People v Elizabeth Nkonde and Billington Mosha (2SPR/223/22) [2025] ZMSUB 1 (30 June 2025)

IN THE SUBORDINJU'E COURT OF THE FIRST CLASS FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) 2SPR/223 /22 THE PEOPLE Vs - NMIONAL PROSECUTION JllJTIDRITY AND MR. (PRIVME PROSECUTOR) G. D CHIBJ!NGULA OF MESSERS G. D. CHAMBERS FOR JJCCUSED ONE: MR. L. SILIMBA OF MESSERS H. M. MULUNDA OF L. M CHAMBERS. FOR JJCCUSED TWO: T. CHIKONDE OF MESSERS FERD JERE AND COMPANY. ---------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------- Cases referred t o ~ WINTER KALEBWE v OPP (1969) ZR 39 1. 2. 3. 4. 5. 6. DOROTHY MUTALE & RICHARD PHIRI v THE PEOPLE {1997) ZR 51 R v MACHUNA 4 NRLR 64 ~WA MUNORO v THE PEOPLE (2004) ZR 207 (S. C) , R v ABROMAV:CCH (1914) 11 CR. APP. R 45 MJNDE v THE PEOPLE {1969) ZR 62 Statutes referred to 1. THE PENAL CODE CHAPTER 87 OF THE LAWS OF ZAMBIA. Jl 1. 0 BACKGROUND 1. l In this case lice used Person number one and two st and charged with ten counts as outlined hereunder: , 1. 2 COUNT 1 • Accused Person numbe r one and two st end charged wi th the offense of FORGERY, contrary to section 347 and 34 2 of the Pen al Code ch apter 87 of the Laws of Zambia. The particul ars of this offence allege that a::cused persons on unknown dates but between 9 th April 2015 and 30 th December 2015, at Lusaka in Lusaka of the Lusaka Province of the Republic or Zambia, jointly and whilst a::ting together with intent to defraud or deceive, did forge a document namely a Power of Attorney purporting to show that it was genuinely gr en ted by Threse a Chi le she Nkonde when in fa:: t not. 1. 3 COUNT 2 Accused Person one stands charged with the offense of uttering false documents con trai;-y to section 352 of t he Pen al Code chapter 87 of the Laws of z ambi a The partic ulars of this offence allege that a::cused person one on unknown dates but between 9 th April 2015 and 30 th December 2015, at Lusaka in Lusaka of the Lusaka Province! of the Re publ ic of Zambia knowing and fraudulently did utter a false document namely a power of attorney to the Commissiorier of Lands at the Min i stry of Lands and Natural Resources . J2 1. 4 COUNT 3 Accused l?erson number one and two stand charged with the offense of FORGERY, contrarx to section 347 and 342 of the Penal Code chapter 87 of the Laws of Zambia. The particulars of this offence allege that accused persons • on unknown dates but between 30th December 2015 and 26th November 2018, at Lusaka in Lusaka of the Lusaka l?rovi nce of th~ Republic of Zambia, jointly a-id wh ilst acting together with i ntent to def raud or deceive, did forge a document namely a National Registration Card of Theresa Chi l eshe Nkonde by purporting to shov, that i t was · genui n ely issued by the Nat i onal Registration Office of the Republic of Zambia when i n fact not. l . 5 COUNT 4 Jlccused Person one and two stand charged with the offense of utteri ng false documents contrary t o section 352 of t he Penal Code chapter 87 of t he Laws of Zambia. The par t iculars of this offence allege th at accused person one and t wo on unknown dates bu t between3 30th March 2016 and 21 st April 2016, at Lusaka in Lusaka of the Lusaka Province of the Republic of z ambi a, jointly and whilst acting together knowing and fraudulently did utter a false doc ument namely a National Registration Card Number 8108 18/46/1 in the names of Therese Chiles he Nkonde to Legal Officer at Ministry of Lands and Natural Resources. J3 1. 6 COUNT 5 kc used Person number one and ,. offense of FORGERY, contrary to section 347 a-id 342 of the two st ands charged with the Penal Code chapter 87 of the Laws of Zambia. The particulars of this offence allege th at a:::cused persons • on unknown dates but between 4 th April 2016 and 8 th April 2016, at Lusaka in Lusaka of the Lusaka Province of the Republic of ' Zambia, jointly and whilst a:::ting together with i ntent to de fraud or dec eive, did forge a document namely an Application For Consent to Assignment/ Transfe r dated 4 th April 2016 by purporting to show that it 1-,as genuinely issued by the Theresa Chiles he Nkonde when in f a:::t not. 1 . 7 COUNT 6 Jlccused Person one and two st and charged 1,,i th the offense of uttering false documents contrary to section 352 of the Pen al Code ch apter 8 7 of the Laws of Zambia The particulars of this offence allege th at a:::cused persons on unknown dates but between 4c11 April 2016 and 8th April 2016, at Lusaka in Lusaka of the Lusaka l?rovince of the Republic of Zambia, knowingly and fraudulently did utter a false document namely an Application for Consent to Assign/ Transfer dated th April 2016 Natural Resources. to Legal Officer at Mi n istry of Lands aid J4 1. 8 COUNT 7 J>ccused l?erson number one and two stands charged with the offense of E'ORGERY, contrary to section 347 and 342 of the Penal Code chapter 87 of the Laws of Zambia. The particulars of this offence allege that a:::cused persons • on unknown dates but between 12th E'ebruary 2016 and 16 th l:ebruary 2016, at Lusaka in Lusaka of the Lusaka Province of t he Republic of Zambia, jointly and whilst a:::ting together with intent to defraud or deceive, did forge a documen t namely a-i Application For Consent to Assignment/ Transfer dated 12 th E'ebruary 2016 by purporting to show that it was genuinely issued by the Theresa Chileshe Nkonde when in fa:::t not. 1. 9 COUNT 8 /!ccused Person one and two staid charged with the offense of uttering false documents contrary to secti on 352 of the Penal Code ch apter 8 7 of the L 1:r.-is of Z arnbi a The particulars of this o ff ence allege that accused persons on unknown dates but between 12 th E'ebruary 2016 and 16 th E'ebruary 2016, at Lusaka in Lusaka of the Lusaka Province of the Republic of Zambia, knowingly and fraudulently did utter a false document namely an Application for Consent to Assign/ Transfer dated 12 th E'ebruary 2016 to Legal Officer at Ministry of Lands cl'ld Natural Resources. JS 2 . 0 COUNT 9 Accused Person two stands charged with the offense of Giving E'alse Information to a Public Officer cont r ary to section 125 of the Pen al Code ch apter 87 of the Laws o f Zambia. ' The parti culars of this offence allege· th at a:;cused person • number two on unkn own dates but between 17 th March 2016 and 26 th November 201 6 , at Lusaka in Lusaka of the Lusaka Province o~ the Republic of Zambia, did give false information to Office of the Commissi oner of Lands at t he Ministry of Lands and Natural Resources in a letter dated 17 th March 2016 stating that Theresa Chileshe Nkonde retained you to a:;t on her behalf to subdivi'de property Number L /3270/M s i tuate i n Ibex Hill when in f a:;t not . 2 . 1 COUNT 10 l'ccused Person t wo stand charged wi th the offense of Giving F alse Information to a Public Officer contrary to secti on 125 of the Penal Code chapter 87 of the Laws of Zambi a. The partic u lars of this offence allege th at cecused person number two on unknown dates but between 15th November 2016 a,d 26 th November 2018, at Lusaka in Lusaka of the Lusaka Province of t he Repu blic of Zambi a, did give false i nformation to Office of the Commiss i oner of Lands at the Ministry of Lands and Natural Resources in a let t er dated 15 th November 2016 stating that Th eresa Chileshe Nkonde retained you to . a:;t on her behalf to subdivide property Number L/3270/M situate i n Ibex Hil l when in f a:::t not. J6 2. 2 THE BURDEN OF PROOF ln light of the accused ' s plea of not guilty to all charge6, the prosecution is duty bound to adduce evidence to • substantiate each and every ingredient of t he offences charged. It is trite law that in a criminal trial, the burden to prove the case agai ns t the accused person rests on the prosecution. The case of M-lEWA MIJNORO v THE PEOPLE (2004) ZR (S. C) ,is authority on point. The guidance from Supreme Court of Zambia, espoused in the said case, states thus ; 2. 3 In criminal cases, the rule is t hat the legal burden of proving every element of the offence charged, and consequently the guilt of the acc used lies from beginnin g to end on the prosecution . Other authority on point includes the cases of WINTER KALEBWE v DPP (1969) ZR 39, M:>ONGA V THE PEOPLE (1969) ZR 63 a-id R v MACHON A 4 NRLR 64. The Court, in the MACHON A case h a:i this to say. A pl ea of not guilty puts the prosecution under the necessity of proving all the elements of the offences . Further, I 'm alive to t he fact th at the ace used bears no obligation to prove their innocence . J7 ~6 ,1 ' , , "'"-' ~\;;f.:, ..,. ,. 0,C, ,, ~<o ~ "' ' ~ ' \~ . Q c,o>·. • ,, C£Rm1Eon\\l:;.... 2 . 4 I further warn mysel f th at i f after consideration of the evidence i n this case, a doubt as to the a:::cused ' s culpabili ty , , lingers on my mind, I sh all resolve the doubt in favo ur of t he a:::cused. The Case of DOROTHY MUTALE & RICHARD PHIRI V THE • PEOPLE (1997) ZR 51 i s authority on point. In t h e said case, his Lordship Ngul ube C. J . as he then was stated gui cted thus : ... where there are lingering doubts, the Court is required to resoJ.ve S'lll::h doubts in favour of the a::,cused. 2 . 5 Having directed my mind on the burden of proof aid standard of that proof ; i t has now become absolutely necessary to analyze t he law ere ating t h ese offenses i n order to appreciate the elements th at constitute them. 2 . 6 THE LAW AND ELEMENTS OF OFFENCES 2 . 7 OFFENCES OF FORGERY AND UTTERING FALSE DOCUMENTS The offence of Forgery is created by section 347 of the Penal Code ch apter 8 7 of the 1 aws of Zambia. I ·t is couc hed in t h e fo l lowing l anguage ; ".llny person who forges a:iy document, is guiJ.ty of en offence which, unless otherwise stated, is a fel:ony 2nd he is liable, unles s owing to the circumsta:ices of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment JS 2 . 8 For the purposes of Crimin al Law, the noun "forgery" has a meaning assigned to i t by Section 342 of the Penal Code. It de fines forgery as the makin.g of a false document with intent to defraud or to deceive. In the same vein , the phrase " intent to defraud or deceive" • is defi ned by secti on 344A of the Penal Code as fo llows ; An intent to deceive exists where one person induoes a.other person- ( a) To bel ieve th at a thing i s true which is false, a.d whi ch the person pr a:: ticing the deceit knows or believes to be false; or (b) To believe a thing to be false which is true, a.d whi ch the person pr a::ticing the deceit knows or believes to be true; a.d in consequence of having been so induced does or omits to do a. a::t whether or not a.y i njury or loss i s thereby suffered by cny person. J9 2. 9 further, the OFFENCE OF UTTERING OF FALSE DOCUMENTS is ere ated by section 353 of the same Code which is couched as fol l ows; " Any person who knowingly end fraudulently utters a false ' document is guilty of in offence of the same kind, end is liable to the s arne punishment, as i f he had forged the thing • in question. " 3 . 0 In the li gh t of the fo r egoing, i t c an be deduced that t h e followi n g e l ements constitute the offense of forgery and uttering of false document ; a) There must a forged document b) Iden t ity of the person or persons that made i t or simply put the identity of offenders c) I ntent of the offender at the time of making the false document d) Uttering of the false document JlO 3 . 1 OFFENCE OF GIVING FALSE INFORMATION TO A PUBLIC OFFICER 3 . 2 'f h i s o ff ence is created under Section 125 of the Penal Code Chapter 87 of the Laws of Zambia wh i ch enacts : Whoever gives ,. to a1y person employed in the publ.ia service a1y information which he knows or believes to be :E alse, intending thereby to • c ause or knowing i t to be likely th at he will. thereby c ause suc'h person- ( a) to do or omit mything which such person ought not to do or omit iL the true state of facts respecting which such information is given were known to him; or (b} to use the lawful power of such person to the injury or mnoy mce of any person; is guilty of a misdemeanour md is liable to imprisonment for six months or to a fine of one thousmd ai.d five hundred pen al ty uni ts or to both. Jll 3. 3 'l'hus, to prove Count Nine and Ten, the Prosecution ought to establish that: That a::::cused person number two gave false information to ' . i. a public officer n arnely the Commissioner of Lands at the • Ministry of Lands stating that Theresa Chileshe Nkonde retained him to a::::t on her behalf to subdivide property number L/3'270/M in Ibex Hi ll. ii. Th at the a:c used knew or believed th at the in formation given was f .alse end the public officers would omi t to do t hat which he or she is to do, iii. That the public officers rel ied on such information submitted and omitted to do th at which if the true state of fa:ts were known to them, they would not have subdivided property number L/3270 /M situated i n Ibex Hill. 3. 4 EVIDENCE OF THE PROSECUTION 3. 