Banda Lucious v R (48 of 2006) [2006] MWHC 141 (06 November 2006);
THE REPUBLIC…………………………………………..RESPONDENT
(Assited by Nyimba and Mwakhwawa both of Counsel )
Steven Kayuni, Janet Kayuni and
M. Chidzonde
(all Senior State Advocates representing the State).
Mrs. M. Pindani – Principal Court Reporter
Kamanga- Official Interpreter
Chimasula Phiri J,
three counts. On the first count the appellant was charged with uttering a false document contrary to Section 360 as read with Section
356 of the Penal Code. The particulars alleged that Lucius Chidampamba Banda in the month of February 2004 in the district of Balaka
knowingly and fraudulently uttered a false document namely a Malawi School Certificate of Education number 1951/91 to the Balaka
Returning Officer, Atanazio Gabriel Chibwana. The second count which is alternate to the above count, the prosecution alleged that
Lucius Chidampamba Banda procured the execution of a document by false pretences contrary to Section 362 as read with Section 356
of the Penal Code. The particulars of this alternate count allege that Lucius Chidampamba Banda in the month of February 2004 in
the district of Balaka made false representations as to the nature of a Malawi School Certificate of Education bearing number 1951/91
thereby procured Atanazio Gabriel Chibwana, a Balaka Returning Officer to execute the said document.
the Penal Code. The particulars averred for this offence are that Lucius Chidampamba Banda in the month of February 2004 in the district
of Balaka knowingly and fraudulently gave false information to the Balaka Returning Officer, Atanazio Gabriel Chibwana causing him
to omit to conduct the prescribed English proficiency test for members of parliament which he would have done if the true state of
facts respecting which information was given were known to him as required by a person employed in the public service. The appellant
was convicted on the first count and sentenced to 21 months imprisonment with hard labour. Naturally the alternate count fell on
the way side. Again the lower court convicted the appellant on the third count and sentenced him to 6 months imprisonment with hard
labour. The sentences imposed by the learned Chief Resident Magistrate were ordered to run concurrently with effect from 31st August,
2006.
10 grounds of appeal against conviction and 5 grounds of appeal against sentence. These grounds are set out in full in the judgment.
Appeal against conviction (Grounds) The learned Magistrate erred in finding that the The learned Magistrate erred in finding that exhibit PEX8(b) The learned trial Magistrate erred in finding that the The learned Magistrate erred in holding that the documents by P.W.4 The learned trial Magistrate erred in not according the The learned Magistrate erred in failing to appreciate the need Certificate in issue were indeed those alleged to have been The learned Magistrate erred in coming to a conclusion that when the nomination papers were not proven to have been The learned Magistrate erred in finding that the state had In all circumstances, the conviction on uttering a false requiring it to be quashed. Appeal against sentence (Grounds) The learned Magistrate erred in meting out a custodial The learned Magistrate took into account and based his nature of the document uttered. The sentencing of the Appellant/Accused to 21 months I.H.L The learned Magistrate erred in imposing a custodial The learned Magistrate’s sentence was wrong in principle The first prosecution witness (PW1) was Eustance Sam Kazembe, deputy headmaster of Mangochi Secondary School. He stated that in Mid- The appellant opened his appeal in relation to conviction on count contrary to Section 122 of the Penal Code. This section reads as false intending thereby to cause, or knowing it to be likely to do or omit anything which such person employed in to use the lawful power of such person employed in the statement of offence; far as possible the use of technical terms, and in which the use of technical terms shall not be a nomination paper completed and executed in the Oaths, that the candidate – Section 356 provides for a maximum sentence of 3 years imprisonment for forgery. document is executed in several parts, each part is primary certified copies given under these Rules: copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; or oral accounts of the contents of a document given by some person who has himself seen it. except in the cases hereinafter mentioned. when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it when the original has been destroyed or lost or is in the power of a person not legally bound to produce it, and who refuses to or when the original is of such a nature as not to be when the original is a public document within the when the original is a document of which a certified copy is permitted by these Rules, or by any other law in force in Malawi, to where the originals consist of numerous accounts or other documents which cannot conveniently relevant unless and until the party proposing to prove them Secondary evidence of the contents of the documents when the document to be proved is itself a notice: when, from the nature of the case, the adverse party must know that he will be required to produce it;
The learned trial Magistrate erred in admitting in evidence
given by the accused and which the Electoral Commission
actually based in their decision in allowing the appellant or to
have the accused/appellant stand as Parliamentary
Candidate for the Elections.
written by the Appellant.
the appellant. Further, that the sentence passed by the lower court was appropriate. The State prays for dismissal of the appeal
in its entirety.
