[1995] UGHC 42

## THE REPUBLIC OP UGANDA

IN THE HIGH COURT OP UGANDA - HOLDEN AT GULU

## OR. REVISION NO. MG. 3/95

(Original Criminal Caso No.301/95

Uganda ...........................versus ... Alewo Bosco.

Before: The Honourable Mr. Justice G. M. Okello.

ORDER

The accused was charged with and convicted on his own plea of guilty in two counts of offences under the Traffic-, and Road Safety Act 1970. In count I, he was convicted of using unlicenced Tractor Trailer contrary to sections ¹³ and 52(1)(c) of the TRSA. He was then sentenced to ¹ year imprisonment or to a fine of 1005000/= in lieu thereof.

In count No.2, he was convicted of using Trailer without a prescribed Registration Number Plate contrary to section 52( l)(b) of the TRSA. He was also sentenced to six (6), months imprisonment or to a fine of 50,000/= in lieu thereof.

The pleas upon which the accused was convicted in both counts read thus.

> ''Court - Charge read and explained to the accused vzho says he understands them both"

"Pleas.

Count I;- It is true.

Court - P. G. entered.

Count II:- It is true.

Court:- -P. G. entered.

Pros:- Pacts as stated in the charge.

Accused:- Pacts are correct.

Court-- Accused convicted on his own plea."

Those pleas are vague. More could have been added to them to make them more clearly un equivocal. But because the charge is simple and not complicated, the pleas can be allowed to stand especially since there was no complaint by the accused in the allocutus

It is not clear from the above record whether the accused was convicted on both or on only one count. Section 122(2) of the Magistrates Courts Act 1970 requires a Magistrate to convict an accused who pleads guilty. The conviction must clearly refer to the count intended where there are more counts. Perhaps the Magistrate would have recorded that.

"Accused convicted on his own plea on both counts." That would have cleared out any doubt as to the count on which the accused was convicted.

Be that as it may, it was pointed out earlier that the trial magistrate mentiined the accused in count ¹ to a term of ¹ year imprisonment or to a fine of 100,000/= in lieu thereof. In count No . 2, he was sentenced to six months imprisonment or to a fine of 50,000/= in lieu thereof.

Two things are observed to be v/rong with the above order of sentence. In the first place, the alternative order of ^a fine in lieu of the prison term, gives to the accused power to choose either to serve a prison term or to pay the fines. That is not what the section which created the offence says. The section give to the court discretion to impose either a prison term not exceeding ¹² months or a fine not exceeding 2,000/= cr to both. In mailing the order of sentence as he did, the trial magistrate thereby transferred the power which the section vested in the court to the accused to choose his own penalty. That is clearly wrong. The court should have chosen the penalty from the range prescribed by the section which created the offence.

Whatever penalty the trial magistrate had chosen to impose, he had to have regard to the section which created the offence. That section prescribed the limit of the penalty to be imposed. The fine of 100,000/= imposed by the trial magistrate as an alternative penalty to the prison term was not in compliance with the section which created the offence.

......... /3..

I have had a discussion with the relevant magistrate grade I who passed this type of sentence. He argued that section 189(2) of the Magistrate Courts Act '70 empowers a magistrate to impose a fine instead of imprisonment. In his view, under that section a magistrate can impose a higher fine than that prescribed by the section creating the offence if he is of the view that the penalty prescribed the section which created the offence was inadequate like in most Traffic. offences. do not

With respect, I/agree with that argument because section $189(2)$ of the MCA 70 does not apply to a situation where the section which created the offence provided for a term of imprisonment with an alternative to a fine or to both. In such a case the court must confine itself to that section creating the offence because that is the penalty which the legislatures in their wisdom thought appropriate for the offence under that section. Section $189(2)$ of the MCA '70 is a general section which is called to play only where the law creating the offence provided only for a prison term without any option for a fine.

In the instant case, section 52 (1)(b) of the TRSA provided for a prison term with an option for a fine or both. If the trial magistrate had chosen to impose a prison term, it had to be not more than 12 months. If he chose a fine it should not have exceeded 2,000/=.

C

When the file was sent to the Resident Senior State Attorney for his opinion, he wrote a letter ref RSA/NR/GK/92/95/PAP of 15th December 1995 in which he expressed the view that,

> "the sentence imposed of 1 year imprisonment or a fine of shs $100,000/$ = in lieu thereof in count 1 and six months imprisonment or shs $50,000/=$ in lieu thereof in count II is contrary to the section creating the offence and therefore illegal."

> > $..../4..$

$\overline{3}$

He had no objection to the sentence being set aside. He did not wish to be heard in the event of a Revision Order being made.

The reason I have given herein above in respect of the sentence in gount I applies equally well to the sentence in count No.2. They are illegal as they did not comply with the section which created the offence. For that reason they are set aside. In their places the following are substituted:-

Count I - Accused is sentenced to a fine of 2?000/= or ⁷ days imprisonment in default.

Count Ho.2:- Accused is sentenced to a fine- of 2,000/= or in default to 7 days imprisonment.

Orders- - Any excess money paid by the accused as a result of the order of the trial magistrate must be refunded to the accused. If the accused was committed to prison as a result of the order of the trial magistrate dated 5/11/95, he should be released forthwith for he must have served much of the illegal ^s en tence.

^f A, G-. T\*. Okello Resident Judge Gulu.

19/12/95.