The People v Chitotela (HP 1 of 2022) [2022] ZMHC 11 (10 August 2022)

— IN THE HIGH COURT FOR AT THE ECONOMIC AND F CRIMES COURT HOLDEN AT LUSAKA (Criminal Jurisdiction) ANG BITC Gp MIC 4 Fane e * a c e n : t CRE THE PEOPLE V APPELLANT RONALD KAOMA CHITOTELA RESPONDENT BEFORE: Hon. Mr. Justice E. L. Musona Hon. Lady Justice S. Wanjelani Hon. Mr. Justice C. Zulu on 10 August, 2022. For the Appellant: Mr. E. Mbewe (Anti-Corruption Commission) For the Respondent: Mr. B. Mwelwa of Messrs Linus E. Eyaa and Co. RULING MUSONA J. DELIVERED THE RULING OF THE COURT. R1 Case referred to: 1. Anuj Kumar Rathi Krishna v The People SCZ Judgment No. 19 of Legislation referred to: 1. Section 80 of the Anti-Corruption Act No. 3 of 2012 of the Laws of Zambia 2. Section 324 of the Criminal Procedure Code Chapter 88 of the Laws of the Republic of Zambia 3. Section 71 (1) of the Forfeiture of Proceedings of Crime Act No. 19 of 2010 of the Laws of Zambia. 4. Section 322 of Chapter 88 of the Laws of the Republic of Zambia. This is a Ruling on a preliminary objection by the Respondent for an order to dismiss an appeal for want of jurisdiction. The brief background in as far as this application is concerned is as follows: The Respondent was charged with Two (2) counts of possession of Property suspected of being Proceeds of Crime contrary to Section 71 R2 of the Forfeiture of Proceeds of Crime Act No. (1) of 2010 of the Laws of Zambia. What is cardinal to note is that when the Respondent appeared before the Subordinate Court at Lusaka, the learned Magistrate discharged him of both counts. According to the lower court, the discharge of the Respondent was on the footing that there was an undertaking by the Anti-Corruption Commission (ACC) not to prosecute the Respondent in terms of Section 80 of the Anti-Corruption Commission Act No. 3 of 2012. That section provides as follows; 80 (3) The Commission may tender an undertaking, in writing not to institute criminal proceedings against a person who; (a)Has given a full and true disclosure of all material facts relating to past corrupt conduct and illegal activity by that person or others; and (b)Has voluntarily paid, deposited or refunded all property the person acquired through corrupt of illegal activity. (4) A settlement or undertaking under this section shall be registered in court. R3 Aggrieved with the decision of the court below to discharge the Respondent based on the undertaking, the Appellant lodged an appeal in the Economic and Financial Crimes Court a division of the High Court. The Grounds of Appeal are as follows; 1. The trial court erred on point of law by discharging the Accused person herein when it held that arraigning the accused after a settlement would amount to double jeopardy before invoking Section 277 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia. it The trial court misdirected itself on a point of law was when tantamount to double jeopardy as provided for under Section 138 of the Criminal Procedure Code Chapter arraigning accused held that the 88 of the Laws of Zambia when no plea was taken before any other court of competent jurisdiction for purpose of trial. The trial court below misdirected itself to go into the the giving without settlement the merits of prosecution an opportunity notwithstanding that the defence submission was anchored on Section 138 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia. Other grounds to follow. R4 Following this appeal, the Respondent filed summons for an order to dismiss appeal for want of jurisdiction based on the following objections: 1. That this Honourable Court has no jurisdiction to hear and determine this Appeal in its current form when the Undertaking dated 24" June, 2019 not to institute Criminal proceedings made by the Anti-Corruption “the Respondent”) Commission (hereinafter pursuant to Section 80 of the Anti-Corruption Act of 2012 has not been set aside before the Criminal Proceedings against Number 3 called instituting any Applicant; and That this Hounourable Court has no Jurisdiction to hear and determine this Appeal in its current form as it is incomplete as the Appellant has not demonstrated that the Application to appeal out of time was made as the said Application to appeal out of time ought to be part of this Record of Appeal. What we discern from this Summons as well as the affidavit in support thereof, is the argument that this Court has no jurisdiction to hear and determine this appeal. It follows that if we find that we have jurisdiction we should proceed to hear and determine the RS d that this court has no jurisdiction to hear ss the appeal for want of is foun s appeal, then to disml it eal. But if app and determine thi jurisdiction. There are two (2) objections in the summons for an order to appeal for want of jurisdictio two (2) objections seriatim. The first objection reads as follows: n. We have decided that we discuss these dismiss Appeal That this Honourable Court has no Jurisdiction to hear and determine _ this Undertaking dated 24 June, 2019 not to institute Criminal the Anti-Corruption Commission proceedings made by (hereinafter called “the Respondent”) pursuant to section current when_ form the its _in_ 1. 