Jack Nsenda v The People (HKA/ 19/2019) [2020] ZMHC 420 (12 February 2020)

IN THE HIGH COURT FOR ZAMBIA HKA/ 19/2019 AT THE KITWE DISTRICT REGISTRY HOLDEN AT KITWE (Criminal Jurisdiction) BETWEEN: V. THE PEOPLE Before the Hon. Mr. Justice E. Pengele in Open Court on 12th February, 2020. For the People: Mr. B. Siafwa- State Advocate, National Prosecution Authority. For the Convict: Mr. P. Chavu]a, Senior Legal Aid Counsel, Legal Aid Board. (J - - - -- - - - - -- -- - - -- - - - - --,!'·'--.-'------ \ JUDGMENT Cases referred to: 1. Mwewa Murono V. The People (2004) ZR 207; 2. Ilunga Kabala and John Masefu V. The People (1981) ZR 102; 3. Lajabu V. The People (1973) ZR 7 4 ; 4. Peter Yotam Haamenda V. The People (1976) ZR; 5. John Mkandawire V. The People (1978) ZR 46; .,.c· , ~ ,. --. ~ . -~~: ... ' .. , .... · /· • .. / :·~: :· f · .... ; ,.- :: .. ; • \ ' 'I: : : • :/ . : • . • ; • . , I \~1:}i:It,)>,· 6, Kateka V. The People (1977) ZR 35; and 7. Nachitumbi and Another V. The People (1975) ZR 285. This Judgment follows an appeal by the Appellant against the Judgment of the trial Court which found him guilty and convicted him for one count of Cheating contrary to Section 311 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that, the Appellant and Peter Kaseba, on a date unknown but between 17th January, 2018, and :(j 31 st January, 2018, at Chingola in the Chingola District of the Copperbelt Province of the l~c public of Zambia, jointly and whilst acting together by means of fraudulent trick did obtain K80, 500.00 from KELVIN KABA SO. The case for the Prosecution can be stated briefly as follows. According to Kelvin Kabaso (P\1/1 ), who was the Complainant in this matter, in February, 2018, he received a phone call from a person, who identified himself as a Mr. Musonda, who claimed to have known PW 1 since he was a child. PW 1 told the Court that Mr. Musonda propose d to work \vith PWl in the business of supplying Petroleum Chloride to Indc ni . It \\';.1 s PWl 's testimony that Mr. Musonda told him that the supp lier of that Petroleum Chloride, by the name of Alfre d Kai we, would ca ll PW 1. It was PW 1 's further testimony that h e la ter came to know that the real name of that Alfred Kaiwu was Jack Nscncla (t.h c Appellant). -J2- The further testimony of PW 1 was that, the following day, the Appellant called him an d informed him that he would send someone by the name of Prince to take to PWl a sample of the Petroleum Chloride at Kl, 500.00. PWl disclosed that indeed Prince took the sample to PWl and the two concluded the transaction at PWl's home. He stated that he paid Kl, 500.00 to Prince in the presence of PWl 's cousin , Danny I'v1wansa, who he had asked to witness the transaction. PWl went on to testify that the same day, around 18:00 hours, he · V'.f, received a phone call from a man who introduced himself as Mr. Cloudy. He stated that Mr. Clourly 8Sked that they meet at Kasumbalesa for him to buy the sample. PWl told the Lower Court that the said Mr. Cloudy indicated that he had been called by Mr. Musonda and told about the sample. P\1/1 informed the Court that he went with his cousin to Kasun1bales a where Mr. Cloudy bought the sample at K2, 000.00. I·fo disclo~~cd ll-iat he later sent talk time amounting to Kl00 .00 to Mr. l\~ usond a -_.vho then informed him that Cloudy wanted more of that Petroleum Chloride after he had tested the sample. I, (i The additional testimony of P\1/ 1 w~ls th:::-.t after a few days, Mr. Cloudy phoned him anrl informed him 1'hat he had tested the sample and that it was okay. Pnrthcr that Mr. Cloudy told him that he needed 100 sachets of that product. -J3- l I ! ! i I I \ ( J ( PW l 's additional testimony was that he called the Appellant and the two met at Puma Filling Station. He ad d ed that h e went with his cousin to meet the Appe11an t. He told lhc Court that t he Appellant went with 27 sachets for which PWl paid him K40, 500.00 . The further evidence of PW 1 was that the buyer refused to buy 27 sachets and indicated that he could accept to purchase at least 60 sachets. He told the Court that he then withdrew his saving of K40, 600.00 and called the Appe lla nt fo r more sachets but that the Appellant indicated that he did not h ave any. That PW 1 then called ~ Mr. Musonda who told him that the Appellant would connect him to another supplier called Zulu. That later, Zulu cal1cd PWl and subsequently sent Prince to deliver :: -:- sache ts for which PWl paid K40,000 .00 in the presence of his cou s in . PWl proceeded to testify that he then called Mr. ]VT11sonda who told him to wait for a phone c n11 from th e buyer, but th nt the buyer did not call. He testified that v.rhcn he tri<' d 1.o cri ll Mr. Mnsonda, Prince, Cloudy, the Appella nt an rl 1/.: ilt1, h e i'n\ 1nd tha t their phones were off. That he then googled the product a nd discovered that it did not exist. His evidence was that this was v.