Wakilii

Sowedo Ndosire v Uganda (Criminal Appeal No. 28 of 1989)

Supreme Court · [1990] UGSC 31 · 1990 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder, against both conviction and sentence
Decision
Murder conviction quashed and death sentence set aside; conviction for manslaughter substituted and appellant sentenced to 10 years' imprisonment.

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Holding

The Supreme Court allowed the appeal against a murder conviction, holding that the trial judge wrongly rejected the defence of provocation. The judge had placed undue weight on inadmissible hearsay evidence of previous attacks, ignored corroborative police evidence of broken sticks supporting the appellant's account that the deceased struck him first, and substituted his own conjecture for evidence in finding the appellant waylaid the deceased and that his passion had cooled. A hard blow with a stick was a wrongful act likely to deprive an ordinary person of self-control, and there was no evidence of an interval allowing passion to cool. The conviction of murder was quashed and a conviction for manslaughter substituted.

Facts

On 10 October 1985 at about 7.00 p.m., the deceased, Peter Bakandema, was returning home when he met his son, the appellant, about 350 feet from their shared home. A fight broke out and the appellant cut the deceased with a panga, inflicting injuries from which the deceased died the same night. Two eyewitnesses, the deceased's son (PW7) and the appellant's mother (PW8), responded to the deceased's alarm and found the appellant cutting the deceased; PW7 said the appellant also cut him. Medical evidence showed deep cut wounds to both sides of the neck, a scalp wound fracturing the frontal bone, and a fractured left arm; death resulted from haemorrhage of the left carotid artery and jugular vein. There was no dispute the appellant caused the death; the only issue was malice aforethought. In an unsworn statement the appellant said his drunken father struck him hard on the back with a stick, breaking it, and that the panga cut the deceased during a struggle over the weapon. Police recovered two pieces of broken stick at the scene.

Issues

  1. Whether the appellant killed the deceased with malice aforethought, or whether the killing was committed in the heat of passion caused by sudden provocation so as to reduce the offence from murder to manslaughter.
  2. Whether the trial judge erred in relying on inadmissible hearsay evidence of alleged previous attacks and in substituting conjecture for evidence when rejecting the defence of provocation.

Orders

  • Appeal allowed.
  • Conviction of murder quashed.
  • Sentence of death set aside.
  • Conviction for manslaughter contrary to section 182 of the Penal Code substituted.
  • Appellant sentenced to 10 years' imprisonment.

Key headnotes

Criminal Law — Murder — Provocation — Conditions reducing murder to manslaughter under Penal Code ss.187–188
A charge of murder is reduced to manslaughter on the ground of provocation where the death is caused in the heat of passion before there is time to cool, the provocation is sudden and caused by a wrongful act or insult of such a nature as would be likely to deprive an ordinary person of the accused's class of the power of self-control, and is such as to induce the person provoked to assault the person who offered it; individual idiosyncrasy is of no avail.
Criminal Law — Provocation — Use of a deadly weapon does not exclude the defence
Where the provocation is likely to induce an assault of any kind, the accused should be found guilty of manslaughter and not murder, irrespective of whether the assault was carried out with a deadly weapon such as a panga or by other means calculated to kill.
Evidence — Hearsay — Inadmissibility of a witness's account of attacks she did not witness
A witness's evidence of previous attacks which she did not herself witness is inadmissible hearsay and ought not to be admitted on the record, still less relied upon to explain the accused's subsequent conduct.
Evidence — Findings of fact — Judge must not substitute conjecture for evidence
A trial judge errs where, in rejecting a defence, he substitutes his own conjecture for evidence and disregards admitted evidence that corroborates the accused's account; an appellate court will interfere where the conclusion is not supported by the evidence on record.

Legislation cited (3)

  • Penal Code Act s.187
  • Penal Code Act s.188
  • Penal Code Act s.182

Cases cited (4)

  • Rex v Hussein s/o Mohamed (1942) 9 EACA 152
  • Yovan v Uganda [1970] EA 405
  • BENDICTO SIMBA OGWANG ( un reported) Criminal Appeal No.14 of 198? (Supreme Court of Uganda)
  • Ofono v Uganda [1977] HCB 210
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.