Maxwell Mandona v People (APPEAL NO. 28/2010; SCZ NO 28/2010/SCZ/9) [2012] ZMSC 124 (29 May 2012)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Appellate Jurisdiction) APPEAL NO. 28/2010 SCZ NO 28/201 0/SCZ/9 BETWEEN: MAXWELLMANDONA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mwanamwambwa, Wanki and Musonda, J. J. S. On 9th April 2011 and 29th May 2012 For The Appellant: Major K . Kaunda of Messrs Kingsley Kaunda & Associates For the People: Col. M . Maanga, State Advocate JUDGMENT Mwanamwambwa, J. S., delivered the Judgment of the Court. Cases referred to: 1. Nsofu v The People (1973) Z. R. 287. 2. Mwelwa v The People (1972) Z. R. 29. 3. Choka v The People [1978) Z. R. 243. 4. Kombe v The People [2009] Z. R. 282 5. Tembo v The People (1972) Z. R. 220. Legislation referred to: 1. The Defence Act, CAP 106 of the Laws of Zambia. Sections 49 (1) (a), 72 & 88. -J2- Hon. Judge P. Musonda was part of the Court that heard this appeal. Currently he is temporarily out of office. Accordingly, this is a Judgment by the majority of the Court. On 28th November 2008, the Appellant was convicted on four counts, under the Defence Act, CAP 106 of the Laws of Zambia, by the Court Martial. He was sentenced to be dismissed and cashiered from the Defence Force, and cancellation of his Commission. The 1st count was for stealing property, contrary to Section 49 (1) (a) of the Defence Act. Particulars were that on 31 st March 2007, at 205 Coy, he stole 500 cases of tinned equivalent rations, valued at K39,678,000, public property of the Zambia Army. The 2 nd count was for an act to the prejudice of good order and military discipline, contrary to Section 72 of the Defence Act. Particulars were that, between 30th and 31 st March 2007, at 205 Coy, he behaved in an un officer like manner, by facilitating 90088 Cpl Sichalwe J. of Z. C. C. F, Kitwe, to sign for 500 cases of tinned equivalent rations, valued at K39,678,000, public property of Zambia Army, while knowing that the SNCO was on sick leave and therefore, was not authorized Storeman to sign on behalf of ZCCF, Kitwe. , .... , -13- The 3 rd count was for conduct to the prejudice of good order and military discipline, contrary to Section 72 of the Defence act. Particulars were that at 205 Coy, on 13th April 2007, when told by 88101, SGT Lungu C. of ZCCF Kitwe, that the rations that were signed for by 90088 CPL Sichalwe J, purported that they were for ZCCF Kitwe, were not delivered, did not take any reasonable action to report the missing 500 cases of tinned equivalent rations to the authorities. The 4 th count was for conduct to the prejudice of good order and military discipline, contrary to Section 72 of the Defence Act. Particulars were that at 205 Coy, on 31 st March 2007, he gave orders to 71231 WOI K. Palata and 95653, CPL Choonga J. K., to open the ration store, at approximately 06: 15 hours, time, before the authorized time to open the ration store, conduct that resulted in the theft of 500 cases of tinned equivalent rations from 205 Coy. This is an appeal against the conviction and sentence. The case for the prosecution was that on 30th March 2007, the Appellant, then a Captain in Zambia Army, gave orders to personnel of the Ration Section, to report for work on 31 st March 2007, which was a Saturday. Those ordered to report for work were, P. W.15 Warrant Officer II Mwanza, P. W.14, Sergeant Kambanji and P. W.13, Corporal Choonga. On 30th March 2007, the Appellant met P. W.7, Corporal Sichalwe , within 205 Coy -J4- prem1ses. On 31 st March 2007, at about 06:00 hours, the Appellant released the keys to the Strong Room to P. W.12, Warrant Officer I, Palata. P. W.12 was the Depot Warrant Officer then. On 31 st March 2007, P. W.7, Corporal Sichalwe arrived at 205 Coy, at about 05:00 hours, with a Canter truck. On 31 st March 2007, 500 cases of tinned equivalent rations were moved out of 205 Coy, signed for and moved out of the Depot, by P. W. 7, Corporal Sichalwe, using the said Canter truck. The 500 cases of tinned rations were supposedly issued to ZCCF, Kitwe, on the authority of the Appellant. When the 500 cases were moved out of the Depot, on 31 s t March 2007, the Appellant was the most senior person present. The 500 cases of tinned equivalent rations never reached the intended destination, ZCCF, Kitwe. At the date of trial, their whereabouts were not known. When