Gomani and Muza v R (MSCA Criminal Appeal 5 of 2016) [2019] MWSC 17 (13 February 2019)

JUDICIARY IN THE SUPREME COURT OF MALAWI MSCA Criminal Appeal No 5 Of 2016 BETWEEN JOYCE ZIONE GOMANI 18? APPELLANT AND ERNEST MUZA 2ND APPELLANT ~ AND THE REPUBLIC RESPONDENT CORAM: Twea, JA Mwaunegulu, JA Kamanga, JA Silungwe, for the Appellants Saidi and Phiri, from the Anti-Corruption Bureau, for the Respondent Chintande, Recording Officer 1|Page JUDGEMENT Twea, JA Our judgment is unanimous. I would also dismiss the appeal against the first appellant and allow the appeal against the second appellant for the reasons given by Justice Mwaungulu. Mwaunguln, JA Précis This appeal arises because the court below, on facts appearing shortly, dismissed the appeal from the lower court. The lower court convicted Gomani and Muza for misuse of public office and neglect of duty, offences, respectively, under section 25B (4) of the Corrupt Practices Act and section 121 of the Penal Code. The lower court, the Lilongwe First Grade Magistrate Court, acquitted the appellants of abuse of office, an offence under section 25B (2) of the Corrupt Practices Act at the close of the prosecution case and of conspiracy to commit a felony, an offence under section 35 as read with section 25B (1) of the Corrupt Practices Act, at the end of the trial. The lower court sentenced the appellants to 18 months imprisonment on each of the counts. The sentence was suspended for two years. There is, therefore, no appeal against the sentences. The appellants, in the court below and in this Court, therefore, contest the convictions. Background There is, frankly, not much to the facts of this Case. Mr Joseph Gitawu, a Kenyan, was being deported, apparently, because he exceeded days for him to remain in the country. He was searched for and found with a Malawi Passport ~ apparently a friend of his approached an Immigration Officer to issne a Malawi Passport to him. The Anti-Corruption Bureau intervened. There was more to passport No MW153933 the Immigration Office issued on 15 March, 2005 to Mr Joseph Gitawo. The passport, in the name of Joseph Gitawu Njoloma, based on file number 10000629. The faces on the file and on the passport differed. The person on file number 10000629 was re-applying, The applicant, according to the file, previously travelled on Passport number 116915. This passport was issued to Mr Banda on 15 June, 2004. There was no file for the passport for Mr Joseph Gitawu Njoloma. The passport was, therefore, issued without a file. When renewing or replacing a lost passport, which was what was endorsed on the file, the applicant appears at the counter and meets a passport official who gives the applicant application forms. The applicant fills only Part A of the form. The applicant must bring a police loss report and complete Form MP 224 or 225 which details the lost passport number, the date of issue, place of issue, full names of the applicant, where the passport got lost and whether the loss was reported to the police. Essentially, therefore, the applicant gives three documents, a police report, Form 224/225 and an application form. With these documents, a counter passport official or a registry staff member searches for the original file from the registry. A passport official verifies the information and completes a checklist. The checklist attaches to the file. The immigration official sends the file to either the passport officer or the deputy. After checking and verifying, the passport officer or the deputy endorses “Issue new passport.” The file then goes to the cashier. The cashier verifies all the information and processes the payment. In the Cashiers’ office, they do not just accept the money, they have to check whether the file is correct. As trained Immigration Officers, they have to verify that forms are properly filled to avoid passports falling into wrong hands. “Once the Cashier verifies that, he/she processes payment.” After payment, from the cashier, the file 2|Page returns to the Passport Officer or Deputy who finally endorses ~ again — ‘issue the new passport.” The file is then sent for printing. Printing involves six dedicated computers: data entry, image capturing, printing, lamination and quality assurance. All immigration officers access all computers, except two. There were two officers — with passwords — to authorise printing on print computers. There was a printing foyer for two printers for two immigration officials, In this matter, No MW153933 was being obtained wrongly, improperly or corruptly. There is no entry in the Registers — prepared for the purpose. All people — except two ~ in the passport issuing chain never saw the documentation. Neither the passport officer nor the deputy signed the document authorizing the printing. The registry had a record of it. The Registry, however, was accessible to all in the chain, except the passport officer or the deputy. If, therefore, the scheme was improper, it is possible for one to create a file and slot in documents, albeit fraudulent. the charges The first and second appellants were charged with offences because they, respectively, issued the receipt and commented on the applications forms. The first appellant admitted in the lower court that she was the cashier who issued the receipt for this spurious passport. She was the Cashier — temporarily filling for somebody else — at the time. The receipt was in her handwriting. The prosecution theory, backed by general evidence, in the lower court was that the first appellant, who was a trained immigration officer, was supposed to verify the information and signatures before issuin g the receipt. The inevitable inferences are that either she was negligent and never performed her duties properly in allowing the documentation which — now — is known to be spurious or that she knew that the documentation was false, Her evidence, however, was that in fact, she was only handling the cash bit. The verification or checking, if it was the duty of the cashier to do so by training or instruction, was in the section, done by her senior in the office to who the file was directed. She would, therefore, only issue the receipt when money was handed over to her. On the receipt in question, she testified that she could not remember the matter specifically because she handles many receipts each day. The prosecution theory, again backed by evidence, for the second appellant was that he, being responsible for checking, verifying and confirming information for a lost passport, either never verified the information or knew that the documents were false and confirmed all processes after his functions. The second appellant admitted that he is the one who, as the one to write observations, made, after verification, the observation that the passport was lost. He was in the printing section and was the last line of checkin g after everybody else and before printing. The prosecution theory is that he must have indorsed the observations knowingly or negligently. The lower court found that the appellants were, when the passport was issued, working at the regional immigration office in different sections. The court found no evidence of a conspiracy and, as seen, acquitted both appellants of the offence of conspiracy to commit a crime. The lower court found that each one of them was acting alone ~ in accordance with their role in the process. The lower court also found that this passport was issued without any authorization by the passport officer or the deputy. Contrary to practice, the signatures and comments were in blue, not in black, The lower court thought that the first appellant could or should not have issued the receipt for the passport or, which is the same thing, the first appellant issued the receipt without verifying or checking the file. The 3|Page lower court also found that neither the passport officer nor the deputy authorised the issue or printing of the passport. The lower court, in relation to the second appellant, found that the file, on which the passport was issued, was fictitious. The lower court also found that the second appellant had no authorization to print the passport. The lower court, therefore, convicted the appellants on the remaining counts. The appeal in the Court below The appellants appealed to the High Court on six grounds. The court below, in the judgment, only covered a few. Grounds not covered resurface in this Court. The grounds are as follows, The lower court erred in law in convicting the appellants without making a proper assessment of the evidence before it, the lower court erred in law in convicting the appellants without directing itself properly to the law on circumstantial evidence; the lower court erred in law in convicting the appellants on a charge of misuse of public office contrary to section 25B (1) of the Corrupt Practices Act without a proper consideration of the law and facts; the lower court erred in jaw in convicting the appellants on a charge of Neglect of Office contrary to section 121 of the penal code without a proper consideration of the law and facts; the learned magistrate erred in not making a specific finding on the evidence of the appellants which should have exonerated the appellants on a balance of probabilities; and that the findings of guilt on the two charges by the magistrate were against the weight of the evidence. Equally, there were intense and heavy submissions from both sides. The court below, again, only covered part of the submissions. Submissions in the Court below The appellants submitted, first, that the court below improperly assessed the evidence. Relying on Republic vy Msosa [1993] 16 (2) MLR 734, a decision of the same court, the appellants argued that the lower court failed to scrutinize all the evidence, including that of the defence, to satisfy itself, beyond reasonable doubt that the offence was committed and the appellants were authors. The appellants contended, based on Likaku v Republic (1966-68) 4 A LR (Mal) 83, that the appellants’ evidence raised a reasonable doubt and the court below should, therefore, have resolved the doubt in the appellants’ favour. The appellants, based on Republic vy Chisambi [1973-74] 7M LR 305, said that they only had an evidential burden to prove their defence on a balance of probabilities. The appellants, based on Republic vy Msosa, urged that the court below approached the evidence wrongly. The approach should not have been what it was, asking if the accused person’s story is true or false. Rather the court should have asked: Whether it might reasonably be true, with the result that if the accused person might reasonably be telling the truth, the prosecution have not discharged the burden of proof beyond reasonable doubt imposed upon them by law and the accused must be acquitted. The appellants argued that there was no direct evidence linking the appellants with issuing the passports. On the contrary, the evidence just showed that the appellants were doing what were otherwise their routine tasks, issuing receipts and making observations on a file. They did not issue the passports — the passports were issued by others. The appellants further argued that in the absence of direct evidence, the court proceeded, as it did, based on Moyo v Republic (1966-68) 4 A LR (Mal) 83; Chidothi and another v Republic [1992] 15 MLR 15, on circumstantial evidence. The appellants, however, submitted, on the strength of Nyamizinga v Republic [1971-72] 6 ALR (Mal) 305 that it was for the state — and the state failed — to demonstrate beyond reasonable doubt guilt on circumstantial evidence relied on, The state, the appellants asserted, must, because of Bokola v Republic [1984-86] 11 M LR (Mal) 145; Dickson vy Republic 4966-68) 4 A LR (Mal) 83, negate all reasonable hypotheses of innocence from the proven circumstances. The appellants relied on this 4|Page passage from the decision of the court below in Chafungatira v Republic (2009) Criminal Appeal No 35B (MHC) (Bt) (unreported): Where the prosecution, as here, relies on circumstantial evidence, the evidence must be such that it proves beyond reasonable doubt that the defendant committed the offence. The evidence relied on must be such that it leaves no break in the evidence on which the interference should be drawn. The principle is covered by decisions of this court Nyamizinga v Republic (1971/72) 6 ALR 258 and Banda v Republic (1971/72) 6 ALR 383 The appellants argued that a conviction on circumstantial evidence works cumulatively and on elimination. It must, as stated in Blackstone’s Criminal Practice, 2004 Ed, paragraph F1.10, page, narrowly examined because it can be fabricated casting suspicion on another. The appellants cited this statement from Taper v The Queen [1952] AC 480: It is also necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co- existing circumstances which would weaken or destroy the inference. The appellants, therefore, submitted that the evidence cumulatively, manifested many hypotheses that the prosecution failed to eliminate. First, the appellants argued, it is very senior officials who authorised issuing the passport and the appellants were way down the ranks. Secondly, the appellants argued, printing of the passports was done by other officials — not them. Moreover, the appellants argued, the State did not tender the original file for the passport application. Moreover, the appellants argued, one prosecution witness referred to an approach by Mr Mulli about the passport to Mr Joseph Gitawu. This witness must know something. The appellants argued that this witness should have been called. The appellants also challenged the lower court’s decision, relying as it did on the prosecution case without independent witnesses. The appellants in the court below contended that the conviction was against the weight of the evidence, The appellants argued that, concerning the offence of abuse of office, the Court never analyzed the elements of the offence. The appellants, no doubt, were public officers. They never, however, if the lower court had considered the meaning of the word ‘abuse’ in the section, abused their office. The appellants were merely doing what they were supposed to do -- issue receipts and make observations. The appellants referred to Black’s Law Dictionary, 8" Edition according to which abuse refers to departure from legal or reasonable use in dealing with a person or thing. The appellants, referring to The Oxford Advanced Learners’ Dictionary, 7 Edition, contended that abuse refers to use of power unfairly or wrongly. The appellants submitted, relying on R v Dytham [1979] 1 QB 722, United States v Harris 347 U S 612 (1954) and Uganda v Atugonza (CR. CS 37 of 2010, that abuse of office has been held to refer to an act or omission done in an official capacity which affects the performance of official duties and it is said to occur where, in the capacity, as a public officer, the officer does an act that he knows exceeds his lawfal authority or that he knows is forbidden law to do in an official capacity and it must be demonstrated on how the public officer exceeded his lawful authority. The idea was to avoid criminal liability for actions which the accused person reasonably understood to be lawful or not proscribed. The state, it was submitted, never demonstrated that, 5|Page The appellants also submitted that the lower court could not rely on the duplicate file when the original was not produced in court. The weight to be attached to the duplicate, the appellants argued, was affected by the decision of Maliyati v Republic (1968-70) 5 ALR (Mal) 132 where the court said: For if it appears that there is any better evidence existing than that which is produced, the non-production of such evidence creates presumption that if produced, it would have revealed some falsehoods which is at present concealed. The appellants, relying on Ndalahoma v Republic (2008) Criminal Appeal No 2 (MHC) (Mzz) (unreported), argued that the court below never regarded that the appellants had no advantage to themselves. On the offence of neglect of duty, the appellants argued that the state never proved willfulness — the mens rea for the crime, On the contrary, the evidence showed that the appellants executed a routine task. They relied on comments by Perkins and Boyce in Criminal Law, 1982, 3 edition, pages 875-876 and this pronouncement in Caswell vy Powell Duffiryn [1940] AC: The word willful or willfully when used in the definition of a crime, it has been said, time and time again, means only intentionally or purposely as distinguished from accidentally or negligently and does not require any actual impropriety; while on the other hand it has been stated with equal repetition and insistence that the requirement added by such a word is not satisfied unless there is a bad purpose or evil intent The appellants contended that the lower court, concerning the appellants, never applied standards and principles applicable to criminal trials and accused persons, The appellants cited this statement in Republic vy Gwazantini (2003) Criminal Case No 208 (MHC) (Bt) (unreported): Justice demands that trial is conducted on exactly the same rules and terms as are in place for all criminal cases and the same degree of care and attention is therefore called for. I am bound by my oath of office to do justice to all manner of people according to law. The appetlants, therefore, argued that the lower court succumbed to a standard much lower than the one required on the state under criminal proceedings — proof beyond reasonabie doubt. The respondent's submissions in the Court below The respondent, supporting the lower court’s judgment, argued, based on what they understood from Miller v Minister of Pensions [1947] 2 All ER 372, followed in Malawi in the court below since 3 November 1943 when Rex v Macheso (1923-61) 1 ALR (Mal) was decided and in this Court, since 10 February, 1959 when the Federal Supreme Court, on an appeal from the Nyasaland High Court, decided Chasiyana v R [1923 --60] 1 ALR (Mal) 730, that the lower court understood and applied the principles of burden and standard of proof correctly. That standard, according to the respondent, relying on Rep v Sinambale [1966-68] 4 MLR 191, Rep v Saulo [1966-68] 4 MLR 202, Rep v Banda [1969-70] 5 MLR 96 and Sirdar v Rep [1969-70] 5 MLR 212, attains where the only possibility in favour of the accused is remote and improbable. The respondent relied on this statement in Rep v Pemba [1987-89] 12 MLR 345: The prosecution does not have to cross every “t” and dot every “i” in order to prove its case beyond reasonable doubt 6|Page On circumstantial evidence, the respondent set the court below to look no further than this cominentary from Blackstone’s Criminal Practice 2004 edition: Circumstantial evidence is to be contrasted with direct evidence. Direct evidence is evidence of facts in issue. In the case of testimonial evidence, it is evidence about facts in issue of which the witness claims to have personal knowledge, for example, ‘I saw the appellant strike the victim’. Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred. It does not necessarily follow that the weight to be attached to evidence will be less than that to be attached direct evidence. For example, the tribunal of facts is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which fead to the same conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility. The respondent, therefore, submitted that in the lower court there was and lower court properly considered direct and circumstantial evidence. The lower court, therefore, according to the respondent, properly evaluated the evidence on which it convicted the appellants. The respondent submitted that, on the offence of abuse of office, the lower court applied itself property to the facts and the law, The respondent submitted that the offence in section 121 of the Penal Code derived from the common law misdemeanor of misbehavior in public office. In State v Bola [2005] FJHC 230 the Fiji High Court attributed the crime to the common law offence of misconduct in public office. The respondent cited R v Llewellyn-Jones (1967) 51 CR. App R. 4 and R. v Dytham [1979] 3 AI ER 641, 643 where the House of Lords suggested that the offence is not committed unless accompanied by a corrupt mind. The respondent, on the strength of State v Vakaloloma [1993} FIHC 93, submitted that every abuse of office is an arbitrary act. The respondent also relied on the elucidation of an arbitrary act in State y Bola [2005] FIHC 230; Kubunavaua v The State [Criminal Case No 004 of 1992: “an autocratic act, a despotic act, an act not guided by the normal procedures but by the whims and fancies of the doer. All these Fiji High Court decisions entered the Malawi Common law vide Mfpasu v Republic ((2008) Criminal Appeal No 26) (MHC) (Bt) (unreported). The respondent submitted that the appellants were, therefore, guilty of the crime. All the documentation was false or fraudulent. The respondent argued that, under the section, the benefit need not inure to the public officer. It suffices if the benefit inures to another — other than the public officer. The Kenyan benefited from a passport wrongly issued. They submitted that the Corrupt Practices Act defines the word “advantage:” “Advantage” means any benefit, service, enjoyment or gratification, whether direct or indirect, and includes a payment, whether in cash or in any other kind or payment, or any rebate, deduction, concession or loan, and any condition or circumstance that puts one person or class of person in a favourable position over another The offence of neglect of duty, an offence under section 121 of the Penal Code, the respondent submitted, that, given that all the documentation was a charade, the appellants, in not checking, as required by the Immigration Act, willfully neglected to perform duties as public officers. The respondents conceded, as was stated in Republic v Kadzuwa (1964-66) 4 ALR (Mal) 406, that not every act of negligence by a public 7[Page servant redounds in criminal proceedings. They submitted that, in the circumstances of this case, the omission could not be anything but willful. The decision of the Court below The court below, dismissing the appeal thought that there was little in the appeal. The court below, acknowledging all cases cited on circumstantial evidence, itself relied on this statement in R v Taylor (1928) 21 Cr. App. r20: Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a proposition with the accuracy of mathematics. Jt is no derogation of evidence to say that it is circumstantial. The court below concluded that there was an uninterrupted connection in the circumstantial evidence the state proffered on which the court below could find both appellants guilty of the remaining offences. Concerning the first appellant, the court thought that the appellant’s evidence that she was only working on instructions from her supervisor, she only dealing with cash transactions, came to be because the first appellant’s supervisor is now deceased. The lower court, in relation to the first offence, concluded that the appellant’s actions benefited another. The lower Court was, therefore, in no doubt that the appellants were guilty of the offence under section 25B (1) of Corrupt Practices Act. The lower court dismissed the appeal. The appeal to this Court The appellants, therefore, appealed to this Court challenging the judgment of the court below for the following reasons. The learned magistrate unlawfully convicted the appellants on both counts. The trial magistrate found a case to answer against both, but not each of the appellants. The lower