Uganda v Hajji Namunyu (RIP) and 5 Others [2024] UGSC 1 (17 January 2024)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram

Mwondha; Tibatemwa-Ekirikubinza; Tuhaise; Chibita; Musoke; JJSC CRIMINAL APPEAL NO. 49 OF 2020 Uganda .ssssssssesssssesseessssnsseesessesssssuesessessessutseeeeeeceeeee Appellant Versus

1. Hajji Eliasa Namunyu (RIP)

2. Hajji Maliki Wanambili (RIP) 3.Tabo Abubaker 4.Wandera Lukeman

5. Musiho Ubaidi (RIP) G.Nambiro Shaban ..s.esssseeseessssssseeeeeseeseseereeessssnns Respondents

(Appeal arising from the decision of the Court of Appeal sitting at Masaka

before Egonda-Ntende, Cheborion and Kibeedi, JJA in Criminal Appeal No.

16 of 2016 delivered on 6 August 2020) Judgment of the Court This appeal was filed by the Appellant following the acquittal of the Respondents by the Court of Appeal.

Background

The Respondents were charged with the offence of murder contrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence were that Hajji Eliasa Namunyu, Hajji Maliki Wanabili, Tabo Abubaker, Wandera Lukeman, Musiho Ubaidi, Nambiro Shaban

Wamanghe and others still at large on the 24!" day of November 2012 at Hamila Village, Buhabeba Parish, Busolwe Sub-county, Butaleja District, with malice aforethought, caused the death of Sadat Shaban Malingha. The Respondents were charged and tried at the High Court sitting at Mbale on 27% April 2015. All of them were convicted of the murder of Sadat Shaban Malingha.

Tabo Abubaker, Wandera Lukeman, Musiho Ubaidi and Nambiro Shaban were each sentenced to imprisonment for 37 years and 3 months, while Hajji Maliki Wanambili was sentenced to imprisonment for 12 years and 3 months. Haji Eliasa Namunyu (RIP) was not sentenced since he had died while on remand. Being dissatisfied with the said decision, the Respondents appealed to the Court of Appeal against both the conviction and sentence.

When the case came up for hearing before the Court of Appeal, court was informed that Haji Maliki Wanambili (RIP) and Musiho Ubaidi (RIP) passed away, leaving only Tabo Abubaker, Wandera Lukeman and Nambiro Shaban to pursue the appeal. The learned Justices of Appeal, upon a finding that the Respondents did not take plea, quashed the proceedings and convictions, and set aside the sentences against them. They also declined to order a re-trial. Instead, they ordered stay of prosecution and directed the Respondents’ immediate release.

‘The Appellant was aggrieved with the acquittal of the Respondents and filed this appeal, seeking a declaratory judgement, on grounds that:

1. The learned Justices of Appeal erred in law in holding that the conviction and sentence of the Respondents was a nullity whereas not, thereby occasioning a miscarriage of justice.

2. The learned Justices of Appeal erred in law when they allowed the appeal without according the Appellant an opportunity to be heard, thereby occasioning miscarriage of Justice.

Representation At the initial hearing of this appeal, the Appellant was represented by Ms. Immaculate Angutoko, Chief State Attorney, Directorate of Public Prosecutions while the Respondents were represented by Mr. Mooli Albert, on State Brief, each of whom adopted their respective written submissions on record, with brief oral highlights. Hearing of the Appeal The three surviving Respondents (Tabo Abubaker, Wandera Lukeman and Namiro Shaban) were not in Court at the initial hearing of this appeal. Counsel for the Appellant informed this Court that the office of Directorate of Public Prosecutions was in the process of tracing them. This Court proceeded to hear the matter under Rule 23 (1) of The Judicature (Supreme Court) Rules (hereinafter referred to as “Rules of this Court”), and reserved its judgment on notice. However, before delivery of the judgment, of one of the members of the panel passed on and another became indisposed. Consequently, the panel had to be reconstituted to re-hear the appeal. At the re-hearing of the appeal, learned Counsel Awelo Sarah, holding brief for learned Counsel Mooli, for the Respondents, and Ainebyoona Happiness, Chief State Attorney for the Appellant, each re-adopted their earlier submissions on record. Appellant’s Submissions On ground 1, learned Counsel for the Appellant contended that the learned Justices of Appeal erred in law in holding that the trial was a

nullity. She submitted that all the Respondents pleaded to the charges for which they were arraigned, though there was an omission to record the same verbatim.

In her submissions, the Appellant’s Counsel maintained that there was a plethora of indicators that all the six Respondents pleaded to the indictment, and that they clearly understood the nature of the offence with which they were being tried, including the ingredients of the offence.

Counsel submitted that the indicators were, first, that the 4! and 5t Respondents, in their submissions at page 77 of the record of appeal, acknowledge the fact that they pleaded to the charges. According to Counsel, this revealed that charges were read to all the Respondents. Secondly, Counsel referred this Court to page 53 of the record of appeal and submitted that the defense did not contest the ingredients of the offence, save for participation of the Accused (Respondents in this appeal). Thirdly, Counsel referred this Court to page 59 and 60 of the record of appeal and submitted that the learned trial Judge, in her summing up notes to the assessors, explained the offence, ingredients of the offence with which the accused persons were indicted. Fourth, learned Counsel referred this Court to pages 67 and 68 of the record of appeal and submitted that the trial Judge, in her judgment, stated that all the six accused persons raised the defence of alibi and denied murdering the deceased.

Counsel submitted that all the highlighted indicators form part of the record of appeal and overwhelmingly indicate that the six Respondents pleaded to the indictment, that they were aware of the nature of offence with which they were being tried, and that they all responded to the allegations. She argued that, moreover, there was no objection from any of them throughout the trial; and that their counsel never raised it as a

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