Lungu v The People (Appeal No 51/2023) [2023] ZMCA 224 (31 August 2023)

IN THE COURT OF APPEAL OF ZAM BIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: Appeal No 51/2023 WILSON LUNGU APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga, Chembe JJA 2023 and 31st August, 2023 On 22rd August, For the Appellant: Mr. G. K. Mwamba, Messrs Gill & Seph Advocates For the Respondent: Mr. G. Zimba, Deputy Chief State Advocate, Prosecution Authority National JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. The People v Mwiya Lubasi (1981) 310 2. Godfrey Miyanda v. The High Court (1984) ZR 62 to: Legislation referred 1. Anti-Corruption Act No.3 of 2012 of the Laws of Zambia 2. The Criminal Procedural Code Chapter 87 of the Laws of Zambia 3. The Constitution of Zambia {Amendment) . Act No. 2 of 2016 J2 1.0. INTRODUCTION 1.1. The appellant was charged with one count of willful failure to follow applicable law or procedure guidelines contrary to Section 34(2) (b) of the Anti-Corruption Act. The particulars of offence alleged that the appellant and 5 others, on dates unknown but between the 1st day of July, 2019 and 3pt of December, of the 2019, at Lusaka in the Lusaka province Republic of Zambia, being members of the Evaluation Committee jointly and whilst acting with other persons unknown, willfully failed to comply with applicable law and procedure relating to procurement evaluation of Tender Number MOH/SP/032/19 for supply and delivery of 22,500 Health Center Kits, a matter or transaction which concerns Ministry of Health, a Public Body. 2.0. BACKGROUND 2.1. The appellant was subject of a complaint /21, under Cause No. 2SPD/027 which was filed on 19th January, 2021 and withdrawn on the same day. Following the withdrawal of the complaint, the Learned Magistrate acquitted the appellant. The State did not appeal against the said acquittal. 2.2. The appellant was subsequently arrested and jointly charged with others for the offences for which he was acquitted. He then raised a plea in bar of autre fois acquit There was no dispute that an acquittal was entered. The J3 issue the State raised was that the acquittal was irregular considering the manner in which it was entered. 2.3. The trial magistrate found that she could not review the appellant's acquittal as she was of equal jurisdiction with the magistrate who acquitted the appellant. issues She thus referred the to the High Court. 2.4. The matter referred to the High Court was under Cause No. SSPD/015/2022. 3.0. FINDINGS AND DECISION OF THE COURT BELOW 3.1. The Economic and Financial Crimes Divisional Court heard the matter referred to it by the Subordinate Court under Cause No. SSPD/015/2022 and also called for the record under 2SPD/027 /2021. The Divisional Court proceeded to find that it had jurisdiction to review the decision of the court below to acquit the appellant and found that the Order of Acquittal was a nullity as no plea was taken and consequently no criminal proceedings had been instituted. 4.0. GROUNDS OF APPEAL 4.1. Embittered with the decision of the Divisional Court, the appellant filed two grounds of appeal couched as follows: (1) The court below erred in law and fact when it held that it had jurisdiction to review the proceedings under Cause No. 2SPD/027 /2021 notwithstanding was an the fact that there order of acquittal in those proceedings J4 (2) The court below erred and in law and fact when it annulled declared void an order of acquittal under Cause No 2SPD/027 /2021 without due regard to the jurisdictional limit contained in section 338(1) (b) of the Criminal Procedural Code. 5.0. THE APPELLANT'S ARGUMENTS 5.1. The two grounds of appeal were argued simultaneously on the account that they raise one fundamental question of whether in terms of Section 338(1) (b) of the Criminal Procedural Code (the CPC), the court below has jurisdiction to alter or reverse an order of acquittal. 5.2. It was contended that the provisions of Section 338(1) (b) of the CPC is straight forward and needs no interpretation. According to learned counsel for the appellant, the High Court is vested with jurisdiction to review or revise decisions of the Subordinate Court for purposes, inter alia, of satisfying itself of the correctness, legality or propriety of orders passed by the subordinate court. However a perusal of Section 338(1) (b) of the CPC reveals that the revisionary jurisdiction conferred on the High Court is not unlimited as it does not extend to an order of acquittal passed by a Subordinate Court. 5.3. It was learned counsel's further contention that Section 338 (1) (b) of the CPC is clear that the High Court has got jurisdiction any to alter or reverse JS other order except or apart from an order of acquittal. It was argued that in going ahead to review proceedings where there was an acquittal and reversing the acquittal order in the face of a clear statutory embargo contained in Section 338 {1) {b) supra, the lower court clothed with itself jurisdiction which it did not have. As a result, in want the court below acted of jurisdiction. 