court wrongly continued with the trial when the appellants should have been acquitted at the close of the prosecution case. The lower court misdirected itself on the legal burden of proof on the offence of misuse of public office and neglect of official duties. The lower court erred in law in evaluating all the evidence adduced before it. ‘The charges against the appellants lacked sufficient information in order to allow the appellants to properly defend themselves against the allegations leveled against them. The court below erred in law in failing to make proper directions on the constitutionally protected right to remain silent, circumstantial evidence and evidence exonerating the appellants. The lower court below erred in law in failing to make specific findings on the evidence of the appellants which should have exonerated the appellants on a balance of probabilities. The lower court erred in law in failing to regard the fact of withholding of material evidence. The lower court erred in law in holding that the prosecution had proven its case against the appellants beyond reasonable doubt. The lower court erred in law in convicting the appellants without making proper assessment of the evidence before it. The lower court erred in law in convicting the appellants without directing itself properly to the law on circumstantial evidence. The lower court erred in law in convicting the appellants without directing itself properly to the law on circumstantial evidence; the lower court erred in law in convicting the appellants on a charge of misuse of public office contrary to section 25B (1) of the Corrupt Practices Act without a proper consideration of the law and facts; the lower court erred in law in convicting the appellants on a charge of Neglect of Office contrary to section 121 of the penal code without 4 proper consideration of the law and facts; the learned magistrate erred in not making a specific finding on the evidence of the appellants which should have exonerated the appellants on a balance of probabilities; and that the findings of guilt on the two charges by the magistrate were against the weight of the evidence. 8|Page Relief sought from the court were: that all the convictions be reversed and quashed; and that the sentences imposed by the lower court be set aside. The appellants’’ submissions in this Court The appellants, this being an appeal from the decision of the court below from an appeal in a lower court, subinit first that the appeal is competent under section 11 {2) of the Supreme Court of Appeal Act. It is a question of law whether a finding of fact is supported by evidence (Hayles v Republic [2002-2003] MLR 68 (MSCA); Commercial Bank of Malawi v Mhango [2002-2003] MLR (MSCA) 43; Chisenga v Republic [1993] 16 (1) MLR 52 (MSCA); Scraw v Republic (1979) Criminal Appeal No 17 (MSCA) (unreported), Banda v Republic (1988) Criminal Appeal No 24 (MSCA) (unreported). An appeal lies, as a matter of law, where the trial court wrongfully excludes or includes evidence (Magmoed v Janse van Rensburg and others (1993 (1) SACR 67 (A)). The appellants concede that, with primary facts, vide Pandirker vy Republic (1973-74) 7 ALR (Mal) 328, this Court considers whether there is evidence for the facts found and whether the conclusion on those facts was reasonable. The appellants submit that there was no such evidence. The appellants, if there was evidence to support the facts, argue that the conclusions on the accepted facts were unreasonable, The appellants submit that the court below excluded certain evidence and never considered evidence that it admitted. The appellants, therefore, submit, on Director of Public Prosecutions, Gauteng v Pristorius (96/2015 [2015] ZASCA 204, that it is as fatal to exclude evidence as not to consider evidence properly admitted, The appellants cite R vy B (G) (1990) 56 CCC Gd) 181 (SCC); (1990) 2 SCR 57. The Supreme Court of Canada held that on appeal to it, where itself it was the third tier, and, therefore, could only consider an appeal on the grounds of law, there cannot be an inquiry whether the trial court had reasonable grounds for its conclusion. The Supreme Court of Appeal in Canada held that the only competent consideration is whether the court directed itself to the relevant evidence bearing on the relevant issues. In Harper v R [1982] 1 SCR 2, 65 CCC (2d) 193, 133 DLR (3d) 546 40 NR 255, The Supreme Court of Canada held that it could intervene where the judgment of the trial court shows “a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence.” The appellants also rely on this statement in R v Roman (1987), 38 CCC (3d) 385. 66 Nfld. & PEIR 319, 204 APR 319: ‘There is a distinction between reassessment by an appeal court of evidence for the purpose of weighing its credibility to determine culpability on the one hand, on the other, reviewing the record to ascertain if there has been an absence of appreciation of relevant evidence. The former requires addressing questions of fact which is placed outside the purview of an appellate tribunal ... the latter enquiry is one of law because if the proceedings indicate a lack of appreciation of relevant evidence, it becomes a reviewable question of law as to whether this lack precluded the trial judge from effectively interpreting and applying the law.’ On the substantive appeal, the first point for the appellants is that the trial court should not have entered a verdict on the second count; it should only have done so if it had not found the appellants’ guilty on the more serious count. The Appellants rely on Harris [1969] 1 WLR 745 and this passage from BSCP D178: “A... problem arises where counts are not strict alternatives, in the sense that a conviction for both would be unlawful, but they arise out of the cases for the judge in summing-up to 9|Page tell the jury to consider first the more serious count and only to go on to consider the lesser one if they are not satisfied as to the former.” The appellants further submit that there was no case to answer against each of the appellants — there was a prima facie case against both of them — at the close of the prosecution case. The appellants relying on Ry, Raphael (1923-1961) 1 ALR (Mal) 1, 377 (H. C.); Hermes v. R (1923-61) 1 ALR (Mal), 985 (H. C.); Tarmahomed vy. R (No.2) (1964-66) 3 ALR (Mal) 457 (H. C.)) argue that there was a duty on the lower court to determine if there was a case to answer. The appellants, on the strength of (Make v The Republic (1968-70) 5 ALR (Mal) 260), submit that, where there is no case to answer, the court must acquit. On appeal, based on (Harold v. R (1923-61) 1 ALR (MAL) 538 (H. C.}, the conviction would be quashed. The appellants submit that there is an inherent danger, if the court does not consider the question, that there would be the conviction through self-incrimination. They rely on this passage BSCP at D24, 22: “has been deprived not merely of the chance of an acquittal that was fairly open to him but of the absolute certainty of an acquittal on the judge’s direction. Therefore, there was a miscarriage of justice at the Crown Court and the conviction should be quashed.” Overall, on this aspect the appellants, based on Bellman [1989] AC 836, urge that the prosecution failed to show who committed the offences. In Bellman [1989] AC 836 the court said: , “It, of course, goes without saying that if the evidence shows that one of two accused must have committed a crime but it is impossible to go further and say which one of them committed it, both must be acquitted.” The appellants, on the strength of R v Smith (1999) Cr App R 238, submit that the conviction, where there is an error on the consideration of no case to answer, can be quashed, even if the accused admits guilt in cross-examination. The appellants, therefore, submit that, the passport officer and the deputy, having not authorised, the error could have been by either. The Prosecution, they submit, failed to prove which one, between the appellants, committed the crime. Moreover, the appellants submit, the file used to process the passport, not having been tendered, it was difficult to ascertain if it was not the deputy who authorised. The state, they submit, never, at the close of the prosecution introduced evidence of the register to ascertain who did the data entry, image capturing and lamination authorization. There was, it is submitted insufficient evidence to show who, between the appellants, committed the crime. A conviction, they submit, is possible, if there was joint enterprise — vide R v Bellman. The appellants submit that there was no evidence of joint enterprise. There was, therefore, no case to answer against both appellants. They should, therefore, have been acquitted at the close of the prosecution case and must be so acquitted on appeal. Further, the appellants contend that the fower court and the Court below never understood the legal standard of proof. The burden of proof, citing section 187 (1) of the Criminal Procedure and Evidence Code, they submit, is on the prosecution to prove guilt. The standard, they submit, is as set in Woolmington v Director of Public Prosecutions ({1935] AC 420) as explained in Republic v Gwazantini (2003) Criminal Case No 208 (MHC) (Bt) (unreported). Where there is reasonable doubt, the appellants submit, citing Mputahelo vy Republic (1999) Criminal Appeal Case No 28 (MHC) (Bt) (unreported), that doubt must resolve in favour of the accused person. More importantly, they submit, depending on Republic v Msosa ({1973-74]7 MLR), that, even if the prosecution proved all elements of the offence, the court must look at the defence and consider whether it could be reasonably true with the consequence that if the defence is reasonably true, the case has not been proved beyond reasonable doubt, The appellants submit that, on the evidence before the lower court and reviewed by the court below, doubt, reasonable doubt, arose which should have resulted in acquittal, 10; Page On this, first, the appellants submit, that this Court considered sections 25B (3) and (4) of the Corrupt Practices Act in Attorney General vy Jumbe and another ((2005) Constitutional Appeal Case No 29 (MSCA) (unreported)). There, they submit, this Court explained that section 25B(1) of the Corrupt Practices Act concerns public officers who use, misuse or abuse the public office, position, status or authority for personal advantage or advantage of another to obtain, directly or indirectly, for himself or another person any advantage, wealth or property, profit or business interest. This Court, the appellants suggest, thought that the section presupposes that the public officer knew of the statutory requirements and nevertheless, was bent on acquiring a benefit for oneself or another. They accept Ndalahoma v Republic (2008) Criminal Appeal No 2 (MHC) (Bt) (unreported) where the court below reiterated that it is not enough to show that a public officer abused the office. It must also be shown that the public officer intended to and the action benefitted the public officer or the other. The appellants, therefore, submit that the prosecution failed to prove whether the appellants or another benefitted. The respondent's submission in this Court The first point submitted for the respondent concerns the appellants’ contention that the lower court could not have convicted the appellants of two offences. The respondent, based on section 151 (1) of the Criminal Procedure and Evidence Code, contends that objections to joinder or misjoinder of the offences should have been made immediately after the charge was read and not later. The respondent argue, based on Mwamba v Republic [1990] 13 MLR 283, that duplicity does not affect conviction unless it results in injustice or prejudice. Equally, on appeal, a court, the respondent submits, based on Britto v R (1961-63) ALR (Mal) 511, will not interfere with a conviction on grounds of defects in the charges where there has been no prejudice or miscarriage of justice. The respondent further submits, citing Zulu v Republic [1999] MLR 496, that section 5 of the Criminal Procedure and Evidence Code covers the matter, The respondent also cites Shyam Sunder Rout v State of Orissa (1991 CriLJ 1995 where, the court, acknowledging charges inform the suspects of what are offences and their particulars are, the accused cannot, where a charge conveys necessary information, escape conviction or have a verdict overturned merely because of defects in the charge. The respondent, based on Republic vy Kambaiame ([2002-2003] MLR 395, argues that such omission cures by ordering concurrent sentences. The respondent submits that, on the facts, the fower court properly found, at the close of the prosecution case, that there was a case for the appellants to answer. It was not, therefore, necessary, the respondent states, that a prima facie case should have been found specifically for each offender in respect of each offence. The respondent relied on this statement in Republic v Cheuka ...: The law is settled that a ruling of a prima facie case indicates that grounds for presuming that the accused has committed the offence have been raised. Although a prima facie case is regarded as one where a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered in defense, it cannot be one and ought not to be viewed as one which might remotely be thought sufficient to sustain a conviction (see Republic v Dzaipa Revision Case No. 6 of 1997 (unreported); DPP v Chimphonda ‘7 MLR 94 and Chidzero v Republic CR. App. No. 111 of 1976 (unreported). In a ruling of a prima facie case under Section 254 of the Criminal Procedure and Evidence Code a court does not consider whether if compelled to do so, would at that stage convict or acquit but whether the evidence is such that a reasonable tribunal might convict. A ruling of a case to answer unlike one of no case to answer, does not contain a detailed analysis of the evidence thus far and does not include 11|Page reasons for so ruling. In the present case therefore when I made the ruling that the three accused persons had a case to answer I did not mean that I had at that point considered whether the State had proved the charges beyond reasonable doubt. The respondent contends that the appellants’ submissions are tantamount to requiring, at the close of the prosecution case, the court to be satisfied beyond reasonable doubt. On the contrary, relying on Republic v Dzaipa (1977) Revision Case No. 6) (MHC) (Bt) (unreported), where Practice Note by Lord Chief Justice Parker ([1962] 1 AER 448) was cited, the respondent argues that, at the close of the prosecution case, the court does not seek proof beyond reasonable doubt. Rather the court must be satisfied that, on the evidence and facts, the situation is such that a reasonable court would convict. The respondent, however, because of the case of Director of Public Prosecutions vy Chimphonda [1973 — 74] 7 MLR 94, concedes that, on appeal, the court would set aside the conviction if either there was misdirection on a threshold test, there is no evidence or the prosecution evidence has been grossly discredited. The respondent, therefore, submits that there was, on the whole, evidence on which the lower court couid find a prima facie case against the appellants. Moreover, the respondent argues that the lower court never misdirected itself on the burden of proof for the offences of misuse of public office and neglect of official duties. The appellants contend that the evidence in the lower court created doubt which should have been resolved in the appellants’ favour. The respondent, relying on Republic v Suleman ((2004] MLR 283), concede that the legal burden of proof lay on them to prove the case against the appellants beyond reasonable doubt. They cite Woolmington v Director of Public Prosecutions ([(1935] AC 462). The respondent submit that it must be, based on Republic v Kasambara & Others (2013) Criminal Case No. 65 (MHC) (LD (enreported), that, on the evidence, the essential elements of the offence have been proved by the state beyond reasonable doubt. Moreover, the respondent urges, on this case, despite that the state should prove the case against the accused person beyond reasonable doubt, where there is a prima facie case there is an evidential burden on the accused person to introduce evidence that engenders reasonable doubt on conviction of an accused person. The respondent submits that on the evidence, the respondent established beyond reasonable doubt the elements of the offence under Section 25B (1) of the Corrupt Practices Act. Section 25B (1) of the Corrupt Practices Act reads: Any public officer who uses, misuses or abuses his public office for his personal advantage or for the advantage of another person or to obtain directly or indirectly for himself or for another person, any advantage, wealth, property, profit or business interest shall be guilty of an offence. The respondent submits that it was incumbent on them to prove that the accused person is a public officer as defined by section 3 of the Corrupt Practices Act; that the accused person used, misused or abused his/her public office or position, status or authority; that in so doing he did the impugned act for the advantage of himself/herself or another, The respondent submits, based on Mpasu v Republic ((2008) Criminal Appeal No 26) (MHC) (Bt) (unreported), that the offence under section 23B (1) of the Corrupt Practices Act envisages arbitrariness. Mpasu v Republic was a case where the court below approved this statement by the Supreme Court of Fiji in State v Vakaroma (1993) FIHC 93, State v Bola ((2005] FIHC 230). The court below then said: I wish however to point out that the arbitrary of the offending act(s) is a question of fact and inference and is undoubtedly Hnked with abuse of 12} Pape authority. As was said in the case State v Vakaloma by the Fiji High Court that it is difficult to envisage an act which is undoubtedly an abuse of authority and yet not an arbitrary act according to the State v Bola an arbitrary act has been defined as an autocratic act, a despotic act, an unreasonable act, an act not guided by the normal procedures but the whims and fancies of the accused, See also the dictum of Jesuratram J, in State v Humphrey Kamsoon Chang. The respondent further submits that it, based on Attorney General v Jumbe and another ((2005) Constitutional Appeal No 29 (MSCA) (unreported), suffices, even where accused person had no advantage, that another had the advantage. The respondent, therefore, argues that the appellants would nevertheless be guilty of the offence when, by issuing the passport, a Kenyan National, not entitled to a passport, benefited. The respondent, therefore, submits that the court below, complying with Pryce v Republic ([1971-72] 6 ALR (Mal) 65), correctly concluded that the elements of the offence were proved beyond reasonable doubt. Equally, the respondent argues, in relation to the offence under section 121 of the Penal Code, that the lower court and the court below properly directed themselves to the law and principles governing the offence. The respondent argues that it was on it to establish he/she was employed in the public service; being so employed the appellant willfully neglected to perform that which he/she was bound to perform either by common law or by Act; the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter. The appellants, in their submissions, intimated that the state failed to state the statute or common law source of duty inherent in the offence under the section. The respondent submits that the statutory duty is inherent in the Malawi Citizenship Act for which the appellants were its implementers. The respondent contests the appellant’s assertion that the lower court erred in law in failing to evaluate all evidence in the lower court. The respondent submits that both judgments of the court below and the lower court were comprehensive, well-reasoned and nothing but impeccable. The respondent concedes, based on Sv Van der Meyden (1999 (1) SACR 447 (W)), that the court must, in the judgment, account for all evidence. In S v Van der Meyden the court said: What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit} must account for ail the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored. The respondent contends that proof par excellence, based on Sv Singh (1975 (1) SA227 (N), is the judgment itself. The respondent contends that the High Court, on pages 5 and 6 of its judgment, properly applied itself to the evidence. The respondent submits that the ground in which the appellants contend that the court below erred in failing to make proper directions in law regarding the constitutionally protected right to remain silent, circumstantial evidence and evidence exonerating the appellants masquerades that the ground of appeal is actually a question of fact. The respondent, therefore, contend, relying on Chinthamba v Republic ((1992] 15 MLR 96), a decision of this court, that this court is, because of section 11 (2) of the Supreme Court of Appeal Act, incompetent. Finally the respondent contends, contrary to what the appellants contend, that there was evidence in the court below which, as it must be, made it unnecessary to call other or additional witnesses on the 13|Page material facts. Consequently, while conceding, based on the decision of this court in Nankondwa v Republic ((1966-68) 4 ALR (Mal) 388) that failure to call the material and available witness maybe fatal to a conviction, it is unnecessary, based on Mulewa v Republic ({(1997] 2 MLR 60), a decision of the court below, unnecessary in this case to call witnesses, albeit material on some aspects of the evidence. Reasoning Section 12 of the Supreme Court of Appeal Act conscribes and prescribes the powers of this Court on an appeal from the court below from the latter’s original or appellate jurisdiction. This Court shall allow the appeal if the judgment should be set aside because the judgment appealed from cannot be supported by the evidence; because the judgment appealed from proceeded on a wrong decision of any question of law; and because there was a miscarriage of justice. These three aspects are disjunctive and cumulative. This court can allow the appeal on one aspect, on a combination of any two or on all them. Consequently, the proviso to the section states that, even if on any of the grounds the appeal should be allowed, the court may not allow the appeal, if nevertheless, substantive justice was achieved and there was no miscarriage of justice. Where this Court allows an appeal against conviction, the court, in relation to a conviction can, according to section 12 (2) either enter an acquittal or order a retrial. The court, in relation to a sentence can, under section quash the sentence of the court below and pass another sentence or make any order. Section 13 (1) of the Supreme Court provides that, if it appears to the court that an appellant, though not properly convicted on some count of the information, summons or charge, has been properly convicted on some other count of the information, summons or charge, the court may either confirm the sentence passed on the appellant at the trial or pass such sentence in substitution thereof as it thinks proper and as may be warranted in law on the count of the information, summons or charge on which the count considers that the appellant has been properly convicted. Under section 13 (2) where an appellant has been convicted of an offence and the trial court could on the information, summons or charge have found him guilty of some other offence, and on the finding of the trial court it appears to