THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODOKI,CJ, ODER, TSEKOOKO, KAROKORA AND MULENGA,
JSC)
CRIMINAL APPEAL No.16 OF 2002
BETWEEN
BYABAGAMBI GABRIEL
..............................................................
APPELLANT
AND
UGANDA
.................................................................................RESPONDENT
[Appeal from the decision of the Court of Appeal at Kampala (Kato,
Engwau and Twinomujuni, JJ.A) dated 26th April, 2002 in Criminal
Appeal No.71 of 2001]
JUDGMENT OF THE COURT
This is an appeal against the decision of the Court of Appeal. That court
dismissed an appeal by the appellant who
had been convicted of
murder and sentenced to death by Musoke-Kibuuka, J, of the High Court. In the
High Court, the indictment alleged
that on 3/2/1999, the appellant together with
another person murdered Silver Byomuhangi, the deceased.
The facts in
this case are simple.
The appellant was an uncle of the deceased. The father
of the deceased appears to have fathered him outside marriage and disappeared
some time before 1985. During that year, the mother of the deceased introduced
him to the appellant as the latter's nephew, whereupon
the
appellant gave
him some property. Later a misunderstanding arose between the two
because of land belonging to the deceased's
father. L.C. officials decided the
dispute in favour of the deceased. Then a child of the deceased became ill. The
deceased suspected
and also complained that the child was bewitched by the
appellant. This made worse the already bad relationship between the two.
On
3/6/1999, the deceased attacked the home of the appellant and assaulted the
latter's wife. She ran into appellant's house and
the deceased threw a hoe at
her. He also broke a door of the house.
On 3/7/1999, at about 5.00 p.m.,
the deceased met Maria Tumuhirwe, (DW2) a daughter-in-law of the appellant, at
Bakyokyeza Trading
Centre. Also present were Mugisha, a son of the appellant,
and Kakuhikire, a brother of the appellant. The deceased then told Maria
to:
"Go and tell him (appellant) that I am coming there to cut all of
you."
The deceased said so because the appellant and his son had bewitched a son of
the deceased. The deceased followed the threatening
message by demanding for a
panga from Mugisha. The deceased hurriedly left the trading centre. In view of
this, Maria rushed home
and delivered the deceased's message to the appellant.
Upon hearing the message, most members of the appellant's household fled the
home. Maria reported the same threat immediately to Daniel Rwakasingye (PW5) an
LC1 Chairman, who was tending his cattle nearby.
Soon the deceased appeared at
the appellant's home. A hot argument ensued between the deceased and the
appellant.
Tumusiime Dan, (PW4) a neighbour of the deceased heard the quarrel and
went to the scene. By the time of his arrival,
the hot argument
had subsided but the appellant was seated in the verandah of his house
armed with a panga.
January, a young son of the appellant
stood in the doorway of the main house while the deceased
stood
in the compound. Tumusiime advised the deceased to take the sick
child to hospital instead of accusing his uncle of
witchcraft.
Tumusiime walked towards his home but after walking for about 20 metres, he
heard a sharp cutting sound
which forced him to return to the
scene. There he found the appellant and January hurrying away from
the
scene, while the deceased lay dead in a pool of blood.
Eventually the appellant reported himself to PW5 who kept
him in his house
under protective custody until police arrived and arrested the appellant. Later
the appellant made a confession
in a charge and caution statement claiming that
he killed the deceased in self-defence. During the trial the appellant repeated
the
substance of that confession statement in his defence.
The assessors advised conviction for murder. The learned trial judge ruled
out the defences of self-defence and of provocation and
so he convicted the
appellant of murder and sentenced him to death. The Court of Appeal dismissed
the first appeal. The appellant
has now brought this appeal based on two grounds
which state that: -
"1. The learned Justices of Appeal erred in law when they upheld the
learned trial judge's decision rejecting the appellant's defences
(Sic) of
provocation and self defence.
2. The learned Justices of Appeal did not properly reappraise the evidence
on record thus wrongly upheld the conviction of
murder."
