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Published online by Cambridge University Press: 28 July 2009
This article is concerned with the situation when, at the end of the prosecution or defence case, in a criminal trial, it emerges that the accused is not guilty as charged but that he has certainly committed a criminal offence of a similar type to the offence charged. To take four examples: A is charged with murder, malice aforethought is not proved, yet A has committed manslaughter. Secondly, A is charged with murder or manslaughter and the prosecution fails to prove that the death resulted from A's actions. A has, however, committed the offence of unlawfully doing grievous harm or assault occasioning actual bodily harm. Next, the charge is attempted murder and it fails because the prosecution cannot prove the stringent mental element (an actual, not just constructive, intention to kill), yet A has committed the offence of unlawfully doing grievous harm or of assault occasioning actual bodily harm. Finally, A is accused of theft but since the complainant consented to the taking he is again not guilty of the offence charged, but has committed the crime of obtaining by false pretences. This type of situation may arise because the evidence does not go as anticipated by the prosecution, or because the prosecutor trips up over some subtle legal point like the difference between theft and obtaining by false pretences. Without the exceptional principles which form the subject of this article, the upshot would be that (after the expense of a trial) the accused would go free although he had clearly committed a crime.
1 Ndecho v. R., 18 E.A.C.A. 171, at 174 (obiter); R. v. Machona, V N.R.L.R. at 128, 131 (obiter); R. v. Mancinelli, VI N.R.L.R. 19, at 21 (obiter).
2 Machona; R. v. Muhoja, 9 E.A.C.A. 70.
3 Begum v. R., 23 E.A.C.A. 402.
4 Chilomba v. The People [1974] Z.R. 151; Kabarazi v. R., 20 E.A.C.A. 156.
5 R. v. Asini [1931–1960] A.L.R. Mal. 720.
6 Mbunde v. Republic [1969] E.A. 475.
7 Cosma v. R., 22 E.A.C.A. 450, at 453.
8 S. 214 of the Zambian Criminal Procedure Code (cap. 160). However, this provision does not apply to trials before the High Court. In two East African cases (Wachira v. R., 21 E.A.C.A. 398, at 404 and Cosma at 452) it was held (by analogy with the English High Court) that in a High Court trial, when a conviction has been entered on one of two alternative charges, no verdict should be entered on the other charge.
9 See R. v. Mungala v. Musaka [1958] R. & N. 109.
10 This term is used in, e.g., R. v. Marcinelli at 21; R. v. Fulenete [1957] R. & N. 322, at 337; Shamabanse v. The People [1972] Z.R. 251, at 254. The English law uses the term, “alternative verdict” or “competent verdict”. See, generally, on this topic in English law, Archbold, Criminal Pleading, Evidence and Practice, London, 1978, paras. 623–627A.
11 S. 181 (a) of the Zambian C.P.C.
12 See “Procedure“, below, p. 29.
13 See, generally, H. F. Morris, “A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935”, [1974] J.A.L. 6.
14 Cap. 160 of the Laws of Zambia (Government Printer, Lusaka), ss. 181–189; cap. 801 (rev. ed., 1968, Government of Malawi, Blantyre), ss. 150–159 (the statute is entitled the “Criminal Procedure and Evidence Code” in Malawi); cap. 75 of the Laws of Kenya (rev. ed., 1968, Government Printer, Nairobi), ss. 179–191; cap. 107 of the Laws of Uganda (rev. ed., 1964, Government Printer, Entebbe) ss. 180–190; cap. 20—Supp. 60 (Revised Laws of Tanganyika, Government Printer, Dar es Salaam), ss. 181–188.
