Sikombe v People (SCZ Appeal 143 of 1992) [1993] ZMSC 47 (3 March 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 143 of 1992 HOLDEN AT NDOLA (Criminal Jurisdiction) DAVIES SIKOMBE Appellant THE PEOPLE Respondent Coram: Gardner, Sakaia, Chirwa, JJJ. S on 3rd March, 1993 at Ndola For the Appellant : H. J. F. Silva, Asst. Senior Legal Aid Counsel For the Respondent: K. Lwali, Asst. Senior State Advocate JUDGMENT Chirwa J. S. delivered the judgment of the Court The appellant was convicted on three counts of theft by servant contrary to section 247 as read with section 272 of the Penal Code. The first two counts alleged that on the 18th day of January 1991 at Isoka he stole a total of 240 x 90 kg white maize the property of Isoka District Cooperative Union. On the third count it is alleged that on 27th day of January 1991 at Isoka he stole 120 x 90 kg white maize. Upon his conviction he was sentenced to eighteen months imprisonment with hard labour on each count and these sentences were made to run consecutively. In arguing the appeal on behalf of the appellant, Mr. Silva the assistant senior legal aid counsel argued that there was no evidence adduced in the court below proving that the appellant fraudulently took the maize. He submitted that there was evidence that the appellant dropped from the vehicle delivering this maize and left the maize in the hands of the drivers and that if the appellant was guilty of anything at all, it was a breach of his assigned duties in that he did not follow the procedure laid down on the receipt of the goods and that this breach does not amount to theft. 3/... He said that. He said that, if anything, the drivers are the peapie responsible for the Ri scons igimnl of the maize. - J2 - In supporting the conviction Mr. L«all, the assistant senior state advocate submitted that the appellant not only breached the procedures laid down out told lies to his superiors that the maize had been delivered to Iso*ta Hain depot. He said that this lie is more than just a mere incident of breach of tne regulations. We have carefully considered th® submissions made oy both Counsel and also the evidence on record. Ha nave no doubt in our minds that the appellant was responsible for receipt of the maize and on receiptof this consignment he was supposed to sign for the goods received on the delivery notes. There is also evidence that in these three counts he left the maize with the drivers and we note that on each occasion the appellant dropped from the trucks and the drivers went on their own. He have particularly paid attention to the evidence given Dy PWi which outlines the procedure adopted by the Cooperative Union in dispatching and receiving goods. This witness was the District Manager of tne Cooperative Union and therefore superior to the appellant, we note in particular that the first consignment was delivered on 15th January 1331. Even if it Is accepted that tne appellant jumped off tne truck on tne way, and that the drivers went on their own and coll verse tie oaue at Isaka Main Depot, we are of the view that since it was his responsibility to receipt tie maize, ha ought to have checked whether the drivers had delivered the maize or not. Me have also noted that the next delivery was on the January 1331 after about ten days from the second delivery. Hero again it is said that the appellant adopted tne sd'.w method of not acwvanying the maize to tha Depot. He vi ?w this conduct of not accompany5,Kj tho miz* at the Depot. as a very stran.y; coincidence. He nave also noted from thn evidence of PHI that on one of the doll very notes he noticed an endurs^nt which stated "but not for fi-aii This witness recognised the handwriting cf this endorser-lent as chat of th© appellant. 3/... It is obvious - J3 - It Is obvious from this endorsement that the appellant Snow that the maUe was not delivered to the Hain Depot. This was not a mere breach of the procedure, would agree with the observation by the learned trial magistrate that this breach was not an Innocent one but that it meant that tne appellant was responsible for this misconslgnmnt of the maize. On the totality of the evidence we are satisfied that there was overwhelming evidence to prove that the appellant was responsible for the missing maize. The facts that the drivers might have been involved does not make the appellant Innocent* We see no merit in the appeal against conviction and it Is dismissed. We do not see the sentence of thirtysix months imprisoniuent witn hard labour on each count to run concurrently as any misdirection at al). The appeal against sentence is also dismissed. 3. T. Gardner SUPRSME COURT JUDGE E. U Sakala SUPREME COURT JUDGE O. K. Chirwa SUPREME COURT JUDGE