the original document number 1033 for the issue of the 500 cases went missing from the file, a fake 1033 was issued to cover the original one. On 13th April 2007, P. W.9, Staff Sergeant Lungu from ZCCF, Kitwe, went to 205 Coy to draw rations on a signal, for twenty (20) persons. He was issued with the rations and a 1033 was signed to that effect. As a result of the missing 500 cases, some of the prosecution witnesses were changed. These included P. W.6, P. W.7, P. W.11, P. W.12 and P. W.13. The Appellant's defence was a denial. He said that he had the 500 tinned rations issued to ZCCF Kitwe, on the instructions of P. W.6, Major Hamayuwa. That the instructions to him by .. -J5- Major Hamayuwa, were given verbally, on Friday, 30th March 2007. The trial Court Martial addressed itself to the fact that some prosecution witnesses were witnesses with an interest of their own to serve. It then warned itself on the danger of convicting on their evidence without corroboration. The Martial Court found as a fact:- 1. That the movements of the 500 cases had more to do with the Appellant, who was at the time the most senior person. 2. That the circumstances, in which the rations moved from 205 Coy pointed out to the fact that although the tinned equivalent rations were not physically moved by the Appellant, but by P. W.7, Corporal Sichalwe, the planning and execution indicate that the Appellant planned and gave order for whatever transpired on 30th March 2007 and onwards, which resulted in the movement of 500 cases of tinned rations from 205 Coy. 3. That even though the Appellant testified that he acted on orders from P. W.6, Major Hamayuwa, his officer C<?mmanding, the Court found that there .was no evidence, whatsoever, to show that the Appellant was ordered. 4. That the normal procedure in the Army is that if troops are to work on the weekend or holidays, there must be a loose minute or signal to that effect. 5. That on 30th March 2007, the Appellant gave verbal orders to the rations Section to work the following day, which was a Saturday. -J6- 6. That on 30th March 2007, the Appellant met with P. W.7, Corporal Sichalwe, who later moved the tinned rations out of 205 Coy, at about 06:00 hours, which is before the normal working hours, when there was no emergency. 7. That the Appellant was so impatient that he could not wait for the I C rations, P. W.5, Staff Sergeant Lungu, or P. W.14, Sergeant Muketa, the 2 I C, rations, to come. But instead the Appellant gave orders to P. W.13, Corporal Choonga, a junior non Commissioned officer. 8. That there was no request for tinned rations of such magnitude from any unit, within 3 Infantry Brigade. But the Appellant went ahead and gave orders to P. W.13, Corporal Choonga to issue the tinned rations. Worse more, on 13th April 2007, the Appellant issued ZCCF, Kitwe, with other rations even after being told that the unit was already issued with 500 cases of tinned rations, on 31 st March 2007. 9. That the Appellant's orders caused the 500 cases of tinned rations to move out of the Depot. The Court Marshal then concluded as follows:- 1. That it was strange that even after knowing that the 500 cases of tinned rations, issued on 31 st March 2007, did not reach ZCCF, Kitwe, the Appellant's attitude and reaction towards the matter was not befitting a Commissioned Officer. 2. That the Appellant's presence at the main gate, to see off the civil truck further indicated his intentions to ensure that the plan goes undisturbed. 3. That there were no accomplices in that those alleged to be accomplices did not participate in the Commission of the offence at hand. • -J7- 4. That some of the prosecution witnesses were not honest , in their testimony. They told lies on oath. On behalf of the Appellant, Major Kaunda filed seven (7) grounds of appeal. We note that grounds 1 and 2 are inter related. Accordingly, we will deal with them together. Ground 1 is that the Court Martial misdirected itself in law by relying on the evidence of witnesses who had an interest to serve. The witnesses in question are P. W.'s 1, 6, 7, 8, 9 , 10, 11, 12, 13, and 14. The gist of his argument is that the witnesses in question were initially charged with offences relating to the case at hand. But the charges were later dropped. He submits that the Court Martial erred in law and in fact, when it convicted the Appellant on the