John Mumba v The People (HPL/141/71) [1971] ZMHC 13 (5 November 1971)

I JOHN MUMBA v THE PEOPLE (1971) ZR 125 (HC) HIGH COURT SILUNGWE AJ 5TH NOVEMBER 1971 (HPL/141/71) Flynote Criminal 15law and procedure - Burglary with intent - Meaning of dwelling house. Headnote The appellant had been convicted of burglary with intent contrary to s. 271 (1) of the Penal Code. The evidence was that he had broken into a kitchen. He appealed on the ground that the kitchen did not form part 20 of the dwelling - house merely because it ■ was used for sleeping by members of the household. The record did not make it clear whether the kitchen in question was part of the main house, attached to it, or a completely different building without any communication by means of a covered or I enclosed passage. 25 Held: (i) A building used as a human dwelling, which is an essential ingredient to prove burglary (or housebreaking) in contravention of s. 271 (1) of the Penal Code, can only be construed as a "dwelling - house" in terms of the definition contained in s. 5 of 30 the Penal Code. It must be a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servant or any of them, and it is immaterial that it is from time to time uninhabited. ■ (ii) The word "residence" denotes the place where the individual 35 eats, drinks and sleeps or where his family or his servants eat drink and sleep. It is public knowledge that kitchens are invariably used by indigenous Zambians for purposes of eating, drinking and sleeping. ■ I Cases cited: 40 (1) R v Martin R & R 108. (2) R v Smith 2 Leach 1019; 2 East PC 497. (3) R v Brown 2 Leach 1018; 2 East PC 501. (4) R v Davies 2 Leach 876. I (5) Steven v The Queen (1961) R & N 743. 45 1971 ZR p126 SILUNGWE AJ (6) R v Harris (1795) 2 Leach 701. (7) R v North Curry (Inhabitants) (1825) 4 B & C 959. Legislation referred to: Penal Code, 1965 (Cap. 6), ss. 5, 271, 271 (1). I Larceny Act, 1916, s. 46 (2). 5 Criminal Procedure Code, 1965 (Cap. 7). J M Ibegbu, legal Aid Counsel, for the appellant. E L Sakala, State Advocate, for the respondent. Judgment Silungwe AJ: On 28th September, 1971, the appellant, a man 10 of 29 years, unemployed and of no fixed abode, was after trial, convicted in the Subordinate Court of the Third Class for the Kabwe District, of burglary with intent, contrary to s. 271 (1) of the Penal Code, Cap. 6. The allegation against him was that on 3rd September, 1971, he broke and entered the dwelling house of Jack Mbewe with intent to commit a 15 felony ■ therein, namely to steal. His penal award was nine months' imprisonment with hard labour with effect from 28th September, 1971. He has appealed against the said conviction and sentence. ■ ■ ■ Briefly the prosecution case was that on the 3rd September, 1971 at about 3.00 a.m. PW1, Alubina Phiri and PW2, Jack Mbewe, wife and 20 husband respectively, were sleeping in their house No. G2, Makululu Farm. Two of their daughters aged 10 years (apparently twins), and a son of 7 years were sleeping in a kitchen. It is not clear on the evidence whether this kitchen was part of the house, attached to it or a separate building. At about 3.00 a.m. during that night, Alubina heard a noise at the 25 kitchen door. On hearing it again, she went into the living room, peeped through a window and noticed that the kitchen door was wide open. She went back and aroused Jack, her husband. Jack went outside and found the kitchen door wide open. When his wife delayed in bringing a lamp, he struck a match. Both spouses then saw a man whom they did 30 not know before, run out of the kitchen. There was moonlight. Jack gave chase and as he did so he shouted "Thief! thief ! thief!" He was joined in the chase by his 25 - year - old son called Alfred Mbewe, PW3. When the chase commenced, Jack was about ten yards away from the intruder. He never lost sight of that man during the chase. When he was about three yards 35 from the man, the latter attempted to take cover at a certain house but could not succeed as there was a fence. Jack and his son caught hold of that man about half of a mile away. They took him to the police station. All these three prosecution witnesses told the lower court that that man was in fact the accused, now the appellant and they identified him before 40 that court. Jack later checked his property and found that nothing had been stolen. The appellant when arrested for the present offence by Constable Ngale, PW4, made a voluntary reply saying: ■ ■ ■ SILUNGWE AJ "There is nothing at all, I deny the charge." 