Uganda v Polino (Criminal Session Case 20 of 1989) [1990] UGHC 40 (7 March 1990)

## THE REPUBLIC OF UGANDA

IN THE MAGISTRATE'S COURT OF LIRA MAGISTE-

RIAL AREA HOLDEN AT OCUR

## CRIMINAL CASE NO, 20 OF 1989

UGANDA PROSECUTOR VRS.

POLINO ACCUSED BEFORE THE HON. MR. JUSTICE GJL OKELIO

## REVISION ORDER:-

This filo was sent to this court by the Acting Chief Magistrate Lira for purpose of Revision ordor under section 341 0) of the Criminal Procedure Act, on the ground 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 it is required in practice before convicting him#

The accused in this case was charged and convicted on his own plea of Guilty on throe counts of theft contrary to section 252 of the penal code Act. He was sentenced to twelve months imprisonment on each of the throe counts and the sentences were ordered to run consecutively. The reason given 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 of the theft of a chicken as having been committed on various dates between April and May 1989"\* The vagueness of these particulars of the offence can not adequantoly inform the accused whon tho alleged offence was committed\*

/2

Sir Uio Udoma C. J. as he then was emphasised in per curiam while dealing with the Appeal of PCNPSIO AVONU vrs. UGANDA MB 161/68 that it is the primary duty of a trial Magistrate to satisfy himself that the charge as laid boforo him is correct before assuming jurisdiction to try the case.

The importance of the above re-mark needs no ovor emphasis. I only need to add that in ascertaining the correctness of the charge laid before him, a Magistrate does not only have to cheek on the correctness of the section of the penal code quoted, but must also check on the particulars of the offence to ensure that thoy arc not ambiguous#

Secondly the pleas of the accused wore also ambiguous;- In count 2 ho was recorded to have pleaded thus <sup>11</sup> I roally stole tho said chicken". But in count 3 ho pleaded thus " I admit all these charges brought against me".

From the plea in count 3, it is not clear whether tho accused was referring to all the charges brought against him in the three counts or he was merely answering to count 3 only.

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

It was laid down in ADAN vrs. Tlf?- R\*=n?UBLIC (<sup>1</sup> \$73) *44\$* and followed in numerous cases in this country that when an accused person pleads guilty to a charge, a plea of guilty would be entered after which the prosecutor would be asked to narrate the facts of the case. After the facts are narrated, the court would put them to the accused to admit or deny the truth of thorn. Only if ho admits the substantial truth of these facts can tho court proceed to convict tho accused on his plea of Guilty. Though this is a rule of practice, it has now taken the forco of law and it must

In tho instant case the trial Magistrate did not follow this procedure. I think the importance of this procedure is very clear because it helps to cure any ambiguity that may exist in the charge.

Fourthly, the trial Magistrate regarded the accused person /offender as an habitual \* *L* because ho was allegedly once convicted and sentenced to a term of imprisonment for a similar offonco of theft.

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 given opportunity to admit or deny it. The modo of proof of such a previous conviction is provided under section <sup>91</sup> of tho PUA'70.

Such a proof may bo either by the production cf an extract or certified record of tho court in which the conviction or acquital was had signed by one officer having custody of such record showing tho sentence or order<sup>5</sup> or by the production of a certificate signed by the officer in charge of prison in which tho punishment or part thereof was served or by the production of tho warrant of commitment undo 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 n habitual offender or as having a previous conviction when thoro was no evidence to that effect.

Mr, Kabega tho Acting Deputy DPP who wrote opinion for tho DPP rightly admited that tho trial had gross irregularities and did not support the conviction. He did not also wish to be hoard in the event of a Revisional order being made.

For the reasons I havo given hereabove, the convictions in this ease can not bo allowed to stand. They must be quashed and sentences set aside\* So it is ordered. The accused must be released forthwith unless being hold on some other Lawful grounds\*

G. E. OIGJLLO

JUDGE « 7/3/SO