testimony of witnesses with a possible interest to serve or who were accomplices, unless there were special or compelling grounds. Ground 2 is that there was no corroboration to show that the offence of theft was committed by the Appellant. He starts by referring us to Nsofu v The People (1) and Mwelwa v The People (2), which deal with corroboration. He then argues that in the absence of independent evidence by the prosecution to confirm that the Appellant stole the 500 cases of tinned rations, it was a serious misdirection on the part of the Court Martial to convict the Appellant of theft. He adds that the trial Court must warn itself on the dangers of convicting on uncorroborated -JS- evidence. That an Accused person should not be convicted on the uncorroborated testimony of a witness with a possible interest to serve or an accomplice, unless there are special and compelling grounds. That in this case, there were no special and compelling grounds to warrant conviction of the Appellant. In response, on behalf of the People, Colonel Maanga, on grounds 1 and 2 submits that P. W.'s 1, 6, 7, 8, 9, 10, 11, 13 and 14 had no interest of their own to serve, as prosecution witnesses. Therefore, the Court Martial did not misdirect itself in law by relying on their evidence. He submits that P. W.6, Major Hamayuwa was punished for charges that were preferred against him. As such he was a free person, so far as the case at hand is concerned. That he had no interest to serve when he gave evidence. As for P. W.'s 1, 7, 8, 9, 10, 11,13 and 14 who are non Commissioned officers, he submits that they were merely obeying orders which were given by the Appellant. That they were not convicted of theft of 500 tinned equivalent rations. He further submits that the prosecution adduced independent evidence which corroborate each other. He points out that 500 tinned equivalent rations were moved from the supply Depot on 31 st March 2007, without proper authority. That all prosecution witnesses attested to this fact. That the person who was at the centre of ensuring that the tinned rations were issued on 31 st March 2007 and having them moved from the Depot, was the Appellant. -J9- We have examined the Judgment in the Court below and have considered the submissions on both sides. The legal position is that a witness with a possible interest of his own to serve should be treated as if he was an accomplice, to the extent his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanor and the plausibility of his evidence. That «something more" must satisfy the Court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness: See Choka v The People (3). • In the case at hand, evidence on record shows that P. W.1, Sergeant Mulenga, was not a witness with an interest of his own to serve. He did not participate in the issuance of the 500 tinned rations. He was not charged with their theft. He was a Military Policeman who investigated the theft of the rations. And he gave evidence as such Investigator. Therefore, his evidence on the theft, did not require corroboration. The case record shows that P. W.6, Major Hamayuwa was earlier charged with negligence, found guilty and reprimanded. He was not charged with theft of the 500 tinned rations. Therefore, we agree with Colonel Maanga that in so far as this case is concerned, he was not motivated by self interest to save I I -J12- The pt odd coincidence is that the Appellant verbally ordered his juniors to report for duty on Saturday, 31 s t March 2007, which was not a working day, to issue tinned rations. He did so in breach of Army procedures, which requires that orders to work on a non working day, be in writing. The 2 nd odd coincidence is that the ration store was opened on his orders, at an early odd hour of 06:00 hours, when there was no emergency. The 3 rd odd coincidence is that the Appellant allowed the 500 tinned rations to be transported out of the Army Depot, using a private and civilian Canter truck. The 4 th odd coincidence is that the Appellant ordered issuance of a large quantity of 500 tinned rations, when he had no written authority by his superiors to do so, in breach of Army procedure. The 5 th odd coincidence is that the Appellant ordered P. W.7, to take the 500 tinned rations out of the Depot. The Appellant knew or ought to have known that P. W.7, was on sick leave and off duty. There