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Nthawe v The State (Criminal Appeal No. 36/91) [1991] BWCA 17; [1991] B.L.R. 375 (CA) (22 November 1991)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 36/91
In the matter between:
PATRICK NTHAWE   Appellant
and
STATE    Respondent
Applicant in Person
Mr. 0. Moupo for the State
JUDGMENT
Coram: B. A. Doyle, JA
W. H. R. Schreiner, JA. C. E. Puckrin, JA.
DOYLE, JA.,
The Applicant was convicted by a Senior Magistrate on four counts. It is only necessary for the purposes of this appeal to refer to two:
(1)      Housebreaking and theft contrary to section 305 (l)(a) and 276 of the Penal Code for which he was sentenced to four years imprisonment and two strokes.
(2)      Armed robbery contrary to section 296 as read with section 297(c) of the Penal Code for which he was sentenced to four years imprisonmnt and two strokes.
The sentences were to run concurrently so the effective imprisonment was four years.
The Applicant appealed to the High Court only against
the conviction and sentence for housebreaking and theft.

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The property allegedly stolen in Housebreaking and theft count were two radios, a pistol and 30 rounds of ammunition for the pistol.
There was ample evidence that within a few days of thee date when the theft took place the Applicant was in possession of the two radios, the pistol and five rounds of the ammunition. It was upon this basis that the Applicant was convicted by the magistrate of the offence of housebreaking and theft.
On the appeal the learned Chief Justice took the point that there was no proof of the breaking. He therefore quashed that conviction and substituted a conviction for Receiving Stolen Property contrary to section 317(1) of the Penal Code. A sentence of five years imprisonment was imposed and the sentences on two counts were to run consecutively. The effective term of imprisonment became 9 years.
The Applicant was refused leave to appeal and applied for leave to this Court which was granted.
The learned Chief Justice having properly stated the
ingredients of breaking went on as follows:
"The next question is whether it was proved that there was breaking in this case. The complainant said inter alia:
"On the 3rd May, 1987, I left for Hukuntsi on leave
I returned back on the 29th May, 1987    when I
returned all the doors of my house were locked as they were when I left".
And in cross-examination he said:
"My house was intact when I came back from my leave. Nothing was broken. I found it as it was when I left".
"In my opinion, what the complainant's evidence amounted

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to was that there was no actual or constructive breaking of the dwelling house. No other witness gave evidence on this issue. How then did the Magistrate resolve the issue in favour of the State. He said inter alia in the course of his judgment:-
"Now though there was no signs of any breaking at the house of PW1, there is no doubt that entry must have been gained in the house by some other means such as unlocking the door, and as I have said that the story of Accused 1 on how he came to possess the two radios cannot be believed, there is no doubt that Accused 1 did break and entered the house of PW1 and stole the items mentioned in count 1:
The learned Magistrate's view that since there was entry, it followed that there must have been breaking was pure speculation. It is not every entry into a building that is accompanied by a breaking of the building. There may be an entry without a breaking having taken place. In my judgment the conclusion of the learned Magistrate was not supported by the evidence. Indeed as pointed out earlier there was no evidence of actual or constructive breaking of the dwelling house. In the circumstances the prosecution failed to prove one of the essential ingredients of the offence of which the appellant was convicted. It follows that that conviction must be set aside".
In my opinion the learned Chief Justice fell into error when he stated that the learned Magistrate's view that, since there was entry, it followed that there must have been a breaking was pure speculation. The evidence was that the resident of the house, a Superintendent of Police, locked up his house as he was going on leave. On his return 26 days later he found that all his doors were still locked and that the house was intact. Nothing was broken and the house was as he left it. Two radios, a pistol and 3 rounds of ammunition were missing.
It seems to me clear that the magistrate understood the evidence of the Superintendent to be that he had secured his house against thieves before going on leave, that on

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return he found his house in the same condition but subsequently noticed that the two radios, pistol and ammunition were missing.
The learned Chief Justice has taken the evidence of the Superintendent to mean that there was no actual or constructive breaking of the dwellling house. In fact all he was saying was that there was no visible sign of a breaking.
I consider that the magistrate's inference that somebody must have entered the house by some means such a unlocking the door was not speculation but a reasonable deduction. This would of course have constituted a breaking.
Take a different context. A person leaves a document in a locked box. Later the box is found but the document gone. Is it not a reasonable inference that someone has opened the box by some means, probably a key? Furthermore if a person shortly afterwards is found in possession of the document, is it not a reasonable inference that he is the person who opened the box?
In this case whoever stole the goods must have entered the house and to do so must have got into the house by some means such as opening a locked door or even a closed window. Either would constitute a breaking.
In my opinion the magistrate was correct in his finding that the Applicant, who was in possession of the stolen goods very soon after they were stolen was the person who stole them and he in some way broke into the house for that purpose .
I would allow this appeal and set aside the substitution of an offence of receiving stolen goods. I would restore

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the conviction and sentence imposed by the learned magistrate.
I see no reason to disagree with the learned Chief Justice that as the transactions were separate, they should be consecutive.
The result is that the effective term of imprisonment becomes eight instead of nine years.
DELIVERED IN OPEN COURT IN LOBATSE ON 5th DECEMBER, 1991
B. A. DOYLE JUDGE OF APPEAL
I agree:         W. H. R. SCHREINER
JUDGE OF APPEAL
I agree:
C. E. PUCKRIN JUDGE OF APPEAL

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 36 of 1991
In the matter between:
PATRICK NTHAWE
vs
THE STATE
Appellant in Person
Mr. 0. Moupo for the State

JUDGMENT
DOYLE, J.A,
In this case an owner left his house properly locked up. When he returned the house was found in the same state but goods were missing. The logical explanation is that the thief opened and relocked the door or doors in same manner.
It seems arguable that the Learned Chief Justice erred in setting aside the conviction for Housebreaking and Theft and substituting a conviction of receiving stolen property.
On the conviction for housebreaking and theft the Appellant had received a sentence of years imprisonment. On the substituted charge the Appellant received a sentence of 5 years imprisonment. There is roomfor argument that the sentence should not have been increased.

I would therefore grant leave to appeal against the conviction for receiving and the sentence of years imprisonment passed thereon.
DELIVERED IN OPEN COURT IN LOBATSE ON 22ND DAY OF NOVEMBER, 1991
B. A. DOYLE JUDGE OF APPEAL

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