-hcn he rc[Jlizcd that he had been swindled. It was PWl's testimony th ~1t he had I:· ·<.·n told that the product was used to colour fuel. The other witness for the Prosecution was PW 1 's cousin, Danny Mwansa (PW2). This witness confirm ed that he \Vt1s present when -J4- P\i\f 1 and Prince transacted on the san1plc of the product in quest.ion. He also confinncd that he cscorlccl PW1 lo Kasun1balcsa where PVv' 1 h a nded over the sample sachet to some huge man in exchange for K2 ,000.00. He told the trial Court that after son1e days, he witnessed the transaction between PW 1 and the Appellant. Further, that he also witnessed the transaction between the Appellant and Bruce. PW2 told the Court that he was later called by the Police to idcntif Y lhc suspects and that he identified the Appellant. PW3, Detective Inspector John Nalumbwe, told the Court that he conducted an identification parade at which Danny Mwansa (PW2) identified the Appellant. Detective Sergeant Boyd Ngoma (PW4) stated that he took pictures for the identification parade where PW2 identified the Appellant. PW5 , Choonga l·lamoon ga was a witness fron1 First National Bank who simply confirmed that PW1 withdrew K40, 600.00 from his ((, account. The last. witness was Detective Chief Inspector Esau Nyircnd a (PW6), who inves tigated this matter. This witness testified that he recovered 54 sachets of a lleged petroleun1 products frorn Kelvin Kabaso (PW l) a nd took them to 1ndeni Oil Refinery in Ndola. According lo PW6, the people at Ind en i Oil l~e finery refused to test. -JS- the a lleged Pctro1cun1 Chloride on 1hc ground that it was not their producl and that th ey do not. use Pe troleum Chlorid e Lo colou r fuel. PW6 ,;vent on to testify that, he later launched a 1nanh unt which led to the a pprehension of the Appellant and Peter Kascba. He disclosed that an identification parade was h eld at which the Appellant was identified. PW6 explained to the Court. that t he sachets h e recovered wer e la bcled "Petroleum Product". In c ross -exam ina tion, PW6 stated th a t Cloudy is the one who cou ld have told the Court if th e product was differ e nt. from the sample h e bought from PW1 . He conceded that although h e took the p rod u ct to Indeni Pctroleun1 Re finery for testing, h e had no Analyst Report. He a lso acce pted that although h e did a search w ith Airtel, the r esults were not given out. The Lowe r Court foun d tha t the Prosecution had failed to establish a prima Jacie case against Peter Kaseba. The Cou.rt, accordingly, ((, acq uitted him. 'fhc gist of th e Appe llan t 's testimony in defence was that h e was ou t o f the Coun try from 6 th January, 20 18 to 5 th March, 20 18. H e testified that when h e was apprehended, the Police got his phone and he gave them hi s phone n umber. -J6- It was the Appcllant.'s rurthcr tcstirnony thc:1 L an identification parade \;vas cond ucted where the witness passed him twice without identifying him. He told the Court that the said witness only identified him after the Police allowed him to ask for the nmnes of the persons on the parade. Delivering its Judgmcnt, the Lower Court stated that it h ad examined the so called Petroleum Chloride and that it had discovered that they were sachets of the powder that is used to colour water to make it look like a drink. According to the Lower (C- Court, a ll the Appellant did was print on the outer cover and write Petroleum Chloride. The Court expressed th e opinion that this act was so conspicuous that the Court wondered how the Complainant was deceived into believing otherwise. In the Court's view, no rocket science was needed to sec that the product was not genuine. Th e Court n oted th at the evidence that PW 1 identified the Appe llant remained unch a llen ged. The Court stated that PW] met the Appellant unde r very favourablc circumsta.nces of a supposed business transa ct.ion a nd , therefore, that PW1 had a conducive atmosphere 1.o observe th e Appellant. In the Court's opinion, th e Appe llant. could not have received th e K40,500. 00 without counting through it. The Cou rt , th erefore, found tha t. this a lso gave PW 1 a mpl e time lo observe the Appellant as h e counted through the K40,500.00. -J7- T h e Court a ls o ro und tha t th e Acc u s ed h a_d s a c h ets w hich Lh c Con1 pla inant counted before get.ting th ereby provid in g m o re time for the Con1plainant to further observe the Appella nt. The C ourt concluded that t.he observation of t.he Appellant by PW 1 wa s so favoura ble that the possibility of an honest mistake was ruled out. The Court., accordingly, found that the Prosecution had proved its case beyond reasonable doubt and she convicted the Appellant.. It is against that decision of the Lower Court tha t the Appellant has (C. appealed to this Court advancing three grounds of appeal, namely - 1. that the learned trial Magistrate erred and misdirected herself both in law and fact when she convicted the Appellant in the absence of any evidence proving the ingredients of the offence of cheating; 2. that, in the alternative to the first ground of appeal, the learned trial Magistrate erred both in law and fact when she made findings of fact which were not supported by the evidence on the record; and 3. that the learned trial Magistrate erred and misdirected herself both in law and fact when she convicted the Appellant in the face of unsatisfactory and unreliable evidence o f identification. ((1 In s upport o f t.h c a b ove ground s of a ppeal , on 17 t h S eptc n1b c r : 2 01 9, Coun sel for the Appellant filed written h ead s of a r gum e nt. -JS- The gist of t.hc s ubn1issions in support or lhe first ground of appeal is that there is no evidence on the record of appeal as to whether lhc product, which was said to have been Petroleum Chloride, was fake or genuine. Counsel argued that this is because PW 1 's customer from Kasum balesa, named Cloudy J was not called as a \,vilness to confirn1 whether the product was genuine or fake. Further, that there was no Analyst Report from any expert to confirm whether the product was genuine or not. (~ In Counsel's view, it was, therefore, a misdirection for the Lower Court to classify the product as being fake in the absence of any expert evidence. In Counsel's view, there was no evidence that. the trial Court even knew how the genuine product that PVv' 1 ought to have bought looked like. Counsel cont.ended that the record of appeal shows that the Arresting Officer took the product. to Indeni Petroleum Refinery for testing but that he sti ll told the Lower Court that he had no Analyst l (I Report.. Counsel disclosed that the matter was adjourned on a number of times pending appearance of an Expert from Indeni Petroleum Refine ry who never appeared until the Prosecution closed its case. Counsel , therefore, expressed the view that. the Prosecution did not discharge its burden of proof. To reinforce the above arguments, Counsel referred 111e to the case o f Mwewa Murono V. The People 1 • -J9- Counsel maintained lhal the evidence on record docs not. establish the elements of C heating within th e provisions of Sec tion J_l___! ___ o_f the Penal Code. In Counsel's view, this is because U-1c said section specifically deals with the use of a fraudulent device or trick. According to Counsel, there was nothing fraud ulcnt or trickery in the manner PW] bought and resold his products. On the second ground of appeal, the kernel of Counsel's submissions is that the trial Court made several findings of fact at · ~ page 44 of 1.he record which were not suppo rted by any evidence. Counsel contended that there was no evidence to support the trial Court's findings that PW1 had ample time to observe the Appellant. as he counted the money and that PW1 also spent some tin1c counting through the sachets before getting them. Counsel insisted that lhc Proscc u lion did not adduce any evidence to show how long it look PW 1 a nd the alleged seller to exchange the money and the prod uct.s. ( (I Th e Defe n ce we n t on lo sub1nit that. there wns evidence that. P\1/1 and the a llcgct se ll e r were meeting for the first. Lime. That, therefore, there wa s need lo conduct an identification parade in r espect of PW] for him t.o point out the person he dealt with. To buttress the