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Matlapeng v The State (Criminal Appeal No. 33 of 1991 ) [1991] BWCA 20; [1991] B.L.R. 369 (CA) (5 December 1991)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 33 of 1991 HiRh Court Crim. Trial No. 7 of 1991
In the matter of:
ERIC KENOSI MATLAPENG
Respondent
GODFREY GOSEGOMANG RABANTHENG Appellant/Respondent
vs
THE STATE
Respondent/Appellant
Eric K. Matlapeng in person
Mr. M. Masoba for Appellant Godfrey G. Rabantheng
Mr. I. E. Motsamai for the State
JUDGMENT
Coram: A.N.E. AMISSM J.P.: T. A. AGUDA, J.A.: B. A. DOYLE, J.A.:
AGUDA. J.A.:
On April 26, 1991, the State filed a criminal charge consisting of six counts against Eric Kenosi Matlapeng and Godfrey Gosegomang Rabantheng in the High Court. On the first count the accused persons were charged with robbery contrary to Section 291 of the Penal Code and punishable under Section 292(2) of the same Code. Count two
charged both accused persons for the unlawful use of a motor vehicle contrary to Section 290 of the Code. The remaining four counts
charged both accused persons with offences contrary to Section 9(1) and 9(4) of the Arms and Ammunition Act, Cap 24:01, and punishable
under subsection (5) of the Section of the Act.
Both accused persons pleaded not guilty to all the counts of the charge. At the trial which followed the prosecution called eleven witnesses, tendered a number of documents in evidence, and
!'2
then closed its case. Accused No.l decided not to call evidence
whatsoever nor to make any statement to the Court. However although
Accused No.2 also decided not to call evidence he made an unsworn
statement from the dock.
In a reserved judgment, the learned trial Judge returned a verdict
of guilty against the first accused on all the six counts, and one
of guilty on counts 1, 2, 5 and 6 against the second accused. After
taking pleas in mitigation of punishment on behalf of both accused,
the trial Judge sentenced both accused persons to terms of imprisonment
as follows, in the words of the learned trial Judge:
"On Count 1, both accused will be sentenced for 7 years. On Count 2, unlawful use of a motor vehicle both accused will be sentenced to imprisonment for a period of 2 years. On Count 3 which is the Count relating to the AK 47 Rifle only Accused No.l has been found guilty on this charge and taking Counts 3 and 4 together I sentence him
to imprisonment for 2 years. On Counts 5 and 6 the Accused are both sentenced each to a period of 2 years. All sentences imposed are to run concurrently."
On August 13, 1991 the second Accused gave notice of leave to appeal against his conviction and sentence. Then on September 6, 1991, the Attorney-General made an application to the High Court
for leave to appeal against the sentences imposed upon the accused in this case. The application was purported to have been made under the Court of Appeal Act, Cap 04:01, Section 11(d).
At this stage I would wish to comment on some procedural matters which in my view deserve some consideration in this case. First, I must with all due respect confess my inability to fully understand
the sentences passed by the learned trial Judge. Whilst it is easy to understand the sentences passed in respect of Counts 1 and
2 by suitable amendments namely by changing "both" to "each" I have
13.
found some difficulty in understanding the other sentences. The learned trial Judge said "On Count 3 which is a count relating
to the AK 47 Rifle only Accused No.l has been found guilty on this charge and taking Counts 3 and 4 together I sentence him to imprisonment for 2 years." If this is taken literally, it would be an erroneous sentence since it purports to lump Counts 3 and 4 together and pass a single sentence of 2 years in respect of such combined
convictions. This would be improper in law. One can only assume that the learned trial Judge was saying that since the charges covered
by Counts 3 and 4 relate respectively to the possession of the AK 47 and to the ammunition necessary for its use, he was sentencing
the accused to a term of imprisonment for a term of two years in respect of each count which sentences were to run concurrently.
Finally the learned trial Judge said that "On Counts 5 and 6 the accused are both sentenced each to a period of 2 years." On its face this means that each accused is sentenced to a two years imprisonment in respect of Counts 5 and 6 combined. This would in law be clearly improper. It is not only desirable but imperative that a
trial Judge should set down very clearly what sentence he is imposing in respect of each count of charge containing many counts.
The second procedural matter I would wish to comment upon is the procedure adopted by the second Accused's legal representative. Counsel filed what he headed "Notice of Application for Leave to Appeal to the Court of Appeal," whilst the second accused was entitled to appeal as of right under the Court of Appeal Act, Section 10. The judgment that was being appealed was a final decision of the High Court sitting at first instance, and was therefore covered
4
by Section 10(a). Furthermore Counsel completely shut his eyes
to the provision of Rule 33 of the Court of Appeal Rules, and Crimina
Form 1 made thereunder, or Criminal Form 2 if indeed this was a
case in which leave was necessary. I would wish to take this
opportunity once more to emphasise that the Rules of Court including
the prescribed Forms are there for compliance by Counsel. The forms
must be used as they are or in a modified form.
The third procedural matter for comment is that the prosecutor
in the Attorney-General's Chambers did not only similarly neglect
the provisions of the Rules of the Court, but purported to seek
leave to appeal under Section 11(d) of the Court of Appeal Act.
Had Counsel taken the trouble to have a look at the Act, he would
have easily discovered that the Section and Subsection relied upon
were inappropriate. Section 11(d) says that
"
an appeal shall lie from any decision of the
High Court to the Court of Appeal with the leave of
the High Court
from any decision in any civil
or criminal proceedings given on appeal from any other court to the High Court."
This provision in my view is very clear and needs no interpretation.
It is Section 12 of the Act that gives a right of appeal to the
Attorney-General and any other prosecutor and only on questions
of law and rightly by leave of the High Court or where such leave
has been refused, then by leave of the Court of Appeal.
It is unnecessary to set down in very great detail the facts
of this case. However so much of the facts as is necessary for
a determination of the appeal will be stated. On June 29, 1990
the two accused persons and another persons all masked, robbed,
at a few kilometres outside Mahalapye, a security vehicle conveying
5
the sum of P248 800 in cash from Barclays Bank, Broadhurst, Gaborone,
to the branches of the Bank in Mahalapye and Palapye. They had
held up the occupants of the security vehicle by threatening to
shoot them with an AK 47 Assault Rifle in possession of first accused
and a pistol in possession of second accused. The two occupants
of the security vehicle were asked by the robbers to run into the
bush which they did whilst the robbers drove away in the security
vehicle. After removing the money from the vehicle the robbers
then abandoned the vehicle some kilometres away and the police later
found it. The police subsequently arrested accused No.l on July
1, 1990 and the Accused No.2 the following day. On that day, that
is July 2, 1990, Accused No.2 made a statement to the Magistrate
which was subsequently admitted in evidence at the trial.
The facts as herein stated have been common cause in the appeal
filed by the second accused (hereinafter referred to as "the
appellant"). There was also no dispute that the two accused persons
and the third person had in their possession the two Arms and
quantities of ammunition as charged. The only point strenuously
argued before this Court by Counsel for the appellant is that the
learned trial Judge failed to apply the proper test when dealing
with the defence of compulsion raised by the appellant. Section
15 of the Penal Code provides that -
"A person is not criminally responsible for an
offence if it is committed by two or more offenders
and if the act is done or omitted only because
during the whole of the time in which it is being
done or omitted the person is compelled to do or
omit to do the act by threats on the part of the
other offender or offenders instantly to kill him
or do him grievous bodily harm if he refuses
"
It is clear that before the appellant in this case could base
6
his defence on this provision he should be able to show on the evidence
that (1) during the whole of the time the robbery was being planned
and executed, (2) he was being compelled to participate in the venture,
(3) by threats that the other offenders would instantly kill him
or do him grievous bodily harm if he refused.
As he profferred his arguments before this Court in order to
convince us that the appellant had a defence under this provision,
Counsel's attention was drawn to the statement which the appellant
made to the Magistrate on his arrest, and which has not at any time
been controverted by the appellant. Try as he could, Counsel was
unable to point out how even on his admissions as carefully set
down in the statement alone the defence of compulsion could be
available to the appellant. In the statement, the appellant had
said that on Friday June 29, 1990, his friend, the first accused
came to call him from his girlfriend's house to follow him. He
complied and both got into a motor vehicle driven by a third person.
He then continued his narration thus:
"
the vehicle got into the Francistown road.
I then asked Eric (first accused) where we were going to. He told me that we were going to Mahalapye and that we would come back soon
.... After we drove past Rasesa the man who drove opened the cabhall. When I glanced I saw him removing a
pistol
When I saw the gun I started worrying.
I was mesmerised not knowing whether these people had connived against me or not. After we drove past Dibete the driver asked Eric
where the people were. Eric said that they could be ahead. When we got into Mahalapye the driver asked Eric where Barclays Bank was.
He said it was ahead. When we drove past Barclays Bank the driver asked Eric if the people were "of that vehicle". When it was asked about the vehicle I saw it. It was a Security Express vehicle. It was then said that the vehicle should be awaited outside Mahalapye. When we passed the vehicle Eric was cutting a mutton cloth. He cut three pieces of this
cloth. He gave me one piece and said I should try it on. They also got their
7
pieces. The vehicle we were in drove for about 10-15 kilometres and stopped on the side of the road where there was a stop sign. After the vehicle had stopped the driver lifted a knob near the seat and opened the boot. The driver then said to Eric in English "Go take that thing". When Eric came from behind he brought something wrapped in a cloth. When he got to the front he unwrapped the cloth and I saw a big AK 47 rifle.
Whilst we were stationery the security system vehicle which we had passed at the bank drove past. The driver followed this vehicle. When we were about to overtake this vehicle the driver
asked me to wear the cloth on the head. After that he said that I should open the window and stop them. I opened the window and tried to stop them but they refused to stop. The driver asked Eric to take out the rifle and shoot this vehicle. Eric took out the rifle.
I held Eric by the jacket sleeve and I said that it was not necessary that he should kill people. When I said that the driver said
to me that "we mean business we will combine you with these people". I suppose that when Eric produced the rifle the men
in the vehicle saw it because they gave in and stopped on the side of the road. The driver then gave me the pistol and he said that I should order the men to get out of the front of the vehicle and get at the back. The men
gave in and they got to the back of their vehicle.
Whilst I watched what was happening Eric and the driver made a U-turn and faced the direction we had come from. I then became frightened. I then left the men in the vehicle and then ran
behind the vehicle I had come in. While I ran I held the pistol. Whilst I ran the vehicle I was following came facing me. When I
met them the driver said to me that I should get into the men's vehicle and follow him. Initially and before we reached Mahalapye he had asked me if I were a driver and I said that I was. I got into these men's vehicle and followed them. We drove along a road facing the railway line and the east. When they approached the railway they turned and faced the north.
The driver then said to me that I should order them to open their money trunk. The men said that they did not have the keys. He then
said that if they refuse with the keys I should shoot them. The man continued to say that they did not have keys."
The appellant then continued to recount how Eric, the driver
and himself subsequently got the box containing the money opened
and made their escape from the scene. Upon these facts I have no
i.8.
doubt in my mind that the learned trial Judge was right when he held that he could not accept the appellant's defence of compulsion under Section 15 of the Penal Code, and rejected it. Therefore
the appeal of the appellant against his conviction is rejected as being totally without merit.
Learned Counsel for the appellant conceded that if the appellant's appeal failed then he had nothing to urge against the appeal by the Attorney-General. The first accused who is educated and apparently knowledgeable in these things also said that he had nothing to say in opposition to the Attorney-General's appeal. As stated earlier,
the Attorney-General sought the leave of the High Court to appeal against the sentences imposed in respect of Counts 3 to 6 of the charge being offences under the Arms and Ammunition Act, Cap 24:01. The learned trial Judge was of the view that leave was unnecessary,
and as I have shown earlier he was in error in this regard. Leave is necessary, and it is clear that in effect he has refused leave,
although had he thought that leave was necessary he would obviously have granted it. Be that as it may I will now grant the leave
and proceed to consider the matter.
All the charges under Counts 3, 4, 5 and 6 were laid under
Section 9 of the Act, and the proved facts establish that the arms
and the ammunition concerned are all arms and ammunitions of war.
The indictments alleged that the offences were punishable under
Subsection (5) of the Section, and were so proved. The Subsection
is very clear in its provision and requires no interpretation.
It says -
"Where the arms or ammunition in relation to which an offence has been committed are
I5_J
arms or ammunition of war, the penalty shall be a term of imprisonment of not less than five years and not more than 10 years."
Therefore in imposing sentences of imprisonment of 2 years in respect of each of the counts 3, 4, 5 and 6 the learned trial Judge was in error. The minimum sentence permissible by law is 5 years imprisonment.
Now as regards Count 2 the learned trial Judge imposed a sentence of 2 years on each of the first accused and the appellant. The offence charged is one of unlawful use of a vehicle contrary to Section 290 of the Penal Code. That Section provides that -
"Any person who unlawfully and without colour of right .... takes or converts to his own or to the use of any other person .... any vehicle shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding P100, or to both."
It is clear that the imposition of a 2 year term of imprisonment
is one in excess of jurisdiction which must be set aside ex debito
justitiae.
For all the reasons hereinabove given the appeal of the appellant
fails and is dismissed and the appeal of the Attorney-General succeeds.
The sentences passed upon both the first accused and the appellant
are set aside and the following are substituted therefor:
Accused No.l
Count 1
7 years' imprisonment
Count 2
6 months' imprisonment
Count 3
5 years' imprisonment
Count 4
5 years' imprisonment
Count 5
5 years' imprisonment
10
Count 6
5 years' imprisonment
All the sentences shall run concurrently.
Appellant (Accused No.2)
Count 1
7 years' imprisonment
Count 2
6 months' imprisonment
Count 5
5 years' imprisonment
Count 6
5 years' imprisonment
All the sentences shall run concurrently.
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, 1991.
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