Kanyemba v R (Criminal Appeal 25 of 1993) [1994] MWHCCrim 5 (22 April 1994)

t I ·, ' ... Ref. No. MG/CR/72/12/90 IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CRIMINAL APPEAL HO. 25 OF 1993 SAMSON KANYEMBA vs. THE REPUBLIC From the First Grade Magistrate'~ court at Mangochi Criminal Case No. 4 of 1991 CORAM: MTAMBO, J. Appellant present/represent.:-d an,J Company of Kuman.go For tho Statt3 ~ Nyirenda. f ftssistc,.nt Par li~mer tary Draftsman Law Clerk, Chilongo Machine Opcrutoi:-9 Mtunduwatha JUDGMENT The appellant wus brought before the First Grade Magistrate at Mangochi on an indictment which charged him throe counts; tho first and second counts of common assault co,'1trm·y to s. 253, and the thh·d count o±' malicious damage co"1tI'fU:'Y to s. 344 ( 1) ~ both of the Penal Code. He w~:i.s convicted on thG first 8.nd second counts• but wus acqui ttcd on the third count, and was sentenced to concurrent prison terms of ono month with hnrd labour the operation of which was suspended. for six months on ccndi tion thRt he did not .::ommi t a similo.r offence wi.thin that t)oriod. Hs:: ho.s appcnled to this court essontially e.gninst conviction on two gr·ound.s as follows: 2/ ..• :" : ~ .. \ 1--:-., 1 I·. • ,. a ~ l "1 0 The trial proceeding:::; 1;10;:-0 the fact th'.1t a wri ttc:1 General which is required 1kt had not been obtained of the trial. a nullity by ordGr of tho reason of Inspector the Police bc~fo:c-c the commencement 2. '. I'he Learned Mngistrate erred in Law in convicting the .i\ppollr-mt in that: there was no sufficient evidence to support the conviction and s.s such tho conviction has to be qunshod a:.-i.d the sentence ::,.::,t asiden. The particul2.rs of thRt the accused unlawfully and one Ralph ,".midu Kawatila were master and servant. ofTenco in the first count r-!.lleged r.ssaul ted one Bwan.ali i!ikwanda ( PW2) ~ { PWl) • in t}v~ second count. l'he two One dny in the month of Dcccmbel' 1990 Kawa ti la Is wife intercepted two lc::ttcrs from the appellant's daughter 9 Prisca• who wr:-,s then at Polic0 S,,condary School ia Zomba~ addressed to her husband. These were tendGred in evidence. Upon re,-idin.g them, it b0co.i11e obvious to hor, as it would to anybody, thnt tha two were up to some mischief. ·she handod tho lr.3tters -i:o tl1<-} app0llant Is wife who in turn show,:;d them tc-him. He was not emusod. He :i.nvit:od Kawatila to his housf:! c.-1: p0lice linos, Mnngochi, to nsk him about the letters. Incidentally? the appella...,t was a police officor at th0 time. ICmn.til~ obliged and drove thox•e wi -tll his wife a.."id servant (Hkwanda). During discussion, a belt was produc0d which had been given to Priscn by Kewntiln through ;:,!kwanda, When M1)1{we,.nda was askod r:;lbout 5.t, he kind of prevaricated and this annoyed the appellant who got up nnd sLtp;,,,,d him and ho re.n o.way. Kawatiln too received a slap when in a:1swGr to the quostion why he wns chasing after o. school girl he said -"it happens". He too left hurriedly &""ld ns he reversed his cnr he collided with nome object whereupon the ether polic'2 officerG bec~\ma aware of his pr0sC:.uce in the compound, hence tha ch~rges. Such wns the mr,terial evid(:mce which was b(:for·o the court. I bJ:i.ve aJ.r-ef\d_y reproduced the two grounds of npp,:;al . firGt ground of ~ppenl is obviow1J.y oc1 n mutter of law and I that is the ono I shoulu. begin with. trial The think Section 4? of the Police .",ct provides for the proc-3dure to be followed whore e. pol:Lc8 office:-is chfirgod wi tl1 an offence ngninst discipli!1e. The officc,r-invostigatL1g nny such offence is required~ if he socs it fit so to do, to report the mattor to the Inspector General who may~ mnong other things, by order 'ln writing, r0quire tho p()lic0 off'icGr so chnrr;ed to be t:'iken before 3/ o • o a 3. a magistrate t'.:> be dealt with L1 nccordcmcc with the ;'\ct. tmd it is o~ this bnsis thD.t it is ccnte!'l.ded that thG proceedings in tho trinl court wero n :1ulli ty because the Iosp,. Jctor General did not make the order requiring the "lppcllant to bo ti:,ken before 11 magi strata. In his submissions courisel appeared to proceed from the p1'0mise that n. p0lice cfficor m?-.y not bJ ·;;ried for crime wi thcut th.:.:re first being the In::;pector Genez:e. J. is order -co try him. With re-.;;pect 9 that cnnnot be correct for the obvious reason thnt it would b0 usurpation of the powers of the Chief Public Prosecutor. In any case s.47 is concornod, ci.nd concerned cnly. with off onces :, .. gni;-.\si~ diccip.linc, • which are spocifie;d in s. 39 of, a:1.d nunishab. J.e u.1dcT", thnt hct. In other WO!'ds, it docs Dot npply whore tho off0nco ch1l.rged is net or,c of th•'.)SG offonc.::,s. Accordingly~ I disagree th,::tt the proceedings w0rG n nu].lity. 'l'hnt, hovrnvor, is not the end of the matter bGcnuGe the question arises w}wther tho uff0nces c,-,n also be saicl to be against discipline. L<:. L mo just mentiQn i1crc, fr;.;:' the sake of clarity, that whnt the n:Jpellant did is r1ssnuJ.t in }aw and th2.t that is not in question but rnthor whether tho matte:'.'.', on i +;s own m.ari t, could have been dealt with 1..mdor tho Police l\ct i:f the.t wore considered. Uru~or s. 39 ( 37} i.t io an offence ti.gninGt discipl:inE~ if R police offic~r: the guilty of 8.n nctp prejudice of good conduct, disorder or order nr.1.d disciplin.c neglect ·i;o The evidence shows that tha appellant slq,~,ec; tho two corrplA:i.r1.o.nts in h:~s house wt,ich was wi thi.n tho police lines or compound. I luwe alroady sr1id thet this 1.s aasnu.l t in law. But it c·".n also be said to be conduct to the pr0.,iudico of good order nnd c1.iscipJ.inc arid, therefo:r.,LJ, an offonco o.g::1im: t; dif;ci 9linc wi thL1 the meenin.::.:; of th,.1.t se~tion. In other· w0rds • I am 8::-.yi:'1.g tl1,:1t if tho matter had firr.,t boer1 ccnsiderod whether. it f011. within t:10 Police i~ct, it would hcvc boen Ceal 1,; with undm.~ thn.t 1\ct • and the Gonsider·ati Qn::; in favuur of this point of view ru'e many o Look at the circumstances that led to the cornmissic-n. 0r the offences, tho tri ·,i 1li ty of the offences themselves r the ccnseque~1ces of .-~onviction to th\:: appellan-t himself, his f~!mi2..y of eleven children 2:1d thG athm.' dependanto? the numbm' of y·)ar ( 27) of clec:u"l record to sorvi.,;c which might bo thrown ::i.wcy, <:',nd sc 0:'.1 <-,nd £10 for-th. In :::tddi tion, I n,.: myself quite sure, fror,1 reeding the record i th','.t the mntter would n0t hnve bc2n reported to police if it wore n,.1t for the nccident to which I have r-,,l1~oady referred abc,~ ,•:,;. .tl·tor. L1ati vsl:y., I t!'iink this is a propor c:13e in which the court should have order:ad tho proceedings to be stayGd or terminntoc~ unC.c:c s. 161 of the Criminnl Procedure and Evidonc€ Code, ju;,st in case I am wron.c; in the former point of viow. 4/ .... 4. In. the circurnsta,1co~3 ~ I the j1..1stice of t.b.e matter· I hRve not considerud such b<.3CBUS6 I think I have already so.it:! would be ·,.;o al1ow ·c,10 n91;:,0al, &,d I c.o so. the second gt·ound of app,~e.l specifically as it is unnececoary to do so in view of whAt in -chis judgment -it is coveroc: .. PRONOUNCED iu open court th:i.s 22nd cr,.y of f-.pril • J.994 at Lilcs1gwc o -------------------~---