Arnold Kakyaija v People (APPEAL NO. 49 OF 2012) [2012] ZMSC 128 (10 October 2012)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: APPEAL NO. 49 OF 2012 ARNOLD KAKYAIJA APPELLANT -VS- THE PEOPLE RESPONDENT CORAM: MUMBA, PHIRI AND WANKI, JJS On 7th May, 2012 and 10th October, 2012 For the appellant: In Person For the Respondent: Mr. P. Mukuka, Senior State Advocate and Miss C. Sako, State Advocate JUDGMENT WANKI, JS, delivered the Judgment of the Court. The appellant appealed against the Judgment of the High Court dismissing his appeal against his conviction and Sentence by the Subordinate Court. The facts leading to the appeal are that the appellant was convicted on two counts of False declaration, contrary to Section 141(l)(c) ~ (d) and (.f} as read with Section 155 of the Customs and Excise Act, Chapter 322 of the Laws of Zambia. J1 The particulars being that, the appellant on the 22nd day of June, 2002 at Nakonde Border in the Nakonde District of the Northern Province in the Republic of Zambia, with intent to defraud and to evade the provisions of the Customs and Excise Act did make a false declaration that 10,000 litres of gas oil and 20,000 litres of petroleum oil on truck number TZA 2033 trailer number TZA 1906 worth K54,140,625.00 entered on transit document number 5802707 of 22nd June, 2002 was destined for Congo DR when in fact not. The 2 nd count was smuggling, contrary to Section l49(a) and (b) as read with Section 155 of the Customs and Excise Act, Chapter 322 of the Laws of Zambia. The particulars were that the appellant on the 22nd day of June, 2002 at Nakonde Border in the N akonde District of the Northern Province in the Republic of Zambia did smuggle into Zambia 10,000 litres of diesel and 20,000 litres of petrol on truck number TZA 2033 trailer number TZA 1906 worth K54, 140,625.00 without payment of duties purporting that the said fuel was destined to Congo DR when in fact not. The Appellant was convicted by the Subordinate Court, Nakonde. He was sentenced to a fine of J2 K162,000,000.00 in default three months simple imprisonment on each count; the sentences were to run consecutively making a total of K324,000,000.00 or six years simple imprisonment in default. The evidence on the basis of which the appellant was convicted as adduced by seven witnesses was that, on 22nd day of June, 2002 the named truck and trailer passed through Nakonde from Tanzania laden with the fuel described. The truck was to offload the fuel in the Democratic Republic of Congo using Kasumbalesa Border Post on the Copperbelt. The truck never reached Congo and the fuel was sold in Mpika. The appellant was identified as the person who made the false declaration and smuggled the fuel into Zambia. The appellant appealed to the High Court Kasama. Following the hearing of the appeal, the High Court found that the learned Magistrate was on firm ground when he believed the evidence of the witnesses, apart from the other evidence on record; and that the evidence against the appellant was overwhelming. It dismissed the appeal against conviction. In relation to the sentence, the High Court found, noting that the J3 two counts on which the appellant was convicted arose from the same transaction, allowed the appeal against sentence. It set aside the sentence that was imposed by the Subordinate Court. In its place it substituted a sentence of a fine of K162,000,000.00 in default three years simple imprisonment on each count, to run concurrently. Before this Court, the appellant has advanced three grounds of appeal as follows:- 1. The trial Magistrate in the case record never mentioned the fact that I adduced a written defence which was read before the Honourable Court and I retained a certified copy for my own records and defence, exhibit number "KDl" to "KD9" thus creating an impression that no such was done and yet he himself was allocating these numbers. Also he added words and took away others not or spoken by me. This omission and additional of points only explain creation of grounds to convict me. To prove my claim refer to my copy of defence which tendered and read before the open Court where I said to be abducted at gun point, drugged and found myself in the neighbouring country of Zambia standing in a Court for concrete charges, but to my surprise in the case record some words was changed to read " apprehension." How can someone encourage the abduction of a person from an independent State without following a legal procedure? If my prosecution was legal then Tanzania Government would have handed me to Zambian Government officials for the law to take its course. How can the Government apprehend and hand me to PWl to take me to Zambia to face charges and the trial Magistrate accepts PWl 's testimony saying I was legally handed to him, there was no justification, is this procedure? Why can't Zambia hold responsible for blessing terrorism acts? J4 2. The ZRA prosecutor together with the Magistrate had personal interest on the all case no matter the fact was, the transporter was promised by ZRA officials to return back his truck only and if I (accused) was available before the Court. Here it seems they only came to legalise the release of the truck and not to find the truth. The case over the truck was heard not in the Open Court and proper time for everyone to hear and see i.e. hearing 28th March, 2003 at 17.00 hours Judgment the following day Saturday 29th March, 2003 at 11.00 hours when everyone is not aware of anything going on at the Court, refer to page 19 of the case proceedings. There was a hidden agenda. 