Funganisha v People (SCZ Appeal 12 of 1991) [1991] ZMSC 30 (7 July 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ/Appeal No. 12 of 1991 HOLDEN AT LUSAKA (Criminal Jurisdiction) MISHICK FUNGANISHA Appellant v THE PEOPLE Respondent;^ CORAM: Gardner, AJ. S., Sakala and Chai la, JJ. S., 19th February and 7th August, 1991. Mr. S. S. Zulu, Zulu and Co for the appellant Mr. G. S. Phiri, Director of Public Prosecutions for the State JUD GMENT ✓ Gardner, AJ. S., delivered the judgment of the court The appellant was convicted on four counts of theft by public servant,,; the particulars of the charges being that on four occasions namely the 28th of July, 1987, the 29th of July, 1987, the 18th of August, 1987 and the 22nd August, 1987, he, being a person employed in the public service, namely the National Agriculture and Marketing Board did steal a total sum of K149,472.00 which came into his. possession by virtue of his employment, the same being the property of the Government of the Republic of Zambia. The prosecution evidence was to the effect that the appellant was an accounts clerk with the National Agriculture and Marketing Board whose duties were, inter alia, to prepare cheques for farmers who had sold crops to the board and to present such cheques to those authorised as signatories for signature and thereafter to arrange for the cheques to be collected by the farmers to whom they were due. There was evidence from PW1, the accountant at the : /J2 branch : J2 : branch office of the Board, that the procedure for the payment of the farmers was for the depots to issue grain receipts to the farmers who produced maize for sale. The farmers were given duplicate copies and the originals were sent to the branch office for payment. It was the duty of the accounts clerks, of whom the appellant was one, to prepare cheques from the information which he extracted from the receipts sent to the branch office, to have such cheques signed by the appropriate signatories and to arrange for payment to the individual farmers who would sign for their cheques in a cheque register. The witness gave evidence that four cheques issued on the dates referred to in the charges were found to have been drawn in the names of noh existent farmers who had not supplied any mal^e. It was common ground that all these cheques had been prepared by the appellant. The witness said that the cheques register which was produced to the court was maintained by PW4, Allan Phiri, and a Mrs. Phiri and the four improper cheques had not been entered in that register. PW1 also said that on investigation it was found that one of the counterfoils of the cheques referred to had,been marked as cancelled and it was the appellant who wrote that it was cancelled. He did not say how he knew that the appellant was responsible for having written the word "cancelled” on the counterfoil. The witness said that the cheque in question together with all the other cheques had been cashed at the bank. In cross examination'this witness said that the procedure before signatories signed cheques was for them to check the vouchers supporting the cheques which were presented to them by the appellant, or which.ever accounts clerk had prepared the cheques, but that in July and August, 1987 the witness had been in Lundazl and had left a few blank cheques already signed by him as a signatory so he did not see the vouchers for the four improper cheques. Other prosecution witnesses were called to prove that the four cheques had been cashed and PW4 Allan Phiri, another accounts clerk, gave evidence which contradicted that of PW1 in that he said that the cheque register was prepared or maintained by the person who Issued the cheques, in this case the appellant. The effect of this witness's evidence was to put the blame on the appellant. The witness said that he had reported the discrepancies about the four cheques to PW1, the accountant, . <• but this was not confirmed by PW1. The appellant when put on his defence gave evidence in which he confirmed that he prepared the four cheques in question, that he received the appropriate grain receipts from the assistant accountant, Mr. I. M. Banda, and that he then raised the appropriate payment vouchers and cheques, and took the vouchers to the assistant to sign as having requested the payments. He then took the cheques to the sub-accountant to sign after which they were taken to the branch manager Mr. J. J. Lungu for signature. He then sent the cheques to the payment office for the clerks there to issue to the various farmers. He said that the clerks who issued the cheques on the dates were Allan Phiri and Sofia Phiri, which he said could be proved by the cheque register maintained by the same clerks. With regard^to the cancelled counterfoil the appellant said he did not know who^had written on the counterfoil. In cross examination he maintained that the assistant accountant Mr. Banda had certified payment of the cheques in question and maintained that the cheques in question were supported by the necessary vouchers. He said that he had told the police this. He agreed - that he did not prepare the documents which supported the issue ✓ - • ■ ■ ‘ ■■ of the cheques and maintained that he raised the cheques because of the documents he received. It was common ground that on investigation none of the vouchers referred to by the appellant had been found. In his judgment the learned trial magistrate said that if ... .. the appellant was telling the truth he saw no reason why he failed to call Allan Phiri and Sofia Phiri who he alleged were issuing cheques to farmers on the relevant days. He further said that the appellant had said that he never prepared the/necessary documents for the cheques to be issued, and he said that as the appellant had said that he prepared the cheques without the necessary documents and since the farmers in question did not exist the only conclusion to be drawn was that the appellant stole the money. •Z • • ,y- .. ’ •; On appeal, Mr. Zulu on behalf of the appellant-raised a number of grounds of appeal. The first ground was that the magistrate shifted the burden of proof to the defence when he commented that if the appellant was telling the truth he should have called the two witnesses who were alleged to have issued the cheques. Mr. Zulu argued that the evidence of PW4 Allan Phiri should be treated with caution because he was a witness with a possible interest of his own to serve. Mr. Zulu's second ground of appeal was that the magistrate misdirected himself