15 For instance: alone of the Codes, the Ugandan C.P.C. (s. 181A) enables a person charged with an offence to be convicted as an accessory after the fact to that offence; all Codes allow a conviction for certain, specified invisible alternatives on a charge of burglary but it is only the Zambian C.P.C. (s. 187) which requires that the punishment imposed on conviction of the alternative may not exceed the maximum sentence for the offence charged; on a charge of receiving, there can be a conviction for retaining (or vice versa) only in Uganda (s. 188 (2) (3) of the C.P.C.) or mainland Tanzania (s. 187 (3) of the C.P.C) Cf. Patel v. R., 22, E.A.C.A. 536. The most important variation exists in the Ugandan C.P.C. and it will be described at p. 29 below.
16 On which, see Archbold, op. cit., paras. 623–623b.
17 S. 150 (M); s. 179 (K); S 180 (U); s. 181 (T).
18 One should note, though, that the courts have sometimes ascribed convictions for an invisible alternative to s. 181 when there was a specific provision which could have been invoked. One example is Chola v. The People [1975] Z.R. 4 where the charge was simple storebreaking and—the breaking element not being made out—the conviction was for being found in any building by night with intent to commit a felony. Now s. 187 authorises conviction for burglary or a kindred offence (including the two just mentioned) at a trial for another of the offences in the same group. Yet in Chola the Court of Appeal referred only to s. 181. For other examples, see Nsama v. The People [1976] Z.R. 172; Chilunga v. Rep. [1968–1970] A.L.R. Mal. 338.
19 S. 152 (M); s. 180 (K); s. 181 (U); s. 182 (T).
20 But not for attempting another offence: Muiruri v. Republic [1967] E.A. 808; Michelo v. The People [1975] E. A. 50; Nsama v. The People [1976] Z.R. 172.
21 Ss. 183–189 (Z); ss. 153–158 (M); ss. 181–191 (K); ss. 182–190 (U); ss. 183–189 (T). The last of these provisions is merely the interpretation section which provides that ss. 181–188 do not derogate from any other provisions and that ss. 182–188 do not derogate from the generality of s. 181. On the next section, s. 190, see Rep. v. Mlenji [1971–1972] A.L.R.Mal. 26, at 29.
22 S. 188 (2); s. 152 (M); s. 188 (K); s. 188 (U); s. 187 (T). See Mbunde v. The Republic [1969] E.A. 475 and R. v. Mungala and Musaka.
23 S. 185(2);s. 154(M);s. 182 (K); s. 183(U);s. 184 (T).
24 S. 183 (Z).
25 S. 184 (Z).
26 S. 186 (Z).
27 S. 187 (Z).
28 Lyasenga v. Republic [1969] E.A. 272, at 274. See also R. v. Mancinelli at 21–22 on “the doctrine of the invisible alternative”.
29 The statement that theft is not an invisible alternative where the charge is receiving (a rule applied in Ratilal Shah v. R. [1958] E.A. 1, at 6) is contradicted by R. v. Chilao, V N. R. L. R. 459. It is submitted that Chilao is wrong.
30 Velezi Kashiza v. R. (1954) 21 E.A.C.A. 389 affirmed in Loizeau v. R. (1956) 23 E.A.C.A. 417. The Ugandan Code has now been amended to allow such a conviction.
31 Republic v. Manganda [1971–1972] A.L.R.Mal. 448.
32 Republic v. Hassan [1971–1972] A.L.R.Mal. 443. (Note that a conviction for theft is allowed on a charge of obtaining by false pretences: s. 188(l) (b) of C.P.C.)
33 R. v. Kaonga, V N. R. L. R. 580; Rep. v. Daliyani [1966–68] A. L. R. Mal. 370. (On a charge of theft, however, a conviction for unlawful possession is authorised: s. 188 (1) (c).)
34 Chizema v. The People [1972] Z.R. 7. The gaps disclosed in Ckizema and the two cases mentioned in the last footnote are especially serious in view of the fact that unlawful possession is such a slim offence. The three cases cited establish that this offence is not committed if the owner of the goods is known or if the accused admits stealing or receiving the goods.
35 Mfundo v. Republic [1975] 63.
36 Mbalule v. Republic [1966–1968] A.L.R.Mal. 272. (However such a substitution was allowed in Thompson v. Republic [1968–1970] A.L.R. Mal. 626.)
