Court name
High Court General Division
Case number
74 of 2008

S v Mwaila (74 of 2008) [2008] MWHC 127 (18 June 2008);

Law report citations
Media neutral citation
[2008] MWHC 127




LL/CR/37/12/06











IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


CRIMINAL
APPEAL NO. 74 OF 2008











HELIX
MWAILA ……………………………………….APPELLANT





AND





THE
STATE ……………………………………………RESPONDENT








From
the Senior Resident Magistrate Court sitting at Lilongwe. Being
Criminal Case No. 210 of 2006








CORAM: HON.
JUSTICE CHINANGWA, J.





Counsel
for the Appellant, D.Kumange


Counsel
for the State, G. Kalebe(Miss)


Court
Reporter, I.S Namagonya


Court
Interpreter, S. Baziliyo








JUDGMENT





The
appellant Helix Mwaila appeared before the Second Grade Magistrate
court sitting at Lilongwe from 6
th
December, 2006 to 24
th
April, 2008.It was on a charge of Aiding a prisoner to escape
contrary to section 117(a) of the penal code.





Particulars
of the offence averred that on 1
st
December, 2006 at Lilongwe police station Helix Mwaila aided one
Peter Nzenda, a prisoner in lawful custody on a charge of personating

a person employed in the public service to escape from lawful
custody.





The
appellant pleaded not guilty to the charge. Nevertheless at the end
of trial he was found guilty, convicted and sentenced to
perform 360
hours of community work.





At
this juncture I wish to remind myself that I did not have the
advantage which the trial court had of assessing the demeanour
of
witnesses. I further remind myself the provisions of section 5(l)
Criminal Procedure and Evidence Code.





The
appellant was throughout the trial represented by retired Hon.
Justice Kumange of counsel from Kumange & Company. He continued

to represent the appellant before this court in this appeal.





The
petition of appeal has six grounds as follows:







  1. The learned
    magistrate failed to consider the value of documentary evidence.



  2. There was no
    way the police could receive a single document of bail bond.



  3. There was no
    reason why police failed to keep a copy of the alleged bail bond.



  4. The case arose
    out of ‘concocted’ evidence



  5. On the
    totality of the evidence, it was not safe to convict the accused.


  6. The
    sentence is excessive.






Facts
are to the effect that the appellant until his conviction used to
work as a court marshal for the Judiciary. He was based
at the Chief
Resident Magistrates Courts in Lilongwe. It was alleged that on 1
st
December, 2006 at about 4 pm he went at Lilongwe police station. He
met No. A7002 Detective constable Katete (Pw1). Appellant
told Pw1
that he had a bailbond issued by Lilongwe court. He said that
prosecutor constable Mzunga and Constable Malube had given
it to him
to deliver at the police station for the release of Peter Nzenda. Pw1
said that it appeared genuine. He took it to Detective
Sub-Inspector
(D/Sub/Insp) Honde. This officer refused to act on it that is
release Peter Nzenda. Pw1 returned it to appellant.
The appellant
went away.





Inspector
Max Simon Malawa (Pw2) testified to the effect that on 1
st
December, 2006 at about 4pm he was approached by appellant. The
appellant had a bail bond for the release of Peter Nzenda. Pw2

observed that it was issued by the Senior Resident Magistrate Court,
Lilongwe. It had a date stamp. Pw2 instructed Constable
Msiya to
release Peter Nzenda based on that court bailbond.





At
about 5 pm prosecution personnel brought a remand warrant for Peter
Nzenda. Pw2 contacted seargent Ntopela who denied knowledge
of court
bail. Pw2 said that he then realized that the bail was irregular. He
said that there was only one copy of the bail.





Pw3-NoA
9563 D/Constable Malube based at Lilongwe police station testified
that he knew appellant as a court marshal. He further
testified that
he was the investigation officer in which Peter Nzenda was an accused
for personating a public officer.Pw3 arrested
Peter Nzenda on 1
st
December, 2006. Before the case was taken to court the accused
(Peter Nzenda) was released on court bail. He re-arrested Peter

Nzenda and remanded him at Maula prison. Pw3 concluded his testimony
to the effect there was no contact between him and Inspector
Malawa.





Pw4
W/Constable Msiya testified that she was a custody officer at
Lilongwe police station. She further testified that she was present

when appellant produced a court bail bond in respect of Peter Nzenda.
The appellant handed it to her boss one Malawa (Pw2). Pw4
said
thatPw2 ordered her to release Peter Nzenda from police custody. Pw4
obliged to Pw2’sorder. She released Peter Nzenda. Pw4
handed over a
copy of the bail bond.Pw4 testified further that appellant was
present when Peter Nzenda was being released. They
left together out
of the police station. Dw4 testified that she recorded information
about the release of Peter Nzenda in the
custody register.





Pw5
was Peter Nzenda who in the course of giving his testimony was
declared a hostile witness by the prosecutor.





Pw6
D/Sub/Insp. Nkhunda based at Lilongwe police station. He testified
that on 2
nd
December, 2006 he took charge of investigation in which appellant was
alleged to have aided a prisoner to escape. Pw6 recorded
a statement
under caution statement from the appellant. He thereafter formally
charged him. These statements were marked exhibit
p1 and 2
respectively.Pw6 tendered in evidence a custody record register
marked Exp3.





The
appellant entered his defence as Dw1. He gave his particulars. He
testified to the effect that prior to 1
st
December, 2006 appellant reported at Lilongwe police station that his
servant had absconded with money. The servant was employed
to sell
chips. On st December, 2006 at about 3pm whilst at work he was
approached by constable Nzunga and two police women. Constable

Nzunga requested appellant to have a remand warrant signed. The
appellant obliged. Appellant said that later he went at Lilongwe

police station to enquire the progress of his complaint. He tipped
police that his former servant was guarding at Kapala house
at night.
He left the police station. On Sunday 3rd
December, 2006 he was arrested by police at his house in area 36.





Appellant
denied to have met Pw1 and Pw2 at Lilongwe police station. Appellant
said that he did not meet constable Msiya at the
police station. He
admitted to know Peter Nzenda because of cases he was being
prosecuted at the court. Appellant denied taking
court bail to
police for the release of Peter Nzenda.





In
xxD he maintained that constable Nzunga gave him a remand warrant,
not a court bail bond.





Counsel
Kumange attacked the finding of the trial court. In essence he
argued that it was unsafe to convict appellant in the absence
of the
actually bailbond having been exhibited by the State. It was
improper for the police to receive a single document of bailbond.

Counsel argued that the case arose out of concocted evidence. On
sentence it was his submission that the sentence was excessive.
The
operation of sentence ought to have been suspended.





Counsel
Miss Jere for the State conceded that no bailbond in issue was
exhibited. However the State witnesses testified that appellant
went
and was seen at Lilongwe police on the material day. Counsel Jere
concurred with the observation of the trial court that
the practice
of presenting one copy to police was faulty. She argued that there
was sufficient evidence to convict appellant.
On sentence counsel
submitted that the maximum imprisonment is 7 years. Whereas appellant
was ordered to perform community service
for 360 hours. The trial
court was lenient to appellant. The conviction and sentence be
upheld.





This
was the evidence before the trial court.





My
starting point is to look at section 117 (a) of the penal code. It
provides:





“Any
person who-







  1. Aids a
    prisoner in escaping or attempting to escape from custody;



  2. ……………………………….




Shall be guilty
of a felony and shall be liable to imprisonment for seven years.”






It
was the case for the State that appellant on 1
st
December, 2006 aided Peter Nzenda who was in police custody at
Lilongwe police station to escape. Appellant tendered to the police

a fake court bail bond purportedly issued by a magistrate court. On
the strength of the coutr bail police released Peter Nzenda
from
custody.





The
State paraded 6 witnesses. Except for Pw5 Peter Nzenda the rest were
police officers based at Lilongwe police station. From
the court
record Pw5 Peter Nzenda was purportedly regarded as a hostile
witness.





