People v Andrew Mazimba and Ors (Appeal No. 217/2020) [2023] ZMCA 428 (11 January 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 217/2020 BETWEEN: THE PEOPLE VERSUS ANDREW MAZIMBA TIRUMALA BALAJI JAIRUS MAZIMBA APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT DOMINIC MUSAKABANTU 4TH RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA On 25th August, 2021 and 11th January, 2023 For the Appellant: Mrs. M. Chipanta-Mwansa - Deputy Chief State Advocate, National Prosecution Authority For the Respondents: Mr. B. Banda - Legal Aid Counsel,, Legal Aid Board JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: J2 1. Kambarange Mpundu Kaunda v. The People - SCZ Judgment No. 12 of 1991 2. C & S Investments Limited, Ace Car Hire Limited, Sunday Maluba v. The Attorney General (2004) ZR 216 3. The People v The Principal Resident Magistrate Ex-parte/ Faustin Kabwe and Aaron Chungu (2009) ZR 170 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 3. The Court of Appeal Act No. 7 of 2016. 1.0 INTRODUCTION 1.1 This Judgment concerns two appeals from two rulings of the High Court, before Mr. Justice I. Kamwendo at Kabwe. 1.2 The first appeal is against a ruling dated 4th February, 2020 and it involved the 1st and 2nd respondents, who were appellants in the court below. 1.3 The second appeal is against a ruling dated 5th March, 2020, which affected two proceedings in the Subordinate Court before two distinct Magistrates. One of them was before Honourable E. Banda, a Class 1 Magistrate at Kapiri-Mposhi, in which the 3rd respondent was the J3 accused, and the other one before Honourable B. M. Chiganda, also a Class 1 Magistrate at Kapiri-Mposhi, in which the 1st and 4th respondents were accused persons. 2.0 BACKGROUND TO THIS APPEAL The First Appeal 2.1 The first part of this appeal has its origin in a civil matter which was initially determined by Lady Justice C. K. Makungu, and subsequently before Mr. Justice I. Kamwendo under Cause No. 2006/HK/283. 2.2 The 1st and 2nd respondents had sued Chimani Manufacturing Limited in the above cause, which dispute was around the mining of manganese on a particular mining area in Kapiri-Mposhi. Lady Justice C. K. Makungu decided the issues in the following terms: "The area size of the application by Tirumala Balaji (Z} Limited was 85 hectares. Out of this 85 hectares only 8 hectares was free from overlaps and was granted to Tirumala Balaji (Z} Limited under small scale mining licence number SML 234. The Mining Rights Area belonging to Chimani Manufacturing Limited under small scale mining licence number 8164-HQ-SML has a total area size of about 415 hectares. The map showing the two (2) Mining Rights Area is attached. This report is not vague or ambiguous. So I find and hold as stated in the same report. I accordingly order that Tirumala Balaji Zambia Limited is legally entitled to operate only in the 8 hectares under small scale mining licence number SML 234 which area has been shown to J4 them by the Ministry of Mines and is indicated on the map attached to the said report. On the other hand the defendant is legally entitled to operate under small scale mining licence number 8164-HQ-SML in the total area of about 415 hectares as shown on the map. The plaintiffs and defendant must stick to their designated areas of operation." 2.3 Mr. Justice Kamwendo's order dated 15th May, 2019 was substantially in conformity with the main one referred to above. A writ of delivery was also taken out which required Chimani Manufacturing Limited or its successor in title San He Mining (Z) Limited to deliver to the 2nd respondent the 8 hectares awarded to it by the High Court among other things. It would appear that after the execution and delivery of possession to the 2nd respondent by the Sheriff of Zambia, the successors in title, San He took issue and lodged a complaint before Honourable 0. Z. Katyamba, a resident Magistrate, who allowed the complaint. The 1st and 2nd respondents thus faced one count of trespass and one count of theft. 2.4 Unhappy with the decision of the Magistrate, the 1st and 2nd respondents applied to have the complaint inquired into by the High Court pursuant to Section 80 of The Criminal Procedure Code Chapter 88 of the Laws of Zambia. The Magistrate declined to JS grant the application. They then applied for leave to appeal against this ruling to the High Court, which leave was granted and they lodged the appeal. Decision of the lower court - First Appeal 2.5 On appeal, the High Court agreed with the 1st and 2nd respondents that the charges which were in the Subordinate Court ran a risk of conflicting with a civil decision of the High Court on the subject. The court wondered how the manganese issue became a subject of a criminal matter when there was a stay on the manganese that was removed from the land in dispute between the parties. 2.6 The lower court held the view that the proceedings in the court below were a clear case of abuse of court process because the prosecution set in motion criminal proceedings when there is a judgment into the issue of contempt of court, as it amounts to seriously disparaging its judgment. 2.7 The lower court found that the proceedings in the Subordinate Court at Kapiri-Mposhi were a nullity and ordered the prosecutor at Kapiri Mposhi to appear before it to show cause why they should not be cited for contempt of court. J6 The Second Appeal 2.8 The second part of this appeal relates to two proceedings in the Subordinate Court, as already noted above. 2.9 The proceedings before Honourable E. Banda under Cause No. lKP/17/20, in which the 3rd respondent was the accused, had reached case to answer and the court adjourned the same for ruling. 2.10 The proceedings before Honourable B. M. Chiganda under Cause No. lKP/238/19, in which the 1st and 4th respondents were jointly charged in the first count and in the second count the 1st respondent was charged alone, the prosecution had called five witnesses and it was adjourned for continued trial. 2.11 The two proceedings came to the attention of the Judge in the court below, after which he called for both records and exercised revisionary jurisdiction under Section 337 of The Criminal Procedure Code Chapter 88 of the Laws of Zambia. Decision of the lower court - Second Appeal 2.12 The High Court recalled the decision it made on 4th February, 2020, in respect of proceedings before Honourable Katyamba, that they were a nullity. J7 2.13 After considering proceedings before the two magistrates, which he was reviewing, the Judge concluded that the proceedings before the two Magistrates all related to Kapumba Mine, which dispute was before the High Court pending rulings in a number of applications. He referred to his earlier ruling and concluded that criminal proceedings in these courts were a nullity and accordingly void ab initio and that any aggrieved party was at liberty to appeal. 2.14 The lower court castigated the Magistrates for disregarding judicial hierarchy and precedence, when despite his earlier ruling ( one subject of the first appeal) being brought to their attention, disregarded it and proceeded with the matters. 2.15 The lower court proceeded to declare the proceedings before the 2 Subordinate Courts in Cause No. lKP/238/2019 and lKP/17/2020 a nullity in line with his Ruling of 4th February, 2020. 3.0 GROUNDS OF APPEAL 3.1 Disconsolate with the Rulings of the lower court, the appellant filed four grounds of appeal couched as follows: (1) The learned trial judge erred in law by determining the matter brought before him when there is no provision interlocutory appeal against decision of the for Subordinate Court in criminal matters. J8 (2) The learned trial judge misdirected himself in law by determining the merits of the proceedings in the court below prematurely, when jurisdiction fell squarely with the lower court seized with the matters. (3) The in judge erred learned trial lacked jurisdiction when it held that the criminal proceedings instituted by the state before the lower court at Kapiri Mposhi Subordinate Court amounted to re-litigation of the matter, when the criminal and civil proceedings are mutually exclusive. law and ( 4) The learned trial judge erred in law by reviewing the matters before him when no decision had been rendered by the Subordinate Court to warrant the exercise of the Court's revisionary powers. 4.0 APPELLANT'S ARGUMENTS 4.1 Learned counsel for the appellant argued grounds 1 to 3 together as they were intertwined, relating to the first appeal. It was submitted that the decision by the Magistrate not to refer the matter to the High Court was interlocutory in nature. Counsel contended that it is settled law that there are no interlocutory appeals in criminal matters. Reliance was placed on the case of Kambarange Mpundu Kaunda v. The People. 1 It was argued that the judge should not have entertained an interlocutory appeal as it is not tenable in a criminal matter. J9 4.2 It was argued that the whole criminal process would come to a stand still if the state or the accused persons were at liberty to lodge interlocutory appeals in criminal matters. 4.3 Learned counsel submitted that the ruling by the judge to the effect that the criminal matter in the subordinate court was a re-litigation and erroneous, was in effect barring criminal proceedings using civil proceedings. It was contended that this was a misdirection as civil matters cannot be used to bar criminal proceedings. Reliance for this argument was placed on the case of C & S Investments Limited, Ace Car Hire Limited, Sunday Maluba v. The Attorney General. 