R v Machai and Chiembe (Criminal Review Case 118 of 1940) [1940] ZMHCNR 6 (31 December 1940)

90 Vol. II] R. v. MACHAI AND CHIEMBE. Criminal R eview Case No. 118 of 1940. Penal Code, section 214— whether ad must he negligent— effect o f marginal notes and chapter headings. In this case Chiembe persuaded Machai to introduce some substance into the drinking water o f another native. This water was drunk by the wife o f the other native and it caused her to vomit, I f the heading o f Chapter X X III o f the Penal Code and the marginal note o f section 214 are taken into consideration it would appear that as the act was not reckless or negligent the accused w ould be entitled to be acquitted but the High Court held on revision that the section must be taken as it stands and that neither the chapter heading nor the marginal note have the effect o f lim iting the wording o f the section. It is probable that in a similar case now the accused could be charged under section 214A o f the Penal Code which was added by Ordinance 26 o f 1940 and came into operation after this case had been decided. Law , C . J .: In this case both accused were found guilty o f unlawfully doing an act, contra section 214 Penal Code, by which act harm was caused to a native female Chilombo. That section provides for the unlawful doing (or omission) o f an act which is not specified in the pre­ ceding section 213. The marginal note to section 214, read with that section itself, states that the section is applicable to cases o f negligent acts causing harm other than those specified in section 213. 2. In England, marginal notes are disregarded and treated as being nothing more than temporanea exposito. The reason for that rule appears to be that marginal notes and punctuation do not really form part o f an Act because—according to former practice which existed up to the year 1849—at one stage o f a Bill in Parliament it was ingrossed upon one or more Rolls of Parliament without marginal notes or punctuation. Though this practice has since changed the Rule nevertheless appears to have (Beale’ s Cardinal Rules of Legal Interpretation, 1924, been preserved. 3rd Edition, pp. 300 and 301; Maxwell on the Interpretation of Statutes, 1896, 3rd Edition, pp. 58 and 59.) In this connection it is interesting to, observe that, in the case o f Bushell v. Hammond, 1904, 73 L. J. K. B. p. 1005, Collins, M. R. remarked in his judgm ent (p. 1007) “ the side note, also, although it forms no part o f the section, is o f som e assistance, inasmuch as it shows the drift o f the section ” . 3. As regards Northern Rhodesia, Clause 18 o f the R oyal Instruc­ tions (Vol. 4, Laws o f Northern Rhodesia, 1934, p. 1287 at p. 1292)1 provides that when an Ordinance shall have been passed, it shall be trans­ mitted with a marginal summary thereof. This does not suggest that an Ordinance shall contain a marginal summary before being passed, though 1 Now at p. 9 of Appendix 4 to the Laws,—Editor. [Vol. II it is the practice in this Territory—so I would understand—to include marginal notes as part o f every Bill. A similar provision in the Royal Instructions for Northern Nigeria is referred to in the case o f Bakare Ajakiye v. Lieutenant Governor, Southern Provinces (1929) A. C. (P. C.), p. 679 at p. 684. But Viscount Sumner, who delivered the judgment o f their Lordships, remarked (at p. 686) “ as for the marginal captions they are not to be taken to hold that the rules referred to are anything but directions as to the form to be adopted and the mechanical framework to be used in drafting Ordinances The rules referred to by the learned Judge are evidently the Royal Instructions on the subject. 4. For the foregoing reasons it would seem that the English Rule o f construction in this matter should be followed in this Territory. In these circumstances, section 214 must be regarded as an entirely separate section providing for an offence distinct from those offences included in section 213, and not as a section in extension o f section 213 having the effect o f adding other offences to those specified in section 213. It was most important and necessary carefully to consider the effect o f the marginal note to section 214 because the heading to Chapter X X III suggests that all offences thereunder involve criminal recklessness and negligence. Had such a construction been correct the two accused in this case would have been entitled to be acquitted, because they were charged with doing an act unlawfully which act they pleaded (in effect) they had done deliberately. There was no question o f their having done it recklessly or negligently or o f their having been so charged. 5 5 5. For the foregoing reasons I consider that the accused were properly convicted. I have also had the benefit o f the views o f the Acting Solicitor-General, for whose carefully discussed opinion I am much indebted and who agrees that the conviction was right.