5 The First Prosecution l'/i tness whom I shall be referring to as PWl was Theresa Chileshe Nkonde a 75 years old House wife, she recounted that i n 1983 her late husband Mr. John· Mwila Arch angel Nkonde and herself join tly applied for a piece of land from the Mi nistry of Lands whic h application was approved and they 1-,ere offered 5 hectares of land in Ibex Hi ll off twin palm road being Lo t 3270 /M. J12 3.6 PWl narrated that they developed the land, unfortunately on the 24 t h of June 1988 her husband died in a road traffic ' ' ' accident, after her husband's death , the Ministry of Lands issued her with the origin al certificate title in he r names • Theresa Chileshe Nkonde as the surviving owner of the property 3. 7 PWl recounted that she proceeded to build a house between 1991 and 1993 in which she moved in ~,ith her children, in 1998 she tr ave led t9 the Uni te d St ates of America to nurse her first daughter ~,ho was seriously i ll and admitted in hospital, at the ti me she had been divorced and alone wi th her son, unfo rt unately her daughter died, she narrated that she in tended to return to Zambia with her gr and son aged 3 years but the Americ a1 Government did not allo~, her to take him as he was an American citizen . 3 . 8 She was then infor med th at she could stay in the United States of America as a custodian of the gran dson until he t urned 18 years, she stayed there un t il the he t urned 18 years in 2017, on the 27 th of April 2018 s he t r aveled to z ambi a and · stayed , with her friend Mr. Kokobo, on the l•t of May 2018 she went to her house in Ibe x Hi 11 when she arrived at the house she fo und big buildi ngs which s he did not live . Jl3 3 . 9 Pl"11 testified that she went to the first house and asked the man what he was doing there, the man told her that was his house he built it, he also informed her that 8lizabeth Kabale Nkonde (Al) and Billington Mosha ( A2) sold him the property, she was shocked to hear that a1d wondered how her property • could be sold when she had possession of the origin al certificate of title to prove this she produced the original certificate title number L3234 as Pl. 4. 0 P\'11 testified that the fol l owing day she went to the Ministry of Lcl'\ds and showed a lady there that she still had possession of the original certificate of title how was the la1d sold, she was shown how the land was subdivided and sold to a number of people. She reported the matter to the Police, the police investigated the matter and informed her that her property was sold fraudulently by forging her NRC a1d Power of Attorney, she was also informed that Elizabeth Kaba.le Nkonde (Al) and Billington Mosha (A2) had applied for a duplicate title deed which was issued, the two also applied for consent to assi gn which was said to have been signed by her to . prove this she produced her original NRC Number 104040/68/1 in the names Theresa Chileshe born on 5th May 1947 as P2 . )14 4 . 1 PWl narrated that THE; NRC used by Al and A2 was a fake NRC bee ause it had picture of a person different person not her, the s i gnature of it wasn ' t h e,rs, the names on it were Theres a Chileshe Nkonde which were not the correct names, as she obtained her NRC in her names Theresa Nkonde, • said 1 965 when he correct d ate of birth was 1 947, a::cording the birth date to . h~r the dat e of registration was 6t" December 1982 was i ncorr ect, t he correct beingl 4t h December 1965, s he furt her narrated that her village was Polotasho Ch ief Mak as a, the vi llage on the fake NRC was Milanga under Chief Nkula which was incorrect, s h e furt her highligh ted her origin al NRC (P2) showed Mungwi Distr ict while t he fake one showed Chis an li district. To prove this , s h e i d entified the NRC as ID/3. 4. 2 She was also i n formed that A2 h ad written to the Commissioner of Lands pretendi ng to h ave been retaine d by her as her lawyer which she dispu ted, she recoun ted that s h e did not kn ow A2, s he had never done any b us iness with hi m, she disputed ever givi ng him con s ent or authority verbal l y or written to a:::t on her behalf. JlS 4. 3 PWl disputed ever writing a power of attorney giving Al and A2 authority to sell her property, she disputed the signature of the said power of attorn~y and narrated that she did no·t Give Al any authority, she recalled first meeting him when she went to his office to inquire why ·he sold her land to • prove this she identified the power of attorney as ID/4 . 4. 4 PWl · narrated that she had never applied or authorised any person to apply for the i ss u anc e of a duplicate title deed as she has always had the origin al t i tle deed wi th her, she disputed ever signing a,y document for the issuance of a duplicate title deed, she dispute ever retaining a firm Mosha and Company to subdivide or sale her property purporting that she had authorised him, to prove this she identified a copy of the duplicate title deed as ID/ the two letters f rorn Mosha c11d Company dated 17 th .of March 2012 was marked as ID/6 the other letter dated November 2016 as ID/7, she identified the two a:::cused persons in the dock. J16 4. 5 During Cross - E:xami nation by Learned Counsel for Al at the time Mr . Musanje she narrated that she had s ix children and four ~,ere l iving being Vi vi en Mwil a Nkonde , Elizabeth I<abale Cho l a Nkonde (Al), J ohn Nkon de, Theres a Mw amba Nkonde, Ch ristine Changala Nkonde • confirmed that Al was her daughter, and Tom Nkakomba Nkonde, she she stated t h at her husband died on the 24 th o f June 1988 in a road a::cident end he did not le ave a 1,i 1 1. 4 . 6 l?IH recounted t h at the administrator of t he estate was Demiste r Mwila who distributed the estate to the benefici aries being herself, the c hild ren , her late husband ' s mother, fathe r and cousin ' s , she stated that the estate included three properties Ibex Hill, Sunning Hill and Lusaka west, she reiterated that the Ibex Hil l property 13270/M reverted to her as joint owner by the Ministry of Lands and the f ami l y agree , when referred to Pl the original certificate of title she disputed seeing any co rrect ions on the name. J17 4.7 PWl narrated that Elizabeth Nkonde (Al) got married in 1999 and not 1996 after she had left for the USA, ~,hen referred to ID/4 the Power of Attorney she observed the names on it being Elizabeth Kabale Nkonde when Al's n aines were E:liz abeth Kabeke Chol a Nkonde, she furt her narrated th at she used her NRC and Marriage Certificate to obtai n the Certificate of Title and the n arnes on the title deed were Theres a Chi l e she N konde. 4 . 8 During Continued Cross - Examination by Learned Counsel Mr. T. Chikonde Counsel for (A2) she recounted that when she left Zambia in 1998 she did not le ave person in charge of the property, she stated that the property was safe as her elder brother and a tenant lived there , she disputed having left Al to be in charge of the property, she only told her to look after the property as caretaker and to check on her brother and nephews. 4. 9 PWl recalled that whilst in the USA Al collected rentals from the ten ant at the property, she confirmed th at she had 25 people, the Attorney General, Mos h a and Company, Al, A2 and Ministry of L ands in the High Court, s he reiterated that when she arrived from the USA she found a house on her property and people livi n g i n i t when she asked he r daughter about the developments she to l d her she did not know anything about i t and said it could be the cadres th at sold the property. J18 5. 0 She recounted that she had engaged t he persons that purchased the plots who told her th at Elizabeth Nkonde (Al) and Mr. Mosha sold the properties and subdivided them, she stated t hat she engaged Mr. Mosha ( A2) who in formed her that he had • drafted the power of attorn ey, s he disputed being shown any con tr a:; t of sale by the police, she o n ly saw the con tr a:: ts of sale on a computer at Minis tr y of Lands that showed that herse l f and he r late husband sold the pl ots, she disputed knowi n g th at Chi bes akund a and company pl aced a cave at o n the property, ·she agreed not seeing a document that Mosha and Company received any money, she stated that ID/6 and ID/7 were issued by Mosha and Company under the names of A2. 5. 1 Prosecution Witness Number Two whom I sh all refer to as PW2 was Brian Chinyama Kapalu a 45 years old Assistant Land Surveyor at the Ministry of L ands , in relati on to this matter he narrated that in 2016 he was engaged by Elizabeth Nkonde (Al) and Billington Mosha {A2)to prepare subdivisions on Lot 3270/M located in Ibex Hill, he narrated that Mr . Maka,y·a a person that intended to purc h ase a pl ot from Elizabeth introduced him to her, he explained the process fo r hi m to ' subdivide the land, they viewed the land together, he then requested Elizabeth to be avail him with the tit l e deed and she advi sed to her the fol l owing day behind Man d a hill. J19 5 . 2 PW2 reco unted that the following day Elizabeth took him to Mr. Billington Mosha ' s ( A2) office where he was introduced to him as the surveyor who was to s ubdivide the property, Elizabeth (Al) informed him that he would work with Mr. Mosha (A2} to • carry out his works who would provide him with all documentations, he narrated t hat Mr. Mosha (A2} gave him a Ceftified copy of a ti t le deed, a certified copy of the tit le ho lde rs NRC, a let te r of consent all certified by Mr. Mosha (AZ} . 5 . 3 1?1~2 testified that after h e examined the d ocu men ts , he observed th at the names on t he title deed were Theres a Chi leshe Nkonde he then queried this with El izabeth ( Al J and Mr. Mosha (A2), he was then informed that the owner of the 1 and was Elizabeth ' s mother who was out the country, he advised t hem that a lawyer was n eeded to stand on behalf of the t i t le ho l der, he was advised that Mr. Mosha was retained to prepare the l etter of consent on behalf of the title holder Theres a Chi leshe Nkonde who he had not met yet but he de-alt with her daughter (Al) 5.4 PW2 testified that r:iir. Billington Mosha (A2) advised him that a power of attorney had already been prepared, hearing this he went ahead to execute his ¼/. Ork having had all the documents needed when a title ho l der was absent, he prepared the site • plans, atta:::hed the necessary documents and lodged the documents with the Council at first they were queried however afte r atta:::hing the required documents they were approved, he collected the documents and then lodged them for numbering at the Ministry of Lands . 5. 5 l?W2 n arrated th at aft er some time they were approved and numbe red, he recalled then taking a copy of the approved and numbered site pla,s and gave his clients Elizabe th (Al) and Mr. Mosha (A2) , l ater the Surveyor Report was also approved, he informed Al of i t who advised him to submit it Mr. Mosha which ended his rol e in the transa:::tion . 5. 6 l?W2 identified I D/3 as t he NRC certified by A2 he produced it as 1?3, he i den ti fi ed ID /5 as the copy of the tit l e deed certified and given to him by A2 he produced it as PS, he also i de ntified the power of attorney (ID/4) a1d produced as P4, he identified the two letter from Mosha and Company ID/6 and I D /7 given to him Mr. Mosha ( A2) which he produced as 1?6 and 1?7 re spec t i vel y, he produced the Site Pl an as PB Al and A2 in the a:::cused dock. J21 5. 4 He recounted that he had no contact with the owner of the property, the ins true tions to ere ate the 27 subdivides came , , f r om Elizabeth Nkonde (Al), he testified that he relied on the on the letter given to him by Mr. Mosha (A2) to exec ute • his work seeing that the owner of t he property was not available as he had been retained to act for Therese Chileshe Nkonde . 5. 5 During Cro§s - Examination by Learned Counsel for Al at the time Mr. Musanje, he narrated that he had no written engagement by Al on record he asked t he court to believe that he was engaged by Al, he stated t hat he was alone when he met Al, he admitted giving a bill to Al, he stated that Mr. Makanya is his brothe r in law so as Al ' s client who had purchased a plot from her and he did not know he would be cal led as a witness. 5. 6 During Continued Cross - Examination by Learned Couns el for A2 Mr. T. Chikonde, he narrated that he first met Al on site while he w,as in the company of Mr. Makanya, Mr. Morgan and Mr. Anthony, he confirmed knowing Al as the owner of the plot who. was introduced to him by Mr. Makany a, he stated t h at Al introduced him to Mr. Aaron the caretaker at t he plot, he reiterated that Al and A2 hired him to do the work. J22 5.7 PW2 recalled that he was first hired by the purchasers of the plots and then Al hired him to subdivide t he remaini ng portions of the plots and o:f;.fered him the smallest plot for his services as she had no money upon completion of the wor k, Al demanded that he pays K20, 000. 00 for the plot s he gave him whic h he di d, he di sputed h avi ng discussed his fees with Mr. • Mosha (A2), he stat ed t h at according to his know ledge Mr. Mosha worked for Al as her 1 a,.•1yer. 5. 