Ngwira v State (Criminal Appeal Case 19 of 2020) [2022] MWHCCrim 120 (9 May 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CRIMINAL APPEAL CASE NO. 19 OF 2020 (Being Criminal Case No. 11 of 2018 at Mzimba Senior Resident Magistrate Court) CHRISTOPHER MZOMERA NGWIRA -VS- THE STATE CORAM: HONOURABLE JUSTICE C. P. KAMOWA CR ES RIdE ca ctesuswenniennsenidtouairnoeuyewenuanernennes Counsel for the State (ACB) Victor Gondwe/ C. Ghambi/W. Chibwe...... ...........:.008 Counsel for the Accused 15; MSHIEWE 0x nxscusanareannneniakertenemeaasccsneasencee nts Official Interpreter DN, RWS x :o-coen.sn nie SRRRS RRR DE WIR eRONNEsGAeT KEIR Court Reporter Kamowa, J JUDGEMENT ON APPEAL The Appellant Christopher Mzomera Ngwira appeared before the Senior Resident Magistrate sitting in Mzimba, charged with the offence of misuse of public office contrary to section 25B (1) of the Corrupt Practices Act. The particulars of the charge were that the Appellant, as a Member of Parliament, between July and August 2010 in the district of Mzimba used his position to award a contract to one Mr. Mtonga when it was the duty of the school committee to do so. The lower Court imposed a 48 months’ imprisonment sentence on the 16" October, 2020. This is a judgement made upon hearing Counsel for the Appellant and the State on the Appellants notice of appeal against the conviction and sentence. Seeking the finding of guilty to be reversed and sentence be set aside or that a reduced one be imposed on the grounds that: 1. The learned magistrate erred in law in finding the Appellant guilty of misuse of Public Office. 2. The finding of guilt in against the weight of the evidence 3. The sentence is manifestly excessive. The Respondent filed a cross appeal against the magistrate finding of acquittal on the second count on grounds that: The magistrate erred in fact and in law in his analysis and finding that the Appellant did not obtain the K650, 000.00 from Lukwelukwe Primary School Staff House Project Account for his own advantage. They seek the following orders/reliefs a. That the Court should find that the Appellant had a case to answer on the second count b. That the finding of acquittal on the second count be reversed. c. That the case should be remitted back to the magistrate with a direction to proceed with the trial on the second count by calling the appellant to defend himself. This being an appeal from the subordinate Court, I am mindful that it is trite that such appeals be dealt with by way of rehearing, that is, I must look at and analyse all the evidence in the Court below. The Respondent paraded seven witnesses to prove their case, and the Appellant testified in his defence and the Court summoned Mr. Mtonga under section 201 of the CP&EC. Upon reading the documents filed in support of the appeal, the response from the state as well as the record of the case. The accused was answering to two charges both to do with misuse of Public Office contrary to section 25 (B (1) of the Corrupt Practices Act. The Appellant was a Member of Parliament for Mzimba Hora Constituency during the alleged period. As a member of Parliament then for Mzimba Hora Constituency the Appellant was alleged to have misused his public office or authority for the advantage of Louis Paul Mtonga by awarding him a contract to supply building materials for teachers houses at Lukwelukwe Primary School when it was the Lukwelukwe Primary School Teacher’s House LDF Project committee’s duty to do so. As per the state, the said committee had awarded the contract to Yogi Hardware. This happened between July and Augusts 2010 in Mzimba District. The Court found the accused with a case to answer on the first count and was acquitted on the second count which is the subject of the cross appeal. The accused was a public officer by virtue of being a Member of Parliament from the evidence. The contract to supply building materials was awarded to Yogi Hardware by the Lukwelukwe School Committee. The accused was told that Mr. Mtonga went with the building materials. It was the accused who told PW2 not to return the materials and that he will talk to District Assembly Officials. This evidence was not challenged. From the evidence of PW3, it was Mr Mtonga who delivered the materials and signed delivery note. PW2 testified that he received a phone from his wife that materials were sent to the school by Mr. Mtonga. PW2 then called the accused who told him to receive the building materials and that he will talk to the District Assembly Officials in relation to the materials. This evidence was not disputed. PW3 testified that after the building materials were rejected. It was Mr. Mtonga who went to collect the rejected building materials. The appellant why tell PW2 to receive the building materials from Mr. Mtonga. If it was not him who instructed Mr. Mtonga to deliver the building materials. If the accused was not the one who sent Mr. Mtonga why it is that he was involved to the extent of talking to the District Assembly Officials. As per the evidence he was not supposed to be involved in the management of the project. On the repayment the money was deposited back by the appellant and not Mr. Mame Phiri. In addition the Appellant took two blank cheques from the committee. The committee did not know where these cheques went but eventually, they were found with Mr. Mtonga as a payment to the supplied goods. The accused was a Member of Parliament during this period. He was a public officer as per section 3 of the Corrupt Practices Act. The accused misused his public office and authority to the advantage of Mr. Mtonga to deliver building materials which Mr. Mtonga duly did. This was against the laid down procedures by the District Assembly that politicians should not be involved in the running of the project. This was against the choice of the school building committee which duly awarded the contract to Yogi Hardware. The Appellant used his public office and authority for the advantage of Mr. Mtonga. This Court finds that the record of the case from the lower court, the findings of the lower Court on the following is in order. All the elements of the office were proved and the conviction is hereby