Mutoya v People (SCZ Appeal 31 of 1993) [1993] ZMSC 104 (3 March 1993)

IH THE SUPREME COURT OF ZAMBIA SCZ Appeal No, 31 of 1993 HOLDEN AT NOOLA (Criminal Jurisdiction) EH4ANUEL JOSEPH MUTOYA Appellant vs THE PEOPLE Responent CORAM: Sakaia, Chaila and Chlrwa JJJ. S. The appellant appeared tn person Mrs. P. S. Kananga, State Advocate for the respondent 3rd March, 1993. JUDGMENT Chai la, J. S. delivered the judgment of the court. The appellant was charged with theft by public servant, contrary to Sections 272 and 277 of the Penal Code. The particulars of the offence were that, he, together with Penelope Kabwe Kamblkambi and Emmanuel mwepye Mwtla, on a date unknown between 21st June 1991 and 3rd July, 1991 at Mansa in the Mansa District of the Luapula Province of the Republic of Zambia, being persons employed in the Public Service namely as District Credit Officer, Credit Clerk and Office Orderly in the Ministry of Co-operatives, jointly and whilst acting together, did steal K50,000.00 in cash the property of Luapula Co-operative Union. The third accused who was an office orderly was acquitted after the learned trial magistrate was satisfied that he was not involved in the theft. The appellant and Penelope Kabwe Kamblkambi were convicted and sentenced te 3 years imprisonment with hard labour. They appealed to the High Court. There, the State Advocate did not support the conviction of Penelope Kabwe Kamblkambi and the appellate judge acquitted her of the offence. We are not concerned with her acquittal, we are now only /2...concerned with I i - J2 - concerned with the conviction of the appellant who was the first accused in the Subordinate Court. The State supports the conviction. In his grounds of appeal the appellant has stated that they were three people involved tn the matter. There was the third person who was the office cleaner and who had gained entry to the premises of offices before the appellant and his co-accused Penelope Kabwe Kamblkambl. The appellant has argued that when the office orderly opened the door the appellant entered the office. He saw the office orderly moving the curtains to see clearly. The appellant noticed the handle to the window was bent and that no one could enter thrbugh the window. The appellant stated that they had two keys for the main door, one key was for the appellant and another for the office orderlyj He has argued that the learned trial magistrate misdirected himself when he considered the evidence placed before him. He did not properly direct himself that there were two keys and that there was no proof that it was the appellant who had opened the door. The main complaint by the appellant 1$ that there were two keys and he suspects that the office orderly who opened the door first stole the money. He has further complained that the evidence showed that the lock to the cabinet was not there. The lock had gone missing. i The learned State Advocate Mrs. Kananga in supporting the conviction has ilrawn the court's attention to the evidence of PW1 who was the Manager. That evidence shows that the appellant had been advised to bank the money with the Manager but the appellant never listened to the advice. The evidence further showed that on Saturday the appellant and his friend Penelope Kabwe were again reminded to take the money to the Provincial Manager or the Cashier but apparently the appellant did not want to do thatl The learned State Advocate further referred us to the evidence of A3 ^rhich showed that when the appellant went to the office, he exclaimed before he even checked the locker or filing cabinet that the money had been stolen. He did not know how much money was involved. The learned State Advocate has argued that from his behaviour the appellant had an Intention} to steal and that on Monday when he exclaimed that the /3...money had been - J3 - money had been stolen he must have known what had happened to the money. The learned State Advocate submitted further that the learned magistrate was Justified in convicting the appellant. We have considered the appellant's grounds of appeal and the evidence on record and the submissions of the learned State Advocate Hrs. Kamanga. We are in full agreement that the evidence showed that the appellant had some motive to steal the money when he refused to sumaxter tha money to the Provincial Cashier. That suspicion was further strengthened by his exclamation that money had been stolen before he could even check. The learned trial magistrate was fully Justified in convicting the appellant. The appeal against conviction is therefore dismissed. As to sentence, 3 years imprisonment with hard labour for this offence does not come to us with a sense of shock. The appeal against sentence is also dismissed. E. U sakala SUPREME COURT JUDGE M. S. Chai la SUPREME COURT JUDGE O. K. Chlrwa SUPREME COURT JUDGE