Kuliwa v People (SCZ Appeal 22 of 1993) [2022] ZMSC 43 (2 March 2022)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NOOLA SCZ APPEAL NO. 22 OF 1993 (Criminal Jurisdiction) BETWEEN: JOiUTHAii KULIDA And THE PEOPLE Appellant Respondent Coram: Gardner, and chirwa JJJ. S. 2nd March, 1993 The appellant appeared in person. Mr. K. Lwaii, Assistant Senior State Advocate appeared for the State. JUDGMENT Gardner J. S. delivered the judgment of the Court. ine appellant was convicted of corrupt practice oy public officer. fne particulars of the offence were that ne, on a date unknown out oetween the 21st of June, 1910 and 21st July, 19110, ueing a puolic officer, namely a chief security officer of Luapula Co-operative Union, corruptly solicited for K2,U0U and received K1. UGU cash gratification from Cosmas Kalwa as an inducement or reward for nimself so as to facilitate tne court case against Cosmas Kalwa to be thrown out and tne said Cosmas Kalwa to be acquitted. Tiie prosecution evidence was that Cosmas . Kal ,:a marketi officer for the Luapula Province Co-operative Union was with tneft by public officer. The appellant was the security officer respo­ nsible for the case against Kalwa. Mile the case was waiting for trial the appellant was alleged by Kaiwa to have approached him and offered to arrange to nave tne case thrown out because he was familiar witn the police and the magistrate who was trying tne case. The appellant was alleged by PW1 Kaiwa to have asked for a payment of K2,UOO for the services. PW1 reported the matter to the Anti- Corruption Commission and ne was given K1,000 to hand over to the ■ .j ■. •. I ।j L .• . u ■» ’ >» i *' ; t r ■ ;» • ■ . »» • . j : • • 1 1 i 7 " ‘ * J > : 1 I .12 I j ‘ ’1 1 • ■ ’ ' _ i . t . • -i-. . ■ ■ . i •. k > •, ‘j_t i r • ' 7 ■ > - x. *. . , j ‘ > u ' ' r ; ■ t. ■ *. . ■, . " . /f i ■ ’’ •_ L ' j ' i L »I . • ' , • h 1 >’ . ", »- *i» i 1 SI • ', 'J ■' • >, r » f rj : .>re„ \ \ • ' . ■ ■ , i i. • . . i . i • : . I ing the - • •' I ’.. 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S': J ? .if J '• ’ a 7 d 5 fc '• i ‘ J r J. 4 It* i-7 ' 14.-1 •' t i ' ■.: ’ 7 r. >’ J-. I <. J j ' * j ' lit i • s i i .7u ; t.<s $ r v > zt a ;: r fu£ j :. I »' ■ < j* ju t if *. ■ j , < Jt. '•? 4, J-■■-•' ’I ? : Jr 7 : ’. M sir li; ? „ ; ,s 4||t' i ;.jv i I ’ ‘ ‘ ‘ i 1 ■• i C I v 1 '■ * 7■ - I : - 3 • ■■' 1 •■ . । 1 .. ■ i .. 1 - t ’ J * if - ' \ !i , v> ‘ \ . 3 3 !* I '1 Cv ■ * r 1.» • ■ . • S I 1 ,. " t* i. ;. < ■ I ' > * I . '. . ^ > x 3 - I > * . ■ . I, I j .. j 1 ’ ; I '. j < . - • 7 -1* A3 CO Che V’HCi’ Aad wfiLt-’h 0/ -’.il ’CO t»‘* appellant td arrange a -.iG^tinq, tne appellant ^luteined tndi rids letter was merely i request co discuss maize d. Hc^ was che responsibility of r’,‘1, Further io his jrounds of apj^l coo appei Iant maintained That the pCwS-eCUtiOn of I .■ 3 -3 If Vib 3h UCt Of f^VOOgO fOC iOVOiVlnj ?wl in a c^se of stealing vent cl" tuuas oelcnjinj tu ;na •Jo-operaU v? J *-a. Tne appellant -Iso sale; that the prosocution against nifl jto •►,-j-Midoreo by tribal ism, foe final ground of appeal was mat tne police officers who accompanied himself anti Ml to Lusaka nod given >v i dene s tbet Ajo praisud che apyeliant for his Kind treatment m giving Mm food and tna‘ Chis nod oeen ignored oy the 'nayistrat*. jcdllnj wlt’n tine first ground of apueal we not? that on the racora mere is no ref?ranc« to an application at the beginning of tne trial of .ne appellant to oa represented Oy counsel and in tne absence of evidence that tne record is wrong in this respect, cnis ground of appeal cannot succeed. With regard co the »ni squocatlon tne record of appeal «s to the appellanl's alleged amission of the offence, it is clear from the evidence given oy the appellant in the court ueiow that ie at all Limas denied the offence and at no time was there 6 suggestion Oy th? learned magistrate that he accep.ed that tne appellant was admitting tne offence. Further with regard to the letter that was written by Pdl to arrange a meeting with tne aupsllant this was not used oy the,learned magistrate to convict the appellant, and there r*? question in tne magistrate's mind as to there be ; intention in tne matter, os accented it as merely a lector w-ucn was arranging for a meeting between tn? two. As to the conduct of the Anti-Corruption doma.ission officers, there was absolutely nothing wrong in their giving marked notes and arranjing for tne parties to Aeet in accordance with the original illejed arrangement fcr the giving and taking uf thn oribe. [his ground of appeal cannct possibly succeed. As co tht* question of revenue, the appellant was at pains to stress tne ^viGenc*’ coat PJ1 was grateful co aim for nis kind treai.aent. There was no suggestion mat PHI nald the appellant personally responsiole for nis oein„ prosecuted for theft oy servant. Lie .1 legation relating to trioalism is not supported oy any indication on the record. Hiltner of these arguments can succeed. As to the last ground of appeal cnat tne police officers had heard PHI praise tne xiuness of the appellant, this was not ignored by tne learned magistrate woo specifically referred to it in his j idqmenc. in any event the learned magistrate accepted the evidence of PH that the money was given as a bribe. Fnere was evidence that tne appellant nad paid oetw^en CudU-Kaao for everyone’s food and drinks o?i the journey to Lusaka A payment of £1000 therefore would oe out of all proportion to r.ns oenefic that PHI obtained from one appellants’ kindness. There was evidence in any event that the appellant had received imprest money for this very cause and was not paying out of his own pocket. we are -. I’jit? satisfied in this case that the learned magistrate did not misdirect himself in any way. There was no ground on wnicn this appeal could succeed. Fne appeal against conviction is dismissed, hie appeal against sentence is dismissed. 3. T. GAROrtErt SUPREME COUHF JUDGE E. L. SAXALA SUPREME TOURF JUDGE D. X. C H RM SUPREME COURT JUDGE