[2025] UGHC 48

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT GULU**

# **CRIMINAL REVISION CAUSE NO. 10 0F 2024**

# **CHINA RAILWAY 18TH BUREAU GROUP CO. LIMITED ==========APPLICANT VERSUS**

**UGANDA==============================================RESPONDENT**

# **BEFORE: HON. JUSTICE PHILLIP ODOKI**

#### **RULING**

#### **INTRODUCTION:**

[1] The Applicant filed this application seeking that the orders of the Chief Magistrate of Nwoya, dated 21st December 2023, in Criminal Case No. 505 of 2023, wherein he ordered that Motor Vehicle Registration No. UAW 527Z belonging to the Applicant should be forfeited to Uganda Wildlife Authority should be revised and set aside; the warrant of attachment of Motor Vehicle Registration No. UAW 527Z vide Misc. Application No. 008 of 2024 be set aside; Motor Vehicle Registration No. UAW 527Z be released from forfeiture; and the cost of this application be provided for.

### **Background:**

[2] On the 25th November 2023 RA 237627 L/CPL Turyamwijuka Eden, a UPDF Officer was arrested at Anaka Town Council in Nwoya District and charged with the offence of being in possession of wildlife protected specimen Contrary to Sections 71(1) (a) &(b) and 70 (a) of the Uganda Wildlife Act, Cap 315 of the Laws of Uganda. The particulars of the offence were stated in the charge sheet to be that on the 25th day of November 2023 RA 237627 L/CPL Turyamwijuka Eden together with others still at large at Anaka Town Council in Nwoya District were found in possession of 5 bags of smoked bush meat which they were carrying using Motor Vehicle Registration No. UAW 527Z. Upon arrest of RA 237627 L/CPL Turyamwijuka Eden, Motor Vehicle Registration No. UAW 527Z was seized but was later handed over to the Applicant.

[3] On the 5th December 2023 the accused person was arraigned before Nwoya Chief Magistrates Court. The accused person pleaded guilty to the offence. He was convicted, on his own plea of guilty, by the Chief Magistrate. He was sentenced to a fine of Ugx 500,000/= or to serve 2 years imprisonment in default. In addition, the Chief Magistrate ordered that Motor Vehicle Registration No. UAW 527Z should be forfeited to Uganda Wildlife Authority and the 5 bags of smoked bush meat should be destroyed.

[4] On the 24th April 2024, vide Execution Misc. Application No. 008 of 2024, a person whose identity is not disclosed, signed for and behalf of the Chief Magistrate a warrant of attachment to Obita Polycarp, a Court Bailiff, to attach Motor Vehicle Registration No. UAW 527Z and hand it over to Uganda Wildlife Authority. The Court bailiff thereafter approached the Applicant with the warrant of attachment, hence this application.

### **The Applicant's case:**

[5] The gist of the Applicant's case as is discernable from the Notice of Motion, the affidavit in support of the application and the affidavit in rejoinder, is that that Applicant was not a party to the criminal case. The Applicant was condemned without being accorded a fair hearing. According to the Applicant, the Chief Magistrate exercised his jurisdiction illegally, with material irregularity and injustice. The Applicant contends that if the order of the Chief Magistrate is not is not set aside, it will suffer substantial loss.

## **The Respondent's case:**

[6] The Respondent opposed the application. Ms. Kkaya Jacinta, a Senior State Attorney from the office of the Director of Public Prosecution swore an affidavit in reply. She deponed that the Applicant was aware that its Motor Vehicle was involved in the transportation of unauthorized materials and of the case before the Magistrates Court. According to her, it was incumbent upon the Applicant to follow up its case in Court until its conclusion. She further deponed that the Applicant was given an opportunity to be heard when its Motor Vehicle was impounded. According to her, the order of the trial Chief Magistrate was lawful.