8 During Re - E:xamination he recounted that A2 signed and gave hi m P6 the consent to subdivide . 5. 9 Pr osecuti on Witness Number Three whom I shal l refer to as PW3 was Mutwalo Jere a 40 years old Senior E:states and Valuation at the Ministry of Lan ds , he gave his qual i f i cations as being a holder of a Degree i n Real E:state from the Copperbel t Un i versity, a Master ' s Degree i n Business Admin i stration from t he University of Lusaka, he also recounte d that he had wor ked for the Ministry of Lands for 13 years, as regards his duties he explained that they included taki ng property valuations, . billing and also scrutizin g site pl ans for numbe r ing for purposes of survey and numbering plots . J23 6. 0 PW3 testified that the procedure to subdivide private property required th at the o~mer of the property appro a::hes the l ocal authority and submi. ts the s~ te pl ans, once approved by the • council, 7 copies of the st amped site pl a, s are lodged at Ministry of Lands, the plot owner consents by applying to the Commissioner of Le11ds £or the Subdivision by attaching the NR<? if an individu al , Certificate of Incorporation if it's a company, then the person pays for the numbering and clear all outstanding bills. 6 . l I n respect of this matter l?W3 narrated that Lot 3270/M consent was applied thro ugh the 1 awyers Mosha and Company who a:; ted on behalf Of Theres a Chileshe Nkon de, he testified th at the Mi nistry received two letter dated 15 th end 17th of March 2016 from the law fir m stating that they had been engaged by Theresa Chileshe Nkonde. who applied for the s ubdivisi ons, he confirmed that 1?6 was the le tter in which the consent was sought to s ubdi vide Lot 3270 /M while 1?7 was a letter seeki ng consent to subdivide the remaining portion of Lot 3270 /M. 6. 2 PW3 testified that when he checked the Zambia Integrated Lands Mcl'l agement Information System, he discovered that the procedure he high li gh te d to subdivi de plots was complied with and 27 subdivisions •.-1ere created he produced the Lands Register as 1?9 . J24 6. 3 During Cross-Examinati on by Learned Counsel for Al at the time Mr. Musanje he disputed being involved in the process leading to the entri es on t he lands register (P9) . 6 . 4 During Continued Cross-Examination by Learned Counsel for A2 • Mt. T . Chikonde he confirmed being called by the Prosecutor to testify having given a state men t to the Police, he reJ. te r ated th at he had worked for t he Ministry of Lands for 13 years, when r eferred to P2 and PW3 he confirmed th at P2 was an NRC in the names of Theresa Chileshe while PW3 ~, as~ an NRC in the n arnes of Theres a Chileshe Nkonde, he stated th at before the property was subdivided and a:::cording to the lands regi s te r (P9) t he property belon ged to Theresa Chiles he Nkonde the same names i n P3, he confirmed th at under e nt ry 7 i n P9 t he applicant for the duplicate t i t le was not i ndi cat ed. 6 . 5 l? W3 r ecounted that th e s ite plan ~1 as submitted in 2016, while t he powe r of attorney was registered in 201 5, he stated that he did not know who s ubmitted the site pl an , he disputed being involved in the issuance of t he duplic ate t itle deed and he confirmed that his testimony was based on the information sitting in the system at the Ministry of Lands. J25 6. 6 Prosecution Witness Number Four whom I sh all refer to PW4 was Watson Phiri a 50 years old Freeland Agent who explained his duties to include processing. documents at the Ministry of Lands such as Consent, registration of assignment, court in relation to this matter he rec al led being phoned orders, • by Mr. Billington Mosha ( A2) of Mosha and Company who needed his services, he recounted going to A2 ' s office at Plot 131 Manda Hill road , Olympia he i nformed that his client needed to create subdivisions on Lot 3270/M Ibex Hill Lusaka, A2 then referred him to Mr. Chibonga who was to submit an documents needed for him to do his work on behalf of A2. 6 . 7 PW4 reco unted th at on the 30 th of February 2015 he was assigned to regi ster a power of attorney and apply for a duplicate title deed by Mr. Mesh a ( A2) who in formed him the vendor Theres a Chileshe Nkonde (PWl) h ad misplaced the original title deed, PW4 testified that he lodged the registration of the power of attorney, the application for duplicate title and its attachments simultaneously using a lodgment schedule under Mosha and Company, to prove this he identified P4 , the l odgment schedule and its attachments were produced as Pl 0 . J26 6. 8 PW 4 testified that the statutory declaration was sworn by Elizabeth a Nkonde (Al) when referred to Pl the origin al title deed, he it was his evidenc., th at he did not know th at the original title deed was available which means he obtained the • duplicate t itle deed fr audulen,l::ly, he re iterated th at he was gi ven all the documents to register and apply by Mr. Mosha ( A_2) of Mosha and Company, he recounted that he did lodge the application for consent to assign and the attcehments t he Ministry of Lands . 6. 9 To prove this he produced the appli cation for consent to assign and its atta::hments for subdivision A number the names of PWl and Anthone y Mwisha as Pll, for subdivisi on B under PWl names aid Chrispin and Mary Moone as P12 and Subdi visi on C under PWl ' s names and Chrispin Makanya as Pl3, when referred to P4 and Pll, he confirmed that the NRC number on the Power of Atto rney and on Pll were the same as t hey were given to him by Mosha and Company. 7. 0 During Cross - Examination by Learned Counsel for Al at"the time Mr. Musanje he confirmed meeting with Al at the time who signed the documents, when referred to PlO he confirmed that Al signed on the documents after he prepared and explained the contents and i mplications of signing to her. J27 7. 1 Du ri ng Continued Cross-Examination by Learned Counsel Mr. T. Chi konde he n ar r ated th al: he had never been an employee of Mosha and Company, the only re'lationship he had with Mr. Mosha (Al) was that whenever he had a project regarding subdivisions or custo mary land he would engage him, he confirmed that Mosha and Company was not t he only l aw firm that he engaged with for, such transa::tions they were a number of law firms, he con f irmed that A2 phoned and i n formed him of the project they later met and discussed it, he confirmed that Al informed him that he had a client Elizabeth Kabale lilkonde who he later me t . 7. 2 PW4 stated that he requested for the power of attorney bee ause all the contracts to be signed, Elizabeth Nkonde (Al) as vendor needed to sign then as an attorney of the owner of the property, he stated that without the power of attorney he could not have proceeded to apply for consent, he confirmed having applied for consent to assign under the names of Theresa Chileshe Nkonde, he disputed that Elizabeth Nkonde (A2) was not Theresa Chileshe Nkonde and the reason why the consent had the names Theres a Chi l eshe Nkonde was bee ause she was the t itle holder and Elizabeth merely a:: ting on behalf of Theresa as Attorney and the power of Ministry of L ands syste m. J28 7. 3 Prosecution Number Five ~,horn r shall refer to as PW5 was Kesha Jere a 29 year s o l d Legal Officer at the Ministry of Lands she narrated t hat he r duti e s i nc l uded s i gning State Consen t to Assign, preparing of repossess i on for the Commissioner of • Lands and prepari ng legal advice, in re l ation to t his matter regardi n g Lot 3270/M appl ications for Consent in r espect of sul;>divisions of the said property were received by her office, they was scrutinized together with the atta::::hments and approved all lodged by Mosha and Company, she identi f i ed Pll, P l 2 and rnS. 7 . 4 During Cross- Examination by Learned Co unsel for Al at the time Mr. Musanje she conf irmed that they were other subdivisions on the same land, he con f i rmed that there was a registered power of attorney in the names of Eli zabeth Nkonde (Al ) however not on the· three subdivisi ons she mentioned in court. J29 7. 5 During Continued Cross - Examination by Learned Counsel for A2 Mr. T. Ch i konde she confirmed th at Theres a Chi le she Nkonde(PWl) was t he applic~.t and the contra:::t of sale was att a::: h ed to the application and the vendor was Theres a • Chileshe Nkonde (PWl) when referred to the unmarked documen t as Controet of Sale of Patri ck Makanya and Chansa Monje she confirmed that in that contra:::t o f sale the vendor was Elizabeth Nkonde and it related to L3270 /M the subdivision was not mentioned. 7. 6 When refe rre d to the power of attorney ( P4) she confi rmed that it was between There sa Chiles h e Nkonde (PWl) and Elizabeth Kabale Nkonde (Al ) aid i t 1vas l odged on the 14th of Dece mber 2015 and the consents were lodged in 2016, she confirmed that to her knowledge the Ministry of Lands did not find any t hing wrong with t he Power of Attorney. 7 . 7 During Re- Examination by Learned Prosecutor she confirmed that in relation to Subdivisions A, B and C the vendor was Theres a Chileshe Nkonde , she confirmed th at Elizabeth Nkonde (Al) sold the subdivisions of Lot 3270/M Lusaka. J30 7 . 8 Prosecution Wi tness Number S ix whom I shall refer to as PW6 was Nathan Mwanchunga Simambwe A 39 years old Assistant Registration Officer Department of Nation al Registration, Passport and Citizenship whose duties included verifyi ng queried national ide n tity documents, maintaining of • records , preparing reports , in relation to this matter he recal l ed two NRC numbers 810818/46/1 and 104040/68/1 were submitted for verification, PW6 testified th at NRC n umber 810818 /4 6 /1 was in the names of Th eres q Chi le she Nkonde while NRC number "l04040/68/l was in the names of Theresa Nkonde. 7 . 9 PW6 testified that his f i ndings were that NRC number 810818/46/1 he went to the record room in particular code C46 ,1hic h is Chisanl i when he checked the records , he discovered that the NRC has never exis ted and neither has the district re a::: h ed th at sequence therefore Form A book existed, he concluded that NRC Number 810818 /46 /1 was forged . J31 8 . 0 In respect of NRC Number 104040/68/1 he went to the having 10 being Luanshya he collected the E'orm A book and found that number 104040/68/1 was issue{:! to Theresa Chileshe Nkonde who obtained the NRC in 1965, born on the 5 th of May 1947, Mpolotash o village of Chief Makasa of Kasama District now Mungwi to prove this he produced the Form A Book for l~RC number 104040 /68 /1 unde r the names Theresa Chileshe as Pl 4 , • he also identified P2 aid P3. 8 . 1 Durin g Cross-Examination by Learned Counsel for Al then Mr. Musanje he confirmed having received a req uest , court summons and the two NRC number, he stated that he did not know who committed the forgery in respect of P3. Learned Counsel for A2 had no questions . 8 . 2 Prosecution Witness Number Seven whom I shall refer to as PW7 was Detective Inspector Peter Mwale a 43 years old Police Officer he recalled on the 2nd of May 2028 being assigned to hand le a matter reported by Theres a Chileshe Nkonde ( PWl) t hat her property situate in Ibex Hill had been subdivided and sold to different individuals by her daughter Eliz abJth Kabale Nkonde (Al) she was shoe ked to find her property sold when she had the origin al title deed. J32 8 . 3 PW7 narrated that he instituted investigations and interviewed various persons ·from the Ministry of Lcnds end those involved i n the subdiv,i.ding of the land and after bein·g availed with the various documents, he analysed the evidence and not iced th at • i) The power of attorney was a false document bee ause the irtformation contained a fake NRC n umber and not the a:::tual NRC. ii) 'I'he NB.. C had a fake name and fa ke NRC number. ili) the Consent to Assign were filled with wrong information and did not bear the signature of Theres a Chi les he Nkonde ( PIH J iv) The letters of Consent had false i n formation bee ause PWl denied engaging Mr. Mosha ( A2 )to process the subdivisions on her property. 8 . 4 PW7 recounted th at he then summoned Elizabeth Kabale Nkonde (Al) and Billington Mesh a ( A2) who he interviewed and decided to charge them for the subject offences, he identified the two cec used person in the dock, he also identified the NRCs in the names of Theres a Chileshe P2 and Theres a Chileshe Nkonde P3, whic h he testifie d that P2 was the original NRC while P3 was the forged NRC, he identified the Si te Plcn PB. 8. S 1?1·17 recalled identifying the two letters from Mosha and Company 1?6 and 1?7, the three Consent to Assign for Subdivi sions A, B and C P.;J.l, Pl2 clld Pl3, the power of attorney (P4 ), the lodgment sched ul e PlO , PW7 identified the origin al certificate of t itle Pl and the duplicate cer t ificate of title (PS) which a::cording to him was certified • by. A2. 8. 6 During Cross-Examination by Learned Counsel for Al at the t ime Mr. Musanje he confirmed i nvestigating the matter after getting the report, he stated that during his investig ations he discovered that Theresa Nkon de made an application to the Lusaka Planning Authority to create subdivisions, he narrated that he spoke to Brain Kapalu who confirmed being engaged by Al to create the subdivisions, he stated that A2 engaged vlaston l?hiri who filed the Consent Application under A2's instruction , he stated that he did not come a::ross evidence that Al forge d and uttered any document, he confirmed that when he interviewed Al she opted to remain silent. -' J34 8. 7 During Continued Cross - Examination by Learned Counsel for A2 Mr. T. Chikonde he confirmed that Theresa Chileshe Nkonde ( PWl J lodged the compl ain ant in this matter and she showed him her NRC to confirm her names, when referred to P2 and P3 • he confirmed usi ng P2 to identify the complainant, he disputed knowing the people th at s ubmit ted the NRC copies at the Mi~istry of Lands, he stated PWl did not engaged Brian Kapalu t he surveyor he was engaged by Al, he confirmed that the names on the origin al certificate of title we re Theres a Chi les he Nkon de which he confirmed where not the exa:t names on P2, he confir med that A2 did not sign on the power of attorne y and he did not establish were the law firm was from. 8. 8 This marked th e close of the Prosecution case and I found both a:cused persons with a case to answer in all 10 counts respectivel y charged their right s were explai n e d to them by Counsel ; Jlccused Person electe d to re main silent which i s within her rights and s he had no wi tn esses to call, accused person number t wo elected to give sworn evide nce and had . one wi tnesses to cal l aside hi mself. J35 8 . 9 THE DEFENCE CASE 9. 0 Defence Witness Number One whom I shall refer to as DWl was ' Accused Person number two who recounted that he was a advocate who ran a law firm called Mosha and Company and part of his • work involved conveyancing and in relati on to the matter before court he rec al led meeting Elizabeth Nkonde (Al) in 2014· th rough Chibonga Mubanga a real estate agent who had mentioned to him prior to the introduction of a person who had land in Ibe x Hill which she intended to be subdivided cmd sold. 9. 1 mn recounted that he later met wi t h Al arid Mr. Patrick Makanya wh o wanted to purchase the land but insis t ed that the purchase be done through a 1 awyer, at the meeting he asked Al what docu men ts she had and who t he owner of the property 1vas, Al informed him that property was a family property he ld i n her mother ' s names who was in the USA and Al was in charge of the property, he reco unted advising Al to have her mother sign some documents in relation to the sale as the ownershi p of the property was not vested in her (Al) . J36 9. 2 DWl testified that he advised Al to have her 11¥)ther give her authority to sign documents through a power of attorney, , the meeting it was agreed thaL Al and Chibonga would arrange in the documents needed, he recalled t hat later he was informed by Chibon ga that the power of attorney was ready, he testified that Chibonga was the person that would know how the power of attorney was prepared and at the point he had not received any instructions from Al but she merely consulted him. 9. 3 DWl testified that he also inquired on the Elizabeths mother ' s NRC and Chibonga assured him he would present it, he narrated th at he then cal led Watson Phi ri ( PW3) a person he consulted with in conveyancing matters due to his many conta::ts at Ministry of Lands, himself end Al later met with Brian Kapalu (P\112) who Al instructed to conduct the subdivisions and she also instructed him to handle the conveyance, he testified th at Wat son Phi ri ( PW3 ) proceeded to register the power of attorney to fa::ilitate the conveyance. /37 9. 4 DWl Lestified l::haL Al had no funds to pay Brain Kapalu (PW2) at the time, she in turn offered him a small plot, 0Wl narrated th at in turn he also. showed interest in the 1 and a-ld knowing th at they did not agree on the figure for the conveyance, Al agreed to sale him a plot at K80, 000. 00 and in • due course she signed a contra::t of sale and assignment for his l cl'ld. 9. 5 DWl narrated th at the documents for the duplicate were prepared by his l aw firm and Watson Phiri (P~l3 ), he narrated t h at an application letter was made in the names of Al who informed him that the original certificate of title was lost an d to that cause she signed a statutory declaration and the application for duplicate title was guided by Watson Phiri (PW3), later he saw purchasers go to the law firm a1d the firm would prepare contra::ts of sale, he narrated that at no point was the firm involved in securing purchasers t hey all came through Al. J38 - 9. 6 OWl narrated that during the course of a:::tivities Watson Phiri ( PW3 ) availed him 1~i th a copy of Theres a Nkonde 's NRC which he asked him to certify without seeing the original, he stated that he did so after taking for grmted that i t came from the owner of the property, he testified that all he knew was that • Al had all the authority given to her by her mother through the, power of attorney a,d she was the person in c harge o f the property. 9. 7 DW2 t estified th at as regards the payment for the purchase for the plots, only two purc hasers Mr. Maka,ya and others made direct deposits in the Law firms a::count and all the money was paid to Elizabeth (Al), he n aerated that whenever i nstallment payments delayed from the purchasers Al would ask him to push them to pay as she needed to send money to her mo ther in the US 'A. J39 9. 8 DWl testified that upon learning that Theresa Nkonde (PWl) had reported the matter to the police, he phoned E:liz abeth (Al) and Chibonga and inquir~d from there if whether the NRC was forged and where the Power of Attorney came from and pressuring Chi bong a he revealed that a man called Ma-ijimel a who he now believed was deceased obtained the power of • at.torney from Theres a Chi leshe Nkonde, as regards the NRC he i nformed him that it 1-1as obtained from the Green file at Ministry of Lands through Manj i mela. 9. 9 DWl 1,hen referred to P9 he narrated that a::cording to P9 in 1989 Theresa Nkonde 1,as the property owner, at entry 5 a cave at ,, as regis tered by a purchaser on the 11th of August · 2009and removed on the 16 th of September 2010 by Chibesakunda and Compa-iy, entry 11 showed that the title deed was lost and a dupl icate was issued ;i.n July 2013, ;i.n October 2013 another caveat was pla::ed by Lombe Bwalya and Associates and later withdrawn on the 23 rd February 2015 at entry number 10 Theresa Nkonde gra-ited a power of attorney to Elizabeth (All , . he recounted that it was from this entry that all subsequent transac tions occurred. )40 10. 0 During Cross- Examination by Al's Co uns e l Mr. Lisimba he confirmed having a::: ted for Elizabeth and having obtained inst ruct i ons after December :.'015, he stated th at he could not rec all when the power of attorney was registered, she stated that he advised Al that in order to sell the plots, her mother needed to sign the documents herself or herself ( Al ) could si9n the doc uments through a power of attorney, he stated th at Wat son Phi ri ( PW3 ) was an independent con tr a:: tor was he • used fo.r: conveyance matter and in this matter he was the firms agent and :he registered the power of attorney. 10. 1 DWl narrated that Watson Phiri helped Elizabeth (Al) get the power of attorney with hi s ( A2) blessings and he registered it, he admitted t hat Elizabeth (Al) had no money to pay for legal fees so he took instructions on deferment of payment through Chibonga when he did be fore , he recounted that Chibonga informed him that Elizabeth had no money to pay but had land to sale and could pay from the sale proceeds, he rec al led doing a search at lands for sue diligence and the results were consistent with what Al told him th at the land belonged to her mother which was famil y property. J41 10. 4 DWl reiterated th at apart from the power of attorney all other documents were filed by his clerks, he stated that he did not meet Ma,jimela and he did not see Eli.z abeth (Al) draft the power of attorney, he admitted l.hat all documents after entry 10 in the la,ds register (P9) was prepared by his law firm. 1 0. 5 Du ring Cross-Examination by Learned Prosecutor, he confirmed th at he was Billington Mosha holder o f a Pr a:: ticing Certi. Eic ate to carry out ~,ork, he confirmed th at he traded under Mosha and Company which was a business name being Billington Mosha trading as Mosha and Compa,y, he admitted th at when speaks of Mosha and Comp my they spoke of him as partner his associates, he conceded that there was no separate li ability between him and the law firm, he reiterated that Elizabeth Nkonde approa::hed him for business end she did not come with the title deed the first they met. , J42 10. 6 DWl confirmed th at Al informed him th at the property was in her mother's name who was in the US A, he stated th at he attempted to call Al's mother but he failed to rea::h her, he confirmed not spoken to P~ll to confirm the whereabouts of the • title deed, he confirmed that throughout the whole conveyance he never spoke to Theresa Chileshe Nkonde (PWl ), he stated that he had pra::ticed law for 25 years, he admitted that Theres a Chileshe Nkonde ( PWl) never retained him as her lawyer, however confirmed being retained by Elizabeth (Al. 10. 7 DWl confirmed after being referred to P6 and P7, he confirmed th at P6 was authored by Mosha and Company end signed by hi ms elf on the 17 th of March 2016 which letter re ad having been retained by Theresa Nkonde (PWl) and not Al, he disputed having a retainer agreement with PWl, he stated that he mentioned l?Wl bee ause of the power of attorney he received, he admitted that the statutory declaration end application for duplicate title was prepared by the his 1 aw firm, he confirmed being aware that section 5 of the commissioner · of oaths Act prohibits certifying documents were one has an interes t in, he admitted that Chi bong a was not an advocate . )43 10. 8 During Re-Examination he stated that P6 was written on the strength of the instructions from Al who was a du l y appointed attorney of PWl, he stated tJ;,,at his address appeared on Pl3' bee ause the firm hosted their client and i t was the pra:::tice th at a 1 awyer used their address for purposed of processing • documents at Min istry of Lands, he stated that himself and Mr. , Mak any a attempted to phone PIH but her number was engaged or disconnected, when referred to P IO she confirmed that the application was made by Al a1d at ta:;; hed was t he statutory declaration- in her names . 10. 9 Defence Witness Number Two whom I shall refer to as DW2 was Chi bong a Mubanga a 55 years old Real Estate Agent he narrated that he knew Mr. Mosha (A2) whom he had known in the legal circles, he recounted that Eli zabeth (Al) was selling portions of lan d, she informed him that he needed legal advice he took her and Mr. Makanya a purchaser of the plots to Mr. Mosha( A2) office and introduced them, at the meeting Mr. Mosha asked Al if she was the owner of the property i f not she was required to have a power of attorney granted to her by her mother, Al informed Mr. Mesh a( A2) th at she would get the power of attorney from her mother. J44 11. 0 D\i/2 testified t hat he saw an email sent to Al by her mother allowing her to sell the part of the 1 and to rehabilitate the house as it was not habit aple, he testified th at he kne~, Theresa Nkonde as she was his aunt and was a very close friend • of his mother, he testified that once the meeting was clone and while st anding outside A2 ' s office, Elizabeth (Al) in~ormed him of a person Manjimel a a man entrusted to keep squatters away from the l and who was frequently in touch with her mother in the US A and she had discussed with him on how to obtai n -a power of attorney cheaply by having one draf ted in Zambia and sent to America for signing. 11. 1 DW2 testified that Elizabeth (Al) later phoned and informed him that Manjime l a had obtained the power of attorney and she asked him to pick it, he later picked the power of attorney from Manjimela and informed Watson Phiri (PW3) who advised him to leave at A2 ' s office, he narrated that Watson Phiri (ViJ3) also phoned and told him that Theresa Nkonde ' s NRC was missing he advised Watson Phiri that he would call Manjimela to give him the NRC and after four days Manjimela phoned him and told him he had the NRC, he picked the NRC and gave it to l~atson Phiri (PW3 ). J45 11. 2 01~2 testified th at he was an agent in the tr ans a::tion , he had agreed with Al th at she would pay h. Lm Kl 0, 000 . 00 for e a::h plot sold. 11. 3 During Cross-Examination by Learned Counsel for Al. Mr. • Lisimba he confirmed that he was friends with A2 business wise, he agreed that he took clients to Al and he was paid, he ·stated that he had never had a land trmsa:::tion were he was arrested, he confirmed knowing Nathan Inambao md the matter involving Mr. Inambao was regarding a will, he stated that J\2 raised the issue of the power of attorney, Al informed him that Ma,jimela informed her that it was cheaper to draft a power of attorney in Zambia and send it to the USA, he admitted lying when he said Al informed him that Mrojimela would draft a cheaper power of attorney. 11. 4 DW2 confirmed taking the power of attorney c11d the NRC to Mosha and Company not to Al, he stated th at as far was he was concerned Al did not draft the power of attorney she told him to pick it from Ma,jimela who was a real person . J46 11. S During Continued Cross-Examination by the Learned Prosecutor it was his testimony that he confirmed having been convicted for forgery over a will at, . a law firm he interned, he con firmed receiving the NRC f rom Man j imela who did not disclose where he got it, he stated th at he h act known A2 for • 10 years . 11. 6 Durlng Re - Examination by Learned Counsel for A2 he stated that he did not lie when he said Al phoned hi m to pick the power of attorney. 11. 7 This is the gist of the evidence I recei ved. I wish to state here that I have caref ully considered the evidence adduced in this matter in order to satisfy myself as to whether or not the prosecutions have discharged their obligation a1d I am i ndebt ed to the state and counsel for their spirited arguments in this matter I did have time to read through the submissions which were of great ass i stance. 11.8 ~or purposes of this Judgment, I shall deal with counts 1 to 8 simultaneously as they are interlinked then deal with counts 9 and 10 together, I must' mention here that that intent relates to 1. Jhat is in the mind of a person . • The Court, in the Case of THE PEOPLE V FRED M'MEMBE, MASAlJTSO PHI RI AND BRIGHT ~APE (1997) SJ 63 ( HC) aptly put it thus ; The basis of criminal 1.i abil..ity is still. tho ma><im ' a::tus non fa::.it re= mens sit res' trBlsla;ed to me.n 'Bl a::t alone does not make a mm guilty unless i t is a::companied by a guilty mind' 11. 9 UNDISPUTED Fl\CTS It is indisputable that Lot 3270/M located in Ibex Hill, Lusaka is Lhe property of Theresa Chileshe Nkonde, it is also not in d i spute that J.lccused Person one is the daughter to Theresa Chileshe Nkonde, it is also undi sputed that kcused Person Number Two is an Advocate practicing under the name and style Mosha and Company. It is common ground that Lot 3270/M Ibex Hill was subdivided in various subdivisions for sale, i t is also uncontroverted that accused person number two handled the subdivision s and conveyance of the s ubdivisions . )48 12. 0 DISPUTED F ACTS What appears to be in dispute to me is whether or not the Power of Attorney, NRC number 810818 /46 /1 , the Application • for Consent to Assign dated 4 th of April 2016 , Application for Consent to Assign dated 12 th E'ebruary 2016 were forged documents and who forged the said documents, and i f it was t he Ace used persons th at uttered the said documents to the employees pf Ministry of Lan ds , whether a:::cused person number two gave false information to public officers at the Ministry of Lands. 'l'hese are the disputed f a:::ts I have been called upon to resolve in this mat te r . 12. J. ANALYS I S 12. 2 I wish to restate here t h at for the purpose of this Judgement I that will begin by dealing 1t1ith the offenses of FORGERY and UTTERING FALSE DOCUMENTS together, I wi ll deal wi th all elements making up t hese offences, in COUNTS 1 , 2, 3, 4, 5,. 6, 7 c11d 8. J49 12. 3 FORGERY .llND UTTERING FALSE p OCUMENTS The first eloment as alrec1dy identified is that there must be a forged or false document within the meaning of the law . • In this case i t is alleged that there was forging cl'ld uttering of documents namely Power of Attorney, National Registration Card number 810818 /46 /1, the Application for Consent to Assign dated 4 t h of April 2016, Application for Consent to Assign dated 12 th February 2016 to s how that Power of Attorney, the Ap plic ati.on for Consent to Assign dated 4th of April 2016 and Application for Consent to Assign dates 12th E"ebruary 2016 were genuinely signed by Theresa Chileshe Nkonde clld that National Registration Card Number 810818/46/1 was genuinely issued cl\d authorized by the National Registration Office when in f a::t noL, in other words , i t is alleged that the said documents are false documents. 12. 4 I have found i t inevitable to reiterate the definition of forgery as provided in section 242 of the Penal Code. It is defined as the making of a false document with intent to defraud or to deceive. JSO 12. 5 Further the phrase " making of a false document" has a m3aning assigned to i t by secLion 344 of the Penal Code which include among other things ; a) Making a document purporting t o be what in fact i t i s not; b) Altering a document without authority in such a manner that • if the alteration had been authorised i t would have altered the effect o f the document; c) introduces into a document wi t hout authori ty whilst i t is being drawn up matter which if i t had been authorised would have altered the effec t of the document; 12. 6 In i nterpreting this provision, the Supreme Court in the case of MJVELA v THE PEOPLE (1974) Z. R. 20 (S. C. ) held that a document which i s what i t purports to be does not become a forgery merely because i t contains false statements ; to be a forgery " the writing must tell a lie about itself". This interpretation was further elaborated in the case of DAVIS JOKIE KASOTE v THE PEOPLE (1977) z. R. 75 (S. c. ) in whic h the Supreme Court held incer ali a that ; "The definition in section 3 44 (a) of the Penal Code being that a person makes a false document who "makes a document . ' purporting to be what in fa::t i t is not ", these last six words require that "purport " must be applied to the document i ts elf and not to its contents; if one implies that a document is JSl what i t i s not i t is the nature of the document concerni ng whi ch ther e is a r epresentation, not the truth of the conten t s." ' 12. 7 It is therefore clear from t hese authorities and the • definition that forgeries arise i n t h ree ways namely ; making a document which tells a lie about itself, al t eration o f a document or introducing conten ts i nto a document without authority which changes t he effects of the doc ume n t . 12. 2 I n case in cas u, having looked at exhi bits marked P3( NRC Number 810818/46/l) P4( Power of Attorney ) Pll (Application for Consent to Assi gn dated 4 th April 2016) and Pl 3 ( Application f or Consent to Assi gn dated 12 th February 2016 ), appear from the face of it as regards P3 a Nation al Regi stration Card of Theres a Chi les he Nkonde, P4 as Power of Attorn ey a u t horised by Theres a Chi le she Nkonde to El izabeth Nkonde, Pll end 1?13 Applic ation s for Consen t to Assign issued by Theres a Chileshe Nkonde . J52 12. 3 Jlccused persons dispute having made, signed c11d uttered the said documents to the Ministry of Lands. The question to be decided therefore is whether the same documents tell a lie about themselves. The answer is certainly affirmative. I will • begin to expl ai.n the basis of this answer by dealing with cou nt l , 3, 5 and 7 together then conclude. 12. 4 This so because, as regards P4 the Power of Attorney in count 1, it does tell a lie about itself as i t purports to show th at it was genuinely issued by Theres a Chi leshe Nkonde as Donor to Elizabeth Kabale Nkonde as Oonee when in f a::t not. 12. 5 PWl Theresa Chileshe Nkonde disputed ever issuing a Power of Attorney(P4) in which she gave Al E:lizabeth Nkonde her daughter authority to sell her property L3270/M, she disputed t he signature on the said Power of Attorney aid narrated that she did not Give Al Elizabeth Kabale Nkonde any authority. She recalled the first meeting she had with (A2) Billington Mosha at his office inquiring why he sold her lcrid. )53 12. 6 According Chi bonga Mubanga( DW2) his evidence revealed that after having a meeting with Billington Mosha (A2) at this office, Elizabeth Nkonde (Al. J. i nformed him that Ma1jimela had advised th at i t was cheaper to prepare a power of attorney in Zambia and send i t to America for Theresa Chileshe Nkonde (PWl) to sign, Al advised him that Manjimela was in frequent contact with PWl and h e 1-,ould obtain the Power of Attorn ey , days l ater Manjimela phoned and told him that Power of Attorney was ready. 12. 7 As regards the Nation all Regi strati on Card Number 810818 /46 / 1 ( P3) i t does tell a lie about itself as purport to s h ow that i t was gen u inely issued by t he Department of Nation al Registration , Pas sport and Citizenship to Theres a Chileshe Nkonde wh en in fact not. 12. 8 The evidence of PWl Theresa Chi l eshe Nkonde was that she obtained her NRC in her names Theres a Chi leshe, the date of registration was 14 th December 1 965, h er village was Mpolot asho under Chief Mak as a, Mungwi Distri ct, s h e produced her NRC as P2. JS4 12. 9 As regards the other NRC ( P3 ~ which she c aJ.led a fake NRC she highlighted that it had a picture of a person who was not her, the signature on it wasn't hers, the names on it were • Theresa Chileshe Nkonde which were not the correct names at t he time she obtained the NRC as she was not married at the ti me, as she obtained her NRC in her names Theres a Chileshe, the birth date said 1965 when her correct date of birth was 1947, the date of registration on P3 showed 6 th December 1982 which was incorrect, the correct being 14 th December 1965, PWl f u rther highlighted that the village on P3 was Milan ga under Chief Nkul a whic h was incorrect, she also highlighted (P3) showed Chisa-ili district which was incorrect. JSS 13. O This evidence adduced by Theresa Chileshe Nkonde (E'Wl) was confirmed by the evidence of E'W6 Nathi:1'1 Mwcnchunga Simarnbwe the Assistant Registration , Officer at the Department of National Regist r ation , Passport and Citizenship he recounted that two NRC numbers 810818/46/1 aid 104040/68/1 were submitted for verification at his office NRC number 810818/46/1 was in the names of Theresa Chileshe Nkonde whi le NRC number 104040/68/1 was in the names of Theresa Chileshe, h is findings were t h at NRC number 810818/46/1 (E'3) never existed an~ct neither had the distr ict rea::hed that sequence therefore Form A book existed, he concluded that NRC Numbe r 810818 /46 /1 was forged . 15 .7 As regards NRC Number 104040/68/1 (P2) he fo und this NRC was issued to Theresa Chileshe who obtained the NRC in 1965, born on the Slh of May 1947, Mpolotasho village of Chief Makasa of Kasama District now Mungwi t o prove th is he produced the Form A Book for MRC number 104040 /68 /l under the names Theres a Chileshe as Pl4 . J56 15. 8 In resolving this dispute, I am guided by the holding of the S upreme Court in the recent case of Cha'lda Simwaba v The People (unreported) a judgement delivered by Judge Wood on 25 th July, 2018. Fa::ts in that case i t was found as a fa::t that the Appellcnt signed the lease agreement a,d not the • deceased who should have signed on i t. •rhe appel l ant argued thpt the certificate of t i tl e was issued by the Ministry of Lands . It did not therefore become a forge r y even if there was an allegation of someone else appending a signature. It was still a ce r tificate of title with a disputed signature. As such, i t is not a false document as it. is still a certificate of title duly issued b y the Minis try of L mds. 15. 9 The Supreme Court uphe ld the conviction and held said ; The appella'lt is missing the point. The preparatory steps leading to the issul!ll"lce of the certificate of title should be considered as well. It will be seen from the evidence that the lease attached to the certificate of title is signed by someone purporting to be the comp! ai.na1t. The evidence in the court below all pointed to the appella'lt as the one who . signed a'ld was responsible for the writing on the lease. The document , tells a lie about itself in the sense th at i t purports to be made by the complai.nmt who did not make it. This meets the definition of forgery set out in Archbold in paragraph 19- 121 of Archbold Crimin al Pleading Evidence a'ld Practice 42nd )57 Edition which s tates as follows at page 1525 in relation t o f o rgery. ' 16. 0 It suffices to mention here th at al though the Supreme Court based its decision on the defi ni t ion from Archbold, its • decision is still within the definition i n section 344 of the Pen al Code whic h defines .forgeries as already alluded to i n three categories .rid i ncl ude ; 1. making a document which tells a lie about itself, 2 . alteration of a docu ment a-id ; 3 . introducing contents into a document without authority which chcnges the effects of the document. 16 . 1 In the case in c as u, the State allege that a person or persons signed, authorized and approved the Power of Attorney (P4) othe r than Theresa Chileshe Nkonde and a person issued National Registrati on Card Number 810818/46/1 other than t he Department of Nation al Registration, Pas sport .rid Citizenship. 