People v Chikabilo (2SPB 9 of 2017) [2017] ZMSUB 15 (18 May 2017)

IN THE SUBORDINATE COURT OF THE SECOND CLASS 2SPB/009/2017 FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) THE PEOPLE VERSUS MWANSA MAKUSULI ALIAS ABIGAIL CHIKABILO BEFORE: HON. A. C. MWEENE FOR THE STATE: MR. B. SINYENGO FOR THE DEFENCE: IN PERSON JUDGEMENT STATUTES REFERRED TO 1. The Penal Code Chapter 87 Of the Laws of Zambia. 2. The Criminal Procedure Code Chapter 88 of the Laws of Zambia. CASES CITED 1. Mwewa Murono .v. The Peop1e(2004) ZR 206 (SC) Mwansa Makusuli Alias Abigail Chikabilo)1 In this case accused person stands charged with one count of theft by agent contrary to section 280 (b) of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence are that accused on the 16th January, 2017 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, did steal 45 cases of assorted beers valued at K7, 095.00 which was entrusted to her by Etaya Sakala to sellon his behalf and return the proceeds thereof. When called upon to thereafter, I entered plead, accused denied the charge and a plea of not guilty. I warn myself from the outset that the onus lies on the prosecution to prove their case beyond all reasonable doubt and there is no onus on the accused person to prove t!t:: innocence. Accused person is entitled to give and call evidence or say nothing at all. If5he elects to remain silent this does not affect the burden on the prosecution. If after considering all the evidence in this case there is doubt created in my mind as to the guilt of the accused person, this can be resolved in her favour. I must state aptly from the onset that the standard of proof in criminal cases is beyond all reasonable doubt. This has been held in a number of judicial precedents. One such is the case of Mwewa Murono .v. The People where the Supreme Court held inter alia that; "The standard of proof must be beyond a~~ reasonab~e doubt." The offence as provided for under section 280(b) of the Penal Code Chapter 87 of the Laws of Zambia is as follows; "If the thing sto~en is any of the things fo~~owing, that is to say: (b) property which has been entrusted to the offender either a~one or joint~y with any other person for him to retain in Mwansa Makusuli Alias Abigail Chikabila J2 cases, Heineken 5 cases, Red bull 1 case, Windhoek lager 4 cases, Chivas whisky 5 bottles, Glen 12 years 1 bottle, Southern comfort 5 bottles, Amstel Lite 1 case, Amstel lager 1 case, Jameson spirit 5 bottles and Absolute vodka all together valued at K18, 745.00. They also agreed that she was going to collect the said beer the following day. On 27/01/17, she phoned him telling him that she was unable to go and collect the beer but that he books a taxi and take the beer to the U. T. H club. At around 11.00 hours together with Erick, they booked a taxi and took the beer to the said club and they found her in the same taxi she was with at Courassel shopping mall the previous day. They offloaded the beer assisted by the waiters. Thereafter, Abigail entered into an office and when she came out, she told them to wait as the manager wasn't there. Later on she went into the office again and she came out with a receipt and that the cash wasn't available but that they would collect a cheque on 30/01/17. They left thereafter and on 30/01/17, he phoned her finding out if the cheque was ready but she told them to go and collect it as she had already spoken to them. They went to the said club but they discovered that the cheque was showing Kll, 650.00 instead of K18, 745.00. He asked the manager why the amount was less and he was told that they had returned some beer the same day to Abigail as it was too much. The manager asked him if he wasn't aware to which he responded to the affirmative. He then phoned Abigail telling her that the manager had refused to release the cheque and when she went there, he asked her why the money was less to which she responded that she had supplied the other beer somewhere else but she refused to show him where she took it and told him not to worry as by the time the cheque would mature, even the other money from where she supplied the other beer, it would be ready. He collected the cheque from U. T. H club and it later cleared. He said there was a balance of K7, 075.00 which she promised to give him in 3 Mwansa Makusuli Alias Abigail Chikabilo J4 days which hasn't been paid to him to date. He said she got the said beers so that she supplies to the said U. T. H club and the proceeds thereof to be given to him. He said he never supplied by himself. He further said they didn't agree on a commission for her and the balance money he wouldn't take it to be the commission. PWI identified accused as the said Abigail by pointing as the one she was talking about. In cross examination by accused PWI said accused had told him that the payment was going to be by cash and when she later told him that it was going to be by cheque, he had refused but later, she changed again that it was going to be cash as she had talked to the boss. He denied that she informed him that some beer had been returned by the U. T. H club. In re-examination, PWI said he learnt of the return of the beer on 30/01/17. He said accused never told him that the payment was going to be by cheque and he only heard of it at U. T. H club. PW2 was Erick Banda a 25 years of unknown that he sells H/No. in Chawama compound who on oath testified He recalled on 25/01/17 he was selling beer at COMESA market. beer at the said market with his friend Etaya Sakala (PWl)who told him that there was a lady who supplies goats and chickens a who that<fllll.