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Yoda Atiku & Anor v Uganda [2012] UGSC 9

Supreme Court · 2012 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from Court of Appeal affirming High Court conviction and death sentence for aggravated robbery
Decision
Conviction for aggravated robbery upheld; Court of Appeal order confirming the death sentence set aside and the file remitted to the High Court for submissions in mitigation of sentence.

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Holding

The appellants were convicted of aggravated robbery and sentenced to the then-mandatory death penalty, affirmed by the Court of Appeal. On appeal, the Supreme Court held that the courts below properly re-evaluated the identification evidence: the witnesses recognised the appellants, who were their well-known employees, by torchlight at close range, and the conviction was upheld. However, following Attorney General v Susan Kigula and Ambaa Jacob, the Court held that the mandatory death sentence had been declared unconstitutional and was void, so the Court of Appeal had no competent appeal against sentence before it. The order confirming the death sentence was set aside and the file remitted to the High Court for submissions in mitigation.

Facts

PW2, a 72-year-old man, employed the two appellants, who lived in a separate house within his homestead at Kijunjubwa, Masindi District. On 7 November 2001 the appellants drove PW2's five head of cattle to market, where he sold them for shs. 1,500,000 in their presence and returned home with shs. 300,000. That night, at about 2:00 a.m., three men carrying pangas and torches entered PW2's small mud-and-wattle house, which had no door shutters. They demanded money, and PW2 identified two of the attackers as the appellants by torchlight at close range; the unidentified third attacker cut him on the knee with a panga, causing severe bleeding. The attackers took shs. 300,000, two suitcases of clothes and household items. The appellants were absent from their residence that night and were arrested the following evening. PW2's eyesight deteriorated only after the robbery. The appellants denied the offence and raised an alibi, which the trial court rejected.

Issues

  1. Whether the appellants were properly identified at the scene of the crime under conditions that were unfavourable for correct identification.
  2. Whether, in view of Attorney General v Susan Kigula & 416 Others, the Court of Appeal ought to have remitted the case to the High Court to enable the appellants to make submissions in mitigation of sentence rather than itself dealing with the death sentence.

Orders

  • Ground one of the appeal (identification) fails; the conviction is upheld.
  • The order of the Court of Appeal confirming the death sentence is set aside.
  • The file is remitted to the High Court for the appellants to make submissions in mitigation of sentence.

Key headnotes

Evidence — Identification — Recognition by torchlight of persons known to the witness
Where the evidence implicating an accused rests solely on identification, that evidence must be watertight and the court must act with caution before convicting; but recognition of persons well known to the witness, observed at close range with the aid of torchlight, may satisfy this standard.
Constitutional Law — Mandatory death sentence — Effect of declaration of unconstitutionality on pending appeals
A mandatory death sentence imposed under section 286(2) of the Penal Code Act before mandatory death sentences were declared unconstitutional is null and void; cases where appeals against such sentences are pending before an appellate court must be remitted to the High Court for the appellants to be heard on mitigation of sentence.
Criminal Law & Procedure — Sentencing jurisdiction — Section 11 Judicature Act — First-instance sentencing where original sentence void
Section 11 of the Judicature Act empowers the Court of Appeal to pass sentence only where it considers and reverses a decision of the High Court; where the original mandatory sentence is void, sentence must first be passed by the High Court, and the Court of Appeal cannot competently entertain an appeal against, or confirm, a non-existent sentence.

Legislation cited (9)

  • Penal Code Act s.285
  • Penal Code Act s.286
  • Penal Code Act s.286(2)
  • Judicature Act s.11
  • Trial on Indictments Act s.94
  • Constitution of Uganda art.21
  • Constitution of Uganda art.22(1)
  • Constitution of Uganda art.24(a)
  • Constitution of Uganda art.44(c)

Cases cited (9)

  • Kiarie v Republic [1976-1985] 1 EA 213
  • R v Eria Sebwato [1960] EA 174
  • Roria v Republic [1967] 1 EA 583
  • Abdala Bin Wendo and Another v R (1953) 20 EACA 166
  • Wasswa and Another v Uganda [2002] 2 EA 667
  • R v Turnbull and Others [1976] 3 All ER 549
  • Susan Kigula and 416 Others v Attorney General (Constitutional Petition No. 6 of 2003)
  • Attorney General v Susan Kigula & 416 Others (Constitutional Appeal No. 3 of 2006)
  • Ambaa Jacob & Asiku Jamil v Uganda (Criminal Appeal No. 10 of 2009)
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.