1971 ZR p127 I The appellant, who called no witnesses, made a statement not on oath in which he said that on the date in question he had left his house at 12 noon and gone to a tavern with a friend. After drinking up to 10.00 p.m. they proceeded to a sundowner at Makandanyama. He stated 5 that he was completely drunk and that he could not know what was going on at the sundowner. On seeing that there was nothing that he was doing at that place, the appellant decided to return home. As he was going home, he came upon three men who troubled and beat him. He fled. They shouted thief thief. Whilst running, he found some people 10 ahead of him who also assaulted him. He then ■ ran into someone's house, where he pleaded for assistance. A male person came out with a torch and found the accused outside. When the accused caught him by the leg and pleaded for mercy, the people who had been assaulting him, came and beat him further. At his request they took him to the police station, 15 where he denied the charge. The magistrate believed the prosecution witnesses and rejected the accused's story. Before the appeal was argued, Mr Ibegbu, legal aid counsel, applied for leave to include an additional ground of appeal. The State had no objection and the court granted leave as prayed. The additional ground 20 of appeal is that the learned magistrate erred in law with regard to what constitutes a dwelling - house. The other grounds of appeal are: ■ ■ (1) That if there was circumstantial evidence tending to show that the appellant was the one who allegedly committed the offence, 25 there was nevertheless no positive evidence of identity - it was not clear that the perpetrator of the alleged offence could have been positively identified at 3.00 a.m. ■ (2) That the sentence is excessive in view of the fact that even if the appellant was the perpetrator of the alleged offence, the 30 complainant suffered no loss. ■ As regards the first ground of appeal, the learned magistrate who had the opportunity of observing the demeanour of the witnesses, came to the conclusion that the kitchen had been broken into by the accused (now the appellant). I find that there was ample evidence in this case to show that 35 the appellant was properly and correctly identified by the first three prosecution witnesses. There was moonlight and Jack said he never lost sight of the appellant. The appeal based on the first ground therefore fails. ■ I 1971 ZR p128 ■ ■ ■ I consider it appropriate to deal next with the recent ground of appeal. The learned counsel for the appellant contends that the kitchen 40 which was allegedly broken into is not a dwelling - house. In support of his contention he cites Archbold 36th Ed. para. 1792, sub-para. 2 and paras 1807 - 1808. Sub-paragraph 2 of para. 1792 gives the definition of a dwelling - house as follows: "The expression dwelling - house does not include a building although within the same curtilage with any dwelling - house and 45 occupied therewith, unless there is a communication between such ■ SILUNGWE AJ building and dwelling - house, either immediate or by means of a cover and enclosed passage leading from one to the other." The relevant portion of para. 1807 reads as follows: "To prove this allegation, the prosecutor must prove that the prisoner broke and entered 5 the dwelling - house in which the occupant was in the habit of residing; or some building between which and the dwelling - house there was a communication, either immediate, or by means of a covered and enclosed passage leading from one to the other." This is derived from the Larceny Act, 1916, s. 46 (2 ). The relevant portion of para. 1 808 says this: "Breaking 10 open a house in which no man resides, or is in the habit of residing, is no burglary, even though the owner uses it for his meals and the purpose of his business; for it is not a dwelling - house": R v Martin (1). If a porter spends a night in a warehouse for the purpose of protecting goods, R v Smith (2); or a servant spends a night in a barn in order to watch thieves 15 R v Brown (3); this does not make the warehouse or barn a dwellinghouse, in which burglary can be committed, R v Davies (4). Mr Ibegbu's submission is that it is apparent on the authorities he has cited, that the criterion of what constitutes a dwelling - house is residence as opposed to sleeping. Sleeping in itself is insufficient, because it is 20 part of residence. Residence is more embracing. He has referred to certain portions of the magistrate's judgment in connection with what amounts to a dwelling - house. He states that the learned magistrate applied the wrong test in finding that the kitchen