[1992] UGHC 79

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. CRIMINAL APPLICATION NO. 9/1992.

(Original Criminal Case No. 410 OF Buganda Road Court)

The Hon. Mr. Ag. Justice F.m. S. Egonda-Nitande

ANDREW ADIMOLA - Winder :::::::::::::::::::: APPLICANT C/O MULENGA. & CO. ADVOCATES

## VERSUS

**UGANDA** 31313131313333733333333333333333333333 RESPONDENT BEFORE: The Honourable Mrs. Ag. Justice M. Kireju-

## RULING.

This is an application for bail brought before this court by way of Notice of Motion under the provisions of S. 14 A of Trial on Indictments Decree $(T,T,D)$ as amended by Act 5 of 1985 There is one affidavit sworn by the applicant in support of the application dated 12/1/92. According to the indictiment the applicant is charged with treason together with 4 co-accused, this offence is alleged to have been committed between 1988 and 1991 in diverse places in Gulu and Kampala Districts.

Mr. Mulenga S. C. counsel for the applicant gave a brief background to this application. He informed court that on $17/1/92$ the applicant was committed for trial for treason to the High Court. By virtue of S. 163(4) of Magistrate's courts Act his bail on which he was since June 1991 lapsed and hence this application for restorstion of his bail.

Mr. Mulenga S. C, submitted that the application was founded on the ground that the applicant was of an advanced age as he was 66% years old. He further submitted that when the applicant made an application on the same basis the state did not oppose the application and bail was granted. He contended

$-2.53$

$10000/2$

that the fact has not changed and that if anything his age is advancing. He submitted that his age condition is aggravated by his ill health, as he suffers from many complications.

In considering whether or not the accused is likely to abscond if released on bail, counsel submitted that the applicant in his affidavit has undertaken not to abscond. The applicant-has a permanent place of abode at anaka in Gulu truck and also has a house in Winda Kampala. Three people were

offered as sureties Professor Walumbe of Mulango, Mr. Wanendeya council member and Miss Boatrice Adimola. The first two were not present in court but that they were willing to act as sureties. When the applicant was released on bail in June 1991, he complied with all the conditions of bail and there are no other charges pending against the accused/applicant. On conditions for bail, counsel for the applicant submitted that money deposited by the applicant under the previous bail application should be enough for this bail. He preyed that the requirement for reporting to police or court should be eased to once a month.

In conclusion counsel submitted that the bottom line when considering bail is whether an accused person will avail himself for trial and that the applicant had demostrated that he would avail himself. He therefore proyed for grant of this application. And he did not expect the state to oppose this application as they did not oppose the first one.

Mr. Mabonga state counsel submitted that his instructions were to oppose the application. He submitted that each bail application should be considered on its own merit and he invited court to ignore references to the previous bail application. He agreed with counsel for the applicant that the applicant is of advanced age but that the circumstances under which he was operating before co'nmittal have now changed# He submitted that before 'committal the accused' did .not know what evidence was being adduced against him. The accused faces ^a capital offence and he knows that if convicted he is bound to face death, therefore his chances of.absconding were very high. He stated that the "^tate was reidy to proceed with the hearing of the case. He farther contended that the idea of the fixed place of abode does.not arise as people with fixed places of abode abscond\* He submitted that -the chances of . interfering with witnesses were quite high. On sureties he contended that the applicant had failed to produce' them.

State counsel contended that if the applicant is granted bail, the conditions should not be like 'those of the previous .bail, that the cash bail which had been dopositcd': should not be considered by this court. He retaliated:his earlier submission that each application' should be •'considered on its own merit. And prayed that the application be dismissed. Mr. Mulenga S. C, in response submitted that the state counsel's submission that circumstances have changed since the applicant was committed for trial was not a serious one. That the accused had all along known that he\*was charged with - a serious offence of treason which carries mandatory death sentence. That it had been repeated many times by the state in court and outside the court that there were overwhelming evidence against the accused. That it is on record that ^a Minister of State called ^a press, conference to'state thus. And that the accused had nevpr been under any- illusion that; the state has evidence to prove the charge. And that it is on record that for many months, the applicant along with the the.co-accused continued to ask for the particulars of offence

..which were not forth coming but dispute that- the applicant-

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did not abscond. He further conteded that there was nothing to read in the summary of the case which made the accused more scared of the charge, he concluded that the circumstances have not changed.

