Mponda v People (SCZ Appeal 11 of 1993) [1993] ZMSC 111 (26 February 1993)

IN THE SUPREME COURT GF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) SGZ APPEAL NO.11 OF 1993^ Patrick b. mpunda Appellant v THE PEOPLE Respondent; CORAM t Sake la, Challa and CbX’wa JJJS an Lusaka on 2nd and 26cb February 1993 * For the Appellant t In Person For the Respondent; Mr. L. Muuka, State Advocate ■ ■'■ ■ • \ . -7 '■ ;; - A'-? ■ •;. 1 ■ • JUDGMENT • ■ 7 • .■ --"S-. Chirwa, J. S. delivered che judgment of the Court. Ms The appellant, Patrick Hpouda, was cried end convicted on one count of theft contrary to section 272 of the Penal Gode, Cap. 146. The particulars of the offence were chat Che appellant on 12th day of November, 1968 at ChApata in the Chipata District, of the Eastern Province of the Republic of Zambia Jointly and-, whilst acting together with another person unknown, did steal^ 600 bags of fertilizer valued ar K5B,962.00 the property of the Eaatorn Province Co-operative Union. Upon hie conviction be was sentenced to two (2) years imprisonment with hard labour. His appeal to the High Court was unsuccessful and he now appeals to this Court. /W:' The appellant who appeared in person before this Court, put forward three grounds of appeal and one additional ground of appeal. The first and second grounds of appeal were that the truck driver, PW6 was u witness with an interest to serve and as such Ais evidence needed corroboration. He questioned PWo’c aim of off-loading fertilizer in Malawi instead of Chingwe depot in Gnadiza when he told the Court that he bad been delivering fertilizer for five years and that be only does so on written instructions. .. .a 2/... He submitted ' - . •! -.4 - J2 * • .. Ho submitted that with this experience, it was questionable that he got verbal instructions from the appellant and one e Mr. Hyirenda to off-load the fertiliser at Kamwendo village in Malawi. He submitted that thio witness was unreal!able. The third ground of appeal was that PW7 who told the trial court that the appellant tried to force him to sign a document acknowledging receipt of the fertiliser should not be believed as the said document was never produced. He submitted that this witness also had his own interest to serve as be did not want to • appear to be part and parcel of the racket of selling fertilizer IpHalawi. The additional ground of appeal attacked the accuracy of the record to the extent that during hie trial he told the court that he received a tip from a reliable source that fertilizer was ' being sold by a son of someone very high in society and that he made a report of this tip-off co the Provincial Intelligence Officer who after listerning to his story told him that that was not his (appellant's) business and that he should keep off. Ifeen he tried to toll the magistrate this story* he was told by the magistrate that he would not write such a story as it was a state security matter, and indeed this is missing from tho record. The appellant then generally alleged that there was a conspiracy between the Police and ECU members of staff co implicate him in this case as no evidence was led that he was seen selling fertilizer anywhere. He repeated bis story at the trial that he merely assisted the truck driver, PW6 to look for a safe place co store the fertilizer after the said truck driver bad,informed him that his truck bad developed a fault and that be heeded a better truck from Chipata. He also agreed chat he paid the off-loaders but that this money was from the truck driver who told him chat that was company money they are given to be used on such occaasions when the drivers were in problem?. He therefore submitted chat although be has served bis sentence, he should bo acquitted as there was no evidence to support the charge of theft. I ' . ■ 3/... Mr. Muuka - J3 - Hr Muuka for the State on being asked bin reaction to the case submitted that ho did not support the conviction in that the prosecution did not adduce any evidence to show who collected the 105 begs of fertiliser not collected from Malawi by the police, prosecution witnesses 1*4 only heloped in off-loading the fertiliser and were unable co tell what happened to the 105 bags missing. He further stated that the appellant’s atopy could probably be true that be was assisting the truck driver in keeping the fertilizer bags, in safe custody. We have carefully considered the evidence on record and also submissions made by both parties. From the evidence Che findings of facte by the learned trial magistrate cannot be faulted, namely that PW6 was directed to transport 600 bags of fertilizer belonging to the Hastarn Co-operative Union to a selling point in Chadiza and in order to reach the point he had to pass through Malawi. On leaving he was given all the necessary documents to convey the fertilizer and hand it over to a responsible person at the depot, PW6 did not reach the destination but returned to a village in Malawi. In Malawi at Kamwendo village the fertilizer was off-loaded in the presence of the appellant. Later PW6 reported in Chipaca where and under what circumstances the fertilizer was off- loaded, the police were informed and they retrieved 495 out of the 600 bags of fertilizer. The appellant was finally arrested for the offence for which he was convicted and against which he has appealed to this Court. The disputed fact Is Che circumstances under which the fertilizer were off-loaded in Malawi. There are two versions, one by the truck driver, the ocher by the appellant, < 1 - ■ According to cbe truck driver, he did not reach the depot in Chadiza because it had rained very heavily and he could not reach with truck which had a trailer. He therefore returned and parked it at Kamwendo village in Malawi. 