19730910 TZHC Mwanza3

C-on • IN THE HIGH COURT OF TANZANIA AT MWANZA. APPELLATE JURISDICTION C11IMINAA1L APPEAL NO. 363 OF 1972 • .• ORIGINiLL CRIMINL C LSE NO: 30 OF 1972 OP THE DISTRICT COURT OF BUKOBA DISTRICT T BUKOBA B'ORE; L. B. NCHONE, ESQ. ,.RES1DENTNAGISTRATE. SUPERI NYEMENOITA ... ....••..•,... ... PELLANT (CRIGINn.L ACCuSED) T}IERUBLIC ..............,.........RESP0NDENT (oiuGINur'nosEcuTo1) S .. JUL 0 M E N T: MFALILA, AG. J. - The appellant SUPERI NYIENONA stood as surety in the sm of h15O/ for the accused person JkLEXANDR THADQ in Bukoba District Court Criminal Case No.350 of 1972. According to.the order dated 10/8/72 it appeared tht the accused had not appeared in Court inco 20/5/72 whLn he first appeared in Court. On that date i.e. 10/8/72 the appellant was summoned and on his appearance he was cered to forfeit his surety bond in the full sum of 66150/_. He is new appealing to this Court against the ordQ. In his memorandum of appeal, the appellant has raised a number of grounds.against the order of forfoittre. He says first that he was not afforded an opportunity by ±le Court to produce the acced to Court and secondly that there was no definite date when the accused was required to appear in Court hecause the police had miplaced their file. Going through the record, I am satisfied that there is some truth in these complaints against the 1arnec1 Magistrate's order of forfeiture. First when the appellant was summoned for the first time on 10/8/72, he explained that there had been some confusion, saying that the accused was in foot at home. Instead of afforcUng the appellnt the opportunity to produce hiSs charge, the Court embarked on a lengthy sermon, ending by saying that no-lenience was going to be afforded to the appellant. This approach was, with resrect, wrong. In the first place the appellant was appearing before the Court for the first time, therefore, it was possible that he was genuinely not aware that his charge had not appeared in Court since 20/5/72 when he first appeared. In the second place, the question of leniency in the sens6 in which it was.used by the learned Magistrate did not arise. The learned Magistrate treated the m;:.c1lant as if he was sentencing him for: some offence.. Orders of forfeitures are not pen:-lties, they are merely orders for fulfilment of obligations freely entcred.into between the suretj on the one haAd and the Court on the other, so that before a surety is ordered to forfeit the amount he had promised to dose should iie fail to fulfil his obligations to The Court, the Court must he satisfied that the surety has in fact failed in his obligation i.e o to produce the accused before the Court. In this case it had not been so shown, because the appellant specifically told the Court that given the opportunity he Would fulfil his undertaking. .. -. 2.... Lastly although itis not strictly correct that the accused had not beéliien' efinit'c d'ate.'t.o apear in Court, I think that the Court itself dC xic from blame. Th record sI'ows that when the case firet came Ccurt on 20/5/72, the accused pleaded not guilty iirftl was rcn1'nded on bail n the sum of shs.l50J wi -Gh one surety ii the like Th harang was set for 26/5/72. Bt.'the •i oord1 "ho'wtht thiJs file néve" sa\" th 'light of daU on 26/6/72 ordered. Instead it appeared a month later on 26/6/72, how then was the accused, to know of these changes? Thith'en',bears. ou .th' appellhnt s• coflteht'io±i th't the confusion as to aJ4carnce arooc 2ol]oiin e the bus of i Police file. This may be the explanation why the case never came on 26/5/72. For.these reasons the order of fcrfeiure a.inst the aé11ñt unjustifi 'it is abcor ñlet aside with the ord that th amount o sh.l50/ forfeited be refunded to him. Delivered in Court at Mwanza this 10th day of September 1973. MWJNZP L. MFL'flLA 10th Sepcmbcr 1973 AG. JUDGE. e.