foregoing, Coun se l re lied on the case of Ilunga Kabala and John Masefu V. The People2 • -Jl O- In add ition lo the above subn1issions, Defence Co un sel averred that lhc Lo\.vcr Court misdirected itself when it staled that i.hc identification of the Appellant by PW1 remained unch a llenged. Th a t this was because PW] did not give a physica l d escription of the person he met at Puma Filling Station and how much time he spent with that p e rson. Counsel cited the case of Lajabu V. The People3 in support of the above contentions. Counsel went on to aver that the Police did not avail to the Lower Court any evidence relating to the phone con1m unications that PW 1 had with the alleged s eller. In Counsel's v1cw, this amounted to dereliction of duty. Counsel cited the case of Peter Yotam Haamenda V. The People4 to augment their averments. Coming to the third ground of a ppeal, Counsel contended that there was no satisfac tory and reliable evidence of identification. In Counsel's view, the learned trial Magistrate did not. address her mind to the dangers of a n honest mistake in cases of a single identifying witness. In s upport of the foregoing, Counsel placed (I reliance on th e cases of John Mkandawire V. The People5 ;_Kat~ka V. The People6 a nd Nachitumbi and Another V. The Peop1~7 • The Respondent. did not file any written h eads of a rg un1cnt. I h ave careful ly considered the evidence on lhc record o f appeal, the Judgmcn t of the trial Court as well as the heads of a r g umcn l filed -Jl 1- on behalf of the Appellant. I will deal with the gro und s o f appeal in the order in which they have been raised and aq.,rucd on behalf of Lhc Appellant. The question for my decision, on the first ground of appeal, is whet.her or not the Prosecution prove d the ingredients o f the offen ce of Cheating. For the purpose of clarity, I have reproduced section 311 of the Penal Code under which the Appellant was charged. It s1.at.cs as follows: "311. Any person who, by means of any fraudulent trick or device, obtains from any other person anything capable of being stolen or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanor and is liable to imprisonment for three years." In the inslant. case, I must dete rn1in e whether t.h c Prosecution proved that the Appellant used a fraudulent. trick to o btain K80, 500.00 from PW 1. •· Thc1·e is no dispute that PW] paid a total of K80, 500.00 to some peo ple in exchange for some sachets of \Nh a t was described as -J12- Pc t.rolc un1 Chloride . The only k ey question 1s wh eth e r P\1/ 1 was fra udulcnUy tricked into paying that money. The Authors of Black's Law Dictionary, 8 th Edition, Bryan A. Garner, (2004) West, a Thomson Business: St. Paul , have defined "fraud", in so far as that term is relevant to this case, a s follows: "1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment .... " From the above d e finition, I am of the co n s idered view tha L a fraudulent tri c k , e nvisaged in Section 311 of the Penal Cod~ must involve a knowing misrepresentation of the truth or a concealme nt of a m ate ri a l fac t whic h is aimed at inducing another person to act Lo his or h e r dc trirn e nt. The question Lh a l fo llows invaria bly the n 1s ·wh e the r the Appe llant m a d e a kn owin g m is r ep r esentation of some truth a bout th e Petroleum Chlo rid e, which mis r e pres enta tion was aimed a t inducing PW 1 t.o par t awa y with th e K80 , 500 .00. From the eviden ce of PW 1, it is clear that when he rea lized tha t the phones of Mr. Mu sond a, Prince, Clo udy, Kaiwu a nd Zulu were off, he becam e s uspicfr)u s. He t.h cn went lo Google and searched for Pe troleum Chloride a n d , according lo him , the s earch rcvca.led t.11at Pe troleum C hlorid e docs not ex ist. Tha t wa s how he rea li zed th a t. h e had been -Jl3- S\-vincllcd ·a nd subsequently he proceeded to report th e rnailer lo the Police . Having atlcnt.ive1y reviewed the evidence on the record of appeal, 1 have failed to accept that the Prosecution discharged its burden of proof in establishing beyond reasonable doubt that there was a fraudulent trick in this case, even assuming, for now, that it was the Appellant who supplied PWl with the alleged Petroleum Chloride. To start. with, the evidence on record clearly shows that it ((f was a Mr. Musonda who originally introduced the idea of him and PW1 working together in the business of buying