3. No concrete evidence to prove that I am the one who sold fuel to PW7's company. All testimony based on mere words there was no papers to prove the allegation. During cross examination PW7 told the Court that I sold fuel on credit to his Lehuma Bantu Company and that payment was to be honoured after 30 days from the date of transaction. When I asked him to tender any signed document as the transaction agreement was verbal. The appellant contended that as a Company is obliged to maintain records for all transactions for accounting and administration matters and, since the transaction involved millions of Kwacha on credit as it is claimed, the document for terms and conditions was very important for the benefit of both sides. PW7's failure to produce the document thereof casts a shadow of doubt on his evidence. The Judgment was based on assumption and not on the truth, he referred to his written defence. JS In augmenting his grounds of appeal, the appellant made submissions. He pointed out that, on page 68 of the record of appeal was his defence. He referred the Court to the first paragraph of his said defence. The appellant contended that, the trial Magistrate changed the word "abduction" as per page 15 of the record of appeal to "apprehension" at gun point to suit his wish. He submitted that, before the start of the trial he raised a preliminary issue. The trial Court was supposed to address how he was brought to Court. This was not granted which means that he was not afforded a fair trial. He wanted the Court to address this. In addressing how he was convicted, the appellant referred the Court to page 29 of the record, particularly to "1D1" at page 31 which was written by himself on behalf of the Transporter. On page 35 is "1D5" and on page 66 is his defence. When he wrote the letter he was representing the view of the owner who was supposed to write the letter. He was writing for and on behalf of the owner. This is stated on page 82 in the 4 th paragraph. He explained that the contents of the letters were dictated by the Managing Director on the phone. He contended that, all the letters were written on behalf of the Managing Director of the Company. He maintained that he J6 explained everything to the trial Court. He pointed out that, this will be found in his defence from page 68 to page 79. He contended that, the letters were not written on company headed papers. This is the reason why he wanted to prove as per page 72 in the last paragraph. He signed the letters on page 72 in the presence of the Managing Director, PW 1. This is the last letter dated September, 2002 to the Commissioner and it was acknowledged by Zambia Revenue Authority, the letter is at page 66. He further contended that, PWl was aware of what was going on; that he would not know why they are saying he purported to be a Managing Director. He ref erred the Court to pages 5 and 6 of the record of appeal. He submitted that they travelled to Lusaka together with the Managing Director, PW 1. It was not possible for him to run away as he was not a briefcase businessman. His business was registered. In relation to the sale of the fuel, the appellant referred to the evidence of PW7 who said he sold fuel to his Company on credit. How could he sell fuel to a company without any contract? He pointed out that, the prosecution did not produce J7 any documentary evidence. He further pointed out that, PW7 said it was a verbal agreement. The appellant denied that there was no such sell to PW7. He sold the fuel to a Congolese in Tanzania as per pages 36 and 37 in the record of appeal. He pointed out that on page 54, he had indicated as having bought the fuel from Oryx Oil Company Limited. He was not the one who hired the truck, he was not the one who sold the fuel in Zambia. He sold the fuel in Tanzania to Tshimanga. In support, he referred the Court to page 1 7, the last paragraph according to the evidence of DW 1. The appellant also referred the Court to page 8, the evidence of PW 4. He contended that there was no documentary evidence that, he hired the truck. The Court was referred to page 20 where the Court sat on Saturday. He was told to attend the Court Session and he attended. The appellant finally prayed the Court to determine the case avidly. JS In response, Mr. Mukuka, Senior State Advocate, informed the Court that, the State was supporting the conviction