[1991] UGHC 84

#### THE REPUBLIC OF UGANDA

### IN THS HIGH COURT OF UGANDA AT KAMPALA,

# ALOI CRIMINAL REVISION ORDER NO# 85/91

1- BAIMONDO OPIO J................................ DAVID' OBWOR { ::::: ACCUSED

# .-VERSUS

UGANDA ::::::: PROSECUTOR

BEFORE: The Hont Mr# Justice ^GtM» Okellq:

### REVISION ORDER: \* -

The accused Raimondo Opio was charged with theft contrary to section 252 of the Penal Code Act# He pleaded not;- guilty to the charge but after trial he was convicted, of Receiving or obtaining goods by false pretences C/s 289 of the PCA# Subsequently he was sentenced to a caution under section ' 202(l)(b) of the MGA»70# ■' ,

David Obwor, the 3rd Prosecution witness in the case was meanwhile conyicted of theft contrary to section 252 of the penal Code Act, he had not been charged with the offence or any other# Subsequently he was sentenced to a fine of Shs#200/= or to 6 weeks imprisonment in default **of** payment of the fine#

I was of the view that both convictions are bad in law# First of all, the conviction of the Accused Raimondo Opio of receis&ig or obtaining goods by false pretences contrary to section 189 of the Penal Code Act **is** .5 ' •• bad# This is not minor and cognate offence **to theft** contrary td section ²⁵² of the Penal Code Act# The conviction is wrong and misconceived. I An offence is cognate to another if it is of the same apieces of the offence charged# It is minor if it carries lesser penalty than the offence charged#

In the instant case, obtaining goods by false pretence may be of the s§ne. spiece with theft but it is certainly not ^a minor offence to theft# Both carry maximum Penalty of 5 years imprisonment. Unless the charge was^k. amended it was wrong to convict the accused who was charged with theft contrary to section 252 of the Penal Code Act of obtaining goods by false

pretences contrary to section 289 of the PGA.

Secondly, fundamentally, one cannot be convicted of an offence unless he has first, been charged with the offence and have been given the chance to plead to it and be heard in his defence. In the instant case, the conviction of David< Obwor who was a prosecution witness in the case and was never charged with the offence was fundamentally wrong and amounts to a traversity of justice.

*Z* 2

Thirdly the default sentence of ⁶ weeks imprisonment for a fine of Shs.200/= imposed on David Obwor is clearly illegal as it violates section 192(d) of the MCA'⁷⁰ as amended by Act 4 of 19^5. This section stipulates default sentence for a fine of not more than 2000/=: to only ⁷ days imprisonment.

When the file was sent to the DPP for his views, George Bamugemereire a state Attorney who wrote the opinion for the DPP expressed the same views as above and did not wish to be heard in the event of a Revisional Order being made.

For the reasons given hereabove, the convictions of Raimondo Opio and David Obwor are quashed and the resultant sentences are set aside.

# 0 R D E R :

Any money which might have been paid by David Obwor in respond t> the order of fine imposed by the trial court must be refunded to him forthwith.

t *I '* •M. Okello.

JUDGE. 3/9/91.