IN
THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CONFIRMATION
CASE NO. 1073 OF 1996
THE
REPUBLIC
VERSUS
DAVIDE
LASTON NJEWA
From
the 4th Grade Magistrate’s Court sitting at Milonde/Mulanje
Criminal
case No. 12 of 1996
CORAM: MWAUNGULU, J
Chimwaza, State Advocate for the Sate
Accused, present and unrepresented
Mangison, Official Interpreter
Mangwana, Recording Officer
Mwaungulu,
J
JUDGMENT
This case was set down by the Honourable Mr. Justice
Tambala to consider the conviction. The
defendant, Davide Laston Njewa, was convicted by the 4th Grade Magistrate at
Mulanje of the offence of theft contrary to section 278 of the Penal Code. He was sentenced to a fine of K45.00 in
default one month public work. The
sentence is not in issue. It is the
conviction which is.
The defendant was convicted for stealing the
complainant’s door. The way the door
was taken by the defendant is in the following manner. The defendant employed the complainant to
work in his garden. He paid him before
hand. The defendant also gave the
complainant a hoe to use. The
complainant never worked in the defendant’s garden. He did not return the money and the hoe. On several occasions the defendant requested
the complainant to return the hoe and the money. The complainant did not.
On the day in question the defendant went to complainant’s house and
demanded the money and the hoe. The
complainant would not give the same.
The defendant, therefore, took the door to his house. This is all there is to this case. These are the facts on which the conviction
was based.
The defendant was charged of theft contrary to section
278 of the Penal Code. Theft is defined
in section 271 of the Penal Code:
“A person who fraudulently and without claim of right
takes anything capable of being stolen or fraudulently converts to the use of
any person other than the general or special order thereof anything capable of
being stolen, is said to steal that thing.”
For
purposes of this case, two elements called for consideration. It must be shown that the defendant acted
fraudulently and without claim of right.
The facts of this case disclose none of these elements. It clearly is on the Prosecution to show
that the defendant took the door without claim of right. Where the defendant shows that he believes
that in law he had the right to deprive the other of his property, there is no
theft. R v Bernhard 26
Cr. App. R. 137; R v Wade
1819 11 Cox 549 and Haris v Harison (M) 63 Cr. Law Rev.
497). Where there is a claim of right
it is immaterial that there exists no basis in law for such belief. (R v Turner No. 2)55 Cr. App.
R. 336). In Bernhard the Court
of Criminal Appeal in England approved this passage in Stevens, History of
the Criminal Law of England. “Fraud
is inconsistent with a claim of right made in good faith to do the act
complained of. A man who takes
possession of property which he really believes to be his own does not take it
fraudulently however unfounded his claim may be. This may be the only case in which ignorance of the law affects
the legal character of acts done under its influence.” In fairness to the defendant here, he must
have been acting on the premise that, since his hoe and money had not been
brought, he was entitled to seize goods belonging to the complainant. In that
sense he would not have been acting without a claim of right.
On the second aspect, the Court below had to be
satisfied on the facts that the defendant was acting fraudulently. In R v Ghost 75 Cr. App. Rep.
154, the Criminal Court of Appeal in England was considering the meaning of the
words “dishonestly” under section 2 of the Theft Act, 1968. The word “dishonestly” replaced the earlier requirement
under English Statutes that the offender should take the property “fraudulently
and without claim of right.” The words
“dishonestly” was intended to replace in England are words in our Statute. Section 3 of the Penal Code provides that
this Code shall be interpreted according to the principles of legal
interpretation obtaining in England and expressions used in it shall be
presumed so far as it is consistent with their context and except as may be in
English Criminal Law and shall be construed in accordance therewith.
The replacement of the words “fraudulently” and
“without claim of right” with “dishonestly” in the Theft Act of 1968 did not
substantially alter the definition of theft both at common law and
statute. The definition of “dishonestly”
in Gosh’s Case, therefore, is relevant in determining the mental
element of the offence of theft under our Penal Code. In the Ghost
case Lord Lane, the Chief Justice, said:
“In determining whether the Prosecution has proved
that the defendant was acting dishonestly a jury must first of all decide
whether according to the ordinary standards of reasonable and honest people
what was done was dishonest. If it was
not dishonest that is the standard that is the end of the m atter and the
prosecution fails.
If it was dishonest by those standards then the jury
must consider whether he himself must
have realized that what he was doing was by those standards dishonest. In most cases where the actions are
obviously dishonest by ordinary standards there will be no doubt about it. It will be obvious that the defendant
himself knew that he was acting dishonestly.
It was dishonest for the defendant to act in a way ordinary people consider
to be dishonest.”
I have my grave doubts whether what the defendant did
here was fraudulent. According to the
definition here, even if what the defendant did was fraudulent, I have my doubt
whether the defendant realized that he was acting fraudulently.
The best that could have happened here was to enter a
plea of not guilty and let the matter proceed to trial. The conviction is unsafe and is set aside,
so is the sentence.
Made in open Court this 8th day of May 1997 at
Blantyre.
D.F.
Mwaungulu
JUDGE
.