and reselling Petroleum Chloride. The evidence of PWl shows that the Appellant later sent Prince to deliver a sample of Petroleum Chloride for which PW 1 paid K 1, 500.00. PW 1 proceeded to resale that sample to Mr. C loudy al K2 , 000.00. According to PWJ, Mr. Cloudy later phoned him a nd inform ed him that the sample of the Petroleum Chloride had been tested a nd that it had been found to be okay. From the foregoing, it 1s clear that the Petroleum Chloride was ( (I ascertain ed t.o have been a genuine product, according to lVlr. Cloudy. The q u cs lion, therefore, is whether there is any evidence to prove that in fact lhal product. was not genuine as cl a in1cd by Mr. Cloudy, but was used as a mere fra udulen t trick lo obtain the K80,500.00 from J>\,Vl. -J14- A cursory look al the record of appeal establishes that th ere is absolutely no evidence to prove that the Petroleum Chloride that was sold to PW1 was not a genuine product. The only evidence available on the record of appeal is the testimony of PW 1 that his Coogle search revealed that Petroleum Chloride did not exist. c• I have no h esitation in holding that a search from Google cannot be used as a scientific or other reliable proof beyond reasonable doubt that indeed the Petroleum Chloride was not genuine. The testimony of the Arresting Officer (PW6) is that he look the 54 sachets of Petroleum Chloride to Indeni Petroleum Refinery -in Ndola but that they refused to test it on the basis that it was not theirs and further that they do not use Petroleum Chloride to colour fuel. This evidence too, in my opinion, does not prove beyond reasonable doubt that the Petroleum Chlorid e in issue was not a genuin e product. In his evidence in cross-examination, PW6 conceded that he had no a n alyst report. It is clear from the above, therefore, that. there was completely no evid ence before the Lower Court to prove that the Petroleum Ch]oride in dis pute was a fake product. -J15- The learned trial Magistrate stated in her ~J udgmcnt !:hat she had herself cxa.mincd the Pctroleu1n Chloride and she had discovered that it was not a genuine product. According to the Lower Court, the Petroleum Chloride in question were just sachets of powder that is used to colour water to make it look like a drink. The Lower Court proferrcd the opinion that all that had been done was to print on the outer cover of the sachets the words "Petroleum Chloride". 1 have found it difficult to accept that the Lower Court could have c• properly undertaken a scientific cxamjnation nor indeed any other expert examination of the contested product and arrived at a conclusion that it was a fake product. The Prosecution had clearly failed to adduce any scientific or other expert evidence to prove beyond reasonable doubt that the product in question was not genuine Petrolcu1n Chloride. I do not think that it was proper for the Lower Court to fill up that gap in the evidence of the Prosecution by the Court itself conducting an examination of the product. It is c lear from the evidence on the record that even the /\rrcsting Officer, who investigated this matter, did not make such extensive contest.ation of the genuiness of the Petroleum Chloride as (t the learned Lrial Magistrate did. It is settled law that the legal burden of proving the elements of the offence lies on the Prosecution. To this effect, in the case of Mwewa Murono V. The People 1 , the Supreme Court held that- ''In criminal case, the rule is that the legal burden of proving every element of the offence charged, and -Jl6- consequ ently the guilt of the acc used lies from beginning to end on the Prosecution." I an1 of the considered op111.10n that the Prosecution failed to prove that the Petroleum Chloride was not a genuine product. I, therefore, hold that the Prosecution did not prove that the Appellant sold the Petroleum Chloride lo PW 1 as a fraudulent trick to obtain the K80, 500.00 from him. In view of the foregoing, I find it otiose to delve into the other two grounds of appeal advanced by the Appellant. J\11 in all , I h old t hat there 1s merit in this appeal. I find that the Prosec ution fa iled to prove its case against the Appellant beyond r easonable d o ubt. I find that the Appellant is not guilty of the offe n ce of Cheating and I acquit him, accordingly. Delivered in Open Court at Kitwe this 12th day of February, 2020. E. PENGELE HIGH COURT JUDGE -Jl 7-