37 Bwanali v. Republic [1968–1970] A. L. R. Mal. 115. (Such a substitution was allowed in Zinyose v. Republic [1966–1968] A.L.R. Mal. 626.)
38 Muhere v. Republic [1969] E.A. 313.
39 Chilao at 460.
40 Plainly, from the words of s. 181 and as a matter of principle, the putative invisible alternative ought to be compared with the offence charged at this trial. It is submitted, then, that the Court of Appeal for East Africa took a wrong turning in R. v. Muhoja (1942) 9 E.A.C.A. 70. In deciding whether an appeal court could substitute a conviction for doing grievous harm with intent to disable, under the equivalent of s. 181, the court compared this offence not with the offence charged (murder) but with the alternative of which he was convicted in the trial (manslaughter). (And, indeed, doing grievous harm with intent to disable carries the same sentence as manslaughter and so it was a minor offence only by comparison with murder: see n. 45.)
41 Kaonga at 582. In R. v. Fulnete [1957] R. & N. 332, at 336, it was pointed out that, where it operates, s. 181 reverses the common law rule that a prisoner may not be convicted of a misdemeanour on an indictment for a felony.
42 Chilao at 460. Phiri v. The People [1973] Z.R. 168, at 173.
43 The measure for comparison which has always been taken is the maximum sentence and so it would seem to make no difference if either the offence charged or the offence on which conviction is sought carries a minimum sentence.
44 E.G.R. v. Mancinelli VI N.R.L.R. 19, at 23. Mancinelli was quoted with approval in Chilao at 461; R. v. Justin [1962] R. & N. 614, at 615; and in Nsama v. The People [1976] Z.R. 171.
45 Chilomba v. The People [1974] Z.R. 151. In this case, the Zambian Supreme Court had substituted a conviction for wounding with intent to maim c/s 224 of the Penal Code on a charge of attempted murder c/s 215. They then realised that the two offences were both felonies carrying the same maximum sentence (life imprisonment) and so they returned, after lunch, and, in a Postea, “hastened to correct the judgment” and to substitute a conviction of unlawfully doing grievous harm c/s 229 (with a maximum of seven years). The post-prandial court also pointed out that its own previous decision in Yanyongo v. The People [1974] Z.R. 149 contained the same type of error. See, similarly, Benwa v. The People [1975] Z.R. 1, at 4 and Kabarazi v. R., 20 E.A.C.A. 156. In R. v. Asini [1923–60] A.L.R.Mal. 720, the Malawian High Court quashed a conviction for unlawfully doing grievous harm on a charge of attempted murder (these two offences both being punishable by life imprisonment) and substituted a conviction for committing an assault occasioning actual bodily harm. In doing so, the court, explicitly followed Kabarazi and departed from its own previous decision in R. v. Lenard [1923–1960] A.L.R.Mal. 542. It is submitted that Tarmahomed v. R. No. 2 [1964–66] A.L.R.Mal. 457 which contradicts the tenor of these authorities is mistaken.
46 Mwenya (Moses) v. The People [1973] Z.R. 261, at 264–265.
47 Ndecho at 174; Machona at 131; Mancinelli at 21. The rule that manslaughter is an invisible alternative to murder existed at common law for several centuries. However, in English law, it now has a statutory basis: Criminal Law Act, 1967, s. 6 (2). And in the three African cases, just cited, the rule was founded on a statutory provision (s. 181).
48 Chola v. The People [1975] Z.R. 4.
49 Nsama at 175–176.
50 S. 20 (2) of the Penal Code (ldquo;A person cannot be punished twice…for the same act…” ) has been interpreted to mean that where there is an overlap between the elements necessary for two offences then there cannot be a conviction for both offences: Seifu v. R. [1960] E.A. 338. Although Seiju's case involved offences on the charge sheet, there is no reason why the same rule should not apply to invisible alternatives.
