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Manake and Another v The State (Criminal Appeal No. 4 of 1981) [1981] BWCA 7 (18 June 1981)

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Criminal Appeal No. 4 of 1981
In the matter between:
1st Appellant 2nd Appellant
Respondent
SAMUEL MANAKE
BASUTLI MAZEBEDI
and
THE STATE
Appellants in Person
P. T. C. Skelemani for the Respondent
JUDGMENT
Coram: Dendy-Young, J.A. Aguda, J.A. Amissah, J.A.
AGUDA, J.A.
The two appellants were charged with shop breaking and theft contrary to section 207(a) as read with section 276 of the Penal Code in a Magistrate's Court in Francistown. They pleaded not guilty but a trial in which four witnesses gave evidence for the prosecution whilst each of the accused persons gave evidence for the defence, the trial Magistrate fouv_;d them guilty and convicted them-. Having regard to the nature of the offence and the criminal record of the accused persons, the learned Magistrate sentenced each of them to three years imprisonment.

2.
That was on July 16, I960. i'here is no indication on the
record that either or both of them gave notice of appeal trat
day, nevertheless the trial Magistrate ordered their release
on bail. The very next day, however, the first appellant vrote
a letter to the Registrar indicating his intention to appesl against
his conviction and sentence. The next thing that appears en the
record of this case is the judgment of Hannah, -J. in which ^J
he said:
"The first appellant now appeals against both conviction and sentence and the second appellant seeks leave to appeal".
There is nothing in the record before us to show that the second appellant gave notice of appeal either orally or in writing, and there is no indication as to how he came to seek leave to appeal. However, in his judgment the learned jud^e said that -
"the appeal of fin.t appellant against   ,^J
conviction is dismissed and the second appellant's application for leave to appeal is refused".
The judgment was given on Fovember 17, arid on November 26,
the two appellants together signed a letter addressed to
the Registrar of the High Court headed "Appeal Against
Sentences and Ccnvictions". In the letter the two appellarts
said -
"We beg to submit our application for leave to appeal against the High Court held at Serowe".
3/..

3.
They say that their ground of appeal is conflicting evidence particulars of which they went on to elaborate. In his Heads of Arguments, Counsel for the State referred to the letter since there is no evidence that the appellants even filed any other papers - as "an application for leave to appeal against both conviction and sentence, leave- to appeal having been refused on 17th November, 1980". This is clearly an error brought about no doubt by the procedure adapted by the applicants.,
First we would like to state that it is imperative that each appellant should sign his own notice of appeal; and that the practice by which two or more appellants sign a single notice of appeal should stop as it has no basis in the • Court of Appeal Act (fjee section 330) or by the Rules made thereunder. Secondly it is the duty of each appellant to file his notice in one of the Forms 1, 2, 3, b, 5 and 6 as may be appropriate to his case. Where owing to ignorance an intending appellant pursues a different course of action, then the appropriate officer of this .court should direct such intending appellant's attention to the right course. v/e have had to make this point because of the confusion caused in this case by the failure of the appellants to file individual Form as may be appropriate in his own case.
_v..

4.
The fact of this case in so far as the second appellant is concerned is that his application for leave to appeal to the High Court was refused. In this circumstance he has no rigrt to bring the present amplication before this court, which must therefore be and is hereby dismissed.
In so far as the first appellant is concerned, his appeal to this court is based ertirc-ly or facts. The judge on appeal in his judgment re-viewed all the relevant facts again and took note of such discrepancies as there were in the evidence, and nevertheless dismissed the appeal. Before us the first appellant repeated substantially what he had said to the Judge at the High Court. We can see no merit in his appeal which is accordingly dismissed.
.. /""