80 of the Anti-Corruption Act Number 3 of 2012 has not been set aside before instituting any Criminal Proceedings against the Applicant. We have studied this first objection. What we note from this objection is that the interlocutory remedy being sought by the Respondent, is actually Ground one (1) in the Notice of Appeal. Delving into this R6 the merits and demerits of this regard we are well guided by the In that case, will in essence be dealing, with of the Appeal, In objection Ground one (1) case of Anuj Kumar Rathi Krishna v The people (3). the Supreme Court when hearing #9 appeal refused to discuss the merits of the m Court stated thus: application for pending bail yin appeal. The Supreme t to go into the merits of the main appeal he merits of the [bail that it will be if we delve into the merits of the al before us. We hold the view, “we are reluctan and we would rather concentrate on t pending] appeé prejudicial to both parties grounds of appeal filed in support of the main appeal.” drag party court should by way of summons into even not A the appeal. We should cross a discussing the issues pending in bridge, but only when we reach it. We defer this objection to the substantive appeal. The second objection reads as follows: 2. That this Honourable Court has no Jurisdiction to hear and determine this Appeal in its current form as it is incomplete as the Appellant has not demonstrated that the Application R7 What we disc arguing that the Appellant ap leave of this court. | t ern from the above quotation is tha pealed to this cou is trite law that when 0 to within whic t the Respondent is rt out of time without ne wishes to appeal after the intending seek Leave of Court permitting the intending peal. No appeal shall be filed out of time without Leave to the extent that it would have been filed appeal, period the h of expiry the appellant ought to Appellant to ap of Court, and if filed, without Leave of Court, such appeal shall be incompetent. The question which we now ask ourselves is, “did the Appellant file their appeal out of time without Leave of Court?” R8 for leave to appeal out of time in the prescribed Form 33 of the Criminal Procedure Code Chapter 88 of the Laws Zambia. We have looked at Section 324 of the Criminal Procedure Code Chapter 88 of the Laws of the Republic of Zambia. That section reads as follows: “324. (1) Where the period has expired within which, under section three hundred and twenty-two, an appeal shall be entered, an appellant may nevertheless make application in the prescribed form for his appeal to be heard and shall in support of any such application enter an appeal, and the form of application shall be attached to the Notice of Appeal when that Notice is filed with or transmitted to the Court below and the appellate court.” The Appellant has vehemently argued that they complied with the said Section 324 of the Criminal Procedure Code Chapter 88 of the Laws of the Republic of Zambia, and the notice of appeal and the application to appeal out of time were produced and marked as “SM1”. These were duly stamped with the Seal of the court below, R9 trans dated 3rd June, 202 their said affidavit further t below and issing Page: That ared by the cour 2. The Appellant in averred that the record of appeal prep mitted to this court has a m this can be seen No. 3 described as the with the number of pages being Roman numeral The Record of Appeal i from the Index of the record of appeal at Item “Notice of Appeal” “iy — vi” on the Record of Appeal. has no page vi and skips to Arabic numeral ‘1’ on the Index of the record of appeal. We have found that this explanation is on firm ground and have at the application for found no reason to doubt it. We are satisfied th is the court leave to appeal out of time was lodged properly, but it below which did not file it, and this created a wrong impression that the Appellant filed their notice of Appeal out of time without leave of which is item No. 4 tself, however court. Since it is now clear that the Appellant actually filed an application for Leave to Appeal out of time, the Respondent’s argument fails and is accordingly dismissed. R10 In conclusion, and for avoidance of doubt, since the application to appeal out of time was properly filed together with Notice of Appeal, we exercise our discretion pursuant to the proviso in Section 322 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia to grant the application and hear the Appeal. DELIVERED AND SIGNED AT LUSAKA THIS THE 10™ DAY OF AUGUST, 2022 Micon HON. MR. JUSTICE E. L. MUSONA HIGH COURT JUDGE HON. MRS JUSTICE|S. M. WANJELANI HIGH COURT JUDGE HON. MR. JUSTICE C. ZULU HIGH COURT JUDGE Ril