51 The charge was theft by a servant and the two putative invisible alternatives were obtaining money by false pretences and cheating.
52 21 E.A.C.A. 398. The case, which arose out of an incident during the Mau-Mau campaign, was rather complicated. The prosecution alleged that the accused was one of a gang which had robbed a store and that some of the other members of the gang had carried arms. The accused was charged with the offence of consorting with unlawfully armed persons contrary to reg. 8C (1) of the Emergency Regulations, 1952. The charge failed because although the other elements were proved, the prosecution was unable to prove that the home-made guns were “firearms” within the meaning of reg. 8A (4). Instead, the accused was convicted in the trial court, of consorting with persons acting in a manner prejudicial to public safety contrary to reg. 8E (1). The question for the Court of Appeal was whether this was an invisible alternative offence. Clearly each offence entailed the element of consorting and this had been proved. The difficulty involved the other element necessary for an offence against reg. 8E (1), viz: “that the accused (the consorter) knew or had reasonable cause to believe that the consortee had recently acted in a manner prejudicial to public safety …” (p. 401). The question which divided Briggs, J.A., from the majority was whether this was the same particular as the following ingredient of reg. 8C (1). “circumstances which raise a reasonable presumption that the accused (consorter) … had recently acted in a manner prejudicial to public safety… (p. 401). The problem raised by the unusual standard of proof (“circumstances which raise a reasonable presumption that … ”) is considered in the test above n. 68. Leaving that aside, there is a difference between the two offences in that reg. 8E (1) requires that the consorter actually knew that the consortee had acted in a prejudicial manner; whereas reg. 8C (1) requires the consorter and the consortee to act together to the prejudice of the public. Although it is unlikely, it is perfectly possible, as Briggs, J.A., demonstrated (and the majority admitted at 403), for the consortor to obtain the knowledge of the consortee's activities by some method other than acting with the consortee to the prejudice of the public. In such a case, an offence contrary to reg. 8E (1), but not to reg. 8C (1), would be committed. Hence Briggs, J.A., said that an offence contrary to reg. 8E (1) could not be an alternative offence to an offence contrary to reg. 8C (1). The majority, however, held (confirming the Court of Appeal's own decision in Mutemi v. R., 21 E.A.C.A. 329 and disavowing a dictum in its own decision in Gathega v. R., 21 E.A.C.A. 349, at 350) that the relevant question was whether the facts proved before the court on the offence charged disclosed the alternative offence. And in Wachira's case, the consortor and consortee had been members of the same gang and it necessarily followed from this common action that the consortor knew that the consortee had acted prejudicially to public safety.
53 P. 404. The quotation from the majority judgment referred to at the start of the passage is at 401.
54 Cap. 2, s. 3 (2); cap. 2, s. 3 (K). The “or” inserted in square brackets is only found in the Kenyan definition.
55 This phrase is die definition of “offence” given in Connolly v. D.P.P. [1965] A.C. 1255, at 1339.
56 E.g., cap. 23, s. 4(M).
57 11, Bom.H.C.R. 240 quoted at 400.
58 P. 404.
59 E.g., Jones v. R. [1923–1960] A.L.R.Mal. 795; Rep. v. Nkhata [1971–1972] A.L.R.Mal. 355, at 357. (See nn. 60 and 62 respectively); Mpanda v. Republic [1963] E.A. 294.
60 Jones v. R. [1923–1960] A.L.R.Mal. 795. Although Wachira was cited, the Nyasaland appeal court, while not referring to the division, seemed to prefer the approach which Briggs, J.A., had adopted: “ … even if the charges had been so drawn as to include such invisible alternative it is by no means clear that that would have remedied matters. On the authorities, there is reason to think that all elements of the minor offence must be involved, not only in the circumstances of the major offence as alleged to have been committed in the particular case, but in all sets of circumstances amounting to an offence of that kind” (p. 801). However, this remark was obiter since the invisible alternative for which the prosecution argued in Jones would not have been permissible, even on the majority view in Wachira.
