Wakilii

Uganda v Ofono & Anor (Criminal Session Case No. 84 of 2004)

High Court · [2005] UGHCCRD 4 · 2005 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for aggravated robbery
Decision
Both accused convicted on two counts of aggravated robbery and acquitted on the third count

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the prosecution proved beyond reasonable doubt all the elements of aggravated robbery under sections 285 and 286(2) of the Penal Code Act on Counts I and II. The victims reliably identified both accused through tadoba light and familiarity, and both accused made admissions leading to recovery of the stolen weighing scales and the rifle used to threaten the victims. The rifle was established as a deadly weapon, having been fired and being capable of discharging ammunition. The accused acted with common intention. Confessional statements, though retracted, were found voluntary and corroborated by direct evidence, recovery of exhibits, and the doctrine of recent possession. The prosecution failed to prove Count III, and both accused were acquitted on that count. Both accused convicted on Counts I and II.

Outcome

Both accused convicted on two counts of aggravated robbery and acquitted on the third count

Facts

On 16 August 2001, at Kasimizi village in Mukono District, two armed men robbed three shop owners on Buvuma Islands. The victims were Nalongo Resty, Birungi Sylvia (wife of Shaban Mukalazi), and Mafabi Zimula. The robbers, armed with a gun, broke into Nalongo's shop, threatened her at gunpoint, and stole UGX 200,000 and a weighing scale. The same robbers entered Birungi's shop earlier that night, fired shots outside to frighten villagers, threatened her at gunpoint, and stole UGX 110,000, a weighing scale, cigarettes, slippers, and torches. Both victims identified Ofono Matias (the tall man with a torch) and Alecho Julius (the short man with the gun, also known as Saweyo) as their attackers. They knew the accused from the same locality. The next day, Nalongo reported to local council officials, who arrested Ofono. Ofono admitted participating in the robberies and led police and witnesses to Alecho's hiding place in the bush and to the lake where he recovered the stolen weighing scales from underwater. Alecho led police to where he had hidden the rifle and 13 rounds of live ammunition. The rifle was confirmed capable of firing. Both accused made confessional statements implicating themselves and each other.

Issues

  1. Whether the prosecution proved theft of property capable of being stolen on all three counts.
  2. Whether the prosecution proved use or threat to use a deadly weapon at, immediately before, or immediately after the robbery on all three counts.
  3. Whether the accused, individually or collectively with others sharing a common intention, carried out the theft on all three counts.
  4. Whether the gun recovered was the same gun used in the robberies and whether it was a deadly weapon.
  5. Whether the identification evidence of the two accused by the victims was reliable.
  6. Whether the confessional statements made by the accused were voluntary and corroborated.
  7. Whether the accused's alibis and allegations of malice by prosecution witnesses had merit.

Orders

  • Accused No. 1 Ofono Matias and Accused No. 2 Alecho Julius convicted of aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act on Count I.
  • Accused No. 1 Ofono Matias and Accused No. 2 Alecho Julius convicted of aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act on Count II.
  • Accused No. 1 Ofono Matias and Accused No. 2 Alecho Julius acquitted on Count III.

Rules and key headnotes

Criminal Law & Procedure — Aggravated Robbery — Elements of the Offence — Theft, Use or Threat of Deadly Weapon, Participation
To secure a conviction for aggravated robbery under sections 285 and 286(2) of the Penal Code Act, the prosecution must prove beyond reasonable doubt: (a) theft of property capable of being stolen; (b) use or threat to use a deadly weapon at, immediately before, or immediately after the robbery; and (c) that the accused, individually or collectively with others sharing a common intention, carried out the theft.
Criminal Law & Procedure — Common Intention — Section 20 Penal Code Act — Joint Criminal Enterprise
Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence. Each participant in a joint robbery is equally responsible for the acts of the co-participant.
Evidence — Identification of Accused — Night-time Robbery — Factors for Reliable Identification
In cases of identification, particularly at night, the court must examine with caution the conditions enabling proper identification: (a) the means and intensity of light available; (b) the familiarity of the witness with the attacker and their interaction; (c) the duration of the crime; (d) the proximity between attacker and victim; and (e) peculiar features such as physical appearance, voice, dress, and mannerisms. The test is whether the evidence can be accepted as free from any possibility of error, not merely whether the witness is convincing.
Criminal Law & Procedure — Deadly Weapon — Section 286(3) Penal Code Act — Firearm Fired During Robbery
A deadly weapon under section 286(3) of the Penal Code Act includes any instrument made or adapted for shooting, stabbing, or cutting, and any instrument which when used for offensive purposes is likely to cause death. Once a firearm is fired during a robbery, it is deemed to be a deadly weapon.
Evidence — Confessional Statements — Retracted Confessions — Need for Corroboration
While it is not a legal requirement to seek corroboration of a retracted confession before convicting, as a matter of practice and prudence a trial court should direct itself that it is dangerous to act upon a retracted statement in the absence of corroboration in some material particular. The court may nonetheless convict if satisfied that the confession must be true. The main consideration is whether the confession correctly relates what happened and establishes guilt with the degree of certainty required in a criminal case.
Evidence — Section 29 Evidence Act — Admissibility of Information Leading to Discovery
Under section 29 of the Evidence Act, notwithstanding sections 23 and 24, when any fact is deposed to and anything is discovered in consequence of information received from a person accused of any offence, so much of that information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. Information given by an accused that leads to the arrest of a co-accused or recovery of stolen property is relevant and admissible.
Evidence — Circumstantial Evidence — Recent Possession — Presumption of Guilt
Under the doctrine of recent possession, where a person is found in possession of property which is stolen or suspected to have been stolen, the presumption is that he is either the thief or receiver of that stolen property. The finding of stolen property in the constructive possession of an accused shortly after theft is circumstantial evidence implicating the accused in the commission of the offence.

