Tumusiime & Ors V Uganda (Criminal Appeal No. 13 03)

Court of Appeal · [2009] UGCA 50 · 2009 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal against conviction and sentence for murder and aggravated robbery from the High Court

Decision

Appeals against conviction dismissed; convictions for murder and aggravated robbery upheld.

The full judgment

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Holding

The Court of Appeal dismissed the appeals against conviction for murder and aggravated robbery. It held that the deceased's dying declaration naming the second appellant was admissible under section 30 of the Evidence Act and was sufficiently corroborated by circumstantial evidence, including the recovery of the gun and the appellants' disclosures. The retracted and repudiated confessions of the first and second appellants were found to be true and corroborated. The third appellant, who supplied the gun and army uniform, was a principal offender under sections 19 and 20 of the Penal Code Act through aiding and abetting and common intention. The prosecution had proved its case against all appellants beyond reasonable doubt.

Facts

On 18 January 2001 at about 8 p.m, the complainant (PW1) and his family were having supper when an armed man in military uniform, flashing a torch, entered the house demanding ten million shillings. Two further assailants entered, forced the complainant to surrender two million shillings, and shot his wife in the chest. Before dying she told her son (PW2) that 'Boss', the second appellant's nickname, had shot her. Security agencies arrested the first and second appellants the same night; they disclosed that the gun and army uniform belonged to the third appellant, a District Internal Security Organization official, and that the gun was hidden under a mattress, where it was recovered in the presence of the Local Council Chairperson. The third appellant was arrested the next morning. He claimed the gun had been stolen from his home around 8 p.m while he was at a bar, but the trial judge found him and his wife to be liars, as the gun was in use at the scene at that time.

Issues

Whether the dying declaration identifying the second appellant was properly admitted and sufficiently corroborated.
Whether the gun recovered in a search conducted in the absence of the appellants was properly admitted in evidence.
Whether the repudiated and retracted confessions of the first and second appellants were properly admitted and acted upon.
Whether the defence of alibi was destroyed by the prosecution evidence.
Whether the participation of all three appellants in the offences was proved beyond reasonable doubt.

Orders

Appeal against conviction dismissed for all three appellants.

Key headnotes

Evidence — Dying Declarations — Corroboration and Conditions of Identification

A dying declaration as to the cause of death is admissible under section 30 of the Evidence Act, but where it identifies an attacker in conditions of poor visibility it must be corroborated and the court must be certain the maker was not mistaken in the identification before acting upon it.

Criminal Law & Procedure — Retracted and Repudiated Confessions — Need for Corroboration

As a matter of prudence a court should warn itself that it is dangerous to act upon a retracted or repudiated confession in the absence of corroboration in some material particular, but may convict on it where fully satisfied in the circumstances that the confession is true.

Evidence — Discovery of Facts — Admissibility of Information Leading to Recovery

Under section 29 of the Evidence Act, information from an accused leading to the discovery of a fact is admissible against the maker insofar as it relates distinctly to the fact discovered, whether or not it amounts to a confession.

Criminal Law & Procedure — Principal Offenders — Aiding, Abetting and Common Intention

A person who supplies the weapon and means used in committing an offence is a principal offender under sections 19 and 20 of the Penal Code Act, being deemed to take part in the offence by aiding and abetting or by common intention to prosecute an unlawful purpose, even where not actually present at the scene.

Legislation cited (6)

Evidence Act (Cap 6) s.30
Evidence Act (Cap 6) s.29
Evidence Act (Cap 6) s.23
Evidence Act (Cap 6) s.24
Penal Code Act s.19
Penal Code Act s.20

Cases cited (5)

Uganda v Simbwa (Criminal Appeal No. 37 of 1995)
Okale and Others v Republic [1965] EA 555
Jasinga Akum v R (2) 1952 21 EACA at page 334
Anyangu v R [1968] EA 232
Tuwamoi v Uganda [1967] EA 84

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.