Kabwe v People (Appeal 76 of 1986) [1988] ZMSC 69 (6 December 1988)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA ;< - Application No. 76 of 1986 ' d, u ■■aylv. Tn p^jevlar, he (Criminal Jurisdiction) - ‘'i vy n>s cc-atcused as to the ; i"-------------------■ ,v '■> . ■ by the a^li. Ca^t to suchxc-accused-:to •■■■■■ if ^’‘nciI end a Hr nritir-ised JOHN VICTOR KABWE Appellant • • .■ ■ ;,ivan yy -;;.o prysti ru6A wi trusses ..-“.iV'Tyy yjyy Ryyt'arojJcy Un the y; THE PEOPLE 1 licit Respondent"^ CORAM: Ngulube, D. C. J., Gardner, J. S. and Bweupe, AJ. S. - ; th® driAf tr,e trnck '‘ised -w all • CU‘i i'U =if f ‘ i fiT ?.t Ki?' WJ’ : tr ,- 6th December, 1988n ww*. in Appellant in person ’ i'ij ' '' ■' ? U?> w'ms'ry K. Lwali, State Advocate, for the respondent ws that Vie , for the V/ii'iyUE ; -,'i . ”?■ : t •• " • >| • in i$$uei eiso t:iat w^s evidence • ► yn rcr A** < ’ > * 0^ * ****** *c j u pig K E N T officer wr< ^s. keeping CO' ■ rr t.-:U »*Hf' nMa *h*f -f f ft - ? - in Ngulube, D. C. J., delivered the judgment of the court > . '•■•' ’.he council The evidence from the drivers was.y ■ ^tter of The applicant received an effective sentenceof'five years V** ■ ww offerer In +h$ honnu* HI Strict concurrent, two of which were suspended, on six counts of theft by public servant. The particulars alleged in respect of the first • ir K' U-'. ■ • 11 ■• ’>* :• : ■ . i - ytvi-’ (■•! t ife owvr t-’s mverted count that on 30th April, 1983 at Luanshya, while he was employed in the public service, namely, . Luanshya District Council .as stores :T controller and jointly and whilst acting together with a co-accused ■ is » ’ .'irrad’<^r’,*nt who was not before us, he stole 350 pockets of cement valued at over ' > ■■■' /-‘iL W ^Vl(!^ri<'? pr, r?th nr tit« K2,000 the property of Luanshya District Council. The next count of -V r /t . V ia n*! nr --f which he was convicted alleged that on 19th May, 1983 in the same .-/.rf-/ ■■ v run -p-.-n- rr ”nwnr.jt wa* , capacity, he stole 250 pockets of cement. The third count of which M' • I '---- '!'•■ flf'!’ he was convicted alleged that on 10th June, 1983, again in the same prt ^HCS r( .z,r ri< '<9 r.^n t not WUV capacity, he stole 350 pockets of cement. The next was that on’7th . r. aHo, by Lh« fart that site drtvtr^ sno July, 1983, again in the same capacity, he stole 50 pockets, of cement. -;c :nn a; < QaYQ '»Y?den,ce different The next was that on 6th August, 1983 again in the same capacity, he ~ ! 13 stole 200 pockets of cement. Finally, the, 6th count of which he was, it.’ Sr- ip ‘ • •><!. • • • • • convicted alleged that on 21st September in the same capacity with the same co-accused, he stole 150 pockets of cement. The applicant filed a number of grounds in which he has attacked the findings made by the learned trial magistrate. In particular, he has criticised the evidence given by his co-accused as to the *• instructions allegedly given by the applicant to such co-accused to . •:• ‘' written T-t SUtiWT fit ths s* divert cement purchased on behalf of the council and also criticised the quality of the evidence which was given by the prosecution witnesses In his additional .ground of appeal, the applicant argues that the witnesses-particularly the senior officer to whose house some of the cement was allegedly delivered and the driver of the truck used on all the occasions-should have been treated as accomplices or at the very least as witnesses with a possible interest ofpheir^q; to serve. In this regard we note that the evidence from the prosecution was that the applicant had raised the necessary documentation for the various purchases of the cement in issue; we note also that there was evidence that some of the invoices in respect of these transactions were never, submitted by the applicant to the appropriate officer who was keeping the records. Furthermore, we note that when an audit was carried out it revealed the disappearance of thevgeipen^^ a matter?of fact, never received by the council The evidence’from' the drivers was o- that some cement was not delivered to the council but diverted'to the residence of PW.1 who was a senior officer in the Luanshya District Council and who was constructing a personal house in Kitwe. The evidence of such drivers was also that some of the*cement was-diverted- to two gentlemen of Aslan origin. These datten two gentlemen gave evidence also to the effect that they had received pockets of cement delivered to them by council drivers as a result of an arrangement which they had with the applicant.*‘The-evidence-on oath of*the--*........ -- K K,. co-accused-which is criticised by,the applicant in,his grounds of application-showed very clearly how the cement on all counts was misdelivered to the various places. We find, that the suspect evidence that the applicant is referring to was amply supported, not only.by the documentary evidence but also, by the fact that the drivers, and . the receivers of some of the cement all gave evidence from different positions and there was therefore no danger of false implication. The documentary evidence in particular revealed the relevant irregularities * 1- £ ■; < Of' and this clearly supported the other evidence in support of the applicant’s conviction. The applicant has raised a number of ■ arguments at great length and stretching into five pages of written arguments all of which were precisely the same arguments which he had raised at his trial andjwhichjwere not’accepted by the^learned trial magistrate. WE can find no rnisdirection in the way that the learned trial magistrate resolved the various issues which hinged on the question of credibility, quite'apart from the quest iori'.which we have alluded to, namely, the support.for;theTaccomplice;evidence. At the we find there are no grounds, upon which to upset end of the day, the findings of the lower court. The application is refused. a A?. fvr • ' ' ' k ' - - } V jj ij HEKI , -- —---- -- ..^,.^^.^*.11- uwy- ■ ■ IMW*.«"V' * the (Nguluba^^ DEPUTY CHIEF JUSTICE • * * effective sentence of five years. .. - h ‘Sisipehd^d- .-nf-viarc counts uf theft by. in mpett of the first r-i^ at B.r. T^ Gardner e he w-s OTOloyed tn SUPREME COURT,. JUD^E •w •••>/; st ret Ino together with a co-accused ;. hv stole 360 pockets of-client valued at over/T K.iBweupe^ounci 1, The 'next count cf . .. K iw1® s 4 . . । „ ,, ' ?■ ’■>,i-'1 * ■ a— j-.7^ of cement. The third count oftW?h4< cil^dWt fin 10th «Mne, 1533, a$ain in tfw^ame ' / ir Th^ noxt wss that on7th - ............ it iin in th ■ ' iat on 6th '3S3 again, in capacity, be' <7?^ 50 of't^nt.. '.;f c<wnv, Finally, tho 6th count of which he, • ■'■j - Ub/i. on zHt Septeetb^r in the sw capaci , h? rtole 151) pockets of cer^rit.