61 P. 801.
62 Nkhata at 357. In Nkhata, too, the court preferred Briggs, J. A.'s interpretation but this made no difference to the result since even on the majority view, “actually bodily harm” is never necessary for robbery which requires only the use or threat of force. For similar facts and result to those in Nkhata, see Justin.
63 Though it may have been assumed in some cases. See, e.g., Mpanda at 296; Ndecho at 174 and the quotation form Jones in footnote 60.
64 F.S.C. 104/1963 extracted in C. O. Okonkwo and I. McLean, Cases on the Criminal Law, Procedure and Evidence of Nigeria (excluding the North) Sweet and Maxwell and African Universities Press Ltd., 1966, 103–106. See also Torhamba v. Inspector General of Police [19561 N.R.L.R. 87. In England, the relevant law (s. 6 (3) of the Criminal Law Act 1967) explicitly refers to “the allegations in the indictment”: See Archbold, op. cit., paras. 624, 624a).
65 For similar cases in which the charge was attempted murder and the accused was convicted of unlawfully doing grievous harm or assault occasioning actual bodily harm, above, page 14. It is submitted that the element of actual bodily harm is within attempted murder because death is a constituent of murder and similarly an injury leading towards death (actual bodily harm) is an element of attempted murder.
66 See Okonkwo and McLean, op. cit., 103.
67 Ibid., 104.
68 See n. 52.
69 At pp. 405–406.
70 The majority said (at 402): “ the ‘reasonable presumption’ referred to in reg. 8C (1) would never be a reasonable one in the absence of proof that the consortor knew or had reason to believe that the consortee had acted prejudicially or intended to do so”. Cf. Briggs, J. A.'s riposte at 405.
71 [1976] Z.R. 200.
72 See p. 26.
73 At p. 210.
74 Cf. Archbold, op. cit., para. 624a: “No court should be encouraged to cast around to see whether somehow or other the words of the indictment can be found to contain by some arguable implication the seeds of some other offence: R. v. Woods (1969) 53 Cr.App.R. 30, at 33.”
75 R. v. Fulenete [1957] R. & N. 332, at 37 approved in Hermes v. R. at [1961] R. & N. 34, at 37; Ndecho, 18 E.A.C.A. 171, at 174 approved in Phiri (Charles) v. The People [1973] Z.R. 168, at 172.
76 Haonga at 209–210; Ndecho at 174; Republic v. Cheya [1973] E.A. 500, at 505.
77 Haonga at 210.
78 [1973] Z.R. 168.
79 In fact, a conviction for obtaining by false pretences was not substituted on the facts of the case. The accused had been tried for both forgery and uttering. He was acquitted (on appeal to the Court of Appeal) on the forgery charges because the vouchers made out by the accused were not forgeries in that although they contained false statements, they did not tell lies about themselves. The trial court had acquitted him on the uttering charges. It was because of this acquittal that the appeal court refused to substitute a conviction for obtaining. See page 15.
80 Mancinelli (p. 23) examined at 171 of Phiri.
81 P. 172.
82 R. v. Adokwu (1952) 20 N.L.R. 103 followed in Torhamba.
83 Amos Kanu, W.A.C.A. judgments for session of July, 1949, at p. 26.
84 P. 104. See, to the same effect in regard to the Northern Nigerian equivalent of s. 181 (2), S. S. Richardson and T. H. Williams, The Criminal Procedure Code of Northern Nigeria, Lagos, 1963, 154.