4/,.. Whilstthere Whilst; there be was approached by cho appellant and told to oif-load the fertilizer there. The driver knew the appellant before that he was a senior official in the Co-operative and although at first ho refused to off-load the fertilizer, he ’ finally off-loaded the fertiliser with the help of some people whom the appellant recruited and paid. In his previous trips be had always followed written instructions but this time he obeyed verbal instructions from the appellant because he was a senior official. He denied that he asked the appellant for ■ ■ i ' « help to put the fertilizer in safe custody as bis vehicle bad V developed a fault* The appellant's story la that on 11th November 19B6 be bad gone to Kamwendo village co buy some grocerlea and whilst there he met a friend of his by the name of Richard Banda. They had some snacks together and later decided to sleep in Malawi. He met PW6 at Kamwendo village who cold him that he had a problem, his vehicle developed a fault and could not reach his destination. PW6 asked the appellant if he could help him co find a safe place to keep the fertilizer so that be could go co Chipaca co get another vehicle* Since he did not know many people there, the appellant asked his friend Richard Banda co assist. Richard Banda took tiiepppoliant and PW6 to a house of Mr. MaJava who was PW1. PW1 told them that he did not have sufficient place and suggested they go to a place about Sto from Kawendo* They reached Mbuzi Ya Bole where Yelesani Hkbowani was approached and ho agreed to keep the fertilizer. The fertilizer was off-loaded with the.help of local people recruited by the appellant and assisted by Richard Banda at the request of PW6« After this FW6 produced money to pay the workers and gave it co the appellant to pay the workers saying tbac the money was for the company used for such emergencies. Of the two stories the learned trial magistrate believed the truck driver's story that be bad been under pressure from 5/..* the appellant che to off-load tne fertilizer in Malawi, thereby breaching his written instructions. The learnsc trial magistrate was seized with an obligation to consider the position of FW6, the truck driver, in unis transaction* Ue did consider whether he should be created as an accomplice and he came to the conclusion that he was an innocent and simple alndco person who was used by the appellant. He concluded thus because the appellant was a senior official in the Co-operatives and when be told PW6 to off-load the fertilizer PW6 did 00 instructed although it was * after be resisted. Further PW6 asked the appellant who was going to sign the delivery notes which be was carrying for the fertilizer, bo was cold to surrender them co appellant's co- . accused in the Court below. From the evidence of PW7 it appears I that the appellant got these documents from his co-accused as be approached PW7 and asked him to sign the delivery notes as be had delivered sone fertilizer at PW7’a depot. PW7 refused, he । • / was then offered MKiOGG. QO be still more refused. The appellant - got annoyed with PW7 and threatened to dismissPW7£rom bis ।employment. The evidence of PW7 reinforces FW6'a innocence as - found by cho learned trial magistrate. -Wt Wo note that cho appellant has attacked the evidence of this witness saying that he is not reliable aa the alleged documenta be was asked co sign were not produced in Court. ?: Theca is no evidence that PW7 accepted the documents from the appellant, ho I • - - \ ' (i J . ... . ’ ;•■'/ * ' ' V- ’ refused co accopc them as he had not scon the fertiliser at bis depot. The attack on this witness io completely unjustified. . •* ' • ’ *. • In further considering the evidence of PW6, Che learned trial magistrate found that oven if PW6 was an accomplice, bis evidence was amply corroborated by cho evideuceoftho Holawian witnesses namely PWa 1-4. PHI stated chat he had been approache< by the appellant on two occasaions on the night of the theft end asked PW1 to safely keep for him bis fertilizer which/was selling* Thia witness told the appellant that ha did not hove adequate place to safely keep his fertilizer* b/... Un cho ■ • ■■; . . .. ■ ■ - JO * ■ ‘ ’ ■. ' . /. / ! On the second occasion, the appeiltint rold the witness that j be needed a safe place an bis vehicle bad broken down* The story o£ the truck bean faulty was corroborated by PWa w2* 4. These same witnesses are the ones that off-loaded cho fertiliser chat night and ware paid by the appellant the following morning. The