is evidence that the Appellant met P. W.7, on Friday 30t h March 2007, the day before P. W.7 took the 500 tinned rations out of the Army premises. • l I .! -J13- The 6 th odd coincidence was that on 31 st March 2007, the Appellant went to the main gate, to see off the 500 tinned rations leave the Army premises in a civilian Canter truck. The 7 th odd coincidence was that when the Appellant was told that the 500 tinned rations issued on 31 st March 2007, never reached Kitwe, he never showed concern. And did nothing about them. An innocent Captain, similarly placed, would have shown concern and institute investigations over the non arrival of the tinned rations at Kitwe. To the fore-going must be added the Appellant's contradictory versions on the destination of the 500 tinned rations. On 13t h April 2007, he told P. W.9, Staff Sergeant Lungu that the 500 tinned rations which P. W. 7 signed for on 31 s t March 2007, were not meant for ZCCF Kitwe; but for North Western Region. The Appellant told P. W.1 and P. W.2 the same story. And yet in his defence, the Appellant testified that on Friday 30th March 2009, he was verbally instructed by P. W.6, Major Hamayuwa, to_ issue 500 tinned rations to ZCCF Kitwe. P. W.6 denied having issued such instructions. In our view, these odd coincidences constituted evidence of something more. They provided support of the evidence of suspect witnesses, witnesses with an interest of their own to serve or accomplices, that it was the Appellant who ordered them to issue the 500 tinned rations, hired a civilian Canter to -Jl4- transport them out of the military Depot, for delivery to a buyer in Luanshya. The trial Court Martial correctly addressed itself on the odd coincidences. For these reasons, we find no merits in grounds 1 and 2 of the appeal. They are hereby dismissed. Grounds 3 deals with prosecution witnesses. Major Kaunda submits that prosecution witnesses lied on oath. That the trial Court Martial acknowledged this fact. As an example, he gave exhibits P.3 and P.4, concerning circulation dates. The trial Court noted that these were tampered with and replaced by investigating authorities. In response on behalf of the People, Colonel Maanga concedes that prosecution witnesses may have lied under oath. But he submits that the trial Court Martial acknowledged this fact at page 442 of the record of appeal. That the Court Martial observed on the issue as follows:- ((Nevertheless sufficient proof of the offence stated in the charge and that the discrepancies by some prosecution witnesses is not so material as to have prejudiced the accused in his defence. -- He submits that the Court Martial did not err in any way in its analysis of the untruthful portions of the prosecution witnesses evidence, given that the weight of the remainder of the . • I I j -Jl5- evidence did stand alone after due consideration, which warranted conviction of the Appellant. In support of his submission, he referred us to Tembo v The People (5). We have examined the trial Judgment on the issue and have considered submissions by both Counsel. We have also looked at Tembo v The People (5), cited by Colonel Maanga. In that case, Baron, J. P. stated as follows:- "When considering the evidence of a witness) and particularly an accused person) who is proved to have lied in material respects) it is essential to bear in mind that unless the untruthful portions of the evidence go to the root of the whole story to such an extent that the remainder cannot stand alone) such remainder is entitled to due consideration. The weight of the remainder is of course affected by the fact that the witness has shown to be capable of untruthfulness) but the remainder must still be considered to see whether it might reasonably be true)· it cannot be rejected out of hand.)) We agree with Colonel Maanga that the Court Martial acknowledged the fact that some prosecution witnesses from Provost lied with regard to money listed on Exhibits P3 and P4, concerning circulation dates of the exhibited Bank notes. The witnesses at the centre of the issue were P. W.1, Sergeant Mulenga, P. W.2 Staff Sergeant Mahale and P. W.3, Major Bwalya. P. W.2 and P. W.3 investigated the issuance of 500 tinned rations. In the process they questioned P. W.7, Corporal Sichalwe, who -J16- had signed for the ration. The questioning was done at Luanshya. In the