Barton Nkhoma and Ors v the People (Appeal No. 64, 65, 66, 67/ 2021; Appeal No. 64, 65, 66, 67/ 2021; Appeal No. 64, 65, 66, 67/ 2021; Appeal No. 64, 65, 66, 67/ 2021) [2022] ZMCA 187 (25 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.64 , 65 , 66 , 67/ HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) BETWEEN: BARTON NKHOMA TAPIWA KAMBOLE ISAAC MUTEMA MISHECK MULUWE AND THE PEOPLE \ 2 5 AUG 2022 - 1/ ···.:...:;_ ' \.\IS J>. • 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT RESPONDENT CORAM: Mchenga DJP, Sichinga and Muzenga, JJA On 19 th January 2022 and 25 th August 2022 For the Appellant: K. C . Bwalya, Legal Aid Counsel, Legal Aid Board For the Respondent : N. T. Mumba , Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court . Cases referred to: 1. Mwewa Murano v . The People [2004] Z . R . 207 2 . Lupupa v . The People [19 7 7] Z . R . 38 Legislation referred to: J2 1 . The State Security Act , Chapter 111 of the Laws of Zambia 2. The Pe na l Code, Chapt e r 87 of the Laws of Zambia !. INTRODUCTION 1.1. The appellants , wi th 3 others , appeared before the Subordinate Court (Honourable A. Mubita), on a charge of Unauthori s ed Possession of Defence Force Uniform , contrary to section 6(1) (a) of The State Security Act. 1.2. The allegation agains t them was that on the 7 th of April 2019 , jointly and whilst working together, they h a d in their possession uniforms of the Defence Forces of the Repub l ic of Zambia , without lawful a uthority . 1. 3. They all denied the charge and the matter p roceeded to trial . 1. 4. At the end o f the t ri a l , the app e llants were convicted f or committing the offence , but three of t h e ir co -a ccused , were acquitted . J3 1 . 5. They were then committed to the High Court for sentencing . In the High Court (Muma, J . ), they were e a ch sentenced to 20 years imprisonment , with hard labour. 1.6 . They have appealed against their convictions and the sentences imposed on them . 2. EVIDENCE BEFORE THE TRIAL COURT 2.1. The evidence again s t the appellants wa s that follow i ng reports of criminals terrorising Chirundu residents, in early 2019 , State security wings organised a joint operation on 7 th April 2019 . 2.2. In the course of that operation , the police app rehended the 3 rd a ppellant . He led them to a house where they found the 2 nd appellant and another per s on . 2.3. When the house was s earched , they recovered a number of military uniforms . The recoveries comprised of four tr ouser s, four tops , one short and two boot s. J4 2.4. The operation also took the police to a second house, where the 1 st appellant was apprehended. Nothing was recovered when the house was searched. 2.5. Later on, the 4 th appellant was apprehended from a public place. 2.6. A witness from the Zambia Army, told the trial magistrate that the uniforms and boots recovered in the operation were replicas, with the exception of one Zambia Air Force combat shirt. 2 . 7 . When they were placed on their defence, the 1 st appellant told the trial magistrate that he bought the uniform linked to him from COMESA market. 2.8. In the case of the 2 nd appellant, he denied being owner of any of the uniforms or that any uniform was found at his house. 2.9. The third appellant equally denied having been found with any uniform. 2.10. The 4 th appellant said he bought his uniform from a market in Chirundu. 3. FINDINGS BY THE TRIAL MAGISTRATE : JS 3 . 1 . The trial magistrate found that each of the appellants was found in possession of a uniform . 3. 2 . He also found that most of them claimed that they bought the uniforms from the market . He took the view that such a state of affairs was unacceptable because persons buying military uniforms from a market , could impersonate army officers, a situation that could prejudice the security and safety of the of the country . 4. GROUNDS OF APPEAL 4.1. Three grounds have been advanced in support of the appeal . Two of the grounds deal with the conviction, while the third , deals with the sentence . 4. 2. The gist of the grounds of appeal dealing with the conv ictions , i s that the element s of the offence the appellants were charged wi t h , were not proved . 4.3. In the case of the s entences , the appellants' po s ition i s that they are harsh . 