the court that the trial court must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the judgment of the trial court a judgment of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trials may be warranted in law for that other offence, not being a sentence of greater severity. Was there evidence to support the verdict? The first consideration is whether, because of section 12 (1) (a) of the Supreme Court of Appeal Act, the judgment of the court below is not supported by the evidence and, therefore, this appeal should be allowed. Where there is no evidence to support the Conviction, this Court will allow the appeal. Conversely, where there is evidence to support the conviction, this Court will dismiss the appeal. Section 9 of the Constitution enjoins this Court, like any other court — the judiciary — to ascertain the facts, from the evidence. Although section 12 of the Supreme Court of Appeal Act never distinguish between appeals where the court below exercised its original or appellate jurisdiction, in this Court, both appeals are because of section 12 1 (a) and (b) by way of rehearing. Where, however, the appeal is from the decision of the court below from an appeal from the lower court, this Court, as long as there is evidence for a finding of fact, will not interfere with a finding of fact of the lower court and the determination, based on such evidence, of the court below, It is a question of law — not fact - whether there was evidence to support a conviction. This is explicit and implicit in section 12 (1) (a) of the Supreme Court of Appeal Act and confirmed in pronouncements in this Court, the court below, comparative decisions outside the jurisdiction and 14] Page authoritative works. This is because, a fact can found on no evidence or evidence, otherwise relevant, which was wrongly excluded or admitted. Relevance and admissibility are questions of law and oversight of legal principles is appealable. An appeal based on absence of evidence is, therefore, a competent legal question and a valid ground of appeal Relevant and admissible evidence present, an appellate court should not consider the reasonableness of the finding of fact by a tribunal that is a trier of facts. Facts either happened or never happened. Facts are brute whether founded on direct or indirect evidence. Where findings of fact turn on credibility — with its virtues, vices and vicissitudes — of witnesses, it is either or not the witness is telling the truth on the material evidence. A fortiori, the alternate finding is resolved there and then. Consequently, as atnong many tiers of appeal, the result is one or the other, Consequently, unless there are compelling reasons, like inconsistent evidence from the witness or elsewhere, the law only allows a second — not more - consideration of findings of fact. There is, therefore, only one appeal against findings of fact. The finality of findings of fact must be distinguished from a subsequent legal consideration on facts — the consideration whether the facts ~ as proved by the evidence - support the conviction. This Court has to consider whether on the accepted facts, the overall guilt ofan accused has been proved beyond reasonable doubt. The burden of proof is on the State to prove, on the facts, the offence and author -- who happens to be the accused — of the crime charged. The evidence is important to the extent that it establishes facts on which the accused person is guilty of the crime. The appellant, therefore, submits that on the evidence and the facts, there was no case to answer at the close of the prosecution case or the facts subsequent never established the appellants’ guilt beyond reasonable doubt. From appellants’ submissions, confirmed by the record of the court below and the lower court, there was evidence. To appreciate this, one must relate the evidence to the offences which the appellants stood charged. The starting point must, therefore, be considering what they were not convicted for. There was, without getting into the detail of the evidence as previously done, all to show a broader criminality probably involving corruption, fraud, forgery in issuing this passport. The prosecution never charged for this general criminality. The only way the state captured the general criminality was by charging the appellants with conspiracy under section 35 read with section 25B (1) of the Corrupt Practices Act. Having charged the appellants with the substantive crime under section 25B (1) of the Corrupt Practices Act, no thought was given to a decision of this Court. The prosecution could not have been allowed to combine a substantive offence and a conspiracy to commit the same crime. The appellants were, anyway, acquitted of the conspiracy charge. The appellants were convicted of misuse of public office and neglect of official duties. The first point taken for the appellants is that there was no prima facie case against them at the close of the prosecution case on any of the counts on which they were convicted. The argument, on the record, applies, at this stage of appeal, can only apply to the first appellant. It is unclear why the second appellant was convicted of the two counts. The prosecution, on the charge or summons in this matter, never charged the second appellant of the second, third and fourth counts. The record of appeal never incorporated the charge. The Supreme Court of Appeal Rules do not specifically, as they require under Order 4, rule 9 (1) (b), for the record of appeal in an appeal from the court below in its original jurisdiction, require inclusion of the charge or information in the record of appeal from the appellate jurisdiction of the court below. Order 4, rule 10 (1) (b) of the Supreme Court of Appeal Rules requires a record of appeal in the latter to contain the record of proceedings from the lower court as submitted to the High Court. Section 352 of the Criminal Procedure and Evidence Code requires the lower court to furnish to the High Court with “a copy of the proceedings.” Moreover, under Order 4, rule 8 (1) of 15|Page the Supreme Court of Appeal Rules, the Registrar of the Court below is charged with the responsibility of preparing the record of appeal and filing in this Court, The Registrar of the Court below, besides, is to collect any original information (charge sheet), inquisition, plea or other documents kept by him or forming part of the record below. This must, as it must be, include the charge/summons the basis of the plea and proceedings. The Registrar of this Court should have ensured that the Registrar of the court below sent a replete record of appeal — with the charge/summons. The charge on the record, however, is in the ori ginal proceedings. It is the only charge on the record ~ dated 13 May 2011 - has four counts. It is necessary to reproduce the counts, COUNT } STATEMENT OF OFFENCE Conspiracy to commit a felony contrary to section 35 as read with section 25B (1) of the Corrupt Practices Act. PARTICULARS OF OFFENCE Joyce Zione Gomani on or about the 15" day of March 2005 at the Lilongwe Regional Immigration Office in the city of Lilongwe being a Public officer employed as Immigration Officer conspired together with Ernest Muza to commit a felony namely: to misuse their public offices by issuing a Malawi Passport number MW153935 without following procedures. COUNT 2 STATEMENT OF OFFENCE Misuse of public office contrary to section 25B (1) of the Corrupt Practices Act. PARTICULARS OF OFFENCE Joyce Zione Gomani on or about the 15" day of March 2005 at the Lilongwe Regional Immigration Office in the city of Lilongwe being a person employed by the Immigration department abused her office or her authority as a Public officer by obtaining cash in payment of a passport without the necessary authorization of the Passport Officer. IN THE ALTERNATIVE TO COUNT 2 COUNT 3 STATEMENT OF OFFENCE Abuse of office contrary to section 95 of the Penal Code PARTICULARS OF OFFENCE Joyce Zione Gomani on or about the 15" day of March 2005 at the Lilongwe Regional Immigration Office in the city of Lilongwe being a person employed in the public service as Immigration Officer in abuse of the authority of her office did an arbitrary act, namely obtaining cash in payment of a Malawi Passport number MW153935 without the necessary authorization of the Passport Officer, COUNT 4 STATEMENT OF OFFENCE i6} Page Neglect of official duties contrary to section 121 of the Penal Code. PARTICULARS OF OFFENCE Joyce Zione Gomani on or about the 15" day of March 2005 at the Lilon ewe Regional Immigration Office in the city of Lilongwe being a person employed in the public service as Immigration Officer willfully neglected to perform her duties in that she proceeded to accept payment of an application ofa Passport without the authority of the Passport Officer. Only the first count ~ conspiracy to commit a felony — covers the second appellant. The rest of the counts concern the first appellant. They do not concern the second appellant. The lower court at the end of the trial found that there was no conspiracy. It acquitted the first and second appellant of the conspiracy charge. The lower court, however, convicted the second appellant, together with the first appellant, for the rest of the offences. Neither the lower court nor the court below — with Counsel present — detected the matter. The lower court could not convict the second appellant on counts that were not against him. The summons/charge was first executed against the second appellant on 6 May, 2011 in Ntcheu where he was then posted. The second appeilant pleaded not guilty to the charges on 6 May, 2011. The Ntcheu Magistrate Court ordered that the second appellant be tried with the first appellant in Lilongwe, Consequently, when the court first sat in Lilongwe on 13 May, 2011, the record shows that plea was only taken against the first appellant. On that occasion, the only amendments were typographical, Plea was taken based on the amended charge. The record does not show any amendment to the charge sheet incorporating the second, third and fourth counts. Trial, therefore, proceeded on the charge as on 13 May, 2011, The only count being that of conspiracy to commit a felony, the lower court having found that there was no conspiracy, the second appellant was acquitted of the only count against him. It is unnecessary, therefore, concerning the second appellant, to consider whether there was a prima facie case at the close of the prosecution case. The State never appealed against the acquittal. Consequently, the convictions and sentences the lower court passed on the second appellant on the second and fourth counts are otiose. The lower court convicted and the court below confirmed two counts against the first appellant. At the close of the prosecution case the lower court found a case to answer on all counts except the alternate count to the second count. At the close of the prosecution case, there was a prima facie case against the first appellant on the three counts. There was no doubt, on the evidence, at the close of the prosecution case, that the first appellant was in public office — an immigration officer. Among her duties was her role in ensuring that passports were issued to Malawi citizens - properly. Of course, the first appellant was responsible for receiving cash, The State, however, established, at the close of the prosecution case, that all officers in the cash office were trained, professional and experienced immigration officers. Consequently, they ensured that all information on the form and file was accurate and immaculate. The information and the documentation for this passport was false and inaccurate. The actus reus for the offence of misuse of public office under section 25B (1) of the Corrupt Practices is encompassing. The public office need not necessarily ‘abuse’ the office. It suffices if the public officer ‘uses’ or ‘misuses’ the public office, In abuse, the officer, uses the public office for wrong purposes. Abuse comports excessive or oppressive use of public office. Given that the passport here was improperly issued to a Kenyan, at the close of the prosecution case, the State had established that the power was used for wrong purposes ~- there was abuse. Use, however, comports employment and deployment of public 17|Page office with or without purpose. Use is neutral. If use tilts with purpose, it will be abuse where the purpose is wrong or improper. Use can be for beneficent purposes. In relation to an offence under section 25B (1) of the Corrupt Practices Act, as we see shortly, a beneficent use that rewards another is abuse of office. There can be little doubt that at the close of the prosecution case the State established that the first appellant had used the office to issue the passport. The term “misuse” refers to improper use of a public office, using the public office unsuitably or in a way in which the public office was not intended. Misuse, if accompanied by purpose boarders on abuse. Not all misuses, however, are abuses. If, as was the case, the State at the close of the prosecution case, showed that the passport issued on wrong and false information, there was misuse of the public office. It is part of the acrus reus of section 25B (1) of the Corrupt Practices Act that the conduct must benefit another. The benefit can be to the public officer or another person. The word ‘or’ is disjunctive rather than conjunctive. The crime is committed, without any benefit to the public officer, as long as another benefits. There is no crime if neither benefits; there is a crime when both benefit; there is a crime when either benefits. There is a benefit in circumstances in section 3 of the Corrupt Practices Act. At the close of the prosecution case the State proved that the first appellant’s use, abuse or misuse of a public office benefitted a Kenyan national with a Malawian passport. Similarly, there was a Prima facie case against the first appellant on the conspiracy charge. Conspiracy, generally, concerning crime, occurs when more than one person agree to commit a crime. For simple crimes, consisting of a single act, a conspiracy is established when more than one person agree to commit a crime. For, what for a lack of a better term, is a transactional crime, conspiracy occurs where, concerning the total crime, more than one person agree to an aspect of a transaction. The conspiracy in this matter falls in the latter category. The issue of the passport involved different stages and individuals in a transaction. At the close of the prosecution case, it was apparent that a passport could not be issued without the last critical stages, involving the first and the second appellant, The first appellant, as a cashier, had to issue a receipt after verifying as a professional passport officer, that the information and documentation were accurate. Equally, the second appellant had to verify the information and documentation before transmitting the file to the passport officer or the deputy. The prosecution feel, at the close of the prosecution case, was that the passport could not issue in its defective form unless there was a wider conspiracy or a conspiracy between the two critical stages and actors to issue of passport. But the close of the prosecution case, therefore, this theory and the evidence were incontrovertible. Moreover, there was a prima facie case concerning the offense of neglect of public duties. The word “neglect” in section 121 of the Penal Code should be given its ordinary meaning. This is important only to distinguish it from legal criminal and civil negligence. Legal negligence, criminal or civil, is a form ~ of higher — of neglect. The neglect envisaged in section 121 of the Penal Code connotes failure to act at all or faifure to act in a particular or prescribed manner or purpose. Such neglect need not rise to the level of legal, civil or criminal negligence. It comprises of failure or an omission to act or failure to act in a particular manner. Neglect is the actus reas offense under section 121 of the Penal Code. The mens rea for the crime is willful. The word willful in section 121 of the Penal Code refers to voluntary — an act of the will. It refers to an act of the will done without external coercion or inducement. It refers to an act done with intention. The purpose or reason is irrelevant. For purpose of section 121 of the Penal Code it refers to an act done compos mentis. It refers to an act done with full mental capacity and capability. It refers to an act done consciously. At the close of the prosecution case, therefore, there was evidence that the first appellant was neither induced nor coerced to issue a receipt, after receipt of cash. 18|]Page On all the three counts, therefore, at the close of prosecution case, there was a prima facie case. Different and profound conceptions of the nature of proof to create a sufficient case for an accused person to defend oneself abound. There is, very little to add on the abundant wisdom, All these conceptions however emanate from the constitution, specifically, the right of any person to be presumed innocent unless proved guilty. The right to be presumed innocent unless proven guilty arises because any conviction involves the use of the States’ coercive power and infliction of punishment on a citizen for infringement of rubrics which, as among citizens, cannot be remedied by civil liability. Laws made under this constitutional right, properly, in my judgment, place the burden of proof on the State to justify use of its coercive power to override various rights, including a right to freedom of movement, that remain with the citizen after agreed constitutional arrangements. Consequently, the standard of proof to justify the use of the States’ coercive power cannot be any less or equal to the standard required when citizens are addressing or redressing rights between themselves. Traditionally, therefore the standard of proof has always been proof beyond reasonable doubt. Given that the state will employ or deploy its coercive power, this standard comports that a court must convict only where it is certain that the State has established the guilt of a citizen where the court is sure that it is certain that the crime was committed and that the accused is its author. This, however, is determined at the end of the trial when, unless the accused person exercises the right to remain silent, all the evidence is available to the court. The burden and standard of proof, as described is the reason without which laws made under the constitution require that an accused must not be required to defend oneself at all where the State has not, at the close of the prosecution case, established a prima facie case. Demanding that an accused person must not be called to defend oneself when there is no evidence or the state’s evidence has been grossly undermined or discredited bases on another constitutional right against self-incrimination. If the State is to deploy its coercive power against a citizen, it must, by raising a prima facie case, justify its course of action. Consequently, except in a few cases where laws made under the constitution, justify for certain crimes or offenders strict liability, the accused person cannot and should not be required to demonstrate innocence or prove ones criminal liability. It is to preserve self-incrimination that the law requires that the State must raise a prima facie case for criminal liability. The word prima facie is a Latin derivative. It means on the face of it. Consequently, the case that the State must establish at this stage is such that on the face of it the accused person must raise a defence, factual or legal, without which a court, on the evidence so far, would convict. Conceptually, it means that at this stage, if the accused raises no defence, the court would convict. The temptation, therefore, is to think that, at this stage the State must prove the case beyond reasonable doubt. This might be the ultimate result. The law, however, lays an earlier threshold — a prima facie case. The State, therefore, at this stage need not necessarily have to establish the accused person’s guilt beyond reasonable doubt. It suffices if a case is established to which the accused person must enter a defence failing which a court could, without any defence, convict. On the facts on the record, concerning the first appellant, that threshold was reached. In passing, where, as here, there are alternate counts, the trial court must, for each count, determine whether there is a prima facie case against an accused person. Where, therefore, the State fails to establish a prima facie case against an accused, the court must at the close of the prosecution case acquit on both counts. Equally, where there are more counts, the court must at the close of the prosecution case acquit the accused on cases where the State fails to establish a prima facie case, This allows the court to proceed against the accused on cases where the State has established a prima facie case. Consequently, the court should proceed to hear all the cases, including on alternate counts, if it finds that there is a prima facie case 19|Page on all counts. This leaves the court, at the end of the trial to convict only on the substantive charge, if proved, even where the alternate count is proved. Conversely, the trial court will, where the substantive count is not proved, to convict on the alternate count. In this matter the court, by hindsight, is unclear about whether it, at the close of the prosecution case, dropped the alternate count because there was no case to answer. There was an error of principle, The State, however has not appealed against the order of acquittal on a principle of law. It now remains, a prima jacie case established against the first appellant, to consider whether, on evidence and the facts as the lower court, as confirmed by the court below, proved the case against the first appellant beyond reasonable doubt. Listening to both sides, there is contestation on whether the state, from who the burden lay, proved the first appellant guilt beyond reasonable doubt. The first appellant contends that, overall, the case turned on circumstantial evidence. The first appellant, therefore, contends that the inference of guilt was impermissible because the evidence showed paps on each inference of guilt. The first appellant further contends that the inference of guilt could not be had on incomplete evidence. They contend, therefore, that without direct evidence, the circumstantial evidence never rose to proving guilt beyond reasonable doubt. The State, however, submits to the contrary. The State argues that the conviction did not, as contended, turn out on circumstantial evidence. The State, therefore, argues that, on the nature of the crimes for which the first appellant was convicted, there was direct evidence. The State, moreover, contends that if the conviction based on circumstantial evidence, it, without a break in the chain established beyond reasonable doubt the facts and evidence - uninterrupted - on which the lower court, as the court below, could found the guilt of the first appellant. 