THE HIGH COURT OF MALAWI
APPEAL NUMBER 110 OF 2006
the First Grade Magistrate Court sitting at Lilongwe. Being Criminal
Case No. 238 of 2005.
HON. CHINANGWA, J.
Counsel for the State
Mhone, Court Reporter
Antony Jere, Andrew Kaliati and John Binali appeared before the First
Grade Magistrate Court sitting at Lilongwe from
November, 2005 to 14th
July, 2006. There were tried for the offence of Breaking into a
building and committing a felony therein contrary to section 311(1)
of the penal code.
aver that Antony Jere, Andrew Kaliati and John Binali from August to
November, 2005 at area 4 in Lilongwe broke
and entered into a factory
belonging to Stripes Industries and stole therefrom hair braids
extensions (mesh) valued at K450,000
the property of Stripes
Industires. The appellant and co-accused pleaded not guilty, but
each was found guilty, convicted and
sentenced to 54 months penal
appealed against both conviction and sentence. His grounds of appeal
are listed as follows:
My boss Abdul
Singale refused to appear before the court to testify my involvement
in the case.
something fishy with the way the case was handled, the police kept
on changing prosecutors changed them twice.
The case was
changed from theft to breaking into a building leads me to be
paraded by the state were unable to testify anything in connection
with the charges leveled against me.
which had the sms sent to me by my boss Mr Singale ordering me to
ferry the said goods to his area 23 shop was confiscated
messages deleted so as to destroy evidence.
At this juncture
it would be prudent to remind myself that I did not have the
advantage of the trial court of assessing the demeanour
Furthermore, an appeal is more like a rehearing of the case. I also
bear in mind the provisions of sections 3-5
of the Criminal Procedure
& Evidence Code.
Facts of the case
show that Feraz Hamdan (Pw1) owns Stripes Industries which is
situated at area 4 in Lilongwe. The company manufactures
which are commonly known as mesh. The appellant worked for the
company as a security guard. Whereas Andrew Kaliati
and John Binali
worked for Securicor, but were assigned guard duties at the
complainant company premises.
According to the
testimony of Pw1 he noticed that hair braids products were missing
from the factory. On the night of 2nd
November, 2005 Osman Tande (Pw3) a watchman for Plate Cut Ltd was on
night duty. This company is adjacent to the complainant company.
saw appellant and co-occused each carrying bags from the complainant
company to the gate. Pw3 asked appellant and co-accused
were carrying but they did not answer. Pw3 informed fellow guards
Mr. Adam Wylesi (Pw4) working for JB Car Hire. Pw3
then saw a motor
vehicle registration number TO 519 driving out of the gate. One of
the occupants in the motor vehicle was appellant.
Pw3 reported the
incident to pw1.
As part of
investigation Pw1 assigned Ms Fane Lombola (Pw2) a security guard for
Securicor to go to appellants house and buy
hair braids. Indeed
she bought it from appellant worth K4,600. The same was identified
to have been manufactured at Pw1s factory.
According to Pw1 value
of stolen hair braids was K460,000. The incident was reported to
Lilongwe police station who arrested
appellant and co-accused.
In this court
appellant repeated the contents in his petition. He said that it was
Abdul Singale who gave him the hair braids to
sell on his behalf.
They used to communicate with Abdul on these deals by cellphone.
Appellant said that police deleted a sms
message sent by Abdul
Singale relating to the sales of the hair braids.
In the course of
investigation appellants bank account (exp3) was examined. It
showed that on 27th
September, 2005 he deposited K136,000 cash. It was a wonder because
his wages were between K2,500 to K3,500 per month. His explanation
was that he used to do business of selling cosmetics. In court he
said that he sold a head of cattle intended for dowry. He deposited
the proceeds in the bank.
Counsel Kayuni for
the state adopted skeletal arguments written by counsel Kalebe. He
urged this court to uphold both conviction
and sentence. Counsel
submitted that appellant does not deny to have been seen carrying
bags containing hair braids from the factory.
He conveyed it out in
a motor vehicle. He does not deny that he was selling it at his
house. His defence that it was given to
him by Abdul Singale is
unbelievable because the said Abdul Singale denied it.
The starting point
is that appellant admits to have been found in possession of hair
braids stolen from the complainant company.
His defence is that it
was given to him by Abdul Singale. Although appellant told court
that he would call one witness to testify.
There is no record in his
testimony where he indicated that the witness was Abdul Singale.
There is no record that he sought
the trial courts assistance to
summon Abdul Singale to testify.
The second issue
relates to appellants bank account with the OIBM. The account
statement has entries from 24th
November, 2004 to 31st
October, 2005. The highest amount of money he ever deposited was
K14,000 on 11th
December, 2004. Then on 27th
September, 2005 he deposited K136,000 cash. It raised genuine
suspicion because all along he had never deposited such a large
money at once. The trial court disbelieved his explanation that he
had a business of selling cosmetics. That he had raised
from the sell of one head of cattle.
The Trial court
found as a fact that the deposit were proceeds from sales of hair
braids stolen complainant company. I have no
disagree with the trial courts finding.
The next issue
relates to change of prosecutors. I find no issue at all because he
has not shown how that prejudiced his case.
It has no merit.
On ground (d) it
is my view that the testimony of witnesses established that appellant
was connected to the breaking and theft.
For example Pw1 testified
to the effect that appellant was his servant. That hair braids were
being stolen from the factory.
Pw3 saw appellant
and co-accused carrying bags. Later he saw appellant in a motor
vehicle registration no. TO 519 driving away
from the premises.
Pw2 bought hair
braids from appellant. Pw1 identified the same to have been stolen
from the complainant company. Above all appellant
concedes that he
was found in possession of hair braids stolen from the complainant
On ground (e)
appellant contends that he was suspicious the charge was changed from
theft to breaking into a building. The state
was at liberty to make
amendments provided that the trial court consented. On page 65 of
the court record the prosecutor applied
to amend the charge under
section 151 of the Criminal Procedure & Evidence Code. Counsel
for appellant did not object to the
amendment. In this regard
appellant cannot now turn around to cast unfounded suspicion on a
properly entered amendment. This ground
has no merit.
On the final
analysis I find that there was overwhelming evidence proving the case
against the appellant and co-accused beyond reasonable
Therefore, the trial court cannot be faulted for convicting
appellant. The appellant did not say anything in respect of
conviction and sentence dismissed in its entirety.
Pronounced in Open
Court on this 3rd day of May, 2007 at Lilongwe.