[adywanted old businessman to the effect called that had him mall there. whilst supplies. On 26/01/17, on the price. and they went Furn cargo motor vehicle supply of beer. PWI told him that the lady woufd call later so that they discuss he was with PWl, that lady called PWI so that they meet at Couressel found that lady in shopping and she gave them a list of Toyota the the following day so that they take the beer where it was needed. they took the beer to U. T. H New Sports Club and On 27/01/17, they found her there and they offloaded the beer. He said the value of the beer they supplied was KlS, 745.00. She told them she to wait so that they are given a cheque. After a while, and told them that the signatory to the cheque was unavailable she would them that them call They told She Mwansa Makusuli Alias Abigail Chikabilo J5 asked them to go back and collect the cheque on 28/01/17. On 28/01/17, they didn't go there but called her who told them that the cheque would be ready on 29/01/17. On 29/01/17 at around 11.00 hours, they went to the said club but they also found that the cheque wasn't ready and they were told that it would be ready on 30/01/17. On 30/01/17, they were given a cheque Of Kll, 650.00. When they realized that the money on the cheque was less, they called her to find out where the other beer went and she told them that it was returned and she had supplied it to other people and that was on the same day of the delivery. He said she didn't tell them the same day they supplied to U. T. H club that she had supplied the other beer somewhere else. She promised them that before the cheque from U. T. H matures, the other money from the other supply would be given to them. He said the cheque matured on 02/02/17 but the money from the other supply haven't been given to them to date. He said even the other beer was never returned to them and she didn't show them where she supplied the other beer. PW2 identified accused in court by pointing as the lady she was talking about. There was examination. no cross examination and consequently, no re- PW3 was Dickson Moyo a 33 years old Club Manager at U. T. H club residing at H/No. 47 U. T. H compound who on oath testified that some of his duties were to ensure smooth operations of the U. T. H club and also supervising workers. On 27/01/17, he recalled they were looking for suppliers of beer and that's when they found Abigail. He gave her a list of the supplies needed but she supplied in excess of what they needed and that's how the excess was returned. He said they recorded all what they received. He said at the first negotiation meeting, he told her that payment was by cheque. He said for the beer they got, they paid by cheque amounting to Kll, 650.00. PW3 said when receiving the beer, a Goods Received Note (GRN) was issued and he could identify it as it has a Football logo, written U. T. H sports club with the address and also the list of the goods that were received. PW3 identified the GRN and the features mentioned and it was marked as '101'. Mwansa Makusuli Alias Abigail Chikabilo J6 PW3 said he was the custodian tender it into court as part of his evidence. no objection '101' was produced court and marked as 'P1'. from accused, of the GRN and he wished to Since there was in and admitted PW3 identified him with the beers on 'P1'. accused by touching as the person who supplied PW3 said the beers which were returned and they were valued at K7, 000.00. were given to accused There examination. was no cross examination and consequently, no re- that post based under police Lusaka at COMESA she wanted that on 07/02/17 him at his liquor who on oath testified stall at COMESA of beer various to supply which was the U. T. H sports . K. Si tondo a 40 years old No. 36816 Detective PW4 was Febia Central Constable Division Etaya Sakala (PW1) reported that there was a woman he knew as Chika who had market approached to the as she had a effect club. He said customer the said woman told PW1 to give her the said beer and she was given PW1 her and see where wasn't satisfied the beer was being taken and they went together to U. T. H where they met Mr. Moyo the manager there. Mr. Moyo accepted only to buy beer for K10, 000.00 which he paid by cheque and the other to her and she went beer valued away with it as he was told so by PW1. He said PW1 was paid by cheque in his name. 075.00. and requested After to accompany at K7, 075.00 was returned at K18, woman, giving valued types that acting on the PW4 said already her with regard alleged arrest her for the subject offence. was in custody after being brought by PW1, he interviewed the and and she admitted to charge to the subject He then made up his mind as by then complaint. offence suspect report the Under warn and caution statement seemed to understand reply admitting the charge. better, in English, the language she she gave a free and voluntary Accused vol untary, confession had objected that the confession was however, statement. the prose cut ion dispensed free with