Director Of Public Prosecutions v Enos Kakoma (HLA 109/170) [1970] ZMHC 18 (11 December 1970)

DIRECTOR OF PUBLIC PROSECUTIONS v ENOS KAKOMA (1970) ZR 41 (HC) HIGH COURT CHOMBA AGJ 11th DECEMBER 1970 I HLA 109/170 5 Flynote Criminal law and procedure - Arrests - Accused already arrested on other charges and legally before court - Whether necessary to arrest him on additional charges - Criminal Procedure Code, s. 83 - Whether complied with. Headnote The respondent was arrested for the offences of forgery, uttering and 10 theft and prosecuted on those charges. The trial magistrate acquitted him on those counts. The fourth additional count was dismissed by the magistrate on the ground that the respondent, had not been arrested in that connection and that therefore s. 83 of the Criminal Procedure Code had not been complied with. By way of case stated it was submitted for 15 the determination of the court, whether if a person is already arrested ■ for other offences and is legally before court, it is necessary to arrest him for any additional charges. Held: ■ (i) "Arrest" means to physically confine a person who is alleged to 20 have committed an ■ offence. The respondent having earlier been arrested for other offences and already confined, could not have been arrested for the additional charge. For this reason the magistrate erred in dismissing the fourth count on the ground that the respondent had I not been arrested. 25 (ii) In many regularly preferred charges amendments are effected in the course of a trial so as to charge a completely new offence. In such amended cases trials proceed without any reference to s. 83 (1) being made and this has impliedly been acknowledged as correct procedure since it has never been condemned by any 30 court. By analogy therefore there should be no difference in procedure where an additional charge is laid after an accused has been properly brought before the court pursuant to s. 83 (1). ■ (iii) Case remitted for re-trial. I Cases cited: 35 (1) R v Musango Bros, 5 NRLR 599. (2) R v Ali Chembe, 5 NRLR 612. (3) R v Myburgh (1960) 3 NR (selected judgments). Legislation referred to: I Criminal Procedure Code, 1965 (Cap. 7), ss. 83 (1), 317 (b). 40 R L Williams, State Advocate, for the appellant. J L Kazoka, John Kazoka & Co., for the respondent. Judgment Chomba Ag J: This case comes before me by way of case stated. Briefly the facts are that the respondent, Enos Kakoma, was on the 29th May, 1970, I arrested for the offences of forgery, uttering and theft. 45 1970 ZR p42 CHOMBA Ag J He first appeared before the court on the 1st June, 1970, but no plea was taken. He again appeared before court on 2nd June, 1970, and this time the charges were explained to him, and pleas of not guilty taken. Thereafter the case was adjourned to 17th June for trial. On the last 5 named date the case was again adjourned at the request of the respondent's counsel, and the trial finally commenced on 15th July. On this date pleas were again taken, the respondent denying all the charges and evidence was then called in support of the charges. The evidence was concluded on 6th August, 1970. For reasons which are not relevant to the matter 10 before me, the respondent was acquitted I ■ on the first three counts as a result of the submissions in that behalf by the defence counsel. Although a similar submission based on the evidence adduced was made in respect of the fourth court, the trial magistrate dismissed the charge on that count because he found that the respondent had not been arrested in that 15 connection, and that therefore s. 83 (1) of the Criminal Procedure Code had not been complied with. The point that has been submitted for determination by this court is whether, if a person is already arrested for other offences and is legally before the court, it is necessary to I arrest him for any additional count. 20 Section 83 (1) of the Criminal Procedure Code is couched in the following terms: ■ "Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a ■ ■ person who has been arrested without warrant." 25 In determining that the failure by the prosecution to comply with the section had vitiated the charge, on the fourth count, the trial magistrate made reference to two authorities which he thought supported his action. These were R v Musango Bros (1), and R v Ali Chembe(2). In the Musango Brothers' case, the accused firm was charged with traffic offences. 30 In the course of the evidence it was disclosed that the firm was only warned to appear before the court, but no form of process of any nature had been issued in terms of s. 83 (1) of the Criminal Procedure Code. In addition to that irregularity, there were many other irregularities found by the review court. Some of these were weighty, as for instance, 35 that the accused in that case was charged with an offence of allowing a public service vehicle to carry goods in a space other than that authorised by law, in contravention of s. 20 of the then Motor Traffic (Public Service Licences) Regulations. It having first been pointed out that it was wrong to charge a contravention of a section of Regulations, it was 40 then discovered that neither s. 20 nor reg. 20 created the offence charged. It was on this ground held that the charge was improperly laid. It was also observed that the trial magistrate unnecessarily cross - examined the accused. There were two other irregularities committed in the trial of the accused. The conviction was quashed. It was not stated that this 45 was done on the basis of any one of those irregularities, and so I think that it was the cumulative effect of these irregularities that led to the upsetting of the verdict. ■ ■ ■ 1970 ZR p43 I ■ CHOMBA Ag J In the Ali Chembe case there were four substantial irregularities found on review. Among these was the fact that the accused had neither been arrested without warrant, nor summoned, as required by s. 83 (1) of the Criminal Procedure Code, before he was presented for plea before the court. The review judge held that it was mandatory to comply with 5 the section. I wish to make one significant observation in connection with this case. This is that despite the judge's statement that it was mandatory that the section aforesaid should be complied with, he upheld the conviction of the accused on a substituted charge. Before the accused was convicted on the substituted charge, the section was again not 10 complied with. I would have thought that if the section was mandatory in its terms, any conviction on an improperly laid charge would not be sustained. By reason of having upheld the conviction, we are left in the dark as to what consequence should follow the failure to comply with the section, assuming that its I provisions are mandatory as stated. 15 For these reasons I find that neither the Musango Brothers' case nor that of Ali Chembe is of assistance to my quest for a solution in the present case. Therefore we have to look elsewhere in the search. In many regularly (I use this word in the sense of correctness rather than frequency of occurrence) preferred charges, amendments are effected in the course of a trial, so as to charge, as in the Chembe case, supra, a completely new offence. Strictly speaking, in my view, if s. 83 (1) is mandatory in the sense that before any charge is to be entertained, there should be an arrest or an accused's summons, in such amended cases, the accused should either be arrested or summoned before the 25 trial can proceed on the amended charge. It is within my experience that on amended charges, trials have been proceeded with without any reference to s. 83 (1) being made. This has impliedly been acknowledged as correct procedure by appellate courts as I can find no decision ■ ■ ■ condemning that practice. I think that there should be no difference in 30 procedure where an additional charge is laid after an accused has been properly brought before the court, pursuant to s. 83 (1) ibid. Moreover, what I understand by the word "arrest" as used in s.83 (1) is physically to confine a person who is alleged to have committed an offence. The respondent here was earlier arrested for forgery, uttering 35 and theft, and it was while he was in custody in that connection that the additional charge of destroying evidence was preferred. As he was already in confinement, he could not have been arrested for the additional charge. For this reason I think that the magistrate was wrong to dismiss the fourth count, because s. 83 (1) had not been complied with. What, however, 40 appears to be irregular, is the fact that the respondent was not charged by the police with the fourth count, but that irregularity was curable. One cardinal reason for charging a man is that he should be informed of the allegation he is required to meet, so that he can prepare his defence accordingly. This purpose is achieved even if the man is not charged, 45 but if ■ once before the court the charge is read out to him, and he pleads to it. An adjournment may sometimes be desirable, and must be granted if requested, to enable the accused to prepare his defence. In this case the respondent was legally represented, the charge under review was ■ 1970 ZR p44 CHOMBA Ag J brought to his notice more than one month before the trial started. There was no adjournment requested for the specific reason that the respondent had been embarrassed by the additional charge, and therefore that he did not have time to re- I adjust his defence, nor was it submitted 5 on his behalf that the charge had been improperly laid, and therefore that the court had no jurisdiction to entertain it. The respondent was therefore not prejudiced or embarrassed in his defence. In the final analysis I find that the trial magistrate misdirected himself in holding that the fourth count was vitiated by failure by the 10 prosecution to comply with s. 83 (1). ■ Authorities to the contrary exist, and I have only two to refer to, which have been cited by Mr Williams, the state advocate, namely para 191 of the 36th Ed. of Archbold, and the case of R v Myburgh (3). This case is therefore, in terms of s. 317 (b), remitted to the trial magistrate with a direction that he should consider 15 the merits of the charge, and thereupon determine whether or not a prima facie case was disclosed by the prosecution evidence, so as to require the respondent to be placed on his defence. Re - trial ordered ■