I. A. Fergusson v. R., Misc. Crim. Cause 19-D-67; Georges, C. J.

I. A. Fergusson v. R., Misc. Crim. Cause 19-D-67; Georges, C. J.

This was an application requiring sureties to show cause why their recognizance’s should not be forfeited. Bail was granted on 27^th May 1967; on condition that accused appear daily at the police station; this condition did not appear the forms signed by the sureties. Each surety posted a bond of Shs. 40,000/- Accused appeared in court on 29^th and 30^th May as required, and on each

occasions the case was adjourned until the following day and the bail specifically extended. On 31 May it was again adjourned; no date was set for its resumption, and bail was not specifically extended. On 3^rd June, accused escaped by taking off from Dar es Salaam Airport in a small airplane without authorization. Thereafter, the sureties were served with notice of a further hearing, but notice was, of course, not served on accused.

            Held: (1) (a) Criminal Procedure Code section 124 provides that bail shall be granted upon the condition that the accused “shall attend at the time and place mentioned in the bond and shall continue to attend until otherwise directed by the Court or police officer, as the case may be.” While a court may refuse to grant bail unless the accused agrees, for example, to report daily  to the police, there is no statutory authorization of such a condition and no penalty can be imposed on sureties for its breach. (b) That condition did not, and could not, appear on the forms executed by the sureties and was not binding upon them.

(c) The High Court, as well as subordinate courts, is bound by the terms of section 124. (2) Although on 31^st May no further date for hearing was set, the bail agreement stated that accused should “continue to attend until other-wise directed.” Sureties may be discharged only if they apply to be discharged, and they made no such application. Therefore, accused and the sureties should have attended court daily until directed to do otherwise even though no hearing date had been set. They failed to do so and are in breach of the bail agreement. (3) Accused escaped in a daring and unexpected way. There is no evidence that the sureties connived at his escape, and almost no degree of care would have prevented it. However, the sureties have taken no steps since the escape to locate accused. In these circumstances, partial payment on the bond is justified. The Court ordered that Shs. 20,000/- be forfeited by each surety.