Mr. Tayebwa, counsel for the
appellant, argued the two grounds together. Counsel contended that the trial
judge and the Court of Appeal
did not properly evaluate the evidence for both
sides especially that of the appellant. He further contended that although
the
trial judge correctly set out the law of self-defence, he did not apply it
properly to the facts of the case. Counsel contended that
in the circumstances
of this case the appellant was entitled to defend himself. These circumstances
were firstly that the deceased
had attacked the appellant's home a month
earlier; second, the threat sent to the appellant by the deceased was followed
immediately
by confrontation between the two; Lastly there was no evidence to
prove that the appellant was not in eminent danger in all the circumstances
of
the case. Counsel further argued that the evidence of Tumusiime (PW4) showed
that there was provocation. He asked us to allow
the appeal.
Mr.
Okwanga, the Principal State Attorney, supported the decisions of the two courts
below. He contended that the Court of Appeal
properly re-evaluated the
evidence.
He submitted that neither the defence of self-defence nor that of
provocation was available to the appellant. On provocation, Mr.
Okwanga
submitted that the
accusation of witchcraft by the deceased, even if it
amounted to insult, did not justify the appellant's reaction. Similarly
on self-defence the learned Principal State Attorney submitted that the
defence was not available because the
deceased was unarmed when he went to the
appellant's home. In the alternative Mr. Okwanga submitted that the force used
by the appellant
was excessive.
In our opinion, this is a borderline case. The facts, in this case, tend to
show that the defence of self-defence is more plausible
than that of
provocation. The deceased
was a son of the appellant's brother. Normally the
deceased would respect the appellant. This is especially so
because
the appellant looked after the deceased's property before handing the
same to him later. There was evidence of misunderstandings
between the two
because of the property. On 3/6/1999, the deceased invaded the appellant's home
and assaulted the latter's wife in
the appellant's home. According to the
evidence of the appellant: -
"Byomuhangi once before came to my home and tried to kill my wife. When
she ran into the house, he cut the door. He used to attack
me because he used to
say that I used to bewitch him. I reported that incident to the
Chairperson LC.I. The Muruka Chief came and witnessed the damage on the
house."
In this respect, the appellant was
substantially supported on the points raised in this portion of his evidence by
the prosecution
evidence of Daniel Rwakasingye, (PW5). This witness
testified that following the June incident, he visited the appellant's
home
and found that a door had been cut and part of it was missing. In the charge
and caution statement, which was produced
by the prosecution, as evidence for
its side, the appellant stated: -
"I killed him in my compound when he invaded me intending to kill me.
This was the third time since he started invading me. He was
claiming that I was
bewitching him. And we had a land dispute. I cut him in order to prevent him
from cutting me and kill (sic)
me"
We note that before he
was killed, the deceased sent a threatening message through Maria seriously
announcing that he was going
to cut the appellant and members of his
family. Apart from his young son, January, who chose to stand
by
his father at the hour of need, the rest of the family took the
threatening announcement very seriously and fled
from their very home.
Those who fled included Maria who had delivered the
threatening announcement.
The deceased arrived at the appellant's home soon
after he had sent the threatening message and found the appellant
in his own home compound presumably fearing for the
worst and, therefore, armed with a panga.
Soon after his arrival and
even when the appellant was armed with a panga, a hot quarrel ensued
during which the
deceased told the appellant, in the presence of the
appellant's son, that the appellant was bewitching his child.
The
quarrel seemed to have been so hot that it attracted
a neighbour, Tumusiime, who went to the
scene and advised the deceased to
stop accusing his uncle of witchcraft but instead he should take the child to
hospital for treatment.
Evidence is not clear about what was the mood of the two when Tumusiime
arrived and when he left. What appears noteworthy is that
the deceased did not
go away after Tumusiime's advice. Instead he posed a challenge by remaining in
the appellant's compound standing
while the appellant sat down most probably
smarting under the deceased's insult. There is no eyewitness to what happened
immediately
before the appellant cut the deceased. But there must have been
tension. The only evidence is that of the appellant. We have quoted
what the
appellant told the police in his caution statement soon after his arrest. In his
unsworn evidence, this is how the appellant
stated his case, in so far as
relevant:
"It was that very day that very hour when Tumuhairwe came to tell me
that I prepare myself for death. Maria Tumuhairwe went and I
remained at home
alone. The other members of the family went away from home. I remained at home
alone. I was seated on the verandah
of the house.
Then Byomuhangi came. He came so near me. Then I got a
small hoe from near the door. I hit him with both
hands. He
fell on the verandah of the house.
I was trying to save myself when I threw the hoe. I was trying to save
myself. He fell down."
The fact that the deceased was so menacingly daring after sending a very
serious death threat he went to appellant's home, insulted
him in his own home
in the presence of his own son must have put the appellant on defence. We think
that the appellant, like any
other person of his status, was forced to react the
way he did. The evidence of provocation was not excluded. Even if the evidence
of provocation was not so strong as to amount in law to a defence for the
appellant as required by the standard set by the trial
judge and the Court of
Appeal, in our opinion, the appellant was entitled to use force to defend both
himself and his home.
There are authorities which show that an owner
of a home need not flee the home when attacked there. He is entitled to defend
himself
and or his home. See Zedekia Lukwago v R.,(1956) 23
E.A.C.A. 507 where Eastern Africa Court of Appeal held that
"It is not the law that a householder attacked in his own home by an
intruder is required to use all means to escape. In such circumstances
a hard
and fast distinction between the right of defence of property and the right of
defence of the person cannot be drawn. A
householder is entitled either to seek
to arrest or to
expel the intruder and if attacked in so doing to use
all necessary force to repel such attack He can kill in the
process."
In our opinion this statement applies with equal force even
where the attack takes place within the courtyard of
the house as happened
in this case. There is authority for the proposition that in certain
circumstances, both the defences of provocation
and of self-defence can be
available to an accused at the same time. In Hau
S/o Akonaay v R. , (1954) 21 E.A.C.A. 276, the
accused quarrelled with X. The quarrel was followed by a
fight in which X. was killed. The
accused was armed only with a
stick. X was armed with a stick and a spear. The accused got in the
first blow.
The Eastern Africa Court of Appeal held that it is immaterial
in such cases which party offers the provocation or commits the first
assault
and that in the case there existed elements both of self-defence and
provocation, and that the inference of malice aforethought
was rebutted by the
circumstances, it mattering little whether the acts be regarded as done in
excess of self defence or under the stress of provocation,
(emphasis supplied) .
Although the case before us is not on all fours with the two authorities, the
principles applied in these authorities are relevant
to this appeal both on
provocation and on self-defence.
Normally a successful defence of self-defence in homicide cases would lead to
acquittal of an accused. However because of the two
injuries inflicted on the
deceased as revealed in this case by the post mortem report, we think that the
force used by the appellant
was excessive but not so excessive as to remove the
defence of self-defence from the appellant.
We, therefore, hold that both the trial judge and the Court of Appeal erred
when they held that neither defence was available to the
appellant. Self-defence
was established. The two grounds of appeal must, therefore, succeed.
For the foregoing reasons, the appeal is allowed. We quash the conviction of
murder. We substitute a conviction of manslaughter C/s
185 of the Penal Code
Act. In sentencing the appellant we take into account the period of 2 years
which he spent on remand from July
1999 to 29/6/2001 before he was convicted and
also take into account a further period of 21/2 years from
29/6/2001 to today during which appellant has been in custody pending disposal
of this appeal. We sentence him to a term
of six years imprisonment.
Dated at Mengo this 15th day of January
2004.
B.J. ODOKI
CHIEF JUSTICE
A.H.O. ODER
JUSTICE OF THE SUPREME
COURT
J.W.N. TSEKOOKO
JUSTICE OF THE SUPREME
COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME
COURT
J.N. MULENGA
JUSTICE OF THE SUPREME
COURT