process, P. W.7, gave P. W.1, a total of Kl ,500,000 as bribe, for the investigations to be discontinued. P. W.7 paid the money, allegedly on the instructions of the Appellant. The money was given in two batches. The 1st one was on 18th April 2007, for K590,000. The 2 nd one was on 23 rd April 2007, for K800,000. The serial numbers of the K590,000 were recorded on Exhibit P3. The serial numbers of K800,000 were recorded on P. 4. Then both batches were handed over to P. W.3 Major Bwalya, for safe custody, as exhibits, till trial. During cross examination at trial, it transpired that some of the Bank notes, whose serial numbers were recorded on 18th and 23rd April 2007, in fact came into circulation in 2008. The question was: If some of the Bank notes came into circulation in 2008, how possible was that their serial numbers could have been recorded by P. W.1 in April 2007? These are the circulation dates in relation to which the Court Martial said that some prosecution witnesses lied on oath. And that the discrepancies by some prosecution witnesses were not so material, since there was sufficient proof that the offence of theft was -committed. We totally agree with the Court Martial that the discrepancies in, or falsehood regarding, the dates of circulation of some of the Bank notes alleged used in an attempt to bribe the investigating soldiers, did not go to the root of the charge of theft against the Appellant. As we held in grounds 1 and 2, there was sufficient other evidence to prove that it was the -JJ7- Appellant who stole the 500 tinned rations on 31 st March 2007. Flawed evidence of alleged bribery Bank notes allegedly given in April 2007, did not go to the root of the theft of 31 st March 2007. It was not a material issue in the case. It would have been a different matter if the Appellant was charged with corruptly paying Kl ,500,000 to the investigating soldiers, in an effort to stop investigations against him. For these reasons, we dismiss ground 3 of appeal, for lack of merits. Ground 4 is that the trial Court Martial erred in law and fact when it held that there were no accomplices, in that all those alleged to be accomplishes of the offence did not participate in the Commission of the offence at hand. Major Kaunda submits that accomplices include participants in the crime charged, either as principals or accessories, receivers of stolen property, in respect of the trial or the thief from whom they received the property and parties to the crimes, which are admissible. as similar fact. He submits that on the missing 500 tinned cases of rations, a number of key prosecution witnesses were charged. He lists them as P. W.'s 1, 6, 7, 11, 12 and 13. He submits that these were accomplices. For the reasons stated in grounds 1 and 2, we reiterate that P. W.'s 1, 9 and 10 were not accomplices. As regard the rest, we agree that they were accomplices or witnesses with an interest of -J18- their own to serve. And indeed, we accept the submission by Major Kaunda that the trial Court Martial erred in law and fact when it held that there were no accomplices. Under grounds 1 and 2, we defined an accomplice and stated who were the accomplices in this case. We find merits in ground 4. Accordingly, we allow it. Ground 5 alleges that the Appellant was not afforded a fair hearing, in breach of Article 18 (1) and (2) of the Constitution. Major Kaunda makes lengthy submissions on this ground. The gist of his submission is that the Appellant was denied a fair hearing because he was prosecuted by Colonel C. Hambole, who was the substantive Director of Army Legal Services (DALS). That the said Colonel was also the Chief Legal Advisor to the Zambia Army Commander, who is the confirming authority of any finding and sentence of a Court Martial, after conclusion of proceedings. We must at once say that we do not accept these submissions for two reasons. One is that, as correctly argued by Colonel Maanga, the Appellant was present in Court throughout the proceedings. He cross examined all the prosecution witnesses. Second is that the case was presided over and adjudged by a competent panel of Judges , which included a Judge Advocate, as prescribed by law. The matter was not adjudged by Colonel Hambote . In our view, the Appellant was afforded a fair hearing, in accordance with Article 18 of the - < I , -J19- Constitution. There are no merits in ground 5. Accordingly, we dismiss it. Ground 6 alleges that the Court Martial exhibited impartial conduct. On this ground Major Kaunda submits that the impartiality by the Court Martial is illustrated in its composition. That the majority of members, except for the Judge-Advocate, Mrs. C. M. Phiri, were officers with very impressive military ranks and titles - senior in rank and appointment to the appellant. He submits that the composition itself was sufficient to drive fear in the Appellant that the adjudicators lacked independence and impartiality from the convening authority. That it was highly probable that the members of the trial Court Martial were most likely to have allowed themselves to be unduly influenced by extraneous considerations other than the evidence adduced during trial which had nothing to do with the nature of the case. He adds that the marching of the Appellant into the Court was calculated to intimidate and instill fear in the mind of the Appellant. In support of his submissions he referred us to the Turkish case of Surek v Turkey - Judgment No. 8 of July 1999. We must say at once that we do not accept these submissions. The Court Martial consisted of a Lt. Colonel, 4 Majors and a Judge-Advocate. The Appellant himself was a Captain. A Lt Colonel, who was the President of the Court Martial, was two ranks above the Appellant. The 4 Majors were -J20- just one rank above the Appellant. We do not see anything fearful about the rank of these military officers. As correctly submitted by Col Maanga, the Court Martial was duly constituted in accordance with Section 88 of the Defence Act. We find imputations of bias and impartiality speculative and totally unjustified. Pages 427 - 442 of the appeal record show that the Court Martial correctly analysed the evidence, made findings of fact and conclusions. Further, we totally agree with Col. Maanga that, it is a custom and tradition in the Army, for an accused to be marched into a Court Martial and that the Appellant being a trained military officer, marching was part of his military life. Marching did not, and was not meant to, scare him. We dismiss ground 6, for lack of merits. Ground 7 is that there were glaring discrepancies in the dates about confirmation and dismissal of the Appellant from Zambia Army. Major Kaunda submits that the record of proceedings shows that the Army Commander confirmed the findings and sentence of the trial Court Martial on 20th January 2008, and yet the Court Martial proceedings commenced on 10th November 2008 and ended on 28th November 2008. He submits that the Army Commander confirmed the findings and sentence, 10 months before the Court Martial started sitting. He adds that the Court Martial was a mere formality to endorse what the Command/convening authority had in mind about the case and hence subjecting the Appellant to an unfair trial. -J21- In response on behalf of the Respondent, Col. Maanga concedes that there was a typographical error as regards the date when the Army Commander confirmed the Court Martial proceedings. He submits that the correct month and year of confirmation of the Court Martial proceedings should read November 2008. He points out that this is consistent with the year when the promulgation of the dismissal and cancellation of the Commission was effected. We have considered the submissions on both sides. We note from the record that the Appellant was dismissed from the Army and his Commission cancelled, on 10th January 2009. The promulgation of his dismissal and cancellation of the Commission was also on 10th January 2009. We accept Colonel Maanga's argument that this tends to confirm that confirmation of the Court Martial proceedings by the Army Commander, was done in November 2008 and not 10th January 2008, which was a typographic error. Additionally, in grounds 1 and 2, we held that conviction of the Appellant was supported by the evidence on record. Therefo_re, we cannot accept the argument that the Court Martial was a mere formality to endorse what the Army Commander had in mind, 10 months before trial. We dismiss ground 7, for lack of merits. On the totality of the issues, this appeal is hereby dismissed, for lack of merits. The conviction of the Appellant, -J22- his dismissal from the Zambia Army and cancellation of his Commission are here by sustained. M . . WANKI SUPREME COURT JUDGE