[1996] UGHC 38

THE REPUBLIC OP UGANDA IN THE HIGH COURT OP UGANDA - AT GULU CRIMINAL REVISION ORDER NO. 13/96 (Original Criminal Case No •MG . 125/89) Uganda ..... versus. Patrick Mas aba Before: The Hon. Mr. Justic^e ^G aldino Moro Okello .

## ORDER

The accused in this case was charged with four counts of Agg /ravated Robbery contrary to section 272 and 273( 2) of the Penal Code Act. On 26/10/90 he was released on bail after spending on remand a period of 480 days without being committed for -trial. He however, failed to honour the conditions of his Bail and a warrant of arrest was on 24/12/90 issued against him. By 24/1/96 the warrant of arrest had not yet been executed and the relevant file was placed before ^a Magistrate Grade III who dismissed the case purportedly under section 117(2) of the Magistrates Court Act.

That section doos not authorise a Magistrate to dismiss a case. The relevant section reads.,

-117(1). If, in any case in which a Magistrates Court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the prosecutor having had notice of the time and place for the hearing of the charge, does not appear, the court shall dismiss the charge, unless for some reason it shall think fit, in which event it may, pending such adjourned hearing; either admit the accused to bail or remand him to prison or take such security for his appearance as the court shall think

(2) The dismissal of a charge under this section shall not operate as a bar to subsequent proceedings against the accused person on account of the same fact/'

Section 117(1) above only empowers a Magistrate court in cases where it has power to hear and determines to dismiss the case where the accused appeared but the prosecutor failed to appear having been duly notified of the time and place of the hearing of the case.

In the instant case, the Magistrate Grade III had no jurisdiction to hear and determine the offence of Aggravated Robbery. Section ¹⁵⁷ (4) of the Magistrates Court Act is very implicit on this. It says,

"For the removal of doubt, it is hereby declared that no Magistrates Court shall have jurisdiction to take cognisance of any offence of Robbery as defined in section 272 of the Penal Code Act and punishable under sub-section ² of section ²⁷³ of that Code.-

When the relevant file was sent to the Resident Senior State Attorney Gulu for his comment, he wrote a letter ref RSA/N/ GK/5/96/PAP on 3/4/96 in which he shared the view that the Magistrate Grade III had no jurisdiction to hoar and determine the charge of Aggravated Robbery and therefore could not dismiss either. lie had no objection to the revision order being made and did not wish to be heard in the event of the Revision Order being made.

Clearly as shown above, the Magistrate Grade III acted without jurisdiction in dismissing the case which he had no jurisdiction to hear and determine. The dismissal order was therefore illegal.

Section 117(2) of the Magistrates Court Act on which the Magistrate relied in ordering the dismissal does not authorise ^a Magistrate to dismiss ^a case. It only authorises the reinstitution of a case dismissed under section 117(1) of the MCA'70.

For the reasons given above, the dismissal order made by the Magistrate Grade III in this case on 24/1/96 is hereby set aside. For the same reason, the same order apply to Criminal Revision Order Nos. 14/96 Original Criminal Ce.se No. l. G. 101/08 Uganda -vs- Peterson Ckene; Criminal Revision Order No. 15/96 (Criminal Case No. MG.305/88) Uganda -vs- Onono Laali: Criminal Revision Order No. 16/96 (Criminal Case No. HG. 126/86) Uganda -vs- Solomon Luru, and Criminal Revision Order No. 17/96 (Criminal Case No. HG. 312/88) Uganda -vs-Dprothy Atuk <1 Anor; all of which were similarly dismissed by the same Magistrate. The accused in Criminal Revision Order Nos.16/96 and 17/96 were charged with murder contrary to section 183 of the Penal Code Act which a Magistrate Grade III has no jurisdiction to hear and determine. He is prohibited by section 157(1)(d) in schedule I to the Magistrates Court Act. This section bars Magistrate Grade III from hearing and determining all the sections in Chapter XIX which is headed "Murder and Manslaughter."

Galdino Moro Okello

Judge 27/5/1996.