R v Nelson Siame alias Peter Kafwimbe (Criminal Appeal Case 1 of 1938) [1938] ZMHCNR 14 (31 December 1938)

148 Vol. II] R. v. NELSON SIAME alias PETER KAFWIMBE. Cr im in a l Ap p e a l Case N o. 1 of 1938. D eportation order must contain a specific command. Deportation. Order recited the recommendation made by the M agistrate but did not contain any order setting out the time for w hich the accused had to be kept in the Isoka D istrict, held that the order was invalid. As to the final paragraph o f the follow ing judgm ent see R. v. Labson Jesa 1 N . R . L . R . 120. F ra n cis, C . J .: This is a case stated by the Resident Magistrate, N dola, sitting at Luanshya, at the request o f the Crown Counsel, Ndola, acting under the directions o f the Attorney-General. A t the hearing Mr. Mills appeared on behalf o f the Attorney-General, while the respondent was not represented. The facts briefly are as follow s: On the 28th Novem ber, 1938, one N elson Siame alias Kafwimbe (the respondent) was charged before the M agistrate for that he on or about the 23rd N ovem ber, 1938, w ithout the consent o f the Governor did leave the area to which he had been deported by order o f the Governor issued under the authority o f section 35 (3) o f the Penal Code, while such order was still in force. There was in evidence the original warrant o f deportation under the hand o f the G overnor’s D eputy, dated the 17th September, 1936. This warrant recited— (a) that the respondent was on the 2nd July, 1936, convicted before the Resident Magistrate, N dola, o f the offence of leaving the district to which he had been deported while an order o f deportation was still in force and was sentenced to tw o m onths im prisonm ent w ith hard labour; (b) that the Magistrate recom m ended upon expiration o f the said sentence that the respondent be deported to the Isoka Dis­ trict for three years; and (c) that such recom m endation had been approved by the High Court. After these recitals, the operative clause follow ed : “ Y ou (the Commissioner o f Police) are hereby commanded to take the said (respondent) and deport him to Chief Kafwimbe’s village in the D istrict o f Isoka.” A t the close o f his case, the P ublic Prosecutor subm itted that the warrant was evidence that the deportation o f the respondent had been ordered for the period recommended by the convicting court. [Vol. II The Magistrate was o f opinion however that mere recitals, not followed by a distinct command defining precisely the period o f deporta­ tion, did not constitute evidence that the Governor’s Deputy had ordered the respondent to be deported for a period of three years, He held, therefore that the warrant was invalid and in consequence there was no evidence that the order o f deportation was still in force. The accused was thereupon found “ Not Guilty ” and discharged. The question now submitted is whether the warrant was evidence that the Governor’s Deputy had ordered the respondent to be deported for the period o f three years as recommended. In arriving at his conclusion, the Magistrate had before him a Revi­ sional Order by this Court in Sex v . Kalemba Shendo, Choma Case 50/1938, dated 27th May, 1938, in which the very point now in issue was decided. I am informed by the Registry that a copy of this order was, in the usual course o f business, transmitted to the Attorney-General, and in these circumstances it is difficult to understand why it has been sought on his behalf to re-open the question in this manner. In the light of the proviso to section 314, Criminal Procedure Code, the Magistrate no doubt con­ sidered himself bound to comply with a request purporting to come from the Attorney-General. Now it is quite definitely settled that a warrant is the sole authority to a police constable or gaoler, and for that reason it is most necessary that it should be precise in its commands; and following this require­ ment, it is elementary that after the recitals of the conviction and adjudi­ cation, every properly drawn warrant o f commitment proceeds with the specific command that the keeper o f the prison do receive the defendant into his custody and keep him to hard labour for the period corresponding with that recited in the adjudication. There are decisions in S ex v. Smith, 94 E . R . 403 and in In re Peerless 113 E. R., p. 1089, indicating the importance which the courts attribute to regularity in such a matter. In this connexion it is interesting to note two examples locally in which this principle is illustrated. Firstly, the form o f the Governor’s warrant which was used under the Punishments Ordinance (Cap. 10) now repealed by the Penal Code; and secondly the particularity with which the Governor’s Commission to his Deputy defines the limits o f powers pre­ viously recited. There can be no doubt that the warrant in question is incomplete, and in an attempt to overcome the result flowing from defective drafting, it did not impress me to hear the submission made on behalf o f the Attorney-General that the Governor would, as a matter o f course, follow the recommendation o f the convicting court. But the Governor is not bound to do so, the wording o f the law permits him a discretion. In any event it would be following correct practice in such matters to state definitely on the face o f the warrant, for the information o f all concerned, that the Governor has in fact approved the recommenda­ tion o f the courts. In my view the learned Magistrate came to a proper decision on the point o f law submitted. I I am left wondering whether'the question o f the application to the Magistrate ever came personally before the Attorney-General. There is a suggestion, but nothing precise, in the record, that his power under Vol. II] Crim inal P rocedure Code, section 314 had been invoked in setting this appeal in m otion . Confirm atory o f this is the fact that certain conditions preceden t attached to alternative procedure under section 313 have not been discharged. N ow as the power referred to appears not to be one su b ject to delegation under section 77, w ould I be going too far to assume I f he did so, th a t th e Attorney-G eneral did indeed give directions ? then I im agine that the im portance attached b y him to a re-opening of a p oin t o f law long ago decided by the H igh Court m ight well have been in dicated b y the appearance o f one o f the tw o Law Officers o f the Crown In the circumstances o f this b efore the Court in support o f the appeal. case I consider that such an appearance was a courtesy due to my Court. I t is noticeable that in the phraseology o f sections 34 and 35 Penal C ode w hich deal w ith deportation within the Territory, the expression “ O rder ” is used throughout, and it is only in the very last line that the expression “ warrant ” (“ fresh warrant ” ) appears. A warrant in the sense o f a warrant o f arrest, is a precept which m ore usually issues from a court o f law. The expression does n ot norm ally describe an act o f the E xecutive. F or exam ple, in all cases where the H om e Secretary sanctions deportation, the written authority upon w hich action is taken is referred to as an Order o f D eportation, and that is the same expression used seven times in the tw o relative sections o f the Code. I t is difficult, therefore, to understand w hy the Law Departm ent Form is headed and drafted as a “ W arrant ” instead o f a n “ Order ” . This departure from usual practice leads to confusion am ongst the m agistracy, particularly in view o f the intrusion o f the expression “ fresh warrant ” at the conclusion o f section 35 (3).