On the allegation by the state that the applicant will interfere with witnesses he submitted that this was mere speculation as nothing was put forward to prove it. On sureties Mr. Mulenga submitted that the previous sureties Mr. Kitariko and Mr. Mulozi could not be offered as sureties as they had now been charged together with the applicant. But that there were alternative sureties who included the eldest daughter of the accused. Prof: Walumbe was unable to attend court as he was busy with funeral arrangements of Prof. Kyalwazi who was due to be buried the following day.

After reading the notice of motion and supporting considering affidavit and after carefully ................................... both counsels my duty now is to consider the merits or demerits of this application.

It is not disputed that this court had power under S.14 of T. I. D to grant bail to accused persons charged with any offence including capital offences. However, under the recent amendment to T. I. D namely S.14 A of statute $5/85$ , a person accused of an offence triable only by the High Court shall not be granted bail unless he proves to the satisfaction of the court that exceptional circumstances exist justifying his release on bail and that he will not abscond when released on bail.

Exceptional circumstances were defined to mean 4 different circumstances of which the fourth one namely S. 14 A $(2)(d)$ is

$8000/5$

the infancy or advanced age of the accused, under which this application is brought. The applicant swore an affidavit in which he deponed that he was of advanced ago as he is now over 66 years old. This matter was not contested by the state. It is worth noting that in cases of William Nakabale Vs. Uganda Misc. App: No. 242/86 and Fransco Lwanga Vs. Uganda Misc. App. No. 307/87 (both unreported) this court held that an age between 50 and 55 years may be regarded as advanced age for purposes of bail application. The requirement of advanced age is therefore properly satisfied by the applicant ".

I shall now handle the next condition to be considered by court namely whether or not the accused is likely to abscond. I shall consider the facts the court is required to take into account one after the other as set cut in S. $14A(3)$ of $T. I. D.$

On the first issue whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda, the applicant in his affidavit deponed that he had a permanent home at his farm at Anaka in Gulu and also has a town house at Ntinda, Kampala. The state counsel had submitted that it did not matter whether the applicant had a permanent place of abode or not as people with permanent places of abode have been known to abscond. However, he did not cite any such cases in support of his allegation. With due respect to state counsel, courts cannot . ignore a statutory requirement on just mere allegations. It is not in dispute that each case has to be considered on its own facts, in this case no evidence has been put forward by the state to dispute the applicant's statement that he had a fixed place of abode within the jurisdiction of

$0000/6$

this court. I therefore find that the applicant has a fixed place of abode in the jurisdiction as required by the law..

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The second consideration is whether the accused haat sound sureties willing to undertake that the accused shall .comply with conditions of his bail. The applicant,■introduced in ' . court one surety Beatrice Adimola who was'willing,to act as\* surety to his father. She is an adult, responsible lady, employed as a Civil Servant withe the Ministry' of Edivctlon and Spar •and eldest daughter of the applicant\* The state counsel did not object to her being a surety. I am of the opinion that Beatrice Adimola is in a position to make sure that the accused shall comply with the conditions of his bail especially because of her relationship with the appli^n^^ The other 2 sureties put forward by the applicant .were Prof.. Walumbe of Mulago and Mr. Wanendeya council member. Although these two gentlemen did not appear in court, they seem to be men of substance\* and responsible, their particulars can be tendered in later before the Registrar\* I therefore find that the accused has sound sureties.

