Jafali v R (Criminal Appeal 22 of 2018) [2018] MWHC 1085 (25 September 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CRIMINAL APPEAL NO. 22 OF 2018 EDWARD JAFALI ....................................................... APPELLANT AND THE REPUBLIC ........................................................... RESPONDENT CORAM: Hon Justice M L Kamwambe Chisanga of counsel for the State Masanje of counsel for the Appellant Ngoma .... Official Interpreter JUDGMENT Kamwambe J - This is an appeal by Edward Jafali under section 350 ( 1} of the Criminal Procedure and Evidence Code against conviction and sentence of the Blantyre First Grade Magistrate court in relation to the charge of obtaining money by false pretence. The particulars of the offence alleged that Edward Jafali between the years 2014 to 2016 at Chilobwe Township in the City of Blantyre with intent to defraud obtained money amounting to K 1, 247, 000.00 from Davie Mphaya by falsely representing that the CRIMINAL DIVISION money will be used to buy a plot, building materials and payment for labour when in fact no plot was acquired. The grounds of appeal are as follows: 1. The lower court erred in law by not being impartial and having a preconceived notion of the Appellant's guilt. 2. The lower court erred in law by not allowing the Appellant to bring his witnesses so much so that there was a mistrial and miscarriage of justice. 3. The conviction was totally against the weight of the evidence. 4. Sentence of 3 years IHL is manifestly excessive. The Appellant prays. that the conviction be quashed and sentence set aside or reduced. In his first ground of appeal Appellant says that the lower court was impartial and had made up its mind to convict the Appellant. This is substantiated by referring this court to page 8 of the lower court record where on application for bail the State objected to the granting of bail to Appellant on the basis that the amount stolen was too much. In its ruling the lower court concurred with the State and refused to grant bail on the said ground. Appellant argues that there was an error in law as the court ought to presume the Appellant innocent at that stage. He alleges that the lower court showed bias from the beginning. For instance, on 9th June, 2017 the court refused to adjourn the case to allow Appellant to bring his witnesses. Later the court adjourned for judgment and sentence. This meant that the lower court was determined to find Appellant guilty. During the course of trial the lower court allowed several adjournments at the instance of the State but blamed the CRIMINAL DIVISION - Appellant for deliberately delaying the case. At two occasions the court was absent and the State for four times. Appellant complains that this shows that the lower court was favouring the State. Bail consideration is discretionary. There are many factors that the court has to consider whether to grant bail or not. The amount of stolen property is one such factor. That the lower court agreed with the State that the amount stolen was huge and therefore bail was denied does not necessarily mean impartiality. We should be wary to protect the court of imputations of impartiality because courts would find it difficult to exercise their discretion. However, Appellant was later granted bail by the same court. I fail to appreciate how impartiality comes in as it is not sufficiently substantiated. That the court refused the Appellant to call his witness, I find that after he testified he was given opportunity to bring his witness who for two occasions failed to appear in court to give testimony. The court declined to give him a third chance. The court should assess situations and reasons of absence. If there is no good reason advanced for the absence, the court is entitled to say enough is enough and proceed with trial. Just because the State was allowed six adjournments does not mean that the opposite side is also entitled to same number of adjournments. We all know about limitations of the State in prosecuting cases. Circumstances may have been such that it was necessary to grant the State such adjournments. During the defence case the case was adjourned to 17th May, 2017 when Appellant's witness was not available. Thereafter it was adjourned to 9th June, 2017 when Appellant failed to bring his witness again and it was adjourned further to the 28th July, 2017 for judgment when the court complained that the case was being delayed deliberately by the Appellant who was on bail anyway. At least Appellant was granted two opportunities to bring his witness. If it were only one opportunity, I would have agreed with Appellant that he was entitled to another opportunity. Having been CRIMINAL DIVISION - granted two opportunities to bring a witness and thereafter refused a further opportunity does not constitute unfair trial. No reason was furnished by Appellant why the witness was absent on two occasions. This is abuse of court. The court even said that litigation must come to an end. I cannot fault the court in this instance. that false pretence the prosecution must prove The third ground of appeal is that the conviction was totally against the weight of evidence. In the charge of obtaining money the by representation which carries the operative words referred to a past or present fact. The parties had agreed that the Appellant will buy for the complainant a piece of land on which to build a house. Appellant claims that he bought the land and this was not substantiated as the chief refused to have appended his signature on the document and wonders how Appellant obtained the chief's stamp on the document. It becomes questionable that he obtained the money by false pretence. Even if he had not bought the there would be no proof of a past or present representation since the representation to buy the land was of the future. As such, the elements of the offence would be incomplete, thereby the State wi ll have failed to prove the case. In this case, it would be unsafe to say proof of fraudulent intent was established. land, It is advisable to consider all facts in the circumstances of this case . Appellant represented that he bought the land , with the initial K450, 000. 00 he was given by complainant which was followed by complaint sending him more money for actual building activities. To say that one had bought the land when he had not constitutes a false pretence of an existing or present fact which induced the complainant to send more money (see Rep. v Hassan [1971-1973] ALR , Vol. 6, p443; Sitikhala v R [1966-1968] ALR Vol. 4, pl ) . At this stage the offence was committed . Appellant ' s conduct was clearly fraudulent and blameworthy. - ' ' This is not a case which can be substituted with the offence of theft by trick under section 321 of the Penal Code since there would be no evidence of trick or ruse; Further, section 321 of the Penal Code is not a minor or alternative offence to section 319 ( obtaining money /property by false pretence) so as to put into operation section 150 of the Criminal Procedure and Evidence Code. For this reason, I maintain the conviction but set aside sentence because it is on the higher side being more than half of the maximum sentence. After all, the offence is a misdemeanour. I therefore impose a sentence which would result in his immediate release. Pronounced in open court this 25th day of September, 2018 at Chichiri, Blantyre. tkJl,1;,/~~ ML Kamwambe JUDGE - CRIMINAL DIVISION •