THE HIGH COURT OF MALAWI
APPEAL NO. 3 OF 2003
: HON. CHINANGWA, J.
D. Kuwali, Counsel for the appellants
Z. Ntaba, Counsel for the Respondent
Chulu, Court Interpreter
Namagonya, Court Reporter
J U D G M E
is a joint appeal by the two appellants namely Dike
Bright Omeka and Henry Chima Amadi.
The two appellants appeared separately in the Senior Resident
Magistrate Court sitting at Lilongwe. The first appellant appeared
in the said court in the Republic Vs Dike Bright Omeka Criminal
Case No. 19 of 2002. on a charge of Illegal entiry into Malawi
contrary to section 37 of the Immigration Act. The particulars of
the offence are that the 1st
appellant on or during the month of October, 2002 enetere Malawi
without permit or authority from the Immigration Officers.
the plea of guilty the police prosecutor on behalf of the state
narrated the facts. Facts show that 1st
appellant entered Malawi on 1st
October, 2001 through Lilongwe International Airport. He is the
holder of a Nigeria passport no. A 0523473. According to facts
appellant was permitted to be in Malawi for 7 days.
December, 2002 police were on check up exercise in Lilongwe. In the
course of such exercise came upon the 1st
appellant. He was arrested and charged with the above mentioned
offence. That resulted to a conviction and consequent sentence
ten months I.H.L.
appellant Chima Amadi appeared in the Senior Resident Magistrate
court sitting at Lilongwe on 27th
December, 2002. The charge against him was that of Illegal entry
into Malawi contrary to section 21(1),(3) as read with section
the Immigration Act. Particulars are that Chima Amadi on or during
the month of December, 2002 entered into Malawi without
authority from the Immigration Officers. According to facts narrated
by the police prosecutor on behalf of the state.
December, 2002 Lilongwe police officers were on a crime sweeping
exercise in the city. They arrested 2nd
appellant whom up checking his documents. It was discovered that he
is a holder of a Nigeria passport no. A02294 220. He entered
October, 2001 upon entry he was given 7 days stay in the country. He
remained in this country after the expiry of 7 days up to
date of his
arrest. The 2nd
appellant was charged of contravening the above mentioned offence.
He was convicted and consequent sentence to ten months I.H.L.
lower court recommend deportation after serving sentence.
two appellants jointly appealed to this court against sentence only.
The written grounds of appeal read as follows:-
Being first offenders
we were supposed to have been given an option of fine but we were
just sentenced to ten months imprisonment.
Being first offenders
the court did not consider of deporting us to our country or to any
neighbouring border outside this country.
Besides that we have
families at home and to stay in prison for ten months will be a
disaster to them (kids and wives)
have signed as Christian Emeka Dike and Henry Chima Amadi.
appeal was first set down on 19th
February, 2002 but it had to be adjourned to allow them engage a
lawyer to represent them. Hearing was held on 19th
March, 2003 by that time captain Kuwali represented them and the
state was represented by Miss Ntaba.
his submission Captain Kuwali said that he was appealing against both
conviction and sentence.
to Captain Kuwali the appellants ought not to have been charged under
section 21(3) as read with section 37 of the Immigration
proper charge should have been under section 7 of the Immigration Act
because the appellants entered Malawi without permission
authority. Whereas Miss Ntaba for the state maintained that the
appellants were properly charged under section 21(3)
and 37(b) of the
is observed by this court that according to facts adduced in the
court below the two appellant had lawfully entered Malawi through
established immigration post. There were each given permission to
stay in Malawi for 7 days. Therefore the entry as such was
illegal but lawful. After the expiry of the 7 days both continued to
remain in this country without seeking lawful extension
of their stay
until their arrest on 18th
December, 2002. The circumstance of appellants is covered by section
21(1) of the Immigration Act, which reads:-
notwithstanding anything contained in Part I and subject to the
exemptions provided in subsection (2), and to the powers
conferred by section 23, no person shall enter, be or remain
in Malawi unless he is in possession of a
current permanent resident permit, or a
current temporary residence permit,
a current business residence permit or a current temporary
is no defence that appellants had no mens rea, but that they remained
in the country pursuing their credits. In the case of
appellant that he was living in Mocambique but came into the country
to pursuing his credits. That 2nd
appellant was in the process of applying for a visa. Counsel Kuwali
did not properly substantiate the issue of the mens rea.
unclear whether the mens rea is in terms of continued stay in this
country or commission of criminal offences. The offence
appellant committed was that of illegally staying in the country
after the expiry of the 7 days period which they were
stay. It was also illegal for them to conduct business without a
business permit. This court so finds.
Captain Kuwali submitted that the trial in the lower court was not
fair and just because they had no legal representation
under section 42(2)(f)(v) of the Constitution. He stressed that
because they had no legal representation he prayed
conviction be quashed. Counsel Ntaba for the state replied that the
appellants pleaded guilty because they understood
Further that it was up to them to indicate that they wanted legal
representation before plea was taken.
at this juncture it is prudent to have recourse to section
42(2)(f)(v) of the Constitution:-
Every person arrested for, or accused of, the alleged commission of
an offence shall, in addition to the rights which he or
she was as a
detained person, have the right:-
as an accused person,
to a fair trial, which shall include the right:-
to be represented by
a legal practitioner of his or her choice or, where it is required
in the interests of justice, to be
provided with legal
representation at the expense of the state, and to be informed of
Indeed the Constitution provides for legal
representation, but it does not make it a mandatory on the state to
provide such facility
in every criminal case. The issue is whether
failure to inform an accused that he has the liberty to engage a
lawyer is fatal
to result to quashing of a conviction. To quash a
conviction because of such over sight would be stretching matter to
In the present case this court is not prepared to quash the
conviction just because the appellants had no legal representation
the lower court. Furthermore, failure by the lower court to inform
the appellants of their right is not considered fatal to
quashing of the conviction. This is a technicality which is curable
under section 3 Criminal Procedure & Evidence
Code. For purposes
of clarity section 3 Criminal Procedure & Evidence Code
principle that substantial justice shouldbe done without due regard
for technicality shall at all times be adhered to
Counsel for appellants then proceeded on the
ground against sentence. He submitted that ten months I.H.L. was
He was of the view that being offenders
they should have been considered under section 339(1) or (2) as read
with section 340
both under Criminal Procedure & Evidence Code.
Hence he prayed that the sentence be declared null and void. Counsel
state submitted that the sentence be upheld. Indeed section
37 of the Immigration Act provides a penalty of fine K500 in default
12 months I.H.L.
This court finds no fault on the lower court to
have imposed a custodial term to the appellant. Although there were
custodial terms were appropriate. However ten months
I.H.L appears to be on the higher side. In this regard the sentence
months I.H.L. appears to be on the higher side. In this
regard the sentence of ten months I.H.L. is reduced to four (4)
I.H.L. The recommendation to the Minister of Home Affairs for
the deportation of the appellants stands. To this extent only the
Pronounced in Open Court on this 2nd
day of April, 2003 at Lilongwe.
J U D G E