On the 7/7/2006, Nalongo left the front door key with Grace Mbabazi. At about 9.00 a.m. Kiconco Juliet (PW3), a neighbour of both Nambalisa and Grace saw the appellant seated on the veranda of Nambalisa's house. Appellant
talked to her - greeted and asked her the where about of Nambalisa's children and where her house key was. On learning of the children
being in school and the key being with Grace Mbabazi, the appellant approached the latter whereupon she introduced herself as Nalongo's
sister from the Village. She told Grace that she had left Nalongo in Town and that she was sent for the house key. Appellant then
requested for the key that she used to enter the house. No one paid any further attention to her, but in the early afternoon, Nalongo's
children returned from school only to discover their house and their mother's bed room open. They reported their findings to Grace
Mbabazi. When Nalongo returned from work she discovered that shs. 1,250,000/= had been stolen from her bed-room. Nalongo reported
the break-in and theft to Mr. James Kakooza the LC1 chairman (PW4) and later to the police. She and Grace carried out their own investigations that led to appellant being found and recognised
by Grace at Nateete. The appellant was arrested from her work place on Nasser Road and charged with the two offences.
In her defence, the appellant denied knowing Nalongo; she further denied breaking into Nalongo's house or even visiting Kamwokya on the date of the offence. She also denied knowing PW1, PW2 and PW3. She testified that she was treasurer of a Micro-Finance organisation whose members met every Friday to transact business from 10.00 a.m. to 4.00 p.m. Such a meeting was held Friday 7/7/2006, she attended it though she was arrested
for the offences and detained briefly on the 22/8/2006 before being released on Police Bond. She testified that on release, her house
was searched for a green Kitenge without success.
The learned trial Magistrate rejected appellant's defence, she accepted prosecution evidence identifying the appellant as the person
who broke and entered complainant's house and stole money from it. She convicted the appellant on the two counts and sentenced her
to a consecutive term of six months imprisonment on each count. Appellant was ordered to pay Nalongo compensation of Shs. 1,250,000/=,
hence this appeal.
Three grounds of appeal were framed, Mr. Twijukye for the appellant argued the 1st and 2nd grounds together and the 3rd one separately. Mr. Badru Mulindwa, State Attorney for the respondent argued each ground separately. I turn to the arguments.
The 1st ground complained that the learned trial Magistrate erred in law and in fact by dismissing appellant's alibi, while the second ground
was that the learned trial Magistrate erred in law and in fact by accepting evidence of identification.
On these grounds of appeal, the learned Mr. Twijukye submitted that evidence 0f1dentifying appellant as the person who broke, entered and stole from PW1's house was insufficient to sustain
a conviction. Available evidence largely remained that of a single witness which was insufficient to sustain convictions for these
reasons:
(i)
There were no eye witnesses to the crime as none of the two principal witnesses (PW1 and PW2) saw appellant break and enter complainant's
house.
(ii)
Only one of the two Witnesses, Grace Mbabazi, identified the appellant at Nateete, Juliet Kiconco did not do so. Even then, no Police Officer was present at the identification. Besides, Juliet
Kiconco's evidence was not tested in cross-examination as she was not re-called for further cross-examination by appellant's counsel.
Therefore the trial court should not have relied upon her evidence to convict the appellant.
(iii)
Prosecution did not discharge its legal burden of disproving appellant's alibi. In the circumstance the trial court should not have
disregarded appellant's alibi. He cited the case of Frank Ndahabe vs. Uganda - Supreme Court Criminal Appeal No.3 of 1993 (unreported).
On the 1st ground Mr. Badru Mulindwa, the learned State Attorney, submitted that evidence of Ms. Mbabazi and Ms. Kiconco placed appellant at
the scene of crime. He argued that appellant's defence was really not alibi because she did not specifically claim to have been conducting
the business of Pride Micro Finance on the day of the offence. Her evidence concerned her routines on Fridays but not what she did
on the 7/7/2006. On identification of appellant by Grace Mbabazi and Juliet Kiconco, Mr. Mulindwa submitted that both witnesses had
opportunity to correctly identify appellant under conditions that favoured correct identification. Both noted appellant's attire
on the day of the offence - a green Kitenge.
The judgment of the trial court dealt with identification at pages 5 to 6. The learned trial Magistrate reviewed the evidence of Ms.
Kiconco concerning the time she saw the appellant and the conversation she had with her about custody of PW2's keys and whereabouts
of her children. She further reviewed Ms. Mbabazi's evidence on identification before proceeding to analyze evidence of the two witnesses.
At the end of her analyses, she concluded that appellant was properly identified and that there was no need to hold identification
parade for identification of the appellant by PW1. The trial court added that PW1 did not identify appellant by co-incidence because on the one hand, there was evidence that PW2 who
was a friend of one Gloria Mukasa told Gloria about keeping the stolen money in her house. There was also evidence on the other hand showing that Gloria and the appellant were close friends. The connections pointed to the appellant learning of the money through Gloria.
In view of this evidence, Court rejected appellant's alibi finding that she was at the scene of crime when the offence was committed.