16. 1 I must note that, whosever t he person was , this person i ntroduced cha,ges into the documents without authority of the signatory Theresa Chileshe Nkonde end the Mandated officers fro m the De par t men t of National Regi s tration, Passport a,d Citizenship whic h changed t he effect of the documents . J58 16. 7 I did have sight of these documents in question, P4 the power of attorney and P3 the National Registration Card Number 810818/46/1. I did note v,ariations in the details and signatures on P4 and P3 in comparison to 1?2. 16. 9• I did observe th at the signatures in the queried documents the power of attorney (P4) c0d NRC number 810818/46/1(!?3) they are not the same and are inconsi stent wi th the signature in P2 NRC Number 104040/68/1 whic h PWl Theresa Chileshe Nkonde confirmed to be her origin al NRC and t he signature on it to be hers. 17. 0 This testimony was corroborated by the evidence of Prosec ution Witness No. 6, Mr. Nathan Mwanchunga Simambwe, who affirmed that t he Department had no record corresponding to NRC number 810818/46/1 as reflected in Exhibit !?3 . The only record av ai 1 able in re l ation to the Nation al Regis tration Card of Prosecution Witness No. 1 pertained to NRC number 104 04 0 /68 /1 , which had been issued i n 196 5 to one Theresa Chileshe, born on 5th May 1947, of Mpolotasho Village under Chief Makasa in t he then Kasama District, now known as Mungwi. In support of this assertion, Mr. Simambwe tendered i nto evide nce the Form A Book corresponding to NRC n umber 104040/68/1, li sted under the name Theresa Chileshe, and marked as Exhibit Pl4 . J59 17. l Tt is notewo r thy t h at t he signature appearing on Exhibit P2, being the original National Registration Card (NRC) which Prosecution Witness No. 1 mentioned s he repla:::ed upon her return in 2017, thus bearing her current signature which is inconsistent with the signature on Exhibit P3 . Upon oc ul ar observation of the two NRCs, r c an c onfi rm t h at t he f a:::i al i mage o n Ex hi bi t P2 is not that of the individual appearing in Exhibit P3. Furthermore, the particulars reflected on Exhibit P2, as pointed o ut by Prosecution l~i t ness No. 1, differ materially from those contained in Exhibit P3, the now questioned document. 17. 2 It is observed that the names reflected on Exhibit P2 are indicated as ' The r es a Chi les he ', where as those appearing on Exhibit P3 are ' Theres a Chiles he Nkonde '. Judicial Notice is hereby taken of the fa:;t that, under Zambian l aw, indi viduals are eligible to o b tai n Nation al Registration Cards from the age of sixteen (16) years. As per the testimony of Pros ec u tion Iii tness No. 1, she obtained her NRC i n 1965, a1d having been born i n 194 7, she was eighteen (18) years old at the. time. PWl further testified that she a::q uire d her Nat i onal Regi s trati on Card p r io r t o her marriage to Mr. John Mwila Archangel Nkonde J60 17 . 3 Upon further examination, I observed that Exhibit P3 reflects the date of birth as 29th April 1965, whereas the correct date of birth, as indicated 'in Exhibit P2, is 5 th May 1947. The date of registration appearing on Exhibit P3 is recorded as 8th December 1982, while 8xhibit P2 reflects the date of registration as 4•11 December 1965 . Addition ally, the village • indicated on P2 is Mpolotasho Village under Chief Makasa, whereas P3 records it as Milcnga Village under Chief Nkula E'urthernore, Exhibit P2 identifies the district as Mungwi District, in contrast to Exhibit P3, whic h de s ignates Chiscnli District. 17. 4 ~lith respect to the Power of Attorney marked as Exhibit P4 , it is noted that the signature purporting to be that of Prosecution Witness No. l exhibits signific cnt discrepancies when compared to the· sign atur e contained on National Registration Card number 104040 /68 /l , admitted into evidence as Exhibit P2. E'urthermore, it was observed that the National Registration Card number cited in the Power of Attorney (P4) is NRC No. 810818 /46 /1 , corresponding to NRC marke d as Exhibit P3, rather than NRC No. 104040/68/1, which is the verified NRC for PWl. J61 17. 5 Jlccording t;o the testimony of Prosecution Witness No. 4 , Mr. Watson Phiri, he was conta:::ted vi a telephone by Mr. Billington Mosha ( k:cused No. 2} of Mesh a: and Company, who requested his profession al services. In response, he proceeded to Mr. Mosha's office located at Plot No. 131, Manda Hill Road, • Olympia There, Accused No. 2 i nformed h im that hi s cli ent intended to undertake the subdivision of Lot 3270/M, situated i n Ibex Hill, Lusaka On or about the 30th day of Ja,uary 2015, Mr. Phiri was instructed by Mr. Mosha to fa:::ilitate the registration of a Power of Attorney and to lodge an application for a duplicate Certificate of Title, on the basis t h at the origin al title d eed had al l egedly been mis pl aced by the vendor, o ne Theresa Chileshe Nkonde (Prosecution Witness No. 1 }. 17. 6 I observed that the drafters of the Power of Attorney, marked as E:xhibit P4, ex hibited a notable degree of ingenui ty in assigning to the purported law firm a designation styled as ' z..tMorrow Law LLC, Wexford, PA,' a name seemingl y crafted - to convey the impression of an American le g al entity. , 17. 8 I fi nd and hold that the Power of Attorney, marked as Exhibit P4, does tell a lie about itself in nature insofar as it purports to show that it was genuinely signed, authorized and approved by Theresa Chileshe Nkonde when in fa::t not. Upon as ses smen t , it i s e viden t t h at said execu ti on was no t in feet c arri ed out by the purported donor ( PWl ), thereby rendering the, i nstrument inhere ntly f raudulent. 17. 9 I am further of the considered view th at the Nation al Registration Card bearing Number 810818 /46 /1 , marked as Exhibit P3, is inherently misleading in that i t purports to have been duly issued, authorized, and approved by the Department of Nation al Registration , Passport Citizenship, when in fa::: t not, such issuance and authorization did not occur, thereby calling into question the authenticity a1d legitima:: y of the said document. 17 . 9 I did furt her observe from th e testimony of Accused No. 2 that he di sclaimed any kno wle dge r eg ar di ng the origin of Exhibi ts P3 an d P4 . 1-!is posi t i on was that both documents had been f urn ished to hi m by kcused No. 1. J63 18 . O Consequently, am strongly guided aid do form my opinion Lhat the documents in COUNTS l and 3, produced as exhibits marked P4 (The Power of Attorney l and The National Registration Card ' Number 810818/46/1 (P3) are forged documents within the • meaning of the l a•,1. 18 . l I ~,ill now deal the queried documents in Counts 5 and 7 being the Application of Con sent to Assign dated 4ch April 2016 aid Application for Consent to Assign dated 12th E'ebru ary 2016 . 18. 2 Pccused persons dispute having made, signed aid uttered the said documents to the Ministry of Laids . The question to be decided therefore is whether the same documents tell a lie about themselves. The cnswer is also certainly affirmative. 18 . 3 This so because, as regards Pll a,d Pl3 Applications for Consent to Assign, they do tell a lie about t hemselves as they purport to show that they were genuinely issued by Theresa Chileshe Nkonde as Lesse to Anthony Muwisha, Patrick Makanya and Chansa Monje when in fa;t not. J64 - - - ---- 1 8 . 4 ProsecuLion Witness No. 1, Ms. Theresa Chileshe Nkonde, expressly denied having ever executed any Applic atton for Consent to Assign in favour of P.nthony Muwisha, Patrick ' Makanya and Chansa Monje. She further rejected cr,y knowledge of the existence of such applic ation s , and unequivocally • denied having conferred upon Accused No. 1 , Ms . Elizabeth Chileshe Nkonde, cl'ld J>ccused No. 2, Mr. Billington Mosha, any authority whatsoever to initiate or submit the said applications for consent. 18 . 5 Accord i ng to the testimony of Prosecution Witness No. 4, Mr. Watson Phiri , he was conta:::ted on phone by Mr. Billington Mosha ( Accused No. 2) of Mosha and Compa-iy, who sought his profession al services. Mr. Phiri subsequently attended a meeting at Mr. Mosha' s office located al. Plot No. 131, Manda Hill Road, Olympia, wh ere he was informed that his client /'ccused No. 1 intended to initiate subdivisions on Lot No. 3270/M situated in Ibex Hill, Lusaka. Mr. Phiri further a::: knowledged th at he was responsible for lodging the Applications for Consent to Assign , togethe r with supporting documentation , with t he Ministry of Lands. J65 18 . 6 Prosecution Witness No. tendered into evidence the Applications for Consent to Assign, together with their respective atta::;hmenLs, re l ating to the subdivisions of the properly. In respect of Subdivision A, he produced a document bearing the names of P rosec uti on Witness No. l and kl thon y • Muwisha, marked as Exhibit Pll-t he docu ment r eferenced under Co\_\nt 5. Regarding Subdivision B, he produced Exhibit Pl 2, which bears the name of l?Wl along with t hose of Chrispin a,d Mary Moone. E'or S ubdivision c , he presented E:xhibi t Pl3, bearing the names of PWl aid Patrick Makanya the document referenced under Co unt 7. Upon being re ferred to the Power of Attorney (Exhibit P4) c11d Exhibit Pll, pertaining to Count 5, Pvl4 confirmed that the National Registration Card number appearing on both documents was identical and had been furnished to him by Mos ha and Company. 18 . 7 Upon careful examination of Exhibits Pll c11d Pl3, it was observed that the National Registration Card number atta::;hed therein is NRC No. 810818 /46 /1, which corresponds with the NRC appearing produced as Exhibit P3. In light of my prior finding that Exhibit P3 constitutes a forged document, I a::;cordingly regard the presence of the said NRC number o n Exhibits Pll a,d P13 the two queried documents as indicative of their question able authenticity. J66 1 8 . 8 In r esolving this dispute , I am again guided by t he ho l d i ng of t he Supreme Court in the - case o f Ch cnda Simwab a case (supra) 18 . 9 I remind mysel f of the def i nition i n s ection 344 of t he Penal Code which d e f i nes forgeries as al ready alluded to in t h ree • c ategories and include ; 1 . making a document which tells a lie! about itself, 2. alteration of a document aid; 3. introducing contents into a doc ument wi t hout author ity which ch a.ges the effects of the document. 19 . 0 In the case i n casu, the Stat e allege that a person signed, aut hori zed an d approved t he Applications for Consent t o Assign t h an Theres a Chi le s h e Nkonde. 19 . l I must note that, whosever th e person was , this person made a document wh i c h to ld a li e about i tse l f . 19 . 2 Having examined the documen t s i n question , namely Exhibits Pll and P l 3 , I noted that both Appli c ation s for Consent to Assign were submitted under the name of one Theres a Chi l es he Nkonde (PWl ), wh o had expressly den i ed ever authori n g or grcilting authority to any i ndivi dual t o aut hor said appl icati ons on her be h alf . Furthermore, I o bserved th at both application s bear National Registration Card 810818/46/1 (P3 ), which corresponds to Exhi bi t P3, previously determined to be a for ged document. J67 19. 3 I do hold that indeed the Applications for Consent to Assign (Pll) and (Pl3) do tell a lie about themselves in that they both do purport to show that . they were genuinely authored, a1d authorized by Theresa Chileshe Nkonde when in fa::t not. 19 . 4 Consequently, • the doc u ments in COUNTS 5 and 7, produced as exhibits marked am strongly guided and do form my opinion that Pll' and P13 Application s for Consent to Assign are forged documents within the mea1ing of the law. 19. 5 (b) Identity of the person or persons that mcde them or simply put the identity of offenders The second element of thi s offense as I see i t is the identity of the persons that forged the documents herein . In this case the prosecution has alleged that i t is the now Accused persons who forged the documents in Counts 1, 3, 5 end 7 herein . The question to be resolved therefore is whether or not there is sufficient evidence to prove this allegation to the required standard. J68 19. 6 Reverting to the evidence i n thi s matter I wish to point out from the outset that there i s no direc t evidence of any eye witness who saw the Accuse<.;! pe r sons forging the Power of Attorney (P4 ), National Registration Card Number 810818/46/1, The Two Application for Consents to Assign in question or at the very least any other person forging i t . However, what • apl?ears to connect J.lccused Person number one and tl,o to the forgery is the follo1,ing evidence . 19. 7 Prosecution Witness No. 2, Mr. Brian Chinyama Kapalu , testified that he was engaged by Pccused No. 1, Ms. Elizabeth Nkonde , and Ace used No. 2, Mr. Billington Mosh a, for the p ur pose of preparing subdivisi ons on Lot No. 3270/M, situated in Ibex Hill , Lusaka. He stated th at he was i nitially introduced to Ms. Nkonde qy Mr. Patrick Makanya, an i ndividual who had expressed an in.t enti on to purchase a portion of the said property. J69 19. 