[2022] UGHCCRD 58

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT MUKONO CRIMINAL MISCELLANEOUS APPLICATION NO. 059 OF 2022 (ARISING CRIMINAL CASE 003 OF 2022 AT GOMA) <table>

NAMUJUMBI HANIFAH APPLICANT

#### **VERSUS**

$UGANDA \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$

# BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

### **RULING**

This is an Application brought by way of Notice of Motion under the provisions of Articles 23(6) of the Constitution of the Republic of Uganda 1995 as amended, Section 14(1) of the Trial on Indictments Act (TIA) Cap 23 & Rule 2 of the Judicature (Criminal Procedure) (Application) Rules SI 13-8 seeking that Namujumbi Hanifah, the Applicant, be released on bail.

The grounds of the Bail Application stated are in the Notice of Motion dated and filed on 20^th September 2022 and the supporting affidavit of the Applicant affirmed on the 20^th September 2022 are summarized as follows;

That the offence with which the Applicant is charged is bailable; that the Applicant is a first time offender; that she has substantial sureties who will ensure that she attends Court while on bail; she will not interfere with any of the prosecution witnesses or any evidence to be tendered in support of

the charges against her; she has a fixed place of abode within the jurisdiction of National Identity Card No. CM83032108KR6F. The letter from the LC introduces him as Mutatila, Court considered this a misnomer and corrected it.

Mubuuke Hamisi, a farmer and a resident of Kiwongo Namwezi Local Council, Bulerere Ward, Goma Division in Mukono District. He holds a National Identity Card No. CM83032109GCCH. The letter of the LC introduces him as Amisi, Court considered this a misnomer and corrected it. Nantongo Prossy, a resident of Kiwongo Namwezi Local Council, Bulerere Ward, Goma Division in Mukono District holder of National Identity Card No. CF89032101MDWA and a sister to the Applicant.

Counsel introduced them before Court and presented their original National Identity Cards and letters from the LC of their area.

Learned Counsel Mujuni Januario who represented the Applicant based his submissions on the above grounds and the supporting affidavit. For brevity, I will not repeat the arguments of counsel which were grounded in the application.

It was submitted for the Applicant that since the Respondent in their affidavit in reply stated that the investigations were not complete, the act of the accused/applicant being paraded before court was premature since the State is still investigating.

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That since the Applicant had spent five months on remand he should be granted bail. He presented the three sureties in Court and prayed that the Court finds them substantial.

The Respondent relied on an Affidavit deposed by Nanyonga Josephine on 27^th October, 2022 and filed in court on the same day, she states that she is employed by the Office of the Director of Public Prosecutions (ODPP) as a State Attorney. That the applicant is charged with a grave offence of Murder which carries a maximum sentence of death upon conviction and therefore there is a likelihood of absconding; the applicant has not clocked the mandatory bail period as provided for under Article 23(6)(c) of the Constitution of the Republic of Uganda, which is 180 days of remand without committal to the High Court; that the investigations are still on going in this case hence there are higher chances that the accused will interfere with the witnesses once released on bail; that the Applicant has presented three sureties but has not explained the relationship between her and the sureties and the responsibility that they hold in their communities; that the Applicant's National Identity Card introduces her as Namujumbi Jesca while the LC letter refers to her as Namujumbi Hanifah; that there are no exceptional circumstances that exist to justify her release on bail and that she will not abscond and render the trial nugatory. The Respondent was represented by Ms. Victoria Ann Nanteza who expounded on the grounds

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for opposing the Application as contained in the affidavit in reply. Similarly, I will not repeat all the arguments of Counsel.

Counsel submitted that the charge of murder is grave in nature and since the Applicant is not yet convicted there was a high likelihood of interference of the Prosecution witness as the investigations were ongoing. She cited the case of Adriko Yudus versus Uganda Criminal Application 30 of 2016 which sets out the paramount consideration for grant of Bail.

She submitted that if the Court exercises its discretion to grant Bail to the Applicant, then stringent terms should be set out for the Applicant and his sureties to compel his attendance on Court whenever she is required.

In rejoinder Counsel for the Applicant cited Bashir Kayonga versus Uganda - Miscellaneous Application No.158 of 2019 wherein Lady Justice Anglin relied on the case of Mugyenyi Steven versus Uganda for the proposition that the major requirement is for accused to have a fixed place of abode and not the names of the surety.

On strigent terms, Counsel cited Charles Onyango Obbo & Another versus Uganda (HCMA 145 of 1997) where Court held that conditions should not be too stringent so as to punish the accused. He also contended that having a fixed place of abode does not mean that a Certificate of Title should be adduced or required by the Court.

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### ANALYSIS AND DETERMINATION

The Court, suo muto, is of the view that where issues of both law and fact arise in the same suit, and the court is of the opinion that the case or any part of it may disposed on issues of the law only, it shall try those issues first, and for that purpose may, if it thinks, postpone the settlement of the issues of fact until after the issues of law have been determined. See Order 15 rule 2 of the Civil Procedure Rules. I have borrowed from the Civil Procedure Rules and fortified myself in the decision by Section 39(2) of the Judicature Act, Cap 13.

The Court, upon scrutiny of the affidavit in support of the motion observed that the Applicant affixed her thumb against the affidavit, there was however no translation offered as is required for persons who are illiterate. Against the name of the Applicant "NAMUJUMBI HANIFAH "is written in blue ink "NamuJjmubi" where the signature is ordinarily affixed, then against that signature is a thumb print. The Court observed that the handwriting appears to be of someone who does not write often and took notice there is a misspelling of the name. It is peculiar that a person who is literate would misspell their own name. The Applicant tendered her National Identity Card as annexture "C" to the affidavit and the signature that appears thereon is distinctively different from the marks made on the affidavit.

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The Court is left in doubt as to the authenticity of the signatures on the Affidavit and if in fact the Affirmant understood the contents of the affidavit, as no explanation was tendered to this Court.

Under the Illiterates Protection Act Cap 78, Section 3 provides that;

"Any person who shall write any document for or at the request, on behalf or in the name of the illiterate shall also write on the document his or her own true and full address, and his or her so doing shall imply a statement the he or she was instructed to write the document by the person for whom it purports to have been written and it fully and correctly represents his or her instructions and was read over and explained to him or her."

In Tinkens Francis and another versus the Electoral Commission and 2 others HC Election Petition No.1 of 2012 the Court held inter alia that;

"the requirements for Illiterates Protection Act Cap 78 are legal requirements and not procedural requirements. The law cannot therefore be bent under Article 126(2) (e) of the Constitution of the Republic of Uganda 1995, as amended."

In the instant case no translation or verification was offered to show that the contents had been read and explained to the affirmant who accepted them as true. In the absence of the verification the affirmant cannot own the contents of the affidavit.

In light of the above, I find that the affidavit was not properly affirmed and is incurably defective.

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In the premises the Bail Application is rendered a nullity as it can stand without a supporting affidavit. I therefore dismiss the Application with no order to costs.

Dated at Mukono this ....................................

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HON. LADY JUSTICE CHRISTINE KAAHWA **ACTING JUDGE**