Having re-evaluated the evidence on identification, as the law requires a first appellant court to do; I am in agreement with the learned trial court's finding that the appellant's alibi was lie. I also agree that Mbabazi’s and Kiconco's evidence was credible and placed appellant at the scene of crime. According to evidence before the trial court that
I find credible, Ms Kiconco first saw the appellant sitting on the veranda of PW2's house not far from hers. The two talked greeted
each other. Appellant later approached Kiconco to ask for PW2's children and the whereabouts of the keys to her house. It was Ms.
Kiconco who told appellant where the keys could be found. All these happened in broad day light, I believe that she had ample opportunity
to observe the appellant under conditions that favoured correct identification. She noticed appellant's dress and its colour; she
also noticed that appellant had a black polythene bag when she arrived at PW1's home. She was definitely in a position to recognise
appellant.
Grace Mbabazi equally had sufficient time and conditions to observe and correctly identify the appellant. It is her observation of the appellant at the scene of crime that
enabled her to recognise and identify the appellant and appellant only from a group of Niigiina members at Nateete. It was the same
observation that had earlier led her to clearing PW1's workmates from suspicion when she was led to her work place and the witness failed to recognise the culprit among them. Like
Ms. Kiconco, PW1 observed that appellant was wearing a green kitenge attire on the day of the offence; the fact that the green Kitenge
dress was not found on a search of the appellant's house was immaterial because both Ms. Kiconco's and Ms. Mbabazi's identification
was based on physical build and appearance of the appellant; not so much on her attire which could be different at different times.
Failure to recall Ms. Kiconco for further cross-examination had no material effect on her evidence on identification. There is in
fact no law generally providing for recall of witnesses for a second cross-examined (sections 136 and 137 of the Evidence Act). I note from the record of proceedings that the appellant cross-examined both PW1 and
PW2 when she was defending herself at the beginning of her trial. She made the choice to do so. She later engaged the services of counsel, but engaging the services of counsel later did not translate into a right
to recall witnesses who had already testified and had already been cross-examined by herself. All in all, there was evidence placing
the appellant at the scene of crime; her alibi was concocted and was rightly rejected by the trial court. These grounds of appeal
fail.
On the 3rd ground, the learned Mr. Twijukye submitted that .prosecution evidence contained many inconsistencies that were not scrutinized by
the trial court. He argued that court would have arrived at different conclusion had it considered the inconsistencies. The learned
counsel enumerated the inconsistencies some of which are listed as follows:-
(1)
Whether or not the screw driver was the instrument used in the break-in given the evidence of D/C Oluka Francis (PW5) that it was used to break the sitting room while other witnesses testified that it was used to break into the bed-room. Besides, as an exhibit, the screw driver was mishandled by prosecution witnesses. The incomplete chain of handling cast doubt whether it
was used in the offence.
(2)
The investigating Officer did not record statements from potential witnesses such as PW2's children one of whom was said to be 18
years old. None of these children took the initiative to report the crime to anyone till 4.00 p.m. and 6.00 p.m. Even then, PW1 and her husband did not inform PW2 of the offence, it was PW2 who discovered it later.
(3)
The trial court did not consider the role of Gloria Mukasa in the offence, she knew about PW1's money; meaning that she should have
been treated as a suspect in the offence.
On the third ground, Mr. Mulindwa submitted that the trial court ignored some evidence because it was irrelevant such as the evidence
concerning the particular tool used to break into the house. What was important was the fact that the break-in occurred. Concerning witnesses not called as witnesses, the learned State Attorney submitted that the evidence of the 18 years old daughter of PW2 would not have been useful because
she discovered the offence after its commission. That of Gloria Mukasa would not have advanced prosecution case given the fact that
she was a friend of the appellant.
She was surety for appellants bail; it was not therefore likely that she could be a suitable witness for the prosecution.
There was certainly a mishandling of the screw driver that was tendered in evidence as there was no evidence of the police official
who received it from PW4. Be that as it may, as the learned State Attorney stated the important element of the offence - the break
in was proved by other evidence. It was not necessary to prove the instrument used to break in. The judgment of the trial court addressed
the argument on witnesses not called by the prosecution. Concerning Gloria Mukasa, the learned trial Magistrate pointed out (at p4
of the judgment) that Gloria was appellant's friend. She alluded to the possibility that appellant could have learnt of PW2's money
from Gloria. From these considerations, the learned trial Magistrate opined that Gloria would not have been a useful witness for
the prosecution.
I agree with the learned trial court that Gloria, though a competent witness, would not have been a useful witness for the prosecution
given her relationship with the appellant. In as far as PW2's daughter
was concerned, her evidence would have been useful as that of one of the first persons to discover the break-in. However, it should
be noted that she and her siblings did not discover the theft; it was their mother who discovered the theft of her money when she
checked her bed-room. As there was other evidence proving breaking of the front door, failure to call any of the children of PW2
was of no effect on the prosecution case; nor did it occasion a miscarriage of justice to the appellant.
All in all the appeal fails. It is dismissed.
C. A. Okello Judge 1.04.2008