2 It was argued that the learned judge should have allowed the case to conclude bearing in mind that the respective proceedings have different jurisdictions and that criminal and civil proceedings are mutually exclusive. We were urged to allow the appeal. 4.4 In respect of ground four, counsel submitted that the judge could have exercised powers under Sections 337 and 338 of the Criminal Procedure Code only if proceedings in the Subordinate Court had concluded. It was contended that since proceedings were not concluded, there was nothing to review. JlO 4.5 It was learned counsel's contention that there was thus no basis for the learned judge to exercise revisionary powers. It was argued that the judge fell into grave error when he declared the two proceedings in the Subordinate Court a nullity. We were urged to allow this ground of appeal. 5.0 RESPONDENT'S ARGUMENTS 5.1 On behalf of the respondent, learned counsel submitted that the appeal by the 1st and 2nd respondents against the decision of the Magistrate was procedural as this was a special case that related to an appeal against the finding of the court on issues of an accused who was brought on a complaint or formal charge where the court inquires into the correctness or otherwise of the charge or complaint against an accused person. 5.2 It was counsel's argument that the respondents followed the procedure as enshrined in Section 90(7) of the Criminal Procedure Code. It was submitted that by referring the matter to the High Court, though seemingly interlocutory in nature, the respondents acted within the law cited above and that the judge cannot be faulted for entertaining the appeal even to decide as it did by declaring the proceedings before the Jll Magistrate a nullity. Counsel contended that Section 90(7} above is an exception to the rule that there are no interlocutory appeals in criminal proceedings. 5.3 It was argued that the judge invoked the authority under Section 90(7} which gives power only to the High Court and as such, the Kambarange Mpundu Kaunda case is distinguishable as it is not on all fours. 5.4 It was counsel's further submission that nothing stops the court from inquiring into a matter in a criminal or civil litigation for the court to gain an understanding of the facts and issues before it. Counsel argued that in criminal matters this is called preliminary inquiry and it is not equated to delving into the merits of the case as the state proposes to argue. 5.5 In responding to ground four, learned counsel argued that they opposed the notion that only when proceedings had been concluded can the High Court exercise its powers to call records for the reason that Sections 90 and 80 of the Criminal Procedure Code, among others, give jurisdiction to the High Court to call for the record of the J12 lower court under certain circumstances as befell the trial court in issue. 5.6 It was argued that the learned court below did not fall into grave error at procedural law when he declared the two proceedings in the Subordinate Court a nullity. We were urged to dismiss the appeal and uphold the lower court's decision. 6.0 THE HEARING 6.1 At the hearing of the appeal, learned counsel for the appellant, Mrs. Chipanta-Mwansa and learned counsel for the respondents Mr. Banda, informed us that they would rely on their respective filed arguments. 7.0 CONSIDERATION AND DECISION OF THE COURT 7 .1 We have pedantically considered the evidence on the record, the arguments by both parties and the judgment of the trial court. 7 .2 We shall consider ground four first because of the position we have taken. Ground four relates to the second appeal herein, emanating from the grievance by the state, following a decision by the lower court in the exercise of its revisionary jurisdiction. 7.3 Section 15 of the Court of Appeal Act No. 7 of 2016 provides for second appeals in the following words: J13 "(1} A party to an appeal to the High Court may appeal to the Court against the judgment of the High Court with the leave of that court, if given at the time when judgment is pronounced, or with the leave of the Court. (2} For purposes of this section, an order made by the High Court in the exercise of its power of review, a decision of the High Court on a case stated or a decision of the High Court refusing an application for an appeal to be heard out of time, shall be considered to be a decision of the High Court in exercise of its appellate jurisdiction." 