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Tlohwe v The State (Criminal Appeal No. 11/95 ) [1995] BWCA 25 (30 June 1995)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 11/95
High Court Criminal Appeal No. 112/94
In the matter of:
EDWIN TLHOWE
Appellant
and
THE STATE
Mr. E.W.F. Luke II for the Appellant Mr. J. Moutswi for the Respondent
RULING
Delivered on 30th June, 1995.
AGUPA J.A.,
When this application was mentioned in this court this morning, counsel representing the appellant Mr. Luke II called my attention to page 57 of the record. Counsel had filed Notice of Application for leave to appeal to this court on 17th March 1995. On page 57 appears a copy of a minute from Clerk Assistant, Court of Appeal, to the Honourable the Chief Justice informing him that the judge who was seized of the matter was no longer in Lobatse. By that minute the Clerk sought a directive of the Chief Justice as to which of the judges would take the application. However, what appeared at the bottom of the minute were the words "appeal refused" and signed by the Chief Justice.
2 Mr. Luke told me that at no time was he afforded an opportunity
of presenting or arguing the notice of application for leave.
On these facts it appears to me that an opportunity should have
been given to counsel for the applicant to present his case
before the High Court. Counsel therefore requested or suggested
that it would be proper to remit the application dated 17th March
1994 to the High Court for proper consideration. Mr. Moutswi
from Attorney General's chambers was in agreement with this
suggestion. It appears to me that this is the only proper thing
to do.
The case is therefore remitted back to the High Court for
that court to deal with the application before it in a proper
manner.
Delivered in open court at Lobatse this 30th day of June, 1995.
A. AGUDA
[JUDGE OF APPEAL]
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