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Nuuhu v Uganda (Criminal Appeal 3 of 2004)

Supreme Court · [2005] UGSC 31 · 2005 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal's confirmation of a High Court conviction for kidnapping with intent to murder
Decision
Appeal dismissed; conviction for kidnapping with intent to murder and sentence of 20 years imprisonment confirmed

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Holding

The Supreme Court dismissed the second appeal against conviction for kidnapping with intent to murder. The Court of Appeal had properly re-evaluated the evidence; PW1's identification evidence as a single witness was corroborated by her contemporaneous distressed report to PW3, which satisfied section 155 of the Evidence Act. The omission of section 235(2) of the Penal Code Act from the statement of the offence did not occasion a miscarriage of justice, as the particulars adequately informed the appellant of the charge; the child remaining unaccounted for over six months meant intent to murder was rightly presumed. The alibi was properly rejected. By section 5(3) of the Judicature Act, no appeal lies to the Supreme Court against severity of sentence.

Facts

The appellant and PW1, his niece, lived together as husband and wife and produced a baby boy, Ibrahim Kibuka. PW1 later left the appellant's home. On the night of 24 October 1998, the appellant twice sent for PW1; on the second occasion she brought the crying child with her. When she met the appellant he asked to hold the child, as he had done before. PW1 handed the child over; the appellant did not return him but entered a stationary special-hire vehicle and was driven away with the child. PW1 immediately returned to PW3, crying, and reported that the appellant had taken the child. Reports were made to relatives and the police, and the appellant was later arrested. The child has never been seen alive again. The appellant denied the charge and raised an alibi that he was at the mosque praying at the material time, which the trial court rejected.

Issues

  1. Whether the Court of Appeal, as first appellate court, properly re-evaluated the evidence and rightly confirmed the conviction for kidnapping with intent to murder.
  2. Whether the evidence of the single identifying witness (PW1) was corroborated, including whether PW3's evidence amounted to corroboration under section 155 of the Evidence Act.
  3. Whether the specific intent to murder was established, and whether the omission of section 235(2) of the Penal Code Act from the statement of the offence occasioned a miscarriage of justice.
  4. Whether the Court of Appeal erred in rejecting the appellant's defence of alibi.
  5. Whether the appellant could appeal to the Supreme Court against the severity of the 20-year sentence.

Orders

  • Appeal dismissed.
  • Conviction and sentence of 20 years imprisonment confirmed.

Key headnotes

Criminal Law & Procedure — Second Appeals — Scope of Re-evaluation of Evidence
Except in the clearest of cases, the Supreme Court as a second appellate court is not required to re-evaluate the evidence as a first appellate court would; it intervenes only where the first appellate court failed in its duty to scrutinise and re-evaluate the evidence of both sides.
Evidence — Corroboration — Former Statement of Witness under Section 155 of the Evidence Act
A former statement made by a witness at or about the time the fact took place, or before any authority legally competent to investigate the fact, is provable as corroboration of that witness's testimony under section 155 of the Evidence Act; the complainant's contemporaneous distressed report identifying the accused may corroborate her own identification evidence.
Criminal Law & Procedure — Kidnapping with Intent to Murder — Presumption of Intent under Section 235(2) Penal Code Act
Where a kidnapped person is not seen or heard of within six months or more, the accused is presumed to have had the intention and knowledge to murder under section 235(2) of the Penal Code Act; reliance on this presumption relieves the prosecution of further proof of intention.
Criminal Law & Procedure — Indictment — Omission of Statutory Sub-section from Statement of Offence
The omission of section 235(2) of the Penal Code Act from the statement of the offence does not occasion a miscarriage of justice or prejudice the accused where the particulars of the offence sufficiently convey the offence charged.
Criminal Law & Procedure — Defence of Alibi — Burden and Evaluation
An accused who raises a defence of alibi does not bear the burden of proving it; where the defence adduces evidence that the accused was elsewhere, the court must judicially evaluate both versions and give reasons for accepting one over the other.
Criminal Law & Procedure — Appeals to Supreme Court — Bar on Appeals Against Severity of Sentence
Under section 5(3) of the Judicature Act, an accused may appeal to the Supreme Court against a sentence only on a matter of law, not including the severity of the sentence; where the sentence is lawful, a ground challenging its severity must fail.

Legislation cited (6)

  • Penal Code Act s.235(1)(a)
  • Penal Code Act s.235(2)
  • Evidence Act s.155
  • Judicature Act s.5(3)
  • Judicature Act s.6(1)(a)
  • Trial on Indictments Decree s.22

Cases cited (12)

  • Mukoome Moses Bulo v Uganda (Criminal Appeal No. 12 of 1995)
  • Ibrahim Bilal v Uganda (Criminal Appeal No. 5 of 1995)
  • Abbasi & Anor v Uganda (Criminal Appeal No. 10 of 1995)
  • Bogere Charles v Uganda (Criminal Appeal No. 10 of 1997)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses & Komba v Uganda (Criminal Appeal No. 1 of 1997)
  • Godfrey Tinkomarirwe & Anor v Uganda (Criminal Appeal No. 5 of 1986)
  • Ndaula John v Uganda (Criminal Appeal No. 22 of 2000)
  • Sekitoleko v Uganda [1967] EA 531
  • R v Johnson [1961] All ER 967
  • Leonard Aniseth v Republic [1963] EA 206
  • Moses Bogere & Another v Uganda (Criminal Appeal No. 1 of 1997)
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.