1 cannot but agree with the State. Sitting on courts of first instance and on appeal I have observed that, when it comes to conviction, circumstantial evidence is as good as, if not better, than direct evidence. A. court can receive evidence comprising of circumstances, in themselves incomplete, but so connected as, by inference, show the guilt or otherwise of an accused person. There must, however, be no disruption in the circumstances so as to leave other possible inferences that go to the innocence of an accused person. Once the circumstances, without disconnect, are established, circumstantial evidence is as potent as direct evidence. Consequently, direct and circumstantial evidence can be more implosive in a given case, In this particular case, on the evidence and facts and applicable law, there was direct evidence, The record of the lower court, as confirmed by the court below, demonstrates that at the end of the trial, the lower court held, correctly in my judgment, that there was no evidence to prove a conspiracy between the first and second appellant. The court below also found that there was no conspiracy at all. The lower court, therefore, acquitted the first appellant together with the second appellant of conspiracy, of the offence under section 35 as read with section 25B (1) of the Corrupt Practices Act. The State never appealed against this acquittal in the lower court or the court below. This appeal, therefore, concerns offences of abuse of office under section 25B (1) of the Corrupt Practices Act and neglect of duty, an offence under section 121 of the Penal Code. Concerning these offences, two threads pass through both of them. First, it is not the States’ case that the first appellant’s actions were for anything in purpose or intent unwholesome or wicked. In other words, it is not, judging for the offences framed against the appellants that the appellants’ actions were other than honest or immoral. Secondly, therefore, the States’ case is that, in the process of the course of issuing this passport, the first appellant, in not verifying certain information which could prevent the immigration office issuing a Malawi Passport to a foreign national, either used, misused or abused the 20}; Page public office to confer a benefit to the Kenyan national or neglected the public duty in the course of performing public function. These are the perspectives from which the case must be examined. The evidence to support these two charges was, in most respects, direct. There was direct prosecution evidence, confirmed by both appellants, that both of them were public officers. Equally, there was direct evidence again confirmed by the first appellant that the first appellant issued the receipt based on documentation - now shown.to be false - on which the feigned passport issued. The first appellant, herself a trained and experienced professional passport official, never checked if the docket given her was consistent with itself and signed by the passport officer or the deputy. If the first appellant had acted properly, this passport, fake, as it turned out to be, could not have issued. There can be little doubt that the passport was issued by the use and by virtue of the public office which the first appellant heard. Passports, because of the Malawi Citizenship Act, are issued to Malawian citizens. There is, therefore, a duty to ensure that a passport is issued to a Malawian citizen. Conversely, there is a duty that a passport is not issued to non-Malawian. The passport application has two sections where the applicant declares Malawian Citizenship. There is reference to section 33 (1) of the Malawi Citizenship Act which makes it an offence for any person who, for the purpose of procuring anything to be done or not to be done under this Act, makes any statement which is false in a material particular, or recklessly makes any statement which is false in a material particular. There is all, therefore, under the Act and the application forms issued under the Act, to ensure that a passport is issued to Malawian citizens and not non-Malawians. The detailed process complements these statutory tenets. The first appellant knew these requirements. It cannot be argued, as it is for the first appellant, that there was no reference to directions at common law or statute which the first appellant acted on, Without a conspiracy, as the lower court ruled, the state failed to establish that the purpose of use of the public offices the appellants was motivated to do the unlawful or improper. There was, therefore, no abuse — one of the actions constituting the crime. Failing to follow set procedures, however, suffices as misuse of public office. Where there is no abuse — as described ~ it suffices if there was use or misuse — however slight — of the public office. Degree of use only goes to sentence ~ not to conviction, Although, there was no benefit to the public officer, there was a benefit to another from the first appellant’s actions or inactions. Those actions and inactions only demonstrate that there was as well neglect of duty for a public officer, With these considerations, the first appellant’s defenses are untenable. The first appellant submits that there was no crime at al]. All that she did was perform her normal duties, namely, for the first appellant, dealing solely with cash. The spurious passport issued on her watch — performing official duties as a public officer. If she was more foreboding, urgent, exigent and diligent in following proper procedures, the impropriety would have been detected and the passport would not have issued. It is this kind of flippancy that sections 25B (1) of the Corrupt Practices Act and section 121] of the Penal Code declare criminal! and intends to arrest. Secondly, the first appellant contends that she is not Hable for the crimes because, in her office, verification was done by another officer senior to her. She only handled cash, assuming that the documents were verified by a senior officer, This evidence was in the court below together with the prosecution evidence that the first appellant, as a trained and experienced professional immigration officer, was under the Act supposed to have her own verification before issuing the receipt. It seems that every immigration officer at whatever stage of the process, to ensure that passports, whether lost, expired or new, were correctly issued, was responsible for own verification. 21}; Page The first appellant’s criticism of the judgment of the lower court and, by-extension, the Court below, is that this evidence was not considered at all. The court, the first appellant.argues, was obligated to examine aj] the evidence before it. The first appellant has not demonstrated that the court below never considered the evidence. As earlier indicated, on the point, there was evidence from the prosecution and the defence, The lower court, which has a better opportunity to assess credibility of witnesses, found as a fact that the first appeilant should nonetheless have, by herself verified, the information and the documentation. In so doing, the court was rejecting the first appellant’s evidence outright. The lower court, therefore, considered the first appellant’s evidence and was dominated by the prosecution evidence on the point. Where the court, tacitly or expressly, rejects defence evidence preferring that ofthe prosecution, the duty to consider whether the defence evidence must be reasonably true does not arise. A court, however, cannot just reject the defence evidence only because it is false. A court must ask whether the defence version is reasonably true. In this respect, this case is distinguished referred to earlier, In these cases, the defence was rejected precisely because the court considered the defence false. That the defence is false is not conclusive of the matter, A court must, nonetheless, be satisfied so that it is certain so that it is sure that the state, on who the burden of proof fies throughout, has established that a crime was committed and the accused person is its author. Any other view would shift the burden on the accused person. Moreover, the principle espoused in these cases refers to material facts or defence. They are not to apply to every aspect however peripheral or unrelated to the defence. Consequently, accepting that it is reasonably true that the first appellant only handled cash matters, the first appellant would not be absolved for the two offences for which the trial court convicted her. The prosecution theory, backed by evidence, was that every operator in the process was to be guided by their primary duty to adhere to instructions and practices under the Malawi Citizenship Act to ensure that Malawi passports issued to Malawian citizens. The lower court, confirmed by the court below, determined that it mattered less what other functions relating to issuing of a passport, there was an overarching and permeating obligation at each stage by any operator to verify information accompanying any request for issuing a passport. The first appellant could not, therefore, be heard to suggest that this primary responsibility was relegated simply because she was assigned cash functions. Of course, there is everything to say about the assertion the court below made. The court below rejected the first appellant’s evidence on this aspect suggesting that it was an afterthought because the first appellant wanted to benefit from the fact that her superior had died and, therefore, unable to testify contrary to her assertion. A witness’ testimony cannot be undermined because of the absence by death or otherwise ofa complimenting or antagonistic witness. Every witness’ evidence must be examined intrinsically and in the light of other evidence before the court. The court cannot speculate on what unavailable witnesses could have said. One point argued profusely for the appellants is that the original file from Blantyre was not tendered in court, This, it is argued, makes the conviction unsafe, It is argued for first appellant that if this file was available it was going to reveal whether the information on which the passport was issued was false. As earlier stated, the prosecution case is not about any misconduct bordering on dishonesty or fraud concerning this aspect. The prosecution showed that they were discrepancies in detail as to image holder and other aspects in the documents used to issue the passport. The States’ case is that, given the dominant responsibility of verification on any passport official when issuing the passport, which the first appellant neglected, the passport would not have issued. It was not necessary, therefore, to produce other files for this purpose. The appellants, therefore, argue that the prosecution should not have tendered a duplicate. 22|/Page The appellants, argued that where there is an original, use of a duplicate undermines the case. This, however, is a recourse to the best evidence rule. The best evidence rule is not a rule of law, it is a rule of prudence. The rule is now dead as it can be (Kilembe v Total Malawi Lid (2014) Civil Appeal No 17 (MSCA) (unreported); Blantyre Newspapers Lid v Simango (2011) Industrial Relations Court Appeal Case No 6 (MHC) (Bt) (unreported); Land Securities Pie v Westminster City Council [1993] 1 WLR 286; Masquerade Music Lid y Springsteen [2001] EWCA Civ 563; Springsteen v Masquerade Music Ltd [2001] EMLR 25; Fentouris v Mountain (No 2) [1992] 1 WLR 887; Kajala v Nobie [1982] 75 Cr App R 149; Regina v Governor of Pentonville Prison, Ex parte Osman [1990] 1 WLR 277 Tang Yiu Hong Eric v HKSAR, [2006] HICCU 92; Jet Holding Lid and others v Cooper Cameron (Singapore} Pty Ltd and another [2006] 3 SLR 769). In Springsteen v Masquarade Music Limited where Parker LJ, with whom Laws and Waller LW agreed, said: In my judgment, the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks te adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the “admissibility” of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstances of the particular case.” Once again, we find the modern approach reiterated to the effect that, generally speaking, all evidence will be admitted, with the focus being on the weight to be accorded to the evidence concerned instead”. The spirit of this development is covered by the Criminal Procedure and Evidence “Documentary Evidence” Rules made under section 245 of the Criminal Procedure and Evidence Code, Rule 3(1) of the Criminal Procedure and Evidence “Documentary Evidence” Rules provides that contents of documents may be proved either by primary or secondary evidence. Rules 3(2) (3) of the Criminal Procedure and Evidence “Documentary Evidence” Rules define primary and secondary evidence. Rule 3(4) of the Criminal Procedure and Evidence “Documentary Evidence” Rules provides that documents must be proved by primary evidence except in circumstances in rule 3(5) of the Criminal Procedure and Evidence “Documentary Evidence” Rules. Rule 3(5){e) of the Criminal Procedure and Evidence “Documentary Evidence” Rules provides that secondary evidence will be given of the contents of a document when the original is a public document within the meaning of rule 7. Rule 7(1) provides: The following documents are public documents- (a} documents forming the acts or records of the Acts- (i) the sovereign authority; (i1) official bodies and tribunals; and (111) public bodies, legislative, judiciary and executive whether of Malawi or of any other country; (b) public records kept in Malawi of private documents; (c) documents other than documents 23]Page specified in paragraph (a) or paragraph (b) which are public documents within the meaning of the Authentication of Documents Act. There can be no doubt that the documents in question were documents forming the acts or records of official bodies or public bodies and were a public record kept in Malawi. The documents, therefore, could, on conditionality’s in rule 4 of the Criminal Procedure and Evidence “Documentary Evidence” Rules: Secondary evidence of the contents of the documents referred to in rule 3 (5} (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document Is, or to his legal practitioner, such notice to produce it as prescribed by iaw, and if no notice is so prescribed, then, such notice as the court considers reasonable in the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it- (a) when the document to be proved is itselfa notice; (b) when, from the nature of the case, the adverse party must know that he will be required to produce it; (c} when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (d) when the adverse party or his legal practitioner has admitted loss of the document; and (f) when the person in possession of the document is out of reach of, or not subject to, the process of the court. it can be assumed, at this level of proceedings, that the respondent fulfilled the conditions in section 4 of the Criminal Procedure and Evidence “Documentary Evidence” Rules. The lower court record does not show any objection to production of this otherwise secondary evidence. There is no suggestion that the respondent never served the secondary elements on the appellant. Notice of the secondary evidence has not been the basis of its objection. The first appellant’s objection is that the lower court erred in law in relying on secondary evidence. Concerning that Rule 3 (1) of the Criminal Procedure and Evidence “Documentary Evidence” Rules is crystal clear: contents of a document can be proved by primary or secondary evidence. A court, therefore, will not exclude evidence based on that better evidence is available. On the other hand, given that there was, as the lower court determined, conspiracy and that dishonesty could have occurred anywhere by anybody elsewhere, production of actual files would only prove the mala fide. This, on the prosecution theory only accentuates the need and duty of any immigration officer to act in accordance with the law, practices and directions that ensure that impropriety and malpractices are avoided. Moreover, the passport was, as we know now, issued on false documents that never related to Joseph Gitawo. The State, therefore, need not have introduced further documents. The case against the first appellant was that by her actions or inactions, the passport was issued by her while holding a public office. Of course, vide the Nankondwa case, failure by the prosecution case to introduce a material and available witness undermines the conviction. The witness must, however, be one who has material evidence, In that regard, this case can be distinguished. The witness who the first appellant says should have been called is one immigration officer who, when deporting Joseph Gitawu, recognised Joseph Gitawo as someone for who a Mr Mulli had requested for help with obtaining a Malawian passport. The first appellant contends that this witness probably knew something about the spurious passport. It was unnecessary to call the witness and it was in the discretion of the prosecutor as to witnesses to call. 24|Page This witness, if called, would not have testified to the offences under consideration. The issues in the indictment was use of a public office to benefit another and neglect of public duty. If, as the appellant assumes, there was something nefarious, it is irrelevant to the question before the court which was whether the first appellant used a public office to benefit another or neglected her pubic duties, The prosecutor has a discretion as to which witness should prove what fact. If there are other witnesses or other evidence to establish a fact, it might be unnecessary to call more witnesses simply because they harbour material evidence. The prosecutor could omit a material witness who may be hostile. The prosecutor may also omit a material witness because if the witness’ evidence may require a warning on corroboration or corroboration. Even if it is assumed that the witness here was part of the crime, it just makes the witness a party to a crime. There is no obligation on the prosecution to charge all participants in the crime. The evidence against such may be very unreliable to warrant a conviction or the prosecutor may require such a witness to testify against other offenders. While, therefore, material witnesses must be called, it is never always the case. The lower court could convict the first appellant on the two counts. What the lower court could not do is to sentence the appellant on both counts which seemingly are based on the same facts. It is contended for the first appellant that the lower court could not convict the appellant on both counts, The matter, however, is covered by section 53 of the General Interpretation Act: Where an act or omission constitutes an offence under two or more written laws, the offender shall, unless a contrary intention appears, be liable to be prosecuted and punished under any of such laws, but shall not be liable to be punished twice for the same offence. In conclusion, therefore, the first appellants’ appeal cannot succeed. There was evidence in the lower court and the court below on which the conviction by the lower court and the dismissal of the appeal by the court below are faultless. The lower court and the court below overlooked no necessary principle of iaw and never erred on any of the critical legal considerations. There was no miscarriage of justice. The same is not true of the second appellant. The lower court should not have convicted the second appellant of the two offences for which there was no charge against him (Nkhoka v Republic [1991] 14 MLR 397 (SCA)). It is peremptory, under section 127 (1) of the Criminal Procedure and Evidence Code, that a charge must contain a statement of the offence of a specified offence and particulars of the offence. Concerning, the second appellant, there was, apart from the conspiracy count, no offence charged. If the charge sheet is what is found in the original file, the second appellant, if at all, stood charged of the offence of conspiracy. At the close of the prosecution case, the lower court correctly found that there was no case to answer. The lower court, again correctly, after trial, found that there was no conspiracy. It acquitted both appellants of the charge. The lower court could not convict the second appellant of counts with which he was not charged. Under section 140 (2) of the Criminal Procedure and Evidence Code, in the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other Jaw under which the accused is convicted, and the punishment to which he is sentenced. If the lower court had been more foreboding to comply with this requirement, it would have discovered that the second appellant was not charged for the second, third and fourth count. The error arises because three magistrates and two courts handled the case. The Magistrate at Ntcheu Magistrate Court obtained plea from the second appellant. It is unclear whether the second appellant pleaded to all the three counts in the charge. The Ntcheu Magistrate, however, ordered that the second appellant should be tried jointly with the first appellant in Lilongwe. On the charge sheet/summons as it is, 25] Page the order was consistent with the first count. There is no record of the proceedings in Ntcheu. When trial commences in Lilongwe, there is no record of the further plea by the second appellant. Only the first appellant pleads to the charges. Proceedings therefore continue with the first and second appellant. There is no record of an application or order of amendment. The first appellant’s plea was obtained before a second magistrate. The trial proceeded before a third judge. Consequently, the second magistrate never verified the proceedings in the Ntcheu Magistrate Court. Equally, the third magistrate never examined the prior proceedings for the first and second magistrate. The third magistrate, therefore, without reading the charge, proceeded on that the second, third and the fourth counts related to the second appellant. They never did. The lower court could not, therefore, convict the appellant of counts that he was not charged for. Convicting an appellant for an offence not charged is not a technical matter. It is not a defect of the charge that the prosecution never charged the second appeilant of the second, third and fourth counts. There is a miscarriage of justice where an accused person, unless offences on which there is conviction without a charge are minor or under statute capable of conviction without a charge, to convict an accused person on counts on which no charge is laid against an accused person. The conviction of the second appellant on these charges is unfounded and unsustainable. What has bothered me however is the power of this court under section 13 (2) of the Supreme Court of Appeal Act: Where an appellant has been convicted of an offence and the trial court could on the information, summons or charge have found him guilty of some other offence, and on the finding of the trial court it appears to the court that the trial court must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the judgment of the trial court a judgment of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. I do not think, from a close reading of this section, that it intend to cover situations, like the present, where an accused person has not actually been convicted for offences on which there are no charges. Section 13 (2) of the Supreme Court of Appeal Act refers offences for which “the trial court could ... found him guilty of some other offence.” The section refers to offences under sections 150 (1), 150 (2), 152, 153, 154, 155, 156, 157, 158 and 159 of the Criminal Procedure and Evidence Code. The offences must be cognate or minor. The offences in this case were neither minor nor cognate. 1 would, therefore, dismiss the appeals against conviction and sentence in respect of the first appellant, I allow the appeal and set aside thee second appellant’s conviction and sentence, Kamanga, JA Lagree with the judgment of his Lordship Justice Mwaungulu. | have nothing to add. Made this 13" Day of February 2019 in Court i JUSTICE OF APPEAL 26] Page 27] Page