Olweny v Uganda (Criminal Revision 27 of 1990) [1991] UGHC 59 (3 May 1991)

Full Case Text

THE REPUBLIC OF UGANDA IN THE HIGH COUNT OF UGANDA AT KAMPALA CRIMINAL REVISION ORDER NO,27/90

t'J'w- ^ S. C >=.-5<=>-cXcx. - r\V?c«-xcX^

OLWENY ANTHONY :: s::::::::::::s:::::::::::s:::::::::::::::: ACCUSED VERSUS UGANDA PROSECUTOR BEFORE: The-Hon, Mr, Justice GnM, Okello:

## REVISION ORDER:

The accused was charged with and was convicted of Driving a motor vehicle without a valid Driving Permit C/S 128(a) and 183(2) of the Traffic and Road Safety Act 1970. He was Subsequently sentenced to a fine of Shs.5000/= or *6* weeks imprisonment in default of payment of the fine.

The Chief Magistrate of Gulu forwarded the relevant file to this court for a possible Revision order on the ground that the plea on which the accused was convicted is equivocal and hence the resultant conviction is illegal. Secondly that the default sentence of 6 weeks for a fine of 5000/= is illegal as it violates section 192(d) of the MCA\* 70 as amended by Act 4 of 1985\* The : file was placed before me.

For a conviction to be properly based on a plea of guilty, theplea must unequivocally admit all the essential ingredients of the offence alleged, (see ADAN -vs- REPUBLIC \$1973) EA 445).

In the instant case, the plea upon which the accused was convicted is recorded as 'Yes' and on this the trial Magistrate Grade I entered a plea of guilty. This was followed by the narration of the facts. The facts were put to the accused who admitted the correctness thereof. The facts show that Police Officer was on Traffic duty on Uhuru .drive in Kitgum town when he signalled a driver to stop. That when the driver stopped, the officer demanded for a driving permit from the driver to which the driver replied that he did not have •the permit ai that moment. But that on checking his note book, the Police Officer discovered that the same accused was found in the same situation in Nov." 1989. This was on 8/3/90. The facts does not show whet.10r the driver whom

.............. /2

whom the Police officer signalled to stop was driving a motor vehicle, riding a bicycl^ ... w

When the relevant file was sent to the DPP for his views, Maureen Owori a state Attorney writing for the DPP expressed the.view that the default sentence was illegal. That the trial Magistrate erred in failing to allow the accused to say something in mitigation before sentence as required by section 131(2) of the MCA'70. She did not wish to be heard in the event of a Revisional Order beingnade.

Clearly a 'Yes1 plea is too vague to amount to a plea of guilty. It does not clearly admit all the essential ingredients of the offence alleged.

In the instant case, even the narrated facts are so vague that they do net desclose all the ingredients of the offence. Under this section of the Traffic and Road Safety Act 1970, a person commits an offence if he drives on the road a motor vehicle without a valid driving permit. In this case there was no averment in the facts narrated that the accused was at the material time driving a motor vehicle when he was signalled by the Police Officer to stop. No particulars of the vehicle if any was given. Under these circumstances, coupled with that value plea, which is clearly equivocal, the resultant conviction cannot be allowed to stands It is not proper. It is accordingly quashed.

On the sentence, 6 weeks imprisonment as a default sentence for a fine of Shs 5000/= is clearly illegal. Section 192(d) of the MCA170 as amended by Act s 4 of 1985 stipulate/ the maximum default sentence for a fine of not more than Shs. 1000/= to only one month. 5\*000/= is not more than 10,000/=. Therefore a default sentence for it should not exceed 1 month.

Since the conviction is quashed on the ground of illegality, the resultant sentence is likewise set aside.

I noted that the trial Magistrate proceeded to sentenced the accused without affording him an opportunity to say something in mitigation. Clearly .is a violation of the provisd. . (a) of section 131(2) of the MCA'JO.. This proviso is mandatory and a trial Magistrate is legally bound to comply with it.

## ORDER :

Any payment which might have been made by the accused in the form of a fine in this regard must be refunded to him forthwith.

- 3 -

G. M. Okello.

JUDCS.

3/5/91.