Ndubiwa v The State (Criminal Appeal No. 26 of 1993 ) [1994] BWCA 6; [1994] B.L.R. 30 (CA) (31 January 1994)

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Ndubiwa v The State (Criminal Appeal No. 26 of 1993 ) [1994] BWCA 6; [1994] B.L.R. 30 (CA) (31 January 1994)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 26 of 1993
(High Court Criminal Appeal No. F.134 of 1992)
In the matter between:
HENDON NDUBIWA Appellant
versus
THE STATE Respondent
Mr. E. W. Fashole-Luke II for the Appellant Mr. M. K. Achiume for the State
JUDGMENT Delivered on the 31st day of January, 1994
CORAM: AMISSAH, J. P.
SCHREIMER, J. A. TRENGOVE, J. A.
SCHREINER, J. A.:

The appellant was convicted in the Magistrates' Court at Maun on six counts of stealing as a public servant property of the State or property which came into his possession by virtue of his employment, a form of stealing which attracts a special sentence as provided for in section 276 of the Penal Code (Cap. 08:01). He was sentenced on Count 1 to four and a half years imprisonment of which two years were suspended for three years on condition that he was not convicted of having committed within that period any offence of which theft or fraud was an element. On Counts 2 and 3 he received one and half years imprisonment and on counts 4 and 6 nine months. On Count 5 he received two years. All the sentences were to run concurrently so he would serve an effective two and half years. A further two years was suspended.

The Appellant appealed to the High Court and the sentence was altered by making the sentences on each of the six counts four and a half years to run concurrently from the date of the sentence imposed by the High Court and by making the suspension conditional upon the payment by the Appellant of the sum of P9 148.40 being the amount which was found to have been stolen. Leave to appeal to the Appeal Court was granted.

The first point taken on behalf of the Appeallant is that the charges allege that the Appellant stole money which was the property of the Botswana Government and which had come into his possession by virtue of his employment. It is said that charges in this form "duplicitous" in that the special sentence created by section 276 involves stealing the property of the State or property which came into the possession of the accused by virtue of his employment.

Counsel for the Appellant relied upon a statement of Aguda C.J. in the High Court in relation to section 277 which deals with stealing the property of an employer or property which came into the possession of the accused on account of his employers by a clerk or servant.

Aguda C.J. in The State v, Bori Nkwe (1974-75) BLR 63 said:

"Section 277 of the Penal Code creates an offence of stealing with enhanced punishment. Whereas ordinary stealing carries a maximum punishment of three years imprisonment, if the offender is a clerk or a servant and the thing stolen is the property which came into his possession on account of his employers then he will be liable to seven years imprisonment. It is clear that an offence under this section is not disclosed unless the charge against the property stolen "is the property of his employers or it alleges that such property came into his possession on account of his employment.

I wish to stress that the charge must allege one or the other of these things if punishment is sought under that section. If the charge alleges both together then it will be bad for duplicity. It is quite clear I believe that to be able to sustain the allegations made on the charge sheet, and in turn those must have disclosed(sic) an offence under the Section of the Penal Code under which the charge is laid".

The accused in that case pleaded guilty to charges under section 277 of the Penal Code and, after the plea, the prosecutor stated certain facts to the Court which would not have justified a sentence which was imposed under the section on four of the counts. On the first count what he said might possibly have been adequate. The defect was that the prosecutor did not set out by whom the property was owned or that the property came into the possession of the accused on account of his employers. The learned Chief Justice correctly says that failure to prove one of these allegations was fatal to a conviction under the section.

The judgment then states:-
"For above reasons the convictions of an offence under section 277 are set aside".

The "reasons" would appear cumulatively to be duplicity of

the charges and the failure by the prosecutor to prove the commission
of the offence. Because there were allegations of stealing sufficient
to justify a conviction of theft simpliciter under section 271 for
which a sentence of three years could be imposed the accused was found
guilty under this section and the sentence remained unchanged. It is
clear therefore that the learned Judge did not regard the element of
"duplicity" in the charge as sufficiently material to justify a
finding that the proceedings were a nullity.

There are cases where the setting out in a charge of alternative means of committing an offence as provided by the Penal Code may cause confusion and embarrassment to the accused. A simple example of this would occur when the alternatives are inconsistent and irreconcilable. An accused person charged with both alternatives in the same count is entitled to complain that the charge does not clearly set out the offence he is alleged to have committed to enable him to meet it. But where the charge, as in this case, is made out in a manner which does not disloce any inconsistency, then whether it contains elements of two or more alternative methods of committing the offence, the charge should not be dismissed as duplicitous. Here section 276 of the Code which permits increased punishment makes such punishment possible if the property belongs to the State (employer) or comes into the possession of the accused by virtue of his employment. Cases of this type of offence may occur where the property stolen belongs to the employer. Cases may also occur where it does not, but is brought within the ambit of the increased penalty section because the accused stolen property which came into his possession by virtue of his employment. It may, for example, be property which the accused received on behalf of the employer from a third person for safe-keeping. The ownership of the property in the two examples lies in different persons. As theft of the property whether laid in the employer or the third person is covered by section 276, an accused person, charged in the case where the ownership lies in different persons on both legs, may in a situation be entitled to ask what the prosecution is alleging that he did; and the prosecution in charging him with stealing property belonging to different persons may be held not to have given him particulars with sufficient clarity to enable

5
him to meet the charge.
"Duplicity" is a term used in England and described in Archbold 43rd Edition paragraph 1.57 as follows:
"The indictment must not be double; that is to say, no one count of the indictment should charge with having committed two or more separate offences. The rule though simple to state is sometimes difficult to apply."
The authors then proceed to discuss a number of authorities covering
different aspects of the notion of duplicity showing that it is
riddled with problems and different views and uncertainties. In my
view it would not be to the advantage of the jurisprudence of Botswana
to become involved in the same questions which have been raised and
debated in England and the results of which are set out in the pages
of Archbold containing paragraph 1.57.
But that is not the case here. The charge did state that
the property belonged to the State. That is true. It also added that
this property came into the accused person's possession by virtue of
his employment. In fact, that is also true. There is nothing
inconsistent about the statement cast in this form. The accused
person cannot complain that the charge prejudices or embarrasses him
in his defence. The worst that can be said of the insertion of the
words "which came into his possession by virtue of his employment" in
the charge is that it is surplusage which does not add to or detract
from the minimum information required for the accused to make his
defence. In the circumstances, I think it would be wrong to apply a
doctrine of duplicity which depends not so much on the substance of
the meaning of the charge but on a technical or mechanical operation
of a set of rules to it. That is why, with regret, I would not follow

6
the dictum of my learned Brother, Aguda, J. in The State vs. Borie Nkwe in this case.

As far as the present case is concerned I think that the word "duplicity" as understood in English law and set out above is not appropriate to describe the problem raised by Counsel. Strictly, the form of the allegation relating to the money said to be owned by Botswana and also coming into the possession of the Appellant by virtue of his employment is not relevant to the question of theft: it only has bearing upon whether there are present the additional facts which would justify a higher sentence. As Counsel for the Appellant points out the section of the Penal Code which creates the offence of theft is section 271.

Be that as it may, the ultimate question to be answered is whether the charges fall within the provisions of section 128 of the Criminal Evidence and Procedure Act which is definitive of the requirements of a valid indictment or summons. It provides:

"Every indictment or summons shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged."
There are two legs to the matter. The specific offence
must be stated and, secondly, particulars must be given which
constitute reasonable information as to the nature of the offence
charged. The purpose of the section is to ensure that an accused
person should be in a position to defend himself against the charge.
The form of the charge in the present case follows this general
pattern. It sets out the charge, namely, stealing by a person

employed in the Public Service. It is then said that this stealing is contrary to section 264(1) read with section 276 of the Penal Code. Section 264(1) defines the "stealing" and section 276 provides that if one steals property as a member of the Public Service and the theft is of something which is the property of the Botswana Government or which came into the possession of the offender by virtue of his employment one is liable to imprisonment not exceeding seven years. Thus the accused can ascertain from this section that the increased penalty can be imposed in two alternative sets of circumstances - if the property belongs to the Botswana Government or if he gets possession of it by virtue of his employment.

The particulars of the offence are then set out in the charge and there it is alleged that, not only is the money which is stolen the property of the Botswana Government, but it also came into his possession by virtue of his employment. It would perhaps have been more elegant to allege the requirements of section 276 in the alternative but the draftsman cannot be criticised for alleging the two requirements cumulatively. The evidence showed cash payments to the Appellant and thereafter a portion of those payments sticking to his fingers and not sent on. On payment of the full amount by the debtor to the Appellant that money became the property of the Botswana Government. It had come into his possession by virtue of his employment. There were not two crimes: there was one. The charge together with the particulars complies with section 128 of the Criminal Procedure and Evidence Act and the first point fails.

