- Flynote
- Constitutional Law|Criminal law
- Case summary
- In its revision of their convictions and sentences, the court considered the legality of the charge sheet, the fines ordered, and the provisions setting out the offences of which they had been convicted. The Court held that the fine of 3,000 shillings had been ordered in error since the Act limited it to a maximum sum of 1,200 shillings. It also held that the charge sheet submitted by the police was improper and incomplete as it had not been signed by a police officer. Furthermore, the words “not being his wife” in the particulars of the offence with which the first accused had been charged were superfluous and meaningless as one could not elope with one’s wife and also because that expression was not used in the section. However this irregularity was not fatal to the conviction of the first accused because it had not occasioned a miscarriage of justice. It was also held that s 121A(3) of the Act made no reference to the marital status or sex of the parties in the agreement to ‘elope’ and therefore the subsection was meaningless. The word ‘elope’ within s 121A(3) was also undefined, contrary to the requirement of art 15(8) of the Constitution of Uganda, 1967 that an offence be defined in a written law. The second accused’s plea in this respect was thus a nullity because the offence was non-existent. The court also noted that s 121A(2) of the Penal Code Act, 1970 (Reprint) made it an offence for a married woman to elope with a married man and it was thus not an offence under that subsection for a married woman to elope with an unmarried man. Consequently, the court substituted the order to pay compensation of 3,000 shillings with an order to pay 900 shillings and made an order for the excess amount paid to be refunded to the first accused. The conviction of the second accused under s 121A(3) was also quashed and her sentence set aside with an order for the fine of l00 shillings to be refunded to her.
THE REPUBLIC OF UGANDA
IN THE HIGHCOURT OF UGANDA AT KAMPALA
CRIM.REV.NO.182 OF 1976
Uganda V OSilaje s/o Eragu Ayumo w/o Olong
JUDGEMENT:
Criminal Law Elopement - 1st accused convicted of elopement c/s 121A(1~) of Penal Code - He admitted a previous conviction of similar offence - He was ordered to pay compensation of Shs.3.000/= to the aggrieved husband - whether order of compensation in sum of Shs.3.000/ was proper.
Criminal Law - Elopement - 2nd accused convicted of agreeing to elope c/s 121 AH') Penal Code - The Word “elope” in subsection 3 not defined - whether the subsection creates any offence.
Criminal Procedure - Charges - charge sheet submitted by police but not signed by Police Officer - whether charge sheet proper.
Criminal Procedure - Charges - 1st accused charged with elopement c/s 121 Ad) of Penal Code - Particulars stated he eloped with Ayumo, a married woman not being his wife” whether words “not being his wife” were unnecessary and amounted to an irregularity whether the irregularity occasioned miscarriage of justice.
The two accused were convicted on their own pleas. The first accused was convicted of elopement with a married woman c/s 121A(1) of the Penal Code Act and fined Shs.200/- or 6 weeks imprisonment and was ordered to pay compensation of Shs.3,000/- to the aggrieved husband because the accused admitted that he had a previous conviction of a similar offence. The second accused was convicted of agreeing to elope c/s 121 A(3) of the Penal Code and, after admitting a previous similar conviction, she was fined Shs.100/- or 4 weeks imprisonment. Both fines were paid.
The charge sheet was submitted by the police but it was unsigned. The particulars of offence with regard to the first accused stated that he “eloped with Ayumo, a married woman not being his wife.”
Held: 1. The maximum compensation to be paid under s.l21A(l) of the Penal Code, upon subsequent conviction is Shs. 1,200/- and therefore the magistrate wrongly ordered the accused to pay Shs.3,000/-.
Before taking the plea in any criminal case the magistrate is expected to read the charge sheet to make sure that it is properly prepared and reveals an offence or offences.
A charge sheet submitted by the police is neither proper nor complete if it is unsigned by a police officer.
The words “not being his wife” in the particulars were not only superfluous but also meaningless as one cannot elope with one’s wife, and as the expression is not used in the section there was no need for the police to include it. However that irregularity occasioned no miscarriage of justice and therefore the 1st accused was properly convicted.
S.121A(2) of the Penal Code makes an offence for a married woman to elope with married man and it is thus not an offence by a woman under this subsection for a married woman to elope with an unmarried man.
Subsection 3 of S.121A of the Penal Code makes no reference to the marital status or sex of the parties in the agreement and therefore the subsection is meaningless. In any case the word “elope” in the context of section 121 A(3) of the Penal Code is not defined as provided by article 15(8) of the constitution that “no person shall be convicted of a criminal offence unless that offence is defined and the penalty thereof prescribed in a written law.” Therefore in the instant case the 2nd accused pleaded guilty to a non-existent offence and her plea was a nullity.
Order to pay compensation of Shs.3,000/- set aside and an order to pay compensation of Shs.900/- substituted therefor, amount in excess to be refunded to 1st accused forthwith.
Conviction of 2nd accused under s.!21A(3) quashed and sentence set aside - the fine of Shs.l00/= to be refunded to her forthwith.
Allen,j
Dated this 23rd day of December 1976
Legislation Considered:
Penal Code Act 1970 (Reprint) s.l21A(l), (2), (3).
Cases Cited:
Uganda v. Solomon & Anor., [1971] E.A. 46
Uganda v. Erusania Namudoko & Anor. Criminal Revision No.659 of 1971.