Court name
High Court General Division
Case number
50 of 2006

S v Mwawa (50 of 2006) [2008] MWHC 113 (08 June 2008);

Law report citations
Media neutral citation
[2008] MWHC 113







IN THE HIGH COURT OF MALAWI



LILONGWE DISTRICT REGISTRY



CRIMINAL APPEAL NUMBER 50 OF 2006







BETWEEN







YUSUFU MWAWA…………………………………….APPELLANT







AND







THE REPUBLIC……….…………………………….
RESPONDENT







CORAM: SINGINI, J.



Nankhuni, of counsel for the Appellant



Mwenelupembe and Mkwamba, of counsel for the
Republic



Mrs. Mbewe, Court Reporter, Court Reporter



Gonaulinji, Court Interpreter















JUDGMENT







The appellant was charged with four offences of abuse
of public office contrary to section 25B (1) of the Corrupt Practices
Act
(Cap. 7:04) and the Penal Code offences of theft by public
servant contrary to section 283, forgery contrary to section 357 and

uttering a false document contrary to section 360. He pleaded not
guilty to all the four charges. Trial was before the Senior Resident

Magistrate Court in Lilongwe. After trial the appellant was convicted
on all counts, except that on the charge of theft by public
servant
the court found that the facts did not establish that he was in
control or that he had custody of the public funds in question,
but
on evidence before it, the court proceeded to convict him instead of
the lesser offence of simple theft of those funds contrary
to section
278 of the Penal Code. He was sentenced to imprisonment for two years
for the offence of abuse of public office, six
months for the offence
of theft, five years for the offence of forgery and also five for the
offence of uttering a false document.







The facts as established by the evidence that was
before the trial court show that the appellant, who was Minister of
Education
in the Malawi Government, gave orders or instructions for
the expenditure of a sum of K160, 550 to be drawn on one of the bank

accounts of the Ministry payable to Mount Soche Hotel in Blantyre. A
cheque, No.1035, of the Ministry for that amount was made
out dated
22nd March, 2005,
and was paid to Mount Soche Hotel and the hotel issued a receipt for
the amount. The payment was indicated to be for
what was officially
called an education consultative meeting. The payment however was
used to pay for a wedding function held at
the hotel four days later
on 26
th March.
This was the appellant’s own wedding and he had personally made the
booking for the wedding to be held on that day and
got a quotation of
that amount for the wedding function. Those facts were the basis of
the two charges of abuse of office and theft
by public servant.





Only a few days after the wedding, there was a story in
one of the newspapers about the appellant as Minister having paid for
his
wedding function with Government funds; and the appellant, who
had left the country on a trip abroad, or someone on his behalf is

said to have expressed concern to the hotel management about this
negative publicity.







When the appellant was back in the country, he made
arrangements by which his personal cheque, in the sum of K170, 000,
was deposited
in the hotel’s bank account with the National Bank of
Malawi as settlement of the hotel bill for the wedding. The cheque
No.001661
was dated 21
st
March, a date few days before the wedding day on 26
th
March. The appellant relied on the deposit slip to show that he had
used his own money to pay for the wedding function at the hotel.
The
deposit slip had alterations with regard to the date stamp including
erasure of the date of deposit. Those alterations were
intended to
show that the deposit was made on an earlier date of 21
st
March. However, according to the details on the deposit slip and the
bank records, the cheque was deposited in the hotel’s bank
account
on 26
th April, one
month after the wedding and it is that date that was sought to be
altered on the deposit slip. There was also the question
of
credibility surrounding this deposit as to how a customer to the
hotel could take his own route of making a deposit into a bank

account of the hotel in making payment to the hotel for services
rendered. The alterations on the deposit slip were the basis of
the
two charges of forgery and uttering and uttering a false document.







That was basically the material story leading to the
prosecution and conviction of the appellant. In its judgment of some
86 pages,
the trial court went into what can only be described as the
most meticulous analysis of the evidence on each count, unpacking
every
element of the offence on each count and finding particulars
from the evidence that was before the court proving each of those
elements.







The appellant has appealed to this Court against
conviction on all charges and against sentences. He has raised
several grounds
of appeal, numbering ten in all. His appeal on points
of fact may be summed up as submitting that the findings of the trial
court
are not supported by the evidence. This is captured in ground
(f) of the grounds of appeal that “The finding of guilty against

the Appellant in respect of all counts was against the weight of
evidence”. The rest of the grounds of appeal are on points of
law
on aspects of statutory interpretation and some of a constitutional
nature.







In my consideration of this appeal, I do not see the
necessity for me to go into an analysis of the evidence beyond the
analysis
presented by the lower court in its judgment. It is clear to
me that the case against the appellant was decisively determined on

its facts. Upon the analysis of those facts as made in the judgment
of the lower court, I do not see any ground for me to interfere
with
any of the findings of the lower court. I also see no merit in any of
the grounds of appeal on points of law raised in this
appeal and
argued before me and none of those grounds compels me to consider
them in any depth as I am satisfied that they lack
merit in
substance. I therefore confirm the conviction of the appellant on all
counts and I dismiss the appeal against conviction
on all counts.







Turning to the appeal against sentence, this Court has
on record the medical reports on the appellant showing that he has
been
and still is in poor health on the basis of which reports this
Court, Her Honour Justice Chombo, J. sitting, granted the appellant

bail pending appeal on that exceptional circumstance. The order of
bail was made on 21st September, 2006, and the appellant has
since
remained on bail. I heard this appeal sometime back, on 25th
July, 2007, and withheld the delivery of my judgment on account of
the same exceptional condition of ill health of the appellant
to
allow him time and chance to recuperate under medication. I have come
to the view that in the health condition the appellant
finds himself,
an overall reduction of the sentences imposed on the appellant would
be just and proper.







I accordingly set aside the sentence imposed by the
lower court in respect of the conviction for the offence of abuse of
public
office, the offence of forgery and the offence of uttering and
I substitute one uniform sentence of eighteen months imprisonment
in
respect of each of those offences. I however confirm the sentence of
six months imprisonment in respect of the conviction for
the offence
of theft. Further, I make the order suspending the operation of the
sentences for all the four offences on condition
that the appellant
is not convicted of the same or a similar offence within two years of
the date of his conviction for the offences
in this matter.







MADE in Chambers at Lilongwe
District Registry this 9
th
day of June, 2008.















E.M. SINGINI, SC



JUDGE