5 . ELEMENTS OF THE OFFENCE J6 5 .1. The appellants were all charged under section 6 (1) (a) of The State Security Act. That provision read s as follow s: (1) Any person who, for the purpose of gaining or assisting any other person to gain admission to a protected place or for any other purpose prejudicial to the safety or interests of the Republic- (a) without lawful authority uses , wears, has in his possession, imports or manufactures any uniform of the Defence Force or of the Police Force or any other official uniform of the Republic, or any uniform or dress so closely resembling the same as to be likely to deceive, or falsely represents himself to be a person who is or has been entitled to wear or use any such uniform; 5.2. The mens rea for a cha rge under section 6 (1) (a) of The State Security Act, is : (i) the intention to gain or as s i s t another person gain admi s s i on to a protected place; or (i i) the intention to do anything th a t c a n prejudice the safety or interests of the country . J7 5 . 3 . As reg a rd s the act u s reus , the offender must use or wea r , or be fou n d in p o s session of or mu st have imp orted or man ufa ctured : ( i) an official uniform of the defence forces or t he police ; or (ii) a uniform wh i ch closely r e sembles the official uniform of the defence forces or the police , which can dece i ve a person in t o thinking it is the officia l un i form . 6. CASE PROVED AT THE CLOSE OF THE PROSECUTION ' S CASE: 6.1. Before we deal with whether the elements of the offence were proved against each of the appellant s, it i s important that we s et out what was held in the ca s e of Mwewa Murono v The People 1 , on the burden of proof in criminal cases . 6.2. I t was h eld , i n ter al ia , that : (i) In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution. (ii) A submission of no case to answer may properly be and upheld: J8 a. When there has been no evidence to prove the essential element of the alleged offence; and b. When evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it. (iii) The accused bears the burden of adducing evidence in support of any defence after he has been found with a case to answer. (iv) If an accused person is convicted as a result of an error of the trial Court in thinking that there is a prima facie case, the conviction cannot stand. It must be quashed. An appellate Court has no discretion . 6.3. In thi s c as e , at the c l ose of the prosecution ' s c a se , the o n ly evidence incriminating the appe l lants was t ha t t he 3 rd a ppel l ant l e d the police to a house whe re the 2 nd appellant was fo u nd . In that house , a Zambia Air Force comb at shirt and replica uniforms wer e r ecovered . 6.4. Go ing by the deci s i o n i n the case of Mwewa Murono v The People 1 , the 1 st appellant and the 4 th appellant , s ho u ld have been found with no case to answer and a c qu i t ted . Thi s i s becau s e at t h a t point , there was no e vi dence incriminating t h e m. J9 6.5. Even though the and appellants incriminated themselves when they gave evidence in their defences, we acquit them because they were wrongly put on their defence. 7. CASE AGAINST THE 2ND AND 3RD APPELLANTS: 7.1. In the case of Lupupa v. The People 2 , the Supreme Court held that an appellate court can set aside a finding of fact, if that finding, could not reasonably be entertained on the evidence that was before the trial court. 7.2. As earlier indicated, the evidence against the 2 nd and 3 rd appellant, was that 3 rd appellant led the police to a house where they found the 2nd appellant. In that house, the uniforms that are the subject of this case, where recovered. 7.3. The 2 nd and 3 rd appellants denied being found with the uniforms. In addition, the 2~ appellant disputed the claim that any uniforms were found in the house. 7.4. It is our view that the trial magistrate, who heard the witnesses and observed the demeanour of JlO the witnesses, was entitled to accept the prosecution evidence and find that the 2 nd appellant was in possession of the uniforms because they were found in his house. 7.5. However, the same cannot be said about the 3 rd appellant. The finding that he was found in possession of a uniform, is not supported by the evidence. 7.6. There was no evidence of him being resident or being in control of the house where the uniforms were found. It is our view that leading the police to a house occupied by known persons, in the absence of any other evidence, falls short of evidence that would warrant a finding that he probably had "constructive" possession of the uniforms in that house. 7.7. This being the case, we set aside the trial magistrate's finding that the 3 rd appellant was found in possession of a uniform. It is not supported by the evidence. Jll 7.8 . In view of our finding that there is no cogent evidence tha t the 3 rd appellant wa s in posse s sion of the uniforms that are the subject of these proceedings , the charge against him collapses . We find that the charge was not proved and we acquit him . 7.9. We will now deal with the 2 nd appellant . 7.10. For a charge under section 6 (1) (a) of The State Security Act to s t a nd , it is not enough to merely s how that a per s on wa s found with military uniforms . The evidence must also prove that such a person was in po s session of uniforms , because h e intended to gain or a s sist another person to gain admission to a protect e d place . 7.11. The charge is al s o proved if it is proved that such a person was in posse s sion of the uniform for a purpo s e that was prejudicial to the safety or interests of the count r y . 7 .12. In this ca s e , the tri a l magistrate found that the s a l e of military un i form s at markets would J12 prejudice the security and safety of the country, as they could be bought by persons who could impersonate army officers. 7.13. This finding clearly points at a misapprehension of the law. 7.14. What the trial magistrate was required to consider is whether there was evidence proving that the 3 rd appellant's possession of the uniforms was for a purpose likely to prejudice public safety or the interests of the country. The issue was not how a dishon~st person could have used a military uniform, but what the 3 rd appellant intended to do with the uniform. 7.15. Had he done so, he would have come to the conclusion that no such evidence was presented to the court. This being the case, we find that an essential ingredient of the charge, which is, the possession of a uniform for purposes of gaining or helping another person gain access to a protected place or the possession of a uniform for a purpose J13 likely to prejudice publ i c safety or th e interests of the country , wa s not proved . 7 .16. The c h arge a gain s t the 2nd appellant , equally fails . 7.17. But the ma t ter does not end there . 7 . 18. We a r e s a t i s fied that the evidence against the 2nd appe ll a nt proved a l e s ser cha rge of unauthorized pos s e s s i on of offici a l uniform contrary to Section 182 {4) of The Penal Code. The provision reads as follows : "Any person who, not being in the service of the Republic or having previously received the written permission of the President or other appropriate authority so to do , imports, manufacturer~ or sells or has in his possession for sale any official uniform is guilty of an offence and is liable upon conviction to a fine not exceeding seven thousand five hundred penalty units or to imprisonment for a term not exceeding three years , or to both. " 7 .19. The evidence against the 2nd appellant proved tha t he was found with a Zambia Air Force combat s hirt and that he had no au t hority to possess it . J14 7. 20. We find him guilty of the offence of unauthorized po s se s sion of offic i al uniform contrary section 182 (4) of The Penal Code. To th i s extent , his appeal a gainst conviction s ucceeds. 7.21. Having allowed all the appellants ' appeal s against the i r convictions for the charge of un a uthorised use of un i forms contrary to section 6 (1) (a) of The State Security Act, consideration of their appeals again s t s entence h a s been rendered otiose . 8. VERDICT 8.1. We set aside the convictions for the 1 st , 3 rd and 4th appellants , because they are not satisfactory . We also q ua sh the sentence s impo s ed on them. 8.2. As reg a rd s the 2 nd appellant, ordinarily , we would h a ve ordered that he pays a f i ne because the offence h as a n option of a fine . 8.3. I n a ddition , the 2 nd appellant is a first offender and there are no aggravating factors. JlS 8.4. However , in view of the time he has spent in prison , making s uch an order would be unjust . 8.5. Instead , we sentence the 2nd appellant to 6 mont~s simple imprisonment . The sentence shall run from the 14 th of November 2019 . Deputy Judge President D. L. Y. Si Court of ga, SC al Judge K. Muzenga Court of Appeal Judge