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Mngquibisa and Another v The State (Criminal Appeal No. 7/90 ) [1990] BWCA 1 (1 January 1990)
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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
CRIMINAL APPEAL NO. 7/90 In the matter between:
SEBANGO MNGQUIBISA
- Appellants
BENSON MNGQUIBISA
vs.
THE STATE
- Respondent
I
Mr. L. Ngcongco & Mr. F. Luke for the Appellants Mr. S.A. Afful for the State
JUDGMENT
CORAM:
AMISSAH, J.P., AGUDA, J.A., DOYLE, J.A.
IAGUDA. J.A.
i
! On October 29, 1988 one Kefitlhile Moemisinyana Mmadipudi was, in
company of some friends, walking along an untarred road to Moshupa to watch
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I a football match when he was alleged to have been assaulted by both
appellants. Later that night he died in a police cell in Moshupa. The
first appellant who is about 54 years of age is the father of the second
appellant, about 23 years of age. An autopsy was later performed on the
body of Mmadipudi (hereafter referred to as the "deceased") by a qualified
medical officer. Subsequently the two appellants were charged with the
murder of the deceased. They pleaded not guilty. After due trial, both
were found guilty as charged. The learned trial Judge, having found
extenuating circumtances in respect of both appellants, sentenced each
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of them to 5 years imprisonment with effect from October 20, 1988. It
is against the convictions and sentences that the appellants filed
appeals to this Court.
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The grounds upon which the appellants want this Court to set aside j
their convictions and sentences are as follows:
i
1.
That the learned trial Judge erred and misdirected himself
in law in finding that the provisions of Sections 23, 24 and | ! 25 of the Penal Code were satisfied beyond reasonable doubt. i
!
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2.
That the learned trial Judge erred and misdirected himself
in not finding that it was necessary to find which of the
!
appellants inflicted the fatal blow on the deceased.
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3. That the learned trial Judge misdirected himself in fact in !
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not finding that on the medical evidence it was the
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galvanised pipe that had been used on the deceased by the j
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2nd appellant.
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4. That the learned trial Judge erred and misdirected himself
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in law and in fact.
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j 5. (A5 to sentence) that the sentences imposed by the trial
I Judge in all the circumstances were grossly excessive.
>
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'
i It is common cause that as the deceased and a friend of his were
jwalking towards Moshupa on the day in question, that is October 29, 1988
!
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; the first appellant drove in a motor vehicle passed them. The deceased
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who was under the influence of alcohol uttered some words of vulgar abuse to the first appellant who had swerved from the road to
avoid colliding with him. The first appellant apparently took serious objection to what he regarded as an insult. Not quite long
after, the first appellant
returned in his vehicle and overtook the deceased and his friend, and
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j pulled up. Another vehicle driven by the Second Appellant followed closely j and also pulled up. The first appellant asked the deceased
why he had i insulted him by the use of vulgar abuse. It was at this point that the evidence of the appellants became different
from that of the prosecution. According to the first appellant the deceased at that stage threatened i
him with a clenched fist. The first appellant according to his evidence then came down from his vehicle, got hold of the deceased
lashed him with a sjambok four times. At that juncture, the second appellant suggested that they, that is himself and the first appellant should take the deceased to the police station. According to the first appellant the second appellant brought a rope and they tied the deceased's ankles together and put him in the second appellant's vehicle and took him to the police station. According to both appellants that was all the acts
of assaults that were committed against the deceased by the first appellant that day. As for the the second appellant, he never hit
the deceased. However the prosecution tendered a large amount of evidence which showed definitely that the evidence of both appellants
that they did no further violence to the deceased could not be true.
First there was the evidence of a number of persons who were present at or near the scene of the incidents who gave evidence to the
effect that the first appellant whipped the deceased with sjambok more severely than was admitted by the appellants and that the
second appellant used a piece of galvanised pipe to hit the deceased on a large number of times. Secondly there was the medical evidence
that the deceased had 27 abrasions of varying seriousness when the body was examined on November 1, 1988. Finally there was the evidence
of the police who denied ever assaulting the deceased after he was handed over to them by the appellants supported by the evidence
of a man who shared the police cell with the deceased on the night of the incident that is October 29-30, 1988, to the effect that
to his knowledge the deceased was never assaulted by the police.
PW1 who was with the deceased at the time of the assault told the
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Court what transpired after the first appellant had come out of his vehicle.
