Mwanza v People (SCZ Appeal 38 of 1993) [1993] ZMSC 121 (3 March 1993)

IN THE COURT Of Z/W3IA SCZ Appeal Ho. 38 of 1993 HOLDEH AT NOOLA (criminal Jurisdiction) JOHN MASAUSO MWAttZA Appel lent vs THE PEOPLE Respondent CORAM: Sakaia, Cha11a and Chirwa JJJ. S. The appellant appeared in person Mrs. P. S. Kananga, State Advocate for the respondent 3rd March, 1993. J U D 6 M U T Challa, J. S. delivered the judg-ront of the court. The appellant was charged together with a Mr. Mwlla with various thefts by public servant and forgeries. The appellant was charged with Mr. Melia on two counts* The first count was theft by public servant and the particulars were that he and Mr. Mwila on a date unknown but between 18th February, 1985 and 30th January, 1986 at Mbala In the Mbela District of the Northern Province of the Republic of Zambia, being a person employed in the public service as Court Orderly in the Judicial Department in the Ministry of Legal Affairs did steal 2 typewriters all valued at K1,700.00 the property of the Judicial Department which cam Into his possession by virtue of his employment. The second count related to theft by public servant. He was accused of having stolen 2 Electrical Heaters, 1 Wall Clock, 3 Mortice Locks, 8 bottles of vaseline the property, again, of the Judicial Department which came into their possession by virtue of their employment. After a long trial the appellant was convicted on tne second count and was sentenced to 5 years imprisonment with hard labour. He now appeals Z2....to this court - J2 - to this court against both conviction and sentence. His main argument is that the learned trial magistrate did not appreciate that he was merely an office orderly controlled by the Ute co-accused Ai who used to send him to deliver the properties In question on Ms behalf. The learned State Advocate Mrs. P.5. Kananga has supported the conviction. Sho has argued that the learned trial magistrate relied on the evidence of PW5 whose evidence, however, was approached with cautin and was corroborated by the evidence of PWU who had told the court that the typewriters in question never camo back. The question of typewriters, does not arise since the appellant was acquitted In the lower court but Mrs. K Manga extended the argument to show that the appellant was not an innocent participant when It came to heaters and wall clock. Mrs. Kamanga has argued that it was wrong to take government property to private persons for repairs. The appellant has argued that he was authorised to take properties to private repairers. The learned trial magistrate in his judgment said he could not believe the appellant’s explanation because it was wrong for the appellant to take government property to private repairers. We should take judicial notice particularly after the department of Mechanical services had been abolished, that government departments Including Judicial Department have been taking government properties to private garages or workshops for repairs* In this particular case nobody gave evidence to prove that it was wrong for the appellant to take government property to private repairers; to the contrary there was evidence from PW5 that the magistrate himself had authorised the taking of government property to the private repairers and apparently the magistrate had paid for the repairs himself. The learned trial magistrate gave a wrong reason to dismiss the appellant's explanation on that ground. As to the clock there is evidence from PWS that the clock was taken to him by Mr. Mwansa, the appellant, for repairs and that he told PW5 that letters *GWH should be erased from the clock since the clock was going to be on sale. There is further evidence from PW5 that Al collected the wall clock from PW5. There is also evidence from PWs 4 and 6. PWa's /3...evidence - J3 - evidence was that he was approached by Hr, MwUa the co-accused. The co-accused was together with the appellant and he was asking PW4 to buy the wall clock. The appellant was In uniform. PW4 requested his shop assistant to go and have a look at the wall clock. They went to Mbala Magistrate's court and went to the office apparently belonging to the co-accused and the watch was found there. The appellant was present as usual In his uniform. The price was negotiated end the clock was taken away. The appellant's argument was that he was Just sent as an office orderly by his senior. Hrs. Kananga has argued that the evidence clearly showed that the appellant was a very active participant and he should not now argue that he was merely an office orderly. Mrs. Kamangt has argued that when the wall clock was taken to PW5 It was marked “GRZ” but when It was taken back the "GW" had been erased on instructions by Mr. Mwila and the appellant. We have considered the arguments of the appellant and Mrs. Kananga. We have considered the evidence placed before the tower court end we have observed that the appellant became very active in the matter. He took the watch to PW5 and asked ?W5 to erase MGRZ“ words and when asked why. he said the clock was on sale, when PW was approached and offered the dock the appellant and Mr. Mia were together and the appellant, to make it worse, was in his official uniform. Secondly when PW6 went to inspect the watch at the Magistrates* court the deceased, the co-accused, was there together with the appellant. We agree with Hrs. Kananga's submission that he should have known that the watch was stolen and the appellant is as guilty as the co-accused. For the foregoing reasons we find that the learned trial magistrate was fully Justified in convicting the appellant for stealing the watch. As regards the evidence on the heaters, there is very little evidence against him. We allow the appeal against the conviction in respect of the heaters but we dismiss the appeal against conviction In respect of the wall dock. To that extent the appeal is dismissed. As regards sentence we have taken Into account the circumstances and 5 years imprisonment with hard labour has come with a sense of shock. The /4«...appeal against - J4 * appeal against sentence Is allowed and 5 years imprisonment with hard labour is set aside 1ft its place we impose 2 years imprisonment with hard labour with effect from 13th March, 1991. E. U Sakala SUPREME COl^T JUDGE M. S, Cha Ha SUPREME COURT JUDGE O. K. Chirwa SUPREME COURT JUDGE