confirmed. On the sentence, the Appellant states it is manifestly excessive. The maximum penalty for the offence of misuse of public office as per section 34 of the Corrupt Practices Act is 12 years imprisonment. The Appellant was sentenced to forty-eight (48) months imprisonment with hard labour with effect from 28" September, 2020. In the case of Endex Kandonga v. Republic Criminal Appeal Case No. 19 of 2010 Chinangwa J, on appeal on a case of similar charges a trial Court imposed 4 years imprisonment with hard labour however, considering age of the appellant and his apparently poor health. The loss of his long service. It was a proper case to suspend the operation of the sentence. In Yusuf Mwawa v Republic Criminal Appeal Number 50 of 2006 Singini J, for similar offences suspended the operation of the sentences for all the four offences on condition that the Appellant is not convicted of the same or similar offence within 2 years from the date of the conviction of the offences. In R v Martha Banda Criminal appeal No. 61 of 2012 for a similar offence the trial Court invoked the provisions of section 337 (1) a, of the Criminal procedure and Evidence Code without proceeding to conviction. The trial Court then dismissed the charge and simply admonished and warned the Respondent against such practices for a period of 12 months. The order was confirmed on appeal. Noting that both the Applicant and state did not dispute the health condition of the appellant as per the sworn statement of Richard J. Nyahoda exhibit RJN 1 and the State in sworn statement of Alice Nyirenda confirms the illness in a letter of Dr, Doris Kayambo. Considering the poor health of the appellant and considering the term of the sentence he has already served from 28" September, 2020 to date I order that the sentence should be reduced to result into immediate release of the Appellant unless he is held for other lawful reasons. The appeal succeeds to this extent only On cross appeal, I have reviewed the 2™ count which he was acquitted. I find that the magistrate did error in fact and law in his analysis and finding that the Appellant did not obtain the K650, 000.00 from Lukwelukwe Primary School staff house project account for his own advantage. The state alleged on the 2™ count that the accused misused his public office for his personal advantage by obtaining K650, 000.00 from the project for his own use. On the 2"? count the prosecution had to prove that (1) the accused is a public officer (2) that he misused his public office (3) for personal advantage. It is a finding of the Court that from the evidence the Appellant was a public officer by virtue of being a Member of Parliament and he misused his public office. The element that has to be analysed is whether this was for his personal advantage. Definition of section 3 of Corrupt Practices Act of advantage means “any benefit, service, enjoyment or gratification, whether direct or indirect, and includes a payment, whether in cash or in kind or any rebate, deduction, concession or loan, and any condition or circumstances that puts one persons or class of persons in a favourable position over another.”’ From the evidence of the lower Court PW1, PW2, PW3 and PW6 as analysed together with the evidence of PW7 failed to show that after the K650, 000 was withdrawn, despite the whole of it was taken by the Appellant he used it to his personal advantage. However, there is evidence that K400, 000.00 was refunded. There is evidence that the said money was paid to one Mr. Paul Mtonga and that the committee received K134, 000.00 from the same amount to buy sand and quarry. Mr. Paul Mtonga delivered materials to the project. K650, 000 less K400, 000 and K134, 000 there should have been an amended charge the amount to show the advantage that went to the appellant as per section 254 (2) as read with section 151 Criminal Procedure and Evidence Code. Appellant did use the money for his personal advantage as per the definition of advantage in section 3 of the CPA. The state raised a prima facie case on the 2" count against the Appellant hence the acquittal was not in order. I am also mindful of the case of Maxwell Namata v R MSCA Cri Appeal No.13 of 2015 the Court has this to say: *¢ | ... Then we thought about a retrial. We will also not order one. The High Court in Banda V. Republic Criminal Appeal Number 11 of 1980 (unrep) set out the principles which must govern retrials. It said apart from all else the ordering court should be convinced that there is evidence disclosing a case against the appellant in respect of the offence charged or some other offence. We will repeat ourselves a little. It should not be for the Court, having acquitted an appellant, to then decide that there is sufficient evidence on the basis of which he/she should be re-prosecuted. The State, acting via DPP. Should make that decision. From a different perspective we think that retrials must actually never be resorted to. They interfere with the independence/impartiality of trial courts and also afford the State a needless second bite of the cherry. Because a retrial will only be ordered where a superior court is convinced there is sufficient evidence to secure a conviction against the appellant the superior court is at the time of remitting the case for retrial effectively telling the retrial court, placed down on the hierarchy, which way to go in so far as the accused’s guilt is concerned. That does not offer the trial court much room within which to exercise its independence/impartiality. Beyond that it also allows the State to amend its ways and effectively benefit from its own error(s). Like we have said above we will not order a retrial. If the State thinks this a proper case for one they will approach an appropriate court and convince if of the propriety of such course of action taking into a count the issues raised above including the possibility of double jeopardy.’’ However, also an amendment of the same cannot be done at this stage as it will prejudice the Appellant if this Court invokes sections 353 (2) (c) (i) of the Criminal Procedure and Evidence Code. Pronounced in Open Court on this 9" May, 2022 at Mzuzu. Chim amowa DGE