He said:
"The 1st accused then held the deceased's head and got him into a stooping position and administered thereon strokes from the
sjambok on the back of the deceased.... the first accused stood in front of the deceased, bent the deceased down towards him and
administered the
whip over the deceased's head onto his back
The strokes from the sjambok landed heavily at the back
of the deceased
When 2nd accused came from his vehicle to the spot where the lashing was going on, he was without that piece of
iron
But then 1st accused asked the 2nd accused
I to go and fetch that piece of iron from his (2nd accused's)
J Dyna truck. I saw the 2nd accused use the galvanised pipe
i on the deceased. I saw 2nd accused hit the deceased three
j times with the galvanised pipe. He was hitting the deceased
between the ribs and the waistline and more towards the
back
The 1st accused stood watching as the 2nd accused was hitting
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the deceased with the iron. I never saw the accused
attempting in any way to stop the 2nd accused from hitting
; the accused
"
i As regards this particular piece of evidence, appellant's counsel
[argued before us, that there was the evidence of some other witnesses
jto the effect that they did not see the second appellant administer the
!galvanised pipe on the deceased. However the evidence of severe beatings
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j by the two appellants was amply corroborated by the medical evidence
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|tendered in this case which showed that the deceased suffered 27 abrasions
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i of varying severity but consistent with the use of both instruments of
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J beatings as told to the Court by PW1. A few examples of the 27 abrasions
as revealed in the medical evidence will suffice to show conclusively
that the appellants could not be telling the Court the truth when they
said that all the assaults suffered in their hands were the four strokes
administered to the deceased by the first appellant. The medical evidence
revealed that the deceased suffered among others.
1. an abrasion 3.5 cm x 1.5 cm in front of the right ear,
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horizontally placed.
2.
an abrasion 1.5 cm x 1 cm on the prehead in the mid-line.
3.
an abrasion 3.8 cm x 2 cm on the left shoulder plate placed.
4.
a curved abrasion 3cm x 0.5 cm on the outerside of the abdomen left side touching the costal margin obliquely placed.
j 5. a curved abrasion 7 cm x 1 cm obliquely placed 1.5 cm j below last mentioned injury.
6.
an abrasion 3.5 cm x 2.5 cm on the right knee, vertically placed.
7.
an abrasion 4.5 cm x 1.5 cm horizontally placed 1 cm below last mentioned injury.
8.
an abrasion 4.5 cm x 1 cm on the outerside of the right leg.
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9. an abrasion 1.5 cm x 0.5 cm on the outside of the right hip,
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oliquely placed.
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10. an abrasion 2.5 cm x 0.5 cm on the right lumber region of the
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abdomen, vertically placed.
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|In addition medical evidence revealed a perforation 1.2 cm on the part
iof the intestines known as the jejunun. The cause of death was given as
!peritonitis due to the perforation mentioned and the perforation could
ihave been caused by a blow with a blunt object, for example, by a fist
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!by kicks with the foot, or by any other blunt instrument.
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I There was evidence from a number of police officers that it was the
jappellants that physically assisted the deceased to enter the police
I station at Moshupa police station; that he was unable to stand on his
feet; that there was only one detention cell at that police station; and
i that the deceased and another person were locked up in that cell on the
night of October 28 - 29, 1988. The other detainee who shared the cell
with the deceased that night gave evidence as per paragraph 3 as follows:
"After I have been incarcerated in the cell, the
police closed the cell
fifteeen to twenty
[Z]
i
minutes after I had been put into the cell the
man I found in the cell started crying
I stood up walked towards where I thought the door to the cell was. I felt the door with my
! hand and realised that it was indeed the door to
the cell. I then banged the door and shouted
calling for help
"
When there was no help forthcoming he fell asleep at about 9 pm. Meanwhile
the deceased had stopped groaning, he having apparently died by then.
jFinally he told the Court:
i
!
"I was never assaulted
by the police whilst I was
j
at the police station
or in the police cells. I
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never saw the man, my
cellmate, being assaulted by
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the police or anybody
whilst I was with him in the
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police cells."
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j In view of all this evidence this Court cannot now hold that the
I learned trial Judge erred in arriving at the conclusion that the deceased
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'died as a result of the grievous bodily harm done to him by the two
j appellants.
! Counsel for the appellants submitted before us that the plea of
|provocation availed the appellants from a charge of murder. In this
'learned Counsel was clearly in error. The learned trial Judge considered
ithis issue and held rightly, in my view, that the utterance of the vulgar
jwords to the first appellant could not amount to provocation in law in
jail the circumstances of this case to justify the brutal assault on the
ideceased as shown in the medical evidence.
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j I shall now consider the first ground of appeal, namely that the
j
ilearned trial Judge erred in holding that the provisions of sections 21,
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;20 and 23 were satisfied. This submission is based on two findings by
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|the learned trial Judge, namely (1) that from the testimony of the doctor jwho performed the post mortem examination on the deceased,
it was not
jclear as to which of the injuries resulted in the death of the deceased,
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and (2) that it was not clear from the entire evidence as to which of
the two appellants struck the fatal blow.
Upon the evidence presented before him the learned trial Judge found
that both appellants fell within the definition of "principal offenders"
contained in Section 21 of the Penal Code. Under the provisions of that
Section -
j 1. every person who actually does the act or makes
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the omission which constitutes an offence;
2.
every person who does or omits to do any act for
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the purpose of enabling or aiding another person
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to commit an offence;
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3.
every person who aids or abets another person in
committing an offence; and
j 4. any person who counsels or procures any other person
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to commit an offence
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I may be charged with actually committing the offence and convicted
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! accordingly. I have no doubt in my mind whatsoever that the learned
i i | trial Judge was right in coming to the conclusion on the facts of this
i case that both appellants were principal parties to the offence charged.
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! No other conclusion was possible other than that both appellants
1. inflicted serious injuries on the deceased and
that the injuries led to his death in circumstances amounting to murder;
I 2. that both appellants aided each other in inflicting
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those injuries; and
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; 3. at least that the first appellant procurred the second
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appellant to inflict serious injuries on the deceased.
! In all these circumstances there can be no doubt that the convictions of
both appellants were absolutely justified under the provisions of Section
21 of the Penal Code.
The learned trial Judge found upon the evidence before him that both
appellants formed the common intention to prosecute the unlawful purpose
13
of inflicting serious grievous bodily harm on the deceased and that death having resulted from the execution of that common intention
both were
guilty of the murder of the deceased. The learned trial Judge put it
I in this way:
"From the entire evidence before me, the act of beating
the defenceless and drunken deceased who posed no
danger to any (sic!) of the accused persons, with the
sjambok and a deadly weapon such as the galvanised pipe
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in a most insensate manner as revealed by the evidence
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ought to have struck the 1st accused and his confederate
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that death would be the probable consequence of the
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prosecution of their unlawful purpose, j?. v. Puna 1945
AD 410, 415, R. v. Morela 1947 (3) SA 147 (A)M
I have not been convinced that this amounts to or constitutes a misdirection
either in law or upon the facts of this particular case. On the other
hand, no other verdict was possible upon the facts of this case other
than that both appellants had the common intention to inflict grievous
bodily harm on the deceased (Section 20). The wording of the Section and
those of Section 8 of the Nigerian Criminal Code are exactly the same,
namely -
"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the
prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution
of such purpose, each of them is deemed to have committed the offence."
In the Nigerian case of Alaghua & Ors. v. The King (1950) 19 NLR 128, PC,
! on a charge of murder, the evidence established that a deliberate and
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| unprovoked attack of a kind likely to endanger human life and resulting
i as a probable consequence in the infliction of grievous harm and the
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I death of the victim was carried out in concert by all the accused. The
!
!
Judicial Committee of the Privy Council held that the Judge, in dealing with the execution of the common design was correct in his
direction that
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"It does not matter which of the accused did what," and that each of the
accused would be guilty of the murder of the victim. In Muonwen & Ors.
v. R.. [1963] 1 All NLR 95, the Supreme Court of Nigeria held that an j
assault committed on the victim by persons with a common intention to !
i
do grievous harm was murder by each and every one of such persons. In j
i the old English case of R v. Salmon (1880) 6 QBD 79 three persons decided i
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I to amuse themselves by shooting with a rifle at a target without taking
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;
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j proper precautions to prevent injury to others. One of the shots killed j
!
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| killed a man. It was held that all the three persons were guilty
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I of manslaughter, although there is no proof which of the three
\
fired the fatal shot.
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It is quite clear from the evidence that the first appellant, at j
! least, counselled the second appellant to inflict grievous bodily harm
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! on the deceased and even if it was only unlawful harm inflicted on the
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! deceased by the second appellant that caused the death of the deceased,
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! both of them would be guilty of murder by virtue of Section 23-
I Therefore viewed from whatever angle whatsoever the conviction of
j
; both appellants are amply justified either as principal offenders under j
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| Section 21 or under the principle of common intention under Section 22.