and the PW4 further woman constable Akatama to detain her under his name and she put her said since accused was a woman, he asked Mwansa Makusuli Alias Abigail Chikabilo 17 in custody at Misisi police post where there are female cells pending He said her full names are Abigail court proceedings. Chikabilo Mwansa Musukuli. PW4 identified accused in court by pointing. said following by PWI, he asked the explanation PW4 further to lead him to the U. T. H club which she did and Mr. accused Moyo (PW3) accepted only getting some beer for KII, 000.00 but not for K7, 075.00 which he returned to accused. When he asked of the other beer, she told him that her as to the whereabouts she sold it~other passer by people who couldn't be located and any follow ups or recoveries. they didn't~make He her the also said first items. subject the proceeds accused time traders at charged her for to ask even he said it wasn't give PWI, she told him that she collects offence PW4 at COMESA because she time market to the beer and approached returns In this case, she acted as an agent. He further said attu~"T. H club, she supplied beer worth KIO, 000.00 and the money was paid to PWI by Mr. Moyo. He also said she had claimed to Mr. the other beer to other people who Moyo yet not but supplied other located. weren't people, she collected the beer as an agent. that she had supplied everything locating thereof. However, despite the the not by accused, In cross examination PW4 said accused never said she took the beer to U. T. H club alone but she was accompanied by PWI. He said PWI and PW2 told him that they didn't trust her the reason they accompanied her. He said the amount on the in the name of PWI. He said accused cheque didn't show him the other people she supplied the other beer. He denied K300. 00 from K800. 00. He said there were 3 cases of the accused same nature for accused. He also said if accused had given him K800.00, the case would have been reduced to reconciliation. a K500. 00 and another was KIO, totaling gotten having 000.00 There was no re-examination. This marked the close of the prosecution case. had heard adduced the prosecution Having they sufficient facie case against accused and I consequently, defence pursuant to section 207 of the Criminal cap 88 of the Laws of Zambia. evidence, evidence to I was satisfied establish that a prime put her on her Procedure Code Mwansa Makusuli Alias Abigail Chikabilo J8 defence were Her sworn evidence but didn't rights she explained call any witnesses. and elected to give her the PW1 could them. there. having and and she used call her when drinks and in her defence to sell energy and PW1 confirmed on oath testified to the affirmative. she would later supply in the day, they such as Red bull friends his that she knew PWl Accused in Kamwala since 2015. She said she used to own a warehouse and where said Dragon the drinks money is ready. In February, 2017, the U. T. H club requested to buy some liquor. She had never sold liquor before hence, asked the phone if he had some so that they supply to PW1 through the said club to which he responded She said she also sent PW1 the list of the required liquor through PW1 asked her what the phone mode of payment would be and she told him that it would be by cheque. She said PW1 asked her for a credit note to which she told him that it will be availed on the same day of delivery. PW1 told her to go and collect the liquor from COMESA market. Since she had a sick child, she told him that she wouldn't be able to go and collect the liquor but instead she asked him to take them to U. T. H club himself where he would find her. She said they took the liquor to U. T. H club with a friend and they the the found (PW3). She told them to wait for the credit note and manager they were issued with it amounting K11, 000.00 plus though the liquor they had supplied was worth K18, 000.00. This was on a Tuesday Friday and they were to get the cheque the following and they left. She said she asked the manager as to what would happen be she said she had agreed with the boss for returned. the U. T. H who was in Livingstone at that time that the balance of K7, 000.00 would be paid in cash form. She said PW3 then and they concluded communicated that the surplus She then informed as they had already left at that time. PW1 of this development liquor and took them She said she then collected shopping mall near COMESA and she called PW1 and to Courassel which the balance liquor spirits PW1 had taken there. would be taken and she told him that she would sell it around to some clients and she took them to Handsworth and sold them at about K7, 000.00. The following day she was paid K500.00 by (PW4) and Handsworth her and he asked her how much she had and she told apprehended She said PW4 then got that K500.00 him that she had K500.00. PW1 asked her where the Jameson with the boss in Livingstone liquor should be returned. and she was told to the balance was exchanged with Jameson the balance arresting it would together counting However, officer spirits liquor with day, They same did the the Mwansa Makusuli Alias Abigail Chikabilo J9 to to with send shared Jameson spirits someone collect asked further at Handsworth. he and the her balance She said she was told that Handsworth had the in was owing her only K3, 200.00 and Chilenje and that Handsworth the other balance by the said sister company. She further said she was put in custody PWl his money but she told him to give her a week to organize herself. She also said whilst in custod~~PW4 from her saying that he was going ta~it to PWl. She also said when for K3, she asked 000.00 so that she can be released on police bond. and PW4 had told her to pay for a week to organize got another K300.00 PW4 asked herself, company sister a -tc all that he/she between Abigail Makusuli is going Chikabilo to bring. She denied that she introduced PWI who had the stock. Mwansa Registration PWI at U. T. H club. However, of money a go-between by the state, accused said her full names In cross examination these and were Card except Abigail names appear on her National name. She said she had known PWl since 2015. She her Christian she admitted denied being an agent. She said in the manner she was sending PWl, he was more like an agent to her. She said she had the but order from U. T. H club but she didn't have the stock~supply She said there was no agent it was between herself and PWI but that it was an agreement. She said is sent and told that this is the an agent is where someone amount there PWI and U. T. H club. She admitted being that PWI didn't know U. T. H club management. She also admitted She also that she was the link between admitted that PWI supplied the liquor to U. T. H because of her. She said 'the liquor K18, 000.00 but Kll, 000.00 worth was received by the manager and 2 and this others and a credit PWI was the received and PW3 told him credit note, he questioned would be paid in cash form. She said that the said difference him who rejected she recalled and the said the excess excess was returned to her in the afternoon the same day after PWl and his friend had already left and she told PWI. She said she had remained She said PWI had asked her where to take the excess and she told him and PWI gave her a go ahead that unless they are exchanged~ went and PWI the she the liquor and gave her Jameson spirits. She further exchanged said PWI lied when he said they never met after supplying the liquor at U. T. H club. She also said she didn't notice that PWI also said on the difference at U. T. H as she had a sick child. PWI took to U. T. H club was worth note was issued to that effect PWI and U. T. H club. PW3' s testimony in Livingstone but it wasn't but his boss to Corrousel following presence. in her liquor when mall and day She Mwansa Makusuli Alias Abigail Chikabila JI0 never given the talked about cheque after the credit 3 days. note. She further said PWI was the call after does exist. Police inside. calling around anyone balance so that avoiding She said them but she wasn't payment of and she wasn't and it was supposed hour. lunch at COMESApolice as She also post there was no space said K500. 00 was in her purse the station and it was also 000.00. However, the from Handsworth to she was arrested said to be that on 02/02/17 the PW4 got it he can give She said to be said of K7, 000. 00. She also by PW4 when she was at Lusaka Police of anywhere when he was didn't Accused said her witnesses Handsworth from town at K500.00 from her to PW1 who was outside the for the other K300.00 was collected Central Post K7, getting She said for case PW4 in which capacity said the K3, 000. 00 which was such that K1, 000. 00 for released be forwarded PW1 and even the said Handsworth and its the K800.00. sign anywhere. his money and not ask she didn't said money. She on the K800.00 but not on to be to to back. She also paid her except said money and even PW1 also that said to court. being moved from Misisi towards payment sign the K7, 000.00 hasn't been returned company haven't PW1 had only to proceed She said goods haven't bond and K2, 000. 00 for for PW4 didn't he needed She also he was collecting she challenged the docket PW4 before not paid on police to court. balance sister court said her the the the the she said she couldn't In re-examination Handsworth as court wouldn't the one which could charge they were her be appropriate. be paid on police release for customers She said call witnesses from and dragging them to the money in issue was to PW1. She also bond. said the police This marked the close of the defence case. This was After following the whole considering facts are of the not the evidence before whole evidence, me in found I this that case. the in dispute; 1. That 45 cases assorted beer worth K18, 745. 00 were of to U. T. H sports said club on 27/01/17. beer was the property assorted person was the said beer by the U. T. H sports one who informed club. of PW1. PW1 of the supplied 2. That 3. That order 4. That the accused the of only beer worth K11, 650. 