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Mokgadi v The State (Criminal Appeal No. 14 of 1988 ) [1988] BWCA 18; [1988] B.L.R. 435 (CA) (5 December 1988)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 14 of 1988
High Court Crim. App No. 362 of 1988
In the matter of:
MMOLOTSI MOKGADI
Appellants
GEORGE ARBI ONALENNA TIEGO
vs
THE STATE
Respondent
Mr. V. Seema for the Appellant Mrs. I. Dambe for the Respondent
JUDGMENT
Coram: A.N.E. AMISSAH, JP. T.A. AGUDA, JA. B.A. DOYLE, JA.
AGUDA, JA.
The three defendants in this case appeared before a Magistrate in
Francistown sometimes in February, 1986 on a charge consisting of six
counts alleging various offences against different sections of the Penal
Code. These were (1) garage breaking and stealing contrary to section
307(a); (2) obtaining credit by false pretences contrary to section
316(a); (3), (4) and (5) robbery contrary to section 297(2); and (6)
malicious damage to property contrary to section 337(1). They all pleaded
not guilty to all the counts. However after a lengthy trial each of them
was found guilty on a number of the counts and sentenced on May, 1986.
Defendant No. 1 was sentenced to 14 years imprisonment with 10 strokes of
the cane; defendant 2 was sentenced to 12 years imprisonment; whilst
defendant 3 was sentenced to 12 years imprisonment with 10 strokes of the
cane. All the defendants thereupon appealed to the High Court in respect
2
of their convictions and the sentences passed on them. The Judge on
appeal, Murray, J., on August 17th, 1987 dismissed the appeals of the
appellant with only minor amendments which are unimportant in the
proceedings before us. Having dismissed the appeals the learned Judge
then called for Counsel's addresses on the sentences which had been passed
on them by the trial Magistrate.
It is not quite clear on the Record what arguments Counsel proferred
before the learned Judge nor whether any application for leave to appeal
to this Court was filed before October 9, 1987. What one sees on the
Record is the learned Judge delivered what he called "Reserved Judgment on
sentence appeal and Ruling on Application for leave to appeal to the Court
of Appeal in respect of dismissal of Appeal against conviction" on that
date. With due respect to the learned Judge, it would appear that a most
unusual procedure was thus adopted or/and approved by him in this case.
The judgment of court in a criminal case consists of the conviction where
one is recorded together with the sentence passed in respect of the
conviction. The procedure apparently followed in this case has no basis
in our law. A judge cannot uphold a conviction and whilst reserving
consideration of the sentence to be passed contenance an appeal or leave
to appeal aganst the conviction. A judgment of conviction for an offence
is not complete and cannot be subject of appeal or subject of notice of
leave to appeal until the Court imposes a sentence of whatever nature.
Section 228(2) of the Criminal Procedure and Evidence Act (Cap 08:02) says
that -
"In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law
under which the accused person is convicted, and the punishment to which he is sentenced."
3
It is also pertinent here to call attention to Criminal Forms 3 and A of the Court of Appeal Rules (Cap 49:01) which make provisions respectively in the cases of Notice of Appeal from decisions of the High Court in its appellate jurisdiction, and in the cases of Notice of Appeal for leave to appeal from decisions of the High Court in its appellate
jurisdiction. Both Forms oblige the appellant and an intending appellant to show under "Particulars of Trial and Conviction" the following:
1.
Date of trial and sentence
2.
In what court tried
3.
In what court appeal heard
4.
Sentence.
The defendants were represented by Counsel, and had Counsel taken heed of
the previous observations of this Court that Counsel must follow the Forms
laid down under the Court of Appeal Rules, the High Court might not have
fallen into this error. It should be remarked that Rule 7 of the Court of
Appeal Rules says that "the forms set out in the Second, Third and Fourth
Schedules, or forms as near thereto as circumstances permit, shall be
used in all cases to which such forms are applicable." Be that as it may,
Murray, J., in his "Reserved Judgment on Sentence Appeal and Ruling on
Application for leave to appeal," purported to refer a certain matter to
this Court for a decision. There is no indication that the parties made
any request to him to refer any matter to this Court. However, in the
said Reserved Judgment, the learned Judge said:
"One difficult problem arises in relation to the imposition of corporal punishment on Mokgadi and Tiego (that) was extensively argued before me by Miss Ebrahim (for defendants), and Mr. Chadwick (for the State)."
Unfortunately rather than specify the matter, the learned Judge simply
4
went on to make a long quote from what he had said in an earlier case. He
said that the problem which he had in mind had been stated that case of
Mpotokwane vs The State (Criminal Appeal 271 of 1986) thus:
"In Desai and Others vs The State (Criminal Appeals Nos. 9, 21 and 25 of 1986), Maisels, JP., cited with approval the observation in S. v Pen'n Ander (1986 (2) S.A.L.R. 822) where whipping was deleted in a long sentence for a gang rape. In Desai itself the Court of Appeal exercised a valued judgment and held the mandatory strokes provisions under the habit forming drugs legislation were invalid when coupled with a long prison sentence and a minimum fine."
Thereafter to the learned Judge reinterated the questions he had posed in
the Mpotokwane case. Those questions were:
"Are the provisions in relation to minimum sentences of corporal punishment for rape valid because in some cases a very long prison sentence must be imposed? Can the provision be held unconsitutional by individual Magistrates exercising their own value judgments in particular cases? Does the fact that merely one stroke may be imposed affect the answers to the fore-going questions?"
The learned trial Judge then went on to assert that in his judgment in
that case, this Court failed to provide answers to those questions. He
then went on to say that "The point thus remains at large and has now
arisen in this case." As can be seen the learned Judge had posed a number
of questions in the Mpotokwane case, and it is not clear which "point thus
remains at large." According to the Judge, Mr. Chadwick in the case in
hand submitted that he, the Judge, should reduce the number of strokes to
one. He then concluded as follows:
"I asked Mr. Chadwick if he would wish me to rule on it or to refer the matter to the Court of Appeal under Section 15 of the Court of Appeal Act. I feel that this is a matter upon which the Court of Appeal should rule and I order that it be referred for a decision. The strokes are not to be carried out in the meantime."
5
With respect to the learned Judge, he clearly over-stepped his jurisdiction by, in effect, ordering this Court to make a ruling in
respect of any matter, and in particular, to make a ruling in respect of an unspecified matter. It is not quite clear to whom the order that some matter or question be referred to the Court of Appeal for a decision is directed.
The Court of Appeal Act (Cap 04:01) Section 15 says that -
"A judge of the High Court may reserve for consideration by the court of Appeal any question of law which may arise during any civil or criminal proceedings before him."
In the case now before us, the learned trial Judge has not formulated any
question of law in respect of which he was making a reference to this
Court. Mrs. Dambe who appeared before us found herself unable to
formulate any question of law for reference to this Court. She said
rightly that it would be improper for her to do so the learned Judge
having failed to do so. I take it that a proper reference under
the provisions of the Act should state the facts as found by the Judge and
then pose the question of law to which he desires the Court of Appeal to
provide an answer based on those facts. What we have in this case is a
series of questions posed by the Judge in another case which he says this
Court failed to answer when that case came before us, and it is to those
same questions that it would appear he now seeks an answer by purportedly
calling in aid the provisions of the Court of Appeal Act, Section 15. We
cannot see in what way this Court failed t provide answers to the
questions which were properly raised in that case.
It therefore follows from all these that there is no proper reference
6
to this Court in this case and we find ourselves unable to make any save that the purported reference is refused.
T.A. AGUDA Judge of Appeal
I agree
A.N.E. AMISSAH
Judge President
I agree
B.A. DOYLE Judge of Appeal
GIVEN at Lobatse this 5th day of December, 1988.
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