8 Mr. Kapalu proceeded to explain t he procedural requirements for undertaking the subdivision. On the follo11ing day, Ms. Nkonde took him to the offic®, of Mr. Mosha ( A2 ), where he was for mally introduced as the surveyor assigned to carry out the subdivision work. Ms. Nkonde informed him th at he would collaborate with Mr. Mosha, who would be respon sible for pr?viding all requisi te documentation . Mr. Kap alu fur ther testified th at Mr. Mosha furnished him with a certi fied copy • of the Certificate of Ti tle, a certified copy of the Nation al Registration Card of the registered owner, and a certified letter of con sent, all of which were certified by Mr . Mos h a himself. 19. 9 Upon revi ewing t he documents, t he 1-1itness observed that the t itle deed bore the name ' Theres a Chi les he Nkonde ' . He subsequently raised this with Accused No. 1, Ms. El izabeth Nkonde, and Accused No. 2, Mr . Billington Mosha. He was informed by Mr. Mosha that the registered owner of t he property was Eli zabeth ' s mother, who was purportedly out of the country at the t i me . J70 20. 0 The witness advised that legal representation would be necessary to a:::t on behalf of the registered owner. In response , he was informed t h .;t Mr. Mosha ( A2 J had been engaged to prepare the letter of consent on behalf of Ms . Theres a Chileshe Nkonde, the title holder, whom he had not met personally but with whose daughter, Ms . Elizabeth Nkonde, he • had been in conta:::t. 20. 1 The witness testified th at he was infor med by Accused No. 2, Mr. Billington Mosha, that a Power of Attorney had already been prepared in respect of the transa::: tion. Relying on this re presentation crid being satisfied that all requis ite documen ts were in pl a:::e for s it uat ions where the t itle holder is absent, he proceeded to carry out his assigned duties. He i denti fied Exhibit P3 as t he Nati.on al Registration Card certified by kcused Na . 2, the Power of Attorney marked as Exhibit P4 , and two letters iss ued by Mesh a and Company, marked as Exhibits P6 a-id P7, all of which had been provided to him by Mr. Mosha. J71 20. 2 The witness testified that, in view of the unavailability of the registered owner of the property, he proceeded to execute his duties based on a letter, provided to him by l\ccused No. 2, Mr. Billington Mos ha. lie stated that he relied upon the representati ons contained in th at letter, which i ndicated • t h at Mr. Mesh a had been duly retained to a::t on behalf of Ms. Theres a Chileshe Nkonde. 20. 3 The evidence of P~l4 Watson Phiri a Freelance Agent was that he was phoned by Mr. Billington Mosha ( A2) of Mosha and Compan y who needed his services, he went to P..2 ' s office located at Plot 131 Manda Hill Road, Olympia 11ho informed that his client (Al) needed to create subdivisions on Lot 3270 /M Ibex Hi 11 Lusaka 20 . 4 Prosecution Witness No. 4 testified th at, on or abcut the 30th day of January 2015, he 1-ias instructed by Accused No. 2, Mr. Billington Mosha, to register a Power of Attorney and to submit an application for a duplicate Cert ificate of Ti tle. Mr. Mosha informed him that the original title deed, relating to vendor Ms. Theres a Chileshe Nkonde ( Prosecution Witness No. 1), had allegedly been mispla::ed. J72 20. 5 PW4 f urther stated that he proceeded to lodge the Power of Attorney ( marked as Exhibit P4 ), the application for the duplicate title, together wi t h all a::companying documentation, simult cneously through a lodgment schedule filed under th e name of Mesh a and Company. In support of his • testimony, he identified the said Power of Attorney P4, the lo_dgment schedule, and the atta::hed documents, whic h were collectively produced and marked as Exhibit PlO. 20. 6 This witness reaffirmed that all documentation req uired for registration and application was provided to him by Accused No. 2, Mr. Billington Mosha, of Mosha and Compcny. He further testified that he proceeded to lodge the Applications for Consent to Assign, together with their respective atta::hments, with the Ministry of Lands. In support of this , he produced the Application for Consent to Ass ign and a::companying documents for Subdivision A, bearing the names of Prosecution Witness No. l and Anthony Muwisha, marked as Exhibit Pll ; for Subdivision B, bearing the names of l?Wl and Chrispin and Mary Moone, marked as Exhibit 1?12 ; and for Subdivision C, under the names · of PWl and Patrick Makan'ya, marked as E:xhi bi t Pl3 . Upon being referred to t he Power of Attorney (Exhibit P4) and Exhibit Pll, he confirmed that the National Registration Card number appearing on both documents was identical and had been provided to him by Mosha and Company. ' 20 . 7 Prosecution Witness No. 5, Ms. Kesha Jere, a Legal Officer at the Ministry of Lands, testified that her office received Applications • for Consent pertai.ning to the proposed subdivisions of Lot No. 3270/M. She stated that the said applications, along with their respective att a:::hments, were duly scrutinized and subsequently approved. She confirmed t h at all the applications i n question had been lodged by Mosha and Company, and she positivel y i d entified Exhibits Pl l , Pl2, and P13 as forming part of those submissions. 20. 8 I did observe t hat P~l2 and PW4 , t hese wit n esses all iden ti f ied a:::cused persons from the dock as the persons that gave t hem the Power of Attorney P4 , the Nation al Registration Card Number 810818/46 / 1 P3, the two Application for Consent to Assign 1?11 and P13. 20. 9! take cognizance of the feet that Accused No. 2 is an Advocate and a partner pr a:: ticing under the firm name a-id style of Mosha end Company. He assei;-ted th at his sole mandate, as retained by Accused No. 1, was to fa::ilitate the subdivision of Lot No. 3270/M end to manage all conveyancing matters pertaining to the said property. In f urtheranc e of t his • rn~date, he engaged the services of Prosecution Witness No. 4, Mr. Watson Phiri , a pe rson whom he routinely consults on conveyancing matters . 21 . 0 Given t hat Accused No. 2 is a legal pra::titioner, it was incumbent upon him to exercise due diligence prior to a::cepting instructions from Accused No. and not PWl, especially in c i rcumstances where . Accused No. 1 disclosed that the registered owner of Lot No. 3270/M was Prosecution &vitness No. 1, Ms. Theresa Chileshe Nkonde. Before drafting and issuing the letters dated 17th March 2016 and 15th November 2016, marked respectively as Exhibits P6 and P7 wherein he represented to the Commissioner of Lands that he had been retained by Ms . Nkonde when he had no such instructions, and before providing t he Power of Attorney ' to Prosecution Witness No. 2 and Exhibit P4 for purposes of subdivision, application for a duplicate title, and procurement of consent to assign , i t was incumbent upon him to first satisfy himself of the following J75 21. l ( a) He ought to have verified whether his purported client, Ms. Theresa Chileshe Nkonde (Prosecution Witness No. 1 ), had in fa::t executed tl'\e Po wer of Attorney presented to him, and confirmed t hat she was indeed the donor of said inst.rumen t . • ( b) He should have ascertained the leg al and mental c apa:i ty of the donor, PWl, to grant a Power of Attorney. This includes making inquiries to determine whether she fully comprehended th at the authority conferred by such an instrument would permit the appointed attorney to exercise full control over her property and affairs, with the same legal effect as if exercised personally by the donor. (c) He was required to assess the suitability of the proposed attorney, namely Jlccused No. 1, to a:::t in such a fiduciary capa:::ity. This entailed satisfying himself as to her trustworthiness and re li abi lit y, as well as probing the donor on her rationale for conferring such bro ad powers. Furthermore, he ought to have confirmed that the intended attorney possessed the requis ite mental c apa:::i ty to a:::cept and perform the duties arising from the Power of Attorney. 21. 2 Section 52 ( a) of t he Legal Practitione rs . Act Chapter 30 • 21. 3 provide No practi tioner shall- take inst r uctions in any case excep t from the party on whose behalf he is retai n ed or some person who is the reco gn i sed agent of such party, or some servant, relation o r friend authorised by the party to gi ve such instructions ; or I observed th at in the l etters marked as Exhibits P6 and P 7, authored by . Ace used No. 2, it is re presented th at he h ad been retai ned by Ms. Theres a Chi le she Nkonde ( Pros'ecution Witness No. l ). However, when she di d not do so, he certified P3 as a true copy of PW l ' s NRC wi tho1.1t having l ooked at t he o ri gin al , in his defence, . Accused No. 2 conceded that he had nei ther spoken to nor been retained by Pvll at any point. He claimed to have attempted to contact her, stati ng that her phone was engaged, but under cross - examination, he admitted that he n ever successfull y communicated with PWl at any st age during the tr ans a::tion . J77 21. 4 With respect to Acc used No. 1, i t is noted that she is the biological daughter of Prosecution 1'1itness No. 1. , . She had full knowledge that she had not been gran ted any • Powe r of Attorney by her mother authorizing her to effect s ubd ivi sions of, or to dispose of porti ons of, Lot No . 21. 5 21. 6 3270/M. F urt hermore, Pccused No. l was aware that the facial image appearing on t he National Registration Card beari ng number 8 10818 / 46 / 1 (Exhibit P3) did no t depict her mother, and she equally knew th at s ai.d NRC h ad not been made avail abl e to her by Prosecu t ion Witness No. 1. By t his evidence can it then be said that i t was kc us ed Persons th at for ged the said documents? I n answering this question, I am gui ded by the holding of t he Supreme Court in the Case of PATTERSON NGOMA V THE PEOPLE (1978) z. R. 369 (S . C. ), In th at case i t was held i nter alia that ; "The mere possession of a docurnent proved to be a forgery does not necessarily le a::i to the inference that the person in possession of it forged :i,t; i t is however perfectly valid for a court to draw the inference, as the only reason able inference from all the facts in a case, th at the person in possession of a forged document end who actu ally utters i t e ither forge d J78 i t or was privy to the forgery, ind i n th at event a conviction on a count of forgery is proper. " 21. 7 By this holding, it is safe to state that it is absolutely , , compe t ent for the trial court to draw an inference of forgery from evidence of possession that is to say the person who had • custody of the document forged the documents provided that it is• the only i nference th at can be drawn from the circumstances . 21. 8 Reverting to th is case, i t i s an established fact that Jlccused No. l and 2 caused the presen tation of the forged Po~1er of Attorney, marked as Exhibi t P4, and the falsified Nation al Registration Card bearing number 8 10818/46/1, marked as Exhibit P3, to Defence Witness No. 2, Mr. Chibonga Mubanga, t hrough an intermediary i de n tified as Manjimela. I t is further a matter of fact that /'lccused No. 2 used t he same forged documents to process and submit the Applications for Consent to Assign marked as Exhibits Pll and Pl3, which he there after presented to Prosecution Wi tn esses No . 2 and No. and caused t he preparation and issuance of two .letters addressed to the Ministry of Lands P6 and P7, falsely re pre sen ting therei n th at he had been duly retained by Prosecution Witness No. 1, when i n fact n o such retainer existed. J79 21 . 2 IL is sufficient from the foregoing to draw a1 inference as it establishes clear evidence of knowledge on the part of the a:::c used persons th at the Power of Attorney (Exhibit P4 ), the National Registration Card bearing number 810818/46/1 ( Exhibit P3 ), and the two Applications for Consent to Assign (Exhibits Pll and Pl3), were forged documents . Moreover, in l ight of Lhe conduct of kc used No. 1, who is the biologic al daughter of the registered property owner, Prosecution Witness No. 1 , i t is evident th at she was aw are th at no authority had been granted to her through a valid Power of Attorney to effect subdivisions or to dispose of portions of Lot No. 3270/M. She further knew that Exhibit l'3 did not constitute her mother's genuine National Registration Card, and that Prosecution Witness No. l had not authorised or sanctioned the issua1ce of the said Applications for Consent ..,. to Assign . J80 21. 3 Accused No. 2, being a legal pra::ti ti oner, proceeded to a::t i n re l ation to the transa::tion without first verifyi ng the ' authenticity and authority of the Power of Attorney, purportedly issued by Prosecution Witness No. l. He undertook • such a::tions in the absence of a valid retai n er f rom PWl. Furthermore, his law f i rm prepared documentati on pertaining to the tr ans a::tion end lodged the Consent Applications in the name of PWl who had not retained him, which applications were subsequently presented to Prosecuti on Witnesses No. 2 and No. 4 for the pu rpose of f a::i l i tating their respective roles . 