R v Leve Mwaza and Others (Criminal Review Case 295 of 1939) [1939] ZMHCNR 16 (31 December 1939)

[Vol. II R. v. LEVE M W AZA AND OTHERS. Criminal R eview Case No. 295 o f 1939. Common nuisance— causing annoyance to a person—Penal Code section 151 — Townships Regulations (Gap. 26)1, Regulation 4 (9). Causing annoyance to an individual is not a common nuisance and in such a case the charge should be laid under Regulation 4 (9) o f the Townships Regulations and not under section 151 o f the Penal Code. See also R. v. Mulenga and Lesa p. 66 ante, and R. v. Imbuwa p. 113 post. Law , C . J .: Public or common nuisances are such inconvenient or troublesome offences as annoy the whole community in general, and not merely some particular person. The very existence o f the nuisance depends upon the number o f persons annoyed (Roscoe’s Criminal Evidence. 15th Edition, page 919; see also Stone’s Justices’ Manual, 69th Edition, page 1329). In the present case, the charge against the accused was “ . . . and thereby caused annoyance to the public, to wit, native female Malone, contra section 151 Penal Code ” . Though the accused pleaded guilty to this inconsistently worded charge, in essence he pleaded guilty to causing annoyance to an individual, which does not constitute the offence o f common nuisance. The accused should have been charged under regulation 4 (9) Townships Regulations (Cap. 26),1 for making a loud or unseemly noise to the annoyance or disturbance o f any person, to wit, native female Malone. In the circumstances, however, there has been no miscarriage o f justice, and the conviction and sentence will stand. Section 151 Penal Code is really intended to cover those cases where the nuisance is continuous or regularly repeated. 1 Now Cap. 120.-—Editor.