was a dwelling - house and adds that this is so in the light of the authorities he has cited. He therefore prays 25 that ■ the magistrate's conviction be quashed. On the question of sentence, he submits that it is excessive because there was no loss occasioned to the complainant. Mr Sakala says that the State supports both the conviction and sentence. On the subject of what constitutes a dwelling - house he has referred 30 the court to s. 5 of the Penal Code, Cap. 6, which defines a dwellinghouse as follows: "In this code, unless the context otherwise requires: 'dwelling - house' includes any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, 35 and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling - house is deemed to be part of the dwelling - house if there is communication between such building or structure and dwelling - house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but 40 not otherwise." The learned State Advocate goes on to state that whether this particular structure was called a kitchen or some other name, his submission is that in terms of s. 5, Cap. 6, it was a dwelling - house and that the learned magistrate arrived at the right conclusion on this point. I I 45 have done an extensive research in connection with what amounts to a dwelling - house but I have been unable to find any Zambian authority on the specific point. The Rhodesian and Nyasaland Law Reports e.g. ■ ■ ■ ■ SILUNGWE AJ vide Steven v The Queen (5) - a Malawian High Court decision, East African Law Reports, and some other Law Reports, with the exception of some English ones, have not proved helpful. 1971 ZR p129 I ■ ■ ■ The question is what is meant by a dwelling - house? The definition contained in s. 5 of the Penal Code, which has been reproduced in full 5 above, does not seem to hit the nail on the head, in so far as this particular case under consideration is concerned. As indicated earlier on in my judgment, the lower court's case record does not make it clear as to whether the kitchen in question was part of the main house, attached to it, or a completely different building without any communication by 10 means of a covered or enclosed passage. If it was part of the main house or attached to the main house or separate from it, but there existed a communication between the two buildings, then the kitchen was obviously a dwelling - house, in terms of s. 5 of the Penal Code. If it was a separate building without any communication between the two, could it be said 15 that it was a dwelling - house? There is evidence that three children of the first two prosecution witnesses were sleeping in that particular kitchen. Mr Ibegbu submits that mere sleeping is not sufficient to make a building a dwelling - house. According to sub-para. 2 of para. 1807 Archbold 36th Ed.: "Every 20 permanent building in which a tenant or owner and his family dwell and lie is deemed a dwelling house, and burglary may be committed in it. Even a set of chambers in an Inn of Court or College is deemed a dwelling house for this purpose." Halsbury's Laws of England, 3rd Ed., Vol. 10, para. 1552 at p. 802 gives the meaning of dwelling - house. It says in 25 subpara. 3 "a house to which the owner has only moved his goods without yet having slept there is not his dwelling - house for this purpose": R v Harris (6) 701, "nor is a house which has only been used by the owner for the purpose of taking his meals, if neither he nor his family have slept there": R v Martin (1). 30 ■ From what I have said above, it would appear therefore, that sleeping is one of the essential ingredients that go to make a building a dwelling - house. Section 271 of the Penal Code talks of a "human dwelling". My construction of a "human dwelling" is that it means a "dwelling - house". Indeed the specimen indictment No. 9 at p. 142 of the Criminal Procedure 35 Code, Cap. 7, mentions a "dwelling - house" in the particulars of offence. A dwelling - house is a place in which a human being (or human beings) resides according to s. 5 of the Penal Code. It is therefore necessary to consider the next question, namely what is meant by residence. The answer can be found in The Dictionary of English Law by Earl Jowitt, 40 Vol. 2 (I - Z) 1959 Ed., at p. 1538, which ■ states this (here I will quote only the relevant portion): "Residence. This word is used in Law to denote the fact that a person dwells in a given place, or in the case of a corporation [it goes on to talk about corporation and after that continues]. In the case of a person, residence connotes the idea of home, or at least habitation 45 . . . The word denotes the place where the individual eats, drinks and sleeps or where his family or his servant eats, drinks and sleeps." R v North Curry (Inhabitants) (7). ■ ■ ■ 1971 ZR p130 I SILUNGWE AJ In what I consider to be an extreme case of R v Smith (2) a permanent building of mud and brick in which the prosecutor slept, though only during a fair, was held a sufficient dwelling - house. If the building is not proved to be a dwelling - house, the prisoner 5 must be acquitted of burglary (or housebreaking). It is public knowledge that kitchens are invariably used by indigenous Zambians for purposes of eating, drinking and sleeping. This is so regardless of whether such kitchens are part of the main dwelling house, attached thereto or entirely separated therefrom without any communication 10 between the two by means of a covered and enclosed passage leading from the one to the other. If a kitchen is part of or attached to the dwellinghouse, no problem arises, for it is necessarily a dwelling - house. On the other hand if it is a separate building without any communication as aforesaid between the two and it is used for the residence by the owner, 15 his family or servants, or any of them, it is a dwelling house in its own right. On the basis of what I have said above, I consider that a "building used as a human dwelling" which is an essential ingredient to prove burglary (or housebreaking) in contravention of s. 271 (1) of the Penal 20 Code, Cap. 6, can only be construed as ■ meaning a "dwelling house" in terms of the definition contained in s. 5 ibid. It must be a ■ ■ ■ building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to 25 time uninhabited. Thus the temporary absence in itself of the owner, occupier, etc., will not deprive the dwelling house of the protection the law gives it. Residence as shown above, connotes a place where a person eats, drinks and sleeps. A building or structure or part thereof which is merely 30 used by the owner, occupier, etc., for purposes of taking meals or drinking without sleeping therein, is outside the ambit of a "dwelling - house" in this context. Sleeping there merely to protect the furniture or goods: R v Smith (2), already referred to above, or to watch thieves: R v Brown (3), also referred to above, will not suffice. If the owner, occupier, etc., 35 leaves such a building or structure or part thereof, there must be an intention on his part to return to live in it again (that is to say that he must have animus revertendi) because it will cease to be a dwelling - house in the absence of such an intention. See para. 11365 of the English & Empire Digest, Vol. 15, 1957 Ed., at p. 1133 and also Stround's Judicial 40 Dictionary, 3rd Ed., Vol. 1 (A - D) at p. 903, the first sentence under the heading "Dwelling - house". The English law supports the view that burglary cannot be committed in a tent or booth in a market or fair, for example, even though the owner lodges in it because it is a temporary as opposed to a permanent 45 edifice. I think the same view would prevail in ■ Zambia. ■ ■ ■ 1971 ZR p131 I SILUNGWE AJ In the case under consideration, I find that the kitchen in which the children of the first and second prosecution witnesses were sleeping, was a dwelling - house in its own right, that is to say assuming that it was a completely separate building without any communication by means of a covered and enclosed passage leading from it to the main house. The 5 learned magistrate's finding on this issue is therefore upheld. Consequently, the appeal against conviction based on this ground fails. It now remains for me to consider the third and final ground of appeal. The appellant has three previous convictions all of which involving dishonesty, namely burglary with intent to steal in 1965 - six months 10 suspended for two years; burglary and theft in 1966 - nine months' imprisonment with hard labour and another burglary and theft in 1969 - six months' imprisonment with hard labour. Notwithstanding the fact that PW2 suffered no loss as a result of the appellant's criminal act, I do not think that the sentence of nine 15 months' imprisonment with hard labour is excessive. Previous punishment does not appear to have had the desired effect upon the appellant. I consider that it is expedient for his reformation and or the prevention of crime that he should serve the term of imprisonment imposed on him by the trial magistrate. The appeal against sentence is dismissed but the 20 said sentence will now take effect from 4th September, 1971, the date of arrest. Appeal dismissed ■ ■ ■