00 was paid for by the U. T. H sports club Mwansa Makusuli Alias Abigail Chikabila 111 5. That accused person was the one who was returned the excess beer amounting to K7, 075.00 plus. 6. That PWl never received the said excess beer. 7. That accused person was apprehended for the alleged theft at COMESA beer and charged by agent of the said excess Police Post. I also find that the following fact is in dispute; 1. That accused person actually stole as an agent for PWI the said excess beer worth K7, 075.00. established Having the commit the alleged offence? I ask myself law. the facts, I now a question apply the said facts to person that accused did he to same beer. supply accused market, supplied agreed the Being a merchant of such assorted beer KlS, PW1's evidence in brief is that he was contacted by accused on 25/01/17 to the effect that U. T. H sports club wanted a supply beer at of assorted COMESA he and 745.00 actually his through found evidence that accused is the one who did the transactions with for U. T. H club PW3 and he was given a receipt or a the manager on Goods 30/01/17. of Kll, 650.00 and when he asked PW3 why the amount was less he was told that some beers were returned to accused the same day of delivery, the information and that payment he collected be by cheque with amount would a cheque he wasn't privy to. 27/01/17 the On 30/01/17, said worth Received club. said It's whom Note the at on he was basically PW2' s evidence was privy to the transactions even escorted done. He basically him to U. T. H club when the supply confirmed PWl's evidence. that he is a friend to PWI and and he PWI and accused of beer was between was that he was the manager PW3's evidence at the U. T. H club and he received the supply of beer from accused and he issued he produced a Goods said the before excess beer worth on the same day of the delivery. 650.00 'PI'. He further court and it was marked K7, 075.00 was returned to accused Kll, as Received worth which Note PW4 was the arresting accused. apprehended with her response, dissatisfied and arrest her for the subject offence. officer who investigated He the matter and being and he made up his mind to charge interviewed after her Mwansa Makusuli Alias Abigail Chikabila 112 in her defence said she together with PWI supplied the Accused said liquor to U. T. H club and that it was an agreement between them. She denied being an agent to PWI. She said PWI was the admitted one who was more like an agent to her. She however, having collected the excess liquor from the said club but that she informed PWI of the development and that's how the excess liquor was exchanged by PWI and she got Jameson spirits which she supplied She further to Handsworth said she received K500.00 from Handsworth which she was in the process of paying PWI but at the same time she was apprehended by PW( the arresting officer. She also said PW4 also collected her K300.00 PW4 that PWI hasn't been K800.00 collected paid the K7, 075.00 to date. which from her. She admitted for paying at K7, 000.00 thus, plus. also from was PWI this that analyzed and agent Goods was relationship an agreement. cannot Received that the balance the evidence when the beer was supplied, before me. The first I have critically accused and PWl, they transaction I totally agree were together at U. T. H club. At this juncture, of wi th accused apply here. However, principal note by when the accused or excess beer was going to be paid in cash form as she had talked to the boss for the U. T. H club who was PWI and his apparently, friend left and they weren't aware that the said excess beer was returned collected by accused the same day of delivery but only came to learn of it when they went to collect the cheque on 30/01/17. she told them that she When they asked accused, had supplied the excess beer elsewhere. in Livingstone. principle PWI was issued, That's told The was how PWI wasn't here. Therefore, the I must state that on the second transaction privy to it. There was no excess beer elsewhere, of ostensible agreement authority or holding out accused impliedly became an agent for hasn't paid PWI the money PWI. It is on record that accused for I quoted her. excess of the Penal Code as to what amounts earlier on the provision to stealing by an agent being; the principle of supplying returned which under beer was the to 'Property which has been entrusted to the offender either a1.one or joint1.y with any other person for him to retain in safe custody or to app1.y, pay, or de1.iver for any purpose or to any other person the proceeds thereof.' same or any part thereof or any Under the Criminal Law 1803 Justia, an agent is defined as; Mwansa Makusuli Alias Abigail Chikabilo 113 'A person who represents peop~e, corporations or entities. ' someone e~se in dea~ing with other found above was impliedly an agent the excess other with thereof the proceeds the ac::ed dishonestly. police, for Accused as second transaction when she was dealing returned hasn't report to her accused informed is club the foregoing, and every ingredient case beyond all an afterthought I hold PWl of the the that the offence of beer and she represented that The fact people. to PWl and it for PWI in the him she took PWl to in my mind that she that by the U. T. H I have no doubt The assertion the cannot excess of and it by accused beer be entertained. return reasonable doubt as required and they have proved their by law. prosecution have proved Due to each I therefore, accordingly. find accused GUILTY as charged and CONVICT her DELIVERED IN OPEN COURT TH I S 7A It DAY OF t.1.1 ..71- 2 0 1 7 ~-... F :7-.... ~i...\Bl\C0 -AA1e' . ••'V.)~C!.,\RY MAG1STRATl co, RT COIvlPtEX ~~ J-1 .-- -l '•. \ .. ~ ll~Ll ................... 1 5 HAY 2Di"? - MJ.\,-,,,l " 0 . HON A. C. MWEENE : L~J _.. , ....• sV[ '/-.\'. • ~ i30x.~ MAGISTRATE CLASS II Mwansa Makusuli Alias Abigail Chikabilo 114