Mubita v People (SCZ Appeal 142 of 1992) [1993] ZMSC 36 (8 June 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 142 OF 1992 HOLDEN AT NDOLA. (Criminal Jurisdiction) JOHN MUBITA Appellant Vs THE PEOPLE Respondent Coram: Bweupe,D«C. J., Sakala and Muzyamba, JJ. S, 8th June, 1993. Appellant in person. Mr. S. A. G. Twumasi, Senior State Advocate, for the State. Sakala, J. S., delivered the judgment of the Court* JUDGMENT The appellant was initially jointly charged with two others for armed aggravated robbery contrary to Section 294 of the Penal Code Cap 146. of the Laws of Zambia. The particulars of the offence alleged that the appellant and the others on 7th November,1989 at Ndola, in the Ndola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and being armed, robbed Nicodemus Chlsala Mponda 1 radio, 4 napkins, 2 dresses, a vest, 3 bottles of lotion, 1 plastic pant, 2 suits, 1 jacket, 1 baby powder, 2 Chitenge materials, 2 disco watches, 4 pins, 1 travelling bag, 1 suitcase, 1 pair of trousers, 1 towel, 2 shirts, 2 pants, 1 pair of socks and K1,500 cash altogether valued at K12.341.00 and at or immediately before or immediately after such robbery used violence to the said Nicodemus Chlsala Mponda In order to obtain or retain the said property. One co-accused pleaded guilty to ordinary aggravated robbery and was convicted and sentenced to fifteen years imprisonment with hard labour. Another co-accused was acquitted after trial. The prosecution's case was that, on the night in question, PWs 1 and 2 2/.,. 4^ \\ s J2. were about to retire to bed when three men, two dressed in police uniform while one dressed in army uniform approached them. When PW1 asked what they wanted, they stated that they were investigating for cases of illegal aliens. When the complainant asked for a search warrant, the men became aggressive and assaulted the complainant. The complainant and his wife were ordered into their bedroom where he was again assaulted, his hands tied and forced him to face downwards. Thereafter the uniformed men ransacked the house and collected all the items the subject of the charge. These items were later identified by PWs 1 and 2 at the Police Station. PW2 further identified the appellant at the police station while dressed in a shirt and a trousers made of Chitenge material which she had prepared for her maternity. The evidence of PW3 was that on the 4th November, 1989, five days after the robbery, his sister in law visited him in Kitwe with a man she said was her boy friend. They stayed with him for nine days and left. On 30th November, 1989, they returned in company of the police who recovered the suitcase left by his sister in law's boy friend. This witness identified the suitcase and the appellant. The court found that the evidence of a gun was unsatisfactory but accepted the evidence of PWs 1,2 and 3 and rejected the appellant's evidence. The court convicted the appellant and sentenced him to twenty years imprisonment with hard labour. The appellant filed a number of grounds in support of the appeal against conviction. The first ground is that, the prosecution having failed to prove their case, the learned trial judge proved the case on behalf of the prosecution. Another ground is that the identification was insufficient in this case. He has cited a number of cases dealing with the question of identification. Another ground is that the explanation he had given in his defence was reasonable and that he was therefore entitled to benefit of doubt. He has argued in his fifth ground that on the basis of his explanation, he should have been found guilty of a minor offence of receiving stolen property. The additional ground is that, being a first offender a sentence of twenty years 3/... J3. imprisonment with hard labour was excessive. On behalf of the State, Mr. Twumasi has supported the conviction. He has pointed out that the Identification was proper in this case carried out by two persons under conditions which were very good in a room where there was electricity. He has further argued that PW1 was at the time not under stress as he was invited into his room by people who had identified themselves to be police officers. Mr. Twumasi further argued that two persons, who in this case said were police officers, entered the bedroom where there was further electric light. Both* PWs 1 and 2 stayed with the appellant for about one hour during which time they all conversed with the appellants. Mr. Twumasi submits that the complainant had good opportunity. The complainant further identified the appellant at the police station among other people. Mr. Twumasi pointed out that the appellant was Identified by PW2 while wearing the Chitenge material she had