October 2005 some Police Officers came to the school to check on the records of Alfred Blessings Mandala who wrote his MSCE examinations
at the school in 1991. He said that he checked the records and found duplicate notification of the results for Alfred Blessings Mandala
and other names of candidates who sat for the examinations in that year. He stated that Mandala passed his MSCE Examination and that
his certificate number was 1951/91. He also stated that the records at the school showed that Mandala collected his certificate on
21st April1992. In cross-examination the witness said that he joined Mangochi Secondary School in 2004 and that his evidence is based
on the school records. He conceded that he did not know who documented these records. He also said that the record concerning certificate
1951/91 was prepared by MANEB. In Re-examination he stated that he assumed that Alfred Mandala collected his certificate.
when both the headmaster and his deputy were out on other duties, there came a Police Officer to check on the records for 1991 MSCE
examination and in particular for Lucius C. Banda. PW 2 testified that according to these records the said candidate failed. She
tendered the record which was prepared by MANEB. In cross-examination she stated that she joined Bilira CDSS in January 2003 and
that the records in question are kept in the Headmaster’s office. She said that it was her first time to see the document from
MANEB. She stated that it was the document from MANEB that made her believe that Lucius Banda was at Bilira CDSS. She confessed that
she could not say that Lucius Banda forged any document. In Re-examination the witness said the results came from MANEB.
Secondary School and passed. He was awarded a certificate and its number is 1951/91 which he collected from the school on 21st April
1992.
In cross examination the witness said that he told the Police that he had his certificate which he was awarded by MANEB.
seven years and knew the appellant as Member of Parliament for Balaka North. As District Commissioner he was returning officer for
the Malawi Electoral Commission (MEC) during the 2004 general elections. One of duties was to receive nomination papers for contesting
candidates. He said that he received nomination papers from the appellant in 2004. He said that one of the requirements for the candidates
was a minimum of an MSCE or its equivalent. He stated that those without minimum qualification were required to sit for a prescribed
English proficiency test. He stated that the appellant was not among the list of candidates who sat for the English proficiency test.
PW4 stated that the appellant attached to his nomination papers a copy of his MSCE. He tendered both nomination papers and copy of
said MSCE Certificate as Exhibits PEX VIII(a) and PEX VIII(b) respectively. In cross-examination PW4 stated that MEC instructed the
witness to use MSCE certification as qualification for candidates contesting to become members of parliament and in the absence of
such qualification, conduct English proficiency test. PW4 said he received a copy of MSCE certificate from the appellant. He stated
that his duty was to check the documents for compliance. However, verification of the same was for MEC and other relevant bodies.
PW4 said that confirmation of features on MSCE certificates was the domain of MANEB. PW4 stated that he could not say if Exhibit
PEX VIII(b) is the same certificate he received from the appellant but his belief was that it was. He said candidates presented copies
while retaining the original thereof. He said he kept the copy at the Office and when the Police came during investigations of this
matter he pulled out the copy and gave it to the Police. In Re-examination he said that he was given a photocopy of the certificate
and not the original. His belief is that Exhibit PEX VIII(b)is the copy he received from the appellant.
years. His department does verification of certificates. He stated that a certificate number carries the year of qualification and
is specific to the particular individual and neither two persons could have the same certificate number nor two centres could have
the same number. He stated that where the contents of the certificate tally with the information in the database the certificate
is genuine. If there is any variation between the certificate and the database information, the certificate is fake or false. He
stated that in October 2005 the Police brought to the witness Exhibit PEX VIII(b) for vetting. The certificate bore the name of Lucius
Chicco Banda. He stated that however the records showed that the rightful owner of the certificate number 1951/91 was Alfred Blessings
Mandala from Mangochi Secondary School. He told the Court that examination number 11/015 which appears on Exhibit PEXVIII(b) was
for some other girl at Chiradzulu Secondary School. He also told the Court that their database showed that Lucius C. Banda wrote
his MSCE examination in 1991 at Bilira MCDE as candidate number 96/015 and failed the examination. Another unsuccessful attempt was
made in 1992 at Charles Lwangwa. He stated that Lucius Chicco Banda or Lucius Chidampamba Banda did not qualify for an MSCE certificate.
In cross-examination he stated that it was himself and Mr. Bandawe who vetted exhibit PEX VIII(b). However, it was Mr.Bandawe who
signed in the presence of PW5. The witness stated that he has knowledge that this exhibit PEX VIII(b) was the certificate which was
given to the Returning Officer. In Re-examination, PW5 stated that Mr. Bandawe signed with knowledge of PW5.
that he was detailed to go to Balaka District Commissioner’s Office to investigate a certificate that the appellant is alleged
to have presented to the returning officer. He took the certificate to MANEB for verification and he was told that the certificate
belonged to Alfred Blessings Mandala of Mangochi. He went to Mangochi and collected Mandala’s certificate and took it to MANEB
where it was confirmed to be genuine. PW6 then arrested the appellant, who exercised his right to remain silent.
elected to exercise his constitutional right to remain silent. He did not call any witnesses.
such statements relates to the burden of proof in criminal cases. No judgment will pass the test if it does not allude to the fact
that the burden to prove the guilt of the accused person is placed on the prosecution. This position has come to be accepted that
it is not the duty of an accused person to prove his innocence. The Constitution of Malawi has even created a constitutional right
for an accused person in a fair trial to be presumed innocent and to remain silent during plea proceedings or trial and not to testify
during trial – Vide: Section 42(2)(f)(iii). An accused person who elects to exercise his right to remain silent should not
be taken to be fearing self incrimination. The presumption of innocence on the part of the accused cannot be taken away because of
his election not to testify. The second statement which is obvious relates to the standard of proof in criminal cases. A judgment
will not pass the test if it omits to state that in criminal cases the standard of proof is beyond any reasonable doubt. Put simply
the court must feel sure of the guilt of the accused. Where the Court has some doubts relating to the guilt of the accused on certain
elements of the offence, it will not be open to such a court to proceed to convict the accused. Otherwise the impartiality and neutrality
of the Court will be questioned. It is sufficient for now that the learned Chief Resident Magistrate remembered to make these statements
in his judgment.
had not allowed that evidence, the prosecution could have failed in its duty to discharge the burden of proof up to the requisite
standard. The State makes a concession but is quick to argue that the principle that substantial justice should be done without undue
regard for technicality at all times – Vide: Section 3 of the Criminal Procedure and Evidence Code. (CP & EC).
follows:-
"Whoever gives to any person employed in the public
that he will thereby cause such person employed in the
public service –
or
a fine of K300 and to imprisonment for three years."
to the criminal law. The law provides in Section 128 of the CP & EC how charges should be framed. Part of the section reads as
follows:-
without necessarily stating all the essential
elements of the offence, and if the offence
charged is one created by written law, shall
contain a reference to the section, regulation, by-
law or rule of the written law creating the offence;
necessary:
Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge, nothing
in this paragraph shall require any more particulars to be given than those so required;"
essential facts giving rise to the crime together with any mental element required by the charging section. Meaning as he understands
the law that if the particulars fail to allege any of the elements of the offence charged, the charge will be incompetent as a basis
of a criminal proceeding against the accused. Meaning further that if court proceeded to take an accused through a ‘trial’
based on such a charge it would have indulged in an exercise in futility. There would have been no charge on which to try and convict
the accused for the simple reason that the charge, or specifically the particulars thereof would have failed to disclose any offence
the basis of any trial. Secondly, and this is in keeping with our present constitutional dispensation and the consequent criminal
jurisprudence, it must have the effect of informing the accused with sufficient particularity at the commencement of the trial of
the charges or charge against him.
shall, in addition to the rights which he or she has as a detained person, have the right as an accused person, to a fair trial,
which shall include the right to be informed with sufficient particularity of the charge.
EC provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal
or review on account of an error, omission, irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment
or other proceedings before or during the trial or in any inquiry or other proceedings under the Code unless such error or irregularity
has in fact occasioned a failure of justice, provided that in determining whether any error, omission or irregularity has occasioned
a failure of justice the Court shall have regard to the question whether the objection could and should have been raised at an earlier
state in the proceedings.
the same was the creation of the prosecution and not parliament. The words used in Section 122 appear to be plain and unambiguous.
