Francis B. Buja & Another vs Republic (Criminal Appeal No. 86 of 1980) [1982] TZHC 254 (1 December 1982)

C IN PHE HIGH COURT OF TANANIA AT .MBEA 1 g 9 JAN149 .' \ APPELLATE JURISDICTION\. \ CRIMINAL APPEAL NO.86 OF 1980 . (Qriginal Criminal Case No0 503 of 178 of the District Court of Mbeya Distrit at Mbeya - Beforeg P.R. Batyunga Eso 09 R.M) (1). FRANC I S B. BUJA . APPELLANTS (2) EDSON MWA1CA1 1 ABONJA versus THt REPUBLIC 0 0 0 RESPONDENT J t D G M N T IIR0SO, J.;, The two appellants stood surety for an aócused person before the District Court of Mb3ya They siie bail bonds in the Sm of shillings five thousand each. During the trial the accused jumped bail 0 The trial ourt orderédo'a warrant of arrest to isüe againt the accusedfoi uinmós to issue on tI' sureties to appe.r and show cause why their bail morlpy should not be forfeited to the Rublic. It was fl stated in the order when the sureties were to appear in court. Over two months later the court record show's that the accused as well as the two sureties were in ctu't When asked to show cause vhy they should :r0t for±'eit the full amount of the bail money the sureties are recorded to have said:- "We have en looking for him (the accused) since then (14/4/79) until we were informed by the police to report a-f'the court today.ot The magistrate immediate'y retorted - "That dofi 4 - 1te1y is a lie 0 If its true that the sureties were lokng for him (the accused) they shou1d as pxudent rsons, at least

2 C 2 hao' infOfmed the court the trouble tho, have bêèn looking (ic). I theref6ib ±ejoct the 6 1r stories.. T1IT iáve to forfeit to the Govërnmet or else committed to jaii After some pleas for leniency by the suret..es, they were. ordered to forfeit shillings 500/ only which they later paid after they had been committed to pri.$on. With all due respect to the learned .re.sid'ent magistrate I think he acted rashly and in an unjudioioüs manner s As the record does not show that; th fugitive accused person wbrought to court after being arrested by the police and as he rea1Jpeard in c(urt on the same day as the sureties the assumption is that it was the sureties who brought him after they had Labouriously searched for him, as they explained., 3inoo the police (the. Public Prosecutor) did not contradic.t.•the appellants in their claim that they had all 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 contrary thcI3foro, what they said could be true. And if they loer.. .or the accused until they found him I can see no obli';a;ion on their part, as demaned by the magistrate, to 'eport o ourt that they were facing 'tro'.:Lble" It is true that the appellants bounL themselves to court to ensure that the accused did rt defailt appear in court wherever ie was required to doso, once the accused defaulted to appear in court on a fixed date they were liable but thai does not..mean that for±'ei,ure was automatic. If that v•re so, it would have been pointless to require ther' to show cause.. It.. ta only wher, they fail to show suffic ... ent cause that forfeiture is ordered0 The magistrate in this ease, as already shown1 rashly and baselessly d.i3missed the appellants: explanation as a lie anc proceeded to order forfeiture. I think that had the maistrate judiciously Qonsi4ered the reasons given by the apfllants which were uncontradited. 00/3

-3- (I by the prosecution he could have found they amounted to a sufficient cause 0 He would therefore not have ordered forfeiture, In HUDSON s/a SALIJM v 0 R 1975 U?.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 forfeiture ought not to have been made and allowed the appeale In H v. ABDALLAHAMID 3/0 DALEY[JSUFU (1967) H.COD. 244 cited ,by Kisanga, J0 in the Hudson s/o Salum oase above it was said obiter that where ar. 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 .forfeitu.r. This suggests that forfeiture is not atomatic. In the circumstances of the facts and the wrong approach of the magistrate in the proent appeal I think too that forfeiture should not have 11i ordered. Learned State Attorney who supprted the for±'eiture order also argued that the magistrate had no power to order forfeiture of a lesser s'i than the amount contained in the bail bond. I think that in a proper case a court can order forfeiture of/sum less than the full amount. I am fortified in this 'iow by the provisious of section 131 (5) of the Criminal • rocedure Code which stipulate that the court may, in its di5trtion, remit any portion of the penalty and enfoeo payment inpart only.. I notice that whor the sureties at first failed to pay the forfeited amouu they were sent to prison until later they manag1:d to pay. That was not the correct 1Jroceciure Ag..im reference to section 131 of the Criminal ProeoJro Code would provide gu.iance in case of failure to oay the forfeiture. In sub—section (2) of section 131 it i.s jrovided that if the penalty

4- (foffeituro) 'i6, not raid the court may p±'ooed to recover the same by isuin a warran1 o' th attachment and sale of the movable property belOnging o such person or his ostate if he be dead 0 Iii sub-eotion (4) it is providod that if the penaitr ic not paid and cannot be recovered, by atta61imen'fl arid only then can the court order his a period not exceeding six month This jbiht apai '16 didwe.I The Orde± for forfrbure is quahed and se'e aside o 'The amotthts of shillings. 500/= paid by each of the app311ants sho.uii be refunded to, them. - JA. PiROSO MEYA 1st December, 1982 Mr Kapinga, State Attorney, presnt. C JAM/ATM' lima,