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Tlhogo v The State (Criminal Appeal No. 7/93 ) [1993] BWCA 1; [1993] B.L.R. 287 (CA) (1 July 1993)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 7/93
High Court Criminal Appeal" NO. F35/92
In the matter between:
DAVID MOLETI TLHOGO
Appellant
and
THE STATE
Respondent
Mr. B. Mmolawa for the Appellant Mr. M.E.C. Mhango for the State
RULING ON PROFESSIONAL PRACTICE
Coram: Amissah J.P. Aguda J.A Bizos J.A. Schreiner J.A. Puckrin J.A.
AMISSAH J.P.:
The Appellant was convicted by Mr. Amstell, Chief Magistrate sitting in Francistown, on a charge of unlawful possession of habit-forming drugs on 23rd July, 1986. The Learned Chief Magistrate considered that the case was more serious than usual, because, as he said, "The amount of tablets was absolutely enormous and therefore feel that I should distinguish between this case and those others where less tablets were involved." He sentenced the Appellant to 12 years imprisonment, six strokes and a fine of
P15.000, in default of payment of which the Appellant was to serve a further 3 years imprisonment consecutive to his other term.
Beyond stating that the Appellant was found driving a vehicle in which over 98,000 tablets of methaqualone were concealed near the Kazungula Border Post on or about the 26th of November, 1985,
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and that there was no one else on the vehicle, the facts of the case are not of great importance in this appeal.
The Appellant appealed against his conviction and sentence to the High Court. An application for bail pending appeal made on his behalf came before Murray J. in December 1986. This was at the time that the cases of Desai and Modi v. The State, CA 9/86 and Mooi Mbali and Mbulawa v. The State, CA 21/86, and Kgamanyane v. The State CA 25/86 (all unreported at the time of writing) in which the constitutionality of a mandatory sentence consisting of a combination of a mandatory minimum term of imprisonment, a minimum fine and corporal punishment
under the Habit Forming Drugs Act was under challenge before this Court. Murray J. in the circumstances admitted the Appellant to bail, obviously, pending the decision by this Court in the cases referred to above. The Appellant was, thus, released on bail. Those cases on appeal were duly decided in a
consolidated judgment in February 1987. Mandatory corporal punishment in combination with the other minimum sentences under the Habit
Forming Drugs Act was declared unconstitutional. Save for the invalidity of the sentence of corporal punishment imposed in this case,
as a result of the judgment of this Court, the sentence of the Appellant was not affected by this Court's decision.
With the cases before the Court of Appeal decided, there was no further justification for delaying the Appellant's appeal on the other issues remaining. The Appellant however, did not take steps to prosecute his appeal. He continued at liberty on the bail until the 15th March 1989 when the appeal was called before Aboagye J. in
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the High Court. The record of proceedings reads as follows:
"CORAM: I.R. Aboagye J:
Mr. Attorney Chadwick for the State/Respondent. Appellant and his attorney absent. MR. CHADWICK: Mr. Collins who was to appear for the Applicant says he has lost contact with his client who is on bail since October, 1986. COURT: Appeal is struck out. Appellant is to be arrested to serve his sentence.
It will be noted that according to Mr. Chadwick, the Appellant's attorney, Mr. Collins, had said that he had lost contact with his client since October, 1986. That Mr. Collins had lost contact with the Appellant since October 1986 may or may not be correct as the Appellant was released on bail by order made on
the 9th of December 1986. It is to be noticed, however, that the Appellant appeared in person on the bail application. Be that as it may, nothing of importance turns on this point. It is further to be noticed that the order of Court was: "Appeal is struck out. Appellant is to be arrested to serve
his sentence." That is a matter of importance in this appeal.
Pursuant to the order made by Aboagye J, of arrest, a warrant
was made out on behalf of the Registrar and Master which correctly
recited the order of the Learned Judge in that it stated:
"AND WHEREAS
when the case came before the
the Honourable Mr. Justice Aboagye on 15th March, 1989 the Appellant did not appear to prosecute his appeal and consequently His Lordship Mr. Justice Aboagye ordered that the appeal be struck out and the Appellant be arrested to serve his sentence."