21. ,1 This a::t certainly leads only to the human possibility of the fa::t that no one else forged the Power of Attorn ey, National Registration Card Number 810818/46/1, the two Appl i cations for Consent to Assign but a::cused person number one and two or at t he very least they were privy to the forgery. J81 21. 5 Accordingly, I am satisfied beyond reasonable doubt that Accused Persons No. 1 and No. 2, a::ting jointly and in concert with others unknown , were responsible for forging the Power of Attorney (Exhibit l?4 ), the National Registration Card • bearing number 810818 /46 /l (Exhibit P3 ), and the two Applications for Consent to Assign {Exhibits Pll and Pl3 ). The cumulative effect of the evidence presented leads to the inescapable inference that Accused Number l and Accused Person Number 2 had full knowledge of, and were complicit in, all the tr-c11sa::tions forming the subject matter of Counts 1 , 3, 5, and 7. I a::cordingly make a fin ding to t h at effect. 21 . 6 Intent of the .llccused at the time of forging the documents The next element of this offense to be determined as already identified is the intent of the Accused persons at the time they forged the documents herein . I t suffices to mention here that the mens rea for offense of forgery is intent to dec eive or d e fraud. It follows therefore in order to constitute an offence of forgery i t is not sufficient to prove forgery of a document only but the prosecution must also prove that the offenders intended to deceive or defraud at . the time of the forgery . , J82 21. 7 I must mention here that the Penal Code does define the phrase "inten t to deceive" which I have already alluded to in my analysis of the law and for; the avoidance of doubt I will rest ate the definition as provided for in section 444 A the Pe n al Co de. It is defined as follows ; • Jin intent to deceive exists where one person induces mother pe:tson - ( a) to believe th at a thing is true which is false, a'.ld which the pe..rson pra::ticing the deceit knows or believes to be false; or (b) to believe a thing to be false which is true, a'.ld which the person pr a:: ticing the deceit knows or believes to be true; a'.ld in consequence of having been so induced does or omits to do a'. I a::t whether or not my injury or loss is thereby suffered by a'. IY person. 21. 8 It follows therefore that i n order to constitute intent to deceive or defraud under paragraph (a); the person must not o nly induce another to believe that the forged document is true but must also know or believe that the document wJs faj.se while in paragraph (b) , the person need not only induce ano,ther to believe a false thing to be true whic h is false but the person must also know or believe th at the thing is true. J83 21 . 9 Further, the prosecution must also prove the consequence of t hat inducement that is to say the person so induced did an c:c:t as a result of the indu~emen t or omitted to do an c:c: t t h ough they need not prove any injury or l oss suffered. 22 . 0 I must also mention here that in tent obviously relates to • what is in the mind of a person t h us it legally permissible to "infer intent, the c:c:cused persons defence were denials of their i nvol ve ment in the forgery, uttering and t heft of t h e money. 22. 1 Upon due considerati on of the evidence adduced by all prosecution witnesses, I had occasion to ex amine the partic ul ars of Counts 1, 3, 5, and 7 . It i s evident that the overt acts att r ibuted to Accused Number one include the possession of a Power of Attorn e y and Nation al Re gistration Card bearin g number 810818 /46 /l , notwithstanding he r knowle d ge th at said documen t s were not genuinely executed, endorsed, or authorized by Ms. Theresa Chileshe Nkon de or the Depart me nt o f Nati on al Regi strati on , Passpor t and Citizenship. Fu rthermore , Jlccused No . 2 was also possessio n of the said documents and knowingly proceeded to make and submit Applicati ons for Consent to Assign wi thout lawf ul .• authority from P~H, which applicati ons were there after processed a1d approved by the Minis try of La1ds. J84 22. 2 lvhen considered cumulatively, the totality of the evidence irresistibly leads to the conclusion th at Accused No. 1 and 2, a::ting in concert with other persons unknown, intended to mislead and induce the Ministry of Lands into effecting the subdivision of Lo t No. 3270/M and issuing Consents to Assign i n respect of the resu lting subdivisions. That objective was, • in . fa::t , a:::hieve d. It is further evident that , but for the timely ret urn of Prosecut ion vii tness No . l to Zambia, the fraudulent transa:::tions on her land would have persisted unabated . . - 22. 3 I am a::co rdi ngly satisfied t hat the presentation and preparation of the Powe r of Attorney ( P4 ), Nati on al Registration Card bearing number 810818 /46 / 1 (P3), and t he two Applic ations for Consent (P l l) and (P l 3 ) refe renced under Counts l , 3, 5, and 7 .by Accused Persons No. l and No. 2, were a::ts calculated to deliberately mislead offici als at the Mi n is try of L ro ds into f a::ili tating the subdi vi sion of Lot No. 3270/M and i ssuing Cons e nt to Assign . The req uis ite inten t to deceive has been es tabl ished to t he standard required by JBS 22. 4 I must state th at the success of the offences of UTTERING FALSE DOCUMENTS in this case is largely dependent on the offences of FORGERY as t hey all relate to the same documents. 22. 5 In light of my prior findings that the documents referred to • under Counts 1, 3 , 5, having established that and 7 constitute false documents , and /lccused Persons No. 1 and No. 2 were ful1.y aware of the falsity of these documents , I am further satisfied that they knowingly used the saLd documents with the intent to induce the Ministry of Lands to fa:::ilitate the subdivision of Lot No. 3270/M and to grant Consent to Assign in respect of the resultant subdivisions. This conclusion is supported by the testimony of Prosecution Witnesses No. 2, Mr . Brian Chinyama Kangulu, and No. 4, Mr. Watson Phiri , 1,ho both confirmed that they had been engaged by /lccused person number l and 2 and were , presented with the forged documents for purposes of executing thei r respective professional duties. Notably, PW2 confirmed that Mr. Mosha furnished hi m ~1i th a certified copy of the Certificate of Title, a certified copy of the National Registration Card of the registered owner, c!'ld a certified letter of consent, all of whic h were certified by Mr. Mosha himself . PW4 affirme d that he prepared the Applications for Consent while at the offices of Accused Number 2 and subsequently lodged said applications with t he Ministry of Lands . J86 22 . 6 Certainly, there is sufficient evidence proving the offences of UTTERING OF FALSE DOCUMENTS to the Ministry OF Lands as such I find that Count 2, 4 , 6 and 8 has been proved beyond all reasonable doubt in respect of a::;cused person number one and two. For avoidance of doubt , I wish to rest ate i n th i s case i t is a fa::t that accused person number one di d use the false documents the Po~1er of Attorney which s he knew was not authorised by PWl, NRC Number 810818 /46 /1 which she had knowledge did not belong to PWl , she presented t he two documents ~ as atta:::hments to complete the application for a duplicate title, (PS), application to subdivide ( P8 ) Application for Consent to Assign to the Ministry of Lands purporting to show th at they were signed, approved and authorised by the authorized s i gnatories when in f a::t not. 22. 8 These documents were presented to Ministry of Lands by A2 to i nduc e them to believe th at they were genuinely signed a1d issued by Theresa Chileshe Nkonde and the Department of National Registration , Passport and Citizenship when in fa:;:t not and the Ministry acted on these documents believi ng that they were genuinely issued by the Theresa Chileshe Nkonde ' a 1d Department of Nati on al Registration, Passport and Citizenshi p a1cl completed the serviced applied for . J87 22. 9 I do therefore need not stretch my mind in order to satisfy myself th at the counts above have been proved beyond all reason able doubt and as suc h, I .find a::c used person one and two guilty in counts 1, 3 , 5 and 7 fo r the offences of Forgery contrary to 34 2 and 34 7 of t he pen al code . • I find a::cused person numbe r one guilty in counts 2 , 4 , 6 end 8 o'f Utte ring a F alse Doc u men t contrary to section 352 of the Pen al Code and I cecordi n g ly con v ic t her a::cordingly. I find a::cused person number two guilty in counts 4 , 6 and 8 of Uttering a False Document contrary to section 352 of the Penal Code and I cecordingly convict him a::cordingly. 23. 0 OFFENCE OF GIVING FALSE INFORMA!I'ION TO A PUBLIC OFFICER 23. 1 to reemphasi ze t his offence i s created under Section 125 of the Pen al Code Ch apter 8'7 of the Laws of Zambia which en a::ts : Whoever gives to a1y person employed in the public service aiy informacion which he knows or believes to be false, intending thereby to cause or knowing i t to he likely th at; he will thereby cause such person- ( a) to do or omit cnything which such person ought no t to do or omit i f the true state of fa::ts respecting which such i nformation is given were known to him; or J88 (b) to use the lawful power of such person to the injury or mnoy mce of a'ly person; is guilty of a misdememour md is liable to imprisonment for ' six months or to a fine of one thousmd md five hundred pen al ty uni ts or to both . • 23. 2 Thus , to prove Count Nine end Ten, th e Prosecution ought to es tablish that : i. That a::::c used person number t wo gave false information to a public officer namely the Co mmissioner of Lands at t he Ministry of Lands s tatin g t h at Theresa Chileshe Nkonde retained him to cet on her behalf to s ubdi vide property number L/3270/M in Ibex Hill. ii. That the a::cused kne w or believed that the information given was false and the public offi cers would omit to do th at whi c h he or she is to do, iii. Th at the public officers re li e d on such i nformation s ubmi tted and omi tted to do th at which i f the true st ate of f a:::; ts were known to them, they would not have subdi vided property number L /3270 /M si t uated in I bex Hi 11. J89 23. 3 It is pertinent to st ate th at the success of the two counts under considerat ion is i n extricably l i nke d to the establishment of the offence ,of forgery and uttering. It h as been concl us ively demonstrated that J.lcc used No. 2 authored two l e tters addresse d t o the Mi nistry of Lands PG and P7 • wherein he fal s ely re presen ted th at he had been retained by Prosecution Wi t ness No. 1. despite having full knowledge t hat he had neither been retained nor authorised by her to conduct cny tr ansactions pertaining to her land. 23 . 4 Fr om these fac ts, the in ference is drawn th at /'.\c::c used No . 2 was aware at t hat t i me that he had never been retained by PWl t o act on her beh alf, he had never spoken to her confirming the i nst ruc t ions as he i ndicate d in the t wo letters dated 1 7th March 2016 and 15th November 20 16 (PG) and (P7 ), P~l 2 affirmed having been given t he two letters of consent by A2 which ~1ere lodged at the Ministry of lands . A critic al e lemen t th at the prosecution must e stabl ish for these counts to succeed is that Jlccused No. 2 kne11 or believed the information he provided was f aJ.se, and t hat such misreprese nt ation was capable of inducing public officers t o omit pe rf orming their lawful duti es . J90 23. 5 The to tal ity of the evidence presented by the State es tabl ishes th at Accused No. 2 possessed the requisite mens ' rea at the material time. Specifically, it is clear that, i n lodging the two letters 1?6 and 1?7, he either knew or believed • t h at he not been retained by PWl to a:::t on her behalf to subdivide Lo t 3270/M Ibex Hill. His rel i ance on Accused Number 1, without any attempt to verify their authenti city or obtain direct confirmati on f rom the purported c l ient (l?Wl ), reflects a conscious disregard of the trut h an d amounts to wil lful blindness . Accordingly, the n ecessary e l ements for t he offences unde r Counts 9 and 1 0 has been established to the legally required standard. , J91 23. 6 I find that the prosecution has proved beyond reasonable doubt th at a:;cused person number two gave false information to public officers in counts 9, and 10 and I find the a:cused pe rson number two guilty of the offence charged namely Giving False Information to a Public Officer Contrary to Section 1 25 of the penal code chapter 87 of the Laws of Zambia and I • Con vie t him a:cordingly. IRA 14 days. ·- J DATE:D T~lE: - ---- -- --- --DAY OF - ---- -- --- - 2025 J92