prepared. Mr. Twumasi has further argued that it was the appellant who led the police to the recovery of the stolen goods. He submits that all this proves that the appellant participated in the robbery. We have very carefully considered the evidence on record. We are satisfied that the evidence of identification was over whelming and we are further satisfied that the appellant left the suitcase with the girl friend's brother in law in Kitwe. He subsequently led the police to the place where the suitcase and other stolen items were recovered. The appellant was identified by one of the complainants while wearing the Chitenge material, one of the stolen items. In our view the evidence in support of conviction was over whelming. The appeal against conviction is dismissed. Coming to the sentence, the appellant with the others used police uniforms in order to get entry into the complainant's home, they used uniforms to commit this robbery. The sentence of twenty years imprisonment with hard labour while using uniforms does not come to us with a sense of shock neither is it wrong in principle. The appeal against the sentence is also dismissed. 4/... J4 3. K. Bweupe, DEPUTY CHIEF JUSTICE E. L. Sakala, SUPREME COURT JUDGE. W. M. Muzyamba, SUPREME COURT JUDGE. A IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (39) SCZ/ No. 7 OF 1993 APPEAL NO. 19 OF 1993 BETWEEN: HILARY BERNARD MUKOSA Appellant MICHAEL RONALDSON Respondent Coram: Gardner, Chaila & Muzyamba JJJS., 17th June, 1993 and 24th June, 1993 K. M. Maketo Christopher RusselljCook and Company for the appellant. H. Silweya of H. Silweya and Company for the respondent JUDGMENT Gardner J. S. delivered the judgment of the court. Cases referred to: (1) (2) Mundanda -v- Mulwani and ^CZ Judgment No. 10 of 1987- Kulamma -v~ Manadan (1968) A. C. 1062 On the 17th June, 1993 we allowed this appeal and said that we would give our reasons later. We now give those reasons. This is an appeal from an order of a High Court judge granting an interim injunction. The notice of appeal refers to an appeal against the order of the learned judge given on the 16th day of December, 1992. The record of proceedings indicates that the actual order of the learned judge was ”1 accordingly allow the injunction to persist.” The injunction to which the learned judge referred was an ex parte interim injunction dated the 1st July, 1992 restraining the appellant from evicting the respondent from the property. During the proceedings leading to the learned judge’s order Mr, Silweya had argued that he was asking for an order restraining the appellant from parting with possession of the property. , Mr. Maketo had argued that in those particular proceedings T992/HP/1607, which related to a claim by the respondent for a declaration that he was a protected tenant, such an order could not be made. J2 (40) The advocates for the respondent drew an order of injunction which provided that the ex parte order of 1st July, 1992 was Confirmed and that the appellant was restrained from parting with possession of the property. This was not in accordance with the judge’s verbal order, which was merely that the ex parte order should persist; but, nevertheless, the learned judge signed the prd^r as drawn and dated it the 6th January, 1993. At the time of the order there was a continuing action in cause N©. 1992 /HP/1588 in which the respondent was claiming •specific performance of a contract for sale of the property to him and it appeals that the learned judge considered the arguments relating to that action when deciding that there should be an injunction. When the hearing of this appeal commenced, we’overlooked the fact that the order of injunction which was the subject of the appeal confirmed the ex parte injunction which restrained the appellant from evicting the respondent. We were under the impres-sion that the appeal arose out of cause No. 1992/HP/1588 whi-ch related to a claim for specific performance. Of our own motion, we drew the attention of Mr. Silweya, to tiro provisions of Act No. 16 of 1985 which amended the ^Conversion of Titles) Act by the insertion of Clause 13A which f£ads as follows (1) No land in Zambia shall, as from the 1st April, 1985, be granted, alienated, transferred or leased to a non-Zambian: Provided that nothing herein shall be so construed as to affect any interest or right acquired by any person prior to that date. (2) Subject to complying with any other provisions and procedures relating to the alienation of land or the obtaining of the consent of the President, a non-Zambian shall be exempt from the provisions of subsection (1) under the following circumstances: (a) If it is a person who has been approved as an investor in accordance with the Industrial Development Act or any other 3/............ - J3 (41) law relating to the promotion of investment in Zambia; (b) if it is a non-profit making charitable, religious, educational or philanthropy organisation or institution which and is approved by the Minister for the purposes of this section; (c) if the;interest or right in question arises out of a lease, sub-lease, or under-lease, for a period not exceeding five years, or a tenancy agreement; (d) if the interest or right in land is being inherited upon death or is being transferred* under a right of survivorship or by other operation of law; (e) (e) If the President has given his consent in writing under his hand. In his affidavit in support of his application for an interim injunction the respondent averred that he was a Malawian, and we asked Mr. Silweya how he could succeed in his action for specific performance. Mr. Silweya said that on the authority of our judgment in Mundanda -v- Mulwani and Qther3SCZ Judgment No. 10 of 1987 (1) he would argue that the court should presume that the parties had a legal intent and intended to obtain an exemption under s. 13A (2) on the ground that the respondent was an investor in Zambia. In the Mulwanda case the parties had agreed to the transfer of property at a price of K20,000. The agreement provided that the purchase price would be K20,000 regardless of whether the property was valued at a lesser amount by the Government valuer in the Presidential consent. We held that, as it was possible for the transaction to be completed legally in the event of the valuation being K20,000 or more, contract could be the subject of an order for specific performance. In arriving at that decision, we referred to Kulamma -v- Manadan (1968) A. C. 1062 (2) That was a Privy Council decision in a case where the personal representatives of a lessor sought, on the grounds that the contract was illegal, to avoid performance of a lease because the js - lease contained an option to purchase Which could not proceed without the consent of the Board of Trustees of native land, and the relevant Ordinance provided that it should not be lawful to alienate land without such consent. The court in that appeal held that the parties should be presumed to contemplate a legal rather than an illegal course of proceedings and that nothing in the agreement led to the conclusion that consent would not be obtained. That case is more in line with the facts of this case than the Mulwanda case because it dealt specifically with the obtaining of consent; but it was decided on other grounds, namel^^Ardr it was primarily a contract for a lease and employment of the lessee to farm the land. The option to purchase was found to be a minor issue. In the case at present before us what is required is not the type of consent which is required of and normally available to everyone, such as the Presidential consent required by s. 13 of the Land (Conversion of Titles) Act*or the consent required in the Kulamma case. The respondent requires a special exemption without which he is debarred from purchasing the property. The respondent applied for an injunction and, although he swore affidavits in support of his application averring that he was of Malawian nationality>at no time did he aver that he was a person who had been approved or who had even applied to be approved as an investor in accordance with the Industrial Development Act or any other law. Nor did he give any other reason for exemption. An injunction will be granted only to a plaintiff who establishes that he has a good arguable claim to the right he seeks to protect. We accept that the respondent is presumed to intend to proceed legally; but in order to establish a good arguable case he must show at least that he is eligible for exemption under 13A (2). There can be no presumption about this. On the evidence before the court below and ourselves the respondent is prima facie prohibited from purchasing land in Zambia and no injunction restraining the appellant from parting with possession of the land should have been granted. For the reasons we have given the appeal is allowed and the injunction restraining the respondent from parting with possession of the land is discharged. 5 /...... J5 (43) In view of the fact that the question of nationality was raised on this court’s own motion we make no order as to costs. We have not yet heard argument relating to the continuation of the ex parte order of injunction restraining the appellant from evicting the respondent, and that injunction continues until further order. B. T. GARDNER SUPREME COURT _J UDGE_ s- CHAILA SUPREME COURT JUDGE * I w ■ I ■ *1 MH - Mw —» — . W’ MUZYAMBA SUPREME COURT JUDGE