# **Legal representation:**

[7] The Applicant was represented by Mr. Pirwoth Michael of M/s Donge & Co. Advocates while the Respondent was represented by Ms. Kyomugisha Korusumu, a State Attorney from the office of the Director of Public Prosecutions.

#### **Legal submissions:**

[8] Counsel for the Applicant submitted that section 73 of the Uganda Wildlife Act, which was relied upon by the Chief Magistrate, provides for an additional penalty of forfeiture which may be imposed by the court on a convict. Counsel further submitted that where a motor vehicle to be forfeited does not belong to the convict, the owner of the vehicle must be given an opportunity to be heard. In addition, counsel submitted that the Chief magistrate should have investigated the circumstances under which the vehicle was used in the commission of the offence. He further submitted that by denying the Applicant an opportunity to be heard, the Chief Magistrate acted illegally and contrary to Articles 28(1) & (3) of the constitution which provides for fair hearing. Counsel relied on the case of *Pc Jaden Ashraf and another versus Uganda Court of Appeal Criminal Appeal No. 311 of 2016* and Attorney *General versus Hon.* *Micheal A. Kabaziguruka Supreme Court Constitutional Appeal No. 02 of 2021* where the right to a fair hearing was emphasized. Counsel also relied on the case of *Uganda versus Hon. Kasiano Ezati Wadri and 31 others High Court Criminal Revision No. 0002 of 2018* where the court expressed the view that acting contrary to the provisions of the law is an instance of illegality. Counsel further pointed out that the warrant of attachment contained an irregularity since it was signed for and on behalf of the Trial Chief Magistrate. Counsel argued that judicial power cannot be delegated.

[9] Counsel for the Respondent, on the other hand, submitted that the order for forfeiture was issued in accordance with the law and that no injustice was occasioned to the Applicant. In Counsel's view, Section 73 of the Uganda Wildlife Act apply to any instruments of crime. It does not provide for the presence of the owner of the instrument during the trial proceedings. Counsel further submitted that once the Court is satisfied that the instrument was used to commit a crime, an order of forfeiture and consequently attachment of such instruments is justified.

[10] In rejoinder, counsel for the Applicant submitted that there was no material presented before the Chief Magistrate to enable him come to the conclusion that the vehicle was used in the commission of the offence.

#### **Analysis and determination of the court:**

[11] The power of the High Court to revise the decision of the magistrate's court while exercising criminal jurisdiction is found in the *Criminal Procedure Code Act, Cap 116.* There are only three ways in which such a matter can be brought to the attention of the High court.

[12] The first way is when the High Court, on its own motion, calls for the record of magistrate's court. Section 48 of the *Criminal Procedure Code Act, Cap 116* thus provides that;

*"The High Court may call for and examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the magistrate's court."*

[13] The second way is by a magistrate sending the record of inferior courts to the High Court. Section 48 of *Criminal Procedure Code Act, Cap 116* thus provides that;

*"49. Power of magistrates to call for records of inferior courts and to report to the High Court*

*(1)Any magistrate may call for and examine the record of any criminal proceedings before a magistrate's court inferior to the court which he or she is empowered to hold, and situate within the local limits of his or her jurisdiction, for the purpose of satisfying himself or herself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the inferior magistrate's court.*

*(2)If any magistrate acting under subsection (1) considers that any finding, sentence or order of the inferior magistrate's court is illegal or improper, or that any such proceedings are irregular, he or she shall forward the record, with such remarks on it as he or she thinks fit, to the High Court.*

*(3)In accordance with subsection (2), where a chief magistrate forwards to the High Court the record of a case in which a convicted person is undergoing a sentence of imprisonment which the chief magistrate considers to be illegal or improper, he or she may release that person on bail pending the determination of the High Court."*

[14] The third way is by a person aggrieved by the finding, sentence or order made or imposed by a magistrate. He or she may petition the High Court to exercise its power of revision. Section 50 (5) of the *Criminal Procedure Code Act, Cap 116* thus provides that;

*"Any person aggrieved by any finding, sentence or order made or imposed by a magistrate's court may petition the High Court to exercise its powers of revision under this section; but no such petition shall be entertained where the petitioner could have appealed against the finding, sentence or order and has not appealed."* Underlined for emphasis.