The third condition is whether the accused has on ^a previous occasion when released on bail failed to comply with conditions of bail. There is nothing on record against the applicant in respect of this condition as he was granted bail in June, 199\*1 which lapsed on 17/1/92# ^ut state did not raise any complaint in respect of the previous bail conditions I therefore find that the applicant has a clean record as far as this condition is concerned. " '

The last condition is whether there are other charges pending against the accused. The answer to this condition is that there are none as there was nothing advanced by the state.^<

Another objection raised by the state counsel was that the accused will interfere with witnesses. However, he did not adduce any evidence to support this allegation. Courts have been following the decision in the case of Panju Vs. R/1973/EA 282 where it was held that allegations concerning interference with witnesses should be proved. This was an attempt by court to limit the abuse of this ground as the prosecution would always put it as a matter of course to bar the bail application without any evidence to support it. It has now become the \* practice to swear an affidavit in case the prosecution wants to adduce any evidence to support the allegation of interfering with the witnesses or investigations. And this requirement is just enforcing, Criminal Procedure (Applications) Rules Statutory Instrument No. 41 - 1 made under the courts (Rules) Act Cap 41. Pule 2 is as follows;-

> " All applications to the High Court in criminal cases shall usually where evidence is necessary be supported by affidavit "

It is my humble view that this rule does not only affect the applicant but also the respondent. I therefore find that in the absence of any evidence to support the allegation of interfering with witnesses, I find that the state's allegation is just speculation and cannot be acted upon by the court.

Counsel for the state's other objection was that now that the accused knows the summary of the case and the fact that if convicted he will suffer death that he was likely to abscond. With due respect to counsel I think credit should be given where it is due. The accused has been out on bail before, for a period of more than 6 months and he did not

$...18$

$-7-$

abscond although he knew that if convicted he would be sentenced to death. The fact whether the accused will abscond or not should be assessed by looking at,his antecedents and since none have been found against him, I therefore find that there is no evidence to show that the applicant will abscond\*

Counsel for the state had also invited me to ignore the previous bail application and consider this application on its own merit I agree with counsel that each bail application should be considered on its own facts and thats what I did, but I still had to look at previous bail when assessing whether the applicant compiled with the previous bail conditions or not.

The atmost- consideration when granting bail is whether it is probable that if the accused is released -on. hall\*, he ^will appear to -take his trial. The interest of the society to see that justice is done must be weighed against that of the ao^u^ed person. Under our laws every accused person is presumed innocent until proved guilty. The law also allows bail because at the end of the hearing of the case if the accused is found innocent there is no remedy for the years he may jiave spend in prison on remand. I have carefully considered this bail application and I am satisfied that the applicant has satisfied on balance of probabilities all the conditions required under the law before grant of bail in this particular case.

The applicant Andrew, Adimola is accordingly to be released on bail on fulfilment of the following conditions;-\* (a) He is to deposit with this court cash bail of Shs.200t<00/«

- \* ^K - (b) ² sureties each of these sureties to sign a bond of Shs.25,<00t000/= not cash. Miss. Beatrice Adiinola is approved as'^one of the sureties, the second *one* ■will be satisfied by the Registrar.

- (c) His passport should bo deposited with the court and should not be released to the applicant until determination of this case without an Order of the Courts - (d) The applicant is not to leave the jurisdiction of this court without a formal order from the court\* - Cei The apLPljj^j-t Ls ta report to the Registrar every two weeks starting from 24/2/92 until the disposal of -£he case which is the subject matter of this application or until another order by this court to the contrary\*

I so order⁰

U D G E« ' 11/2/92

Hr^'Muienga S\*G\* \* appearing for the applicant\* Mr\* Richard Lubwa & appearing for the state Mr> Qburu • Court Clerk\* Aiglioant Present\* Ruling Delivered before the above,

M\* KIREJU

Ag^A JU ^D ^G ^E^. 11/2/92.