Maxwell Namguwa v The People (HLA/13/1971) [1971] ZMHC 16 (30 April 1971)

MAXWELL NAMGUWA v THE PEOPLE (1971) ZR 133 (HC) HIGH COURT HUGHES J 30th APRIL 1971 (HLA/13/1971) Flynote Criminal 5law and procedure - Unlawful assembly - Charge of - Whether proper to convict of lesser offence of common assault under s. 168 (2) of the Criminal Procedure Code. Headnote The appellant was convicted by the subordinate court of the offence of common assault contrary to s. 219 of the Penal Code and sentenced to 10 ten months' imprisonment including hard labour. He was originally charged with three other persons with the offence of riot contrary to s. 64 of the Penal Code. At the close of the prosecution case the charge was reduced to one of unlawful assembly contrary to s. 62 of the Penal Code. The trial magistrate concluded that the offence had not been proved 15 and while acquitting his co - accused convicted the appellant of the lesser offence of common assault contrary to s. 219 of the Penal Code purporting to exercise his powers under s. 168 (2) of the Criminal Procedure Code. On appeal against conviction and sentence: Held: 20 Under s. 168 (2) of the Criminal Procedure Code an accused could be convicted of a lesser offence of the same species as the one with which charged and since common assault was not cognate to the offence of unlawful assembly it was an error of law to convict of that offence. Cases cited: 25 (1) R v Secundo Mancinelli 6 NRLR 19. (2) R v Justin (1962) R & N 614. (3) R v Jekufu (1960) R & N 210. Legislation referred to: Criminal Procedure Code, 1965 (Cap. 7), ss. 162 (1), 168 (2). 30 Penal Code, 1965 (Cap. 6), ss. 64, 62 (1), 219. B Munyama, Shamwana & Co., for the appellant. Miss L P Chibesakunda, State Advocate, for the respondent. Judgment Hughes J: The appellant was convicted of the offence of common assualt contrary to s. 219 of the Penal Code by the Subordinate Court 35 of the First Class for the Livingstone District and was sentenced in respect thereof to ten months' imprisonment with hard labour on the 6th January, 1971. He was further ordered to pay K40 by way of compensation to the complainant in terms of s. 162 (1) of the Criminal Procedure Code. He now appeals against his conviction and sentence. 40 Learned counsel for the appellant has directed his submissions to the additional ground of appeal filed on the 29th April, 1971, and has abandoned the grounds set out by the appellant in his notice of appeal. The 1971 ZR p134 HUGHES J appellant was originally charged with three other persons with the offence of riot, contrary to s. 64 of the Penal Code. At the close of the prosecution case that charge was reduced to one of unlawful assembly, contrary to s. 62 of the Penal Code. In his judgment the trial magistrate concluded 5 that that offence had not been proved to his satisfaction and, having acquitted the appellant's co - accused he exercised his powers under s. 168 (2) of the Criminal Procedure Code to record a conviction for common assault contrary to s. 219 of the Penal Code against the appellant. Section 168 (2) aforesaid provides: 10 "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it." There is no definition in the Criminal Procedure Code of the term "minor offence" but in the case of R v Secundo Mancinelli (1), Bell, CJ, dealing 15 with the meaning of "minor offence" had this to say, "No offence can be a minor offence within the meaning of that subsection unless it carries a lesser penalty than the offence with which the accused person was originally charged and unless it is 20 cognate to the offence originally charged, that is to say of the same genusor species." This interpretation was later approved and applied by Blagden, J, in R v Justin (2). In that case the judge decided that the offence of assault occasioning actual bodily harm could not be regarded as cognate to the offence of robbery. The learned State Advocate has submitted that common 25 assault can be regarded as a cognate offence to that of unlawful assembly and in support of her submission has cited the case of R v Jekufu (3). That case, however, referred to an accused who was charged with rape and was convicted of the lesser offence of assault occasioning actual bodily harm, which is undoubtedly an offence of the same genusor species as rape. In my view the trial magistrate erred in law when recording an alternative conviction for common assault. The appeal against conviction and sentence is allowed. As the appellant has already been in custody since the 6th January, 1971, I do not consider appropriate to order a 35 retrial. He is to be discharged forthwith in respect of this offence. Appeal allowed