R v Malia (CRI/A 38 of 97) [1998] LSCA 17 (16 February 1998)

1 CRI\A\38\97 IN T HE HIGH C O U RT OF L E S O T HO In the Appeal of: REX Appellant v N K O LI MALIA Respondent JUDGMENT Delivered by the Hon Mr Justice M L Lehohla on the 16th day of February. 1998 T he accused in the Subordinate C o u rt w ho is the respondent before this C o u rt faced charges in three counts in respect of each of w h i ch he w as acquitted a nd in the result a vehicle subject matter of the counts; to wit; a white N i s s an C o m bi E 20 Registration N u m b er : D 1 2 06 w as released to the respondent. T he C h a s s is n u m b er of this vehicle is : 5 1 6 46 its engine n u m b er is : 5 - 0 0 9 4 32 B. T he facts of the case are largely c o m m on cause. T he first t wo counts relate to breaches of the R o ad Traffic A ct 8\81. T he last c o u nt relates to contravention of Section 3 43 of the Criminal P r o c e d u re a nd E v i d e n ce A ct N o .7 of 1 9 81 as a m e n d ed by Section 6 of A ct N o . 13 of 1 9 8 4. C o u nt I c h a r g ed that on or about 24th July, 1 9 96 at or n e ar L o w er T h a m ae in the M a s e ru District the a c c u s ed h ad in his possession the vehicle referred to a b o ve in contravention of Section 10(2) of R o ad Traffic A ct 8\81 as a m e n d ed by O r d er 15 of 1 9 87 Section 3 ( a X 2 ). C o u nt 11 charged that on the d ay a nd at the place in question the a c c u s ed w as f o u nd in unlawful a nd wrongful possession of the said vehicle w h o se e n g i ne a nd chassis n u m b e rs w e re obliterated or t e m p e r ed with otherwise than by registering authority e m p o w e r ed u n d er Section 9. C o u nt III c h a r g ed that the a c c u s ed failed to give satisfactory a c c o u nt of his possession of the said vehicle in respect of w h i ch there w as reasonable suspicion that it w as stolen in contravention of the provision of the Criminal P r o c e d u re a nd E v i d e n ce referred to a b o v e. T he facts reveal that P W1 W a r r a nt Officer M o n o a ne while on patrol in the L o w er T h a m ae area at a b o ut 4 p . m. on 24th July, 1 9 96 she a nd her c o m p a n i o ns tried to stop the white Nissan C o m b i. T h is c o m bi c a me f r om S e b a b o l e ng direction but it s t o p p ed far f r om W \O M o n o a n e, w ho on a p p r o a c h i ng the vehicle, s aw the driver thereof get out of it immediately. A ny attempts to call that driver to c o me nearer to the police failed. In short he w e nt b e h i nd his vehicle, t o ok a d v a n t a ge of its bulk to gain great distance a w ay f r om it while obstructed f r om the police v i ew as he ran a w a y. T he police started examining the vehicle a nd its particulars as it r e m a i n ed thus a b a n d o n e d. W h i le e n g a g ed in this exercise a b oy called T h a b a ng Chalatsi c a me along a nd stated that he w as the real driver of this vehicle w h i ch h ad disappeared at the b us stop a nd he w as apparently looking for it. T he police a nd T h a b a ng c h e c k ed the vehicle together. T he police suspected the vehicle w as stolen as they o b s e r v ed a hole on its chassis n u m b e r. T he vehicle w as driven to the central C h a r ge Office with the help of T h a b a n g. T he police s h o w ed h im this hole a nd he said he k n ew nothing about it. T h ey asked him to bring its blue card. T h us he w e nt a w ay seemingly to fetch it. B ut at a b o ut 7.00 p .m the accused Nkoli Malia c a me along a nd informed the police that the vehicle b e l o n g ed to him. He h ad brought along a blue card. T he police advised that he should c o me the following d ay as it w as already dark. T he following day i.e. 25-07-96 the accused turned up with the blue card but it failed to tally with n u m b e rs on the engine a nd chassis of the vehicle. He p r o d u c ed yet another blue card w h i ch likewise failed to tally with either the engine or chassis n u m b e rs of the vehicle. T h e se blue cards w e re h a n d ed in before the subordinate court m a r k ed Exhibits " B" collectively while R . L M . P. 12 w as m a r k ed Exhibit " A ". Cross-examination of PW1 revealed that the vehicle h ad b e en found in the h a n ds of the actual thief; i.e. the driver w ho ran a w ay a nd a b a n d o n ed the vehicle w h en the police tried to stop the vehicle he w as driving. It w as further revealed that the actual thief h ad taken the vehicle not f r om the accused's e m p l o y e e s; further that he w as convicted by the subordinate court. Cross-examination further elicited the fact that the investigations of police h ad s h o wn that vehicle D 1 2 06 w as issued with registering authority in T. Y. and that the accused h ad b o u g ht vehicle D 1 2 06 as well as vehicle E 2 8 46 w h o se blue card w as also part of Exhibit " B" (which consisted of t wo blue cards). T he Court observes that from this point on the record contains a vast n u m b er of points agreed on b e t w e en Mr Phafane the defence counsel a nd the public prosecutor Mr N t h a ko in the Court b e l o w. I m ay just a dd that these matters a g r e ed on do not constitute evidence e v en t h o u gh they are otherwise important. Thereafter the record s h o ws that Mr Phafane addressed the Magistrate for the discharge of the accused. W h en his turn c a me to address in r e s p o n se the public prosecutor said "I do not address the C o u rt n ow but on 16-07-97". T h e r e u p on the matter w as adjourned to that day. On that d ay the Public Prosecutor w as not in attendance. Investigations revealed that he h ad g o ne to the Palace. T h e r e u p on Mr Phafane applied for the acquittal of the a c c u s ed in terms of Section 2 7 8 ( b) of the Criminal P r o c e d u re a nd E v i d e n c e. T he learned Magistrate readily obliged a nd he further released the vehicle to the accused. T he a p p e al l o d g ed in the H i gh C o u rt is b a s ed on t wo g r o u n ds set out as follows : 1. That the learned Resident Magistrate grossly erred in l aw w h en he a l l o w ed the trial to p r o c e ed without the Prosecutor seized of the matter, without affording the C r o wn the opportunity to address h im on an application m a de for discharge of the a c c u s ed at the close of the C r o wn case. 2. T h at the learned Resident Magistrate further erred in l aw by m a k i ng an order releasing to the a c c u s ed the vehicle f o r m i ng subject matter of the charge in the light of admitted a nd exhibited d o c u m e n t a ry e v i d e n ce w h i ch clearly do (sic) not relate to the vehicle in question a nd do (sic) not point the a c c u s ed as the p e r s on w ho m ay lawfully p o s s e ss the said vehicle u n d er the l a w. W i th regard to the first g r o u nd of appeal Section 2 7 8 ( 1 ) ( b) reads: "If a prosecutor n ot a p p e ar on the court d ay appointed for the trial the a c c u s ed m ay m o ve the court to discharge h im a nd the c h a r ge m ay be dismissed, in the case of a trial by a subordinate court, d o es T he record s h o ws that on 2 3 - 0 4 - 97 the a c c u s ed w as r e m a n d ed in c u s t o dy to 2 3 - 0 5 - 9 7. T he date of hearing w as fixed as 2 6 - 0 - 9 7, on that d ay b e c a u se the prosecutor so c h o se at least as far as the record reveals the matter w as p o s t p o n ed to 14th July 1 9 9 7. On this d ay he didn't s h ow up or inform the learned magistrate or the opposite side of his likely failure to be present. In a ny c a se the w o r d i ng of the a b o ve section is very clear in that it indicates that the learned magistrate m ay dismiss the charge facing the accused. In d o i ng so he uses judicial discretion. In the light of the facts set out a b o ve accounting for the prosecutor's failure to be in attendance in court I c a n n ot be p e r s u a d ed that the learned magistrate in dismissing the charges did not exercise his discretion properly. Indeed Mr Lenono very properly c o n c e d ed during a r g u m e nt that g r o u nd o ne of his appeal m u st fall a w a y. In my v i ew it is highly improper of an officer of Court to leave court business on a day appointed to suit h im and not bother to do the court the courtesy of asking for an excuse before so leaving. There m ay be valid reasons w hy a m an m ay fail to m e et his obligations or m ay find himself torn a w ay f r om his duty in court. T he o ne that cannot be questioned is w h en he h ad to o b ey a s u m m o ns or subpoena to another Court. N o ne such has b e en proffered in the instant case. It should be noted that in both counts I a nd III the relevant offence is constituted by an element of either being found in wrongful a nd unlawful possession or being in unlawful and wrongful possession of an object or article in question. In neither of these instances w as the accused in possession. In the first instance the vehicle w as found in possession of the thief w ho ran a w a y. In the next instance it w as the police w ho w e re in possession. T h us e v en if the Court h ad not acted in terms of Section 278( 1 )(b) the accused w o u ld still have b e en acquitted. W i th regard to C o u nt II it cannot be excluded that the tempering a nd obliteration of the numbering on the chassis could h a ve b e en the w o rk of the thief w ho deprived the e m p l o y e es of the accused of the vehicle. H e re too the accused w o u ld h a ve legitimately b e en entitled to benefit of doubt a nd acquitted. T he only remaining point of interest is w h e t h er the a c c u s ed could in the e nd be r e g a r d ed as lawfully entitled to h a ve the vehicle released to h im after his acquittal. It s e e ms in all accounts he is not. First the vehicle w as not f o u nd in his possession. So it w o u ld not be correct to release it to h i m. At best it c o u ld h a ve b e en released to the police instead of h i m. B ut e v en t h o u gh the police acquired custody of this vehicle it s e e ms they c o u ld not at this stage be lawfully entitled to its p o s s e s s i on while they w e re e n g a g ed in a battle to c h a r ge w h o e v er w as in possession of it. T h us at this stage this C o u rt is u n a b le to m a ke a determination in t e r ms of Section 5 6 ( 1) of the Criminal P r o c e d u re a nd E v i d e n ce as to the disposal of the vehicle Exhibit " 1 ". T he C o u rt regrettably is h a m s h a c k l ed by a b s e n ce of the collective exhibit " B" i.e. the t wo blue cards f r om the record. Mr Phafane argued that the blue cards w o u ld bear out that they related to t wo vehicles b o u g ht by the a c c u s ed T he t wo vehicles b e i ng D 1 2 06 a nd E 2 8 4 1. E v en at the risk of giving e v i d e n ce f r om the bar he pointed out that the E n g i ne of E 2 8 41 w as m o u n t ed on the chassis of D 1 2 06 without the a c c u s ed m e e t i ng the requirement of the l aw that he should inform the registering authority a nd obtain their approval. T h is otherwise brilliant a r g u m e nt w as d e m o l i s h ed by Mr Lenono's submission that the chassis n u m b er in a ny of the blue cards should h a ve tallied with the chassis n u m b er of D 1 2 0 6. B ut in the circumstances n o ne of the recorded chassis n u m b e rs in the blue cards remotely approximated the chassis n u m b er of D 1 2 06 as is. T he chassis n u m b er as is w as 5 1 6 46 while the E n g i ne n u m b er a s s u m i ng it belongs to an E n g i ne that w as m o u n t ed a n ew is 5 0 0 9 4 3 2 B. O ne blue card s h o w ed : D 1 2 06 Chassis n u m b er : 9 5 1 6 46 E n g i ne n u m b er : H 2 0 6 7 4 7 82 A n o t h er blue card s h o w ed : E 2 8 41 Chassis n u m b e r: 0 0 6 9 10 E n g i ne n u m b e r: L 1 8 5 0 0 9 4 3 2 B. T h us the learned magistrate erred by indiscriminately ordering that D 1 2 06 E n g i ne n u m b er 5 0 0 9 4 3 2B Chassis n u m b er 5 1 6 46 unsupported by corresponding n u m b e rs in the blue b o o ks should be released to the accused. In s um then this C o u rt - (1) confirmed the Subordinate Court's order acquitting the respondent\accused; (ii) upheld the appeal to the extent that the Subordinate Court's O r d er releasing the vehicle to the respondent\accused is set aside. A c c o r d i n g ly t he o r d er for the d i s p o s al of t he vehicle shall be in t e r ms of S e c t i on 5 6 ( 2) i.e. to t he effect that t he S u b o r d i n a te C o u rt is directed to h e ar s u ch additional e v i d e n c e, either orally or by affidavit as it m ay d e em fit for p u r p o s es of d i s p o s i ng of the vehicle as p r o v i d ed in S e c t i on 5 6 ( 1 ). J U D GE 16th February, 1 9 98 F or A p p e l l a n t: Mr L e n o no F or R e s p o n d e n t \ A c c u s ed : Mr P h a f a ne