[1995] UGHC 48

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA - AT GULU

CR. REVISION NO. 2/95

(Original Criminal Case No. TG. 287/95)

Uganda ............ versus ......... Obita Christopher. Before: The Honourable Mr. Justice G. M. Okello.

$ORDER :=$

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The accused in this case was charged and convicted on his own plea of guilty of Using Motor Vehicle for the carriage of Passengers for hire or reward without a licence contrary to section $113(1)(a)$ of the TRSA '70. He was a first offender and was sentenced to "6 months imprisonment or to a fine of 40,000/= in lieu thereof."

The section which creates this offence provides that any person who commits this offence,

> "shall be liable to a fine not exceeding five thousand shillings or to a term of imprisonment not exceeding two years or to both."

It is clear that the above section gives to the court discretion to choose the type of penalty it wishes to impose on an accused from the range provided. The range provided are:-

(1)- a fine not exceeding $5,000/$ =, or

(2)- Imprisonment not exceeding two years, or

(3)- both a fine and imprisonment.

In the instant case, the trial magistrate imposed, "Six months imprisonment or a fine of 40,000/= in lieu thereof."

Two things are wrong with the above sentence:-

(1) While the prison term is within the law, the alternative order of a fine of 40,000/="in lieu thereof" is bad. It implied that the trial magistrate had transferred the discretion of the court to the accused to choose either to serve the prison term or to pay the fine. This is wrong because the section which created the

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offence does not give discretion to an accused to choose the type of penalty he was to take. The discretion is to the court and it was up to the court to choose the penalty for the accused.

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(2) Once the trial magistrate had chosen to impose a fine, he must have regard to the law creating the offence. That section sets the limit of the fine imposable to not exceeding $5,000/=$ .

It is argued from some quarters that section 189(2) of the Magistrates Courts Act 1970 empowers a Magistrate to impose a fine instead of imprisonment. That under that section, a Magistrate can ignore the negligible sentence provided by the law creating the offence (Traffic and Road Safety Act) and invoke section 189(2) of the MCA '70 and impose adequate sentence: The section reads -

"2. A person liable to imprisonment may be sentenced

to pay a fine in addition to or instead of imprisonment." The above is a general section which empowers a Magistrate to impose a fine where the section creating the offence does not provide for a fine. e.g in Assault Cases. But where the section creating the offence, like in most sections of the Traffic and Road Safety Act 1970, provides for a term of imprisonment as well as for a fine, court is not expected to go beyond that section because the penalties so prescribed were done so by the regislatures in their wisdom as appropriate that for the offence. The fact/the sentence prescribed by that section had been croded by the passage of time and has become inadequate, is no good reason to ignore that law. It must be noted that the duty of court is to interprete the law. If the court is of the view that the penalty prescribed by a particular law is inadequate, the best it can do is to give its opinion

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regarding that inadequacy to the relevant authorities for appropriate remedial action. The fine of 40,000/= imposed by the trial magistrate is therefore illegal as it exceeded the maximum fine of shs 5,000/= prescribed by the law creating the offence.

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When the filo was sent to the Resident Senior State Attorney for his view, he wrote a letter ref RSA/H/GK/1 2/95/PAP of 14th December ¹⁹⁹⁵ expressing the view that

''the sentence of ⁶ months imprisonment or a fine of shs 40,000/= in lieu thereof imposed by the lower court is not in conformity with 3.113 (l)(a) of the TRSA !70 which creates the offence."

He did not wish to be heard in the event of a revisional order being made.

As pointed out earlier heroin, the sentence of six months imprisonment or a fine of 40,000/= in lieu thereof is illegal order. It is thus set aside and in its place cubstituted ^a fine of shs 5,000/= or in default ¹ month imprisonment.

The record showed that the illegal fine of 40,000/= was paid. It is ordered that 35,000/= from that fine be refunded to the accused.

(4 I-^G'. M. Okello

Resident Judge Gulu. 18/12/95\*