Director of Public Prosecutions v Banda and Anors (Appeal 79 of 1989) [1991] ZMSC 44 (22 January 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 74 of 1989 HOLDEM AT LUSAKA (Criminal jurisdiction) ■ ’ ’ • i- V '4 u • * , • •. * . ? • Z DIRECTOR OF PUBLIC PROSECUTIONS Appellant • * -V- . < PATRICK BANDA ANO OTHERS Respondents CORAN; Ngulube, D. C. J.. Sakala and Cbaila, JJ. S. 0n22nd January, 1991 For the appellant, G. S. Phiri. Director of Public Prosecutions For the respondent, J. Naik of Counsel JUDGMENT ———————————————————————————————————————————————— Ngulube, o. C. J. delivered the judgment of the court • J' .. ■ • < - r Case referred to:- ' 1) DPP -v- Mbayo Mutwala Augustlno (1977) ZR 287 ■ ••••■ . ? ■ ■■ V >> The judgment delivered extempore in court was unfortunately not recorded by the radio cassette being used and the following is a summary of that judgment for record purposes. This is an appeal by the Director of Public Prosecutions against an order of acquittal entered in the following circumstances. The respondents,, Patrick Banda, Gedeon Zulu and Shadreck Kaumba Sakutowa were charged on an Information dated 5th August, 1938 with one count of aggravated robbery, the particulars of which were to the effect that they, on 14th May, 1985, at Lusaka and acting in concert stole a pair of shoes and some cash from the complainant John Kasabwa. Pleas were taken on 20th September, 1988 after a previous adjournment for the purpose of bringing to trial the third respondent who had escaped from custody but had since been apprehended. After 2/.... pleas 2 - applied pleas were taken, the learned State Advocate/for an adjournment on th ground that the main witnesses were not present despite having been told by the arresting officer to come to court and the learned State Advocate Indicated he would want to Issue summons to the witnesses. The learned trial judge refused the application to adjourn the case stating that absence of witnesses was not a good reason for an adjour ment and noting that the accused had been in custody forfa'year. -/The learned State Advocate then said. ■ '■ ?■ "I find myself in a very difficult situation in view of this court's refusal to adjourn this case. I therefore enter a nolle against the three accused persons#" The learned counsel for the respondents who appeared at the trial objei to the entry of a nolle and suggested that this was an abuse of process The learned defence counsel then applied that the State should offer ; evidence. The learned state advocate understandably offered no reply. The learned trial judge made a ruling in which he accepted the view t: the learned state advocate did not have an unfettered right to enter < no Ute prosequi and that, where this was done after an unsuccessful attempt to adjourn the case, the court had power to protect the accuse persons from persecution. The learned trial judge accordingly refuses to enter a nolle prosequi and said:- , C "I go on to treat the state as having no evidence to offer against the three accused persons and I acquit them of this offence accordingly." The learned Director of Public Prosecutions bases his appee in the constitutional powers conferred on him which iare£. not subject to interference and relies on our decision in Director of Public Prosecutions -v- Mbayo Mutwale Augustino (1). We made it clear in that case that the courts could not thwart the exercise of the power to enter a nolle and could not debate why it was being entered. Hr. Haik sought to draw a distinction between a situation where the court solicits for reasons why a nolle was being entered and that where the state advocate had volunteered a reason or has offered any explanation In his submission, the courtinherent power to question the exercise of the Director of Public Prosecutions' constitutional power where reasons have been given and they appear to be inadequate. He 3/....draws draws a parallel between such a situation and that under immigration laws^ where a minister could deport without disclosing reasons Out wnere a court could raise questions if reasons have in fact beep- . given. He have considered the arguments and nave no doubt that th< ? ■ ,. • ✓ learned trial judge fell into error in two respects. In the first instance,, it was improper to refuse the first adjoum^nt requested on the ground that the win witnesses had not turned up. Although adjournments ara in the discretion of the courts the discretion must be exercised on proper principles so as to secure the broader interests of justice.^ It Is certainly in the interests of justice that offenders, especially in serious cases, should be brought to trial. If the learned trial judge wanted to Know why the witnesses were not present, it would have been better to make inquiries rather than dismissing the case out of hand. In the second place, as we mode It clear in the Augustino case, the entry of a nolle is not an application so as to enable the court to grant or refuse the appli­ cation. It is tne result of the errors here that,; far from securing the rights of the accused persons, the matter has been protracted since It is inevitable that this appeal must ba allowed. The refuse; to allow the entry of a nolle was Ineffectual and the resulting acquittal a nullity. We quash the acquittal and direct the^ntry of the nolle which was entered oy the state and the discharge of all the accused persons hr. •’v.' ■ ••C : X*; : '1 ■ .< M. M. S. W. MgulUbe DEPUTY CHIEF JUSTICE i E. U Sakala SUPREME COURT JUDGE '.tjjv M. S. Chai la SUPREME COURT MWE