Ngandwe v People (CAZ 8 157 of 1965) [1965] ZMCA 10 (25 November 1965)

NGANDWE v THE PEOPLE (1965) ZR 157 (CA) COURT OF APPEAL DOYLE JA, RAMSAY J, EVANS Acting J 25th November 1965 Flynote and Headnote [1] Courts - Magistrates' courts - jurisdiction - aggregating sentences on different courts - section 7 (1) of Criminal Procedure Code construed: Section 7 (1) of the Criminal Procedure Code, which limits to three years the sentence which may be imposed by a subordinate court not presided over by a senior resident magistrate, does not preclude a magistrate from imposing on a number of counts sentences which in total exceed three years provided that no sentence on an individual count exceeds three years. [2] Criminal procedure - Sentencing - aggregation of sentences on separate counts - jurisdiction of magistrate's court: See [1] above. Statute construed: Criminal Procedure Code (1965, Cap. 7), ss. 7 (1), 14 (1). The appellant in person Shoniwa, State Advocate, for the respondent Judgment Ramsay J: The applicant was convicted on his own plea in the subordinate court of the second class at Chingola on two counts of burglary and theft. He admitted nineteen previous convictions, and he asked for three other offences to be taken into consideration. He was sentenced to two years and six: months' imprisonment with hard labour and three years' police supervision on each count, making a total of five years' imprisonment with hard labour and three years, police supervision. He appealed to the High Court against sentence. The appeal was dismissed, and the sentences were confirmed. He then applied for leave to appeal against the High Court judgment dismissing the appeal. This was refused by a judge of the High Court. He then applied to a single judge of this court for leave to appeal. This also was refused. He is now, in terms of section 4 (a) of the Court of Appeal for Zambia Ordinance (Cap.12), applying to the court for it to determine this application. [1] There is no merit in the application; but there is one matter that requires comment, namely, the fact that a subordinate court at one trial has imposed sentences totalling five years' imprisonment with hard labour. Section 7 (1) of the Criminal Procedure Code (Cap.7) contains the following proviso: ' (ii) a subordinate court, other than a court presided over by a Senior Resident Magistrate, shall not impose any sentence of imprisonment exceeding a term of three years.' Section 14 (1) of the Code reads as follows: ' When a person is convicted at one trial of two or more distinct offences, the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently.' It would appear therefore that the Code regards sentences imposed on different counts as separate sentences, and accordingly a subordinate court not presided over by a senior resident magistrate may impose on a number of counts sentences which in total exceed three years provided that the sentences on each individual count are not more than three years. Section 14 (2) of the code confirms this and is as follows: ' For the purposes of confirmation, the aggregate of consecutive sentences imposed under this section, in case of convictions for several offences at one trial, shall be deemed to be a single sentence.' It appears therefore it is only for the purposes of confirmation that the aggregate of consecutive sentences is deemed to be a single sentence, but for any other purpose such sentences are distinct and the principle laid down in the preceding subsection is not affected. In the case of R v Kailo Paskala (HNR/14/1960); (unreported) the late Somerhough, J, came to the opposite conclusion, but it was a review case and it seems that the judgment was given without hearing argument. It appears to this court that he confused the aggregation of sentences for purposes of confirmation with the aggregation as affecting jurisdiction. The case was therefore wrongly decided. If leave were granted to the applicant to appeal, there would be no possibility of his appeal succeeding. The court therefore refuses the application.