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
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
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.
F
