Mulundika v Director of Public Prosecutions [1969] ZMCA 5 (18 March 1969)

MULUNDIKA v THE DIRECTOR OF PUBLIC PROSECUTIONS (1969) ZR 39 (CA) COURT OF APPEAL 30 SKINNER CJ, DOYLE JA, EVANS J 18th March 1969 Flynote and Headnote [1] Courts - Court of appeal - Jurisdiction - Suspension of sentence imposed by lower court - Section 14 (3) of Court of Appeal for Zambia Ordinance construed. 35 The Court of Appeal can neither suspend the operation of a sentence nor bring a suspended sentence into operation. [2] Criminal procedure - Suspension of sentence - Power of court of appeal - Section 14 (3) of court of Appeal for Zambia Ordinance construed. See [1] above. 40 1969 ZR p40 SKINNER CJ Statutes construed: (1) Criminal Procedure Code (1965 Cap.7), ss. 14 A 300 (2) Court of Appeal for Zambia Ordinance (Cap.12, No.52 of 1964), s.14 (3) Judgment Skinner CJ: delivered the judgment of the court. 5 It is alleged on behalf of the People that one Sandford Mulundika has not fulfilled the conditions of an order make under section 14A (1) of the Criminal Procedure Code by this court on the 15th day of August, 1967. The history of the matter is that on the 5th day of November, 1966 10 Mulundika was convicted by the Subordinate Court of the First Class at Lusaka of the offence of theft by a public servant, contrary to sections 243 and 248 of the Penal Code. He was sentenced by that court to a term of seven months' imprisonment with hard labour on each of six counts, and the court ordered that the sentences were to run consecutively. 15 Mulundika appealed to the High Court against sentence, and his appeal was dismissed. He appealed to this court again against sentence, and his appeal was successful to the extent that half of the sentence of seven months on each of the six counts was suspended for a period of three years. The question which now falls for consideration is whether this court 20 has any power to order the suspension of the operation of a sentence of imprisonment. When a court imposes a sentence of imprisonment and suspends the operation of that sentence, it is exercising firstly the power to sentence the accused in consequence of a conviction and secondly the power to suspend the operation of a sentence as provided for in section 25 14A of the Criminal Procedure Code. The section empowers a court to suspend the operation of a sentence imposed by such court after conviction. It is clear from the words of the section that it is the trial court which is empowered to order the suspension of the sentence. We can see nothing in the section itself which would empower an appellate court to make 30 such an order. We must look elsewhere to discover whether an appellate court is empowered to make such an order. Mr Chigaga who appeared for the People has said that the powers of the High Court sitting as a Court of Appeal are to be found in section 300 of the Criminal Procedure Code. The section deals with the powers of that court, both on an appeal from 35 a conviction and on an appeal against sentence. Where an appeal against sentence succeeds, the High Court may quash the conviction passed at the trial and pass such other sentence in substitution therefor as it thinks ought to have been passed by the trial court. In addition, the High Court is empowered by section 300 to make any consequential or incidental 40 order that may appear to be just and proper. An order suspending the operation of a sentence substituted for the sentence of the trial court would be an incidental order, and the High Court when exercising its appellate jurisdiction could make such an order. [1 ] [2] The power of the Court of Appeal on an appeal against sentence 45 is not as extensive as that enjoyed by the High Court. The power of this 1969 ZR p41 SKINNER CJ court on an appeal against sentence is to be found in section 14 (3) of the Court of Appeal for Zambia Ordinance. The subsection reads as follows: "On an appeal against sentence the Court shall, if it thinks that different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law 5 (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal." The Court is empowered to quash the sentence passed at the trial and to pass such other sentence as it thinks ought to have been passed. 10 However, it is to be noted that the words which appear in section 300 of the Criminal Procedure Code namely "and, in any case, may make any amendment or any consequential or incidental order that may appear just and proper" do not appear in section 14 of the Court of Appeal for Zambia Ordinance. In our opinion, the subsection gives this court power 15 to substitute a sentence of imprisonment for that imposed by the trial court, but it does not give the court power to make the ancillary order which a trial court can make by virtue of section 14A of the Criminal Procedure Code and which the High Court can make in its appellate jurisdiction by virtue of the provisions of section 300 of the Criminal 20 Procedure Code. The jurisdiction of this court is that provided for in the Court of Appeal for Zambia Ordinance, and it can only exercise its review of sentences as empowered by statute. No doubt we should have the power to substitute a suspended sentence for the sentence passed by the trial court. 25 The court is not empowered by any statutory or other authority to suspend the operation of a sentence, nor is it empowered to bring a suspended sentence into operation. Consequently, we are unable to make the order which is asked for. Order accordingly 30 1969 ZR p41