[1996] UGHC 49

THE HON. MR. JUSTICE EGONSA NTENDE

$\sim$

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN AT GULU CRIMINAL SESSION CASE NO. 439/95 **UGANDA** . . . . . . . . . . . PROSECUTION -VERSUS-PEKO CHARLES ACCUSED ......................

## BEFORE: THE HONOURABLE MR. JUSTICE G. M. OKELLO

## RULING

When this case was called for hearing, counsel for the state applied for it to be adjourned to the next convenient session of this court. His reason for that application was that all his intended witnesses in the case were not summoned. No reasons were given to him by the Police for that failure.

Mr. Olaa Counsel for the accused did not oppose the application al though he expressed concern at the difficulty faced by the Resident State Attorney in securing attendance of witnesses. He however, applied for his client to be released on bail. He made the application under section $51(4)$ of the T. I. D. He appointed out that the accused has a permanent abode at Layibi within the jurisdiction of that this court and/there were two sureties willing to undertake to ensure that the accused appears to attend his trial.

Mr. Kabali Counsel for the State opposed the application mainly on the ground that history had shown that once released on bail accused persons do not return to attend their trial. He therefore feared that if released on bail, this accused person would not also return to take his trial.

Section 51(4) under which the application was made reads thus: $"51(1)$ If from the absence of witness or any other reasonable cause to be recorded in the proceedings, the High Court consider: it necessary or advisable to postpone the commencement of or to adjourn any trial, the court may from time to time post pone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may by warrantl remand the accused to some prison or other place of security.

- (2) ... - (3) ...

"(4) The court may on a remand admit the excused to bail subject to such conditions as may seem appropiate".

The above section clearly empowers the High Court for any reasonable cause to be recorded in the proceedings to post poned the commencement of or adjourn the trial from time to time on conditions it considers appropriate•

On the appropriateness of the conditions on which to admit an accused on bail, it is important to refer to Jaffer ^y Republic (.1.973)EA ⁵³ where it /as observed that,

''the primary object of remanding an accused in custody is to ensure that he will appear to take his 'trial and not to seek to evade justice by leaving 'the jurisdiction of the court"

The Trial Judge in that case held that that was in his view the main and most important consideration to be examined before an application for bail pending trial was granted or refused. I fully agree with that view.

In the instant case, the reason for post ponment of the commencement of the 'trial was due to absence of witnesses. They had not been summoned yet I am told that some of these witnesses live within the Police Barracks Gulu and others live at Te Gwanda which is only ¹ (one) kilometer from the Police Barracks Gulu. So failure to summon these witnesses by the Police was in my view a bla' .tant act of neglect of duty. Even in the face of that counsel for the state

urged court not to release the accused on bail. With the kind of attitude shown by the Police how can one be sure that in the next convenient session of this court these witnesses will be summoned? Why then should the accused be made to suffer in custody as a result if he can demonstrate that he will appear and attend his trial.

$\mathcal{F}_{\text{int}}$

The accused in this case has told court that he has resides at Layibi and has a permanent abode at Anaka within the jurisdiction of this court. He moved to Layibi as a result of the insecurity. He has two surities who are willing to undertake to ensure that he will appear to take his trial. In the above conditions I am more inclined to release the accused on bail on the following conditions:

- $\overline{1}$ Accused to bind himself in the sum of shs $500,000.$ = not cash. - $2)$ To produce two substantial surities to be approved by the Chief Magistrate Gulu. The surities to bind themselves in the sum of shs 1 million each not cash. - 3) On release, the accused is to report to Gulu Police Station and to the Chief Magistrate Court Gulu once a month starting from 19th August, 1996 until further order of this court.

On the above ground the accused is released on bail as the case is adjourned to the next convenient session of this court.

G. M. OKELLO

Judge

$19/8/96$

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