Mulwila v People (SCZ 15 of 1998) [1998] ZMSC 103 (17 November 1998)

t No^_J 5_o f _ 19 gg (17 > Appeal No. 95/1997 ~~ IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: JOHN MUBANGA MULWILA APPELLANT and , THE PEOPLE RESPONDENT Coram: Chai la, Chirwa, Lewanika, JJS 28th July and 17th November, 1998 For the Appellant: In person For the Respondent: J. Mwanakalwe, Principal Slate Advocate JUDGMENT Lewanika, JS. delivered the judgment of the court. CASES REFERRED TO: 1. MBEWE VS.’ THE PEOPLE, 1983 Z. R. 59. 2. SHAMWANA & OTHERS VS. THE PEOPLE, 1985, Z. R. 41. The appellant, who is a legal practitioner, is appealing against a decision by a Judge of the High Court barring hirn from representing a client who is charged with a criminal offence. The brief facts of the matter were that one Peter Chembe and two others were charged with the offence of aggravated robbery contrary to Section 294 (1) of the Penal Code and were appearing for trial before the learned trial Judge. It was alleged that Chembe and hi*, associates had stolen 300 million Kwacha and 32,350 U. S. Dollars. Upon his arrest Chembe instructed the appellant to represent him in the criminal proceedings. Counsel for the prosecution objected the appellant representing Chembe on the ground that 6,000 U. S. Dollars, being part of the stolen money, was recovered from the appellant's chambers and that the appellant would be called as a witness for the J2 (179) the prosecution. That as such a witness, he would not be allowed to be present in court when the other witnesses are giving evidence and could not therefore adequately represent the accused person. There was also an allegation that the appellant was related to the accused and that the accused had taken the money to the appellant for safe custody as a relative. The learned trial Judge upheld the objection raised by counsel lor the prosecution and barred the appellant from representing the accused, hence the appeal. The appellant has advanced six grounds of appeal and these were as follows:- 1. That the ruling was not based on evidence adduced before the court as there was none but on the public prosecutor's statements made at the bar. In arguing this ground the appellant said that on page 15 of the record the learned trial Judge concluded as follows; "It is apparent from the submissions that Dr. Mulwila allegedly received the money from the accused as his relation." The appellant said that he had not been given an opportunity to rebut the public prosecutor's allegations, which, ^nevertheless, were not founded on evidence or the depositions of the state witnesses. That it was dangerous for the trial Judge to draw conclusions such as the one above without proper evidence tendered before him. 2. That the trial Judge misdirected himself when he concluded, without due regard to depositions, that the accused was his relative. He said that no evidence was adduced to support such a conclusion and that even the depositions of the police officers show that his relationship with the accused was that of lawyer-client. He further said that if the learned trial Judge had reached the conclusion that J3 (180) there was a lawyer-client relationship between the accused and himself, he would not have concluded that he did not hold a privileged position and he would not have barred him from representing the accused. 3. That the trial Judge erred in law in concluding that he rendered advice to the accused in furtherance of a crime. In arguing this ground the appellant said that this conclusion was not based on evidence and was in contradiction to the deposition of the accused. That according to the deposition of the accused the appal lent had warned the accused that he would be jailed if he was involved in the bank robbery and that the appellant would return the money to the owners. He said that further the conclusion was fallacious because he met the accused after the fact and that whatever advice he could have rendered could not be in furtherance of the crime because it had been already committed, if at all. 4. That the trial Judge misapprehended the facts and hence did not appreciate the nature and extent of the applica­ bility of legal professional privilege as it related to the appellant. In arguing this ground the appellant said that if the trial Judge had not misapprehended the facts by relying on the submissions of the public prosecutor, he could not have concluded that the accused was the appellant's relative. Consequently, he would not have come to a conclusion that the appellant acted in furtherance of a crime and was not entitled to the legal professional privilege. 