REPUBLIC v OMARI KIBWANA 1986 TLR 16 (HC)

 

REPUBLIC v OMARI KIBWANA 1986 TLR 16 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mnzavas JK

21 November, 1983

CRIMINAL REVISION 6 OF 1983

Flynote

B Criminal Practice and Procedure - Bail - Surety failing to produce accused in Court - What

court to do.

-Headnote

Omari Kibwana stood surety for an accused person. The bail bond was shs. 60,000/=. On one

occasion he failed to C produce the accused before the Court as required. He himself attended

the court and explained that the accused was sick. The magistrate ordered forfeiture of the bond

or six months imprisonment. Kibwana was imprisoned. The record of proceedings was called by

the High Court for inspection and revision. D

Held: (i) Where the accused fails to appear on an appointed date it is preferable not to forfeit the

bond of the surety too quickly, it is best to adjourn and allow the surety time to find the accused

if he thinks he can get him; E

(ii) as there was no reason to make the court think that the surety was lying it was clearly

wrong on the part of the learned Senior Resident Magistrate to sentence the surety to a term of

imprisonment.

Case Information

Order accordingly. F

Cases referred to:

1. Hudson s/o Salum v R. [1975] L.R.T. 34

2. Koba s/o Joseph v R. [1968] HCD 96 G

Chiza, for the Republic.

[zJDz]Judgment

Mnzavas, J.K.: On 20/1/81 the convict Omari Kibwana stood surety for one, Ally Kisagase, H

second accused in Kivukoni Criminal case no. 828/80, at shs. 60,000/= bail. He continued to

produce the accused in court every time he was required to appear, but on 24/10/83 he failed to

produce him before the court as required.

I He himself attended the court and on being asked by the presiding magistrate as to why Ally

Kisagase, the second accused, was

1986 TLR p17

MNZAVAS JK

A not in court he replied that the second accused was sick. There upon the learned Senior

Resident Magistrate said:

"This accused has several times defaulted to attend--- Surety for second accused to forfeit

his bail bond of shs. 60,000/= or six months imprisonment." B

The accused failed to pay shs. 60,000/= and was consequently sentenced to six months

imprisonment.

Dissatisfied by the decision of the lower court Kibwana's relative has written to this Court

complaining against the C imprisonment of Kibwana. On receipt of the letter the lower court's

record was called for inspection and, the Court ordered that revision proceedings be opened.

When the case came up for revision on 21/11/83 Mr. Chiza, learned state attorney, argued that it

was wrong on the part of the trial Senior Resident Magistrate to send the accused to prison. It D

was the learned counsel's submission that the surety should have been given an opportunity to

produce the accused before deciding what punishment was to be imposed.

With respect I tend to agree with the argument by the Republic that in deciding to send the

surety to prison for his failure E to produce the accused in Court the Senior Resident Magistrate

acted rather hastily. The surety's argument for not producing the accused was that the accused

was indisposed. It may have been (or may not have been) true that the accused was unable to

attend the court because he was sick. We do not know for sure that the accused was sick but F

prima facie the Court had the word of the surety that the accused was sick hence his inability to

attend the Court. That being the position it would have been a more just decision if the learned

trial magistrate had given the surety a day or two to produce the accused; this would have given

the court time to investigate the surety's story. G

This Court had occasion to deal with a similar situation in Hudson s/o Salum v R. [1975] LRT

No. 34 where Kisanga Judge (as he then was) said: (1) Where the accused fails to appear on an

appointed date it is preferable not to forfeit the H bond of the surety too quickly, it is best to

adjourn and allow the surety time to find the accused if he thinks he can get him.

In an earlier case Hamlyn, J. said inter alia in Koba s/o Joseph v R. [1968] HDC 96:

"--- It was most improper on the part of the lower court to have imprisoned the surety." I

1986 TLR p18

A In the present case the surety had told the court that the second accused was, by reason of

illness, unable to attend the court. As there was no reason to make the court think that the

surety was lying it was clearly wrong on the part of the learned Senior Resident Magistrate to

sentence the surety to a term of imprisonment. Even where it is proved that a B surety was

responsible for the non-attendance of an accused, the accepted practice is that the surety's bond

is forfeited or his property is sold to realize the value of the bond.

The peremptory sentence of six months imprisonment was clearly uncalled for and cannot be

allowed to stand. In C exercising my powers of revision under s. 329 of the Criminal Procedure

Code I hereby set aside the sentence of six months and I accordingly order that he be released

from custody forthwith unless he is otherwise lawfully held.

Appeal allowed. D

1986 TLR p18

E