Wakilii

In the Matter of Bail Application by Tigawalana Bakali Ikoba (Criminal.Case No.161 of 2003)

High Court · [2003] UGHC 89 · 2003 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Bail application before the High Court under section 14A of the Trial on Indictments Decree for an accused charged with murder in the Chief Magistrate's Court
Decision
Applicant's bail application refused; applicant to remain in custody pending committal and trial in the High Court

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Holding

Held that the applicant failed to prove exceptional circumstances justifying bail. Medical evidence tendered as photostat copies was inadmissible as secondary evidence under Evidence Act sections 62 and 63, and no explanation was given for not producing primary evidence. Even if admissible, the evidence did not establish grave illness incapable of treatment in custody. The court further held that where an accused is charged with murder, a capital offence, exceptional circumstances must exist to justify bail, and a prominent politician facing such a charge poses a flight risk and may interfere with witnesses notwithstanding substantial sureties. Application dismissed.

Outcome

Applicant's bail application refused; applicant to remain in custody pending committal and trial in the High Court

Facts

The applicant, Tigawalana Bakali Ikoba, was charged with murder under sections 183 and 184 of the Penal Code Act in Criminal Case No. 0161 of 2003 in the Chief Magistrate's Court. He applied for bail under section 14A of the Trial on Indictments Decree, arguing exceptional circumstances based on grave illness (asthma and hypertension aggravated by prison conditions), his position as Chairman of LC V Mayuge District, fixed place of abode, no criminal record, and two substantial sureties. He tendered photostat copies of medical reports and prescription notes. The State Attorney agreed that asthma and hypertension could constitute grave illness but submitted that stiff conditions should attach to any bail given the serious nature of the offence. The court examined the medical evidence and the applicant's circumstances.

Issues

  1. Whether the applicant proved exceptional circumstances justifying release on bail under section 14A(1)(a) of the Trial on Indictments Decree.
  2. Whether the applicant proved he would not abscond if released on bail under section 14A(1)(b) of the Trial on Indictments Decree.
  3. Whether the medical evidence tendered in photostat form was admissible under the Evidence Act sections 62 and 63.
  4. Whether the applicant's alleged illness constituted grave illness incapable of adequate medical treatment in custody under section 14A(3)(a) of the Trial on Indictments Decree.

Orders

  • Application for bail dismissed.

Rules and key headnotes

Evidence — Documentary Evidence — Primary and Secondary Evidence — Admissibility of Photostat Copies
Documents must be proved by primary evidence except in circumstances specified under section 63 of the Evidence Act. Photostat copies constitute secondary evidence under section 61 of the Evidence Act and are inadmissible unless the party tendering them explains why the originals cannot be produced and brings the case within section 63. Where photostat copies of medical reports are tendered without explanation or leave of court, they are inadmissible.
Evidence — Opinion Evidence — Expert Evidence — Foundation and Testing
Expert opinion evidence is only a piece of evidence and can rarely if ever take the place of substantive evidence. It is desirable in bail applications based on medical grounds that the expert's information be given by affidavit or by the medical personnel coming to court to substantiate the report, enabling the court to test the accuracy of the findings and the expertise of the author.
Criminal Procedure — Bail — Exceptional Circumstances — Grave Illness
Under section 14A(3)(a) of the Trial on Indictments Decree, grave illness constituting an exceptional circumstance for bail must be certified by a medical officer as being incapable of adequate medical treatment while the accused is in custody. Discomfort caused by diet and congestion in accommodation do not amount to exceptional circumstances. The accused must adduce evidence satisfying the court that the illness cannot be treated in the prison where he is being held.
Criminal Procedure — Bail — Capital Offences — Discretion of Court
Where the offence charged is murder, which carries a mandatory death penalty on conviction, bail should as a general rule not be granted. So great is the temptation to abscond or jump bail in such cases. Special or exceptional circumstances must exist to justify the granting of bail on a charge of murder.
Criminal Procedure — Bail — Risk of Absconding — Prominent Persons
The allegation that an accused person is a citizen and therefore unlikely to abscond is an oversimplification where the accused is charged with a capital offence. It is not possible to exclude, in the absence of cogent evidence to the contrary, the possibility that such a person might be tempted to avoid the supreme penalty by absconding. A young, educated and prominent politician charged with murder has a lot to fear and a lot to lose and would be tempted to abscond or leave the country, even without an official travel document.
Criminal Procedure — Bail — Interference with Witnesses — Prominent Persons
The more prominent a person is, the greater is his fear of conviction and the greater the temptation to use his influence to interfere with witnesses. An accused holding the post of Chairman of LC V wields a lot of power and influence which he could use on prosecution witnesses, and bail may be refused on that ground notwithstanding substantial sureties.

Legislation cited (16)

Cases cited (16)

  • Steven Bazanye & 2 Others v Uganda (Criminal Miscellaneous Application No. 184 of 1998)
  • Mulondo Simon v Uganda (Miscellaneous Criminal Application No. 214 of 1998)
  • Uganda v Asumani Lwanyaga and Two Others (Criminal Appeals Nos. 816-818 of 1966)
  • Re Barronet (1842) 1E and B1
  • Re Robinson (1854) 23 L.J. - Q. B. 286
  • Quarish Goloba (Criminal Miscellaneous Application No. 89 of 1998)
  • Ben Byabashaija v Attorney General (High Court Civil Suit No. 134 of 1991)
  • Prince J. D. C. Mpuga Rukidi v Prince Solomon Iguru (Civil Appeal No. 18 of 1994)
  • Kit Smile Mugisha v Uganda (Criminal Appeal No. 78 of 1976)
  • R. vs. Turner (1975) Q B 834
  • Stephen Bazanye & 2 Others v Uganda (Criminal Miscellaneous Application No. 84 of 1988)
  • Uganda v Golooba (Criminal Miscellaneous Application No. 89 of 1995)
  • Kandole Patrick v Uganda (Miscellaneous Criminal Application No. 198 of 1998)
  • Hamujuni & 2 Others v Uganda (Miscellaneous Criminal Application No. 14 of 1999)
  • Hezekiya Washington v Uganda and Joshua Kamulegeya v Uganda (Miscellaneous Applications Nos. 80 and 81 of 1969)
  • Uganda v W. Nadiope, P. Mwase, C. Parmer, F. Kalisa, S. Kalulu and D. Zirabamuzale (Miscellaneous Criminal Applications Nos. 51-56 of 1969)

Full judgment

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In the Matter of Bail Application by Tigawalana Bakali Ikoba (Criminal.Case No.161 of 2003) [2003] UGHC 89 (12 August 2003)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.