Uganda v Omach Richard (Criminal Revision No. MG. 1/95) [1995] UGHC 76 (18 December 1995)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA - AT GUIU CRIMINAL REVISION NO. MG. 1/95

(Original criminal case No. MG 295/95)

e Uganda versus Omach Richard.

Before: The Honourable Mr. Justice G. M. Okello.

ORDER:-

This file was one of the many sent to me by the Chief Magistrate of Gulu by her covering letter ref. CMG/CR . C/18 of 24th November 1995 for a possible revision order.

The accused was charged with being carried in a dangerous position contrary to sections 133( 1) and 138(1)' of the Traffic and Road Safety Act 1970. The record of the proceedings went as follows

"charge read and explained to accused.

Accused - I have understood the charge. I admit it.

Court - P. G. entered.

- Facts as per charge.

Accused - Facts are true.

Court - "You are convicted on your own plea." After allocutus in which the accused prayed for leniency, the court sentenced him to a fine of 1,000/= or to 30 days imprisonment in default.

Two faults are detected in the record of the proceedings in this case:- Firstly the facts of the case had not been properly put to the accused as is required by lav/. Secondly the default sentence did not comply with section 192(d) of the MCA '70 as amended by Act 4 of 1985.

In Adan -vs- Republic (1973) EA 445 the procedure to be followed in a plea of guilty was elaborately set out. Amongst the things required to be strictly followed under that procedure is that, once an accused pleads guilty, his own words used in answering the charge should be recorded as nearly as possible. If those words admit unequivocally all the essential ingredients of the offence charged, then a plea of guilty is entered and the prosecution must narrate the facts showing the circumstances in which the offence was committed. It is not enough to say that the "facts are as per charge sheet." Those facts are then to be put to the accused to admit or deny the truth thereof. If the accused does not agree with the facts or raises any question disputing his guilt, his reply must be recorded as nearly as possible and a change of plea recorded.

In the instant case, the record indicated that the facts put to the accused were "as per the charge sheet". That was not It was a departure from the procedure laid down in enough. Adan's case above. It must be emphasised that the procedure laid down in Adan's case has been consistently followed by courts in the Region and superior courts have approved it. It has now taken the force of law. It is worth pointing out that the procedure adopted by the trial magistrate in this case had been condemned by the High Court in Uganda -vs- Asumani and Anor Cr. Appl. No. 100/1976. I can only add that that procedure is bad. It does not give detailed circumstances in which the offence was committed. It must not be followed.

On the sentence, the trial magistrate imposed on the accused a fine of shs 1,000/= or in default to 30 days imprisonment. The law creating the offence provided for a penalty of a fine of not exceeding 1,000/=. In imposing a default sentence Magistrates are to be guided by section 192(d) of the Magistrates Courts Act '70 as amended by Act 4 of 1985. Under that section a fine of not exceeding 2,000/= carries a maximum default sentence of 7 days. It is therefore clear that the trial Magistrate erred in law in imposing a default sentence of 30 days imprisonment for a fine of shs $1,000/=$ . That offended against the above section.

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When the file was passed to the Resident Senior State Attorney for his opinion, he agreed that the procedure adopted by the trial magistrate that "the facts were as per the charge sheet." was wrong and that the procedure to be followed was that laid down in Adan -v- The Republic above. The learned Resident Senior State Attorney also agreed that the default sentence imposed by the trial magistrate offended against section 192(d) of the MCA \*70 as amended by Act 4 of 1985. He did not wish to be heard in the event of a Revision Order being made.

As the particulars of the offence is simple, I do not think that the accused was prejudiced when those facts were the ones put to him. The conviction would therefore be retained. But the default sentence of 30 days imprisonment for a fine of shs 1,000/= is set aside and in its place it is subsituted a default sentence of <sup>7</sup> days imprisonment.

a. Okello

Resident Judge • Oulu. 18/12/95.