The next criticism of the charge is the failure to refer to section 271 in the charge. This section reads as follows:

8
"Any person who steals anything capable of being stolen is guilty of the offence termed theft and is liable unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided to imprisonment for a term not exceeding three years."

I am inclined to agree with Counsel for the Appellant that this section the provision which declares that theft shall be a crime and that all charges of theft should contain a reference to that section with a further reference to any other section which deals specifically with a different punishment in certain circumstances.

I do not agree however with Counsel that a failure to refer specifically to the sections is fatal to the validity of a charge of theft. Section 131 (a)(i) provides, inter alia, that an indictment or summons shall commence with a statement of the offence charged "and a reference to the section of the law creating the offence". However I am of the view that the provisions of section 131 are not mandatory because its primary object was to lay down requirements concerning the contents of a summons which would have the effect of rendering that summons not open to objection. The opening provision of the section declares that the provisions which follow are to apply to all indictments and summonses and declare that, subject to the provisions of the Act, an indictment or summons which is framed in accordance with the Act shall not be open to objection in respect of its form or content. It does not say that if an indictment or summons does not comply with the provisions it shall be open to objection. The provisions of section 128 remain paramount and the purpose of section 131 is merely to render certain indictments and summonses not liable to objection.

An examination of the charges in the present case shows that a reference to section 271 of the Penal Code would not have provided any further practical information than is given in the charge without it. It says that he has been stealing and that means in ordinary language that he has been guilty of theft. It defines the circumstances of the theft. I cannot see what additional information would have been given to the Appellant if there had been a reference to section 271 with or without references to section 164(1) and section 276. I therefore hold that a reference to section 271 was not necessary in the circumstances of the case.

The next point taken on behalf of the Appellant has no merit. It is said that, because the State produced documents immediately before and during the trial, they should not have been admitted because there had been non-compliance with section 328(1) of the Criminal Procedure and Procedure Act. However as this section applies to documents "required to be served on an accused "it does not apply to the type of document used by the State in the present case. Counsel for the Appellant referred to certain passages in S. v. Watson [1969] 3 SA 405(A) at 409 and 411 which seem to be apposite. Whether as a fact the Appellant was denied a proper opportunity of perusing documents is, of course, another matter. It does however appear that the documents were well-known to the Appellant since they were brought into being by him.

The last matter raised on behalf of the Appellant was the correctness of the alteration by Cotran J. of the sentence passed by Mr. Anderson, the magistrate at Maun. Cotran J. was clearly of the view that the sentence passed by Mr. Anderson was too lenient and, in order to bring it more into line with his view, after restructuring

the sentences of imprisonment in a manner to which no objection can be taken, inserted a further condition to the operation of the suspended portion of the sentence. He made it a further condition of the suspension that the Appellant should pay to the Government of Botswana a sum equal to the amount which he was proved to have stolen namely

P9 148.40. This is not an order for compensation because there was no application by the State in this regard.

We have been referred to authorities both in Botswana and England in which it has been said that sentences of imprisonment should not be made conditional upon the payment of substantial sums to the person who suffered loss unless there was evidence that the accused could indeed pay the amount. (See R. v. Oddy [1974] All ER 666 at 670 and Makura v. The State [1986] BLR 36).

In the present case the learned Judge had before him only evidence as to the amount stolen between November, 1991 and March, 1992. He was giving judgment in August 1993 so that the probabilities are that the amount stolen had been disposed of by then. Lawton L. J. in Oddy's case (supra) points to the possibility that suspended sentences conditional upon the payment of a sum of money which an accused is unable to pay is undesirable for the reason that he may be encouraged to go back to his life of crime in order to avoid the coming into effect of the suspended portion of the sentence. I would therefore delete the condition of suspension introduced by Cotran J. relating to the payment of an amount to the Botswana Government.

The appeal is dismissed save that the condition of suspension that the Appellant should pay his employers the sum of P9 148.50 is deleted.

11
DELIVERED AT THE COURT OF APPEAL, LOBATSE, this 31st day of January, 1994.

I agree,
I agree,
W. H. R. SCHREINER JUDGE OF APPEAL.
A. N. E. AMISSAH JUDGE PRESIDENT

J. J. TRENGOVE JUDGE OF APPEAL

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