However, in the request to the executor of the warrant as to what should be done to the Appellant on arrest as a result of the Learned
Judge's order, the warrant stated that the executor should
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arrest and receive in custody the Appellant and "bring him before
the High Court as soon as possible." The warrant in terms,
therefore, did not comply with the Learned Judge's order.
The Appellant was duly arrested and sent straight to jail to
continue serving his sentence. A notice of appeal was filed on his
behalf on the 16th of June 1992, and a notice of application for
"readmission to bail pending appeal" was also filed by the
Appellant himself. The appeal filed was against both conviction
and sentence. For the moment, attention is confined to the appeal
against conviction. The grounds for this were:
"1. The Appellant's constitutional rights were grossly violated to the extent that the conviction and sentence cannot be allowed to stand.
2. i) The Learned Magistrate should have acquitted the Appellant having regard to the fact that he (the Magistrate) found the Appellant's story to be reasonably possibly true, ii) The Learned Magistrate did not find that the prosecution had proved its case beyond a reasonable doubt."
The appeal against conviction on these stated groups was heard by Cotran J and was, for reasons given, dismissed. The same grounds of appeal against conviction have now been argued before us, because
the Appellant took the view that the Learned Judge was wrong in his decision.
The nub of the complaint about violation of the Appellant's constitutional rights is that he felt aggrieved that upon his arrest he was taken not to the Court as the warrant requested but to
prison and kept there to serve his sentence. Thus, Counsel argues on his behalf, that section 5(3)(a) of the Constitution has been infringed as he was not brought to
Court after his arrest.
en
Counsel further argues that the Learned Judge of the High Court who
actually heard his appeal, erred in holding that the section had no
application in his case. Section 5(3)(a) of the Constitution
provides that:
"Any person, who is arrested or detained -
(a) for the purpose for bringing him before a court in
the purpose for bringing him before a court in execution
of the order of a court,
and who is not released,
shall be brought as soon as is reasonably practicable before a court."
I am in agreement with the Learned Judge a quo that the provision has no application to the Appellant's case. It was only a technical error which made the request in the warrant
require that the Appellant be brought before the Court. The order of Aboagye J. for the arrest of the Appellant only spoke of the
Appellant being arrested to serve his sentence. For this order, there was every justification as the Appellant had already been tried, convicted and sentenced to imprisonment
for 12 years. He had been allowed bail pending appeal but had not thereafter bothered to prosecute his appeal for a period of over two years. If the Court had not made the order for his arrest, we have no reason to believe that he would have prosecuted his appeal. I am also in agreement with Cotran J. when he says that the onus was on the Appellant to prosecute his appeal.
As I earlier said, the fact that the order of Aboagye J. said nothing about bringing the Appellant to Court, was noted in the recitals
of the warrant. It was, therefore, unfortunate that the warrant made in execution of the Learned Judge's order spoke of bringing the Appellant to Court. His place after conviction and sentence was in prison. He had only been let out because the Court
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had granted him bail. That bail had been cancelled. Once that happened, unless the judge who ordered the cancellation of the bail said otherwise, the Appellant had to resume service of his term in prison.
But Counsel for the Appellant has argued that although the Judge who gave the order made no reference to the Appellant being brought
to Court, nevertheless the warrant made pursuant to the order spoke of his being brought to Court. It was the warrant therefore which
we ought, presumably to look at, and not the judge's order. A reading of section 5(3)(a), shows that the section speaks of an arrest
"in execution of the order of the court." There is no doubt that the order of the Court which formed the basis for the
arrest was not for the purpose of bringing the Appellant to Court. In any case, it cannot be said that the warrant took precedence
over the order of the judge. The protection given by section 5(3)(a) is not intended to give shelter to persons who have been properly convicted and sentenced to imprisonment by a court of law and whose liberty gained through bail
granted by the Court is once more curtailed by order of the Court that their bail be rescinded.
It was further argued that if the Appellant had been brought before the court as requested in the warrant, he might have been able to explain why he had not prosecuted his appeal while he was on bail or why he had not appeared when the case was called before Aboagye J. when the Learned Judge rescinded the bail. Nothing prevented the Appellant from giving any such explanation, if he had one, to the Court after he had been taken back into custody.
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I, therefore, agree with the Learned Judge's view that the provision in the Constitution referred to does not apply in this case.
In the circumstances, I am of the opinion that the point made on the infringement of the Constitution is invalid.
I have read the judgment of the Learned Chief Magistrate and heard the argument made by Counsel on the point that the Learned Magistrate did not find that the prosecution had proved its case beyond reasonable doubt, and also on the point that the Learned Magistrate found that the Appellant's story was "reasonably possibly true," and, therefore, the Appellant ought to have been acquitted. These points made by Counsel have no merit.
On a charge of unlawful possession of habit-forming drugs
under the Act, once the possession is proved, the onus shifts on to
the accused person to prove on the balance of probabilities,
certainly not a question of possibilities, that the possession is
lawful. Section 11(2) of the Habit-Forming Drugs Act (Cap 63:04)
show how possession is proved in cases where the drugs are found on
a vehicle. It provides that:
"Any person who is upon or in charge of or who
accompanies any vehicle,
in or upon which there
is found any habit-forming drug
Shall, until
the contrary is proved, be deemed for the purpose of this Act, to be the possessor of such drug..."
Sub-section (3) of section 1 of the Act provides that:
"The obligation of proving any fact which would be a defence to a charge of contravening any provision of this Act shall lie upon the person charged."
The Appellant does not deny that he was in charge of the vehicle. A large quantity of methaqualone tablets was found on the
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vehicle when he was stopped. Methaqualone is according to the Act and subsidiary legislation made under it, (see Declaration of Habit-Forming Order S. 136 of 1982 and S.I. 35 of 1987) a habit-forming drug. Unless it is proved otherwise, and that proof must come
from the accused, section 11(2) says that he was the possessor. The onus placed on an accused in such cases is discharged by proof according to the standard required in civil cases. If the Appellant does not provide such proof to the satisfaction of the Court, the fact of his possession of the drugs must be accepted by the Court. At that stage, the defence open to the Appellant, which again must be discharged on a balance of probabilities, is that he was in lawful possession of the goods.
The Learned Chief Magistrate clearly said at the end of his judgment that he had "come to the conclusion that the defendant has not discharged the burden of proof that lies upon him in this case." He accordingly found him guilty as charged and convicted him. This view has been endorsed on appeal to the High Court by Cotran J. I have no reason to disagree
with it.
In my opinion, therefore, the appeal against conviction should be dismissed.
As stated earlier, an appeal was also lodged against the sentence imposed on the Appellant. The Learned Chief Magistrate, Mr. Amstell,
had thought that the offence was of a serious nature and had imposed a sentence of 12 years imprisonment and six strokes and a fine of P15.000 or in default 3 years imprisonment conclusive on the 12 years. On appeal, Cotran J reduced the term of imprisonment to ten years, but confirmed the fine imposed together
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with the default sentence. He also set aside the corporal punishment of 6 strokes in pursuance of the cases decided by this Court
in 1987 as being contrary to the Constitution. The appeal against sentence was, however, neither raised in the Appellant's Heads of Argument nor argued before us at the hearing. No argument has, therefore been placed before us as to why we should disturb the sentence, and we do not find any justification for
disturbing the outstading sentence in any way. In the circumstances, I see no reason why we should trouble ourselves over the Appellant's sentence.
The appeal against both the conviction and sentence should, in my opinion, be dismissed.
There is one other matter which I would like to mention. At the opening of the session, we raised the question of the propriety of representation of the Appellant by the lawyer of his choice before us. This we did because it appeared to us from a reading of the record that there might be cause for a complaint that the same lawyer, or a partner of his had, at one time represented the State in the very same case. And the question which that situation posed was whether such representation was proper.
