Lundamoto & Mkonda v. R. Crim. App. 164, 165-D-1971; 5/1/19782; Biron. J.

 

Lundamoto & Mkonda v. R. Crim. App. 164, 165-D-1971; 5/1/19782; Biron. J.

The two appellants were together convicted of burglary and stealing. They had been charged with a third man who was acquitted at the trial, the present appellants being the first and third accused.

The accuseds had forcibly entered the complainant’s premises at night and after grappling with him and his wife, ransacked the premises and stole some cloth and a sum of money. It was alleged that the accuseds had confessed to a ten-cell leader, a police officer and to a ward executive officer. The appeal judge excluded the confession to the police officer as inadmissible under s. 27 of the Evidence Act 1967. He excluded the confession to the ten-cell leader as inadmissible under S. 28 since it was made in the presence of a police officer. He then considered the confessions to the ward executive officer.

            Held: (1) “[As for ] the confessions made to the ward executive officer, the two sections of Evidence Act, 1967, section 27 and 28, correspond to and are re-enactments of sections 25 and 26 of the old Indian Evidence Act, which was repealed and replaced by our evidence Act. Although the two sections deal with confessions made to or whilst in the custody of a police officer, there is a long line of cases to the effect that these two sections are not to be narrowly construed as limiting their operation to police officers, but are extended to cover a wide range of officials who have been granted powers of arrest, as, for example, in the old days a tribal policeman, a village headman, and administrative officer in charge of the police in his district and whilst acting in such capacity, and also other officers who have vested in them powers of arrest. Most of the officials enumerated above are no longer in existence, and in some cases their offices have been abolished, and they have been replaced by new types of officials.” (2) “The principal legislation concerned with these officials and their powers is contained in the Local Government Ordinance (Cap. 333 – Supp. 62), wherefrom it is sufficient to quote Sections 42, 42A, 42B and 420 of the Ordinance Cap. 333 – Supp. 62 and continued]: “It is thus clear from the foregoing provisions that the clerk to a district council, which includes the chief executive officer of such council, and a messenger employed by such council, as well as the clerk to a divisional committee, which will also include the chief executive officer of such committee, have vested in them powers of arrest and are therefore, in so far as confessions are concerned, in the same position as police officers.” (3) “Although other officials like a ten-house-cell leader, so I have held in many cases in connection with ten-house-cell leaders, whose powers are expressly laid down in the Interim Constitution, that confessions made to them are admissible, and it is not irrelevant to add that a number of such cases wherein the accused was convicted of murder, have found their way to the court of Appeal for East Africa and my ruling had not to date been queried. In my view, although an official may exercise powers of arrest and may even be popularly believed to have vested in him such power that in itself is not sufficient to equate him to a police officer so as to render confessions made to him inadmissible. There must be, to my mind, some express authority conferring on such official

 

 

 

(1972) H.C.D.

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Powers of arrest in order to equate him to a police officer in respect of confessions made to him or in his presence. I am fortified in this view by the observation of my brother Onyiuke in R. v. Bakari Mussa and another (Criminal Sessions Case No. 2245 of 1969) in dealing with a confession made to a village executive officer which he held admissible, stating in his judgment: - ‘…I am of the view that there must be some legal basis for the performance of police functions. A mere exercise of police powers is not enough and cannot give a person greater powers is not enough and cannot give a person greater powers than an ordinary member of the public.” (4) “The powers and duties of a ward executive officer are nowhere defined but after a great deal of research which accounts for the delay in the preparation of this judgment. I have discovered that ward executive officers are replacing if they have not already done so, divisional executive officers and that the post of divisional executive officer either has been or is being abolished. This would bring into play section 23(3) of the Interpretation and General Clauses Ordinance (Cap. 1- Supp. 66-70) which reads:- 23.(3) – Where an Ordinance confers a power or imposes a duty on the holder of an office – (a) if the designation of that office is subsequently changed, the power or duty shall be deemed to have been conferred on the holder of the office as now designated; if the office is abolished, and the duties previously attaching to that office, or any of them, are vested in the holder of another office, the Principal Secretary, President’s Office may by notice in the Gazette confer the power or duty on the holder of such other office, and the notice may be given retrospective effect from the date on the which the first –named office was abolished.’ Therefore on the application of this section, a ward executive officer would have the same powers as a divisional executive officer who, as noted, has or rather had, as the post appears to have been abolished, powers of arrest and can therefore be equated to a police officer for the purpose of sections. 27 and 28 of the Evidence Act, 1967 above set out.” (5) “As sufficiently demonstrated the case against the first accused does not rest on his confessions alone but there is extraneous evidence as well. In the case of the third accused however, there is no other admissible evidence a part form his alleged confession to the ward executive officer. Apart from the fact that such confession for the reasons given, would appear to be inadmissible, there is ample authority to the effect that a repudiated or retracted confession even if admissible, requires corroboration, and in this case there is no corroboration at all.” (6) “In the circumstances I find myself constrained to quash the conviction in the case of the third accused, and set aside the sentence imposed on him.”