The actus reus of the offence consists in the giving to a person employed in the public service any information. The mens rea consists of knowledge of the giver of that information or belief that the information is false. Further the giver of that information must have intended to cause or have knowledge that the false
information will likely cause such public servant to do or omit to do what he should have done or do what he should not have done
had the true state of facts been known to that public servant. The prosecution relied on the alleged fact that the appellant gave
the returning officer at Balaka information that he had an MSCE certificate. As a result of this information the returning officer
exempted the appellant from sitting for an English proficiency test. Did the appellant give this information? The prosecution relied
on Exhibit VIII(a) which is the Nomination Form for a National Assembly candidate. At page 3 of that form it is indicated in writing
the following words –
‘Photocopy of my MSCE Certificate.’
that it was the appellant who wrote these words. The assumption that operated on the minds of the prosecution and the Court was that
since the nomination form was for the appellant, then it must have been the appellant who wrote these words. The burden of proof
was on the prosecution to prove that these words were written by the appellant. It was never the duty of the appellant to show that
this was not his writing. The lower court erred in not resolving the benefit of doubt in favour of the appellant. Even assuming that
these words were written by the appellant, were the words false ? Again for a moment, the prosecution will be given the benefit of
doubt that it had proved falsity of the document, what was the mens rea ? The particulars of the offence quoted above indicate that the appellant did so knowingly and fraudulently to induce the returning
officer not to conduct an English proficiency test. The prosecution provided a list of candidates who were to sit for English proficiency
test because such candidates did not have MSCE Certificates or equivalent qualification. The State Counsel argued that had the appellant
not indicated that he had an MSCE Certificate he would have been required to sit for English proficiency test. Mr. Chisanga has argued
and rightly so in my view that the requirement for one to have an MSCE Certificate in order to be exempt from English proficiency
test is not a requirement of the electoral law under Section 38 of the Parliamentary and Presidential Elections Act, 1993. Section
38(1)(b)(ii) provides –
‘Every candidate or election representative shall at the
(i)……
(ii) is able to speak and to read the English language well
enough to take an active part in the proceedings of the
a candidate or to be exempt from English proficiency test.
Similar provision exists in Section 51 of the Constitution.
enough. The Malawi Supreme Court of Appeal articulated this position is MSCA Civil Appeal No. 17 of 2004 – The State and The Malawi Electoral Commission (appellant) and Ex-parte Rigtone E. Nzima (Respondent) when it was stated-
section 38 (1) (b) (ii) of the P.P.E. Act. We hold the view that upon applying the ordinary rules of statutory interpretation, and
against the background of section 51 (1) (b) of the Constitution, section 38 (1) (b) (ii) of the P.P.E. Act means the following:
a candidate for Parliamentary elections is under a duty to proffer evidence, whatsoever and howsoever, or to make a statutory declaration,
that he or she is able to read and speak the English language well enough to take an active part in the proceedings of the National
Assembly. Evidence to be adduced or proffered is any evidence whatsoever, which in any given case is available to the candidate.
Where one does not have any means of proof by way of any particular form of evidence, a candidate may, thus in the alternative, present
a statutory declaration made by the candidate before a magistrate or a commissioner for oaths. Both the evidence and the statutory
declaration, in the alternative, are means prescribed by the Legislature by which in any particular case a prospective candidate
may show that she or he is able to read and speak the English language well enough in order for her or him to actively take part
in Parliamentary proceedings. Thus, in any given case, either a submission of evidence or presentation of a statutory declaration
would suffice. A candidate who adduces evidence besides presenting a statutory declaration is undoubtedly more than merely being
suitably qualified for nomination.
the purpose, under section 38 (1) (b) (ii) of the P. P. E. Act. Besides, there is no power delegated to the appellant for the administration
of the English language test, as a form of evidence in addition to the form of evidence or statutory declaration required under section
38 (1) (b) (ii) of the P.P.E. Act or section 51 (1) (b) of the Constitution. Be that as it may, we hold the view that a certificate
issued upon the taking of such oral examinations would be part of the evidence, to be received under the relevant provisions of the
Constitution or the P.P.E. Act, of the fact that a candidate has the required ability to read and speak the English language."
provision. Counsel for the State has contended that the appellant should have objected to the charge when it was read to him. I do
not, with respect, accept this argument. In the current constitutional order where an accused person is virtually allowed to seal
his mouth, he can let the prosecution make a fool of itself. It is not the duty of the accused to be a mercenary to the prosecution
to help it come up with proper charges. If the State, in a hurry to secure a conviction, omits to properly charge the accused, the
state does so at the risk of losing the case. Sections 3 and 5 of the CP & EC do not in my view help the State either. The defect
in the charge caused substantive failure of justice. The conviction under Section 122 was misguided, irregular and cannot stand.