Mr. Mmolawa who appears in the appeal before us on behalf of the Appellant is of the firm of Neville Chadwick and Partners. He had signed the Heads of Argument on behalf of Neville Chadwick and Partners. There was a time, however, when Mr. Neville Chadwick, obviously the Senior Partner in the firm, was an Attorney in the Attorney General's Chambers. He was in charge of the branch of the
Attorney-General's Chambers in Francistown. The record of the case
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shows that in that capacity Mr. Chadwick appeared for the State
before Aboagye J. on the 15th of March, 1989 when this case was on
appeal before the Learned judge in the High Court. It is true that
no argument took place on that occasion as both the Appellant and
his lawyer at that time did not turn up. The following exchange
between Mr. Chadwick and the Court has already been quoted in full
i in this judgment when I was dealing with Aboagye J's recission of
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I the Appellant's bail
It would appear on the face of the record of that exchange
that Mr. Chadwick had come to the Court to argue the appeal and had
not done so only because neither the Appellant nor his lawyer
appeared. That would in turn mean, unless a contrary explanation
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i is given, that Mr. Chadwick was seized of the case to be advanced
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| by the State at that time. Now, Mr. Chadwick is no more with the
Attorney-General's Chambers. He has a firm which privately
i
J practices law as a partnership. His partner has taken on the cause
! of the Appellant in the same case in the name of the partnership.
' Is that right?
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| It is, in my view, of the utmost importance that the principle
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that justice must not only be done but must be seen to be done
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ought to be advanced and upheld in all cases where it applies.
!
Pursuant to that, I think that it is unacceptable that the public
!
should be given the impression that the standards of conduct of the
legal profession allows lawyers to take on the cause of a client at i ! one time only to change at some future date at convenience to
| champion the cause of his opponent in the same dispute. It would
i be damaging to the name of the profession if such conduct were to
i
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be permitted.
It may be argued that in this case that it is not Mr. Chadwick who is now appearing before us to represent the appellant but Mr. Mmolawa, who had nothing to do with the case at its earlier stages. Mr. Mmolawa, however, is a partner of Mr. Chadwick, and parties consult and act for one another in the partnership. Thus, in an office with partners, the likelihood is that cases and strategy are freely discussed among them, so that what one partner knows of the matter would come to the knowledge of the other.
But the question may be asked: what prejudice has been suffered by the parties in this case by the same person or his partner representing the one party at one time and at a later stage changing to represent the opponent
of his former clients? It may well be that in an appeal which depends on the record and the law more than the version of the facts
presented to a Court there is a less likelihood of prejudice. But it is also a fact that even on issues of law not all lawyers are equally experienced, or skilled or adroit in reseach or the presentation of a case, and that these are some of the more important factors in the selection by clients
of a particular lawyer, and the determination of remuneration by that lawyer.
As a general rule, a Court which comes to know that a lawyer who has represented one client is seeking either himself or through a
partner to represent the client's opponet in the same case, whatever be the stage reached, ought not to countenance it. The administration
of justice would be brought into disrepute if the image of lawyers given to the public were to be otherwise.
In this case however, Mr. Chadwick made an affidavit that his association with the case in its earlier stages was of the most formal or nominal kind. He had represented the State when the
case was mentioned before the Court but there was no question of him having prepared the case for argument. Normally, we would consider
an affidavit in this situation undesirable. Should it lead to a counter affidavit being filed this would take the Court into some
investigation which should better be avoided. But, Mr. Mhango for the State told us that he had no objection to Mr. Chadwick's affidavit
and that no prejudice would be suffered by the State by Mr. Mmolawa appearing for the Apellant. In the circumstances we accepted Mr. Chadwick's explanation is his affidavit.
Having regard to the fact that the case had been outstanding for so long, and that a change of lawyers would have occasioned further
delay, and in view the explanation of Mr. Chadwick of the assurance given by Counsel for the State that no prejudice would be suffered, we allowed Mr. Mmolawa to argue this appeal.
That, however,should not be taken as precedent for future action by the Court.
TUN.E.*
tt55AH (JUDGE PRESIDENT)
I agree.
^
T.A. AGUDA (JUDGE OF APPEAL)
I agree
G. BIZOS
(JUDGE OF APPEAL)
**"™mmmm^*.
n
E
I agree.
I agree.
W.H.R. SCHREINER
(JUDGE OF APPEAL)
C.E.PUCKRIN (JUDGE OF APPEAL)
Delivered in open court at Lobatse this
day of July, 1993
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