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| The mere presence of a person at the scene of crime, even though j not accidental would not necessarily amount to counselling or even aiding
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i or abetting, but the fact that a person was voluntarily and purposely present J witnessing the commission of a crime and offered
no opposition, even though I he might reasonably be expected to prevent the commission of the crime,
; and had the power to do so, or at least to express his dissent, might
I
justify the conclusion that he wilfully encouraged and so aided and abetted the commission of the crime: R.. v. Clarkson & Ors. [1971] 1 WLR 1042;
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55 Cr.App. R. 445; and R.. v. Coney (1882) 8QBD 534, 557. See also
R. v. Allan [1965] 1 QB 130; 147 Cr.App. R. 243. In this case the facts
established show clearly that the first appellant aided and abetted the
second appellant his son who inflicted grievous bodily harm on the
deceased which harm caused the death of the deceased. Both of them are
therefore guilty of the murder of the deceased.
j In my view therefore the second ground of appeal which complains that
i the learned trial Judge erred in not finding which of the appellants
inflicted the fatal blow on the deceased is completely misconceived.
Ground 3 of the grounds of appeal complains that the learned trial i i Judge erred in not finding that on the medical evidence the galvanised
| pipe had been used on the deceased. It is not quite clear if the
I appellant wanted this court to allow this appeal on this ground. It is
! quite clear that the deceased died from the grievous bodily harm done
! to him by the appellants. In my view therefore this ground of appeal
| fails.
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Ground 4 of the grounds of appeal, namely, "that the learned trial
i Judge erred and misdirected himself in law and in fact", is a totally
j
I useless ground. A ground of appeal which complains of an error in law
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j must give particulars of in which part of the judgment the trial judge
i has committed the error and in what respect what the trial Judge said
j amounted to an error in law. Similarly when an appellant complains of
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j a misdirection either in law or on the facts, such an appellant must in
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I his ground of appeal point out in what respect such misdirection has been
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j committed. A Court of Appeal cannot be expected to throw its nett into
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I the wide and sometimes deep waters of judgment to see if it will catch
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one or more fishes of misdirection and other errors. In my view an
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appellant has a duty and a responsibility to call the attention of the appellate courts to any specific errors of law or misdirection
as to facts or as to law which might have been committed by the trial Court. Hence the Court of Appeal Rules, Rule 12 (applicable
by virtue of
rule 35 (2)) provides that -i
"(1) A notice of appeal shall set forth the grounds of
appeal and shall state the exact nature of the relief
j
sought and the names and addresses of all parties
directly affected by the appeal. It shall also have
endorsed on it an address within Botswana for service.
(2) If the grounds of appeal allege misdirection or
error in law, the particulars and nature of the
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misdirection or error shall be clearly stated.
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(3) The notice of appeal shall set forth concisely
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and under distinct heads the grounds upon which the
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appellant intends to rely at the hearing of the
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appeal without any argument or narrative, and shall be
I numbered consecutively.
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(4) No ground which is vague or general in terms or
which discloses no reasonable ground of appeal shall
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be permitted except the general ground that the
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judgment is against the weight of evidence, and any
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ground of appeal or any part thereof which is not
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permitted under this rule may be struck out by the
; Court on its own motion or on application by the
respondent.
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(5) The appellant shall not, without the leave of
the Court, urge or be heard in support of any ground
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of appeal not mentioned in the notice of appeal,
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but the Court may in its discretion allow the appellant
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to amend the grounds of appeal upon payment of the
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fees prescribed for making such amendment and upon such
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terms as the Court may deem just."
i It is very important that Counsel should bear it in mind that the Rules of Court are meant to be obeyed by all litigants including
appellants in criminal convictions, and that this Court will not always be willing to over-look lapses especially as regards compliance
i with every paragraph of Rule 12.
As stated earlier there was an appeal against sentence, but that appeal was withdrawn in the course of argument. I need say nothing
more
j j
of that appeal save that the appellants, but more especially the first appellant, were fortunate to have abandoned that appeal, since in my view the sentences imposed were, at the least, over-lenient. Be that as it may the appeals against sentence are struck out.
For all above reasons, the appeals of both appellants are dismissed, The convictions of the appellants and the sentences imposed upon
them by the trial court are affirmed.
I Delivered in open court
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T.A. AGUDA Judge of Appeal
iI agree.
A.N.E. AMISSAH Judge President
1 agree.
LE Judge of Appeal
B.A. DOYLE
!
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