Davie Sichinga v The People [2022] ZMCA 194 (18 November 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NOOLA (Criminal Jurisdiction) Appeal No. 80/2022 BETWEEN: IDAVIE SICHINGA AND THE PEOPLE Op URT OF 'At • f8 NOV 29122 14z' A CRIMINAL REGISTRY I 0067, APPELLANT RESPONDENT CORAk4: Mchenga DJP, Chishimba and Muzenga, JJA 16' November 2022 and 18 1h November 2022 ON: For the Appellant: B. Bands, Legal Aid Counsel, Legal Aid Board For the Respondent: B Siafwa, State Advocate, National Prosecution Authority RULING Mchenga DJP, delivered the ruling of the Court. Legislation referred to: l. The Penal Code, Chapter 87 of the Laws of Zambia 2. Court of Appeal Act No.7 of 2016 3. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 1. BACKGROUND 1.1. The appellant appeared before the Subordinate Court (Hon. J. N. Imenda), on a charge of Stock Theft R2 contrary to Sections 272 and 277 (2) of The Penal Code. 1.2. He denied the charge, and the matter proceeded to trial. 1.3. At the end of the trial, he was convicted and sentenced to 5 years imprisonment. 1.4. The case was then committed to the High Court for confirmation of that sentence. 1.5. The High Court (Limbani, J.), confirmed the sentence. 1.6. He has appealed against the conviction, but before hearing the appeal, we decided to consider whether we had the jurisdiction to hear the matter, given that the appellant had not obtained leave to appeal to this court. / 2. DECISION OF THE COURT 2.1. The two provisions that confer the Court of Appeal with the jurisdiction to hear criminal appeals, are Sections 14 and 15 of The Court of Appeal Act. They read as follows: 14(1) This section applies to the exercise of the jurisdiction of the Court to hear appeals in criminal R3 matters from a judgment of the High Court sitting as a court of first instance. (2) A person convicted by the High Court may appeal to the Court on a question of law, fact or mixed law and fact and shall be so informed by the judge at the conclusion of the trial. (3) A person convicted by a subordinate court and committed to the High Court for sentence shall, upon being sentenced by the High Court, for all purposes connected with that person's rights of and procedural matters relating to the appeal, be considered to have been convicted and sentenced on trial by the High Court, and accordingly an appeal against such conviction and sentence shall lie to the Court. (4) If the Director of Public Prosecutions is dissatisfied with a judgment of the High Court in the exercise of its original jurisdiction on a point of law, the Director of Public Prosecutions may appeal to the Court from such judgment. (5) An appeal shall not lie against a sentence the imposition of which is fixed by law. 15 (1) A party to an appeal to the High Court may appeal to the Court against the judgment of the High Court with the leave of that court, if given at the time when judgment is pronounced, or with the leave of the Court. (2) For purposes of this section, an order made by the High Court in the exercise of its power of review, a decision of the High Court on a case stated or a decision of the High Court refusing an application for an appeal to be heard out of time, shall be considered to be a decision of the High Court in exercise of its appellate jurisdiction. (3) Where under section three hundred and twenty-four of the Criminal Procedure Code an application for an appeal to be heard out of time has been refused by the High Court, the applicant may apply to the Court or the appeal to be heard by the Court, and if such application is granted, the appeal shall be heard by the Court as if it lay direct to it. 2.2. Section 14 of The Court of Appeal Act, deals with what are termed as first appeals. These are R4 appeals from the judgment of the High Court in a matter that was tried by the High Court. 2.3. It also covers appeals from the High Court, in a case that was tried in the Subordinate Court and committed to the High Court for sentencing, by virtue of Section 217 of The Criminal Procedure Code. 2.4. In these two instances, there is no need for one to obtain leave, before launching an appeal. 2.5. We also have what are termed second appeals. These are provided for under Section 15 of The Court of Appeal Act. Such appeals, can only be launched after obtaining leave to appeal from either the High Court or the Court of Appeal. 2.6. The provision covers appeals from the judgment of the High Court, in a matter that went to the High Court on appeal from the Subordinate Court. 2.7. It also covers appeals from a decision of the High Court declining to hear an appeal from the Subordinate Court, out of time. I,- R5 2.8. In addition, the provision covers appeals from the judgment of the High Court in a matter which was heard by the High Court, after the case was stated by virtue of Section 341 of The Criminal Procedure Code. 2.9. Finally, the provision covers appeals from the judgment of the High Court, in .a case where the High Court exercised its powers of review. 2.10. The High Court exercises its powers of review, when it calls a case for review using Section 337 of The Criminal Procedure Code or confirms a sentence, in a case which was committed to the High Court by virtue of Section 9 of The Criminal Procedure Code. 2.11. In the case at hand, the judgment being appealed against, is a judgment of the Subordinate Court in a case that was committed to the High Court for confirmation of the sentence. It is an appeal from a judgment of the High Court in exercise of its powers of review. 2.12. It is a second appeal. R6 2.13. This being the case, the appellant should have obtained leave to appeal before launching the appeal. 2.14. Since no leave to appeal was obtained before this appeal was launched, we do not have the jurisdiction to determine the issues that it raises. 3. VERDICT 3.1. The appeal is struck out for want of jurisdiction. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE