Regina Chiluba’s acquittal judgment in full

IN THE HIGH COURT FOR ZAMBIA                                              HP/82/2009

HOLDEN AT LUSAKA

(CRIMINAL JURISDICTION)

BETWEEN:

REGINA CHIFUNDA CHILUBA                                 Appellant

V

THE PEOPLE                                         Respondent

Coram                        :   E. M. Hamaundu, J,  C. K. Makungu, J and

E. M. Sikazwe, J

For the appellant      :   Mr R.M. Simeza, Messrs Simeza, Sangwa & Associates

For the respondent   :   Mrs R Khuzwayo, Deputy Chief State Advocate & Mr

S. Simwinga, State Advocate

JUDGMENT

The appellant was charged before the subordinate court of the first class at Lusaka with five counts of being in possession of property reasonably suspected of having been stolen or unlawfully obtained and one count of receiving property knowing or having reason to believe that it had been feloniously stolen or obtained.

In the first count, the appellant was alleged to have been in possession of property known as Stand No. NDO/14, Ndola, which she was alleged to have bought from money which was reasonably suspected of having been stolen or unlawfully obtained. In the second, count the appellant was alleged to have been in possession of property known as Stand No. KIT/643, Kitwe, which she was alleged to have bought from money which was reasonably suspected of having been stolen or unlawfully obtained. In the third count, the appellant was alleged to have been in possession of property known as Stand No. KIT/645, Kitwe, which she was alleged to have bought from money reasonably suspected of having been stolen or unlawfully obtained. In the fourth count, the appellant was alleged to have been in possession of a motor vehicle which was reasonably suspected of having been stolen or unlawfully obtained. In the fifth count, the appellant was alleged to have received from Dr Fredrick Jacob Titus Chiluba a Toshiba television set knowing or having reason to believe the same to have been feloniously stolen or obtained. In the sixth count, the appellant was alleged to have been in possession of a sum of K474 million cash which was reasonably suspected to have been stolen or unlawfully obtained.

The prosecution’s evidence before the court below was, essentially, as follows: In or around the month of September, 2002, the Task Force on corruption received information pertaining to property that the appellant was said to have owned. A team of officers was constituted and initially led by Prosecution witness number two. They obtained warrants to search the homes of the appellant and her relatives. The searches resulted in the seizure, among other things, of a television set and its import documents, both of which were in the possession of the appellant. The search, also, resulted in the seizure of a motor vehicle, an Isuzu vannette which was driven by the appellant’s brother. In the course of the investigations, warrants were issued for the purpose of conducting further searches of bank accounts belonging to the appellants and her businesses. The team also went to identify one property in Ndola known as Ado house and two properties in Kitwe known as Stand numbers KIT 643 and KIT 645. The team, then, started interviewing and obtaining statements from other people with respect to the transactions on the said properties and the television set. The team found that the appellant had purchased the property in Ndola at US$80,000. They found, also, that, of the two properties in Kitwe, one was bought by the appellant at US$60,000 while she bought the other one at US$48,000. The team, further, investigated the importation documents for the television set and found that it was imported by State House. The team interviewed the appellant, who explained that she acquired the sum of US$60,000, which she used to purchase Plot KIT 645 as a loan from Mr B.Y. Mwila. The appellant also explained that the money which she used to buy the other two properties and also the money which was found in her account were raised from her businesses. The appellant, also, explained that she bought the motor vehicle from money raised from her businesses while she got the television set as a gift from Dr Chiluba. The team conducted further investigations into the appellant’s businesses and found that not only were the United States dollar transactions not reflected in the business or personal accounts of the appellant but that the income from such businesses fell far below the value of the United States dollar transactions. The team, then, charged the appellant for the subject offences.

Before the court below, the appellant’s explanation, given through her testimony and those of four witnesses, was that, other than the businesses which were governed by contracts, she also ran cash businesses on the side. The money from these cash businesses was usually kept at home and converted into foreign exchange for re-investment into the businesses or for purchase of property, such as in this case. The explanation went on to state that the cash money that was found in her Kwacha account also comprised of money realized from the sale of her businesses when she divorced with her former husband. The explanation also went further to state that Dr Chiluba gave the appellant some money to go and pay for a television set, which was her gift from Dr Chiluba.