Legislation cited (13)

Cases cited (41)

  • Wamongo and others v Uganda (1976) HCB 74
  • Woolmington v DPP [1935] AC 462
  • Leonard Ainsetti v Republic (1963) EA 206
  • R v Johnson [1961] 3 All ER 969
  • Solomon Mungai and others v Republic (1965) EA 123
  • Dracaku v R (1963) EA 363
  • Lamambutu v R (1958) EA 124
  • Yusiifu Sebuguzi v Uganda (Criminal Appeal No. 6 of 1989)
  • Gereson Bihingangwa v Uganda (Criminal Appeal No. 22 of 1985)
  • Abudala Nabulere and 2 others (Court of Appeal Criminal Appeal No. 9 of 1978) [1979] HCB 77
  • George Wilson Simbwa v Uganda (Criminal Appeal No. 37 of 1995)
  • Uganda v Kaweke Musoke (1976) HCB 12
  • Uganda v Mawa alias Matua (1992-3) HCB 65
  • Andrew Walusimbi and 4 others v Uganda (Criminal Appeal No. 82 of 1992)
  • Geresomu Bihinganwa v Uganda (Criminal Appeal No. 22 of 1995) [1986] HCB 1
  • Uganda vs. Charles Komwiswa
  • Birumba v Uganda (Criminal Appeal No. 32 of 1989)
  • P.C. Ben Muhwani and another (Criminal Appeal No. 3 of 1993)
  • Wasaja v Uganda (1975) EA 181
  • Mulingwa s/o Mwanje and another v R (1953) 20 EACA 255
  • R v Surumbu s/o Singana and others (1940) 7 EACA 55
  • Muthige s/o Mwigai and others v R (1954) 21 EACA 318
  • Anyungu v Republic (1968) EA 239
  • Uganda v Yosamu Mutahanzo (1988-90) HCB 44
  • Kanyomozi v Uganda (1967) EA 537
  • Aplunari Butafo v Uganda (Criminal Appeal No. 928 of 1967)
  • Bakaye v Uganda (1965) EA 621
  • Fabiano Obeli v Uganda (1965) EA 622
  • Tiwamoi v Uganda (1967) EA 84
  • Uganda v Simbwa (Criminal Appeal No. 37 of 1995)
  • Kamau s/o Njoroge and another v R (1954) 21 EACA 257
  • Said Kigozi v R (1958) EA 1
  • Juma v Republic (1967) EA 432
  • Lubinga v Uganda (Criminal Appeal No. 3 of 1981)
  • Eryeza Kasango v Uganda (Criminal Appeal No. 12 of 1991)
  • Chan Wai-Keung [1952] 2 Cr App R 194
  • R v Witts and Witts [1991] Crim LR 562
  • Lt. Mike Ochiti v Uganda (Criminal Application No. 7 of 1988)
  • Kabenge vs. Mpalanyi - Civil Appeal B 56/62 (M.B.84/64)
  • Constantino Okwel alias Magendo v Uganda (Criminal Appeal No. 12 of 1990)
  • Rauben Bagamuhunda v Uganda (Criminal Appeal No. 2 of 1987)

Full judgment

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Uganda v Ofono & Anor (Criminal Session Case No. 84 of 2004) [2005] UGHCCRD 4 (7 January 2005)
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.