[1995] UGHC 63

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UG'NDA AT KAMPALA.

## CRIMINAL REVISION NO. 2 OF 1995

| <b>UGAIIDA</b> | $\n\begin{array}{cccccccccccccccc}\n1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1$ | | | | PROS CUTOR | |-----------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--|--|------------| | | VRS. | | | | | | Al: OBEX WILLIAM | | | | | | | A2: $0.2$ EIGI. OB EZO | $\begin{array}{cccccccccccccccccccccccccccc} \mathbb{S} & \mathbb{R} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{S} & \mathbb{$ | | | | ACCUSTEDS | | A3: DOMASIANO KERURUSA | | | | | | | REPORT: THE HOME OR JUSTICE G. M. OKTILO | | | | | |

## $O R D B R$ :

This file was sent to this court by the Chief Magistrate of Arua under his covering Letter dated 20/19/94 for a possible Ravision Order.

The back ground to the case is rather chequered econused No. 1 Obey William was charged with and convicted as under:-

for assault occasioning actual bodily harm Count 1: contrary to section 228 of the Penal Coue Act.

for malicious Damage to property contrary Count 2: to section 315 (1) of the Ponal Code Act.

for obstructing a Government officer in the Count 3: exocution of his official duties contrary to section 106 of the Penal Code Act.

He was sentenced as follows:-

Count 1: to a fine of $10,000/$ = Count 2: to a fine of $10,000/=$ Count 3: to a fine of $15,000/$ =

Then he was ordered to serve 14 months imprisonment in default of payment of the above fine.

$-./2.$

OZENVI OB YO $(A2)$ , DONASIANO KERUHEWA $(A3)$ and NYINGAMBE $(A4)$ were charged with and echwicked of obstructing a Government officer in the execution of his official duties contrary to section 106 of

$\mathcal{L}$

the penal code Act. They were each sentenced, to a fine of UGS. 10,000/--- A3 and. A4 were also ordered, to servo ¹² months imprisonment in default of payment of the fine.

Sarlier, after their pleas, the accuseds wore released on a cash bail of 15,000/= oash, as they awaited their trial which, was set for 3/2/93 They all complied with the conditions of their bail. Surprisingly, on the file, wore copies of Warrant of arrest dated 10/2/93 in respect of A1, A3 ^nd M\* Yet there was nothing on the record to suggest that any of these throe accuseds defaulted on their bail terms. -Tudgment was eventually delivered on 8/2/93 before thosu warrants of Zrrest were issued.

Then, there was an order by the trial magistrato forfeiting the cash bail dapositoduby the accused on the ground tha^J warrants cf arrest were issued.

Later, the complainant who had privately prosecuted, the case, filed his bill of cost which the trial Magistrate taxed and allowed at shs. 116,500/=. But .the record revealed no order for cost. Following the cost allowed however, properties of A3 were attached and himself was arrested and detained to enforce payment of the cost so awarded to the complainant.

When complaint was made to him, the chief magistrate was of the view

- (1) that the order foirfciting the accused's cash bail was illegal because the accuseds had honoured the conditions of their bail through-out. There was therefore no justification for the issuance of the warrants of arrest. - (2) the allowance of the Complainant's bill of cost was not proper because there was no order gining tho complainant cost. - (3) the arrest and detention of A3 and attachment of his properties to enforce payment of tho cost was illegal.

In view of the above, the Chief Magistrate ordered the immediate release of A3 and the return of all the proporties of A3 that were attached. He also called for the relevant file for his inspection. When those attached proporties of A3 were being returned, the chief magistrate ordered attachment of the complainant's properties to recover the properties which were wrongly attached from A3. The attachment of the complainant's properties sparked complaint from the complainant.

Thore can be no doubt that the proceedings were twith irrogularities. The law governing forfaires of recognisence, to begin with, is covered under section 81 of the Magistrate is court Act. Before an order of forfeiture is made, court had to satisfy itself from the evidence on eath first that there was a breach of recognisance. In the instant case there was no evidence before the trial Magistrate that there was such a breach. In the absence of such evidence the order forfeiting the accused persons' bail was clearly arbitrary and unacceptable.

As to the bill of cost which the trial Magistrate allowed to the complainant, it is important to have regard to the law governing cost in priminal case before Magistrate's court. This is covered by section 207 of the MCA'70 as amended by Act 4 of 1985. The section capowers a magistrate to order a convict to pay cost to the prosecutor whether a public or private prosecutor.

In the instant case, there was no order for cost in the judgment in favour of the complainant against the accuseds. There was therefore no basis for the Magistrate in this case allowing that bill of cost submitted by the complainant. Consequently the subsequent order to attach the properties of A3 and his arrest and detention to enforce payment of that cos: was not supported by law.

$.0/4.$

The Chief Magistrate who was provoked by non-return of the illegally-attached proportios of A3, retaliated by ordering the attachment of the complainant's properties to recover those properties of $\Lambda$ 3. It is not clear under what provision of the law the learned chief Magistrate made that order. He did not cite the law under which he acted. It would have been helpful if he did so. Clearly, his intentions were good but he had no logal authority to support that act.

On the sentence, the trial Magistrate imposed on AM in counts 1, 2 and 3, a fine of shs. 10,000; $10,000/=$ nd 15,000/= respectively. Then he ordered that in usfcult the occused was to serve. 14 months imprisonment. That order suggested that if A1 defaulted to any or all of the above fines he would have to serve 14 months imprisonment. The order also did not appear to have taken into account the scale of default sentence set out in section 192 (4) of the magistrate's court Act. Under this section a default sentence for a fine of 2,000 to 10,000/= does not exceed 1 month. Where the fine exceeds $10,000/$ = but not exceeding $40,000/$ = the maximum default sentonce is 6 weeks. In the instant case the order should have been thus;

Count 1: fined 10,000/= or 1 worth imprisonment in default. Count 2: fined 10,000/= or 1 worth imprisonment in default. Count 3: fined 15,000/= or 6 weeks imprisonment in default. When his view was sought, Mouroen Ower State Attorney writing for the D. P. P. in her letter Ref DPP/04/9 of 2/5/95 agreed with the above views and did not wish to be heard in the event of a Nazistreto Revision order being made. She added also that the trial imposed sentence on $A2$ , $A3$ and $A4$ which sho thought was infegular for Sho submitted that from the record, it was to being omnibus. $\sim$ $\sim$ not clear which count they were sentenced on.

$.0/5.$

The sentence inquestion reads,

$\epsilon$

$\leqslant s$

"Accused 11, Accused 111 and Accused IV each sentenced to pay a fine of shs. $15,000/=$ . Accused three and Accused IV in default each to serve twelve months.

Reasons: Accused 11 is a first offonder and a juvonite offender. Accused 111 and Accused IV are first offenders".

The record indicated that A2, A3 and A4 were charged only in count No. 111. They were convicted only of that offence. I think the sentence was proper save for the default searched of 12 boths. This contravened section 192 (d) of the NCA'70 which gives a maximum default someone for a fine of $15,000/$ = to be 6 weeks.

For the reasons given hereabove, Revision is hereby made to put: the rocord straight.

- (1) The order of default sentence of 14 months imprisonment is set aside and in its place the following orders are substituted:- - Count ?. fined 10,000/= or indefault 1 month imprisonment. $A1:$ Count 2: fined 10,000/= or indefault 1 month imprisonment. Gount 3: fined 15,000/= or indefault of 6 woeks imprisonment.

The default sentences are to run consecutively.

- (2) The order for cost is set aside and any money or properties attached in that regard be refunded to A3. - (3) Order of the Chief Magistrate attaching the properties of the complainant is set aside. Any such properties so attached be returned to the complainant.

G. M. OKELLO JUDGE.

$31/5/95$ .