Sesawo s o kermesi v Uganda [1978] UGSC 10

Supreme Court · 1978 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal from High Court conviction and sentence for murder

Decision

Murder conviction quashed; manslaughter conviction substituted; appellant sentenced to 5 years' imprisonment.

The full judgment

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Holding

The court held that the non-compellability of a spouse under s.119 of the Evidence Act is a privilege personal to the witness and cannot be claimed by the accused; failure to warn the witness was not a fatal irregularity, especially as she did not object. The identification evidence by witnesses who knew the appellant was properly accepted, and gaps in the prosecution case were not prejudicial. However, given evidence of prolonged drinking, s.13(4) of the Penal Code required intoxication to be weighed in determining intent, and malice aforethought was not proved beyond reasonable doubt. The appeal was allowed to the extent that the murder conviction was quashed and manslaughter substituted, with five years' imprisonment.

Facts

On 1 May 1977 (Labour Day) the appellant and his two wives attended a beer party at the home of Semuyinga. The evidence about how much was drunk was conflicting. At about 9 p.m. an alarm was raised and the deceased, one of the appellant's wives, was heard crying out as she was attacked with a panga. Nakate, the surviving wife, and Katunguka, the deceased's son, testified that they saw the appellant cutting the deceased near his house, around the neck. Neighbours answered the alarm; the appellant was at the scene and led them to the body, found about 100 yards away, bloodstained with a cut to the neck. The appellant's clothes were bloodstained and he produced a bloodstained panga. The appellant claimed he had been drinking for a long time before the incident and that both wives had earlier left him at the party. The deceased and the appellant were said to be on good terms, and no motive for the killing was apparent.

Issues

Whether the failure to inform a spouse witness of her privilege of non-compellability under s.119 of the Evidence Act before receiving her evidence rendered the evidence inadmissible or amounted to a fatal irregularity.
Whether the appellant was properly identified as the assailant despite contradictions in the evidence and the poor lighting conditions.
Whether the prosecution's failure to produce the bloodstained panga and to call chiefs or police officers to prove the recovery and identity of the body was fatal to the conviction.
Whether, taking into account the appellant's intoxication, the prosecution proved malice aforethought beyond reasonable doubt.

Orders

Appeal allowed to the extent that the conviction for murder is quashed.
Conviction for manslaughter substituted.
Appellant sentenced to 5 years' imprisonment.

Key headnotes

Evidence — Competence and Compellability of Spouses — Evidence Act s.119

Under s.119 of the Evidence Act the spouse of an accused is a competent but not compellable witness for the prosecution; the privilege of non-compellability is personal to the witness and cannot be claimed by the accused.

Evidence — Spousal Privilege — Failure to Warn Witness

Failure to inform a spouse witness of the privilege of non-compellability before receiving the evidence is not a fatal irregularity and does not occasion a miscarriage of justice, particularly where the witness raised no objection to testifying.

Criminal Law & Procedure — Identification — Recognition of Known Persons

Identification evidence may be safely relied upon where the witnesses know the accused well and had adequate opportunity and light to recognise him at close range, notwithstanding minor contradictions that do not go to the root of the case.

Criminal Law & Procedure — Intoxication — Effect on Specific Intent (Penal Code s.13(4))

Even where intoxication does not amount to a defence under s.13(1) of the Penal Code, it must be taken into account under s.13(4) in determining whether the accused formed the intention, specific or otherwise, required for the offence.

Criminal Law & Procedure — Murder — Proof of Malice Aforethought

Where evidence of intoxication raises doubt, the test is whether, on all the evidence including that relating to drink, the prosecution has proved beyond reasonable doubt that the accused had the requisite intent; failure to discharge that onus reduces murder to manslaughter.

Legislation cited (4)

Evidence Act s.119
Penal Code Act s.13(1)(a)
Penal Code Act s.13(1)(b)
Penal Code Act s.13(4)

Cases cited (3)

Tefuro Tibyasansa v Uganda (Criminal Application No. 169 of 1975)
Rashidi v R (1969) EA 138
R. v. Kiaglake (1870) 22 L.T.p.333

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.