[15] In the instant case, the Applicant is aggrieved by the order of the Chief Magistrate forfeiting Motor Vehicle Registration No. UAW 527Z to Uganda Wildlife Authority. The Applicant is also aggrieved by the order attaching its vehicle for the purpose of handing it over to Uganda Wildlife Authority. The Applicant was not a party to the criminal case. Therefore, though aggrieved by the orders, the Applicant cannot file an appeal against the orders of the Chief magistrate because it was not a party to the proceedings. The only recourse the applicant has is an application for revision. In my view this application is properly before this Court.

[16] It is common ground that Motor Vehicle Registration No. UAW 527Z was seized as a result of an offence under the Uganda Wildlife Act. From the Charge Sheet, it is very clear that RA 237627 L/CPL Turyamwijuka Eden did not commit the offence alone. The other persons who participated in the commission of the offence were indicated to be at large. Their identity was not disclosed to the court. It was indicated in the charge sheet that the accused person and others still at large were found carrying 5 boxes of bush meat using Motor Vehicle Registration No. UAW 527Z. The record of proceedings does not indicate that the Chief Magistrate established whether the vehicle belongs to the accused person or any other person who could not be found for the purpose of charging him or her with the offence. That notwithstanding, the Chief Magistrate ordered for the forfeiture of the vehicle of the Applicant who was neither named as an accused person nor convicted.

[17] Section 73 of Uganda Wildlife Act which was relied upon by the trial Chief Magistrate to issue the order of forfeiture provides that;

## *"73. Forfeiture as an additional penalty*

*(1) On the conviction of a person of an offence under this Act where the court considers forfeiture to be necessary, the court shall, notwithstanding any other written law and in addition to any other penalty imposed—*

*(a) declare the domestic animal, firearm or other weapon, trap, net, poison, material or any motor vehicle, aircraft, boat, or any other article taken by or used in connection with the commission of the offence to be forfeited to the Authority;*

*(b) cause to be forfeited to the Authority protected specimen referred to in section 71. (2) The disposal of a specimen, domestic animal or article forfeited to the Government under this section shall be subject to sections 76, 77, 78 and 79."* Underlined for emphasis.

[18] The legal issue in this case is whether forfeiture mentioned in Section 73 of Uganda Wildlife Act as an additional penalty may only be imposed by the court on property of the convict or whether it can also be made on property belonging to a person who is not a convict or a person not party to the proceedings. In my view, the answer to the legal issue is found in Section 75 of the same Act. It provides that;

## *"75. Seized good may be subject to forfeiture order*

*(1) If an article the ownership of which requires registration under any written law is seized as a result of an offence under this Act and the person responsible is unknown and cannot be found for the purpose of charging him or her with the offence or, having been charged, fails to appear to answer the charge, the Executive Director may apply to the court for a declaration of forfeiture.*

*(2) Upon an application under subsection (1), the court shall make a conditional order of forfeiture in the prescribed form, and the provisions of sections 76(2), (3), (4), (5), (6), (7) and (8) shall apply."* Underlined for emphasis.

[19] In the instant case Motor Vehicle Registration No. UAW 527Z was seized as a result of an offence under the Uganda Wildlife Act. There is no doubt that ownership of a motor vehicle is required under the *Traffic and Road Safety Act, 1998 (Chapter 347)* to be registered*.* See Section 10(1) & 13 of the Act. It therefore follows that where a motor vehicle (or any article the ownership of which requires registration under any written law) is seized as a result of an offence under the Uganda Wildlife Act, the person responsible for the vehicle or any such article must be charged with the offence. Upon conviction, the trial magistrate may in addition to any other penalty imposed make an order for forfeiture of the vehicle of the convict. It is only where the person responsible for the vehicle or article is unknown and cannot be found for the purpose of charging him or her with the offence or, having been charged, fails to appear to answer the charge, that the Executive Director may apply to the court for a declaration of forfeiture. In the later scenario, upon such application by the Executive Director of Uganda Wildlife Authority, the magistrate can only make a conditional order of forfeiture in the prescribed form*.*