On that evidence, the court below found that there was no dispute that the appellant did make payment for the three properties, namely KIT 643, KIT 645 and NDO 14, in the following amounts respectively, US$48,000, US$60,000 and US$80,000. With this finding, the court deduced that upon payment of the price for properties KIT 643 and KIT 645, certain rights accrued to the appellant which entitled her to the control and possession of the two properties. As for the property NDO 14, the court deduced that since the money was not given to Lilo Investments Limited as a loan and since the appellant was the company’s principal director, then she had possession of the property.

The court, further, found that the possession by the appellant of the motor vehicle and the sum of K474million cash, the subjects of counts 4 and 6 respectively were not in dispute. The court also found that the appellant had been in possession of the cash that was used to pay for the properties KIT 643, KIT 645 and NDO 14.

Having considered, briefly, the ingredients which the prosecution must prove in the offence charged in respect of the said properties and the cash before the appellant could be called upon to give an explanation, the court held that a reasonable suspicion that the said property was stolen or unlawfully obtained was established when the prosecution closed their case and the appellant was put on her defence.

Upon analyzing the appellant’s explanation in her defence, the court below made the following observations; (i) that the payments that the appellant made for the properties KIT 643, KIT 645 and NDO 14 were high value payments. Such transactions should have been conducted through the bank system (ii) that the appellant failed to produce books to show that, apart from the appellant’s main businesses, which ran most of its transactions through the bank system, there existed even a bigger empire which was responsible for financing purchases such as the acquisition of plot KIT 643. The proposition that the cash business, albeit being a side one, was more lucrative than the main business defied logic (iii) while it was appreciated that the appellant’s only burden at law was to give an explanation that might reasonably be true, such story must not be riddled by contradictions and open defiance of logic and the evidence on the ground. Secondly, a story seeking to exonerate one from allegations involving huge sums of money cannot be explained away in a casual manner which leaves more questions than answers and clearly shows that the defence is unwilling to produce vital evidence which appears to be in their control and custody.  Therefore, the explanations given by the appellants as regards the source of the US$48,000 and the US$80,000 were unsatisfactory (iv) As regards the sum of US$60,000 for stand No. KIT 645, that the appellant lied to the investigating officers that she had documentation for the loan that she obtained from Mr. B.Y. Mwila because she not only failed to give the officers those documents but also changed her story in court and stated that there was no documentation involved in that loan. Therefore, the explanation regarding the source of US$60,000 for the purchase of KIT 645 was unsatisfactory (v) As regards the sum of K474million cash, that the appellant’s kwacha account was generally inactive. The account only became active between April, 2001 and November, 2001, when the appellant started making huge deposits of not less than K20million. Because the appellant’s cash based businesses could not generate such amount of money, the appellant’s explanation was unsatisfactory (vi) As regards the motor vehicle, its records and previous owners were traceable. There was nothing irregular or illegal about the motor vehicle. Therefore there was no basis for the suspicion regarding the motor vehicle. (vii) As regards the television set, the import documents showed State House as being the importer. The documents consigning the television set did not bear the names of Dr. Chiluba. The court’s conclusion was that when the television arrived in the country, it arrived as an item imported by State House and was cleared by State House Staff. It was later transmitted to the appellant’s house in Ndola with the accompanying documents. Therefore, the appellant’s pleas of ignorance of the documents could not be believed. The court found that the television was imported by State House and given to the appellant on the directives of the then President Dr Chiluba. According to the court, that act amounted to theft. The appellant knew that she was not entitled to retain government property.

The court then convicted the appellant for being in possession of stand NDO 14, stand KIT 643, and stand KIT 645 and the sum of K474 million cash. The court also convicted the appellant for receiving the television set. The court, however, acquitted the appellant on the offence of being in possession of the motor vehicle.

The court sentenced the appellant to 2 ½ years on each of the counts relating to possession of property. The court also sentenced the appellant to 3 ½ years for receiving the television set,.

The appellant appealed. The basis of the appellant’s appeal was that the court below erred both in law and fact when it held as follows;

(i)          That possession was proved in respect of counts one, two and three

(ii)        That there was reasonable basis for suspecting that the properties in counts one, two, three and six were stolen or unlawfully obtained

(iii)      That the explanation given by the appellant as regards how she came into possession of the said property was unsatisfactory

(iv)       That the television set, which was the subject of the fifth count was stolen from State House.

(v)         That the appellant received the television set knowing that it was stolen from State House

(vi)       That the appellant’s explanation as to her possession of the television set was an after- thought

Other grounds were that the court below erred in law and fact;

(i)          When it made findings of fact which were not supported by the evidence and when it made serious assumptions

(ii)        In, generally, shifting the burden of proof on all counts to the appellant

(iii)      When it imposed a custodial sentence on misdemeanors

Learned counsel for the appellant argued on the law as follows: with regard to the offence of being in possession of property reasonably suspected of having been stolen or feloniously obtained, there was need to prove the following ingredients; that the person charged with the offence must have been in possession of the property, (b) that there was reasonableness in the suspicion that the property could have been stolen or unlawfully obtained and (c) that the person who was found in possession of that property failed to give an account of how they came into possession when asked. There was need to establish a prima facie case before the person would be asked to explain. The prosecution had a duty to demonstrate that the suspicion was reasonable and proportionate in relation to the person’s station in life. Once reasonableness has been established, the burden is on the accused to give an explanation which may reasonably be true. Even in the absence of an explanation, an inference of guilt cannot be made unless it is the only reasonable inference to be drawn.

Learned counsel referred to the following authorities for the foregoing propositions of law; Kalonga V The People [1976] ZR 124, Kiondo Hamiswe V Republic (1963) E.A. 209, Mandavu V R (1962) R & N 298, Maseka V The People (1972) ZR 9 and Kaseke V The People (1974) ZR 51.

Learned counsel continued as follows; The object of the offence in counts one, two and three were the buildings while the object of the offence in count six was the cash. However, in its judgment, the court below said that in each of counts one, two and three there were two distinct objects. The court below said that the appellant was required to account for the buildings as well as the money that was employed to purchase the buildings. This created two distinct offences and was therefore, a misdirection. Therefore, the whole charge was bad for duplicity. Consequently, the appellant was subjected to an unfair  trial. That approach by the court also flew in the teeth of Section 134(2) of the Criminal Procedure Code.

Learned counsel referred the court to the following authorities for the submission above; Mwandila V The People (1979) ZR 174, Shamwana V The People (1985) ZR 41, Kambarage Kaunda V The People (1990-92) ZR, Mutolokwe V The People (1972) ZR 283 and The People V Patel, 1970 SJZ.

Learned counsel continued with his submissions as follows;  If the object of the offence was the money used to purchase the buildings, then there should have been evidence on record to show that the appellant was in possession of that money. However, one cannot be charged with possession of something long after that thing has left his possession. The transactions involving the properties, NDO 14, KIT 643 and KIT 645 were concluded years before the arrest. This means that the money which was alleged to have been used to buy them had left the appellant’s possession long before the arrest.

Counsel referred the court to the case of Kateba V Republic (1967) EA 215 for the above proposition.

Learned counsel continued with his submission as follows; There was no evidence to prove possession of stands KIT 643, KIT 645 and NDO 14 by appellant. The appellant did deny her possession and control of them. This was not challenged. The court below, however, made a finding of possession purely on the money aspect. While the evidence on record was that there was no contract of sale, the judgment of the court below was that there was a contract. That holding was in conflict with the evidence.

Learned counsel continued as follows: Assuming that there was evidence to prove possession, the next question was whether there was evidence in the court below to show that there was a basis for reasonable suspicion that the properties were stolen or unlawfully obtained. There was no basis for such suspicion. The court below should also have considered whether there was anything in the appellants conduct, at the time of arrest, which raised reasonable suspicion that the properties were stolen or unlawfully obtained. Such evidence was not there.

Learned counsel referred the court o the case of Njoroge V Republic (1965) E.A.

Learned counsel continued as follows: the court below, in response to the above issues merely glossed over them. The court below merely stated that it had been satisfied that there was reason for suspicion yet the ruling on a case to answer did not specify what evidence had satisfied the court that there was reason for suspicion. It was, therefore, wrong for the court to have even called upon the appellant to give an explanation of the possession of the properties.

Counsel continued as follows: The next question was whether the appellant had given a satisfactory explanation to the court. The Legislature intended to place a lesser burden on an accused person. Whilst acknowledging the law on an accused’s explanation, the court below nevertheless, placed a standard which was higher than the one provided for by the law, by substituting its own opinion of how the transactions should have been done in respect of the properties. The court only needed to ask itself whether the explanation was probable. In view of the appellant’s station in life, the sum of US$48,000 should not have come to the court with a sense of shock. The court’s demand that the appellant should have produced books was tantamount to requesting her to prove herself innocent. There is no requirement for an accused to prove themselves innocent. The appellant was never asked to account for the properties but she was asked to account for the money. This she did. The appellant explained that she borrowed money from Mr. B.Y. Mwila in order to buy Plot KIT 645. The appellant explained that she bought plot NDO 14 from her account and KIT 643 by cash. The appellant also explained that the sum of K474 million accrued to her account through property settlement, upon her divorce.

Learned counsel submitted that with the foregoing arguments, the convictions in counts one, two, three and six were against the law and therefore, totally wrong.

Learned counsel argued grounds four, five and six together and argued against the conviction of the appellant for receiving the television set as follows: The following ingredients needed to be proved in that offence (a) that the theft of the property had occurred (b) that the appellant was in possession or retention of the stolen property and (c) that the appellant knew or had reason to believe that the property had been stolen.

Counsel referred the court to the following authorities in support of the submissions that will follow shortly; David Kasule V Uganda (1966) E.A, R V Hepworth, R V Fearnley (1955) 2 ALL E R 918, Nswana V The People (1988/89) ZR 174, Kuwani V The People and Kipsaina V Republic (1975) E.A 253.

Learned counsel submitted as follows; a receiver must have guilty knowledge that the property is stolen. If the explanation given by an accused person is reasonable and might possibly be true, the charge is not established. The thrust of Section 318 of the Penal Code is that there must be proof that the property is stolen. Was there any evidence on record that the television was stolen by Dr Chiluba? Was there evidence that the television set was found in the appellant’s possession? Was there evidence that at the time of receiving it, the appellant knew that the television was stolen? Dr Chiluba has never been interviewed, charged or convicted for the theft of the television set. He is supposed to be the principal offender. Before the appellant could be said to have received stolen property, Dr Chiluba ought to have been charged and convicted. The prosecution’s case in the lower court was that, since the documents relating to the television set were endorsed “State House, Lusaka” then the television set was the property of the Government. Those documents were for the payment of duty. State House does not pay duty. A prosecution witness from State House was not aware of any television set stolen from State House. No document was produced by the prosecution to show that Government paid for the television set. No inventory was produced. The appellant does not deny possession. As regards knowledge or reason to believe that the television set was stolen, no evidence was adduced to prove guilty knowledge. The court on the other hand held that the appellant had guilty knowledge merely because she was married to Dr Chiluba.

As regards sentencing, learned counsel submitted as follows; The offences relating to being in possession of property are misdemeanors. The section which creates that offence does not provide a punishment. In those circumstances, Section 38 of the Penal Code provides the punishment. The punishment is either a fine or a term of imprisonment not exceeding two years or both. Therefore, the court below erred in passing a sentence of 2 ½ years.

Learned counsel relied on the following authorities for the foregoing argument: Musonda V The People (1976) ZR, Siyauya V The People (1976) ZR 253, The People v Kangawe Ndumba, 1990 S.J. Z and The People V Mutambo (1981) ZR 314.

Finally counsel submitted as follows: While the appellant concedes that the offence of receiving the television set was a felony, nevertheless a sentence of 3 ½ years was harsh considering that the appellant was a first offender and also bearing in mind the value of the television set.

Those were the submissions of counsel for the appellant.

In response, learned counsel for the State submitted as follows: The state supports the conviction by the lower court because there was overwhelming evidence adduced against the appellant. As regards the charges relating to properties NDO 14, KIT 643 and KIT 645, the words that were inserted on amendment to show the values at which they were purchased did not create any duplicity in the charges. There was only one offence disclosed, namely that of failing to account for the property. Even the court below convicted the appellant for failing to account for her possession of the properties and not for cash. As regards the issue of possession, the appellant paid for properties KIT 643 and KIT645. Although conveyancing was not completed, equitable rights in those properties did pass on to the appellant. Consequently she was a beneficial owner of the two properties. Accordingly she possessed them. Although plot NDO 14 was in the name of Lilo Investment Limited, the money that was used to purchase it was traced to the appellant’s personal account.

Learned counsel continued as follows: Coming to the suspicion, there was reasonableness in the suspicion regarding how the properties which the appellant was found to possess were acquired. The appellant acquired the three properties within a space of three years. The total cost of these properties was US$188,000. Looking at the income generated by the appellant’s business, the business did not have capacity to raise about K1.5 billion in three years.

Learned counsel submitted further as follows: the court below was on firm ground when it held that the appellant’s explanation was unsatisfactory because there were inconsistence in the explanations which she gave to the investigating officers and to the court. Inconsistencies cannot be held to be a reasonable explanation (Maseka V The People [1972] ZR). The appellant told the court below that she purchased the properties from proceeds from her business. The appellant told the court that she had lied to the ZRA officers when she presented them with a list showing that some of her incomes were gifts from her husband. The appellant told the court that she borrowed US$60,000 from Mr B.Y. Mwila and yet Mr B.Y Mwila’s testimony was that he lent the appellant a sum of US$100,000. With those inconsistencies, the appellant’s explanation cannot be said to be satisfactory.

Learned counsel continued as follows; the court below was on firm ground when it held that the television set was stolen. The appellant does not dispute that the television set was in her possession. Custody of recently stolen property is enough proof of possession. (Elias Kunda V The People [1980] ZR 100). Therefore, the court would infer guilty knowledge since the appellant did not dispute possession. However, the prosecution had adduced a lot of documents that showed that the television set was consigned to State House. The appellant had reason to believe that the television was unlawfully obtained because she had documents showing that the television was consigned to State House and yet she had neither worked nor lived at State House. The court below was on firm ground to reject the appellant’s explanation regarding the television set because the document which the appellant produced and on which was written that the television set was consigned to Dr Chiluba at State House was not stamped by any authority. Hence the court could not believe that the television set was sent by a Mr. Tampyampa.

Those were the submissions by counsel for the respondent.

We would like to deal first with the counts relating to the appellant being in possession of property suspected to have been stolen or unlawfully obtained. The appellant was convicted on four counts of this offence. Three of those counts, namely, counts one, two and three are in relation to buildings that the appellant bought using various sums of hard currency. The fourth count, namely, count six related to a sum of money in local currency that was found in the appellant’s account. In counts one, two and three, the charge specified two types of property; the physical plots and the cash money that was used to buy them. However, it is clear from the amendments that were made to the charges that what was reasonably suspected to have been stolen or unlawfully obtained by the appellant, as far as the prosecution were concerned, was the money which the appellant used to buy those properties. Indeed the general direction of the evidence adduced by the prosecution was to that effect. Therefore, in all the four counts of this charge, the property that is the cause for the suspicion is the cash. We therefore do not find any duplicity in the charges.

We wish to start with an extract of Hall, J,’s Judgment in the case of R V Nako and two others, 1 NRLR 49;

“where the owner of goods is known, the only charge that should be laid is one of stealing or dishonestly receiving. A charge under Section 287 will not lie when the owner of the goods is known, since in that case there is no room for reasonable suspicion that the goods are stolen, the owner being able to say definitely whether or not the goods are his”.

At that time, the offence for which the appellant is charged under Section 319 of the Penal Code was to be found under Section 287 of the Penal Code. WEwish to cite another passage, this time from the judgment of the then Chief Justice of Northern Rhodesia in the case of R V Morgan Kaonga, 5 NRLR, 580;

“As stated, Kaonga was charged under Section 287 of the Penal Code and under that section an accused has to account to the court for his possession of property and unless he can give an account to the satisfaction of the court as to how he came to be in possession of the articles in question, he is guilty of a misdemeanor and can be convicted accordingly. It will be observed that there is no question that any person claims to be the owner of the property in question and that is obvious when it is considered that if the ownership is known, the owner of the property can state how or when the property left his possession. Section 287 cannot be used where the ownership of the property is known, not even in cases where the ownership of the property is known even though the owner is not known, the proper charge in such case being stealing from a person unknown. It would be unfair if this section were to be used in such case. The property is either in the possession of the accused lawfully or unlawfully and in case of theft, receiving or retaining stolen property the Crown has to prove the theft of the article before the accused can be called upon to account for his possession. In a charge under Section 287, the accused has got to give an account to the satisfaction of the court once the articles are proved to have been in his possession. The proper charge in a case where the ownership is known, is of stealing, receiving stolen property or retaining stolen property as the case may be because the property can be identified by the owner.”

In the case of Mandavu V R (1957) R & N 298, the then Chief Justice of Northern Rhodesia, held, inter alia;

“(iv) on the question of onus of proof, the proper interpretation to be placed upon Section 287 is that it is for the prosecution initially to prove two matters beyond a reasonable doubt. Firstly, that the accused was either in possession of, or conveying the article; and secondly, that there is a reasonable suspicion that the article had been stolen or unlawfully obtained. (v) the accused cannot be called upon to give an account to the satisfaction of the court as to how he came by the goods in question until the requirements in (iv) above have been satisfied. (vi) in regard to the words “be reasonably suspected of having been stolen or unlawfully obtained, in Section 287 it is for the prosecution to establish beyond a reasonable, a reasonable suspicion in the mind of the court. The burden then shifts to the accused to alley this suspicion in the mind of the court by giving an account of his possession to the satisfaction of the court”.

From the foregoing authorities, it can be seen that the relationale behind the charge of being in possession of anything which may reasonably suspected of having been stolen or unlawfully obtained is as follows: The prosecution know that the accused is in possession of something. They know that the circumstances surrounding the accused’s possession of that thing raises a reasonable suspicion that the accused either stole or unlawfully obtained that thing. However, the prosecution do not know how the accused came by that thing or from where he got it. The prosecution, then bring the accused to court so that he can explain how he came by that thing or from where he got it. If the court is satisfied with the accused’s explanation, then the accused will be set free. If the accused’s explanation does not satisfy the court, then he is convicted of the offence.

Among the cardinal sub-ingredients of the offence is that the prosecution should not know how and from where the accused got the thing. Once the evidence shows that the prosecution know the origin of that thing then this charge cannot stand. Instead, the accused should be charged with the appropriate charge which the circumstances disclose. For example, as the authorities cited provide, if the prosecution know that the thing that is in the possession of the accused is among items that were stolen from some place, then the appropriate charge is theft of that thing. If the prosecution know that the accused received that thing from someone who had stolen it, then the appropriate offence to charge the accused with is receiving that thing knowing that it was stolen. The examples could go on.

With the foregoing authorities and the explanation that We have given as regards how the offence of being in possession of property reasonably suspected of having been stolen or unlawfully obtained is applied in practice, we shall now deal with counts one, two, three and six. These counts are for the same offence, namely, that the appellant had in her possession money which she was reasonably suspected to have stolen or unlawfully obtained. In counts one, two and three the appellant applied that money to buy real property. In count six, the money was found in the account.

The prosecution led evidence in the court below which showed that the appellant bought three plots, namely stand NDO 14, stand KIT 643 and stand KIT 645. The prosecution’s evidence, also, showed that the appellant had in her account a sum of K474 million. The prosecution led evidence to show that the appellant’s business could not have raised the money that the appellant used to buy the real property. The evidence also showed that the fast rate at which the appellants account rose could not be supported by her business income. The prosecution, then, adduced the following evidence; that the appellant used to receive money from Dr Chiluba. In order to establish that evidence, the prosecution called three witnesses. The prosecution called a clerk of court who produced, to the court below, a document which had been produced in another court in which Dr Chiluba was facing criminal charges. The document was a paper prepared by the appellant for tax purposes. In that document, the appellant was declaring that she had received from Dr Chiluba, over a period of time, a sum of US$352,000. The prosecution then called a witness who had dealt with the appellant’s declaration from the Zambia Revenue Authority. The witness told the court that the Task Force had requested the Zambia Revenue Authority to investigate whether the appellant had paid tax on the properties that she had bought. The witness confirmed that the appellant prepared and gave him the document on which she had indicated the money that she had received from Dr Chiluba. The witness said that the appellant prepared the declaration in the presence of Dr Chiluba. The prosecution also called the First Secretary at the Zambia High Commission in London. The witness testified that Dr Chiluba instructed him to deliver to the appellant in London, a sum of US$45,000. The witness did so.

This evidence had no other purpose than to show that whatever money that could not be accounted for by the appellant’s business activities was coming from Dr Chiluba. This is supported by the fact that the appellant’s declaration was being used against Dr Chiluba in his criminal charges. This evidence therefore, showed that the prosecution knew where the money that was not accounted for was coming from.

According to the authorities that we have cited above, the moment the prosecution adduced evidence pointing to Dr Chiluba as being the source of the other money which could not be accounted for by the appellant’s business then the suspicion that the appellant had stolen or unlawfully obtained the extra money was effectively removed. This evidence, therefore, destroyed a key ingredient required to establish a prima facie case for the offence of being in possession of property reasonably suspected to have been stolen or unlawfully obtained. Had the court below been alive to the effect of that evidence, it would have noted that a key ingredient to establishing a prima facie case was missing. Therefore, at the close of the prosecution’s case, the court below ought not to have called the appellant to explain how and from where she got the money. It was open to the court, at that stage, to consider whether or not the evidence adduced did disclose another offence. The court was empowered under Section 213 of the Criminal Procedure Code to do so. If that were so, the court would have ordered an amendment of the charge to that offence. The court would, then, have taken a fresh plea from the appellant and allowed the appellant to re-call any witness. In our view, only one other offence could possibly have been disclosed by the evidence before the court below, namely, receiving money from Dr Chiluba knowing or having reason to believe that Dr Chiluba had feloniously stolen or obtained it. However, no attempt was made by the prosecution to show that Dr Chiluba had stolen or unlawfully obtained that money.

This, therefore, simply means that at the end of the prosecution case the appellant was entitled to be acquitted of the charges of being in possession of property reasonably suspected to have been stolen or unlawfully obtained. Nevertheless the court below put her on her defence on these charges.

The court found the appellant’s explanation to be unsatisfactory. However, this is an appellant who, at the close of the prosecution’s case, was entitled to be acquitted of those charges and should not have been called upon to give any explanation. What, then, is the law in such a situation?

A few decided Zambian authorities have addressed that situation before. In 1973, at the High Court level, Justice Bruce-Lyle, in  the case of Mwila & Others V The People [1973] ZR 51 held, inter alia;

“ii_ Even if an accused is wrongly put on his defence, if the defence subsequently supplies what was lacking in the prosecutions case, a conviction will not be quashed”.

The following year, in 1974, Chief Justice Doyle, sitting as High Court Judge in the case of Hahuti V The People [1974] ZR 154 held:

“Section 206 of the Criminal Procedure Code is mandatory and means that if, at the close of the prosecution, a prima facie case against the accused is not made out, he is entitled to be acquitted. Hence, an error on the part of the trial court in thinking that there is a prima facie case cannot alter that position”.

In 1980, the Supreme Court, in the case of Penias Tembo V The People [1980] ZR 218, followed the case of Hahuti and held;

“It is mandatory for a court to acquit an accused at the close of the prosecution case if the facts do not support the case against him, and no evidence that is led thereafter can remedy the deficiency in the prosecution evidence.”

In 2004, the Supreme Court, in the case of Mwewa Murono V The People [2004] ZR 207, again followed the case of Hahuti; At page 213 the court said;

“If the accused person is convicted as a result of an error of the trial court in thinking that there is a prima facie case, the conviction cannot stand. It must be quashed. An appellate court has no discretion.”

Following the authorities cited, the appellant is entitled to be acquitted of the counts relating to the charge of being in possession of property reasonably suspected of having been stolen or unlawfully obtained. This is because, as we have earlier pointed out, at the close of the prosecution’s case, a key ingredient in the charge was not established. As we earlier said, the appellant should not have been called upon to give an explanation. Whatever happened in her defence is immaterial. Therefore, we would quash the convictions in counts one, two, three and six.

Assuming that the appellant had been rightly put on her defence, was her explanation satisfactory.

In respect of cash money used to purchase KIT 643, she explained that it was from her cash transactions from her numerous business ventures which were all documented from the evidence before the court. She explained to the court that the money used to purchase stand KIT/645 was borrowed from Hon. Benjamin Yoram Mwila, who when he testified in his evidence, confirmed that he did actually lend the Appellant money in the sum of 100, 000.00 U.S.A Dollars.  His evidence was not challenged in any material way. PW26 in his evidence conceded that even though the accused’s explanation was true or not, he had not spoken to the Honourable B.Y. Mwila even at the time of giving evidence in the lower court.  He went on to state on page 284 of the record of proceedings lines 05-10 that

“We wanted to establish whether there could have been a corresponding entry in either Lilo’s or mimmy’s  account for purchase of KIT 645.  If there is a borrowing of a huge some of money, ordinarily it is supposed to pass through a bank account and that is why we checked.  There is a possibility what accused said could be true.”

NDO14 was transacted through the bank, by bank transfers which were confirmed by Prosecution Witness number two, Prosecution Witness number (9) and Prosecution Witness number 26 among others.

In the case of Kaseke Vs. The People (1974) ZR 51, it was held by Doyle C.J. then that;

“(i) under Section 319 of the Penal Code the onus is upon the accused to furnish an explanation which satisfies the court; and

(ii) the onus is discharged if the explanation is one which, though it might not necessarily be true, might reasonably be true.”

In the case at hand, it is on record that when the Appellant was put on her defence she stated under oath how she came to source the money used to purchase the properties.  The lower court, however, went on to demand that such high value transactions such as the ones which the Appellant conducted would have been better conducted through the banking system. This was a very high burden which the court below was placing on the appellant. It amounted to shifting the onus of proving the case onto the appellant. There was nothing wrong if one transacted in cash, whether for high value or lower value transactions.  Section 319 of the Penal Code does not impose any greater obligation on an accused person than to give an explanation which might reasonably be true. In the case of Danny Zyambo Vs. The People (1977) ZR 153 Bruce Lyle JS as he was then stated that

“(ii) Section 319 of the Penal Code does not impose any greater obligation on an accused person; if he gives  an explanation which might reasonably be true, then he has as a matter of law satisfied the court that the case has not been proved beyond reasonable doubt and has discharged the obligation imposed on him by the section”.

The same applied to the possession of cash amounting to K474, 000,000.00 at hand and banked at Standard Chartered Bank (Z) Limited in count six.  The Appellant explained to the lower court how she used to maintain the account by numerous transactions which were going through her account.  This money which went through the bank, some of it as deposits, was over a specified period of six to seven months, coming from her business and her property transactions.  The Appellant was not required to start accounting or differentiating amounts which were attributed to the liquidation process of her companies, as the lower court wanted it to be done. The lower court held that the Appellant was inconsistent in her explanation, thereby rendering her explanation unsatisfactory to the court.  The basis for that holding by the court below was that the appellant gave one explanation to the investigating officers when she was interviewed and a different explanation during her defence before the court. With that reasoning, the court overlooked that Section 319 of the Penal Code does not require an accused person to give an explanation to an investigating officer. It only requires an accused person to give an explanation to the court. Therefore, the only explanation that was relevant was that which the appellant gave to the court. There was no inconsistency in the explanation which she gave to the court below.  Therefore, the appellant had discharged her burden. Therefore, even from this aspect, we would allow the appeal and quash the convictions in counts one, two, three and six.

We now turn to count number five. The charge in this count as earlier outlined was that the appellant received the television set from Dr Chiluba knowing or having reason to believe the same to have been feloniously stolen or obtained. Section 318(1) of the Penal Code reads:

“Any person who receives or retains any chattel, money valuable security or other property whatsoever, knowing or having reason to believe the same to have been feloniously stolen, is guilty of a felony and liable to imprisonment for seven years.”

To prove this charge, the prosecution had to prove that Dr Chiluba stole or unlawfully obtained the television set. We refer to the case of R V Morgan Kaonga, 5 NRLR 580.

The court below found that the television set was ordered by State House and that upon its arrival, Dr Chiluba gave it to the appellant.

The court clearly misapprehended the facts relating to the television and did not address the important legal requirement for the prosecution to prove the ingredients of the offence beyond reasonable doubt. We have considered the evidence on record and are of the view that there was no proof at all that the television set was feloniously stolen from State House by Dr. Chiluba.

This is because, in this case, no prior complaint had been lodged by State House or Government that a television set destined for State House had gone missing. The investigators, however, stumbled on documents which showed that the television set which was in the appellant’s possession had possibly belonged to State House. However, even after the investigators had come across the television set, no one from the Government came forward to file a formal complaint and prove that, indeed, the television set was ordered and intended for State House. Considering that the appellant had given an explanation as to how the television set came to be in her possession, there was need for the prosecution’s evidence to have something more than just those documents. Consequently, the findings of the court below were not supported by the weight of the evidence on this charge.

As regards the ingredient that the appellant knew that the television set was stolen or feloniously obtained, the appellant could not have suspected that the television set might have been stolen because she directly dealt with the supplier of the television set Mr Tampiyappa and paid the television set with the money given to her by the former President who used to reside at State House. Under the circumstances, there was nothing unusual about the television set having been sent to State House. Furthermore, the appellant could not have suspected that the television set which was not even marked with letters “G.R.Z” probably belonged to the Government of Zambia. The appellant’s explanation was not rebutted. Mr Tampiyappa’s affidavit was not challenged in any significant manner. The lower court misdirected itself when it rejected the appellant’s explanation as to how she came into possession of the television set when in fact her explanation might have reasonably been true. We have applied the case of Elias Kunda V The People (1980) ZR 100.

Therefore we would allow the appeal on this count and quash the conviction.

All in all, the result would be that the appellant would be acquitted on all the counts. Consequently, the appeal against sentence would be academic. However, we would like to mention in passing that where a misdemeanor does not provide for a punishment, Section 38 of the Penal Code provides that the maximum punishment should not exceed a term of imprisonment for two years.  In this case, the court below imposed a sentence of 2 ½ years on each of counts one, two, three and six, which were misdemeanors. Those sentences were wrong in principle. In an appropriate case we would set them aside.

Dated the ……………………….day of ……………………….2010.

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E. M. HAMAUNDU

HIGH COURT JUDGE

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C. K. Makungu

HIGH COURT JUDGE

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E. M. Sikazwe

HIGH COURT JUDGE

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