Bwalya v People (SCZ Appeal 39 of 1993) [1993] ZMSC 120 (3 March 1993)

IN THE SUPREME COU»T OF ZAMBIA 5CZ Appeal Mo, 39-42 of 1993 HOLOEN AT H90LA (Criminal Jurisdiction) PETER 3WALYA Appellant THE PEOPLE Respondent CORAM: SAkala* Cha Ha and Chirwa JJJ. S 3rd March, 1993 The appellant appeared in person Hr. S. A. G. Twuaiasl, Assistant Senior State Advocate for the respondent JUDGMENT Chai la, J.5. delivered the Judgment of the court. The appellants were charged with stock theft contrary to sections 275 (1) and 272 of the Penal Code. The particulars of the offence were that Peter Bwalya Buluse. Lloyd Mutate Kenya. Field Mwansa and Josphat Mwansa Kayula. on 1st February, 1992 at Chlnsali in the Chlnsali District of the Northern Province of the Republic of Zambia, jointly and whilst acting together did steel 29 cattle valued at K468,000.00 the property of Mbesuma Ranch. After being convicted the learned trial magistrate sent thee to the High Court for sentence since he found that he had limited jurisdiction. They were sentenced to 7 years imprisonment with hard labour with effect from 28th March 1992. The appellate judge also ordered that each of them gets 10 straokes of the cane. The facts of the case were that on the material date, the State Ranch at Resume Jost 39 herd of cattle and the Manager sent his men to look for the animals and made a report to the police as well as to the neighbouring villages. Later he received information that some people were selling some meat and after Investigations four people were /2...apprehended. - J2 * apprehended* There was evidence of PM2 to the effect that when he was looking after hie cows he found the appellant roasting so^ meat. He was given some neat in order to keep Quiet. He was told by Al and A2 that the meat they were roasting came from the animals they had stolen from KbesufM Ranch. The State is not supporting the convictions of A3 and A4. The evidence did show that both of them were found on the scene roasting the meat. They were Just mere spectators assisting Ai and A2 In roasting the meat. For that reason we allow the appeals and their convictions are quashed end the sentences are set aside. As regards Al and A2 the evidence clearly showed that Ai and A2 were part of the people who stole the 29 animals from the Hbesuma Ranch. There is no merit in their appeal against convictions and the appeals against convictions are therefore dismissed. As to sentences, we confirm the sentences of 7 years imprisonment with hard labour. These sentences have not come with sense of shock neither are they wrong in principle. As to the order of 10 strokes of the cane, this court during this session has dealt with three more cases coming from the same court. We would like to refer to the case of Adaa Berejena v The People 1934 ZR. We find that this Is not a case which calls for strokes of the cane. That order is set aside. E. U. Sakala COURT JUDGE M. S. Chai la SUPRgg COURT JUDGE O. K. Chirwa SUPREME COURT JUDGE IN THE SUPRgg COURT OF ZAM31A SCZ Appeal ho. 4 of 1994 HOLDEM AT NOOLA (Criminal Jurisdiction) HEW JERE VS THE PEOPLE Appellant Respondent CORAM: 3weupo, A. C. J., Sakalt and ChaiU JJ-S. 7th December, 1993. For the Appellant : Hr^. E. Hdhlovu, Luso Chambers, Chingola For the Respondent : Mr. T*J. A. Perera, State Advocate JUDGMENT Chai la. J. S. delivered the judgment of the court. ■ j ( '■. ' V’.-< The appellant was charged with theft by public servant. The particulars of the offence were that, he, on'27th July 1939 at Chililaboobwe in the Chililabombwe District of the Capperbelt . Province of the Republic of Zambia, being a person employed in tho public service namely, as a Court Clerk in the Ministry of Legal Affairs, did steal K2,000 cash, which came into his possession by virtue of Ms employment, the property of the Government of the Republic of Zambia. He was prosecuted and he was convicted end was sentenced to two years imprisonment with hard labour. The brief facts of the case ware that he was employed as a Court Clerk in the Judicial Department of the Ministry of Legal Affairs. He was given K4.640 to change into the new currency but later it was discovered that money changed was short by *2,000.00. During trial he contended that the *2,000.00 he was being accused of having stolen was his private money. The learned trial magistrate did not agree with his explanation and he found him guilty of the offence. He appealed to the High Court against both., convict ion and sentence* The High Court dismissed the appeals, He now appeals to this court against both conviction and sentence. His Advocate /2.... Mr, Ndhlovu... - J2 - Mr. hdhlovu has filed a number of grounds. The learned State Advocate Mr. Perera has Indicated that the State was not supporting th® conviction. The court inquired from him why he had taken that position. He explained that the learned trial magistrate who tried the case was his colleague and that they were working together In the Ministry of Legal Affairs. They had known each, other and it was Improper for the trial magistrate to take the case against the appellant. He further argued that tho appellant had been dented legal representation and that either the case should be completely allowed* or be sent back for retrial. Ma have