The
first issue to determine is whether the proper procedure was followed
when declaring Peter Nzenda a hostile witness. This is
what Supt
Chafikana submitted at page 51 of the court record.






“PP: This
witness is hostile so I will not proceed examining him in Chief. I
will call other witnesses
.






Counsel for
Accused: No examination.”





It
would appear that pw5 Peter Nzenda was not properly declared a
hostile witness because no foundation was laid as required by

procedure. In Magombo
v Rep
,
1981-83,10 MLR 3 Banda Ag:J re-stated the procedure






“Before I
consider the main contention of Mr Nakanga in this appeal, I would
like first to consider his submission that the correct
procedure was
not followed when the application was made to treat the three
prosecution witnesses as hostile. In my judgment, Mr
Nakanga is right
in his submission and I feel it necessary to put down for the
guidance of prosecutors, and magistrates what I
conceive to be the
correct procedure. A foundation must be laid before an application
is made to the court to treat witnesses
as hostile. In my judgment
that foundation can be laid in the following way. It is the duty of
the prosecutor where he has in his
possession a statement by the
witness for the prosecution which is in direct contradiction to his
testimony to show the statement
to the court and to ask leave to
treat the witness as hostile. It seems to me that a court cannot
properly exercise its discretion
without first seeing the statement.
The witness must be asked if he has made a statement on an occasion
and his attention must
be drawn to the occasion when the statement
was made. Circumstances must be proved sufficiently to designate the
occasion when
the statement was made and usually the statement is
shown to the witness to see if he can recognize it. In my view, once
this
foundation has been laid, the cross-examination of the witness
with a view to discredit him can then proceed. It must, however,
be
emphasized that statements so proved are not admissible as evidence
of the truth of the facts stated in them.”





In
the present case the State did not lay down a foundation to discredit
Pw5 and that he should be declared a hostile witness.
Further more
there is no record that the trial court had declared Pw5 a hostile
witness. I hold the view that Pw5’s testimony
was admissible. I so
find.





The
second issue to determine relates to the purported bail which
appellant produced to Pw2 and Pw4 to facilitate the release of
Pw5.
Pw1, 2 and 4 saw the bailbond. Whereas the appellant in his
statement under caution stated that it was a remand warrant
which
constable Nzunga requested him to have it signed. Unfortunately the
bailbond document in issue was not produced in evidence.
Pw4 said
that a copy was given to Peter Nzenda. Whereas Pw5 at paye 50 of the
court record said that he was not given any document
at the time of
release. He was told that he had been granted court bail.





The
question is whether in the absence of the purported court bail
there was sufficient evidence to sustain a conviction. It is
my view
that the whole case was based on this document. It was a crucial
piece of evidence, I very much doubt that its absence
would be filled
by oral testimony of the police officers. Perhaps, had the State
tendered a certified copy as secondary evidence.
That would have
added some weight.





The
third issue relates to the statement under caution which police
recorded from the appellant. It was tendered in evidenced
as Exp1.
The appellant stated that he was given a remand warrant by constable
Nzunga to have it signed. After causing it to be
signed he returned
it to him. He maintained the same statement in his defence before the
trial court.


The
State did not call constable Nzunga to challenge the assertion of
appellant. Although the State is not obliged to call a witness,
the
circumstances of this case required constable Nzunga to testify
whether to dispute or concur the allegation on the remand warrant.

In the circumstances, the assertion of appellant that it was a remand
warrant was not challenged. The trial court was obliged
to make a
finding of fact on this point. I find that it was a remand warrant.





This
court hesitates to proceed to consider other grounds of appeal. It is
a futile exercise because already the trial was biased
against the
appellant.





There
is doubt whether the court bail ever existed. It is a principle of
law that where there is doubt as to the guilt of an accused.
Such
doubt has to be resolved in accused’s favour. The same applies in
the present case. Consequently the conviction is quashed
and the
sentence of 360 hours community service setaside.





Appeal
allowed.





Pronounced
in open court on 19
th
day of June, 2008 at Lilongwe.











R.R.
Chinangwa


JUDGE

















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