Kanyanta v People (Appeal 1 of 1987) [1988] ZMSC 73 (13 September 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 1 of 1987 ■ ' 4 "1 ■ •• ' ■! i; r • ■ iv ■ . ■. HOLDEN AT NDOLA y ■---------------- t ' r < no ci&e tor ; ‘ (Criminal Jurisdiction) G? and-proceeded gHfiVCUS ha,^- MARTIN KANYANTA ■ "tied trial i^ge Indited :g co . ry t6 'try him on J ■ '■ ■■ ' v ■ ' -- I Appellant ’ hat under ‘ Code it-it • r- ; - . THE PEOPLE' . , it Respondent CORAM: Ngu1ube, D. C. J., Ga rdner, J. S, and Chai 1 a,, A J. S. > ,4 $ s $d * 1 ; ■■ 13th September, 1988 W* W. B. Nyirenda, Ezugha Musanda & Co., for the appellant ; u R. 0. Okafor, Acting Assistant Principal State Advocate, for the State • •■ ■■ • nJ . '. s w: * i ^MFaFpjon ' ' 1 !• *■» > O r1 /' — k r»- -k ' . Gardner, J. S., delivered the judgment of the court1 -h Pl Case Referred to: “ ” “ TT Tq “ “ “t -iisufta in thot case, tnac section 1M of - ■ X. " -"• '■ . ■ ;‘risr? itidpment’ st^ga. He are paitp sat 1 sfted. that (1) Shamwana and Others tb- (1985)* ZOU we it occurs In pur court s that • The appellant was convicted of assault occasioning .rievous'harm .. ■ g . , .. . .. and sentenced to two years Imprisonment with hard“labour of>which twelve months was suspended. The appellant was- originally charged with attempted murder and the particulars were as follows: that .* ’ the appellant on the 14th.of October, 1985 at Kitwe attempted ■ ' ’’ A'.i" unlawfully to 'cause the ’death of5 Wilfred KatongoVit ever; uncer ; a court should.not convict of■ a without The prosecution evidence Was to the effect^that'there had been a quarrel between the appellant’and a number of other people of which the complainant Wilfred Katdngo was ’one.’‘ After--the quarrel the appellant was seen to enter’his'motor vehicle?and<purposely'drived at the other group. In the course of such actionthe hit thet of complainant with the motor vehicleas a result of which the ,U complainant received injuries which were said by the doctor who > examined the complainant to consist of contusions on the left thigh. < J2 /■’: ' If At the close of the prosecution case the learned trial judge indicated that he found that there was no case for the appellant to answer on • the charge of attempted murder and proceeded., thereafter to try him on liana- $ . ■ • । " • /, the lesser charge of causing grievous harm. ' . . + . ad* ? nJ w both counsel that in this case the ' Mr. Nyirenda pn behalf of the a^ i ■ : the provisions of section 291(2^ of, the_Crintfn.al.^ mandatory for a trial court to acquit an accused if'it finds that 1. V. there is no case to answer on the principal charge against the accused. p ar rawslnc is sm as,ide,ano He has further argued that section, 181(2), whiph provides,for the conviction of accused persons for. of fences minor to. the., charge, upon which they appear before the court, could never come into effect;in such circumstances because, of the .fluty placed, upon .cgurts under.rt section 291(2) to acquit of any charges at the end of the prosecution case if the evidence does not support the charges upon which the ; accused persons appear. In the case of Shamwana and Others -v- The People (1), this court said, at p. 72 in connection with a similar argument raised by Dr. Mushota in that case, that section 181 of the Criminal Procedure Code may arise either$before!,or»at the no case to htpntv ,,r; r..,A.r answer stage or at the judgment stage.1 Ue are‘quite satisfied that nothing said by Mr. Nyirenda has altered.the opinion which we expressed in that case. Frequently it occurs in our courts that ; although persons are charged with major offences they arejconvicted after a full trial of minor offences..’"Mr.7NyJ^.^ that section 181(2) could never come intoleffectrcanndtfpossibly. ......... .. succeed as a ground of appeal. । < r ■ :> •• ' ■ ■ ■■. ■ Thereafter Mr. Nyirenda started to argue that even under section 181(2) a court should not convict of *a .minor'offence without calling upon an accused person to answer to the ;m.l not (of fenced However, after hearing the comments of this court Mr. Nyirenda withdrew that argument. We agree that he rightly withdrew it because, as we pointed out, it Is common practice for courts to deliver judgments convicting accused persons of minor offences without of : • - ■ • >* \• ' ' - . <■ ■ 1 course calling upon such accused persons to answer thereto It is indeed the very reason why section 181(2) was enacted . Mr. Okafor on behalf of the State has indicated that he does not support the conviction for causing grievous harm. He however, asked us to convict the appellant of assault causing actual bodily harm, and Mr. Nyirenda has indicated that he would not object to such a course. We agree with both counsel that in this case the Pliant w vf/ evidence of contusions to the thigh was not evidence of grievous harm and therefore the original conviction cannot stand. The appeal is allowed and the conviction forcausing grievous harm isFset-aside and the sentence therefor-is guashed. In place of the conviction we ’ substitute a conviction of assault causing bodily harm under section 248 of the Penal Code. In place of the original sentence • > ■ r • ' h Co ♦’n- fh« we substitute a sentence of a fine of K350.00 and we direct that K300.00 already held by the court as bail should be used as part “ toilet** ?. r »-h.% ctate ■ payment of that fine. .7 /JUD Ci M E ,N t. delivered the judgmcwt of/.the. ZBLL , DEPUTY CHIEF JUSTICE M. S. Nguiube, ' ■' '7 ' ■< »»:*„• ■ <1 w.»c o ■ ' ■ ■ / ■ ■ 1 . o - . ' rj.-, apps»1Mt orlSi^ily charged ^ 4 . ! ■ 7 : <...... r 3; ’ he particulars were as follows: that ' •' • n «*•» HtlToi October, 1985 fit Ki two attempted B. T. Gardner SUPREME COURT JUDGE ■ • : ■ .-^r? the uwth i M. S. Chaila \ ; , . > ACTING SUPREME COURT JUDGE wps tw. the ejr^ct that Ch^re nad. . l; thf' apaeHani and a nu-vber of cthar people of ? > cofi^iaifiaat Wilfred one. /After,the -quarrel . :.. v-^ saon to enter his sctor vehicle and purposely •‘drive ■ ■ at l.< h; •• uvup. Li.the coufsa of such qcticn. MMt the '’rf ? <> 7 j-Hf tbsi vfh!6ie ss n result of which tho' < •■ ■• /.<• j j;!,- j- ''. '■ vsd injuries which were said-by the doctor who < 'er;?Liiu^nt t consist r-f contusions nn the left thigh.