story of the truck being faulty cannot possibly be true as PW6 drove the same truck from Malawi to Cblpata and in fact aaueaoother delivery to the right place in Chadian. on the evidence on record the learned trial /? . magistrate cannot be faulted* hie findings are amply supported by cogent evidence. In arguing his appeal, the appellant dwelt at length on two other grounds, namely that the record is incomplete and therefore inaccurate. Secondly that no theft waa committed by him as evidence adduced was as a result of a conspiracy ..y VI . ■ ' beiween the Co-operative Union staff and the police in phipaca. ' /■ ■■ •. ■ -----------j/; / \ On the inaccuracy of the record, as already stated the appellant argued that be had heard ofthe smuggling of fertiliser to Malawi and on receipt of chia information he informed the Provincial Intelligence Officer in the Office of the President in Chipata who after hearing the story cold him to keep off and mind his own business, During hie trial h© wanted to adduce this evidence but was told byth© learned trial magistrate that chat was state security and he would not write that in the record. We have found ft extremely hard to believe this allegation by the appellant. During his trial he was adequately represented by Counsel and we cannot believe that his Counsel would not have taken an issue over the learned ! magistrate's conduct. We also find it difficult to believe it ' as when the appellant appealed to the High Court, he was. again ' adequately represented by Counsel and Counsel would have soea the absence of the appellant's evidence from the record and be should have taken the issue in cba high Court. • • ■ "’• TW ’ • >.' *’x ’• . 7 •, - 7/... Thia was not done ' - ■ । ‘‘t- 1 L This was not done and v/q cannoc accept such an allegation at thia stage in this Court* The ground is dismissed. Furthermore this is not the correct way co challenge the . accuracy of a court record. The second major ground of appeal is that the evidence against him was fabricated after a conspiracy between police officers and members of staff of the Co-operative Union. We find chia ground highly unattainable because the nearest suspect in cho whole transaction was ?W6 who was to deliver the fertilizer per the written instructions to him but that cannot be said of PWs 1-4 and PW7. PWs 1-4 are foreigners and were only invited by the appellant co do some work for him. They cannot be said to have conspired with the police officers and members of staff of the Co-operative Union. It is difficult to accept the appellant's story as to how be took the trouble of not only looking for the safe place to store the fertilizer but recruited people to off-load and he paid them the following morning. PW6 the driver cannot issue such instructions co the appellant, who was in fact bis boss, to look for a safe place, look for workers and pay them. If PW6 bad tbs money^to pay the workers, ft .was sufficient for the appellant to be asked to help in looking for a safe place, then PW6 wouldloe^for people to help in off-loading and pay them himself;ai he had 'the money. The trouble Chat the appellant went through was not' ■ just of someone rendering assistance, he is the thief that stole the fertilizer. On the whole looking at the evidence on record there is overwhelming evidence and we find no merica in the appeal and it is dismissed accordingly. , 1 r-- i . ■ * /V ’• ’ • • •. * f' * • - * • fy' . '• • *' । Before we leave this matter, chore is something that came to our attention and this is the particulars of the offence* The evidence clearly shows chat the offence was committed in Malawi but particulars say that it was committed at Chipcta hero in Zambia.- ’■? <„ • - 8/... The particular* ... . jg The particulars are committed. What is of the offence. In wrong but they do disclose the offence wrong is only the dealing with /isVue, we are mindful that place of the commission Section 6 of the Penal Code, Cap. 146 gives the Zambian Courts extra territorial Jurisdiction to try Zambians who commit offences outside Zambia which offences are also •. . . ■ ,< . •. .■ "i offences under Zambian laws; Thia extra territorial Jurisdiction does not shift the place where theoffence ia committed to Zambia or where the Zambian is arrested. The particulars must give the actual place outside Zambia where „ ■ ■ ■■ j the offence is alleged to have been committed. The State should note this point. N. Wo have looked at the effect of this wrong place where the offence was committed as to whether the appellant has been prejudiced in preparing his defence. Wo haye looked at the evidence and circumstances of this case and wo cannot see what defence the appellant would have put : forward if the particulars correctly stated that Che offence was committed in Malawi. The wrong statement of where the offence was committed, therefore, does not cause any injustice or prejudice to the appellant's case. The appeal, as we have already said is dismissed. E. L. Sakala SUPREME COURT JUDGE ■ .; & /• . ’ J- -r ■ $ • ■ .. : • • * • • • • • • • • * M. S. Chaila SUPREME COURT JUDGE D. K. Chirva ’ SUPREME COURT JUDGE W