pulled out a knife which he held threateningly
at the complainant. At this stage, the scared complainant surrendered to the assailants the key of
the motor cycle and they rode off. The complainant meanwhile returned to Nyendo boda-boda
5 stage where he reported to his fellow boda-boda riders what had happened to him. The report
sparked off sympathy from the boda-boda riders who rode in two directions chasing the robbers.
Some rode towards Captive, the direction taken by the robbers, while others rode towards the
Town making alarm which alerted many people. The appellant and A1 were sighted at a Petrol
Station refueling the motor cycle. Hearing the alarm and sensing danger, the two rode off on the
10 motor cycle as they were chased. Soon they fell off the motor cycle and A1 was arrested. He
sustained injuries on the left side of his head, shoulder, left forearm and on the right knee joint.
The appellant however, escaped but was arrested a week later. At the time of his arrest, he
attempted to run away. He had some injuries and scars.

The two were eventually charged with capital robbery contrary Sections 272 and 273 (2) of the
15 Penal Code Act which they both denied. At the trial, the appellant set up an alibi in his defence
stating that he was in the church at the time when the offence was allegedly committed.

In his judgment, the trial judge while holding that he was satisfied that the appellant participated
in the commission of the offence, observed on the evidence of identification by PW.7 that “PW.1
(sic) stated that it was A2 who even negotiated the fare. He talked to him for 10
20 minutes and could not have forgotten him so soon. The identification of A2 by A1 (sic) is
supported by the conduct of the accused when he was met by PW.4, Twesiime. PW.4 testified
that when he asked A2 about the motor cycle, A2 attempted to run away and PW.4 was just
helped by other people to arrest him”. From the said evidence of PW.4 on the conduct of the
appellant, the learned trial judge drew an inference that “such was the conduct of a guilty
25 person.” He then convicted the appellant of simple robbery and sentenced him to 10 years
imprisonment.

The appellant’s appeal against conviction to the Court of Appeal was dismissed. He has now
appealed to this court on the following two grounds:-
 (1) The learned Justices of Appeal erred in law when they failed to properly direct
themselves on the evidence of identification implicating the appellant.

(2) The learned Justices of Appeal erred in law when they relied on inference drawn
from circumstantial evidence that is not supported by the evidence on record.

5 At the hearing of the appeal, Mr. Stephen Mubiru, learned counsel for the appellant argued the
two grounds together. He criticized the learned Justices of Appeal for their failure while re-
evaluating the evidence to consider whether PW.7 on whose evidence of identification the
learned trial Judge so heavily relied, had known the appellant before this incident or not. He
submitted that if PW.7 had not known the appellant before, as he admitted in his evidence, then
10 in the absence of evidence of an identification parade to test the evidence of PW.7 claiming to
have identified the appellant at the scene of crime, that evidence of identification should not have
been found devoid of error as dock identification has its limitations. Dock identification cannot
test the evidence of a stranger witness claiming to have identified the suspect at the scene of
crime.

15 Learned counsel further criticized the re-evaluation of the evidence by the learned Justices of
Appeal when in so doing, they did not notice that the learned trial judge drew an inference from
circumstantial evidence which is not supported by the evidence on record. He pointed out that in
his judgment, the trial judge stated that P.W.4 testified that when he asked A2 about the motor
cycle, A2 attempted to run away. Learned counsel submitted that the alleged inquiry by PW.4 of
20 the appellant about the motor cycle is not reflected in the evidence of PW.4. According to
counsel, had the learned Justices of Appeal properly re-evaluated the evidence on record, as they
should have, they would have found that there is no evidence to link that conduct of the appellant
to guilt. The attempt to run away could be explained on the appellant’s earlier brush with the
law. He finally submitted that there was not sufficient evidence to sustain the conviction of the
25 appellant and prayed that it be quashed, sentence set aside and the appellant set free.

Mr. Vincent Okwanga, Senior Principal Sate Attorney and learned counsel for the respondent,
supported the confirmation of the appellant’s conviction by the Court of Appeal. While
conceding that the evidence of PW.4 regarding the circumstances of the arrest of the appellant is
not clear, Mr. Okwanga contends that the evidence of PW.4 still connects the appellant to the
 offence. He pointed out that PW.4 saw the appellant and A1 conversing only one hour before the
robbery of the motor cycle and that at the time of his arrest the appellant had scars and bruises.
He submitted that the conduct of the appellant in attempting to run away at the time of his arrest
was not the conduct of an innocent person. He concluded that there is sufficient evidence to
5 support the appellant’s conviction and prayed that the appeal be dismissed.

The issue here is whether the Court of Appeal failed in its duty to carefully re-evaluate the
evidence on record and that if it had done so it would have come to a different conclusion.

We should point out at this stage that rule 30 (1) of the Court of Appeal Rules places a duty on
the Court of Appeal, as first appellate court, to re-appraise the evidence on record and draw its
10 own inference and conclusion on the case as a whole but making allowance for the fact that it has
neither seen nor heard the witnesses. This gives the first appellate court the duty to re-hear the
case. This principle was re-stated in the much cited case of PANDYA V R (1957) EA 336 AT
337 and was subsequently repeated in several decisions of this court. See Bogere Moses & Anor
Vs Uganda, Cr. Appeal No. 1 Of 1997, Bogere Charles Vs Uganda, Cr. Appeal No. 10 OF
15 1998 to mention but a few.

In the latter case, this court stated that failure to discharge that duty constitutes an error of law.

In the instant case, the Court of Appeal considered the appellant’s appeal before it by first
observing that the learned trial judge carefully directed his mind to the law regarding
identification by a single witness in terms of the principle laid down in NABULERE AND
20 OTHERS VS UGANDA, CR. APPEAL NO. 1 OF 1978 (UNREPORTED). Thereafter, it cited a
passage from the judgment of the trial judge where he considered the conditions under which
P.W.7 claimed to have identified the appellant. The following was the passage cited:-

“In the instant case, it was 7.30 p.m. which in tropical Uganda was still light
enough to see a person with all his facial features and stature if near. The two
25 people talked to P.W.7 for 10 minutes before they rode off. The distance from
P.W.7 and the people who hired the motor cycle was with all the proximity one
would require to talk to the other on a subject that required negotiation. In all the
length of time, the distance from each other and the light conditions were all so
favourable for positive identification of the two by P.W.7 would not have required
 corroboration. Although it would have sufficed without corroboration, it was
corroborated in many particulars.”

After that, the learned Justices of Appeal referred to the appellant’s alibi which they summarily
dismissed as a blatant lie as P.W.4 had seen the appellant and co-accused conversing an hour or
5 so before the robbery. The learned Justices of Appeal also observed that a proven lie could be
supporting evidence against the appellant.

Then they cited the following passage from P.W.4’s evidence;

“I had known Oryem Charles. He was staying in the Police Barracks where I also
stay. Oryem is the tall accused…………… On 16.7.99, I was coming to court
10 escorting a suspect, I saw Oryem and I arrested him……………. He had scars and
wounds. He attempted to run away but I arrested him”

On the above passage, the Court of Appeal commented as follows:-

“We entertain no doubt that if the appellant had nothing to be afraid of he had a
moral obligation to cooperate with the arresting officer and explain to him that the
15 officer was perhaps mistaken. This conduct was corroborative of the other
identification evidence”

Then it dismissed the appellant’s alibi as a mere smoke screen intended to mislead and deceive
the court. It found that the appellant actively participated in the crime.

It appears to us from the above excerpts, the Court of Appeal clearly did not re-appraise the
20 evidence, especially of PW.7 who was the sole identifying witness. Identification of the appellant
was challenged on appeal before the Court of Appeal in ground No. 1. In that regard, the
appellant expected a re-evaluation of all the evidence relating to identification vis-a vis the alibi
put up by him in his defence. This was not done. This was a failure by the Court of Appeal to do
what the law expects of it. Had it done so, the Court of Appeal would have found that, despite
25 the conditions under which the witness claimed to have identified the appellant though described
by the learned trial judge as favourable for positive identification, the appellant was a stranger to
P.W.7 the sole identifying witness. The witness himself emphatically admitted so. Therefore, the
 Court of Appeal would have found that the evidence of that witness needed testing to confirm his
claim of identification at the scene of crime.

In STEPHEN MUGUME VS UGANDA CR. APPEAL NO. 20 OF 1995, this court emphasized
that identification parade should be conducted in cases where suspects are strangers to the
5 identifying witnesses.

In the instant case, the appellant was a stranger to P.W.7. There was therefore need to conduct an
identification parade to give him opportunity to pick his attackers. The circumstantial evidence
provided by P.W.4 was stated to corroborate P.W.7’s evidence of identification. The learned trial
judge at page 52 of his typed judgment stated as follows:-

10 “The identification of A 2 by A.1 (sic) is supported by the conduct of the accused

when he met PW 4, Twesiime. PW 4 testified that when he asked A 2 about the motor
cycle, A 2 attempted to run away and PW.4 was just helped by other people to arrest
him. This was an act of a guilty person”

In its judgment, after reproducing a portion of PW.4’s evidence relating to his knowledge of the
15 appellant before the motor cycle robbery, his claimed sighting of the appellant and A1
conversing an hour before the motor cycle robbery, the appellant’s attempted running away and
his having had scars and wounds at the time of his arrest, the Court of Appeal confirmed that the
conduct of the appellant was not the conduct of an innocent person. In that way the Court of
Appeal confirmed what the trial judge had said.

20 Clearly, the Court of Appeal did not properly re-evaluate the evidence of this witness. Had it
done so, as it should have, it would have found that the evidence of PW.4 was wanting in several
aspects. Firstly, PW.4 did not state any where in his entire evidence that he had asked the
appellant about the motor cycle as is contained in the judgment of the trial judge. PW.4 stated in
his evidence only that at the time of his arrest the appellant attempted to run away. Secondly,
25 PW.4’s claim that he saw the appellant and A1 conversing an hour before the robbery of the
motor cycle cannot be taken to be devoid of mistaken identity. PW.4 neither stated the distance
between him on the one hand and the appellant and A on the other nor did he claim to have
talked to them. Therefore, the claim by PW.4 that he saw the appellant and AI conversing is not
devoid of mistake identity.
 We are further unable to accept that the attempted running away of the appellant was explainable
to only his fear for the motor cycle robbery case. This is borne out from P.W.4’s own evidence in
cross-examination when he stated to the effect that at the time of his arrest, the appellant was
facing another robbery charge and that he was probably on bail and might have been going to
5 court. The attempted running away could therefore be explainable on the appellant’s earlier
brush with the law and was fearing that his bail was being wrongfully cancelled.

On the scars and wounds which P.W.4 stated that the appellant had at the time of his arrest, we
could find no evidence on record to connect those scars and wounds to the motor cycle robbery.
The evidence of PW.4 which is stated to corroborate the evidence of identification is therefore
10 itself wanting in the result that it cannot corroborate another evidence. Therefore, there is
insufficient evidence connecting the appellant to the motor cycle robbery in the result that there
is insufficient evidence to support his conviction.

In this regard we should reiterate what was stated by this court in MUTAGUBYA GODFREY
VS UGANDA, CR. APPEAL NO. 8 OF 1998 that:-

15 “A Court of justice is under a duty to ensure that people who commit crimes are
punished in accordance with the process of the law. This includes proper process of
investigations and proof by satisfactory evidence that the suspect is guilty.

In the instant case, we are not satisfied that the above standard of proof is met.
Consequently, we allow the appellant’s appeal, quash his conviction and set aside the
20 sentence imposed on him. We also order that he be set free forth with unless he is being
held on some other lawful ground.

Dated at Mengo this: 27th day of: January, 2010.

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

B. M. KATUREEBE
 JUSTICE OF THE SUPREME COURT

G. M. OKELLO
JUSTICE OF THE SUPREME COURT
5
J. TUMWESIGYE
JUSTICE OF THE SUPREME COURT

E. M. KISAAKYE
10 JUSTICE OF THE SUPREME COURT