considered Hr. Perera’s argument which has been supported by his colleague Mr. Hdhlovu who argued that conviction and sentence should not stand for the reasons given by Hr. Perera and also on the grounds given by him in writing. This case caaae up before a magistrate Class I Hr. Hulonda on 14th August* 1989. The case was adjourned to 17th August, 1989 for plea. When the matter came up the appellant Informed the court that he had engaged. Messrs Mwanavasa and Company and that his lawyer was going to be free on either 14th or 15th September* 1989. The matter was duly adjourned to 14th September, 1989. Dm 21st August 1989 Magistrate Hulonda brought up the case in Chambers, the accused was not present. He reported that he had received instructions : ‘ iV '<• J ' from the Principal Resident Magistrate, Ki two to transfer the case to Mr. £. C. Kaabanja* Magistrate Class 111* The case was so transferred to Mr. Kambanja, On 1st September 1989 the accused - - appeared before C. Kambanja who infonsed the accused that the J matter had been transferred to him on instructions of the Principal Resident Magistrate, Kitwe and that he was therefore going to take a fresh plea of it. The charge was explained to the accused. The accused made the following application, “tho court is well known to me and to Hr. Chib wo who is representing the State, I therefore wonder whether I am going to have any fair trial at all. The Magistrate replied, “the accused and the court were once Interpreters In the same Ministry but never before have we been at one station together or let alone associated myself with him. We had nothing in common before just as we have nothing in .cocroon now apart from the fact that we work in the same Ministry. As for the witness, there is no rule of law that forbids a court to try /3..,a case where a case where the witnesses are known to It. If It ware so, very few trials would have taken off* It is not knowing the witnesses that natters but the nature of their evidence* 1 find no merit in both grounds and I dismiss them.* The trial then commenced. The prosecution called their first witness* At that time the ' appellant never Infortwd the new trial magistrate that he wanted his Advocates to bo present. The trial continued free that day 1st September, 1989 until trial ended in March 1990. After judgment had been given, the accused was convicted and sentenced to 2 years imprisonment with hard labour. Hr. F. Hsimuko of Mslmuko and Company on 1st Hardt 1990 applied for bail on behalf of the appellant. Having red the record, we cannot find any information which shows that the appellant was denied legal representation. That complaint cannot therefore be upheld. On the question of the appellant having been tried by Hr. Kambanja who bad worked with, the appellant In the same/Ministry, the Magistrate when the application was made, explained the position and he, refused to,. \ excuse himself from taking up the case. Ve do not consider ,the learned trial magistrate erred In taking that stand. The appeal therefore cannot succeed on that ground. ’■ ■' ' ' ■. Nr. Ndhlovu, counsel for the appellant, argued that the judgment of the lower court was unfair and unsatisfactory on the ground that the evidence adduced by the prosecution which supported the appellant's story that the money which was changed consisted of private and Government money was ignored. He gave an example of PW3 who told the court that she gave the appellant K2.000 to change for her and PW7 while waiting and the appellant were inside tiie bank. PW3 and PW5 waited for then out side the bank. Nr. Ndhlovu further argued that evidence showed that private money was to be changed. He further submitted that the evidence adduced by PW2 which was favourable to the appellant was ignored. On the other grounds of appeal the learned defence counsel argued that the money which was made subject of the offence was not Government money and the appellant should have not therefore been convicted of the offence of theft by public servant. He also raised the question of fair trial In one of his grounds. He submitted that the appellant had objected to the trial magistrate taking the case but he was over J4 ruled. The defence counsel argued that the learned trial magistrate missed the point. As we have already said the trial magistrate dealt with the objection and properly rejected the objection to him taking the case. We have looked at the judgment complained of and wa have not found any bias on the part of the trial magistrate. We have considered other grounds submitted by Mr. Ndhlovu. Wehave considered the evidence adduced before the lower court and we are satisfied that the learned trial magistrate approached the Issues before him correctly and camo to the right conclusion. The evidence against the appellant was overwhelming. Thera was no prejudice during trial. The appellant was not denied legal representation. For the foregoing reasons J;he appeal against conviction is therefore dismissed. As to sentence we feel that suspended sentence will be^— appropriate. The sentence of 2 years is suspended for 12 months with immediate effect 'WP & a. X. &Mupa ACTING CHIEF JUSTICE ' SE. U Sakala SUPREME COURT JUDGE ■ * 4fv'ft. Cr*'i -I M. S, Chai la S'JPRDC COURT JUDGE