Makwete & Ors. v R (Criminal Case 117 of 2016) [2017] MWHC 39 (8 February 2017)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL CAUSE NUMBER 117 OF 201 6 BETWEEN: DANIEL MAKWETE NELSON KAPASULE NAMBAZO GRACIOUS BINDULA AND CHARLES BADSON -VS- THE REPUBLIC Coram: Hon. Justice M L Kamwambe M is Muntha li of counsel for the State Mr Kamangira of counsel for the Applicant M r Amosi ... Official Interpreter Kamwambe J RULING CRIMINAL DIVISION This is an application to declare conviction invalid in the absence of a court judgment. The application is made pursuant to section 140 of the Criminal Procedure and Evidence Code and section 16 (6) {a) {ii) of the Statute Law Miscellaneous Act as read together with section 42 ( l) {f) (viii) of the Constitution . Facts of the case are that the Applicants w e re arrested around 8th M a y, 2010 by Phalombe Police and were charged with unlawful wou nding until the 15th May, 20 l O when the wounded passed on when they were charged w ith murder. On 6th September, 2011 the High Court sitting a t Mulanje co nvicted them lawyers of murder. On 8th May, 2012 Mambulasa & C o .as representing th e Applicants wrote the High Court Registrar seeking the full record for the purposes of lodging an appea l. The matter was later take n over by Naphambo and Company w ho continued to search for the record. The record was made available by the High Court b ut it lacked a complete written judgmen t. It is alleged that the abse nce of a complete judgment has denied the Applicants th e ability to appeal. It is on re cord that judgment was delivered o n 5th September, 2011 and on the following day sentencing p roce edings were undertaken. The convicts were sentenced to life imprisonment, and on same day the Registrar issued a warrant of co mmitment or authority for d etention to the prison authorities. The issues raised by the Applicants are as follows : l. Whether or not the statutory provision that a judgment of the court be in writing is mandatory or merely d irect ory. 2. Whethe r or not failure to comply with the requi remen t that a judgme nt be in wri ting renders the same invalid and not enforceable. CRIMINAL DIVISION L!!J 3. Whether or not an accused p erson should be imprisoned on the basis of such invalid judgment. 4. Whether or not absence of the judgment is a violation o f the right to fair tria l entrenched in section 42 ( 1) (f) (viii) of the Constitution of the Republic of Malawi. Section 42 (2) (f) (viii) of the Constitution g rants o ne the right to 'have rec ourse by way of appeal and review to a higher court than the court of first instance.' In sectio n 41 (2) it provides that: "Every person shall have the right of access to any court of law or any other tribunal with jurisdiction for fin a l settlement of the legal issues." Further, in section 41 (3) it states that : "Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law." I should first conside r section 140 of the Criminal Procedure a nd Evidence Code which states as follows: "Every jud gment shall, except as otherwise expressly pro vided by this Code, be in writing and shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the presiding officer. " The language of the above section cl ea rly makes it mandatory to have a written judgment, after a ll, c ourts are places of record and so it is imperative to have writte n judgment. If there is no judgmen t in writing then problems like the o ne we are facing CRIMINAL DIVISIO N now wo uld always surface. A record for appeal purposes would not be there , fo r instance, thereby making appeals difficult to be prosecute d. Th e co nsequence of failure to comply w ith section 140 of the CP&EC can be dire, but it should depend on how much of the record is missing . If a substantial part of it is missing then a retrial or discharg e of the accused person may be ordered , again depending on how long the accused person has already spent in custody. In view of what I have stated in the preceding pa ragraph , an accused person is not supposed to remain in prison unless a retrial is ordered an d bail is not granted. If the accused has a lready spen t in custody a substantial length of time or a substantia l part of the sentence, a discharge is expected . Obviou sly abse nce of a judgment is a violation of section 42 ( 1) (f) (viii) o f the Co nstitution because the accused w ill have been deprived of the opportunity to appeal to a higher court if the appeal can no t b e prosecuted without the missing part of the record. In Andrew Morris Chalera, Aaron Makumba and Ra jab Mpaka -v- The Republic MSCA Civil Appeal No. 5 of 2012 (unreported) the Supreme Court of Malawi had this to say: "What we make of the scanty precedent that we have been able to scout is that a court of appeal will weigh the degree, extent and relevance of the part of th e record that is missing and cannot be rec onstructed. Where the missing part of the record is not substantial, immaterial and inconsequential as would not result in miscarriage of justice, the appeal shall be proceeded CRIM INAL DIV ISIO N J i.......li.l with and finally determined. When the missing part of the rec ord is substantial, material and consequential, such that proceeding with the appeal would result in injustice, the conviction should be set aside without th e full appeal being heard. Wh ere the conviction is set aside it behoves the Court of Appeal to consider whether that be the end of the matter or, where the interests of justice so require, to order the appellant to be retried. Whether an order for retrial should be made will depend on the circumstances of the individual case. " Counsel for the Appellants provided two case s which held that the failu re of the judges to give reason s fo r their decisions violated provisions of section 245 of the CPS thereby vi tiating conviction(see Nwaefulu and Another -v- The State ( 1981) l NCR229 and Alabe and Another-v-The State (1976) NNLR 184). Our section 140 of the CP &EC does not ca tegorically state the consequences of failure to give reasons or, m issing record, but practice leads us to look at the circumstances of the individual case and elect such action that will result in more su b stantia l justice being done. In our p resent c ase, it is not the whole c o urt record that is missing but merely a part of the judgment. Looking a t the judgment in place I feel a substantial part of it is there . It c annot be said that it is impossible to bring about a court judgment. Upon request, the judge can be told or reminded to complete the judg ment. In case the judge wh o was seize d of the case is now dec eased, another judge can b e assigned to complete the jud gment to fulfil the intentions of th e deceased judge. This comp lete d judgment will become the basis of any intended appeal. This move will be in the CRI M INAL DIVISION interest of justice without creating unnecessary loop holes in the justice system . We cann ot explain what happened to the missin g part of the judgment. What I do know from the record is tha t judgment was pronounced in court and consequently, the Registrar proceeded to prepare th e warrant of commitment. This does not mean that reasons were not given by the court. In this rega rd , the case is assigned to another judge who will comple te the missing part. Consequently, this appeal fails. The defe nce counse l made a request tha t since the State in their submissions said that they have not proved the case against the 2nd and 3 rd Appellants they be released on bail. It must be observed though that all four Appellants were convicted by the trial judge despite the opinions of the State. This w ill be c onsidered by the judge w ho will be assigned this case to rec onstruct the judgment. Made in Chambers this 8th day of February, 20 l 7 at Chichiri, Blantyre. {Jillf/!t-z ML Kamwambe JUDGE CRIMINAL DIVISION