Clement Moonga & Another v The People (234 of 2017) [2019] ZMSC 87 (13 March 2019)

'' • SELECTED JUDGMENT N0.7 OF 2019 P.270 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA ( Criminal Jurisdiction) SCZ N0.233, 234/2017 BETWEEN: CLEMENT MOONGA JOHNMOONGA AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT Coram: Phiri , Muyovwe and Chinyama , JJS. On 5 th March , 2019 and on 13th, March, 2019. For the Appellant: Ms E. I. Banda, Senio r Legal Aid Counsel of Legal Aid Board. For the Respondents: Mrs M. Chipanta -Mwansa, Deputy Chief State Advocat e of National Prosecutions Authority. JUDGMENT Chinyama , JS , delivered the Judgment of the Court. Cases referred 1. Stewart to: v The People (1973) Z. R. 204 Statutes referred to: 1. The Penal Code, Chapter 87 , Laws of Zambia, section 294(2)(a). P.271 2. The Supreme Court of Zambia Act, Chapter 25, Laws of Zambia, Rule 12. 3. The Criminal Procedure Code, Chapter 88, Laws of Zambia, section 305(1). The appellants were charged with and convicted of the offence of armed aggravated robbery contrary to section 294(2)(a) of the Penal Code . The substance of the particulars of offence alleged that the two appellants , on 2° d July 2014 at Chisamba in the Central Province of Zambia, jointly and whilst acting together being armed with an iron bar and a firearm did steal from Francis Grugarn (the correct second name as we understand is Grogan) several properties and that at or immediately before or immediately after the time of such stealing used actual violence to the said Francis Grogan in order to prevent or overcome resistance to the said property from being stolen . The appellants were sentenced to suffer death in a judgment delivered on 19 th February, 2015. At the hearing of the appeal , Mrs . Chipanta - Mwansa drew our attention to a letter, in the record of appeal, dated 28 th April , 2015 , P.272 under th e han d of Mr. J ustice J . M. Siavwapa, the trial ju d ge in the High Court at the time, conveyi n g a recomme nd ati on to the Pres id ent of the Rep u blic of Zam b ia pur su a n t to section 305(1 ) of the Criminal Procedure Code that th e death penalty be com mu ted to that of life imprison m ent. Th e lea rn ed j ud ge note d that the p roperty in the case was recovere d and no app eal had been lodged (by the date of the letter). The sai d section states - 305. (1) As soon as conveniently may be after sentence of death has been pronounced by the High Court , if no appeal from the sentence is preferred , or if such appeal is preferred and dismissed, then as soon as conveniently may be thereafter, the presiding Judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make . Wh en we aske d the learned Deputy Ch ief State Advocate whet h er the recommen d ation has alrea dy b een acte d upon, she showed u ncertai n ty on t h e issue . Mrs. Ban d a, ho wever, state d t h at she ha d been informe d by the p riso n authorities that in fact the recommen d ation has been acte d u pon and t h e d eath sentence has b een co m muted to life impriso nm en t. P.273 We have perused the record and note that the Notice of Intentio n to Appeal is dated 16th May, 2017 b u t was received in the High Court Registry at Kabwe on 1 7th October , 2017 . This was more than two years after t h e date of j udgment an d we ll beyond the time a llowe d for filing an a p peal. The record of appeal d oes not s h ow that leave to file the appeal out of time in terms of Rule 12 of the Supreme Court Rules had been obtained. The absence of leave to proceed with the appea l ren d ers the ap p eal inco m petent. We wou ld, however , comment also that section 305(1) of the Criminal Procedure Code apprehen d s a situation where n o appeal is pending as occurred at the time when the learned ju dge ma d e the recommendation . After the p erio d with in which to appeal has elapsed and a recommendation has bee n m a de t o the President it sho ul d be improper for the convi ct to institute an appeal as the matter is now within the realm of the Executive to deal with . One reason for deferring the fate of a convict t o t h e Executive u nder sectio n 305(1) of the Criminal Procedure Code was alluded to by Baron J . P , . • const ituted as a three mem b er p ane l sitt in g at the High Cou rt in the case of Stewart v The People (1973) Z. R. 204 in the following terms: P.274 The law cannot cater for every conceivable situation; there will always be hard cases it is precisely because the law is not geared to deal with every deserving case that the prerogative of mercy is exercised, and it is only through that channel that the harshness of the present case can be alleviated. We propose to pass the papers in this case to His Excellency the President; we have no doubt that the Advisory Committee on the Prerogative of Mercy will accord the appellant the sympathy he deserves. It provides means by wh ich convicts found worthy of deserving can be reprieved from su ffering capita l punishment when circumstances since the letter of recomme n dat ion was sent after the period in which to file a Notice of Inte n tion to appeal had expired the appe llant could no longer proceed with an appeal unless he had withdrawn the letter before it was acted upon . In other words the letter of recommendation became a bar to any attempt to institute an appea l ff \ after the expiration of the period of appeal. In these regards the appeal is irregularly before us and we dismiss it. P.275 G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE .......................... ~ ... :.~ •.....•.•.••.......... J. CHINYAMA SUPREME COURT JUDGE J6