85 In reaching its decision, the court was forced to disapprove two Northern Rhodesian cases (Mancinelli; Justin). However, it sought to draw support from the East African case of Ndecho and, at 171, quoted an incomplete passage from that case. With the re-insertion (within square brackets) of the portion omitted that passage reads as follows: “…where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say of the same genus or species. Furthermore, we point out that the wording of section [181 (2)] is permissive only [and that in our opinion, when the major offence charged is murder, a court should exercise its discretion most warily before convicting a person charged, with any alternative offence, although cognate, other than manslaughter]. The test the court should apply when exercising its discretion is whether the accused person can reasonably be said to have had a fair opportunity of making his defence to the alternative”. (P. 174.) It is evident, both from its content and its context, that in this passage, the court in Ndecho's case was concerned to emphasise that—especially in murder charges—the fact that the minor offence is cognate is not sufficient on its own and that the court has, in addition, to consider whether to exercise its discretion. In other words, the requirement that the minor offence should be cognate is a necessary, but not a sufficient, condition. The fact that the minor offence must be comprised of elements included in the offence charged is stated perfectly clearly in an earlier passage in Ndecho: “The governing word in [subs. (2)] is the word ‘reduce’ and the subsection cannot be read as if the words ran ‘and facts are proved which reveal another offence’. The facts proved must reduce the major offence to a minor offence.” (P. 173.) It is submitted, then, that Ndecho is an authority against the proposition enunciated in Phiri's case. Phiri is not the first case in which the notion relied upon in Phiri's case has been considered. In Mpanda v. Republic [1963] E.A. 294, the Tanganyikan High Court analysed the brief judgment of the East African Court of Appeal in Paulo v. R. 20 E.A.C.A. 317, as being a case in which the Court of Appeal must (in view of the decision it reached) have interpreted s. 181 (2) in the same way as was done in Phiri. However, in Mpanda, the High Court said that, in Wachira's case, the East African Court of Appeal had held that the tests to be applied under both subsections are the same and that “subs. (2) is not, as it seems at first sight, wider in its scope than subs. (1)”. (P. 296.) Thus Wachira's Case was taken to have overruled Paulo's case. The Malawian case of Thompson v. Reg. [1968–1970] A.L.R.Mal. 264 was not mentioned in Phiri but (at 267) it supports Phiri.
86 P. 172 quoted and followed in Hanonga v. The People [1976] Z.R. 200, at 210; Muvela v. The People [1974] Z.R. 20, at 23; Benwa v. The People [1975] Z.R. 2, at 3.
87 The word “cognate” seems to be used differently in Phiri (at 171, 172; see too Haonga at 209) from the way it is used in this article. In Phiri, it appears to mean: of the same genus or species rather than: the alternative offence is made up exclusively of elements contained in the offence charged.
88 Haonga.
89 Muvela.
90 Benwa.
91 The People v. Katango [1974] Z.R. 90.
92 This seems to be what was suggested in Mancinelli at 21.
93 Whatever interpretation be adopted, subs. (1) must cover (at least) situation (a). Thus it has to operate at the end of the prosecution case when a prima facie case has been made out. Yet the subsection (1) says: “… such combination is proved …” thereby using “proved” to cover the establishment of (only) a prima facie case. Again, this is awkward (though not as awkward as the meaning canvassed in the text). In any case, there seems nothing that can be done about it since situation (a) must be caught by one of the subsections.
94 In Mpanda at 96, the Tanganyikan High Court said: “On the [interpretation in Wachira's case], the only distinction between the two subsections is that the first relates to cases where the prosecution fails to prove, while the second relates to cases where the defence disproves, one or more of the essential ingredients of the major offence.” (Subsequently, it emerged that the court adopted his interpretation.) While this statement seems to support one of the two explanations, advanced in the text, of the difference between the two subsections, it is difficult to decide which one.
95 Cf. R. v. Adokwu: “It may be that [s. 181 (2)] is superfluous altogether, or it may be that there are other cases to which it might apply but which do not come to mind.” (P. 105.)
96 E.g., Rep. v. Ntoilea [1971–72] A.L.R.Mal. 345; Republic v. Cheya [1973] E.A. 500: R. v. Home, XI E.A.C.A. 107; Tarmahomed v. R. (No. 2); R. v. Chilao, V.N.R.L.R. 459; Thompson v. Rep. [1968–1970] A.L.R.Mal. 246.
97 Funo v. Uganda [1967] E.A. 632.
98 R. v. Fulete [1957] R. & N. 332, at 337. (“… the court may proceed on the unpleaded or invisible alternative or it may not. If it does so it must follow a procedure which enables the accused to meet those charges”.)
99 The substance of the section is contained in s. 213 (1) which reads as follows: “Where at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective either in substance or form, the court may make such order for the alteration of the charge either by way of amendment of the charge or by the substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case.” On this section, see Mwenya (Moses) v. The People, at 265–266; Mapushi v. The Queen [1963–64] Z. and N.R.L.R. 90; Goldring v. The People [1972] Z.R. 42; Tembo v. The People [1966] 2 R. 126; Kaliwa v. Rep. [1971–72] A.L.R.Mal. 138; Chengo v. Republic [1964] E. A. 122.
page 30 note 1 VI N.R.L.R. 19, at 22. One would expect s. 213 (3) to be part of the graft too. This subsection says that accused must be permitted an adjournment if the court considers it necessary for the preparation of the defence to the new charge.
page 30 note 2 See, e.g. Fulenete at 339; Shamabanse at 154; Mwenya (Moses) at 265–266.
page 30 note 3 Hermes v. R. [1957] R. & N. 332; Tarmahomed v. R. (No. 2).
page 31 note 4 S. 206 of the C.P.C. See, e.g., Hahuti v. The People [1974] Z.R. 154; Mancinelli at 21.
page 31 note 5 Hermes v. R. [1961] R. & N. 34, at 38.
page 31 note 6 Hermes at 38–39.
page 31 note 7 Shambanse at 154, disapproving on this point, Mancinelli at 22. (The same approach as in Mancinelli—viz. dismissal of the accused—was adopted, without much deliberation, in Sauzier v. R.[1962] E.A. 50.)
page 31 note 8 At 37–38.
page 31 note 9 See p. 36 of the report.
page 31 note 10 At 464.
page 32 note 11 Hermes at 38. But in Fulenete, it was said that it was: “incumbent upon the courts” (p. 337) to consider whether the evidence discloses any alternative offence. In Hermes (at 38) this was taken (wrongly, in the writer's respectful view) to have been intended to mean only that the court must consider the point if it is raised by counsel.
page 32 note 12 E.g., Hermes.Ftno v. Uganda [1967] E.A. 632; Phiri; Chola v. The People [1975] Z.R. 4.
page 32 note 13 Cap. 52. Notice, though, that it is not open to an appeal court to substitute a verdict on an invisible alternative if a plea of guilty on the offence charged was wrongly entered in the trial court. Thus, in Ngambi v. The People [1975] Z.R. 97, the magistrate accepted a plea of guilty to a charge of unlawfully wounding on facts which did not bear out the offence. The appeal court held that it had no jurisdiction to substitute a conviction for common assault. This decision appears to contradict Chiiao where a substitution was allowed.
page 32 note 14 Utilised in Phiri's case. Cf. s. 331 (2) (ii) of the Ugandan C.P.C. (invoked in Funo v. Uganda): “… the High Court on appeal may alter the finding and find the appellant guilty of another offence, in maintaining the sentence, or without altering the findings, reduce or increase the sentence”.
page 33 note 15 Muvela at 23.
page 33 note 16 [1972]Z.R. 151, at 153.
page 33 note 17 Fulenete at 337–339.
page 33 note 18 1957 W.L.R. 259. See, now, Connelly v. D.P.P. [1964] A.C. 1254; D.P.P. v. Nasralla [1967] 2 A.C. 238.
page 34 note 19 Art. 20 (5) of the Zambian Constitution (Sched. to Act. No. 27 of 1973); s. 77 (5) of the Kenyan Constitution (Schedule 1 to Act No. 5 of 1969); Art. 15 (5) of the Ugandan 1967 Constitution. (Note: apart from caps. 4 and 5, Uganda's Constitution was in force during the government of Professor Lulem 1979. The writer is uncertain of its present status.)