of the appellant on both counts. He submitted that, it was clear from the evidence adduced that the appellant made a false declaration. The Senior State Advocate further submitted that the evidence of PWl, on page 15 lines 23 to 25 confirmed that he was the Managing Director contrary to what the appellant had declared. He pointed out that PWl, also informed the Police in Tanzania about the forged documents which the appellant has confirmed. The Senior State Advocate further pointed out that, at page 6, PWl refused having authored the letters. He submitted that, it was clear from the appellant's conduct that his intention was to deceive. Mr. Mukaka contended that, the evidence of PW4 was also clear that he had examined the documents which were to exit at Kasum balesa. Further the evidence of PW7 was to the effect that he was approached by the appellant, who wanted to leave fuel which he did. The Senior State Advocate pointed out that the appellant in the Court below did not raise the issue of being J9 abducted. When put on his defence, the appellant did not rebut the evidence adduced by the prosecution. In conclusion, Mr. Mukuka submitted that, the Court below was on firm ground when it convicted the appellant. He therefore, urged the Court to dismiss the appeal on both counts. In reply, the appellant pointed out that PWl, in his evidence under cross-examination at page 6 line 31 said the driver entered Zambia for the first time. He also pointed out that, the letter at page 31 also says the exact words. The appellant contended that, he wrote what PWl said. He submitted that PWl, was a registered transporter and he was a registered customer. PWl knew that the fuel was destined for Congo DR. We have considered the grounds of appeal, the submissions by the appellant and on behalf of the respondent; the Judgments by the Subordinate Court and the High Court. In ground one, the appellant has challenged his conviction because of the trial Court's failure to mention that, he adduced written defence; for adding and taking away words. J10 According to the record of appeal, the appellant was given an opportunity to cross-examine the witnesses called on behalf of the prosecution. He also gave evidence. Further, from his evidence which was confirmed by the evidence of the driver, PW8, the appellant travelled from Tanzania in a truck. The evidence has shown that the appellant was not abducted and drugged, but he travelled freely. In the circumstances, we find no merit in ground one. The same is dismissed. In ground two the appellant has challenged his conviction because the prosecutor and the Magistrate had allegedly personal interest in the case and conspired to convict him. From the record of appeal, it is clear that the appellant was convicted on the basis of the overwhelming evidence adduced by the witnesses who included PWl; PW2; PW7; and PW8. Further, there is nothing to show that the prosecutor and the Magistrate had interest in the case and that they conspired to convict the appellant. The appellant in his defence did not adduce any evidence to prove that there was any conspiracy by the J11 prosecutor and the Magistrate and that they had any interest in the case. We therefore find no merit 1n ground two of the appeal. The same is dismissed. In ground three of appeal, the appellant has challenged his conviction because according to him, there was no concrete evidence to prove that he was the one who sold the fuel to PW7's Company. According to the record of appeal, the evidence of PW7 to the effect that the appellant sold 10,000 litres of diesel and 20,000 litres of petrol to his Company in Mpika is supported by the evidence of the driver who was PWS whose evidence was that they offloaded the fuel at a certain filling station before reaching N dola. Further, there was evidence that the truck did not reach Kasumbalesa and did not cross into Congo Democratic Republic. There was no reasonable explanation why the truck that had been destined for Kasumbalesa en-route to the Democratic Republic of Congo laden with 10,000 litres of diesel and 20,000 litres of petrol was found in Mpulungu empty. The appellant was properly identified as the person who was in charge of the truck. In the circumstances, we find no merit in ground three of the appeal, it is, accordingly, rejected and the same is dismissed. We note that, the appellant though has appealed against the Judgment of the High Court he has not in any of the grounds of appeal and his submissions, challenged the findings of the learned Judge who dismissed his appeal against the decision of the Subordinate Court. In light of the foregoing, we find no merit in the appeal and we accordingly dismiss it. The conviction of the appellant and the sentence imposed by the High Court are confirmed. t\ __ . l .'.">•-- "---· ... .. ... .. ... ... .. ................. F. N. M. Mumba, SUPREME COURT JUDGE .... ........ ), - l!- . ... .............. . G. S. Phiri, SUPREME COURT JUDGE J13