The Director of Public Prosecutions v Benos (CAZ/09/201/2022) [2023] ZMCA 145 (26 April 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (C riminal Jurisdict i on) CAZ/09/201/2022 BETWEEN: TSHIABU QUIBILA BENOS RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA ON: 23rd February 2023 and 26 th April 2023 For the Applicant : G . Zimba , Deputy Chief State Advocate , National Prosecutions Authority For the Respondent : P. Chavula , Principal Legal Aid Counsel, Legal Aid Board R U L I N G Mchenga DJP, delivered the Ruling of the court. CASES REFERRED TO: 1 . The People v . Emma Kainga Court of Appeal , Application No . SP/31/2021 2 . Attorney General v. Omar Dirie Hirs i , Court of Appeal Applications No . 57 of 2020 R2 3. O. E . Nkhuwa v. Lusaka Tyre Services Limited [1977] Z . R . 43. 1. INTRODUCTION 1.1. This is an application for the extension of time within which to file an application for leave to appeal to the Supreme Court . 1.2. The application was filed pursuant to Section 13 of the Court of Appeal Act No. 7 of 2016. 2 . BACKGROUND 2 . 1. On the 8 th of December 2022 , the Court of Appeal allowed the respondent ' s appeal against sentence in a case where she was convicted of the offence of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. 2.2. We substituted the sentence of death imposed on her by the High Court , with that of 20 years imprisonment . 2 . 3. On the 14 th of February 2023, the applicant filed in the application which is the subject of this ruling . R3 2.4. In the affidavit in support of the application, it was deposed that the applicant was unable to file their application for leave to appeal to the Supreme Court within the presc ribed period because t hey "undertook an in depth and comprehensive review of t he High Court record of proceedings and judgement" of our Court. 2 . 5. In addition, at the time we delivered our judgment , the office of the Director of Public Prosecutions was "transitioning", because of a change in the o ff ice holders . 2.6 . The application was opposed. 2.7. In the affidavit in opposition, it was deposed that the change of office holder at the office of the Director of Public Prosecutions was of no effect, because there was an Acting Director of Public Prosecutions who was in a position to file in the application for leave to appeal . 3. SUBMISSIONS BY THE PARTIES 3.1 . The thrust of the respondent ' s submission in opposition to the appl i cation, is that in addition R4 to failing to provide compell i ng reasons for not applying for leave to appeal in time , the applicant has not satisfi ed the threshold set out in Section 13 of the Court of Appeal Act , for the grant of leave to appeal to t he Supreme Court. 3 . 2 . The cases of The People v. Emma Kainga1 , Attorney General v. Omar Dirie Hirsi 2 and D. E. Nkhuwa v. Lusaka Tyre Services Limited3 , we re referred to in support of the proposition that the applicant should in addition to justifying the delay in applying for leave to appeal , demonstrate that the intended of appeal has prospects of success . 3 . 3. The applicant ' s response was that at this point , all the court is concerned wi th is whether there is sufficient ground for the applicant being allowed to file the application for leave out of time. The question whether the appeal has prospects of success is a matter for del i beration when considering the application for leave to appeal RS 4 . CONSIDERATION OF THE APPLICATION AND DECISION OF THE COURT 4.1. Order 8 rule 3(a) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016, provide s that the cou rt , may for sufficient reason extend the time for ma ki ng an application for leave to appeal . 4.2. As we pointed out in the case o f The People v . Emma Kainga1 , in an application for the extension of time within which to fi le an application for leave to appeal , an applicant must n ot only justi fy the delay in the ma king of the application, the applicant must also demonstrate t he intended appeal is merito r ious . 4.3. In such an application , the application is meritorious if the inte nded appeal meets the threshold that is set out in Section 13 of the Court of Appeal Act . This i s where : (i ) the appeal raises a point of law of public importance; (ii) i t i s desirable and in the public int e r est that an appeal by the person R6 convicted should be determined by the Supreme Court ; (ii i ) the appeal would have a reasonable prospect of success; or (iv) there is some other compelling reason for the appeal to be heard. 4.4 . In this case, the applicant has not demonstrated that the intended appeal meets the threshold set in Section 14 of the Court of Appeal act. 4.5. In addition, we agree with counsel for the respondent that the fact that there was no subs tan ti ve holder of the office of Director of Public Prosecutions at the time we delivered our judgment , cannot be a justification for the applicant's fail ure to apply for leave to appeal in time . 4.6. There was an acting Director of Public Prosecutions at the time and in any case , an application for leave to appeal need not be personally taken out by the Director of Public Prosecutions to be valid . R7 4 . 7 . Consequently, we do not find any merit in this application . We dismiss it and decline to extend the time within which the applicant can apply fo r leave to appeal to the Supreme Court. ·········~ ······················· P. C. M . Ngulube COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE