Arnot Mutemwa Kaponde v People (Appeal 118 of 2000) [2001] ZMSC 143 (9 January 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 118 OF 2000 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) ARNOT MUTEMWA KAPONDE APPELLANT VS THE PEOPLE RESPONDENT Coram: Chaila, Chirwa, Chibesakunda, JJS 9lh January, 2001 For the Appellant: In person For the Respondent: Mr. James Mwanakatwe, Principal State Advocate JUDGMENT Chaila, JS, delivered the Judgment of the court. The Appellant who was a Police Officer faced two counts in the Subordinate Court in the late 1980s. This appeal came to us very late due to the circumstances beyond this court’s control. The first charge was theft by public servant and the second charge was obtaining money by false pretences. The particulars of the first offence were that on a date unknown but between 15th day of January, 1986 and 10th day of March, 1986, at Ndola on the Copperbelt Province of the Republic of Zambia, being a person employed in the public service namely a Police Officer in the Ministry of Home Affairs, did steal 102 Agfa Printing papers, 34 Agfapan films, 5 boxes containing Agfapan sheet films and 6 developer films, altogether valued at KI 3,191.70, the property of the said Ministry of - J2 - Home affairs, his employers, which came into his possession by virtue of his employment. The particulars of the second offence were that on a date unknown but between 27th and 28th days of January, 1986 at Ndola on the Copperbelt Province of the Republic of Zambia with intent to defraud, obtained K453.00 cash from the Zambia National Defence Forces by falsely pretending that he was going to buy photographic materials for the said Zambia National Defence Forces, when in fact not. He was duly prosecuted and was acquitted on the charge of theft. He was convicted on the second count and was sentenced to 1 year or 12 months imprisonment with hard labour, but suspended for a period of 2 years on condition that he did not commit any other offence. The appellant’s main complaint is that the evidence never supported the offence of obtaining goods by false pretences. He argued that he was approached by the Army to provide some photographic materials to them, which he did by buying, using the money the Army gave him. He argued that there was no complaint from the Army at all and this of course was supported by the evidence from the Army Officers; that it is the Police that complained about the loss of some photographic materials and he has urged us to allow the appeal. The learned Principal State Advocate Mr. Mwanakatwe has after some questions from the bench conceded that the appellant should have been convicted of the offence of theft but they regretted that they did not appeal against the acquittal. Mr. Mwanakatwe has accepted that the elements of false pretences were not proved. - J3 - We have read the record and the Judgment of the court below. We observe that the appellant should have been convicted of theft but he was acquitted and the State did not appeal against the acquittal. We further agree with Mr. Mwanakatwe that the offence of false pretences was not proved. The Army never complained. They got their materials and we find that he was wrongly convicted on the offence of obtaining goods by false pretences. The appeal is therefore allowed. The conviction is quashed and the sentence is set aside. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE