Buja and Another v Republic (Criminal Appeal 86 of 1980) [1982] TZHC 746 (1 December 1982)

F. B. BUJA v. REPUBLIC (MROSSO, J.) 327 FRANCIS B. BUJA AND ANOTHER v. REPUBLIC [HIGH COURT OF TANZANIA AT MBEYA (Mrosso, J.)] CRIMINAL APPEAL 86 OF 1980 Criminal Practice and Procedure — Bail — Accused fails to appear but is later produced by bondsman — Circumstances justifying forfeiture. The surety signed a bond to produce the accused. Accused did not appear on the specified day. Subsequently, the surety succeeded, after extensive efforts, in producing the accused. The magistrate ordered forfeiture of the bond money. Held: forfeiture is not automatic where an accused jumps bail; it should only be ordered where the bondsman fails to show sufficient cause. Appeal allowed. asc -lerred to-. (1) Hudson s/o Salum v. R. [175] L.R.T. n. 34 (2) R. v. Abdaliahamid s/o Daleyusufu [1967] H.C.D. n. 244 S. Kapinga, for the respondent. 1 December 1982. MROSSO, J.: The two appellants stood surety for an ac cused person before the District Court of Mbeya. They signed bail bonds in the sum of shillings five thousand each. During the trial the accused jumped bail. The trial court ordered for a warrant of arrest to issue against the accused and for sum mons to issue on the sureties to appear and show cause why their bail money should not be forfeited to the Republic. It was no stated in the order when the sureties were to appear in court. Over two months later the court record shows that the accused as well as the two sureties were in court. When asked to show cause why they should not forfeit the full amount of the bail money the sureties are recorded to have said:- We have been looking for him (the accused) since then (14/4/79) until we were informed by the police to report at the court today. The magistrate immediately retorted:- That definitely is a lie. If its true that the sureties were looking for him (the accused) they should, as prudent persons, at least have informed the court the trouble they have been looking (sic). I therefore reject their stories. They have to forfeit to the Government or else committed to jail. After some pleas for leniency by the sureties, they were ordered to forfeit shillings 500/- only which they later paid after they had been committed to prison. With all due respect to the learned resident magistrate I think he acted rashly and in an unjudicious manner. As the record does not show that the fugitive accused person was brought to, court after being arrested by the police and as he reappeared in court on the same'

328 TANZANIA LAW REPORTS [1982] TLR day as the sureties the assumption is that it was the sureties who brought him alter they had labouriously searched for him, as they explained. Since the police (the Public Prosecutor) did not contradict the appellants in their claim that they had al' along been looking for the accused there was no justification for the outburst by the magistrate that the sureties were lying. In the absence of evidence to the con trary therefore, what they said could be true. And if they looked for the accused until they found him I can see no obligation on their part, as demanded by the magistrate, to report to court that they were facing “ trouble ” . It is true that the appellants bound themselves to ensure that the accused did not default toappear in court wherever he was required to do so. Once the accused defaulted to appear in court on a fixed date they were liable but that does not mean that forfeiture was automatic. If that were so, it would have been pointless to require them to show cause. It is only when they fail to show sufficient cause that forfeiture is ordered. The magistrate in this case, as already shown, rashly and baselessly dismissed the appellant ’ s explanation as a lie and proceeded to order for feiture. I think that had the magistrate judiciously considered the reasons given by .the appellants which were uncontradicted by the prosecution he could have found they amounted to a sufficient cause. He would therefore not have ordered for feiture. In Hudson s/o Salum v. R. [1975] L.R.T. n. 34 the appellant in-that case had stood surety for an accused person who later failed to appear on a date when the case was adjourned. The surety promised to produce the accused on the following day, which he did. The court nevertheless ordered him to forfeit the amount of the bail bond. On appeal Kisanga, J. as he then was, considered that the order for for feiture ought not to have been made and allowed the appeal. In R. v. Abdallahamids/o Daleyusufu [1967] H.C.D. n. 244 cited by Kisanga, J. in the Hudson s/o Salum case above it was said obiter that where an accused jumps bail and a surety promises and succeeds to find the accused and bring him back to court that should be taken into account in deciding whether or not to order forfeiture. This suggests that forfeiture is not automatic. In the circumstances of the facts and the wrong approach ofthe magistrate ir .the present appeal I think too that forfeiture should not have been ordered. Learned State Attorney who supported the forfeiture order also argued that the magistrate had no power to order forfeiture of a lesser sum than the amount contained in the bail bond. I think that in a proper case a court can order forfeiture of a sum less than the full amount. I am fortified in this view by the provisions of . section 141(5) of the Criminal Procedure Code which stipulates that the court may, in its discretion, remit any portion of the penalty and enforce payment in part- only. I notice that when the sureties at first failed to pay the forfeited amount they were sent to prison until later they managed to pay. That was not the correct procedure. Again, reference to section 131 of the Criminal Procedure Code would provide guidance in case of failure to pay the forfeiture. In sub-section (2) of sec tion 131 it is provided that if the penalty (forfeiture) is not paid “ the court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead ” . In sub-.

_A. KA�UMBETA v. REPUBLIC ·(SA,MATIA, J.) f29 . section (4) it is provided that if the penaity ls.not pa'id and cannot be recovered by · at�chment and sale only then can llio:.court order his imprisonment for a period not exceeding six months. This joint appeal is allowed. The order for forfeiture is quashed and set aside.. The amounts of shillings 500/- paid by each of the appellants should be refunded; to them. Appeal allowed � . . . I