Yoda Atiku & Anor v Uganda [2012] UGSC 9

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

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.

Outcome

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.

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.

Rules and key headnotes

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)

The original judgment as reported. Read the original PDF before relying on any passage.