Now turning to the first count relating to uttering a false document the appellant’s
counsel has argued that the prosecution failed to prove that the appellant uttered a false document. The argument is premised on
the basis that documents relied upon by the state in the form of Exhibits PEXVIII (a) and PEX VIII(b) were improperly admitted in
evidence. This was contrary to the Criminal Procedure and Evidence (Documentary Evidence) Rules.
The State has argued that these exhibits were properly admitted in evidence. Further,
even if it turns out that these exhibits were not properly admitted, the appellant did not object to their production and inclusion
in the evidence in the lower Court and should not be allowed to do so now. Furthermore, it was the duty of the appellant to produce
his original certificate of MSCE to rebut the evidence which the prosecution had adduced in the court below.
Exhibits PEX VIII(a) and (b) are not original copies but photocopies. Exhibit PEX
VIII (a) is a Nomination Form for a National Assembly Candidate. This particular exhibit is for Mr. Lucius Chicco Banda of Sosola
Village, T.A. Nsamala, Balaka. On page 1 thereof it has both printed and written words. Among the printed words it is indicated that
it was directed or addressed to the Returning Officer. In the written words it was inserted with words of Balaka North in the Balaka
district. There is a column for official use only where time and date of receipt of nomination is indicated as 12:30 in the afternoon
on 27th February 2004. Among other details it is also indicated that the nomination was accepted and the returning officer signed.
There is a stamp of Balaka District Assembly duly embossed on the document. Original writings on page 1 are name of a legal practitioner,
his address, signature and also words indicating that this is a certified true copy of original.
On Page 2 which is also a photocopy there are printed as well as handwritten words
and figures. These are details of electors from Balaka North Constituency. The candidate’s consent and contact details are
captured. The name of the candidate is given as Lucius Chidampamba Banda and he appended his signature.
On Page 3 which is also a photocopy indicates candidates details and attachment.
The pertinent details relate to the fact that the candidate was sponsored by U.D.F. political party and there is a political party
endorsement of the UDF District Governor at the end foot of the page. In the middle part of the page under column V there are ticks
that the candidate has evidence of his ability to speak and read the English Language and the alternative is also ticked to show
statutory declaration attesting to his ability to speak and read the English language. As earlier on quoted this is also where the
writing - "Photocopy of my MSCE certificate" appears.
The document continues up to page 7 with receipt attached in photocopy.
Exhibit PEX VIII(b) is a MANEB photocopy certificate certifying that Lucius Chicco
Banda qualified for the award of an MSCE Certificate. It shows the grades, certificate number 1951/91 and Examination number 11/015
for MSCE Examination of June 1991. In the middle part of this photocopy are the following handwritten words
"FAKE.
Verified by M. Bandawe
12/10/05 Signature. "
liable to the same punishment as if he had forged the thing in question."
Section 4 defines uttering to mean and include using or dealing with and attempting to use or deal with and attempting to induce any
person to use, deal with or act upon the thing in question. Knowingly used in connexion with any term denoting uttering or using
implies knowledge of the character of the thing uttered or used.
Therefore the elements of the offence appear to have the mens rea of knowingly and fraudulently and actus reus of uttering a false document.
The Criminal Procedure and Evidence (Documentary Evidence)
3-(1) The contents of documents may be proved either
by primary or secondary evidence.
evidence of the document. Where a document is executed
in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary
evidence as against the parties executing it; where a
number of documents are all made by one uniform
process, as in the case of printing, lithography or
photography, each is primary evidence of the contents of
the rest: but where they are all copies of a common original,
they are not primary evidence of the contents of the original.
(3) In these Rules "secondary evidence" means –
such copies;
(5) Secondary evidence may be given of the existence,
condition or contents of a document in the following
cases-
or any persons out of reach of, or not subject to, the process of the court or of any person legally bound to produce it, and when, after the notice mentioned in rule 4 such person does not produce it;
is proved in which case such written admission is admissible;
does not produce it after reasonable notice or when the party offering evidence of its contents cannot, for any other reason not
arising from his own default or neglect, produce it in reasonable time;
be given in evidence;
Provided however that evidence as to such general result may be given only by a person
who has examined them and is skilled in the examination of such documents.
shows that he is entitled to give secondary evidence of the
contents of such document under these Rules or unless the
genuineness of a document is in question.
the party in whose possession or power the document is, or to his counsel, such notice to produce it as is prescribed by law, and
if no notice is so prescribed, then, such notice as the court considers reasonable in the circumstances of the case:
in any other case in which the court thinks fit to dispense with it.