[1990] UGHC 34

TFE REPUBLIC OF UGANDA

IN THE MAGISTRATE'S COURT OF LI1A

## CRIMINAL REV. NO. 20 OF 89

UGANDA I::::::::::::;:: PROSECUTOR

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VRS. ~-

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- POLINO OLET : •> ACCUSED BEFORE: THE HON. MR. JUSTICE G. M. OKELLO . REVISION ORDER ^r ; ■■

This file was sent to this court by the Acting Chief Magistrate : . . , . 8-'' Lj ' ^< Lira for purpose of "Revision Order under section jAl (1) of'the Criminal ''Procedure Act, on the around that the trial Magistrate, did not: put ' the facts of the case to the accused person to admit or deny the **truth thereof** after his plea of guilty as is required in practice before convicting him\*

The .accused in £his case was charged and convicted on his **.own**.plea **#f** guilty on three counts of theft contrary to section 252 of the Penal Code Act. He was sentenced to twelve months.imprisonment on -each' of -the three counts and the sentences were ordered to run consecutively\* The reason riven by the trial Magistrate for imposing those sentences is. that; the accused is an habitual criminal since he was previously convicted and sentenced to a term of ..imprisonment for a similar offence\* — . .......

<• The record of the proceedings of this trial contain numerous irregularities:- The particulars of the offence in count 2 were vague. They talk ®f the theft of a chicken as having been committed in ''various-' datds between April and May 1989". The vagueness of \$he§e particulars, of the offence ^ould not adequately Z^^the accused when the alleged offence was committed.

,Chief Justice Sir Udo Udoma as he then was emphasised in percuriam dealing while *L* with the Appeal of PONESTO AVOVE vrs. Uganda MB 161/68 that it is the primary d'Ay of a trial Magistrate to satisfy himself that the charge as laid before him is correct before assuming jurisdiction to try the case.

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The importance of the above remark needs no over emphasis. I only need to add that- ascertaining the correctness of the charge laid before him a Magistrate does not only have to check ©n the correctness of the section of the Penal Code quoted, but must also check on the particulars of the offence to ensure that they are not ambiquoua\*

Secondly the pleas of the accused were alse ambiquous:^ In count *Z* he was. recorded to have pleaded thus "1 really stole the said Chicken"\* But in count 3 he pleaded thus " I admit all these charges brought against me".

From the plea in count 3, it is net clear whether the accused was referring to all the charges brought against him in the three founts or he was merely answering to count 3 only.

Thirdly the trial Magistrate did not put the narrated facts of the offence to the Accused to admit or deny the truth thereof after he pleaded guilty before convicting him.

It was laid down in ADAN Vs. THE REPUBLIC (197?) EA 445 and followed in numberous cases in this country that when an accused perspj pleads guilty to a charge, a plea of guilty would be entered after whi<h the prosecutor would be asked to narrate the facts of the case\* **After** the facts are narrated, the court would be put t© the accused t©. **admit** or deny the truth of them. Only if he admits the substantial truth of these facts can the court proceed to convict the accused on his plea of guilty. Though this is a rule of practice, it has now taken the force of law and it must be followed.

In the instant case the trial Magistrate did not follow this procedure. I think the importance of this procedure is very clear ambiquity because it helps to ^c re any / that may exist in the charge#

Fourthly, the trial Magistrate regarded the accused person as an habitual offender because he was allegedly once convicted and sentenced to a term of imprisonment for a similar' offence of theft.

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Before a Magistrate takes into consideration a previous conviction of an accused person for the purpose of assessing appropriate sentence for the convict, such a previous conviction must be proved and the accused Riven apportunity to admit or deny it. The mode of proof of such a previous conviction is provided under section 91 of the MCA'7O«

Such a proof may be either by the production of an extract or certified record of the court in which the conviction or acquital was had sicmed by an officer having custody of such record showing the sentence or order; or by the production of a certificate signed by the officer in-charge of prison in which the punishment or part thereof was served or by the production of the warrant of commitment under which the punishment was suffered.

In the instant case there was no proof whatsoever of the alleged previous conviction. In those circumstances the trial Magistrate was in my view not -justified to have treated the accused as an habitual offender or as having a previous conviction when there was no evidence to that effect,

Mr. Kabecra the Acting Deputy D. P. P, who wrote opinion for the DPP rightly admited that the trial had ^ross irregularities and did not support the conviction. He did not also wish to be heard in the event of a Re visional order beine- made.

For the reasons I have riven hereabove, the convictions in this case can not be allowed to stand. They must bo quashed and sentences set aside. So it is ordered. The Accused must be released forthwith unless beinr held on some other lawful grounds.

G. M. FKELLO

JUDGE.

7/5/90