R v Joseph Chilemba ((1963 - 1964) Z and NRLR 116) [1964] ZMHCNR 17 (21 July 1964)

R v JOSEPH CHILEMBA (1963 - 1964) Z and NRLR 116 1963 - 1964 Z and NRLR p116 [Before the Honourable Mr. Jus�ce RAMSAY on the 21st July, 1964.] Flynote Deporta�on - breach of order to leave the territory - ability of court to go behind original deporta�on order. Headnote The courts have jurisdic�on to go behind the face of a deporta�on order and query its validity. Cases cited: (1) R v John 1962 R & N 13. (2) John Tom v The Queen HNA 10/1961 (unreported). (3) Joseph Mumbwa v R HNA 137/1964 (unreported). Judgment Ramsay J: The accused, Joseph Chilemba, was convicted on his own plea of breaking an order of deporta�on contrary to sec�on 38 (1) of the Immigra�on Act, 1954, as read with Government No�ce No. 27 of 1964, the par�culars being that on 5th March, 1964, at Kitwe, being a person ordered to leave the territory he was found within Northern Rhodesia. The learned senior resident magistrate has properly forwarded the case for review as he now considers that the accused should not have been convicted. In the first place the accused was deported from the former Federa�on in terms of a deporta�on order issued under sec�on 7 (1) of the Deporta�on Act, 1954. He should therefore have been charged with an offence under that Act. I agree that this is so, but without hearing argument I am not prepared to say that the convic�on is bad on this account. The second reason for forwarding the case for review is that the accused strenuously maintained that he was born in Northern Rhodesia, but the learned senior resident magistrate ruled that he could not go behind the previous deporta�on orders. In doing so he was wrong and as stated by him he overlooked the case of R v John (1962) R &; N. 13 in which the High Court of Southern Rhodesia decided that a criminal court had jurisdic�on to query the validity of a deporta�on order. There was also an unreported case of mine, John Tom v RHNA 10/61, and this was followed by me in Joseph Mumbwa v R HNA 137/64. This case has not as yet been reported and it was subsequent in date to the instant one. In both these cases I decided that a magistrate should not accept; a plea of guilt to the breaking of a deporta�on order where an accused claims he was either born in Northern Rhodesia or is a Bri�sh protected person. In the circumstances therefore in terms of sec�on 309 of the Criminal Procedure Code, I reverse the decision of the lower court.