5. That the trial Judge erred in law by barring the appellant from representing the accused in his court. The appellant said that as an Advocate with a valid practising certificate he was entitled to represent anyone in Zambia. That he could only be barred if his conduct or actions are contemptious of the court. And that under the constitution the accused is entitled to be represented by an Advocate of his choice and he happened to have J4 (181) chosen him. That it was therefore a serious misdirection for the trial Judge to have barred him. 6. That the trial Judge erred in law in concluding that Order 5 of the High Court Rules has no application in criminal matters but civil matters. The appellant said that there is nothing in the High Court Act, or indeed any written law in Zambia to preclude the application of Order 5 of the High Court Rules in criminal matters. That the Rules deal with evidence and that if it was the wish of the legislature that the Rules should not apply in criminal proceedings, that could have been expressly stated. In reply Mr. Mwanakatwe who appeared for the respondent said that he had nothing useful to say and would leave the matter in the discretion of the court. We have considered the submissions of the appellant and whatever evidence that is on record. From the outset we wish to make it clear that depositions or statements from witnesses are no more than statements and do not constitute evidence. Similarly statements made at the bar by counsel are not evidence and should not be relied upon by a trial court to make findings of fact. Thus there was no basis upon which the learned trial Judge could have come to the conclusions which the appellant complains of and which form grounds 1, 2 and 3. It was most unfortunate that the learned trial Judge made these findings which cast serious aspersions on the integrity of the appellant without any evidence to support them. We will not deal with the question of whether or not the learned trial Judge was correct in barring the appellant from representing the accused on the ground that the appellant was a competent and compellable witness for the presecution and would be required to vacate the court room when the other witnesses are giving evidence for the presecution. The question of the admissibility of the J5 (182) evidence of a witness who was present in court throughout the proceedings was dealt with by Sakala, J, as he then was, in the case of MBEWE VS. THE PEOPLE (1). Although this was a High Court decision it is still good law. In that case the appellant was charged with inflicting grievous bodily harm. At the close of the presecution case he was put on his defence. He called one witness who had been present in court throughout the trial. In the interests of justice, the court dis-allowed his testimony and convicted the appellant sentencing him to fifteen months imprisonment with hard labour. He appealed against both conviction and sentence. In allowing the appeal Sakala, J. quoted with approval the following words from the judgment of Edmund Davies, L. J. in the case of MOORE VS. REGISTRAR OF LAMBETH COUNTY COURT, 1969, 1. W. L. R. 141:- "No rule of law requires that in a trial, the witnesses to be called by one side must all remain out of court until their turn to give testimony arises. This is purely a matter within the discretion of the court.... Indeed, if the court rules that witnesses should be out of court, and a witness nevertheless remains in court... the Judge has no right to refuse to hear his evidence." Sakala, J. went on further to say:- "........ but I would add further that where a situation arises in which a witness to be examined heard the evidence of the other witnesses, his evidence is still admissible . but the court, in considering that evidence at the end ' of the trial will have to determine as to what weight to attach to that evidence." The other issue relates to the desirability or otherwise of a legal practitioner representing a party in proceedings in which he has been given notice that he will be required or may be required to give evidence as a witness. We had occasion to consider this matter in the case of SHAMWANA & OTHERS VS. THE PEOPLE (2). The following is what we said at page 84:- "Having examined the relevant authorities, we think that, where a prosecutor or defence counsel is given notice, verbal or written, that he would be called as a witness J6 (183) for one side or the other to give evidence other than formal evidence, it is desirable for such prosecutor or counsel to withdraw, though failure to do so is not illegal. But where he has not played the dual role of prosecutor and witness, as in this case, there is no irregularity and absolutely no cause for complaint." The sum total of this is that though it may be undesirable for counsel to represent a party in proceedings in which he has been given notice that he will be called as a witness it is not illegal and it is not part of the court's function to bar the Advocate concerned from representing his client. The matter is best left to the good sense or conscience of the Advocate concerned. With regard to the provisions of Order 5 of the High Court Rules, these Rules should be used for the purpose that they were intended for, namely for civil proceedings. The learned trial Judge was on firm ground in his hold ing on this issue. For the reasons we have given we allow the appeal and set aside the order barring the appellant from representing his client in the criminal proceedings in the court below. M. S. Chaila SUPREME COURT JUDGE ... W^.... U. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE