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Legase v The State (Criminal Appeal No. A of 1988 ) [1988] BWCA 12 (4 July 1988)

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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 4 of 1988 High Court CA No. 198 of 1987
In the matter of:
PHIRI LEGASE     Appellant
vs
THE STATE        Respondent
Mr. E.L. Segaetsho for the Appellant Mrs. I. Dambe for the State
JUDGMENT
Coram:   T.A. Aguda, JA.
L. De Van Winsen, JA. B.A. Doyle, JA.
AGUDA, JA.
When this matter came before us on June 27th, 1988 we dismissed the appeal of the Appellant against both conviction and sentence after listening to Counsel for both parties. We now state our reasons for so doing.
On December 18, 1987, the Appellant appeared before a Magistrate's Court at Mochudi on a three-count charge of (a) stealing a cheque leaf, (b) forgery of the same cheque leaf, and (c) uttering the same knowing it to be forged. He pleaded not guilty to all the counts whereupon the prosecution called six witnesses and closed its case. Thereupon the Magistrate for lack of evidence discharged the Appellant in respect of count 1 and asked him to defend himself in respect of the remaining two counts. The Appellant thereafter decided to and did give evidence on his own behalf and called another

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witness. On August 17, 1987, the Magistrate delivered judgment in the case.
The Appellant was given the benefit of the doubt as to whether it was or was not he who uttered the forged cheque to the bank by which reason the complainant suffered the loss of P2 669,16. In consequence, he was discharged and acquitted of that charge but convicted of the second count. He was then sentenced to imprisonment for 2 years, one of which was suspended for 3 years. In addition the Appellant was ordered to pay to the complainant the sum of P2 669,16 under the provisions of the Criminal Procedure and Evidence Act, Cap 08:02, Section 312.
The Appellant later filed an appeal against the judgment of the Magistrate's Court, which appeal was dismissed by Hallchurch, J., on February 3, 1988. It is against that judgment that the Appellant has filed the appeal to this Court.
During the argument before us we pointed out to the learned Counsel who represented the Appellant that in filing his notice of appeal, he had failed to comply with the provisions of the Court of Appeal Rules. We however decided to overlook this failure but we would want Counsel in all cases coming before this Court to have regard for the appropriate Rules and to comply with them. In filing notice of appeal or notice of leave to appeal, Counsel should have regard to the Forms set down in the Third Schedule to the Court of Appeal Rules and should attempt in all cases to follow the format of those Forms.

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During his argument in this appeal before us, learned Counsel for the Appellant abandoned any appeal against conviction and concentrated on the appeal against sentence. Even in this regard Counsel did not appear to be himself convinced that he had any good grounds upon which he could attack the sentence. He also made a half-hearted attack upon the award of compensation as earlier mentioned, but as he filed no appeal against that award, he had to withdraw that attack.
The trial Magistrate gave reasons why he came to the decision he arrived at in respect of the sentence he imposed in this case. Learned Counsel was unable to convince the High Court as he was unable to convince us that those reasons were not sufficient to be the basis of the sentence, nor that the Magistrate proceeded on wrong basis, or that the sentence was in any way manifestly excessive. In these circumstances we have seen no reasons whatsoever why we should interfere with the decision of both the Magistrate's court and the High Court.
It is for these reasons that we dismissed the appeal of the Appellant and confirmed both the conviction and sentence and upheld the award of compensation made by the Court below.
T. A. AGUDA Judge of Appeal

I agree'
L. de VAN WINSEN Judge of Appeal


I agree
B. A. DOYLE Judge of Appeal

GIVEN at Lobatse this 4th day of July, 1988.

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