[1991] UGHC 63

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## THE REPUBLIC OF UGANDA.

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#### IN THE HIGH COURT OF UGANDA. AT KAMPALA

#### MISC. GRI. APPL. NO. 97 OF 1991

(Original Cr. Case No. MN. 1^3/91 of Nakawa Court)

GERARD NKUBA :::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::: RESPONDENT Before: The Hon, the Principal Judge Mr. Justice J. H. Ntabgoba. • . v

# R U L I N G f

The applicant in this case is applying to be released from custody on bail. The background of the case is that on 2.2.90 the applicant entered into a sale agreement with one Tom Muruhura (to be referred hereinafter as the complainant), whereby the applicant sold to the complainant motor vehicle a Datsun Pick-up registration number Ul/Q 61^, at a price of <Shs. 1,750,000/- which the complainant paid to the applicant.

It appears that the vehicle was, at the time of the sale, registered in the name of Interstate Finance Company Limited but the applicant undertook to discharge his financial obligations with the said Interstate Finance Company Limited, in order to free the motor vehicle so as to transfer it into the names of the complainant. When the applicant failed to take positive steps in transferring the said motor vehicle into the names of the complainant, the latter's lawyer wrote to the,applicant on 6.3.91 inviting him to his chambers and notifying him that "If we do not hear from you within the said period, we have firm instructions to refer the matter to the police or take any other appropriate legal action against you

without further notice."

At that time, it appears the physical body of the vehicle was the complainant but the applicant could not take steps to obtain a road licence for it to enable the complainant to utilize the vehicle, until the applicant could disentangle himself from his legal obligation to the Interstate Finance Company Ltd, aforementioned. Indeed Counsel for the applicant informed the court at the hearing that another party eventually t took possession of the vehicle. I suspect the party could be the Interstate Finance Company Limited. Be that as it may, it appears the applicant ended up in the hands of the Police because in paragraph 7 of his wife's affidavit she depones:

"?• That in a bid to extract money from the applicant the complainant reported to the CID a case of obtaining money by false pretences registered as E/198/91,"

On 22nd April 1991, the applicant was arrested and detained at the CPS (see paragraph 8 of his wife's affidavit of 9th September 1991)\*

The applicant complains, as did his wife Erina Nkuba deponed in paragraph 9 of her affidavit, that while he was in the Police custody, the officer in-charge Mr. Sileka and the complainant made him sign a post-dated cheque No.782878 in the sum of Shs.2,162,000/- in favour of the complainant. It is alleged on behalf of the applicant that the Police made him sign the cheque if he was to be released from their custody. He alleges therefore that the cheque was obtained through duress, intimidation and and coercion (seeErina Nkuba's affidavit, paragraph 11).

True the applicant signed the cheque on 24th April, 1991 and on 25th April, 1991 he was released on Police bond and ordered to look for the money and to take it to the police within A days\* He was meanwhile to report to the Police. V.?hen he reported, he was re-arrested on the ground that he had failed to pay. As a matter of fact, it transpored at the hearing that the cheque he had issued returned dishonoured (i.e. it bounced). He was therefore charged with another count on the offence of issuing a false cheque contrary to S.j6^(l) of tho Penal Code Act as amended by the Penal Code (Amendment) Statute 1990, which provides that:

"364(1) Any person, including a public Officer in relation to public funds who .... (a) ..... or

(b) issues any cheque in respect of any account with any bank when he has no reasonable ground, proof of which shall be on him, to believe that there are funds in the account to pay the amount specified on the cheque within the normal course of banking business; or

(c)

is guilty of an offence and liable on conviction to imprisonment not exceeding ten years or a fine of not less than ten times the amount represented on tho cheque."

The applicant, it is alleged at first appeared before the court at Nakawa presided over by a Magistrate 1, who granted the applicant bail. On 13\*5»91 when, however, he presented himself to court for bail extension, his bail was cancelled on the ground that the offence is not bailable before a Grade ¹ Magistrate. Such is the story told mainly in the affidavit sworn by Mrs. Erina Nkuba on 9th September, 1991 in support of this application, which the applicant has brought under S.?4 (3) of the Magistrates' Court's Act.

In support of this application Mr. Serwangu-Sengendo, Counsel for the applicant argued that the cheque of the applicant which he issued without any funds on his bank account and which consequently bounced, had been signed under duress, and that in any case, the matter was more civil than criminal. And the grounds upon which this application was based, according to the Notice of motion are two, namely,

- (1) That applicant was framed in that he was forced to sign a cheque while in Police Custody which was used as a foundation for the count of issuing a false cheque. - (2) That the whole case is a Civil matter which shot Id have never been a subject of^Criminal Prosecution.

With the greatest respect, I do not agree. Whether or not he was framed up, will be decided when the case comes up for hearing and so also whether the matter of the dishonoured cheque is a civil matter not criminal. Those were also the arguments of Mr. Khauka, the State Attorney, when he opposed the applicants' release on bail, and he was right in that argument. The State Attorney also argued that the severity of the sentence provided for the offence of issuing a false cheque could scare the applicant into absconding. I do not agree with this argument. The maximum sentence provided for this offence is ten years and bail has in the past been granted in cases whose maximum sentence is even higher.

Another argument by Mr. Kauka in shpport of his opposition to the bail application is that the applicant made false promises when he issued the false cheque. The State Attorney blamed the applicant for having failed to report the police whom he alleges coerced him into signing the cheque; or for his failure to contact his bankers

to avoid his cheque being dishonoured\* I do not think it would have made any difference for the applicant even if he had taken the steps proposed by Mr. Khauka. The fact is that the cheque was dishonoured and the burden is placed on him by the statute to prove that he had reasonable ground that his cheque would not bounce when he issued it. So he could have avoided prosecution under S. J64(l) (b) but not under S. ?64(1) (c). But I agree the question of proof would arise not at this stage but on trial. The criteria upon which considerations should be made of a bail application are amply set forth in S. 75(2) of the MCA that: "(2) when application for bail is made, the Court shall have regard to the following matters in deciding whether bail should be granted or refused:

5 : .

(a) the nature of the accusation;

- (b) the gravity of the offence charged and the severity of the punishment which conviction -might entail; - 4c.) the antecedents of the applicant so far as they are known; - (d) whether the applicant, has a fixed place of abode- within the area of the court»s•jurisdiction; - (e) whether the applicant is likely to interfere with any of the witnesses for the evidence, to be tendered in support of the charge. \*

'I must state from the outset that so far as this present application is concerned, the question of the applicant being likely to abscond, as well as the likelihood of his interfering with witnesses or evidence, under paragraphs (d) and (e) are ruled out. I am fortified in 'this view by the evidence that when earlier on he had been released on bail he obeyed the conditions imposed by the

.♦./6

Magistrates Court. He was going to report for the extension of his bail when he was re-arrested and the bail cancelled. As irom paragraph (c) of ss. (2) of S. 75 of the MCA, no antecedents are known or have been shown to show his bad record or a previous disobedience of bail conditions. What regain to be considered are the conditions under paragraphs (a) and (b) of ss.2 of S. 75 of the MCA, namely, (a) the nature of the accusation and (b) the gravity of the offence charged and the severity of the punishment which conviction might entail.

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F

I have already considered the nature of the punishment that could follow his conviction; I know that issuing false cheques is rampant, but in the circumstances in which the applicant issued the dishonoured cheque i.e,. while in Police Custody and trying to get out of the cells, one can understand the plight of the applicant then. This is not to say, however, that the offence was not serious or that it was justifiable, particularly when he knew he had no funds on his bank account which could honour the cheque. But I must say also that I have not been able to comprehend how the applicant came to issue a cheque in the sum of Shs.2,162,000/ when the motor vehicle he had sold,to the complainant was worth 1,750,000/- which is disclosed in Annex HAⁿ of the plaint. It is also observed that, according to the afiidavit of the applicant's wife, Erina Nkuba, the complainant received from her a sum of Shs.500,000/- on the ground that if she did not pay that sum, the •applicant would not be released from the Police custody. Since there is no affidavit in reply to rebut the allegation of payment of Shs.500,000/-, I am persuaded to believe the allegation. But the question is, what was this payment inrespect of? I tend to believe that the applicant was put under so much pressure, including his I~.\*/7

detention in police custody. It must have been too much for him in the detention to resist issuing the cheque and his wife also paying Shs.500,000/-.

Besides, the complainant will, I suppose, have'to maintain his Civil Suit in order to obtain payment of whatever money he claims from the applicant, this notwithstanding the criminal charges against the applicant. There is also a possibility that the applicant could be committed to a Civil prison should he fail to pay the complainant.

On the whole, and considering this case on its peculiar individual merit, I am satisfied that the applicant, who has a fixed place of abode, is not likely to abscond; he is not likely to interfere with any witnesses; there is no adverse report of his antecedents and the circumstances under which he was made to issue the dishonoured cheque ameliolate the seriousness, of the offence . which had it been committed' without detention ,md pressure would have otherwise been very serious.

I am inclined to grant the applicant bail, provided he:-

- (a) deposits with the Court a sum of Shs•5-00,000/-5 - (b) furnishes two substantial sureties to be accepted by the Registrar and each of which to give a bond of Shs\*1,000,000/ not cash; • - (c) he reports to Kampala Central Police Station every Friday of each week until his case is finalised.

........ /S

Bail is granted on those terms and I order accordingly.

11/10/1991 *i r-*J,H \* Ntabgoba Print ipal Judge

### 11/10/1991:

Present:

Mr\* Serwanga Sengendo for the applicant The applicant present State Attorney absent. Ruling read in Chambers'.

J. H. Ntabgoba\* ?

Principal Judge.

11/10/1991