Nyeko & Another v Uganda (Criminal Revision 8 of 1992) [1992] UGHC 81 (5 November 1992)

Full Case Text

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### THE REPUBLIC PF UGANDA

# IN THE CHIEF MAGISTRATE'S COURT CF GULU MISC. CRIMINAL REVISION Nf, 8/92

BERNARD NYEKO NYEKO AND ANOTHER ACCUSED VRS

UGANDA RESPONDENT

#### BEFORE: THE HON. MR, JUSTICE G. M. OKELLO

#### ORDER IN REVISION

Accused 1, Nyeko Benard was tried and convicted of elopement contrary t0 section 121 A (1) of the Penal Code Act. Amony Night, Accused2, with whom he was alleged to have eloped, was convicted on her own plea of guilty of elopement contrary to section 121 A (2) of the Penal Code Act. Both °ccuseds were first offenders. Accused 1 was subsequently sentenced to a fine of shs. 200 or in default to two weeks imprisonment. Accused 2 was cautioned. There was ho order for compensation to the aggrieved narty. *. . - •' . ; :••' '- 'J'*

The relevant case file was sent to this court for a.possible • . • i 1 . revision order. The Senior Principal Magistrate Grade 1 who sent the file argued, that the convictions of both accuseds are bad in law. That the facts which were narrated after A2 had pleaded guilty do not reveal all the essential ingredients of the offence alleged. That the facts in particular do not reveal that A2 caused or enticed Al 7 to run away with her from his Matrimonial home. He further argued that the evidence upon which Al was convicted do not prove that Al had knowledge that A2 was a married woman. He pointed out that the trial Magistrate was wrong to have held that'knowledge by Al that A2 was a married woman was not essential ingredient in the offence. The learned

Magistrate relied on Uganda v Olungn s/o Misaki Okot Cr» Revision No\* 429/70; and Uganda v Fabiano and Another Cr< Revision No. 503/72• It was Held in the above cases that ''elopement" in the above section implied running away with - usually from some kind of a home. That knowledge that the other is married is an essential ingredient in the offence under those sections.

*2*

When I perused the record of the proceedings, I came to agree with the views of the Senior Principal Magistrate Grade 1. The convictions f'\* both accuseds are bad in law. For a conviction to be properly secured in any criminal charge, a'll the essential ingredients in the offence alleged must be unequivocally admitted where the conviction is based on a plea of guilty. Secondly, the facts which are narrated after the plea of guilty is entered must disclose all the essential ingredients of the offence alleged. The accused must admit the truthfulness of those facts.

Where the conviction is based on evidence after a full trial, the evidence adduced must establish beyond reasonable doubt, all the essential ingredients of the offence alleged.

In the offence of elopement under section 121 A (1) of the Penal code Act, the essential ingredients in the offence are:-

- (a) that the male accused caused or enticed the female accused to elope (run away) with him. - (b) That the male accused had knowledge that the female accused is married to another man when he eloped with her.

..3..

Under section 121 A (2) of the Penal Code Act, the essential ingredients in the offence are:-

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(a) that the female accused caused or enticed the male accused to elope (run away) with her.

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• (b) That the female accused had knowledge that the male accused was married to another woman when she eloped with him. All the above ingredients must either be unequivocally admitted in' a plea of guilty or proved by evidence beyond reasonable doubt in order to properly secure a conviction.

In the instant case, the facts which were narrated after A2 had pleaded ruilty do not reveal that A2 had caused or enticed Al to elope (run away) with her. On the contrary the facts show that A2 simply went t© live with Al in the latter's matrimonial home, ^here was no element of causing Al to run away from his matrimonial home. This essential ingredient in the offence was therefore not disclosed in the facts which the accused admitted.

Similarly from the evidence upon which Al was convicted, it was not sufficiently shown that Al had knowledge that A2 was married to another man when he eloped with her. On the contrary Al insisted in his evidence that he had not known that A2 was marfied. That A2 herself also assured him that she was not married. It is repeatedly held by this court that knowledge by the male accused that the female accused is married is an essential ingredient -in the offence under section 121 A (1) of the Penal Code:Act-and vice, versa in the offence under section 121 A (A) (2) of the Penal tCode Act. —

## See Uganda vs. Fabiano and Anor Cr. Revision No. 503/72 above.

In the instant case the trial Magistrate held that knowledge by Al that A2 was married is not an essential ingredient in the offence under section 121 $\alpha$ (1) of the Penal Code Act. With respect the above is a wrong statement of the law in view of the numerous authorition from this court. The evidence on record also do not prove that Al had knowledge that A2 was married. The evidence therefore fell short of proving beyond reasonable do bt an essential ingredient in this offence. A conviction based on such a wanting evidence is bad in law.

When the relevant file was sent to the DPP for his view, Mr. John Mabonga-Nasufa a senior State Attorney who wrote the opinion for the DPP agreed with the above views and did not support the convictions. He did not wish to be heard in the event of a revision order being made.

As regards the sentence, the trial Magistrate sentenced A2 to caution on the ground that "that is the only sentence prescribed by law."

The reason given by the trial Magistrate for the sentence he imposed is wrong. Section 121 A (2) of the Penal Code Act prescribes a maximum sentence of a term of not exceeding twelve months imprisonment or a fine of not exceeding two hundred shillings on first conviction.' While a caution is within the discretion of the Magistrate to impose, it is not the only sentence prescribed by law. That was a wrong statement of law.

The trial Magistrate sentenced "1 to a fine of 200/- with two weeks imprisonment as a default sentence. He made no order for compensation to the aggrieved party. The reaon he gave for declining to make the order is that "this offence can not be instituted to enforce a civil right.

Section 121 A (1) of the PCA makes an order for compensation of shs. 600/= by the accused to the aggrieved party on first conviction, mandatory. In the instant case $P^W1$ was shown to have been the aggrieved party. He had married A2 under customary law. The trial Magistrate ought to have made the mandatory order in favour of this aggreieved party. The omission was failure to comply with the law.

However, in view of the rasons given here above regarding the defects in the convictions no injustice is thereby caused by that failure to make the order. The convictions are bad and are hereby quashed for reasons already riven. The sentences are set aside.

Order: Any payment which might have been made by the accused by way of fine, should be refunded to him forthwith.

G. M. OKELLO

JUDGE 5/11/92