[20] The procedure to be followed after a conditional order for forfeiture is made is found in Section 74 of Uganda Wildlife Act which provides that;

## *"74. Conditional order of forfeiture*

*(1) When a court is required under sections 75(1) and (2) to make a declaration of forfeiture in respect of any article the ownership of which requires registration under any written law, the court shall make a conditional order of forfeiture in the prescribed form.*

*(2) Upon the making of a conditional order of forfeiture under subsection (1), the Executive Director shall, within thirty days after, the making of the order cause to be published in the Gazette and in two consecutive issues of a newspaper having wide circulation, a notice of the order.*

*(3) If ownership of the article is registered in the names of a person other than the convicted person, the Executive Director shall, within seven days after publication of the notice in the Gazelle, cause a copy of the notice to be sent to the person in whose names the article is registered.*

*(4) A person who wishes to claim a right of ownership in the article may, within sixty days of the last publication of the conditional order, lodge with the court a written application for discharge of the order, setting out his or her claim of ownership in the article.*

*(5) Upon an application made under subsection (4), the court shall set a date for a hearing of the application and serve notice of the hearing on the applicant and on the Authority.*

*(6) In any hearing of any application made under subsection (4), the burden of proof shall be upon the applicant to prove that he or she was not privy to the offence and that the article was, at the time that the offence was committed, being used for that purpose without his or her knowledge or consent.*

*(7) Where court rejects an application for discharge, the court shall declare the article absolutely forfeited to the Authority.*

*(8) Where upon an application made under subsection (4), a court is satisfied that an article is owned jointly by, or is the subject of a rental agreement between the applicant and the convicted person, and the applicant has discharged the burden of proof in accordance with subsection (6), the court shall declare as forfeited all of the estate, interest or rights of the convicted person in the article and shall order them to be disposed of as it deems fit.*

*(9) A right of a claimant under a rental agreement to repossess an article which is subject to a conditional order of forfeiture made under subsection (1) shall be suspended pending determination of an application made under subsection (4)."*

[21] The above provision of the law gives to the owner of the vehicle or article who is not charged with the offence, but whose vehicle or article has been seized as a result of the commission of the offence, an opportunity to be heard and to apply to the court to have the vehicle or article to be discharged from forfeiture*.*

[22] In the instant case, neither the Executive Director nor the State Attorney from the Office of the Director of Public Prosecutions who appeared in court applied for a declaration of forfeiture. The trial Chief Magistrate made the order for forfeiture illegally without complying with the law and giving the Applicant a hearing. To make matters worse, the warrant of

attachment which was subsequently issued to the bailiff was authored by an unknown person for and on behalf of the trial Chief Magistrate.

[23] In the end, I find that this application has merit. The orders of the Chief Magistrate of Nwoya, dated 21st December 2023, in Criminal Case No. 505 of 2023, wherein he ordered that Motor Vehicle Registration No. UAW 527Z belonging to the Applicant should be forfeited to Uganda Wildlife Authority is according revised and set aside. The warrant of attachment of Motor Vehicle Registration No. UAW 527Z issued vide Misc. Application No. 008 of 2024 is also set aside. Motor Vehicle Registration No. UAW 527Z is accordingly released from forfeiture. On the prayer by the Applicant that it should be awarded the cost of this application, given that the illegality was by the Chief Magistrate and not the Respondent it would be unfair to condemn the Respondent into costs. It is accordingly ordered that each party shall bear their own costs of this application.

I so order

Dated and delivered by email this 19th day of February, 2025.

**Phillip Odoki JUDGE.**