when he said that the appellant had agreed that he had issued the cheques without the necessary documents in that the appellant had maintained throughout that he had received the grain receipts from I. M, Banda the assistant accountant and from those documents had prepared the necessary vouchers and cheques which were authorised by Mr. Banda. It was argued that the signatories to the cheques had to see the vouchers and although one of the signatories might sign blank cheques the other signatory would have to see the vouchers before signing. Mr. Zulu also argued that the appellant had said that the two clerks, Allan Phiri and Sofia Phiri, were the ones who should have entered the cheques in the cheques register on the relevant days and this could have been proved by checking their handwriting. PW4 Allan Phiri had said that it was the appellant who was entering in the cheque register on the relevant days and this question was not resolved by the magistrate except to say that the appellant should have called the witnesses himself. Mr. Zulu’s next ground of appeal was that the magistrate had misdirected himself by accepting that one of the cheque counterfoils had been cancelled by the appellant although the appellant had not admitted haying done that and had said he did not know who had written the cancellation. Mr. Zulu pointed out that although PW1 had said tha the cancellation had been .written by the appellant he had given no reasons for coming to that conclusion and the magistrate had not resolved the question. Finally, Mr. Zulu argued that without the misdirections referred to no reasonable court must have convicted in any event. The learned Director of Public Prosecutions argued that there had been evidence that the appellant's duties included preparation of the cash book in respect of monthly payments and monthly returns of such payments and that he therefore should have reconciled the books. The fact that no vouchers could be found to support the issue of the four cheques pointed to be guilt of the appellant. With regard to the first ground of appeal the learned Director said the magistrate’s comment that if he were telling the truth the appellant should have called the witnesses involved did not shift the burden of proof but merely commented on the matter. With regard to the question of who should have maintained the cheques register the learned Director supported the evidence of PW4 who had said that it was the appellant's duty and pointed out, that PW4’s evidence should be accepted because he was the one who discovered the discrepancies and reported the matter. The learned Director argued that from the tenor of his judgment the magistrate had shown that he believed PW4. With reference to the cancellation of the cheque counterfoil the learned Director again argued that it was apparent that the magistrate believed that it was the appellant who had written the cancellation. Finally the learned Director argued that if there.were any misdirections this was an appropriate case for the court to apply the proviso to Section 15 (i) of the Supreme Court f Zambia Act. In considering the arguments put forward we would not agree that the magistrate’s comment that if the appellant were telling the truth he would have called the1’two witnesses, whom he alleged were responsible for making entries in the cheques register, necessarily amounted to shifting the burden of proof to the defence. However, we would agree that it was a wrong basis for assessing the credibility of the appellant which was a most important issue in this case. In any event we note that the magistrate appeared to have overlooked ■ • ‘ . -V ? h"’ ' the evidence of PW1, the accountant, on page 6 of the record that the relevant cheques register book was maintained by Mr. Phiri and Mrs. Phiri as stated by the appellant. In the context in which the expression "maintained" was used this could only have^meant that the two Phiris were responsible for making the entries in the cheques register on the relevant dates. This was contrary to the evidence r of PW4, one of the persons referred to. As to the argument that the magistrate misdirected himself in saying that the appellant prepared the cheques without the necessary documents. We agree that this was a misdirection of fact. We have^examined the record of the appellants evidence and note that in his evidence in chief he said that he received grain receipts from Mr. I. M. Banda and that these documents supported the raising of the vouchers and the cheques. In cross examination he said "I never prepared the necessary documents for the cheques to be issed", and four lines later "I raised the cheques because of the documents I received". It appeares from this evidence that the appellant was denying that he prepared the grain receipts which were necessary to support the issue of the cheques, and, in fact, he maintained throughout his evidence that it.was after receiving' the grain receipts from Mr. I. M. Banda that he prepared the necessary vouchers and cheques. We, therefore, agree that this ground of appeal should succeed. As to the cancellation of one of the cheque counterfoils, the ■ evidence as to this was that the cheques to which the counterfoil referred was in fact cashed and not cancelled so that the only reason for the inclusion of this evidence in the prosecution's case was to point a finger of suspicion at the appellant if he wrote the cancellation. In this respect we agree with Mr. Zulu that there was a conflict between the evidence of the appellant, who said that he knew nothing about the cancellation, and the evidence of PW1, who said that the appellant had written the cancellation. PW1 gave no reasons, ? such as being familiar with the handwriting of the appellant, to support his evidence. We also agree with Mr. Zulu that the < magistrate did not resolve this conflict which depended upon the assessment of the credibility of the witnesses, and, as we have said, the magistrate used a wrong test of the appellant's credibility when he said he should have called witnesses to support him. We are unable to agree with the learned Director of Public Prosecutions that this is an appropriate case for the application of the proviso to Section 15 (i) of the Supreme Court of Zambia Act, and, for the reasons we have given, this appeal is allowed. The conviction is quashed and the sentence is set aside. / B. T. GARDNER AG. SUPREME COURT JUDGE .................... .......................... E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE