REPUBLIC v GREGORY RUHEZA 1988 TLR 5 (HC)

 REPUBLIC v GREGORY RUHEZA 1988 TLR 5 (HC)

Court High Court of Tanzania - Mtwara

Judge Rubama J

7th January, 1988 H

Flynote

Criminal Practice and Procedure - Bail - Surety for accused person - Accused travels

to Dar es Salaam to look for an advocate -Fails to appear due to lack of transport -

Surety ordered I to pay expenses incurred by witnesses and forfeit bond - Whether

proper.

1988 TLR p6

RUBAMA J

-Headnote

A Gregory Ruheza had stood surety in the sum of Shs. 50,000/= for Joseph Mapema.

The accused failed to appear in court and his wife informed the Court that he had

travelled to Dar es Salaam in search of a lawyer to defend him but missed a return

flight to Mtwara. Gregory Ruheza was summoned and ordered to pay the expenses of

Shs. B 375/= for a witness from Bukoba and Shs. 240/= for a witness from Masasi or

surety was to forfeit his bail bond.

On 19th June, 1980 the accused was not in court and the trial magistrate was

informed by the surety the reasons for the absence of the accused namely the flight

from Dar es Salaam to Mtwara had been cancelled. Court ordered forfeiture of

surety's bond of Shs. C 50,000/=. Surety could not raise Shs. 50,000/= as a result was

committed to prison. He appealed against the order.

Held: (i) The trial magistrate's ruling is not a fair reflection of the facts for it is clear

that D the absence of the accused had been caused by circumstances beyond his

control;

(ii) at the time of the hearing there was no advocate resident in Mtwara, the

accused trip to Dar es Salaam could not be viewed as an attempt of the accused to

jump bail. In the circumstances, asking the surety to forfeit Shs. 50,000/= bail bond

was not E justified;

(iii) not justified also was the order that the surety pay Shs. 375/= for a witness

from Bukoba and Shs. 240/= for a witness from Masasi;

F (iv) it is out of order for the court to order the surety to pay more than Shs.

50,000/=, the sum he had undertaken to pay when signing the bail bond.

Case Information

Order accordingly.

[zJDz]Judgment

G Rubama, J.: Gregory Ruheza had stood surety in the sum of shs. 50,000/= for

Joseph Mapema who had been accused of several offences under the Penal Code. On

16th June, 1980 Joseph Mapema, the accused, was not in court and his wife informed

the court that her husband had gone to Dar es Salaam in search of a lawyer to defend

him but had unfortunately missed a return flight to Dar es Salaam. The case was H

adjourned to the next day the 17th June, 1980 when it was again adjourned to 19th

June, 1980. Gregory Ruheza the accused's surety who had been summoned informed

the court that he had been in contact with the accused, Joseph Mapema who had

promised I to return to Mtwara as soon as possible. He further assured the court that

he was in the process of arranging an air

1988 TLR p7

RUBAMA J

ticket for the accused to come to Mtwara from Dar es Salaam. With this explanantion

A the trial court made the following order:

The surety is ordered to pay the expenses of Shs. 375/= for a witness from

Bukoba and Shs. 240/= for a witness from Masasi, or surety to forfeit his bail bond,

whichever is less. Hearing adjourned to 19/6/80. B

On the 19th June, 1980 the accused was not in court and the trial magistrate was

informed by the surety the reasons for the absence of the accused namely the flight

from Dar es Salaam to Mtwara had been cancelled. The response to this information

by the C court is as detailed below:

This case was to be heard on 16/6/80 and witnesses have come from Bukoba

and Dar es Salaam, only to find what the accused is no where to be seen. D

The surety signed a bond of shs. 50,000/= to be forfeited in case the accused

fails to turn up. Consequently, therefore, the surety now forfeits this bond of Shs.

50,000/= after he has failed to produce the accused person. E

Order: Mention on 3/7/80.

The surety is to forfeit his bail bond of Shs. 50,000/= or six (6) months

imprisonment in default. F

The surety appears to have failed to pay Shs. 50,000/= bond and was committed to

prison. He has appealed against the court order and is fortunately on bail pending

determination of this appeal. To gain speed, I decided to deal with the subject

exercising G my revisional jurisdiction. It has not apparently been easy to serve the

appellant to appear in court.

Having gone through the record, I see no justification for the above mentioned order

made by the trial magistrate. The trial magistrate's ruling is not a fair reflection of the

facts H for it is clear that the absence of the accused had been caused by

circumstances beyond his control; neither the accused nor the surety could have done

anything about it. At the time of the hearing of this case there was no advocate living

in Mtwara; the accused's travel to Dar es Salaam in search of an advocate could

therefore not be I viewed in the light of an attempt by the accused to jump bail. The

accused had

1988 TLR p8

A every right to go in search of an advocate of his choice. His failure to return to

Mtwara in good time was forced on him by unavailability of air transport from Dar es

Salaam to Mtwara. He could do nothing about that situation and court was not put in

darkness regarding that aspect. The heavy dependence on air transport to this town

especially during the time when the case was for hearing could not have been a

disputable fact. In B the circumstances asking the surety to forfeit Shs. 50,000/= bail

bond was not justified. Not justified also was the order made on the 17th June, 1980

that the surety pay Shs. 375/- for a withness from Bukoba and shs. 240/= for a witness

from Masasi.

C When this order is considered together with that made on the 19th June, 1980, it

is clear that the court had ordered the surety to pay more than shs. 50,000/= a sum

that he the surety had undertaken to pay when signing the bail bond. This is

obviously out of order.

D For the various reasons detailed above the forfeiture order of Shs. 50,000/= bail

bond made in respect of surety as well as payment of expenses in respect of witnesses

from Bukoba and Masasi are hereby set aside. The surety is discharged.

E Order accordingly.

1988 TLR p8

F