5.4. We were referred to the case of The People v. Mwiya Lubasi1 where Sakala, J, as he then was, held that: can make a number of orders on revision in "It is clear from s. 338 of the Criminal the High Court the case of any proceedings there has been a conviction acquittal." before a subordinate but not where there has been an court where Procedure Code that 5.5. We were also referred to several Kenyan cases in which the courts interpreted a provision similar to Section 338{1) (b) of our CPC in their statute book. We are indebted for the same and we have taken them into consideration. 5.6. We were urged to allow this appeal, reverse the ruling of the High Court and give effect to Section 338(1) (b) supra. 6.0. THE RESPONDENT'S ARGUMENTS 6.1. On behalf of the respondent, learned counsel contended that the High Court was called upon not to review the order of acquittal issued by the J6 Honourable Magistrate Chiwaula but to determine whether a plea in bar can be raised and sustained where the accused person never appeared before an earlier Court to take plea but was acquitted of the on withdrawal complaint, before the complainant was authorized by the Director of Public Prosecutions to privately prosecute the matter. 6.2. It was contended that the High Court was alive to its jurisdiction and rightly determined whether it had jurisdiction to determine the matter before it and the consequential legality of the alleged acquittal. In support of this argument, we were referred to Sections 337 and 338(1) (b) of the CPC already cited above as well as Article 134 of the Republican Constitution which stipulates that: "The High Court has, subject Article 128- (a) Unlimited and original in civil and jurisdiction criminal matters; (b) Appellate and supervisory jurisdiction as prescribed; and ( c) Jurisdiction to review decisions, as prescribed." 6.3. It was further submitted that the lower Court had rightfully exercised its supervisory and revisionary jurisdiction in reviewing the proceedings of the Subordinate Court which resulted in the alleged acquittal of the Appellant when it determined the correctness and legality of the proceedings. Learned J7 counsel contended that this is particularly so because there were several serious irregularities which the lower Court had to correct as the Honourable Magistrate Chiwaula under Cause No. 2SPD/027 /2021, acted in breach of Section 90( 4) of the CPC and irregularly acquitted the Appellant and Others pursuant to Section 201 of the CPC. 6.4. It was argued that the lower Court did not reverse or alter the order of acquittal but ruled that the order was null and void as it was issued contrary to the provisions of the law because the Honourable Magistrate Chiwaula breached the provisions of the Law by acting contrary to the provisions of Section 90(4) and Section 201 of the CPC. 6.5. In summation, it was the respondent's argument that the lower court was on firm ground when it ruled that the alleged order of acquittal was null and void and cannot be relied upon by the Appellant as it is a product of void actions of the Honourable Magistrate who acted in breach of the Law and in want of jurisdiction. 7.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 7.1. At the hearing of the appeal, learned counsel for the appellant, Mr. Mwamba, placed full reliance on the documents filed. On behalf of the state, Mr. Zimba informed the court that the state would equally rely on the heads of argument filed before the court. J8 8.0. CONSIDERATION AND DECISION OF THE COURT 8.1. We have carefully examined the record, the arguments by both counsel and the Ruling of the lower court. We are of the considered view that this appeal raises a question of jurisdiction of the High Court in its exercise of powers of review. 8.2. In the case of Godfrey Miyanda v. The High Court2 , Ngulube DO, as he then was, stated inter alia that before it; in another sense, it is the In one should first be understood. which a court has to decide matters which a court has to take cognisance in a formal way for its decision. "The term "jurisdiction" sense, it is the authority that are litigated authority presented authority appropriate nature of the actions and matters of which the particular court has cognisance jurisdiction The limits of of each of the courts in Zambia are stated in the Such limits may relate to the kind and or to the area over which the legislation. extends or both". of matters 8.3. It is clear from this decision that jurisdictional limits for in are provided appropriate legislation and such limits may relate to the nature of actions and matters for which a particular court has cognizance or the area over which the jurisdiction extends. Jurisdiction is therefore donated and cannot acquired by the court's own volition. 8.4. This matter was referred to the High Court by the Magistrate who was of the view that she could not assail the acquittal of the appellant by another Magistrate, Therefore who was of equal jurisdiction. the only way that the J9 High Court could have dealt with those issues was by exercising its powers of review. 8.5. The issue before us as we see it therefore, is not whether the acquittal of the appellant was regular or not. The issue is whether the High Court has jurisdiction to exercise its revisionary powers, where an accused person has been acquitted. 8.6. The Constitution, no doubt bestows jurisdiction on the High Court to exercise powers of review, as rightly argued by learned counsel for the respondent. The use of the words "as prescribe" in Article 134 { c) of the Constitution entails that parliament through legislation will provide the parameters in which that power must be exercised. Therefore, the context in which that power may be exercised is clearly provided, in terms of criminal matters, in the CPC, specifically in Sections 337 and 338. We shall reproduce the relevant portions of these Sections for ease of reference. itself or propriety 337. The High Court may call for and examine the before any record of any criminal proceedings subordinate as court, for the purpose of satisfying legality to the correctness, sentence or order recorded regularity court. 338 {1) In the case of any proceedings court, the record of which has been called for, or which otherwise {a) in the case of a conviction- comes to its knowledge, of any proceedings or passed; and as to the the High Court may­ of any finding, of any such subordinate in a subordinate JlO of the by a subordinate be retried jurisdiction vary or reverse the decision court, or order that the person court of or or by the High Court, in the matter as to it may order exercise any court might have (i) confirm, subordinate convicted competent make such other order seem just, and may by such the subordinate power which exercised; (ii) if it thinks a different should have been passed, quash the sentence passed by the subordinate warranted substitution been passed; (iii) if it thinks additional either take such additional direct that (iv) direct the subordinate sentence evidence itself or court; court to impose such in law, whether more or less severe, it be taken by the subordinate court and pass such other as it thinks ought to have sentence evidence therefor in sentence is necessary, or make such order as may be specified; (b) In the case of any other order, other than an alter or reverse such order. order of acquittal, 8. 7. It is clear from Section 337 that it provides the power of the High Court to call a record from the Subordinate Court and the purpose doing or reason for so. Section 338 on the other hand provides for what the High Court can do or not do after calling a record for purposes of reviewing the same. Subsection 1 (a) of Section 338, clearly empowers the court to exercise powers of review in respect of a person who has been convicted and provides what the High Court can do after review. Subsection 1 (b) of Section 338 empowers the High Court in the exercise of its revisionary Jll jurisdiction, where any other order has been made by the Subordinate Court, except an order of acquittal, to alter or reverse such order. 8.8. It is trite that where the words in a statute are unambiguous or clear, courts must give effect to the clear meaning of the words. This is referred to as the literal rule of interpretation, to give words their ordinary and natural meaning. The role of the court is not enact or amend a statute. Its role is to give effect to the intention of the legislator, which is reflected in the words of an enactment. 8.9. We therefore agree with learned counsel for the appellant that Section 338(1) (b) is very clear and needs no rigorous interpretation. The learned court below preoccupied itself with the propriety of the appellant's acquittal and ended up bequeathing itself jurisdiction which it lacked. Whether the acquittal is irregular, improper, uncalled for or null and void is not an issue in which the High Court exercising powers of review may declare or pronounce itself on. This can only be done when the High Court is exercising appellate jurisdiction. Therefore, the court below fell in grave error when it exercised jurisdiction that it did not have. Jurisdiction is granted by law and cannot be acquired. Jurisdiction is everything. Had the learned court below properly directed itself, it would no doubt have reached the verdict as ours. 8.10. If the state were dissatisfied with the appellant's acquittal, they should have appealed. We find merit in both grounds of appeal. We allow the appeal. J12 9.0. CONCLUSION 9.1. Having allowed the appeal, we accordingly set aside the Ruling of the Court below. The appellant's acquittal remains undisturbed and as things stand, he cannot be prosecuted for the offence for which he was acquitted. C. F. R. MCH N DEPUTY JUDGE PRESIDENT K. M NGA COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE ...... ••....... � ••.••.•..•.....•