Likanyi v S (2 of 2016) [2017] NASC 10 (7 August 2017)

Likanyi v S (2 of 2016) [2017] NASC 10 (7 August 2017)

The Supreme Court, exercising its inherent jurisdiction under Article 81 of the Constitution, may reverse its own prior decision in exceptional circumstances to prevent manifest injustice. The applicant was in an identical position to another accused whose prosecution was permanently stayed due to unlawful removal from Botswana by Namibian authorities. The failure to extend the same relief to the applicant constituted a grave injustice and unequal treatment. The State failed to prove the High Court had jurisdiction to try the applicant. The prior Supreme Court decision was reversed, the applicant's conviction and sentence set aside, and a permanent stay of prosecution ordered.

Citation
[2017] NASC 10
Parties
Applicant: Osbert Mwenyi Likanyi; Respondent: The State
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
7 August 2017 7 August 2017 6 April 2017
Case Number
2 of 2016
Procedural Posture
Criminal Appeal / Constitutional Application / Supreme Court Judgment on Application to Reverse Prior Supreme Court Decision
Outcome
Application allowed; prior Supreme Court decision reversed; conviction and sentence set aside; permanent stay of prosecution ordered; immediate release of applicant ordered.
Legal Topics
Jurisdiction, Res Judicata, Equality Before the Law, Extradition, Inherent Jurisdiction of Apex Court
Source Language
English
Criminal Law Constitutional Law International Law Jurisdiction Res Judicata Equality Before the Law Extradition Inherent Jurisdiction of Apex Court

Case Brief

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Parties

Osbert Mwenyi Likanyi

Applicant

The State

Respondent

Procedural Posture

Criminal Appeal / Constitutional Application / Supreme Court Judgment on Application to Reverse Prior Supreme Court Decision

Legal Issues

  1. 1 Whether the Supreme Court can reverse its own prior decision under Article 81 of the Namibian Constitution in exceptional circumstances
  2. 2 Whether the applicant was denied equality before the law contrary to Article 10 of the Constitution
  3. 3 Whether the Namibian courts had jurisdiction to try the applicant given his removal from Botswana by Namibian authorities in breach of international law

Ratio Decidendi

The Supreme Court, exercising its inherent jurisdiction under Article 81 of the Constitution, may reverse its own prior decision in exceptional circumstances to prevent manifest injustice. The applicant was in an identical position to another accused whose prosecution was permanently stayed due to unlawful removal from Botswana by Namibian authorities. The failure to extend the same relief to the applicant constituted a grave injustice and unequal treatment. The State failed to prove the High Court had jurisdiction to try the applicant. The prior Supreme Court decision was reversed, the applicant's conviction and sentence set aside, and a permanent stay of prosecution ordered.

Court Disposition

Application allowed; prior Supreme Court decision reversed; conviction and sentence set aside; permanent stay of prosecution ordered; immediate release of applicant ordered.

Orders

  • The judgment and order of the Supreme Court in the Mushwena-appeal allowing the State’s appeal against the High Court’s order upholding a special plea of lack of jurisdiction in respect of Mr Likanyi is reversed and of no effect.
  • Mr Likanyi's conviction and sentence on the charges under the indictment in the High Court are set aside and his immediate release ordered.