7.4 It is abundantly clear that when a High Court exercises its powers of review, an appeal lies to this Court only with leave of the High Court or this Court. The Ruling, subject of the second appeal herein dated 5th March, 2020, did not grant the appellant leave to appeal. Neither did the appellant apply for leave to appeal before that court or this court. The appellant simply proceeded to file their notice of appeal without first seeking leave. 7.5 The appeal is thus incompetent and as a result, this court lacks jurisdiction to attend to it. We are therefore constrained to deal with the issues raised in ground four as it relates to the second appeal. We thus dismiss the second appeal for incompetence. J14 7 .6 We now turn to consider the arguments relating to the first appeal. It has been argued by the appellant that the lower court should not have entertained an interlocutory appeal. On the other hand, the respondent contended that the lower court was on firm ground when it entertained the appeal. 7.7 The issue is whether the court below had jurisdiction to deal with the appeal before it. 7.8 It is trite that interlocutory appeals are not tenable in criminal matters. This was the holding in the case of The People v The Principal Resident Magistrate Ex-parte, Faustin Kabwe and Aaron Chungu. "We agree with this proposition of the law because a finding of a case to answer is not a final verdict. However, a finding of no case to answer is a final verdict and therefore a Magistrate would be required and obliged to give reasons. However, the most important issue in the present appeal is one of procedure. We have said before that there can be no interlocutory appeals in criminal matters. Mr. Sangwa agrees with this position in his written heads of arguments. His complaint is that at the time of an appeal against conviction, the decision of the Court under section 206 of the Criminal Procedure Code will have become moot. We sympathize with Mr. Sangwa; but as for now that is the law. The issues raised in this purported appeal are only relevant at the end of the criminal trial should there be a conviction." J15 7.9 Although the Supreme Court was dealing with issues to do with a finding of case to answer, the decision was very clear that there can be no interlocutory appeals in criminal matters. 7 .10 We note however that Section 90(7) of the Criminal Procedure Code allows an appeal against a decision of the Subordinate Court not to accept a complaint. 7.11 The facts in this case are that the ist and 2nd respondents appeared before the Subordinate Court in response to a complaint lodged by San He Limited. The Magistrate accepted the complaint and a charge was drawn. Being dissatisfied with the acceptance of the complaint by the Subordinate Court, the 1st and 2nd respondents applied pursuant to Section 80 of the Criminal Procedure Code to have the complaint inquired into by the High Court. The Magistrate declined hence the appeal to the High Court. 7.12 Section 90(7) of the Criminal Procedure Code, which the ist and 2nd respondents relied on in the lower court and in this court, only allows appeals where a person lodges a complaint before a Magistrate and it is declined. Only then can the aggrieved complainant appeal against that decision to the High Court. In this case, the Magistrate • J16 accepted the complaint and no appeal against that decision is tenable. Therefore, Section 90(7) aforementioned cannot aid the respondents. 7 .13 We wish to state that there are two ways in which criminal proceedings are commenced. The first and most common is arrest with or without a warrant and the second one is by complaint before a Magistrate. In the second way, once the Magistrate accepts the complaint, criminal proceedings are thus set in motion. At this stage, an interlocutory appeal is untenable. Once the complaint is rejected by a Magistrate, no criminal proceedings subsist. The decision is more or less final as there will be no criminal proceedings subsisting in the Subordinate Court. That is the reason Section 90(7) aforementioned allows an appeal in this regard as it is not interlocutory in nature. 7.14 It follows therefore that the lower court had no jurisdiction to entertain an interlocutory appeal. Its ruling was a nullity. We accordingly set aside the Ruling of the High Court dated 4th January, 2020. We direct that the criminal trial in the Subordinate Court in which the 1st and 2nd respondents are jointly charged must proceed. • • J17 7.15 We have deliberately not considered the merits or demerits of the decision of the court below because of the position we have taken. 8.0 CONCLUSION 8.1 We find merit in the first appeal, set aside a ruling of the court below dated 4th February, 2020 and direct that the criminal proceedings must proceed . We dismiss the second appeal for want of jurisdiction. DEPUTY JUDGE PRESIDENT COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE